*3 POLITZ, DENNIS, Before SMITH Judges. Circuit DENNIS, Judge: Circuit (1) in this case The issues are Stephen carrier is Phillips, Blake Kin- whether a telecommunications Carter G. Lawson, Amendment from Sidley L. barred the Eleventh (argued), naird David & DC, district court Austin, bringing Washington, David Laurence responsibility commission the public acting upon service that mat- 252(e)(6) public ter. a case in which of the Telecommu- Section accepts responsibil- service commission nications Act of U.S.C. et (1996 Act), ity Act review offered makes determination un- seq. Act, any party aggrieved der the by such of whether the commission’s arbitration may bring determination an to an action respect determination with intercon- appropriate federal district court to deter- agreement requirements nection meets the mine whether the meets the applicable §of 151 of the Act and FCC requirements §§of 251 and 252. The 1996 regulations; and whether the carrier provides that no state court shall have may bring an action under the Ex jurisdiction to review the action a state Young doctrine federal court *4 in commission approving or an rejecting public of ser- individual members a state agreement under Act. the vice in capacities commission their official prospective for from their arbitration relief the Louisiana Public When Service require- determination contrary to the (LPSC) accepted Commission Congress’s imple- § ments of 251 of the Act and its to offer function as an arbitrator under the regulations.1 court menting The district approving Act and determining the in the plaintiff held that telecommunications agreement present terconnection in the by carriers were Eleventh Amend- barred case, regulation the of local telecommuni immunity bringing ment such actions competition cations and related intercon and dismissed suits. We and their reverse nection agreements longer was no a per proceedings remand the case for further in missible activity or lawful within the accordance with the 1996 Act and Ex the powers. states’ own When bes parte Young doctrine. gift gratuity upon tows a or a state of pre-empted In the 1996 Act Congress benefit which cannot be by obtained the regulation power, the of Congress may states the local tele- state’s own to attach competition regard gratuity communications with to a voluntary the the condition of all matters addressed the Act. The waiver the state itsof Eleventh Amend public immunity. offers state service commissions the ment the Consequently, LPSC however, option, approving or rejecting, voluntarily immunity of waived when Act, pursuant §§ to of any accepted Congressional 251 and 252 offer aof agreement clearly interconnection between carri- gratuity that was conditioned upon adopted by negotiation or amenability ers arbitration. to LPSC’s federal suits If public private the state service de- parties commission under the Act and arbitrat in any clines offer proceeding dispute pres under ed the interconnection Act, required the FCC is case.2 assume ent 18, (1933); 1. AT&T also contends that the Eleventh L.Ed. 145 applicable Virginia, Amendment is not because the Cohens v. Wheat. present 407-408, judicial case involves mere review of L.Ed. See also Puerto equity the record and is not a in law or Aqueduct Authority Rico and Sewer Metcalf Inc., Service Louisiana Public Commis- Eddy, & 684, 113 S.Ct. ("LPSC”) purposes sion of the Eleventh (1993) ("The very ob- accept argu- do Amendment. We this ject purpose and of the 11th Amendment were present In the ment. case AT&TCommunica- prevent indignity subjecting a State defendant, process tions named the LPSC as a process to the coercive tribunals it, required was served on and it suffer was private parties.”) (citing re instance of In indignity being appear compelled Ayers, 123 U.S. before a federal court. added). (1887)) (emphasis L.Ed. 216 equity” A "suit in law or exists sovereign purposes opinion, hope- state for of the Eleventh for convenience plaintiff fully clarity, parties has when served com- some we refer to all of the process upon pulsory non-parties adopted posi- that state as have defendant which Fiske, in a appeal plaintiff-appellant matter. See Missouri v. tion on Foremost entry. de- facilitate market allegedly commissioners The LPSC LEC’s obli- among these duties an interconnection approved termined (1994 251(c) § 47 U.S.C. gation under requirements violates the agreement II) ed., Supp. with to share its network aggrieved carriers a re- competitors. provision, Under this prospec- seek determination bound to an can obtain access questing carrier against the commis- relief injunctive tive ways: network three It incumbent’s termi- capacities to official their sioners telephone purchase can local services at agreement operation further nate users; wholesale rates for resale to end therefore, them; the doctrine it can of the incumbent’s lease elements pro- the suit Young permits Ex basis”; and it network “on an unbundled against the commissioners. ceed can its own facilities interconnect an en- the incumbent’s network. When Act of 1996 I. Telecommunications trant of these through seeks access Preemption of State A. Background; routes, negotiate incumbent can Jurisdiction Regulatory regard without duties 251(b) Board, it would v. Iowa otherwise Corp. In AT&T Utilities (c). 252(a)(1). private But if See *5 fails, (1999), peti- can negotiation either Supreme the Court regulates commission that the and con- tion the state succinctly context described phone open to arbitrate is- local service Act: tent sues, subject arbitration is to which 1990s, phone local service Until the regulations promul- § 251 and the FCC monopoly. be a natural thought was to gated thereunder. granted an exclusive typically States (footnotes omitted). area to franchise in each local service (LEC), carrier which exchange local Report The its and FCC issued First owned, among things, other local competition pro- implementing local Order (wires telephones loops connecting to visions under the 1996 Act six months switches), (equipment di- the switches In re passage. Implementation after destinations), to their and recting calls Competition Provisions in the Local of (wires transport carrying trunks Act Telecommunications of switches) that constitute a calls between 15499, 1996 WL 452885 FCCR Technological network. exchange local Order). (First Report chal- & Numerous however, advances, competi- made to incum- lenges rulemaking the FCC’s multiple providers of local among tion utility bent LECs and state commissions possible, Congress re- service seem in the Eighth were consolidated Circuit. longstanding regime of cently ended Appeals The Court of vacated FCC’s monopolies. state-sanctioned aspects pricing rules and several other Order, fundamentally Report reaching restruc- the First as Act] [The jurisdiction. telephone beyond the Commission’s tures local markets. States FCC, impede Iowa Utilities Board may longer no enforce laws (8th Cir.1997). It competition, LECs are 805-806 held and incumbent subject general authority con- rulemaking a host of duties intended to that of Louisiana collectively as "AT&T.” and American Communications Communications jointly as "AT&TCommunications.” plaintiff-appellant This American includes Louisiana; defendant-ap- Communications of American Com- Communications and BellSouth; pellant the United States appeal also munication Services Louisiana Federal Commission Communications court’s determination that from the district inlervenors; (“FCC”), indispensable party Curiae and Amicus the LPSC this is Sprint litigation. district Company. In certain Our reversal court's Communications indispensable party judgment issue. moots instances we refer to AT&TCommunications away the Communica- nications upon competition the FCC ferred Act to inter- of 1934 extended regard tions States. With to matters ad- matters, the FCC therefore and that unquestion- dressed the 1996 it authoriza- specific congressional lacked ably has. question The is whether the provisions implementing it needed for tion participation state commissions’ in the addressing the 1996 Act intrastate com- administration of new regime federal munications. Id. is guided by federal-agency to be regula- tions. If there “presumption” Supreme The Iowa Utilities applicable question, point, holding on to this reversed the main should jurisdiction imple- general the FCC has arise from the fact that a pro- federal local-competition pro- ment 1996 Act’s gram by 50 independent administered visions. The Court concluded since agencies surpassing strange. that the expressly directed appeals by both Justice THOMAS beAct inserted into the Communications might Justice BREYER to what 1934 Act already and since the loosely be “States’ rights” called are “may prescribe provides that the FCC doubt, peculiar, most there since is no regulations rules and be nec- view, even under their federal essary public carry interest out courts believe state commission is Act,” provisions of 47 U.S.C. regulating in accordance with federal 201(b), rulemaking authority the FCC’s policy they may bring it to heel. This §§ implementation 251 and extends is, bottom, not about debate whether 201(b) grant think “We that the the States will be allowed to do their says: means what it The FCC has rule- own thing, but about whether it will be 'carry making authority ‘provi- out the the FCC or the courts that draw *6 Act,’ §§ of this which include 251 and sions they the lines to must which hew. To added the Telecommunications Act sure, be the lines can be FCC’s even of 1996.” Id. at Fur- more restrictive than those drawn thermore, the held that section Court the spark pas- courts-but it is hard to a 152(b) of the Act of Communications rights” sionate “States’ debate over that provides “nothing chap- that in this which detail. apply shall be or to give ter construed to (emphasis n. jurisdiction respect ... Id. [FCC] the with to added). Act, 152(b) § intrastate communications service ...” “After the 1996 2(b) Act, change does not conclusion because of which this the 1934 excluded [§ clearly applies- the 1996 Act to intrastate from intrastate communications the FCC’s matters. Id. at 119 S.Ct. 721. jurisdiction] may practical less effect. Congress, by extending But that is because Significantly purposes deciding for of compe- the Communications Act into local the Eleventh Amendment issues in the tition, significant a has removed area case, present the Iowa Utili- the control." Id. at States’ exclusive ties, in answer to of the dis- arguments from added). (emphasis n. 119 S.Ct. 721 presumption on the relying senters also Texas Pub. Util. Counsel See against preemption regulatory of state Office of (5th FCC, 423-24 F.3d Cir. responded the power, 1996 Act — 1999), -, granted, cert clearly Congress’s intent manifested to supplant (2000)(recog- 147 L.Ed.2d police power traditional state regulation nizing holding Iowa local telecommunications Utilities’ competition: regulation of telecommunica- intrastate competition preempted

But tions question the this case is not refusing §§ 251 and 252 to extend that whether the Federal Government has Act). regulation holding § taken the local telecommu- 254 of the Act; Op- requirements the meets the of section 251 of Under B. Procedures 252(e)(6). Commissions; § this title and this section.” State FCC Role Of tional Federal Judicial Review Preemption; History Facts and II. Procedural for receiving request intercon- Upon attempt 1997AT&T Communications services, nection, pur- or network elements an negotiate agree ed to interconnection an incum- suant to Section 251 §§ 251 the ment under and 252 of may and enter into negotiate bent LEC BellSouth, exchange with the local carrier agreement requesting with binding parties When the Louisiana. failed must be submitted to carrier which reach an on several elements of 252(a)(1). During § ne- state commission. agreement, the interconnection AT&T any party may ask the state gotiations, petitioned Communications LPSC commission to mediate differences. 252(b). §to pursuant arbitrate the issues 252(a)(2). Any § negotiation accepted responsibility as arbi LPSC a state commission to arbi- may petition 252(e)(4) § trator under resolved during any open period trate issues substantially in issues BellSouth’s favor. day the 135th to the 160th after brought Communications action 252(b)(1). § request negotiation. initial BellSouth, LPSC, and the indi resolving open is- The state commission vidual of the LPSC in the commissioners must ensure its by arbitration sues pursuant Middle District Louisiana imposition conditions resolution 252(e)(6), § contending that the ar LPSC § requirements of 251 and FCC meets the bitration determination does not meet 252(c). § commis- regulations. §§ requirements of 251 and and the only reject agreement adopted may sion FCC an regulations. 'The defendants if it discriminates by negotiation court, swered on the The district merits. carrier; not non-party consistent however, requested parties that the brief convenience, interest, neces- public suits against whether the LPSC requirements sity; or does meet its were officers barred Eleventh 252(d) regulations. §§ 251 and and FCC After briefing, Amendment. the district 252(e)(2). Subject the state all court dismissed actions as to defen establish or commission also enforce dants, holding LPSC state law in re- requirements other *7 Amendment, was barred Eleventh 252(e)(3). § agreement. an

view of No against and suit that individual com jurisdiction state court shall have to review could not missioners be maintained under ap- the action of the state commission parte Young. Ex AT&T Communications proving rejecting agreement or an under States, Inc. v. the South Central Bell Id. If the state commission this section. Telecommunications, Inc., South 43 to carry responsibility to act or out its fails (M.D.La.1999). F.Supp.2d 593 AT&T filed 252(e), shall an under the FCC issue appeal. timely notices of order state preempting the commission’s jurisdiction matter, or proceeding III. Discussion responsibility assume the offered to the matter, respect presents principal arguments commission with two perform the interpre- functions had been reversal of district court’s application tation offered state commission. of the Eleventh 252(e)(5). (1) “In any Young: case which a State Amendment and Ex parte commission makes a waived its Amendment im- determination LPSC Eleventh section, any party aggrieved by munity by accepting per- voluntarily bring determination in an may forming assigned action its role the federal appropriate regulation competition court of local under the Federal district to deter- suit, Act; any mine whether 1996 statement AT&T’s

643 event, 62, 80, may proceed against 631, the individual 528 U.S. 120 S.Ct. 145 L.Ed.2d (2000); commissioners under the doctrine of Ex College 522 Savings, 527 U.S. at 670, parte Young. 119 S.Ct. 2219 (citing Fitzpatrick v. Bitzer, 445, 2666, 427 U.S. 96 S.Ct. 49 Whether a state is entitled to Elev (1976)). L.Ed.2d 614 A waive immunity question enth Amendment is a its sovereign immunity by consenting to law that this court reviews de novo. Hud College 670, suit. Savings, 527 U.S. 119 Orleans, 677, City son v. New 174 F.3d Barnard, 2219 (citing S.Ct. Clark v. (5th Cir.1999); United States ex rel. 436, 447-448, 878, U.S. S.Ct. 27 L.Ed. Foulds v. University, Texas Tech (1883)). Additionally, Supreme (5th 279, Cir.1999), denied, cert. — Court has for nearly century allowed U.S. -, 2194, 120 S.Ct. 147 L.Ed.2d 231 against suits prospective officials for (2000). injunctive relief to end a continuing viola- tion of federal law under the doctrine of Sovereign A. State Immunity Generally Ex parte Young, 123, 209 U.S.

The Eleventh Amendment to the (1908). 441, 52 L.Ed. 714 Constitution of the provides: United States Florida, In Seminole Tribe v. 517 U.S. judicial power “The of the United States 134 L.Ed.2d 252 shall not be construed to extend to (1996), Supreme Court held that Con- equity law or prose commenced or gress abrogate cannot Eleventh Amend- cuted one of the United States ment immunity through the exercise of its State, Citizens of another or by Citizens or powers. Article I “Even when the Consti- Subjects any Foreign Further, State.” tution in Congress complete vests lawmak- long Court, construed Supreme ing authority area, over a particular power does not extend to Eleventh Amendment prevents congres- suits brought against a state or agen sional authorization of by private par- suits See, e.g., cies its own citizens. Puerto ties unconsenting States.” Id. at Rico Aqueduct & Sewer Auth. v. & Metcalf 1114; College S.Ct. see Savings, Eddy, S.Ct. 119 S.Ct. 2219. Conse- (1993); Jordan, Edelman v. quently, AT&T correctly does not contend abrogated the states’ Elev- (1974); Louisiana, Hans v. 10 enth Amendment immunity by enactment 33 L.Ed. 842 The Elev under its Article I enth Amendment juris also bars federal Instead, to regulate interstate commerce. diction over suits state officials this case turns on waiver and Ex acting in capacities their official when the Young. See, state is the real in interest. e.g., Pennhurst State School & Hospital v. B. Waiver

Halderman, 89, 900, 465 U.S. 104 S.Ct. 79 Supreme The Court has “long rec L.Ed.2d 67 ognized that a State’s sovereign immunity Eleventh immunity Amendment personal is ‘a privilege may which it waive ” from suit is not College Savings absolute. at pleasure.’ College Savings, [its] 527 Bank v. Prepaid 675, Florida Postsecondary Clark, U.S. at 119 (quoting S.Ct. 2219 Board, 666, 878). Expense 447, Education 527 U.S. 108 at 2 U.S. S.Ct. “The deci 670, 2219, 119 S.Ct. 144 however, L.Ed.2d 605 sion immunity, to waive that ‘is (1999). Congress may private authorize a altogether voluntary part on the party to bring a federal court against suit sovereignty.’” (quoting Id. v. Ar Beers (20 unconsenting kansas, How.) states in the exercise of its 61 U.S. 15 (1857)). power to enforce the Fourteenth Amend Generally, L.Ed. 991 the Court ment. Kimel v. Regents, Florida Bd. will find a waiver either if the state volun-

644 amenability pro- v. in jurisdiction, invokes Gunter suit federal court as tarily Co., Act; 273, by the by operating Line R.R. vided thereafter Coast Atlantic (1906), commerce, in a railroad Ala- L.Ed. 477 or if interstate 26 S.Ct. 50 accepted bama must be taken to have makes “clear declaration” that the state condition and thus to have consented to to submit itself to the it intends court’s Parden, at suit.” U.S. 84 S.Ct. Savings, 527 U.S. jurisdiction. College at 675-76, (quoting 119 S.Ct. 2219 Great Read, Ins. Co.

Northern Life Supreme College Savings, The Court in (1944)). L.Ed. 1121 however, expz*essly overruled Parden experiment ill its “constructive-waiver [as] College Savings, the Court held that conceived.” U.S. at immunity of the Eleventh Amendment 2219. The Court that “there is stated (“the board expense education state little reason to actual assume consent Board”), Florida, arman the State of upon presence in a based State’s mere voluntarily waived had not been subject to congressional regulation!;] field alleged advertising inter- Board’s false ... ... the most can be said is that 680-81, commerce. put the State has been on notice petitioner, The a New Jersey S.Ct. subject intends it to suits bank, brought had the Board brought by ... [and][t]hat individuals^] alleging competition unfair under the Lan- very far from concluding that State alleged ham Act based on the Board’s false ‘altogether voluntary’ made an decision to advertising savings plans of its tuition immunity.” waive its Id. reports. its brochures and annual 529). Beers, (quoting statutes, pertinent federal Trademark required as More is a reasonable basis for Remedy Act and the Clarification Lanham state, inferring that the in a engaging expressly subjected the states suits federally-regulated activity, voluntarily and mislead- brought under them for false being consented to sued individuals in ing advertising. federal court based on the federal law. Jersey upon The New Par bank relied id. See den v. Terminal Railway Alabama Department, Docks College Savings State Consequently, the (1964), in which voluntarily Court concluded that a state Supreme recognized Court had not waives its Eleventh immunity altogether by engaging subject volitional “constructive-waiver” activity congres (1) theory, permitted employees when regulation sional the state has operated by put railroad owned Alabama notice clearly unambigu been on bring an action FELA ously by under the the federal statute that the state’s employer. Although the State as their particular conduct or transaction will sub states, FELA did ject not refer to the it to federal brought by court suits (2) that, individuals; Parden Court held under the facts of refrain from case, particular the Act engaging authorized FELA actions without action “common car excluding Alabama as a itself from activities otherwise rier railroad engaging lawfully ... commerce within its powers; States,” ... between 45 U.S.C. to engage several state elects in the conduct or (1940 ed.). Savings, College legal See transaction after such notice has *9 666-67, at U.S. 2219. Even given. S.Ct. been See 527 at U.S. though Alabama expressly law requirements disavowed S.Ct. 2219. These waiver waiver, any majority clearly the Parden are held most illustrated the Court’s “[b]y enacting ... Con [FELA] discussion fundamental differences gress operate College prior conditioned the right Savings a betweén and two railroad in upon involving constitutionally permissible commerce interstate cases also, gratuities conditions attached to offered to Congress has no obligation to use by Congress. the states Spending Clause its to disburse States; funds to the such funds are Petty In v. Bridge Tennessee-Missouri case, gifts. present however, In the Commission, 275, 785, 359 U.S. 79 S.Ct. what Congress threatens the State (1959), L.Ed.2d 804 the Court had held agree refuses to to its condition is not “that a bistate commission which had been gift denial of a gratuity, but a pursuant created compact to an interstate exclusion of sanction: the State from (and partook which we assumed of state permissible otherwise activity. Justice immunity) sovereign had consented to suit BREYER’s dissent acknowledges in- provision reason of a suability attached two, tuitive difference between the to the congressional approval of the com- disappears asserts that it when gift pact.” 686, College Savings, 527 U.S. that is threatened to be withheld is sub- 119 S.Ct. 2219. And in such cases as so, stantial enough. Perhaps which is Dole, South Dakota v. why, in cases involving conditions at- (1987), tached to federal funding, we have ac- “that Congress may, Court had held in the knowledged that “the financial induce- spending power, exercise of its condition ment offered Congress might be so grant upon of funds to the States their pass point coercive as to at which taking certain actions that Congress could ” ‘pressure turns into compulsion.’ take, require them to accep- and that Dole, supra, at 107 S.Ct. quot- tance of the funds entails an ing from Chas C. Steward Machine Co. the action.” College Savings, 527 Davis, 686,119 S.Ct. 2219. event, 81 L.Ed. In we The fundamental difference between the think where constitutionally guaran- College Savings and the Petty case protection teed of the States’ sovereign cases,

Dole as the cogently pointed involved, immunity is point of coer- out, lies in the distinction between the passed-and cion is automatically the vol- types of Congressional acts involved. In destroyed-when untariness waiver cases, the statutes involved the latter what is attached to the refusal waive Congress had obtained the states’ volun- is the exclusion of the State from other- tary consent to conditions attached to gra- activity. wise lawful tuities-a voluntary waiver of im- sovereign 686-87, 119 527 U.S. at munity compact for an Petty, interstate increase in drinking age reasons, For agree these we with the highway funds in Dole. Neither Tenth and Seventh Circuits’ conclusion gratuity was attainable the state that, College Savings, Congress after through lawful activities within the state’s still obtain a voluntary non-verbal waiver contrast, powers. own College Savings of a state’s Eleventh Amendment immuni- involved federal statutes forced a ty, if the can waiver be inferred from the “altogether state’s not voluntary” waiver state’s conduct in accepting gratuity af- by threat of exclusion from otherwise law- ter being given unambiguous clear and ful activity power. within its The Court statutory notice that it was conditioned on explained: waiver of immunity. See MCI Telecom-

These fundamentally Co., cases seem to us Corp. v. munications Illinois Bell Tel. (7th Cir.2000) (In different from present one. Under F.3d College Clause, Compact Const., I, Art. Savings, cl. States cannot form an inter- simply “the Court held that states cannot state compact without obtaining first ‘constructively1 waive immunity by their express consent Congress; grant- being by Congress forced to choose be- ing of such consent is a gratuity. So tween preserving sovereign immunity their

646 Act, passage regulation lawful activi- of the 1996 an ‘otherwise After engaging

and competition among providers of local ”); Corp. v. Telecommunications ty.’ MCI phone prov is no within the longer service Utah, Pub. Serv. Comm’n of authority. ince of states’ inherent Con (“A (10th Cir.2000) constructive waiver 937 pursuant gress, by enacting the 1996 Act Congress voluntary only where threat- power, validly preempted to its commerce ‘gift with the denial a or ens a state local regulate states’ telecom refuses to if the state consent gratuity’ Utilities, competition. munications Iowa Congress in federal court. Where 6,n. 525 378 119 142 U.S. S.Ct. a if it a with ‘sanction’ threatens state (“With regard L.Ed.2d 835 suit, then the waiver to consent to refuses by addressed 1996 [the matters (citation omit- longer freely given.”) no unquestionably Federal has Government] ted). immu- voluntary A state’s waiver of telecommuni regulation [taken of local acceptance inferred from the state’s nity, competition away from cations it free Congressional gratuity of a was States].”); see also v. Mississippi, FERC any sovereign decline without loss of 742, 764, U.S. distinguished was the Su- prerogative, (1982) (“[T]he pow commerce Savings in College from “the preme Court permits er pre-empt ‘forced waiver’ exacted Con- type of entirely private in the regulation States Parden, whereby under the state is gress utilities.”). Accordingly, Congress estab of waiving threatened with the sanction system lished a federal headed regulated it in a immunity engages en- regulate FCC to local telecommunications abrogation an terprise, really [as] competition. permissibly The Act offers immunity prohibited Seminole state’s agencies state a limited regulatory mis (cit- Bell, 222 F.3d at Tribe.” Illinois sion, may they accept which or decline: to ing College Savings, apply and regulations federal law as arbi “noting 2219 as that forced waiver ancillary regulators trators and within the abrogation are ‘the same side of the system Congress. federal on behalf of ”); (citing also Chavez v. Arte same coin’ Virginia § 252. U.S.C. Hodel v. Cf. (5th Press, F.3d Publico n. 5 Assn., Mining & Reclamation Surface Cir.2000) (“CollegeSavings expressly over- implied ruled Parden and its waiver theo- (1981) (“Thus, Congress could constitution ry. theory longer That is no available to ally a prohibiting any have enacted statute support abrogation an I of Elev- Article regulation mining. surface coal Immunity.”)). enth Amendment why Mining We fail to see the Surface Act constitutionally suspect

should become join also the Seventh and simply We chose to because allow role.”). concluding regulatory Tenth the 1996 States a Circuits potentiate the a Act does not exaction of 252(e)(6) the Act plainly Section waiver” of Eleventh “forced “any by” party aggrieved states that See immunity the states. Illinois determination, state commission’s which Bell, 342-44; 222 F.3d at Pub. Serv. individuals, necessarily private will include Comm’n, 216 F.3d at 939 n. 6. The may appropriate an in an bring action voluntary a basis for a establishes 252(e)(4) court, pro- district gratuity induced waiver states juris- vides that no state court shall accept reject, or require does not diction to review the action of accepting the states as condition of approving rejecting commission gratuity activity lawful abandon agree under section. We currently powers. within their Illinois “Congress Circuit that the Seventh Bell, 343-344; that, expressed unmistakably F.3d at Pub. Serv. has Comm’n, Act], participate [the F.3d at 938. states could

647 -, 54, regulatory delegated federal function 148 L.Ed.2d 22 Therefore, government them federal on the even Plaintiffs’ against participation their re- condition be LPSC were barred the Eleventh Amendment, in viewed federal court” and that the “Act prospective the suit for in- requirement Congress junctive satisfies the proceed relief could clearly participation by state that the state individual commissioners in their official regulatory capacities. in the scheme entails a waiver in immunity from suit federal court.” doctrine, Under the Ex parte Young a Bell, 341; 222

Illinois F.3d at see also private party may sue individual state offi Comm’n, Pub. at Serv. 216 F.3d cers federal court prospective to obtain relief from an accepted ongoing violation of Congress’s When LPSC 123, law. See Ex parte Young, offer under the 1996 Act to 209 delegate feder- U.S. 28 441, (1908); authority al to the S.Ct. 52 L.Ed. 714 to act Idaho v. commission Tribe, 261, case, 294, Coeur d’Alene 521 present arbitrator U.S. 117 (O’Con S.Ct. regulation of interconnection agreements nor, J., concurring); covered the 1996 Act id. at longer was no 117 (Souter, permissible or S.Ct. 2028 activity dissenting); lawful within the J. Ysleta Dole, of the Del Sur Pueblo v. Petty Laney, states. As 199 F.3d — (5th Cir.2000), denied, 289 obligation was under no cert. offer U.S. -, 120 something they states could not obtain 146 L.Ed.2d on 957 (2000); own, viz., Earles v. State participation their Bd. of Certified Louisiana, Public regulation Act’s federal Accountants local telecom- (5th Cir.1998). Also, F.3d competition. pur munications inas those cases, pose of the doctrine is to accept reject state was free to or enable federal courts to participation rights “vindicate federal gratuity as a without hold abstaining responsible state officials activity supreme lawful within to ‘the ” power. authority of the College Savings made clear United States.’ Penn hurst, at (quot when U.S. 104 S.Ct. 900 gift gra- bestows ing parte Young, Ex tuity, may attach the condition of a 441). case, present waiver of Eleventh In the immunity AT&T acceptance. state’s Communications filed suit U.S. 686- indi 87, 119 vidual LPSC commissioners in Consequently, S.Ct. 2219. their offi cial, voluntarily personal, capacities. rather than LPSC waived its state immuni- AT&T ty accepted alleges when it Communications Congressional of- fer of a arbitral gratuity and arbitrated determination the interconnec the inter- dispute agreement by connection tion this case. the commissioners vio Act,

lates the 1996 a federal law. As the Application -parte C. of Ex Young interconnection agreement determination present binds and future relations between Sixth, agree Seventh, We with the BellSouth, Communications and Tenth Circuits that a suit such as this alleged violation of on-going. federal law is one, brought by AT&T Communications Finally, an order preventing the commis injunctive relief the individual enforcing provisions sioners from members of the LPSC because a determi require which fail to meet the nation made the commissioners is alleg ments of the purely pro will be edly contrary to the 1996 is a spective. “straight parte Young forward” Ex case. Bell, 345; Illinois F.3d Pub. Serv. The LPSC commissioners counter that Comm’n, 939; 216 F.3d at Michigan present Bell exception case fits within the Co., Tel. Co. v. Climax Tel. to Ex Young recognized by the Su- — (6th Cir.2000), denied, cert. preme Court in Seminole Tribe Florida parte Young strong state officer under Ex Florida, *12 in no ly Congress The Court Semi- indicates that had wish

L.Ed.2d 252 individu- that suits held latter under Seminole [IGRA].” nole Tribe create the capacities their official in Tribe, 75-76, al state officers 1114. at 116 S.Ct. are of federal on-going violations law for Act, however, does not severe The 1996 has enacted a Congress available when not aggrieved limit available to an ly relief intended remedial scheme comprehensive 252(e)(6) party does the IGRA. Section as remedy for violations sole to be the that, if simply provides Act of the 1996 at 116 S.Ct. law. Id. federal makes a determination state commission prescribed scheme the remedial Because section, any aggrieved that under Act signifi- the 1996 is under by Congress in federal court deter bring suit congressional from the cantly different meets the mine the determination whether in by Seminole Court plan considered 1996 Act does requirements. Act’s Tribe, an intent to not manifest and does courts to jurisdiction limit of federal suits, Young disagree we parte exclude Ex pro equity in law or entertain suits that contention with the commissioners’ on-going violations of spective relief precludes application of Tribe Seminole in their acting federal law state officials Young exception this case. parte the Ex cannot said capacities. official It thus be Tribe, Supreme Court _ Seminole in the 1996 Act to that intended Regulatory Gaming that the Indian noted reme significantly limit (“IGRA”) judi- provided the sole party autho aggrieved dies available to an upon under the act remedy cial available feder bring appropriate rized to between the State and negotiations failed Bell, 222 F.3d at al court.3 See Illinois requiring a court order plaintiffs was (“The of the court sub If parties. Id. mediation between 252(e)(6) in stark contrast section stands failed, the result under IGRA’s mediation powers impose with the court’s what the preemption elaborate remedial scheme was a ‘modest set of Supreme Court called any proposed agreement between under the at issue sanctions’ statute issued the Secre- parties by regulations Tribe, Tñbe.”)(citing Seminole Seminole 74-75, at tary of the Interior. Id. 1114). 75, 116 S.Ct. thus noted that the 1114. The Court court under powers of the federal district Appellees argue Supreme that the also limited id. at “significantly,” IGRA were in Idaho v. d’Alene Court’s decision Coeur 1114; comparison, Tribe, brought that “an action recognized (1997), precludes applicability L.Ed.2d 438 parte official under Ex against a state Young present to the case. parte of Ex expose that official to the full Young would However, rejected circuit has the idea this court, of a federal includ- powers remedial d’Alene affects the traditional Coeur contempt sanctions.” Id. ing, presumably, application parte Young: of Ex stated The Court among the consensus We concur with [under IGRA] that “the fact principal although courts that other liability impose upon the State chose opinion suggests Coeur d’Alene than significantly more limited rule-based) (rather ap- upon case-by-case than liability imposed would be respect suits to the Act and its commissioners contend therefore such with 3. The LPSC 252(e)(6) precluded Tribe. Howev- are er, under Seminole that because review under section subject defines the courts' subject to a determination of this limitation limited in matter jurisdiction brought to de- matter in all suits en- [as "whether the or statement provisions of the 1996 Act rather meets the force the commission] termined the state 251,” There- requirements than available in such suit. the remedial the relief of section fore, prohibit application does not limit- the Act scheme created the 1996 Act is more suits, parte Young Young the Ex doctrine. parte ed than traditional Ex application parte of Ex al commissioners. The case is proach REMAND- d’Alene, Young, proceedings see ED for further consistent Coeur 2038-2040, opinion. 117 S.Ct. at 138 this J.), (opinion Kennedy, part opinion did not muster a SMITH, JERRY E. Circuit Judge, majority, majority and a of the Court dissenting: apply continue the rule of Ex would I respectfully dissent would affirm Young traditionally been has *13 the dismissal. The district court correctly 296, understood, 117 see id. at S.Ct. at opined that are defendants immune under (O’Connor, J., concurring part the Eleventh Amendment. concurring judgment (joined in the When a state commission elects to arbi- Thomas, JJ.)); 297, by Scalia id. at agreement trate an interconnection ap- or (Souter, J., 117 S.Ct. at dissenting prove Generally a Statement of Available Stevens, (joined by Ginsburg, and Brey- (“SGAT”), Terms the Telecommunications JJ.)). er, (the “Act”) Act of 1996 “1996 Act” or the Earles v. State Bd. Public of Certified jurisdiction vests in the federal courts for Louisiana,

Accountants F.3d of any aggrieved party challenge state ac- (5th Cir.1998). requirements tions inconsistent with of Accordingly, of application Ex jurisdiction the Act.1 That is exclusive.2 Young to against suits state commissioners Amendment, Pursuant to the Eleventh 252(e)(6) section of the under 1996 Act however, may federal courts not entertain by remains unaffected either Seminole by suits against arising citizens states out Bell, Tribe or Coeur d’Alene. See Illinois congressional of legislation, such as the (7th Cir.2000); Pub. under enacted the Commerce (10th Comm’n, Serv. F.3d Clause.3 Cir.2000); and Bell Tel. v. Michigan Co. Amendment, Under the Eleventh states Co., (6th Tel. F.3d Climax enjoy sovereign immunity broad from suit Cir.1999). in federal court: IV. Conclusion Judicial United States shall not be any construed extend to voluntarily Because the waived LPSC suit in law equity, or commenced or immunity the state’s Eleventh Amendment prosecuted one of the United case, present in the we REVERSE the State, of by States another or Citizens court dismissing decision the district Subjects any Foreign Citizens or suit Communication’s State. parte Young LPSC. Because the doc- Ex Const, applies, trine we also REVERSE the deci- U.S. XI. Though amend. dismissing of the district reasonably applies sion court AT&T amendment’s text most only diversity, Supreme the individu- to suits in Communication’s section, (a) “In a State days case in which commission section or within 30 this section, any makes determination under this parties agree- after submission of an aggrieved party bring such determination adopted by ment arbitration under subsection appropriate an action in an Federal (b) section, agreement of this shall be agree- district court to whether the determine approved. State deemed No court shall have requirements or ment statement meets jurisdiction to review action of a State section 251 of this this title and section.” 47 approving rejecting commission in or 252(e)(6). U.S.C. agreement section.” Id. 252(e)(4). 2. "If the State commission does not act to approve days reject agreement within 90 Florida, 3. See Seminole v. parties Tribe after submission of an negotiation adopted by under sub- consistently princi- contemplates only appellate-style judi- looked to the Court has cial does not the amendment to bar suits review and thus fall within ple underlying Thus, prohibition Amendment’s of action as well.4 Eleventh on causes federal equity.”8 “suit[s] law or may not sue states individuals action arising court causes of out on recently The Supreme Court addressed such as Act.5 legislation Article I the 1996 in, issues Young respective waiver immunity extends to states This ly, College Savings Seminole Tribe and as well.6 The Elev agencies, but to their Prepaid Postsecondary Bank Florida enth thus immunizes the Lou Board, Expense Education in federal isiana Commission -suit (1999), certain, court. Under limited circum recognizing a broad Eleventh Amendment stances, however, state immunity sufficiently capacious to bar suit officials—like suit, subjected may be In seeking here under the 1996Act. rever commissioners— Amendment, the Eleventh notwithstanding sal, telephone urge, carriers *14 123, Young, 209 under Ex U.S. 158- majority adopts, unduly narrow inter 59, (1908). 441, 714 28 52 L.Ed. S.Ct. pretation rulings. those They would circumstances, facts, to look and ratio the 1996 Act the Elev- Whether violates holding nales of as somehow each exhaus enth is res nova in Amendment this Cir- proper scope tive of Eleventh telephone appeal, cuit.7 carriers On bar, jurisdictional than Amendment rather present unconvincing theories to three merely immunity illustrative of the states immunity. avoid sovereign enjoy from suit in federal court. First, carriers assert application Young announced in to the doctrine I. allow against suit the commissioners. Second, Tribe, they assert commission Seminole Court breathed effectively its state im- new life Eleventh Amendment immu- sovereign waived into expanded munity by electing nity. holding only to arbitrate the inter- That scope cover approve connection Bell- the amendment to all feder- powers arising al causes out granted Congress’s South’s SCAT of action Third, AT&T the Article powers9 thereby barring 1996 Act. claims that I — 69-70, (rejecting 4. 116 S.Ct. 1114 issue See id. at Eleventh Amendment was neither presented blind reliance on text of the Eleventh nor addressed in that case. partic it dealt Amendment because with summarily rejects 8. majorit}' argu- The diversity jurisdiction problem ular created ment, agree. I by an decision in incorrect Chisholm v. Geor 419, Dall.) (2 (1793)); gia, 2 1 U.S. L.Ed. 440 Tribe, 72-73, 9. See U.S. at Seminole 517 116 1, Louisiana, 134 Hans v. 10 S.Ct. ("The S.Ct. 1114 Eleventh re- Amendment (same). 33 842 L.Ed. III, judicial power stricts under Article I Article cannot be used circumvent See, 18-19, Hans, e.g., 5. U.S. at 134 S.Ct. 10 placed upon the constitutional limitations fed- 504; Tribe, 517 U.S. Seminole jurisdiction.”). specifical- eral Tribe Seminole course, legislation S.Ct. 1114. Of en- ly involved the Commerce Indian Clause and pursuant acted to Section 5 of the Fourteenth explicitly Pennsylvania overruled v. Union abrogate constitutionally Co., Gas S.Ct. 491 U.S. sovereign immunity. Fitzpatrick See (1989), L.Ed.2d 1 which had addressed Bitzer, 427 U.S. Clause, see Interstate Commerce Seminole (1976). L.Ed.2d Tribe, provi- 1114— Congress's legislative sions found within both Aqueduct 6. See Sewer P.R. & Auth. v. Metcalf I, powers enumerated in Article 8. Section Eddy, & S.Ct. immunity sovereign aBut state's is not re- section, for Hans stricted to that itself dealt Clause, majority 7. substantially relies on the Contracts constitutional Board, Corp. v. Iowa Utilities on the states located within Article restriction I, (1999), L.Ed.2d See Hans. Section 10. a State com- whether, against bill, under the 1996 Act in enacting that supplant mission —but also narrowed the fictional acted to remedy by exception sovereign immunity to state first substituting statute-based remedial Tribe, in Young thereby scheme. See Seminole barring established — state commis- 74-76, 116 suit under the Act sioners as well.10 The majority therefore in accepting telephone

errs carriers’ argument per- that AT&T’s suit should be proceed mitted to As a judicially-crafted the member' exception to the Young. Amendment, Eleventh Young commissioners under doctrine is not a fiction in which ought courts In Young, the Court a.judicial fashioned engage lightly.11 It was in Young created remedy provide prospective relief give relief state officials to vindi- against state ongoing redress officials cate constitutional rights.12 Young since law, special violations of federal as a ex- has been extended to vindicate federal ception to the Eleventh Amendment bar to statutory rights.13 Tribe, however, ju- Seminole suit. Under dicial relief Young pursuant is not avail- Nevertheless, it is that creates able to redress violations of the 1996 federal statutory rights, so it is also Con a limited statuto- provides because the Act gress that dictates the remedies available ry remedial scheme that supplants statutory Thus, to enforce violations.14 relief otherwise alternatively available un- *15 “where Congress prescribed has a detailed Young. der remedial scheme enforcement against a State of a statutorily created

A. right, a court should hesitate before cast It enough is not ing Eleventh aside those limitations and permitting permits judicial application an action a state officer upon based Young to the 1996 Act. Under parte Tribe, Seminole Ex Young.” Seminole Tribe, courts additionally 74, 116 must determine U.S. at S.Ct. 1114.15 Tribe, tion, officer, 10. See Seminole 517 U.S. at proceeding in under such (stating enactment, that "where has supe- comes into conflict with the prescribed a detailed Constitution, remedial scheme for the authority rior of that and he is enforcement statutorily a State of a stripped repre- that case of his official or right, created a court should hesitate before subjected sentative character and is in his casting aside those permitting limitations and person consequences to the of his individual an action a upon state officer based conduct.”). parte Young.”). Ex 13. See Hosp. Pennhurst State Sch. & v. Halder Tribe, 74-76, 11. See Seminole 517 U.S. at man, 89, 105-06, 104 S.Ct. (noting Young S.Ct. 1114 ais "narrow L.Ed.2d (recognizing Amendment"). exception to the Eleventh Young remedy is available to address viola law). tions of federal but not state 159-60, Young, 12. See ("The alleged act to be enforced is to be Currie, Young 14. See David P. Ex Parte After unconstitutional; so, and if it be the use of the Tribe, Seminole N.Y.U. L. Rev. name of the state to enforce an unconstitu- (1997) ("Congress perfectly free to abolish injury tional act complainants to the is a remedy recognized by parte Young.”); Ex of, proceeding authority without the and one ("Seminole id. at 551 Tribe will have its most affect, which does not the state in its sover- significant involving effect on actions statuto eign governmental capacity. simply It is ry, rights.”) not constitutional illegal upon part an act of a state official attempting, by in state, the use of the name of the Currie, legislative See also 72 N.Y.U. L. Rev. enforce a at 551 enactment which ("Seminole preclude is void because unconstitutional. If the act Tribe well the use of attorney general which parte Young the state Ex involving seeks to en- in additional cases force be a violation statutory rights.”). Federal Constitu- Young expose would then, judi- parte under Ex whether the question, powers the full remedial 1996 Act es- that official to provisions cial review court, presum- including, for the a remedial scheme a “detailed tablish If statutorily ably, contempt created sanctions. ... of enforcement 2710(d)(3) id., Tribe in a suit § under Seminole could be enforced sufficient right,” 2710(d)(7) judicially-made Young Young, § under Ex supplant alterna- superfluous; would be it is diffi- remedy that otherwise would have been See to AT&T. Seminole an tribe would tively why available cult to see Indian In Tribe, the intricate scheme of through suffer words, whether 2710(d)(7) we must determine other complete § more when exclusively relief may pursue relief would be avail- more immediate whether, alternatively, through the Act or paHe Young. under Ex able Young is also available. (footnote omit- Id. at act gaming ted). that an Indian concluding the Seminole Tribe supplanted Young, words, Young, a supplant In other explained: and limit- provide must detailed statute Here, rights Congress intended [the scheme, narrower legislative ed remedial by the to be enforced act] conferred un- scope than what would be available brought in an action against the State Otherwise, Young invoke Young. der 2710(d)(7)]; the in- [25 under U.S.C. judicial review would be to render pro- in that procedures set forth tricate superfluous. provisions of a statute intended vision show an aggrieved Under the 1996 define, also to only therein not only review under cer- may seek imposed by duty limit significantly, “In case which tain conditions: 2710(d)(3). where the example, For makes a determination State commission court that the Staté has failed to finds section, any party aggrieved by faith, remedy negotiate good may bring determination action prescribed directing is an order *16 appropriate Federal district court to an to conclude a and the Indian tribe State agreement whether the or state- determine if days. within And the compact 60 of section requirements ment meets the the court’s order and parties disregard 252(e)(6) § (emphasis 47 251....” U.S.C. compact a within the 60- fail to conclude added). timing The Act thus limits the that each day period, only the sanction is courts, scope the of com- access to federal party proposed then a com- must submit review, subject judicial to mission conduct pact to a who selects the one mediator and the defendants vulnerable to suit. which embodies the terms of the best First, to to respect access Finally, accept fails to Act. the State mediator, con- scope the of reviewable commission compact the selected the duct, parties right have a to aggrieved it is that the only the sanction Act, only the judicial relief under notify Secretary the mediator shall after made a detemi- prescribe commission has who then must State Interior require- is not unlike the gaming class III nation.16 This regulations governing agency trigger a final action to By contrast ment of on the tribal lands issue. sanctions, judicial Procedure Act re- Administrative quite with this modest set of view, §§ and it is an official see 5 U.S.C. brought against action Breathitt, Southwest, Graves, F.Supp. 610 963 Inc. v. GTE S. Inc. See GTE (W.D.Okla. 1997); Morrison, N. F.Supp. (E.D.Ky.1997); GTE Inc. v. GTE S. (N.D.Ohio Minn., 1997); F.Supp. (E.D.Va. Inc. v. F.Supp. Contel Glaze v. Nelson, Northwest, 1997); Inc. v. Jacobs, (D.Minn. GTE WL 809628 Inc. v. Fla., (D.Wash. 1997); Inc. v. F.Supp. 654 GTE 1997). Johnson, (N.D.Fla.1997); F.Supp. to only validity available review the of a five relief offered Young to redress commission or statement under Act,18 ongoing violations of the but the Act process. the Act and not its requires aggrieved party to wait for a imposes thus statutory number of duties determination the state commission be- on State commissions are either not suit, fore filing even if it means that some effectively only partially effectively re- violations, compliance such as with the judicial provi- viewable under this review deadlines, statutory might never be re- sion, including duty open to arbitrate dressed. The Act provides therefore commission, brought issues to the see 47 remedial scheme that supplants relief oth- 252(a)(2); § duty provide U.S.C. to an erwise by Young. offered opportunity respond to party (cid:127) Second, the only Act refers to cases petitioned whom another has involving “a State commission.” Id. arbitration, 252(b)(3); § see id. 252(e)(6). § No reference is made to state duty only to arbitrate those issues raised commissioners. As Seminole Tribe teach- 252(b)(4)(A); § a petition, see id. es, courts lightly should not construe Con- duty to conclude the resolution of unre- gressional intent “expose [a state] offi- solved issues within nine months of the cial to the full and, powers remedial of a request, 252(b)(4)(C); § initial see id. court, SGAT’s, with respect including, presumably, duty contempt to com- sanctions,” plete sixty days review within of submis- where the statute seems to sion, 252(f)(3). see id. suggest by providing otherwise alternative Tribe, remedies. Seminole 517 U.S. at delay judicial To review until the state 116 S.Ct. 1114.19 only parties Given that actually commission makes a determina- “aggrieved by such determination (rather before), tion than and then to limit bring an action” and that such actions are review only ensuring limited “to determining] whether (as agreement or opposed statement itself) agreement or complies statement” with the process arbitration complies with Act, 252(e)(6), the most is to “limit ... reasonable con- significantly imposed by”17 struction is to limit scope dut[ies] the Act and thus supplant Young. relief under A review to plaintiff only parties able to trigger prefer might to seek injunc- the immediate it—state commissions.20 Tribe, 17. Seminole simply authorizes federal courts to review only any "agreement to ensure that or state requirements ment meets the of” the 1996 Although Act. Id. on-going 18. That case in this circuit violation is the result of a *17 past wrong to judicial does have construed remedy not transform the the Act's review prospective provision, from a retrospective Telephone to a one. Southwestern Bell Co. v. Commission, Young (5th Relief under Utility is still available in Public these 208 F.3d 475 Transp., Cir.2000), cases. See CSX Works, Inc. v. Bd. Pub. did not involve the Eleventh of (4th Cir.1998) (stat Amendment, we did indicate an inclination to ing injunction that "a future is not made adopt provision. a "broader view” of the See retrospective merely recognizes because it (construing id. at permit 481-82 the Act to ongoing that an violation of law is the result compliance review of state commissions for past wrong.”). of a law, with state arbilrary-and-capri- under the standard, cious in addition to de novo review (distin- Act). 19. See id. at 75 n. 116 S.Ct. 1114 compliance of reading A natural of guishing expressly permit- between statutes merely scope text is that it defines of ting against specific suit review, officials and judicial subject state conduct to rather State”). allowing only against those “the remedies, than the available and that our au thority compliance to reasonably enforce in availability injunctive 20. The state additionally argue defendants cludes the of relief— judicial provision only against that the Act's review albeit does the state commission and relief, provide injunctive thereby not not fur- its commissioners. See Franklin v. Gwin Schools, enlarging gap ther County between relief under nett Public provided by the Act Young. (slat- and that The Act all, availability Young. in- Notwithstanding supplant of After the same kind relief, judicial provi- injunctive ongoing review redress junctive to vio- relief sufficiently supplant to limited Act sions are lations is available under the 1996 as is Young. the limited stat- That Young; relief under available under that was not inso under the Act remedy utory aggrieved party Tribe. All an Seminole available be- actually not commissions do under Act is to satisfy need the 1996 under the Elev- unconstitutional cause the administrative exhaustion-like condi- alter the deter- does not enth Amendment provision, tions of the Act’s review Young supplants that mination here. as was done state commissioners. The relief problem But that is precisely the under directly confronted this is- Supreme Court 252(e)(6) Tribe. Seminole limits Section Tribe, concluding that in Seminole sue scope subject conduct Commission consider alternative reme- could scrutiny by sup- to and thus federal courts sup- by Congress to dy provided sufficient Tribe, plants Young. Under Seminole Young, notwithstanding relief under plant 1114, Young relief is remedy that was unconstitu- the fact that when, statute, enacting unavailable commenta- tional. This result struck some “Congress intended therein to absurd,21 but unhesitat- tors as the Court define, significantly, but also to limit Congress, ingly concluded it is for duty imposed” by through the statute a courts, to rewrite defective stat- not the limited remedial scheme. utes.22 strongest argument

This is the carriers’ Tribe, against applying Seminole which is majority telephone question, carriers and the silent on the because The Seminole reading apply expressly would narrower Semi- Tribe does not state that fed- Tribe, however, limiting scope limiting nole eral statute defendants com- subject judicial review, that decision particular statute mission duties argue injunctive relief, construed. carriers but not remedies such as nearly Act does not limit relief to supplant Young. is sufficient Nonethe- less, dramatically distinguish as does the statute in Semi- the carriers’ attempt (as and that Tribe held limits on nole Tribe Seminole between available remedies Tribe) only that that sufficient enactment was to Seminole and limits on defendants Tribe, ing "although we examine the text and 22. See Seminole ("Here, course, history of a statute determine whether Con- we have found action, gress right Congress authority intended create a we does not under presume appropriate availability of all the Constitution State to make the suable in 2710(d)(7). Congress expressly unless indi- remedies has federal court under Neverthe- otherwise”) (citation omitted). less, impose cated the fact that chose to upon liability significantly the State that is liability more limited be the Currie, than would im- ("That 21. See N.Y.U. L. Rev. at 550 posed upon the state officer under Ex said, application principle in Sem- [this] Young strongly indicates that had majority inole Tribe makes no sense. The no wish create latter *18 precluded parte Young by provision held Ex 2710(d)(3). § are we Nor free rewrite the just it had declared sec- unconstitutional —the statutory approximate scheme in order to authorizing suit the state tion itself. Congress might what we think have wanted One of the essential characteristics of uncon- 2710(d)(7) beyond had it known that was provisions they stitutional have no ef- is that made, Moreover, authority. be If that effort is to it inability fect. to make the by Congress, by should be made and not only plausible state suable removes the basis parte Young believing federal courts. We hold that Ex for have want- would inapplicable petitioner's suit ed to suit forbid the Governor Florida, parte Young thing Ex .... Governor of therefore that last and suit is [T]he by the and would have wanted was to leave the barred Eleventh Amendment must all.”). jurisdiction.”). remedy offended be no dismissed for lack (as case) gress in the instant finds no supplanted duties has not that relief with Tribe, which, all, alternative, support in an Seminole after limited remedial scheme. Tribe, Young excep- relief as a “narrow 74-75, describes See Seminole tion to the Eleventh Amendment.” Id. at S.Ct. 1114. Therefore, 116 S.Ct. 1114. in the face ambiguity Tribe Seminole as to II. precludes Young only

whether relief It is enough say the Eleventh prohibits where a statute certain applies and that the narrow remedies, or also where a statute limits exception Young supplanted has been duties, only the majority defendants by Congress, might be found to resolving errs in that ambiguity against have waived immunity. There is no state sovereign immunity. case, and, actual waiver this even if constructive waiver is still available as a B. law, matter of the state defendants did not juris- Because the confers exclusive waive its immunity voluntarily. They courts,23 and, diction in the federal as I therefore have retained their immunity un- shown, an action in federal court is der the Eleventh Amendment. Amendment, barred under the Eleventh no review enforce the or a commission’s A. compliance commissioner’s with the Act is majority As the seems to acknowledge, available in state or federal court. This waiver; express there was no Louisiana circumstance —that there is neither a state did not enact a express law or otherwise nor a federal forum to vindicate federal its consent to federal court under rights created the Act—is not alone Instead, the 1996Act. majority reasons sufficient to trigger relief under Young. that Louisiana “a voluntary effected gratu- Such a rule was suggested in Idaho v. ity induced waiver” by participating in the Tribe, Coeur d’Alene 521 U.S. regulatory scheme. (1997), as a support application mere factor In College Savings Bank v. Florida Pre- Young, minimal but even that suggestion paid Postsecondary Education Expense Board, was by only endorsed two Justices24 and

expressly repudiated (1999), gov- three.25 The L.Ed.2d 605 the Court overruled erning rule remains the same: Relief un- Railway Parden v. Terminal Alabama der Young is available prospective where Department, State Docks necessary relief is on-going (1964), redress vio- law,26 lations of rejected Con- theory might that a state 291-92, (O’Con "If the State commission does not act to id. See 117 S.Ct. 2028 approve reject agreement J., or nor, JJ., within 90 Thomas, joined by Scalia and days parties after submission of an concurring). agreement adopted by negotiation under sub- (a) section, section days or within 30 (O’Connor, 26. See id. at 117 S.Ct. 2028 parties agree- after submission of an J., Thomas, JJ., joined by Scalia and concur- adopted by ment arbitration under subsection ring) (opining Young that "a suit is available (b) section, of this shall be plaintiff alleges ongoing where a an violation approved. deemed No State court shall have law, sought of federal and where the relief jurisdiction to review the action of a State prospective retrospective”); rather than id. at approving rejecting commission in (Souter, J., joined by 117 S.Ct. 2028 agreement under this section.” 47 U.S.C. Stevens, JJ., Ginsburg, Breyer, dissent- 252(e)(4). (same). ing) Tribe, *19 24. See Coeur d’Alene 521 U.S. at 270- 74, J., 117 S.Ct. (Kennedy, joined by C.J.). Rehnquist, example, For the sovereign immunity.27 activity. Court constructively waive lawful hand, rejected, adopted any exception clas- out of what- the Court place, “[t]he In its partici- acting of effective of a soever for states as market description waiver sic is, pants. Id. at right” “the inten- S.Ct. 2219.28 constitutional —that or abandonment of a relinquishment tional The 1996 does not force states to right privilege.” College or Sav. known sovereign immunity, waive their 682, Bank, 119 S.Ct. 2219. 527 U.S. at unconstitutionally in subjects to suit fed- 675, “stringent a one.” Id. at The test is any eral court commission that event, any majority 2219. In 119 S.Ct. to arbitrate agree- elects interconnection that a of correctly acknowledges theory competitors operating ments between longer is no viable. waiver constructive telephone local service markets within jurisdiction approve their or SGAT’s of B. Companies Operating providing Bell ser- effective, it jurisdiction. telephone a must be vice their The For waiver be emphasize completely voluntary gives coerced or carriers that the Act on an condition. clear notice that state commissions based unconstitutional choos- concluding majority ing regulate subject that the will The errs themselves to that require- College waiver meets suit in federal court.29 After supposed here Sav- Bank, however, notice, ings though ment. clear necessary, still is no longer sufficient to “[Wjhere constitutionally guaranteed waiver of induce Eleventh Amendment protection sovereign immuni- of States’ immunity. involved, ty point of coercion Bank, automatically passed College Savings voluntari- Under even —-and destroyed clearly-induced of waiver what is waiver is ineffective arbi- ness —when tration agreements attached to refusal waive is the of interconnection or approval laio- of aby exclusion State otherwise SGAT’s state commission from Bank, activity.” constitutes “otherwise lawful activity.” College Sav. 527 U.S. Id. ful added). 687, (emphasis question, 119 S.Ct. 2219 at 119 S.Ct. The therefore, Savings protection College Bank is is whether arbitration of inter- approval previ- agreements not limited to states were connection or ously engaging federally-regulated ac- SGAT’s state commission constitutes (as distinguished activity” “otherwise lawful for which tivity states Con- in a merely participating pro- gress cannot condition a waiver of were federal sover- instead, whether, gram), mistakenly urged eign immunity, carri- ers, grant gift but instead extends to otherwise of such to the states is a Bank, (1959) College 27. See Sav. 527 U.S. at 79 S.Ct. 3 L.Ed.2d 804 ("We Dole, Clause), S.Ct. 2219 think that the (Compact constructive- v. and South Dakota experiment waiver of Farden was ill con- 483 U.S. ceived, attempting and see no merit Clause)). (Spending salvage any remnant of it.... Whatever expressly our Farden is remain of overruled."). decision in Dole, 29. See (holding that "if desires to condition funds, receipt the States’ of federal it must do Bank, however, College Savings unambiguously, enabling so States to ex distinguished waivers induced knowingly, cognizant ercise their choice Compact Spending Clauses on (ci consequences participation") of their Congressional ground approval of inter- omitted); Atascadero, tations compacts and disbursement (holding Rehabilita Congression- the states funds to are matters manifesting far tion Act "falls short of clear gratuity improperly al do not interfere participation pro intent to condition ability awith state's to conduct otherwise law- grams a State's activity. funded under the Act on con (citing Id. at 119 S.Ct. 2219 ful Comm’n, Petty Bridge immunity”). waive its Tenn.-Mo. sent to constitutional

657 condi Congress may telephone which so The carriers would re-charac- gratuity, or powers terize 686-87, 119 state commission under the tion. Id. S.Ct. regulatory Act as authority,” “federal Act, 1996 Before the state commissions activity thus kind of the which a state telephone local markets regulated service lawfully not engage congres- without jurisdiction. their Act takes within The They sional authorization. panel and the regulatory power from the local analogize majority would the Act to con- states,30 telephone as the them- carriers powers gressional exercises its under Granted, appeal- to the selves concede. Clauses, Compact Spending the under authority not keep Act does exclu- which Congress constitutionally autho- or the sively Congress hands of College rized Savings Bank to re- FCC, but allows it back to the state com- quire waiver. That to the delegation missions. back powers regulatory enjoyed by state statute, permitted how- states under the in under the 1996 Act commissions are ever, only if the subject states themselves deed “federal” the sense that Congress, to suit in federal court. state, particular and not a has articulated governing standards. But the under merely conditioning was Congress lying subject matter nevertheless remains gratuity, as the insist and gift or a carriers (if non-exclusive) indisputable within the Rather, majority the Act concludes. domain states. Like other matters imposes wishing conditions on states to commerce, telephone local is a matter to mar- regulate telephone continue local jurisdiction regu both within the of state they Congress kets as once did. This subject lators and to federal preemption. cannot do. observes, majority As the question “[T]he is not essence, this case whether the Federal com- requires state has taken regulation Government prefer- policy missions to sacrifice either competition away local telecommunications sovereign immunity. ence or A state com- regard With mat the states. to the may wish to and make mission intervene Act, by the unques ters addressed it preferences known, policy doing so Bd., Iowa tionably has.” Utils. subjects jurisdiction. it to federal To 6, 119 379 n. S.Ct. 721. jurisdiction, a commis- avoid federal state goals and regulatory sion must abdicate its sure, Congress To be could have hope private parties FCC preempted regulation of all tele- will come to a it endorse. solution would phone.31 may give, And hardly rises to of a voluntary This waiver option providing states the their own im- right sovereign state’s constitutional to facing preemption by regulations or feder- always in federal munity greater court. al law.32 But does not Corp., regulating private affecting n. activity 30. See AT&T 525 U.S. at state laws (“But commerce”). question S.Ct. 721 in these cases is interstate not whether the Federal has tak- Government regulation en the of local telecommunications FERC, 32. See 102 S.Ct. 2126 competition away from the With re- States. that, (stating "Congress because could have gard matters addressed field,” pre-empted statutes be "should not has.”). unquestionably because, simply invalid out of deference authority, Congress adopted a intru less Mississippi, FERC v. 31. See sive scheme allowed the States to contin (1982) regulating ue in the area on the condition that permits (noting that "the commerce they suggested federal stan consider pre-empt entirely States States, dards”); Yorkv. United New utilities”); regulation private Hodel v. 144, 167, Ass’n, L.Ed.2d Mining Va. & Reclamation Surface (observing recognized "[w]e U.S. (1981) ("A Congress' power offer States the choice precedent wealth of to con- attests according pre-empt regulating activity gressional authority displace [commercial] *21 lesser, certainly court abused its discretion does not the district include the case, opposed sovereignty to when the entire even as state it dismissed when —as at issue. policy preference mere to BellSouth.34 —is ends legitimate of such as pursuit In Authority to dismiss case be- an entire regulation, may telephone unavailability particu- cause of the of one This in sovereignty. was so offend state governed by lar is Fbd.R.Civ.P. party cases33 and no less commandeering if, “requires which as a matter of to the respect Eleventh so here equity court finds the lawsuit may ask states to Amendment. party, proceed cannot the absent without to or to stand back regulate choose either party indispens- then that be considered just take over. But and let federal law Shelton, able case and the dismissed.” to it cannot commandeer states conduct added) (emphasis F.2d We review regulation behalf the United federal on equitable the district court’s exercise of its condition, States, it on submission cannot powers for abuse discretion. See re court, participation state to suits federal Nikoloutsos, 199 F.3d at 236. affairs which states regulatory in those party To determine whether a is indis- freely engaged. once 19(b), pensable, courts look rule which to Thus, carriers’ telephone argument states: enjoy option state commissions [T]he court shall determine whether in to solve Tenth regulate whether good the action equity and conscience problems raised Printz or parties proceed among should before New York but not address the con- does it, dismissed, be or should the absent sovereignty coerced state cern of waiver of person being thus regarded as indis- Giving under the Amendment. Eleventh pensable. The factors to be considered preempted states the choice whether to be first, court include: what ex- represents permissible federal law a judgment per- tent in the a rendered federalism,” Hodel, “cooperative form of might prejudicial son’s absence be second, person or those already parties; conscription of officials execute state which, provi- by protective extent programs subjec- federal or the regulatory judgment, by shaping in the sions tion of state officers to suit federal court relief, measures', prejudice other “accountability diminishes the of state avoided; third, can be lessened or thereby [and] federal officials” violates judgment a whether rendered federalism, principles constitutional person’s adequate; absence will be Printz, 929-30, 117 S.Ct. 2365. fourth, plaintiff have an whether will remedy if adequate the action is dis- III. nonjoinder. for missed The Eleventh Amendment bars suing from defendants but not The determination of a whether suing argues “indispensable” AT&T thus is thus one.35 pragmatic BellSouth. Limmer, having pre- federal v. standards or law See Fernandes 663 F.2d (5th Cir.1981) ("Courts empted by regulation”). confronted with join motions to dismiss a suit for failure to States, ‘indispensable purportedly parties' properly 33. See United Printz (1997); approach problem pragmatically.”); New Co., v.York United States. v. Shell Oil Schutten (5th Cir.1970) ("The 1966 amendment Rule attempts remedy condi- majority’s disposition this situation 34. The erroneous finding upon tioning ‘indispensability’ unnecessary other issues on appeal rendered ”) (citation by majority ‘pragmatic indispens- discussion of this considerations.’ omit- ted). able-party issue. BellSouth) (here, essence” of the four factors “only “The distilled was the suit,” attempt rights proper part[y] “is the to balance the of all opined: one court Schutten, 421 concerned.” F.2d at 873. duty, It is the [Commission’s] it choos- words, In other regulate, es to not the party’s, other *22 plaintiff right has the to “control” [t]he agreement ensure meets the litigation his own and to choose his own requirements of the Act.... Further- is, however, “right” forum. This all like more, function, it is the [Commission’s] other rights, rights “defined” party’s, not the other to enforce the others. Thus the defendant has the agreement. power Lacking enjoin right multiple to be safe from needless enforcing ap- [Commission] from litigation and from incurring avoidable proved agreement, federal courts would obligations. inconsistent Likewise the have remedy aggrieved little effective interests of the outsider who cannot be plaintiffs, subject companies or would joined be Finally must considered. the intolerable prospect conflicting public there is the interest and the inter- commands from federal courts and state seeing est the court has in that insofar regulatory agencies. possible as litigation will be both Co., Michigan Bell Tel. Co. v. Climax Tel. expeditious. effective and (6th Cir.) (emphasis Id. — added), denied, -, cert. The equi- district court did not abuse its 54, 148 L.Ed.2d powers, table under rule to dismiss the To allow suit here against po- BellSouth fairly entire case. It reasoned that tentially expose either would the carriers “lacks the [under Seminole Tribe] to conflicting preju- commands or would remedy to create a under the 1996 Act. dice the state by putting defendants their congressional remedy The choice of must policy preferences at risk of reversal not- Therefore, respected. be plaintiffs can withstanding their immunity under longer no obtain the they relief that re- Eleventh Amendment from interference quested in complaints against their Thus, by federal courts. argu- AT&T’s Public Service Commission.” AT&T Com- 19(b) ment that rule ought not bar suit munications, F.Supp.2d at 604. no adequate BellSouth because Imagine if it were otherwise: 1996 remedy is otherwise directly available con- constitutionally subject Act cannot 19(b) is, fronts another rule factor —that commissions to suit. For a federal court any adequate remedy inevitably validity then to rule on the of an agree- simultaneously prejudice would the Louisi- carrier, only the other ment — immunity ana Commission’s from interfer- and not the state defendants as ence of the federal courts. potentially expose well—is the carriers Finally, complains equi- that “an to conflicting suggestion orders. AT&T’s table doctrine cannot be invoked to defeat that the Act allows the FCC to take over statutory mandate aggrieved par- regulatory authority from the state com- right ties legality have the of review of the mission “[i]f State commission fails to act commission-approved interconnection carry responsibility out its under this in federal court.” I [sic] As section in proceeding or other matter however, explained, the statute is section,” 252(e)(5), under this is of little unconstitutional, up and it is help, very problem for the at hand is not to fix it. act, the commission’s but the failure respectfully I dissent. law, validity those acts under permits jurisdiction and the Act FCC in cases of the former.

Thus, that, in rejecting argument 252(e)(6), the other to the