Booth v. Fink, 1:23-cv-00758

Plaintiff Earl D. Booth sued various defendants, including Defendant Dush in his official capacity, seeking damages for alleged constitutional violations.
The Court previously held that damages claims against Dush in his official capacity are barred by the Eleventh Amendment as such claims are effectively against the State of Michigan.
Booth moved for reconsideration, arguing the State might waive its Eleventh Amendment immunity if it intervenes pursuant to 28 U.S.C. § 2403(b) (when state statute constitutionality is challenged).
The Court had notified the Michigan Attorney General about the constitutional challenge, as required by statute, allowing the State the opportunity to intervene for limited purposes.
Booth’s motion for reconsideration sought to preserve the possibility of obtaining damages against the State or its agent if the State chooses to intervene.
The Court analyzed whether intervention under § 2403(b) amounts to a waiver of sovereign immunity for damages claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2403(b) intervention waives state's	State’s potential intervention could waive	Intervention is limited and does not waive	Intervention under § 2403(b) does not waive State’s sovereign immunity.
sovereign immunity for damages in an official	immunity, enabling a damages claim against Dush	immunity; statute limits liability to court
capacity suit	if the State intervenes	costs for constitutional issues

Bd. of Regents of Univ. of Wis. Sys. v. Phoenix Int’l Software, Inc., 653 F.3d 448 (7th Cir. 2011) (state waives sovereign immunity by voluntarily intervening in federal litigation)
Gunter v. Atl. Coast Line R.R. Co., 200 U.S. 273 (1906) (state voluntarily participating in litigation waives Eleventh Amendment immunity)
Tennessee v. Garner, 471 U.S. 1 (1985) (state intervening under § 2403(b) does not become liable for underlying damages claim)