Virginia v. Reinhard

568 F.3d 110

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 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.

No. 08-1845.

United States Court of Appeals, Fourth Circuit.

Argued: March 24, 2009.

Decided: June 2, 2009.

ARGUED:

William Eugene Thro, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellants. Paul James Buckley, Virginia Office for Protection and Advocacy, Richmond, Virginia, for Appellee.

ON BRIEF:

Robert F. McDonnell, 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 General, Office of the Attorney General of Virginia, 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.

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 WILKINSON wrote the opinion, in which Senior Judge SILER and Judge CONRAD joined.

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 capacities. VOPA claims that the defendant state officials are violating 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, 28 S.Ct. 441, 52 L.Ed. 714 (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 funding to protection and advocacy systems that meet the requirements 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 Advocacy 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 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 dismiss 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 federal law. Specifically, the state officials argued that peer review records were privileged under Virginia law and that 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 dismiss 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 sovereign immunity, nor had Virginia waived its sovereign immunity against this action. However, the court agreed with VOPA that this suit satisfied the sovereign immunity exception of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (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, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Indeed, the "central purpose" of the sovereign immunity doctrine "is to `accord the States the respect owed them as' joint sovereigns." Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 765, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002) (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)). When the Constitution "split the atom of sovereignty," U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838, 115 S.Ct. 1842, 131 L.Ed.2d 881 (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, 122 S.Ct. 1864. 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, 111 S.Ct. 2578, 115 L.Ed.2d 686 (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, 119 S.Ct. 2240, 144 L.Ed.2d 636 (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, 122 S.Ct. 1864; Alden, 527 U.S. at 715-19, 119 S.Ct. 2240; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (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, 119 S.Ct. 2240.

Exceptions to the states' sovereign immunity do exist, however. See, e.g., Bragg v. W. Va. Coal Ass'n, 248 F.3d 275, 291-92 (4th Cir.2001). Three of those exceptions are pertinent 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, 116 S.Ct. 1114). 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...