In Raygor v. Regents of the University of Minnesota the Supreme Court considered the degree to which state sovereign immunity permits Congress to tamper with a state's management of its own judicial system. The decision provides a caveat for plaintiffs' attorneys who, when suing state instrumentalities in federal court, tag supplemental state law claims onto federal claims. There is a danger that if the federal court does not retain jurisdiction, the state law claims may wind up being untimely for refilling in state court.

The Raygor plaintiffs sued the University of Minnesota in the Federal District Court alleging age discrimination in violation of the Age Discrimination in Employment Act (the "ADEA") and the Minnesota Human Rights Act (the "MHRA"). The plaintiffs asked the court to take supplemental jurisdiction of the state law claims pursuant to 28 U.S.C. 1367(a). That statute provides in part:

The University moved to dismiss asserting the state's immunity to individual suits for money damages in federal court under the Eleventh Amendment to the Constitution. Three weeks after the University's motion was granted the plaintiff's re-filed their state law claims in Minnesota's Hennepin County District Court. Although the state court filing was untimely under Minnesota law the plaintiffs sought to avail themselves of the benefits of 28 U.S.C. § 1367(d). Under that section of the statute:

The period of limitation for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled for 30 days after it is dismissed unless State law provides for a longer tolling period.

The Supreme Court held in Raygor that the tolling provision of the supplemental jurisdiction statute was not effective to extend Minnesota's period of limitations for filing an MHRA suit. The Court opined that the question of whether a federal statute tolls the limitations provided by state law for suits against the state abrogates state sovereign immunity "...raises a serious constitutional doubt." The Court held that the statute did not manifest the clear intent of Congress to abrogate a state's limitations period. Such a clear showing of the necessary intent is a prerequisite to effect abrogation of state Eleventh Amendment immunity. The Court applied this principal to the tolling statute. In determining that Congress had not made a clear showing the Court pointed out that the reference to "any claim" in section 1367(d) is too general to include claims against states. More specific language is necessary for Congress to impinge on state sovereignty. The Court also noted that by its specific language section 1367(a) only allows for supplemental jurisdiction in cases where a district court has original jurisdiction. Sections 1367(b) and (c) provide for a number of situations where a district court either must or may decline to take jurisdiction. The Court found this fact to make it unclear whether Congress meant to toll cases dismissed on Eleventh Amendment grounds. It reasoned that this lack of clarity deprived 1367(d) of the clear intent necessary to encroach on state immunity.

The Raygor decision adds a chapter to the volume of the history of American federalism that opened with Seminole Tribe of Florida v. Florida. In Seminole Tribe of Florida a narrow five to four majority of the Supreme Court began illuminating an heretofore not fully explored view of federalism as embodied in the Eleventh Amendment. The majority observed that in order for Congress to enact a statute that grants a right on the part of a private individual to sue a state in a federal court it must clearly indicate its intent to do so in the wording of the enactment. It must also act under an appropriate Constitutional grant of power. In reversing the plurality opinion in Pennsylvania v. Union Gas Co. the Court held that the Indian Commerce Clause, and by inference the Commerce Clause, did not give Congress the power to override a state's Eleventh Amendment immunity to suit in federal court.

When applying the holding in Seminole Tribe of Florida the courts look to City of Boerne v. Flores. In Boerne the court found the Religious Freedom Restoration Act (RFRA) to be an unconstitutional application of Congress' power under Section 5 of the Fourteenth Amemdment. That case grew out of a suit to bypass a city's zoning ordinance and obtain a building permit to allow the expansion of a church. The plaintiff contended that RFRA's prohibitions against government interference with religious exercise barred the city from denying the building permit. In finding RFRA unconstitutional the Court held that when Congress enacts remedial measures there must be a "... proportionality or congruence between the means adopted and the legitimate ends to be achieved." That proportionality was found to be lacking in Borne.

In Seminole Tribe of Florida the Court observed that other than in the overturned Union Gas case the only section of the Constitution that has been found to permit Congress to override states' Eleventh Amendment immunity to suits by individuals is Section 5 of the Fourteenth Amendment. In Fitzpatrick v Bitzer, a Title VII sex discrimination action by male employees against the state of Connecticut, the Court held that state immunity to that action was abrogated by section 5 of the Fourteenth Amendment.

In the recent past the same five to four majority of the Court has decided in other cases that certain employment laws were ineffectual to override state Eleventh Amendment immunity to suits by individuals. In Alden v. Maine the Court ruled that Congress does not have the power under the Supremacy Clause to require state courts to hear Fair Labor Standards Act (FLSA) cases where the state has not waived its immunity. As it later did in Raygor, the Court inhibited Congress' ability to interfere with a state's judicial administration. The decision did not deal directly with immunity of states to FLSA suits by individuals in federal courts, but the reasoning of the five to four majority left little doubt that it would find that states' immunity is not abrogated by the FLSA. The majority opinion observed that "Congress cannot abrogate the States'sovereign immunity in federal court; were the rule to be different here, the National Government would wield greater power in state courts than in its own judicial instrumentalities."

The same five to four majority also found that states are not subject to federal court suits by individuals under the ADEA in Kimel v. Florida Board of Regents. The majority ruled that the ADEA did not pass the Boerne "congruence and proportionality" test. The Court reasoned that "...the substantive requirements the ADEA imposes on state and local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act." In another five to four decision, Board of Trustees of the University of Alabama v. Garrett, the Court held that an individual could not maintain an action for money damages against a state in federal court under Title I of the Americans With Disabilities Act ("Title I" and the "ADA"). The court found that Congress had not demonstrated a history of unconstitutional state discrimination against the disabled on which legislation under section 5 of the Fourteenth Amendment must be based.

In considering state immunity from actions under federal statutes such as the FLSA, the ADEA and the ADA there are at least two important principals to take into account. First, the language of the Eleventh Amendment immunizes states to suits "...by Citizens of another State." (emphasis supplied) This limitations applies only to individuals. The Eleventh Amendment does not say that Congress is barred from regulating states in these activities. Neither does it bar an FLSA suit against a state instrumentality by the Secretary of Labor. It does not prohibit an ADEA or ADA suit against a state by the EEOC. Second, the Eleventh Amendment has been construed to prohibit only individual actions for money judgements against states. It does not prohibit a suit by an individual for prospective injunctive relief. In Ex Parte Young, a suit brought by individuals, the Court allowed an injunction action against officials of the state of Minnesota to prohibit their enforcing an unconstitutional order of a state agency.

Although recent cases have buttressed the concept of states' Eleventh Amendment immunity to suits in federal court it is possible for a state to waive that immunity. Minnesota has unquestionably waived its immunity to claims under the MHRA. However in the Raygor case below the Minnesota Supreme Court held that the waiver was applicable only in the state's own court. There was no waiver of immunity to suits in federal court. Like Minnesota in the MHRA, Florida has waived state immunity to actions under the Florida Civil Rights Act, (the "FCRA"). In a two to one decision, Blinn v. Florida Department of Transportation, Florida's First District Court of Appeal held that 1367(d) tolled the limitations period where the plaintiff voluntarily dismissed a federal court action against a state agency and then re-filed in state court. The court found that the Supremacy clause gave Congress the power to preempt the state limitations law in 1367(d). It is an open question whether this waiver will be held applicable only to suits in Florida courts rather than a waiver of immunity to federal court suits in the light of Raygor.

With the current composition of the Supreme Court we can expect a continuing expansion of states rights by application of the Eleventh Amendment. In the meantime beware of limitations applicable to supplemental state law claims filed against state instrumentalities in federal court.

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