States, as defendants, cannot be sued in federal court on the basis of either federal question claims or state law absent explicit congressional abrogation of the states’ Eleventh Amendment sovereign immunity rights in the text of the federal statute, or a specific indication in a state statute or constitution that the state consents to be sued. The recent case of Atascadero State Hospital v. Scan-Ion holds that congressional abrogation of Eleventh Amendment immunity must be “unmistakably clear in the language of the [federal] statute.” If not, every citizen suit authorized by federal law is potentially subject to dismissal. Additionally, the Court’s requirement that a state waiver be “specifically indicate[d]” in state constitutional or statutory provisions has eliminated the possibility of finding implied waivers from other state sources (e.g., waiver of tort or contract immunity), none of which specifically confer federal court jurisdiction.
The impact of the Atascadero “express waiver-abrogation” re-quirement probably is not yet fully appreciated by the bar, the courts, Congress, or state legislatures. Therefore, this article focuses on the practical effects of Atascadero and suggests remedial measures for restoring citizen enforceability of federal law against the states. Absent such measures, which involve amendment of existing federal statutes or convincing states to waive their immunity, a number of lawsuits brought by private parties for damages and equitable relief will be subject to dismissal upon motions by either state defendants” or sua sponte by the courts. The impactvof the Atascadero holding is further displayed by two charts to be found in the Appendix. One contains a list of federal statutes enforceable by citizen plaintiffs against state defendants; and the other contains existing state constitutional and statutory provisions relating to sovereign immunity. Also analyzed are previous federal court decisions which found congressional abrogation or state waiver in circumstances that would conceivably no longer suffice under the requirements now imposed by Atascadero.
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