David LYTLE; Jeanette Lytle; Joan Maguire, Plaintiffs-Appellees, v. Charles D. GRIFFITH, Jr., in his official capacity as Norfolk Commonwealth Attorney; Honorable James S. Gilmore, III, in his official capacity as Governor of the Commonwealth of Virginia, Defendants-Appellants, and Charles R. Brewer, Individually and in his official capacity as Lieutenant of the Norfolk Police Department, Defendant.
No. 99-2609.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 29, 2000. Decided Feb. 16, 2001.
“Whatever rights the husband may have had by reason of the orders of Judge Crager [judge of the New York court] or otherwise, he had no right either to assault his wife or to abduct the children. In our view, his conduct should have been condemned by the application judge in the strongest possible terms. Whatever the faults of the wife, the husband had to be made aware that his objectives could not be achieved by violence or other unlawful conduct. To consider his application in the circumstances, was to approbate his conduct.” (emphasis added)
The Court of Appeal made it clear that it was not ultimately ruling on who was legally entitled to custody, but rather was holding that that should not be decided until the status quo, as it existed before William Miller’s resort to violent self-help, was restored. The Court of Appeal cast no doubt on the trial court’s September 1, 1998 finding that Doris Miller “flagrantly has been holding the children in direct contravention of a [March 24, 1998] court order issued by a Niagara Falls, New York court,” in the proceeding which Doris Miller instituted, awarding custody to William Miller. Thus, I am unable to agree with the statement in this Court’s opinion that “[w]e reject Miller’s contentions that Ms. Miller wrongfully retained the children in Canada upon issuance of the New York [March 1998] order.”
Nevertheless, I would not attempt to grant William Miller relief in the present appeal (assuming any is now practically available). He did resort to violent and unlawful self-help, the custody issue has been left open both in these Hague Convention proceedings and by the Ontario Court of Appeal, and, most importantly, the children have for well over a year now been returned to their mother in Canada. As directed by the district court, the children were put on an airplane for Canada on November 4, 1999. Apparently no stay was sought from this Court. Cf. Diorinov v. Mezitis, 237 F.3d 133, 137-38 (2d Cir. 2001).*
Before WILKINSON, Chief Judge, and MICHAEL and KING, Circuit Judges.
OPINION
KING, Circuit Judge:
This appeal relates to whether James S. Gilmore, III, the Governor of the Commonwealth of Virginia (the “Governor”), is protected by the
The Governor and his fellow defendant, Charles D. Griffith, Jr., the Commonwealth’s Attorney for the City of Norfolk (“Griffith”), do not seek to overturn the injunction on its merits. Rather, the Governor asserts that he lacks a sufficient connection to enforcement of the challenged statute and, thus, cannot be made a party to this action pursuant to the exception to sovereign immunity found in Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (permitting federal actions against appropriate state officers for prospective relief from continuing violations of federal law). Although we possess jurisdiction, we remand in order for the district court to consider the issue in the first instance.
I.
A.
Enacted in 1966 and last amended in 1989, the challenged statute provides, in its entirety:
Pedestrians shall not loiter on any bridge on which the Commonwealth Transportation Commissioner has posted signs prohibiting such action. Any person violating the provisions of this section shall be guilty of a traffic infraction.
The powers of the Governor are set forth in article V of the Constitution of Virginia and in the Virginia Code. The Governor is the chief executive officer of the Commonwealth of Virginia (the “Commonwealth”). See
B.
The plaintiffs, David Lytle, Jeanette Lytle, and Joan Maguire (collectively, the “Lytles”), filed this action under
C.
Following their encounter with police, the Lytles received assurances from representatives of the Commonwealth and the City that enforcement of
The Governor and Griffith filed a notice of appeal on December 3, 1999. On appeal, they alleged for the first time that: (1) the injunction violated the principles of sovereign immunity because, by its express language, it enjoined “the Commonwealth” directly;2 (2) sovereign immunity protects the Governor from this action;
After filing their notice of appeal on December 3, 1999, the Governor and Griffith finally raised the sovereign immunity issues in the district court, in a December 14, 1999 motion to dismiss the Governor and to modify the Order. They also requested a stay of the preliminary injunction pending appeal. However, according to the district court, these motions were neither scheduled for hearing by counsel nor referred to the court for a decision on the briefs. Then, on March 30, 2000, the Governor and Griffith filed a second motion to dismiss, again raising many of these same issues in the district court. This motion, unlike the earlier motions, was scheduled for hearing. The court, “[i]n the interest of efficiency, judicial economy, and to clear any confusion in the record of this case,” chose to discuss each of the pending motions. See Modifying Order, at 2. However, after reviewing relevant authorities regarding the Governor’s sovereign immunity defense, the court deferred ruling on the motion to dismiss pending disposition of this appeal. See id. at 2-9, 12. The court also clarified the language of its earlier Order, see id. at 12; supra note 2, and denied the motion for a stay of the injunction pending appeal, see Modifying Order, at 12.
II.
We possess jurisdiction, pursuant to
III.
A.
The
A well-recognized exception to this rule is found, however, in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which allows suits against state officers for prospective equitable relief from ongoing violations of federal law. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (“We do not . . . question the continuing validity of the Ex parte Young doctrine.”). In Ex parte Young, the Su-
[i]n making an officer of the State a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the State, and thereby attempting to make the State a party.
Id. at 157 (emphasis added). The Court further instructed that “[t]he fact that the state officer by virtue of his office has some connection with the enforcement of the act is the important and material fact, . . . whether it arises out of the general law, or is specially created by the act itself.” Id.
B.
In this case, the Lytles assert that the Governor has a sufficient connection under Ex parte Young to the enforcement of
The Governor, on the other hand, asserts that a violation of the statute is a non-criminal traffic infraction that does not implicate his authority to seek prosecutions by the Attorney General. He also rejects the purported connections between the gubernatorial powers cited by the Lytles and enforcement of the anti-loitering statute. The Governor argues that the Lytles are left with his general duty to “take care that the laws be faithfully executed,”
In addition to these factual and legal disputes, the Governor and Griffith assert that rather than choosing the Governor as a defendant, the Lytles should have either sued the Commissioner, or brought their case as a class action naming one or more Commonwealth’s Attorneys as class representatives, see, e.g., Virginia Soc’y for Human Life, Inc. v. Caldwell, 152 F.3d 268 (4th Cir. 1998). The Lytles counter that the only relevant duty of the Commissioner with regard to
Although we possess jurisdiction to decide the sovereign immunity issue, see supra Part II, we also have the discretion to decline to do so until the district court has had the opportunity to consider the matter. Where “‘[t]he District Court is in the best position to address in the first instance the competing questions of fact and state law necessary to resolve the [Eleventh [A]mendment] issue,’ . . . we remand for that purpose.” Keller v. Prince George’s County, 827 F.2d 952, 964 (4th Cir. 1987) (quoting Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982)); accord Gray v. Laws, 51 F.3d 426, 434 (4th Cir. 1995); Roberts v. College of the Desert, 870 F.2d 1411, 1415 (9th Cir. 1988) (“We decline to decide this [Eleventh Amendment] question, believing that it is one for the district court to determine in the first instance, coincident with the development of an appropriate factual record.”).
In Keller, we were presented with an Eleventh Amendment argument that rested on whether a county social services department was an arm of the state government. See 827 F.2d at 964. We remanded the case to the district court to develop a record on the issue and perhaps “resolve some of the [E]leventh [A]mendment difficulties in this case by permitting amendments to the pleadings.” Id. Facing a similar question in Gray, we remanded for the district court to reconsider the sovereign immunity issue in light of intervening Supreme Court precedent. See 51 F.3d at 430, 434. Citing Keller, we noted that it was “especially true” that the district court was in the best position to address the issue in the first instance, “given the barrenness of the record.” Id. at 434.
The sovereign immunity issue raised by the Governor encompasses two significant questions: (1) What is the Governor’s connection, if any, to the enforcement of the challenged anti-loitering statute? and (2) If there is a connection, is it sufficient to implicate the exception to sovereign immunity found in Ex parte Young? The first question, at least, requires a determination of disputed questions of fact and state law — and we have been provided with an incomplete record on which to address these questions, even if we were mandated to do so.
By remanding, we enable the district court to handle this case in the normal and most orderly fashion, and we permit it to address in the first instance the relevant questions of fact and state law. Moreover, in light of the disagreement over the naming of appropriate defendants, the district court may consider permitting amendments to the pleadings to resolve any Eleventh Amendment difficulties in this case. Such a remand would not, apparently, be unwelcome by the district court. In staying the motion to dismiss the Governor pending our decision, Judge Friedman commented:
The Court understands and agrees that the claim for immunity is not waived if not argued before the District Court. However, the Court questions the defendant’s tactic and use of judicial resources in pursuing an appeal of a preliminary injunction on a jurisdictional issue without first addressing the question at the District Court level.
Modifying Order, at 3. We note also that, although the district court deferred ruling on sovereign immunity, the court had first researched and discussed the applicable authorities on this question. Because we conclude that the district court should have the opportunity to address this issue in the first instance, we are constrained to remand.5
REMANDED
I respectfully dissent from the decision to remand this case. The parties have thoroughly briefed and argued the Eleventh Amendment question. It is ripe for resolution. The Governor of Virginia simply is not a proper party to this suit. There is no indication that the Governor actively enforced the challenged traffic statute or that he intends to do so in the future. Furthermore, the Governor’s general duty to enforce the laws of Virginia does not satisfy Ex parte Young’s requirement that the Governor bear a “special relation” to the statute under challenge. Any other result would routinely subject a Governor to suits challenging the validity of the most minor of state laws and regulations. I would dismiss the Governor as a defendant in this action.
I.
As an initial matter, I disagree with my good colleagues that a remand in this case is appropriate. It is proper to consider here the Eleventh Amendment question even though Virginia did not raise it in the district court prior to filing this appeal. See Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (holding that a defendant may raise an Eleventh Amendment argument in the court of appeals, even after failing to do so in the lower court); Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 227 (4th Cir. 1997) (“[W]e believe that, because of its jurisdictional nature, a court ought to consider the issue of Eleventh Amendment immunity at any time, even sua sponte.”).
Remand serves no useful purpose in this case. Both parties have ably briefed and argued this issue. Indeed, the district court has stated that it is waiting for this court to decide it. This court fully understands the Eleventh Amendment issue and its application to the facts here. As a result, we have an obligation to render a decision.
Furthermore, the parties deserve better than to have a preliminary issue remanded by this court. We ought not to lose sight of the fact that this is an interlocutory appeal. See
Turning to the Eleventh Amendment question, it is clear that the Governor is not a proper party to this action.
A.
Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), permits citizens to sue state officials to enjoin the enforcement of unconstitutional laws. This rule is an exception to the general constitutional command that federal courts do not have jurisdiction over suits by citizens against the states. The Young exception is limited, however, by its requirement that named state officials bear a special relation to the challenged statute. Young recognized that the fundamental purpose of the Eleventh Amendment would be thwarted if parties could name any state official in an action. The Court stated that “it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the State, and thereby attempting to make the State a party.” Young, 209 U.S. at 157.
Young’s “special relation” requirement prevents parties from circumventing the dictates of the Eleventh Amendment. Young demands precision in naming parties because otherwise:
the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general, based upon the theory that the former, as the executive of the State, was, in a general sense, charged with the execution of all its laws, and the latter, as attorney general, might represent the State in litigation involving the enforcement of its statutes.
Young, 209 U.S. at 157 (quoting Fitts v. McGhee, 172 U.S. 516, 530, 19 S.Ct. 269, 43 L.Ed. 535 (1899)). The Supreme Court recognized that such a strategy might be a convenient way to obtain a speedy determination of constitutional questions. However, that strategy “cannot be applied to the States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons.” Id. at 157 (quoting Fitts, 172 U.S. at 530).
Young went on to note that general grants of authority may sometimes create a “special relation” between a state official and the challenged statute. The Court held: “The fact that the state officer by virtue of his office has some connection with the enforcement of the act is the important and material fact, and whether it arises out of the general law, or is specially created by the act itself, is not material so long as it exists.” Young, 209 U.S. at 157. Young failed to explain, however, what type of “general laws” create a sufficient connection. It is upon this question that the current appeal now turns.
B.
The question of whether the Governor of Virginia has any “special relation” to
Loitering on Bridges. Pedestrians shall not loiter on any bridge on which the
Commonwealth Transportation Commissioner has posted signs prohibiting such action. Any person violating the provisions of this section shall be guilty of a traffic infraction.
The text makes no mention of the Governor. Rather, the only state official mentioned by
The plaintiffs argue, however, that Governor Gilmore is sufficiently connected to
I do not think that the Governor’s general authority to enforce the laws of the Commonwealth is sufficient to satisfy Young’s special relation requirement. “General authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.” Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996) (citing 1st Westco Corp. v. School Dist. of Philadelphia, 6 F.3d 108, 113 (3d Cir. 1993)); see also Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir. 1998) (“[A] generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit”) (citing Los Angeles County Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)); Mendez v. Heller, 530 F.2d 457, 460 (2d Cir. 1976) (attorney general’s duties to support the constitutionality of challenged state statutes and to defend actions in which the state is interested do not make him a proper defendant); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979) (general duty of Governor “to enforce state laws does not make him a proper defendant in every action attacking the constitutionality of a state statute”). To hold otherwise would extend Young beyond what the Supreme Court has intended and held. See Children’s Healthcare, 92 F.3d at 1416; see also Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).
Rather, it is only appropriate to allow a state official to be named in a suit based on his general duties where there is a “real, not ephemeral, likelihood or realistic potential that the connection will be employed against the plaintiff’s interests.” 1st Westco, 6 F.3d at 114 (internal citation omitted); see also Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992) (per curiam) (holding that state attorney general was not proper party where there was no real likelihood that he would enforce his supervisory powers against the plaintiffs’ interest); Sherman v. Community Consol. School Dist. 21, 980 F.2d 437, 440-41 (7th Cir. 1992) (holding that state attorney general was not proper party where he never threatened the plaintiffs with prosecution and apparently had no authority to do so). This requirement is consistent with Young, where the Minnesota Attorney General had already commenced proceedings to enforce the challenged statute. Young, 209 U.S. at 160.
Here, the Governor bears no real connection to the enforcement of
Removing the Governor as defendant will not have the effect of pushing the plaintiffs out of court. The plaintiffs can still seek relief by naming as defendant the Commonwealth’s Transportation Commissioner. As the text of
C.
If the Governor is forced to remain a party to this suit, then the Governor also may be named in lawsuits challenging the validity of any state law. Such an approach would be problematic in several ways. First, such a practice would be inconsistent with the approach governing suits which challenge federal laws. Such suits are not routinely brought against the President simply by virtue of his constitutional duty to enforce the laws. Rather, other federal officials who bear a discernible relationship to the challenged statute are typically named. See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (Attorney General named as a defendant in a suit challenging the constitutionality of federal statute criminalizing the knowing transmission of indecent materials to minors); National Endowment for the Arts v. Finley, 524 U.S. 569, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (Chairperson of the NEA named as a defendant in a suit challenging the constitutionality of federal statute requiring NEA to ensure that grants are awarded based upon artistic excellence and artistic merit); Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) (Commissioner of Social Security named as a defendant in a suit challenging the constitutionality of federal statute requiring coal company to pay premiums for beneficiaries assigned by Commissioner). Moreover, when cases challenge the validity of federal regulations, the defendant is generally the Secretary of the department that issued them. See, e.g., Regions Hosp. v. Shalala, 522 U.S. 448, 118 S.Ct. 909, 139 L.Ed.2d 895 (1998); Public Lands Council v. Babbitt, 529 U.S. 728, 120 S.Ct. 1815, 146 L.Ed.2d 753 (2000). The President’s general duty to ensure that the laws of the land are faithfully executed does not mean that the President is a defendant in every suit testing the validity of a federal enactment.
Next, permitting a party to name the Governor in any suit challenging the validity of state law would allow the rule in Ex parte Young to swallow the protections offered by the Eleventh Amendment. Plaintiffs could routinely name the Governor as a defendant in an effort to obtain a judgment binding on the State. Plaintiff’s approach would also regularly subject the Governor to the risk of contempt. The President of the United States may not be enjoined in the performance of his official duties. See State of Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501, 18 L.Ed. 437 (1866). This rule is founded partly upon an unwillingness to subject the head
At the very least, this court should leave it to the states to choose which officials they would subject to binding federal decrees. The federal courts should not lightly interfere with state decisions on the very organization of state governments. It is difficult to imagine a more fundamental intrusion on state sovereignty. The Supreme Court drew this line as far back as 1911 in Coyle v. Smith, 221 U.S. 559, 565, 31 S.Ct. 688, 55 L.Ed. 853 (1911), where it forbade the federal government from ordering the State of Oklahoma to locate its capital in a certain city. See also Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (holding that the states’ right to structure their internal governmental operations and to create restrictions on the exercise of government authority is “a decision of the most fundamental sort for a sovereign entity”). Plaintiffs ask us to interpret Virginia law to bestow upon the Governor an obligation to enforce a mere traffic statute. However, Virginia’s officials have designed state operations so that the Governor is not charged with the enforcement of
III.
The purpose of the “special relation” requirement is not to erect barriers for parties seeking to enforce their constitutional rights under Ex parte Young. Rather, the requirement merely seeks to enforce a modicum of precision in determining which state officials are named. In this case, officials other than the Governor bear the duty of enforcing
I would dismiss the Governor as a defendant in this case.
UNITED STATES of America, Plaintiff-Appellee, v. Cornelius Douglas STUDIFIN, Defendant-Appellant.
No. 00-4012.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 4, 2000. Decided Feb. 16, 2001.