A.  the federal government has absolute sovereign immunity (and
therefore must always consent to being sued)
B.  states have immunity from suit — rules:
1.    11th am. bars suit by citizens against other states and their
own state  Hans v. La
2.    11th am. bars suits against a state based on federal question
or diversity
3.    the 11th am. bar against suits against the states is C’al and
cannot be overridden by Congress Seminole Tribe (i.e., the Congress
can’t waive the states sovereign immunity in an area)
C.  exceptions to state sovereign immunity:      [remember, only
applies to suits in federal court]
1.    can sue to enjoin state officials from violating federal law
(becomes actor conduct, not state conduct – fiction) Ex Parte Young
2.    can sue state officials for money damages, as long as state
won’t have to pay any of it
3.    11th does bar suits v. state for officials violating state
4.    the federal gov’t can sue state; states can sue states
5.    can sue cities, municipalities, political subdivisions
(school & water districts) [note from Guinn:  don’t raise Sovereign
Immunity for Hospital district, McClennan Co, school district, City
of Waco, etc…on the exam!!!!  they are only exposed by 1983 (not
just “any person” but includes political subdivisions), but they do
not have 11th amend shield!]
6.    caselaw — unclear about agencies
7.    suits in state court:  as long as state has enabling legis.
to give them jx, the state can be sued in state court; then the 11th
am. doesn’t bar SCt from having appellate jx to ensure state ct jj
doesn’t violate federal law
D.  state can waive sovereign immunity
E.  Ex Parte Young exception to state sovereign immunity [very imp.
legal fiction b/c it allows fed. to retain supremacy]
1.    elements:
a.    state actor
b.    seeking prospective relief
2.  can get an injunction against an individual state actor to enjoin
from enforcing a state law that you get adjudged unC’al or in
violation of federal law (e.g. violation of e.p. or d.p.)
3.  relief:  only injunction  [therefore, must be an ongoing wrong]
limited exception in Ruiz v.  TX:   re: prision conditions; would
take years to get conditions up to snuff; can get $ for bad
conditions from now on but not retroactively) [we allow dmgs for this
b/c it would be bad to find a C’al wrong, but afford no remedy]
F.  Congress has some power to allow suits against states…
1.    did Congress unequivocally express an intent to abrogate
state immunity?
2.    did Congress act pursuant to a valid exercise of power?
a)  Congress cannot abrogate 11th immunity under Art 1 [even §8
commerce] (Seminole Tribe)
b  14th amend (§5):  Congress can abrogate if:
i.   congress id’s conduct transgressing 14th
–    unC’al taking of life, liberty, property
–    w/o d.p. of law    -Fla. Prepaid
ii.  tailors scheme (abrogation of immunity) to this transgression
–    only works if state takes w/o d.p.
–    and doesn’t provide a remedy (or provides an inadequate
–    proportionality:  if state deprive rts. w/o dp, Congress must
respond w/ and act that is in proportion to the harm & in response to
it (to remedy); see City of Boerne
&.  Congress cannot abrogate states’ sovereign immunity per 11th, no
matter how explicit per Seminole Tribe unless 14.5 (due process or
equal protection)
&.  can congress abrogate per….?
a.   14.5 YES
b.  1.8 NO (Seminole Tribe)
G.  rule  Congress cannot subj. a state to suit in state court w/o
consent per Alden v. Maine
1.  rule:   congress cannot force the states to allow suit in their
own courts (even a suit based on federal rts.)
2.  why?  structure, history, text, precedent (not b/c of 11th!!!
11th only applies to federal courts)
3.  effect:  Alden + Seminole Tribe means that federal law can
protect state employees, but the employees have no way of getting
damages from states for violating the law (only the federal govt
itself could bring suit)
H.   1983 notes [don’t get 11th am. mixed up w/ 1983]
1.  bring against state actor [who are not protected by 11th]
2.  bring against political subdivision [who are not protected by
3.  can’t bring 1983 action against a state b/c not a “person”
I.  review:  we get around the immunity by:
–    federal gov’t can sue
–    sister state can sue
–    get state to waive her immunity in federal courts
–    Congress can abrogate immunity under §5 of the 14th am.
1.    life liberty property     or    equal protection
[if none, go to state ct or Congress]
2.    state is violating a specific provision of the C
3.    proportionality and congruence:  subjective evaluation of the
d.p. / e.p. evil v. the remedy (the act and the abrogation of
immunity); is the injury out of proportion to the remedy?