The Eleventh Circuit's Misguided "Arm-of-the-State" Analysis in Pellitteri v. Prine
Asher Lipsett
alipsett1@student.gsu.edu
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The Supreme Court has determined that the Eleventh Amendment to the United States Constitution exemplifies a greater principle of state sovereign immunity that extends beyond the plain text of the Amendment. When agents and instrumentalities of a state are sued and claim sovereign immunity, courts examine whether these "arms of the state" exercise state power to such an extent that they are entitled to Eleventh Amendment immunity. Because the Supreme Court has failed to articulate a clear test for determining whether an entity acts as an arm of the state, the Circuit Courts of Appeal have fashioned their own tests coalesced around several factors.
The Eleventh Circuit first spelled out its arm-of-the-state test in the 2003 case of Manders v. Lee. The Eleventh Circuit examines whether an entity acts as an arm of the state in the specific function at issue in each case. In 2012, the Eleventh Circuit, using its Manders test, held that a Georgia sheriff did not act as an arm of the state when terminating employees. Curiously, in the 2015 case Pellitteri v. Prine,
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the Eleventh Circuit changed its mind—it held that the same Georgia sheriff's office with the same sheriff acted as an arm of the state when exercising the same power to hire and fire employees.
This Comment examines the evolution of sovereign immunity doctrine in the United States and discusses the Eleventh Circuit's arm-of-the-state analysis in Manders and Pellitteri. This Comment then argues that the Eleventh Circuit's decision in Pellitteri was wrong and proposes alternatives for how the court could arrive at its original, correct decision—a Georgia sheriff does not act as an arm of the state when making day-to-day employment decisions.
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Abstract................................................................................535
Introduction.........................................................................538
I. Background......................................................................541
A. Sovereign Immunity at the Founding.........................541
B. chisholm v. Georgia .................................................. 544
C. The Eleventh Amendment and Ensuing Jurisprudence ....................................................................................546
II. Analysis...........................................................................549
A. The Arm-of-the-State Factors Generally....................550
B. The Eleventh Circuit's Manders Analysis..................552
C. Pellitteri v. Prine........................................................556
III. Proposal.........................................................................559
A. Employment Decisions Lie Outside of Sheriffs' State-Empowered Law Enforcement Functions................... 560
1. The Sheriff Is Not a State Entity by Virtue of the Georgia Constitution, Georgia Statutes, and Georgia Case Law ................................................ 560B. The Court's Analysis Should Mirror the Twin Aims of the Eleventh Amendment ............................................ 564
2. Manders Is Best Read to Accord Eleventh Amendment Immunity to Sheriffs in Their Execution of Traditional Law Enforcement Duties ............... 562
Conclusion............................................................................567
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Upon ratifying the United States Constitution in 1788, the Framers "split the atom of sovereignty" to create a novel system of governance called federalism, in which the state and national political spheres would be "each protected from incursion by the other."1 More than two hundred years later, the American legal system continues to grapple with the fallout from that political fission reaction; courts must determine if they can entertain claims brought against either the federal "sovereign" or the state "sovereign" because sovereign immunity is accorded to both players in the federal system.2 Historians, legal scholars, and jurists have produced an immense amount of commentary on sovereign immunity in the United States since the founding of the country, and this Comment will focus on one narrow
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facet of sovereign immunity—Eleventh Amendment immunity as it applies to an "arm of the state."3
An arm of the state can be characterized as any agent or instrumentality of a state that operates as a de facto alter ego and is thus accorded the state's Eleventh Amendment immunity.4 Because states (and their arms by extension) are able to employ Eleventh Amendment immunity as an absolute jurisdictional bar to suit, defendants make frequent use of the immunity defense to avoid litigating the actual merits of the case.5 All manner of state agencies and instrumentalities in every circuit have attempted to bring an Eleventh Amendment immunity defense.6
Despite the power and popularity of such a defense, the supreme court has provided only general guidance as to how a lower court might investigate a defendant's claim that the party is essentially the state even though the state is not mentioned by name in the suit.7 The
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Court can examine "the essential nature and effect of the proceeding," the "nature of the entity created by state law," and if "the action is in essence one for the recovery of money from the state" to make the arm-of-the-state determination.8 Following these guidelines, federal circuit courts generally make use of the following factors to conduct their analyses: state-law definitions of the entity, entity autonomy, entity powers, and entity funding.9 In Manders v. Lee, the Eleventh Circuit first clearly delineated its unique version of the circuit courts' general factors used to make an arm-of-the-state determination: (1) how state law defines the entity; (2) what degree of control the state maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity.10
In 2015, the Eleventh Circuit decided Pellitteri v. Prine, holding that a county sheriff in the State of Georgia "acts as an 'arm of the State' when exercising his power to hire and fire the deputies that enforce the laws of Georgia on his behalf," and is thus accorded Eleventh Amendment immunity against the plaintiff's claims brought under 42 U.S.C. § 1983 and the Americans with Disabilities Act (ADA).11 This was certainly a puzzling judicial reversal—just three years earlier, in
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the unpublished decision of Keene v. Prine, the same court held that the same Georgia sheriff's office (with the same sheriff) did not act as an arm of the state when exercising the same power to hire and fire deputies.12 Pellitteri thus explicitly overruled Keene, and the court explained in its second opinion that it made sure it got the arm-of-the-state determination correct on the second attempt.13
This Comment seeks to illustrate how the court's decision in Pellitteri was incorrect, setting a dangerous precedent for plaintiffs who bring similar civil rights and employment discrimination claims against purported arms of the state. Part I reviews the history of sovereign immunity in the United States and Eleventh Amendment jurisprudence since the amendment's 1795 ratification.14 Part II discusses the arm-of-the-state doctrine and examines the Pellitteri decision in the context of the Eleventh Circuit's Manders factors.15 Part III argues that the court erred in its arm-of-the-state analysis in Pellitteri and provides alternative frameworks that the court could use to correct itself once again.16
To understand the current reasons for and effects of arm-of-the-state analyses, it is important to trace the origin and development of sovereign immunity doctrine in the United States since the Founding.
A. Sovereign Immunity at the Founding
Justice oliver Wendell Holmes Jr. once reasoned that "[a] sovereign is exempt from suit, not because of any formal conception or obsolete
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theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends."17 Prior to the Revolutionary War, the King of England served as the sovereign that made the law in the American Colonies, and the Founders necessarily responded to a long line of English common law that declared the sovereign (the King) as the ultimate rulemaking authority who, legally speaking, could do no wrong.18
When the colonies revolted and gained independence from a unitary sovereign, the Framers took to the task of establishing a new national government (after the Articles of Confederation failed spectacularly).19 The Framers debated the nature and scope of the new founding document known as the Constitution.20 of particular note was Article III, which established the judicial branch of the federal government.21 Despite the apparent holdover of English common-law
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sovereign immunity in the new country, Article III, Section Two extends the judicial power "to Controversies . . . between a State and Citizens of another State" and "between a State . . . and foreign . . . Citizens."22 A plain reading of Article III thus suggests that federal courts (at the time of the Founding, the Supreme Court only) surely had original jurisdiction over suits between a state and out-of-state citizens. Yet some ratification debates at the time centered around the prospective overreach of the clause and its incompatibility with state sovereign immunity.23
The Antifederalists cried foul that such suits would subject states to the litigious whims of the people so that the...
