Certiorari granted, June 21, 2010
Reversed by Supreme Court, April 19, 2011
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
COMMONWEALTH OF VIRGINIA,
Virginia Office for Protection and
Advocacy,
Plaintiff-Appellee,
v.
JAMES REINHARD, in his official
capacity as Commissioner,
Department of Mental Health,
Mental Retardation and Substance
Abuse Services of the
Commonwealth of Virginia;
DENISE D. MICHELETTI, in her
official capacity as Director,
Central Virginia Training Center;
CHARLES M. DAVIS, in his official No. 08-1845
capacity as Director, Central State
Hospital,
Defendants-Appellants.
ALABAMA DISABILITIES ADVOCACY
PROGRAM; KENTUCKY
PROTECTION AND ADVOCACY;
MARYLAND DISABILITY LAW
CENTER; NATIONAL DISABILITY
RIGHTS NETWORK; OFFICE OF
PROTECTION AND ADVOCACY FOR
PERSONS WITH DISABILITIES
(Connecticut),
Amici Supporting Appellee.
2 VIRGINIA v. REINHARD
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, Senior District Judge.
(3:07-cv-00734-REP)
Argued: March 24, 2009
Decided: June 2, 2009
Before WILKINSON, Circuit Judge, Eugene E. SILER, Jr.,
Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation, and Robert J.
CONRAD, Jr., Chief United States District Judge for the
Western District of North Carolina, sitting by designation.
Reversed and remanded by published opinion. Judge Wilkin-
son wrote the opinion, in which Senior Judge Siler and Judge
Conrad joined.
COUNSEL
ARGUED: William Eugene Thro, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellants. Paul James Buckley, VIRGINIA
OFFICE FOR PROTECTION AND ADVOCACY, Rich-
mond, Virginia, for Appellee. ON BRIEF: Robert F. McDon-
nell, Attorney General of Virginia, Stephen R. McCullough,
State Solicitor General, William C. Mims, Chief Deputy
Attorney General, Jane D. Hickey, Senior Assistant Attorney
General, Allyson K. Tysinger, Senior Assistant Attorney Gen-
eral, OFFICE OF THE ATTORNEY GENERAL OF VIR-
GINIA, Richmond, Virginia, for Appellants. Patrick D.
Conner, Washington, D.C.; Rachelle M. Barstow, Julia N.
Miller, Taylor A. Spearnak, New York, New York, for Amici
Supporting Appellee.
VIRGINIA v. REINHARD 3
OPINION
WILKINSON, Circuit Judge:
A state agency known as the Virginia Office for Protection
and Advocacy, or "VOPA," brought this action in federal
court against three Virginia officials in their official capaci-
ties. VOPA claims that the defendant state officials are violat-
ing federal law and seeks declaratory and injunctive relief.
We hold that sovereign immunity bars VOPA’s suit. While
Congress could seek to provide a federal forum for this action
through its abrogation power or by requiring a waiver of the
states’ sovereign immunity in exchange for federal funds,
Congress has attempted neither of those options here. And we
decline to expand the doctrine of Ex parte Young, 209 U.S.
123 (1908), to lift the bar of sovereign immunity in federal
court when the plaintiff is a state agency. VOPA may pursue
its claims in state court, but it would be inconsistent with our
system of dual sovereignty for a federal court to rely on Ex
parte Young to adjudicate an intramural state dispute like this
one. Accordingly, we reverse the judgment of the district
court and remand this case with directions to dismiss it.
I.
VOPA is an "independent state agency" in Virginia that
protects and advocates for the rights of persons with mental
illnesses and developmental disabilities. See Va. Code Ann.
§ 51.5-39.2(A); Va. Office for Prot. & Advocacy v. Reinhard,
405 F.3d 185, 187 (4th Cir. 2005). Congress encourages the
states to create entities like VOPA by providing federal fund-
ing to protection and advocacy systems that meet the require-
ments of two federal statutes: the Developmental Disabilities
Assistance and Bill of Rights Act of 2000, 42 U.S.C.
§§ 15001-15115 ("DD Act"), and the Protection and Advo-
cacy for Individuals with Mental Illness Act, 42 U.S.C.
§§ 10801-10851 ("PAIMI Act"). Under those acts, states may
choose to make their protection and advocacy systems either
4 VIRGINIA v. REINHARD
public agencies or private, nonprofit entities. See 42 U.S.C.
§§ 15044(a), 10805(c)(1)(B); 45 C.F.R. § 1386.20. Virginia
chose the public option.
In accordance with the requirements for receiving federal
funds, Virginia law authorizes VOPA to engage in various
pursuits on behalf of the mentally ill and the disabled, such as
investigating complaints of discrimination, abuse, and
neglect. See Va. Code Ann. § 51.5-39.2(A); 42 U.S.C.
§§ 15043, 10805. Two features of VOPA’s authority under
Virginia law are particularly relevant in this case. First,
VOPA operates independently of the Office of the Attorney
General in Virginia and employs its own legal counsel. Va.
Code Ann. §§ 2.2-510(5), 51.5-39.2(A). Second, VOPA has
the authority, consistent with the requirements of the DD and
PAIMI Acts, to access "the records of an individual with a
disability" in certain circumstances, including the situation in
which VOPA has probable cause to believe that a person has
been abused or neglected. Va. Code Ann. § 51.5-39.4(5); see
42 U.S.C. §§ 15043(a)(2)(I)-(J), 10805(a)(4).
VOPA claims in this action that Virginia is denying VOPA
access to certain records in violation of the DD and PAIMI
Acts. In particular, VOPA seeks declaratory and injunctive
relief providing it access to "peer review" records relating to
three persons who died or were injured in facilities for the
mentally ill. The facilities in question are operated by another
state agency in Virginia, the Department of Mental Health,
Mental Retardation and Substance Abuse Services. The
defendants are three officials in that department, named in
their official capacities ("the state officials").
Before the district court, the state officials moved to dis-
miss VOPA’s complaint on two grounds. First, they argued
that VOPA had failed to state a claim on which relief could
be granted because the state officials were not violating fed-
eral law. Specifically, the state officials argued that peer
review records were privileged under Virginia law and that
VIRGINIA v. REINHARD 5
federal regulations under the DD Act and the PAIMI Act left
that state-law privilege intact. See 42 C.F.R. § 51.41(c)(4); 45
C.F.R. § 1386.22(c)(1). Second, the state officials argued that
Virginia’s sovereign immunity barred VOPA’s suit in any
event.
The district court denied the state officials’ motion to dis-
miss on both grounds. First, the court held that VOPA had
stated a claim that the state officials were violating federal
law and that the state officials’ argument based on the peer
review privilege was inappropriate for resolution on a Rule
12(b)(6) motion because it was an "affirmative defense to the
merits." And second, the court held that sovereign immunity
did not bar VOPA’s suit. The district court agreed with the
state officials that Congress had not abrogated Virginia’s sov-
ereign immunity, nor had Virginia waived its sovereign
immunity against this action. However, the court agreed with
VOPA that this suit satisfied the sovereign immunity excep-
tion of Ex parte Young, 209 U.S. 123 (1908), because VOPA
had sued the state officials for prospective relief from an
ongoing violation of federal law. In reaching that conclusion,
the district court rejected the state officials’ argument that the
doctrine of Ex parte Young did not permit a suit in federal
court by one state agency against officials of another agency
of the same state.
The state officials immediately appealed the district court’s
sovereign immunity decision (and only that decision) under
the collateral order doctrine; our review is de novo. Antrican
v. Odom, 290 F.3d 178, 184 (4th Cir. 2002).
II.
State sovereign immunity is a bedrock principle of "Our
Federalism." Younger v. Harris, 401 U.S. 37, 44 (1971).
Indeed, the "central purpose" of the sovereign immunity doc-
trine "is to ‘accord the States the respect owed them as’ joint
sovereigns." Fed. Mar. Comm’n v. S.C. State Ports Auth., 535
6 VIRGINIA v. REINHARD
U.S. 743, 765 (2002) (quoting P.R. Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)). When the
Constitution "split the atom of sovereignty," U.S. Term Lim-
its, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J.,
concurring), the states "did not consent to become mere
appendages of the Federal Government," Fed. Mar. Comm’n,
535 U.S. at 751. Rather, they consented to a system of dual
sovereignty, and the states therefore "entered the Union ‘with
their sovereignty intact.’" Id. (quoting Blatchford v. Native
Vill. of Noatak, 501 U.S. 775, 779 (1991)).
Along with their status as sovereigns, the states retained
"the dignity and essential attributes inhering in that status."
Alden v. Maine, 527 U.S. 706, 714 (1999). And one of those
essential attributes of sovereignty retained by the states is
immunity from suit absent their consent. See Fed. Mar.
Comm’n, 535 U.S. at 751-52; Alden, 527 U.S. at 715-19; Sem-
inole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996). While
the Eleventh Amendment reflects this foundational principle
of sovereign immunity, the Amendment does not define the
immunity’s scope. See, e.g., Alden, 527 U.S. at 727-30.
Exceptions to the states’ sovereign immunity do exist, how-
ever. See, e.g., Bragg v. W. Va. Coal Ass’n, 248 F.3d 275,
291-92 (4th Cir. 2001). Three of those exceptions are perti-
nent here. First, "Congress may abrogate a State’s immunity
pursuant to its enforcement power under § 5 of the Fourteenth
Amendment." Id. at 291 (citing Seminole Tribe, 517 U.S. at
59). Second, a state may waive its sovereign immunity if it
consents to suit in federal court. Id. at 292. Third, the states’
sovereign immunity "does not preclude private individuals
from bringing suit against State officials for prospective
injunctive or declaratory relief designed to remedy ongoing
violations of federal law." Id. (citing Ex parte Young, 209
U.S. 123).
The parties correctly agree that Virginia’s sovereign immu-
nity bars VOPA’s suit against the state officials in their offi-
VIRGINIA v. REINHARD 7
cial capacities unless one of these exceptions to sovereign
immunity applies. See, e.g., Edelman v. Jordan, 415 U.S. 651
(1974); Bragg, 248 F.3d at 289-92. We therefore examine
each of the three relevant exceptions in turn.
III.
We begin with abrogation. To abrogate the states’ sover-
eign immunity, Congress must both "unequivocally express[ ]
its intent to abrogate" and "act[ ] pursuant to a valid grant of
constitutional authority." Kimel v. Fla. Bd. of Regents, 528
U.S. 62, 73 (2000). We agree with the state officials and the
district court that Congress has not unequivocally expressed
its intent to abrogate Virginia’s sovereign immunity in this
case. Indeed, VOPA does not argue that Congress has made
any effort, much less a clear one, to abrogate the states’
immunity in the DD Act or the PAIMI Act. Thus, the abroga-
tion exception does not permit VOPA’s suit against state offi-
cials.
We do not hold, however, that Congress is powerless to
abrogate in the circumstances presented by this case. Indeed,
the Supreme Court and this court have upheld Congress’s
authority to abrogate sovereign immunity under Section 5 of
the Fourteenth Amendment in certain actions involving the
rights of disabled persons under Title II of the Americans with
Disabilities Act. See United States v. Georgia, 546 U.S. 151,
159 (2006); Tennessee v. Lane, 541 U.S. 509, 533-34 (2004);
Constantine v. Rectors & Visitors of George Mason Univ.,
411 F.3d 474, 490 (4th Cir. 2005). Moreover, the Lane deci-
sion specifically referenced "unconstitutional treatment of dis-
abled persons by state agencies in a variety of settings,
including . . . the abuse and neglect of persons committed to
state mental health hospitals." Lane, 541 U.S. at 524-25 (cit-
ing Youngberg v. Romeo, 457 U.S. 307 (1982)). That sort of
"unconstitutional treatment" would be relevant to an effort by
Congress to abrogate the states’ immunity against a suit by an
entity like VOPA.
8 VIRGINIA v. REINHARD
Of course, Congress’s power to abrogate sovereign immu-
nity is not unlimited. See Bd. of Trs. of Univ. of Ala. v. Gar-
rett, 531 U.S. 356, 360, 374 (2001) (invalidating Congress’s
attempt to abrogate in actions under Title I of the ADA). But
Congress could at least attempt to exercise its abrogation
authority under the DD Act or the PAIMI Act if it believed
that suits like this one belong in federal court. As of now,
however, Congress has not even tried.
IV.
We turn next to the issue of waiver. VOPA claims that Vir-
ginia waived its sovereign immunity against this action by
choosing to receive federal funding under the DD Act and the
PAIMI Act because Congress conditioned that funding on the
Commonwealth’s consent to be sued in federal court. In par-
ticular, VOPA argues that the following provision of the DD
Act placed Virginia on notice that it was waiving its sovereign
immunity: "Nothing in this subchapter shall preclude a system
from bringing a suit on behalf of individuals with develop-
mental disabilities against a State, or an agency or instrumen-
tality of a State." 42 U.S.C. § 15044(b)(1).
VOPA’s waiver argument is not persuasive. The Supreme
Court has held repeatedly that the waiver of a state’s sover-
eign immunity requires an explicit, emphatic statement. That
is, a state waives its immunity from suit in federal court only
where that waiver is "stated by the most express language or
by such overwhelming implications from the text as will leave
no room for any other reasonable construction." Edelman v.
Jordan, 415 U.S. 651, 673 (1974) (internal quotations and
alteration omitted). The purpose of this "stringent" test is "to
be certain that the State in fact consents to suit." Coll. Sav.
Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527
U.S. 666, 675, 680 (1999). Thus, we will not find "consent by
implication or by use of ambiguous language." Library of
Cong. v. Shaw, 478 U.S. 310, 318 (1986) (quoting United
VIRGINIA v. REINHARD 9
States v. N.Y. Rayon Importing Co., 329 U.S. 654, 659
(1947)).
A state does not waive its sovereign immunity through its
mere receipt of federal funds or participation in a federal pro-
gram. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246-
47 (1985). Instead, Congress must also express "a clear intent
to condition participation . . . on a State’s consent to waive its
constitutional immunity." Id. at 247; Litman v. George Mason
Univ., 186 F.3d 544, 554 (4th Cir. 1999) (recognizing that
Congress must "codify a clear, unambiguous, and unequivocal
condition of waiver"). These strict requirements reflect both
the importance of sovereign immunity in our federal system
and the fact that a waiver of sovereign immunity is "an exer-
cise, rather than a limitation of, State sovereignty." Madison
v. Virginia, 474 F.3d 118, 129 (4th Cir. 2006); Litman, 186
F.3d at 550.
Applying these principles, we agree with the district court
that the provision of the DD Act cited by VOPA is not suffi-
ciently explicit to waive Virginia’s sovereign immunity.
Indeed, the language in that provision is far from the
emphatic, "express," and "unequivocal" statement that is nec-
essary to constitute a waiver. The district court correctly
observed that Section 15044(b)(1) "simply indicates an intent
not to abrogate any preexisting rights to sue." That section
does not, however, provide states with the necessary notice
that they are consenting to suits in federal court that their sov-
ereign immunity would otherwise bar.
The insufficiency of Section 15044(b)(1) as a waiver provi-
sion is particularly apparent in comparison to other provisions
in which we have found a valid waiver of sovereign immu-
nity. In Constantine, for example, we held that a state had
consented to suit under the Rehabilitation Act based on "an
unambiguous and unequivocal condition requiring waiver of
Eleventh Amendment immunity." Constantine v. Rectors &
10 VIRGINIA v. REINHARD
Visitors of George Mason Univ., 411 F.3d 474, 492 (4th Cir.
2005). The waiver section in that case provided:
A State shall not be immune under the Eleventh
Amendment of the Constitution of the United States
from suit in Federal court for a violation of section
504 of the Rehabilitation Act of 1973, title IX of the
Education Amendments of 1972, the Age Discrimi-
nation Act of 1975, title VI of the Civil Rights Act
of 1964, or the provisions of any other Federal stat-
ute prohibiting discrimination by recipients of Fed-
eral financial assistance.
42 U.S.C. § 2000d-7 (citations omitted); see also Litman, 186
F.3d at 554 (holding that Section 2000d-7 also constituted a
waiver of sovereign immunity for suits under Title IX).
Unlike Section 2000d-7, the provision of the DD Act cited by
VOPA does not refer to immunity, does not refer to the Elev-
enth Amendment, and does not even refer to suit in federal
court. Finding a waiver of sovereign immunity in these cir-
cumstances would only dilute the clear statement requirement
for waiver and would do away with the established rule
against consent through ambiguous language.
We note again, however, that we do not question Con-
gress’s authority—recognized in decisions like Constantine—
to extract a waiver of the states’ sovereign immunity in a case
like this one. We hold only that Congress has not provided a
sufficiently explicit statement to produce a waiver here.
V.
A.
We turn finally to the doctrine of Ex parte Young, 209 U.S.
123 (1908). VOPA argues, and the district court held, that the
Ex parte Young exception to sovereign immunity permits
VOPA’s suit against the state officials in federal court. To
VIRGINIA v. REINHARD 11
support that argument, VOPA points to Verizon Maryland,
Inc. v. Public Service Commission of Maryland, 535 U.S. 635
(2002). There, the Supreme Court held that "[i]n determining
whether the doctrine of Ex parte Young avoids an Eleventh
Amendment bar to suit" against state officials in their official
capacities, "a court need only conduct a ‘straightforward
inquiry into whether [the] complaint alleges an ongoing viola-
tion of federal law and seeks relief properly characterized as
prospective.’" Id. at 645 (alteration in original) (quoting Idaho
v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)
(O’Connor, J., concurring in part and concurring in the judg-
ment)). VOPA argues that this action satisfies Ex parte Young
under Verizon Maryland’s "straightforward inquiry" because
VOPA, in seeking access to peer review records to which it
is allegedly entitled under the DD and PAIMI Acts, is pursu-
ing injunctive relief from an ongoing violation of federal law
by state officials. And, VOPA contends, that should be the
end of the matter.
But it is hardly so simple. While VOPA’s reliance on a
straightforward application of Ex parte Young may have
superficial appeal, this case differs from Ex parte Young in a
critical respect: the plaintiff there was not a state agency.
Instead, the plaintiffs in Ex parte Young were private parties.
See 209 U.S. at 143. And while no subsequent decision has
expressly limited the application of Ex parte Young to suit by
a private plaintiff, many decisions have recognized this basic
element of the doctrine. See, e.g., Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 71 n.14 (1996) ("[A]n individual can
bring suit against a state officer in order to ensure that the
officer’s conduct is in compliance with federal law . . . ."
(emphasis added) (citing Ex parte Young, 209 U.S. 123)); Bd.
of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9
(2001) (referring to Ex parte Young suits by "private individu-
als"); Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002)
(suits by "private citizens").
12 VIRGINIA v. REINHARD
Moreover, VOPA has cited no case, nor have we found
any, holding that—or even analyzing whether—the Ex parte
Young doctrine applies equally when the plaintiff is a state
agency. Cf. Verizon Md., 535 U.S. at 639-40 (suit by a private
corporation). This lack of historical support for VOPA’s suit
is important in light of the Supreme Court’s presumption that
the states are immune from proceedings that were "anomalous
and unheard of when the constitution was adopted." Alden v.
Maine, 527 U.S. 706, 727 (1999) (quoting Hans v. Louisiana,
134 U.S. 1, 18 (1890)).1
VOPA argues, however, that its status as a state agency
should not affect our Ex parte Young analysis. Indeed, VOPA
claims that the identity of the plaintiff is wholly irrelevant to
the doctrine of Ex parte Young. But VOPA cites no authority
for that proposition either—likely because VOPA’s argument
for an indiscriminate application of Ex parte Young cannot be
reconciled with the guidance of the Supreme Court in Idaho
v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997). In that
case, the Court held that the Ex parte Young exception did not
permit a suit that was equivalent to a quiet title action and
1
The district court, in holding that VOPA could bring this action under
Ex parte Young, stated that courts had previously decided the merits of
cases brought by protection and advocacy systems "despite the presence
of state agencies on opposing sides." However, the district court’s reliance
on many of these cases was erroneous because they involved suits by pri-
vate protection and advocacy systems, not by state agencies. See Mo. Prot.
& Advocacy Servs. v. Mo. Dep’t of Mental Health, 447 F.3d 1021, 1023
(8th Cir. 2006); see also Ctr. for Legal Advocacy v. Hammons, 323 F.3d
1262, 1264 (10th Cir. 2003); Pa. Prot. & Advocacy, Inc. v. Houstoun, 228
F.3d 423, 425 (3d Cir. 2000). The public protection and advocacy system
in Connecticut did bring one of the cases cited by the district court, but
the decision in that case did not address the issue of sovereign immunity.
See Prot. & Advocacy for Persons with Disabilities v. Mental Health &
Addiction Servs., 448 F.3d 119, 121 (2d Cir. 2006); see also Office of
Prot. & Advocacy for Persons with Disabilities v. Armstrong, 266 F.
Supp. 2d 303, 313 (D. Conn. 2003) (permitting a different suit by Con-
necticut’s public protection and advocacy system under Ex parte Young
without addressing the fact that the plaintiff was a state agency).
VIRGINIA v. REINHARD 13
thereby implicated "special sovereignty interests"—even
though the suit otherwise satisfied the requirements of Ex
parte Young. 521 U.S. at 281. The Court warned against a "re-
flexive reliance" on Ex parte Young and the "empty formal-
ism" of allowing any and all federal claims for injunctive
relief against state officials to proceed in federal court. Id. at
270. And the Court held that "[a]pplication of the Young
exception must reflect a proper understanding of its role in
our federal system," as well as a recognition that sovereign
immunity "represents a real limitation on a federal court’s
federal-question jurisdiction." Id.
VOPA is therefore incorrect to argue for what amounts to
a "reflexive reliance" on Ex parte Young. Instead, we confront
a novel question: whether to expand the Ex parte Young
exception to allow a suit, in federal court, by a state agency
against officials of the same state. See Coeur d’Alene Tribe,
521 U.S. at 296-97 (O’Connor, J., concurring in part and con-
curring in the judgment) ("I would not narrow our Young doc-
trine, but I would not extend it to reach this case."). The state
officials concede that Ex parte Young would permit this
action if the plaintiff were a private person, or even a private
protection and advocacy system. The limited question we
face, therefore, is "whether the Eleventh Amendment bar
should be lifted, as it was in Ex parte Young," when the plain-
tiff is a state agency. Seminole Tribe, 517 U.S. at 74.
B.
When we consider the sovereign interests and federalism
concerns at stake, we are convinced that the Ex parte Young
exception should not be expanded beyond its traditional scope
to permit a suit by a state agency against state officials in fed-
eral court. "The preeminent purpose of state sovereign immu-
nity is to accord States the dignity that is consistent with their
status as sovereign entities." Fed. Mar. Comm’n v. S.C. State
Ports Auth., 535 U.S. 743, 760 (2002). And federal court
adjudication of an "intramural contest" between a state agency
14 VIRGINIA v. REINHARD
and state officials encroaches more severely on the dignity
and sovereignty of the states than an Ex parte Young action
brought by a private plaintiff. Va. Office for Prot. & Advocacy
v. Reinhard, 405 F.3d 185, 191 (4th Cir. 2005) (Wilson, J., con-
curring).2
The Ex parte Young doctrine rests on the well-established
fiction that a private party’s suit to enjoin state officials from
violating federal law is not a suit against the state. See Antri-
can, 290 F.3d at 184. An action by a state agency against state
officials in federal court, by contrast, has no similar historical
pedigree, and it would be a more obvious affront to a state’s
sovereign interests. Indeed, the infringement on a state’s sov-
ereign dignity would be substantial if a state agency, acting
unilaterally, could force other state officials to appear before
a federal tribunal. We therefore see no reason to extend the Ex
parte Young doctrine to allow such a suit. Splintering a state’s
internal authority in this manner would be antithetical to our
system of dual sovereignty. After all, "[t]he Framers split the
atom of sovereignty"—they did not shatter it. U.S. Term Lim-
its, Inc. v. Thornton, U.S. 779, 838 (1995) (Kennedy, J., con-
curring).
In contrast to the expansion of Ex parte Young proposed by
VOPA, the interest of the states in avoiding excessive federal
meddling with their internal authority is well recognized in
the Supreme Court’s sovereign immunity jurisprudence. In
Alden v. Maine, for example, the Supreme Court held that
Congress did not have the power under Article I to abrogate
the states’ sovereign immunity in their own courts. 527 U.S.
at 712. The Court recognized that if Congress had such a
2
The parties in the cited case were the same as in the present one, but
the case involved a different claim by VOPA. We held that VOPA could
not assert a claim under 42 U.S.C. § 1983 because VOPA was a state
agency. See 405 F.3d at 190. The majority opinion did not address Virgin-
ia’s sovereign immunity, but Judge Wilson alluded to the issue in a con-
curring opinion.
VIRGINIA v. REINHARD 15
power, the federal government would be able "to turn the
State against itself and ultimately to commandeer the entire
political machinery of the State against its will." Id. at 749.
The Court renounced "[s]uch plenary federal control of state
governmental processes" because it would "denigrate[ ] the
separate sovereignty of the States." Id. Moreover, Alden rec-
ognized that for the federal government to "assert[ ] authority
over a State’s most fundamental political processes" would
"strike[ ] at the heart of the political accountability so essen-
tial to our liberty and republican form of government." Id. at
751.
For similar reasons, the Supreme Court held in Pennhurst
State School & Hospital v. Halderman, 465 U.S. 89 (1984),
that Ex parte Young did not permit suits in federal court to
enjoin state officials from violating state law. The Supreme
Court in Pennhurst sought to avoid the significant "intrusion
on state sovereignty" that would result "when a federal court
instructs state officials on how to conform their conduct to
state law." Id. at 106. That is, the Court recognized that fed-
eral court resolution of internal state disputes would "con-
flict[ ] directly with the principles of federalism that underlie
the Eleventh Amendment." Id.
The reasoning of Alden and Pennhurst is persuasive here.
VOPA seeks to expand Ex parte Young to allow a federal
court, without the imprimatur of Congress or the consent of
the state, to resolve a dispute between a state agency and state
officials. Recognizing an inherent power in the federal courts
to settle this sort of internecine feud—"to turn the State
against itself"—would disparage the status of the states as
sovereigns. Alden, 527 U.S. at 749. Moreover, just as Penn-
hurst observed that states and their officials have an interest
against appearing in federal court over issues of state law,
states have a similar interest in not having a federal court ref-
eree contests between their agencies. Further, allowing a state
agency to decide on its own accord to sue officials of another
state agency and to obtain relief from an Article III judge
16 VIRGINIA v. REINHARD
would create difficult questions of political accountability. Cf.
Alden, 527 U.S. at 751. Where exactly could citizens dissatis-
fied with the outcome of such a federal court case turn for
political redress? The answer is not obvious. For these rea-
sons, granting a federal forum to "a state’s warring factions"
based on alleged violations of federal law would be an unwar-
ranted extension of Ex parte Young. VOPA, 405 F.3d at 191
(Wilson, J., concurring).
The matter would be different, on the other hand, if Con-
gress sanctioned this sort of suit. If Congress validly exercised
its power under Section 5 of the Fourteenth Amendment to
authorize an action like this one, the states would have no
proper basis for complaint about the infringement on their
sovereign dignity. Nor would states have a rightful grievance
if Congress required the states’ informed consent to this type
of action in exchange for federal funds. And in those cases,
citizens could hold Congress or the states politically account-
able for the results. But based on the concerns expressed in
the Supreme Court’s sovereign immunity decisions—as well
as the evident historical paucity of this sort of action and the
Supreme Court’s presumption against permitting "anomalous
and unheard-of proceedings" against the states, Alden, 527
U.S. at 727—to allow this suit to proceed under Ex parte
Young would go too far.
C.
VOPA insists, however, that this action does not actually
implicate any special sovereign interests on the part of Vir-
ginia. Instead, VOPA argues that this suit, like all Ex parte
Young actions, is primarily about enforcing federal law.
VOPA points out that Virginia accepted federal funds under
the DD Act and the PAIMI Act and created VOPA to enforce
the accompanying requirements of those statutes. And VOPA
argues that Virginia and its officials therefore have no sover-
eign interest in avoiding VOPA’s use of Ex parte Young. In
other words: "This is not, as the state officials mischaracterize
VIRGINIA v. REINHARD 17
it, simply an intramural contest between state agencies. . . .
[T]he question is whether the state officials are required to
comply with federal law." Brief for Appellee at 7-8.
These arguments are unpersuasive as well. As an initial
matter, VOPA’s emphasis on the enforcement of federal law
proves too much. The Supreme Court in Alden specifically
rejected the "contention that substantive federal law by its
own force necessarily overrides the sovereign immunity of the
States." 527 U.S. at 732. Instead, the Court held that even fed-
eral law must be applied "in a manner consistent with the con-
stitutional sovereignty of the States." Id. Indeed, if a federal
claim alone were enough to invoke Ex parte Young, many of
the Supreme Court’s cases, including Coeur d’Alene Tribe,
would have been wrongly decided.
Moreover, the Supreme Court has recognized in cases
related to the political subdivisions of the states that alleging
a violation of federal law does not itself override the states’
interest in maintaining their sovereignty with respect to inter-
nal state conflicts. These cases demonstrate that the parties to
a dispute matter in deciding whether a federal forum is avail-
able.
To be specific, the Supreme Court has held repeatedly that
political subdivisions of states could not obtain relief under
federal law against the application of state statutes, even
where the political subdivisions claimed that the state laws in
question violated the federal constitution. See, e.g., Williams
v. Mayor of Balt., 289 U.S. 36 (1933); City of Trenton v. New
Jersey, 262 U.S. 182 (1923); Stewart v. City of Kansas City,
239 U.S. 14 (1915); Hunter v. City of Pittsburgh, 207 U.S.
161 (1907); see also Rogers v. Brockette, 588 F.2d 1057,
1067-68 (5th Cir. 1979) (collecting additional cases). In City
of Trenton, for example, Trenton challenged—under the Con-
tract Clause and the Fourteenth Amendment—a New Jersey
statute imposing a fee on the city for withdrawing water from
the Delaware River. See 262 U.S. at 183-84. The Supreme
18 VIRGINIA v. REINHARD
Court rejected the challenge because Trenton, as a "creature
of the State . . . subject to the sovereign will" could not "in-
voke such restraints upon the power of the State." Id. at 187-
88. And in Williams, the Supreme Court rejected a challenge
brought by the cities of Baltimore and Annapolis on constitu-
tional grounds against a Maryland statute, holding that "[a]
municipal corporation, created by a state for the better order-
ing of government, has no privileges or immunities under the
federal constitution which it may invoke in opposition to the
will of its creator." 289 U.S. at 40.
Sovereign immunity was not at issue in these political sub-
division cases. See, e.g., City of Trenton, 262 U.S. at 183 (suit
brought by state against city in state court); Williams, 289
U.S. at 39 (state itself not a party). But these decisions are
nonetheless relevant to our sovereign immunity inquiry
because the Court made clear that, even in the presence of an
alleged violation of federal law, the nature of the party mak-
ing the federal claim implicated the state’s interest in keeping
its internal authority intact. Moreover, the Court demon-
strated, consistently and emphatically, its unwillingness to
override the states’ control of their own internal disputes.
In keeping with this line of decisions, numerous circuit
courts have heeded the Supreme Court’s reluctance to adjudi-
cate intramural state conflicts and have therefore rejected fed-
eral suits by political subdivisions against their states. These
cases further demonstrate that the parties to an action, not
merely the nature of the claim, affect the state interests
involved. In Stanley v. Darlington County School District, 84
F.3d 707 (4th Cir. 1996), for example, we held that a local
school district could not bring a contribution claim under the
Fourteenth Amendment against the state because such an
exercise of federal court jurisdiction would be "an unfathom-
able intrusion into a state’s affairs." Id. at 716-17 (citing City
of Trenton, 262 U.S. at 186, 188; Hunter, 207 U.S. at 178-79);
see also, e.g., DeKalb County Sch. Dist. v. Schrenko, 109 F.3d
680, 689-90 (11th Cir. 1997); Harris v. Angelina County, 31
VIRGINIA v. REINHARD 19
F.3d 331, 339-40 & n.10 (5th Cir. 1994). And at least one cir-
cuit court has extended this reasoning to suits brought by state
entities, holding that a state university lacked standing to sue
a state board of education under the Fourteenth Amendment.
United States v. Alabama, 791 F.2d 1450, 1455-56 (11th Cir.
1986); see also Tex. Catastrophe Prop. Ins. Ass’n v. Morales,
975 F.2d 1178, 1181 (5th Cir. 1992) (observing that "a state
agency has no constitutional rights to assert against the state
that created it").3
D.
VOPA also argues that denying it access to federal court
will lead to inconsistent application of substantive protections
for persons with disabilities. For example, VOPA claims that
"federal law [will] apply differently" in different jurisdictions
because private protection and advocacy systems in other
states, unlike VOPA, will be able to sue state officials in fed-
eral court. Brief for Appellee at 13. VOPA also argues that,
within Virginia, disabled persons in public facilities will "not
enjoy the same protections under federal law" as disabled per-
3
Some of these decisions, like United States v. Alabama, rely on the
concept of standing (not sovereign immunity) to reject federal court juris-
diction over internal state disputes. See also, e.g., City of S. Lake Tahoe
v. Cal. Tahoe Reg’l Planning Agency, 625 F.2d 231, 232-34 (9th Cir.
1980) (holding that a city lacked standing to bring constitutional claims
against a political subdivision for injunctive and declaratory relief). But
see, e.g., Rogers v. Brockette, 588 F.2d 1057, 1070 (5th Cir. 1979) (inter-
preting City of Trenton and Hunter to hold on the merits, rather than as
a matter of standing, that "the Constitution does not interfere with a state’s
internal political organization"). These cases thereby suggest yet another
potential bar against entertaining VOPA’s suit in federal court, as it is not
clear that VOPA has the requisite standing to sue. Because this appeal
arises under the collateral order doctrine, however, we need only address
the issue of sovereign immunity and need not decide whether VOPA has
standing. See Rux v. Republic of Sudan, 461 F.3d 461, 467 & n.1, 475-76
& n.8 (4th Cir. 2006); Lewis v. N.M. Dep’t of Health, 261 F.3d 970, 974
& n.1 (10th Cir. 2001); Summit Med. Assocs., P.C. v. Pryor, 180 F.3d
1326, 1334-36 (11th Cir. 1999).
20 VIRGINIA v. REINHARD
sons in private facilities if VOPA cannot sue the state officials
in federal court. Id.
These concerns are illusory. The state officials concede,
and VOPA does not dispute, that VOPA may bring this suit
in state court and obtain the same relief that it seeks here.
Specifically, the parties agree that at a minimum Virginia’s
sovereign immunity would not bar an original action by
VOPA for a writ of mandamus brought in the Virginia
Supreme Court. And in such a suit, the Supremacy Clause
requires Virginia courts to enforce federal law. U.S. Const.
art. VI, cl. 2; Testa v. Katt, 330 U.S. 386, 389, 391, 394
(1947); Printz v. United States, 521 U.S. 898, 928-29 (1997).
VOPA is therefore incorrect to argue that our decision will
cause any discrepancies in the application of substantive fed-
eral law. Moreover, the Supreme Court has the authority to
review decisions by state courts on matters of federal law
without regard to sovereign immunity. McKesson Corp. v.
Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18, 30-31
(1989).
VOPA suggested at oral argument that it would be more
expedient to seek relief in federal rather than state court. But
the purpose of our federal system is not "administrative con-
venience." Fed. Mar. Comm’n v. S.C. State Ports Auth., 535
U.S. 743, 769 (2002). Rather, dual sovereignty is meant to
protect our "fundamental liberties," and sovereign immunity
serves to maintain the essential federal-state balance. Id.
(quoting Atascadero, 473 U.S. at 242).
E.
Finally, VOPA argues that denying it access to federal
court based on Virginia’s sovereign interests is inconsistent
with state law. VOPA points out that Virginia law designates
VOPA as an independent agency. For example, VOPA oper-
ates independently of the Office of the Attorney General in
Virginia and can retain its own legal counsel. Because Vir-
VIRGINIA v. REINHARD 21
ginia has exercised its sovereignty in making VOPA an inde-
pendent entity under state law, VOPA suggests that Virginia
cannot invoke its sovereign interests to complain when VOPA
uses that independence to sue Virginia’s officials in federal
court under Ex parte Young.
This argument is erroneous. While Virginia did grant
VOPA some independence under state law, that limited inde-
pendence in no way implies that Virginia granted VOPA the
authority to sue the Commonwealth or its officials in federal
court. Indeed, VOPA does not point to any provision of state
law to that effect. "A State’s constitutional interest in immu-
nity encompasses not merely whether it may be sued, but
where it may be sued." Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984). Thus, we interpret
VOPA’s independence to suggest only what the state officials
have conceded in this case—that VOPA can bring this suit in
state court.
Furthermore, VOPA’s argument based on its independence
has the problem of being potentially limitless. Many other
state entities have features of independence. For example, the
State Corporation Commission in Virginia is a state agency
that also has the authority to hire its own legal counsel outside
of the Attorney General’s office. See Va. Code Ann. § 12.1-
18. And public universities in Virginia are governed by
boards that have the same powers as corporations and that are
subject to the control of the General Assembly. See, e.g., Va.
Code Ann. § 23-69 (University of Virginia); Litman v.
George Mason Univ., 186 F.3d 544, 547 (4th Cir. 1999). If
we were to adopt VOPA’s position, these state entities and
countless others might suddenly possess the authority to pur-
sue Ex parte Young actions against other state officials. After
all, nearly every state agency receives federal funding and
must comply with federal law of some sort, so under VOPA’s
argument, nearly every state agency would be subject to an Ex
parte Young suit by another supposedly independent arm of
the state. As we have learned from experience, an exception
22 VIRGINIA v. REINHARD
like the one VOPA proposes, given time, tends to expand far
beyond its original scope. There is no telling where that
expansion might end here, and we are not disposed to find
out.
VI.
VOPA’s argument ultimately boils down to the claim that,
if VOPA is to maximize its effectiveness in representing the
federal rights of persons with disabilities and mental illnesses,
VOPA should be able to bring this suit in federal court. We
express no view on that claim. We hold only that, because
VOPA is a state agency, Ex parte Young is the improper vehi-
cle for VOPA to gain access to a federal forum. This holding
in no way limits the scope of Ex parte Young for private
plaintiffs. We also do not hold that Congress lacks the author-
ity to grant VOPA access to federal court—indeed, Congress
could attempt to abrogate the states’ immunity from suit or
seek a waiver of that immunity in return for federal funds.
And for now, VOPA can enforce federal law in state court,
where we have no reason to think that VOPA will not find a
just resolution of its claims. However, allowing a state’s offi-
cials to be called before a federal court by one of the state’s
own agencies, without notice or consent, cannot be reconciled
with the separate sovereignty of the states. And expanding Ex
parte Young to permit a suit in these circumstances cannot be
reconciled with the "real limitation[s]" of the doctrine of sov-
ereign immunity. Idaho v. Coeur d’Alene Tribe of Idaho, 521
U.S. 261, 270 (1997). The judgment of the district court is
therefore reversed, and the case is remanded with directions
to dismiss it.
REVERSED AND REMANDED