Constitutional Law - State Sovereign Immunity - Fifth Circuit Bars Challenge to Statutes' Constitutionality in Interlocutory Appeal Reviewing Denial of State Sovereign Immunity

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Ever since the concept of state sovereign immunity entered the constitutional realm, (1) courts have struggled to balance the "sovereign interests of the State" with "the supremacy of federal law." (2) The doctrine of Ex parte Young (3) carves an exception out of Eleventh Amendment jurisprudence, allowing prospective relief against a state official engaged in an ongoing violation of valid federal law. (4) Recently, in McCarthy ex rel. Travis v. Hawkins, (5) the Fifth Circuit held that state officials could not contest on interlocutory appeal the constitutionality of the federal statutes on which an Ex parte Young denial of state sovereign immunity was premised. (6) In denying interlocutory review of the statutes' constitutionality, the court unnecessarily endangered a state's right to immunity from suit and disregarded the "principles of federalism that inform Eleventh Amendment doctrine." (7)

Pursuant to federal law, Texas administers several Medicaid waiver programs (8) and is reimbursed with federal funds for certain expenses incurred in offering medical and other "services for disabled individuals who would otherwise require institutional care." (9) Twenty-one mentally disabled Texas residents filed a class action suit to compel three state officials to grant them access to the programs. (10) The suit alleged discrimination and wrongful denial of access in violation of the Fourteenth Amendment, (11) several provisions of the federal Medicaid statute, (12) Title II of the Americans with Disabilities Act (13) (ADA), and section 504 of the amended Rehabilitation Act. (14)

The district court dismissed the plaintiffs' claims under the Fourteenth Amendment and the Medicaid statute--except for the plaintiffs' claim premised on the due process provision of the Medicaid statute (15)--for failure to state a claim. (16) Under the Ex parte Young doctrine, the court denied the officials' motion to dismiss the remaining charges. (17) The officials filed an interlocutory appeal (18) challenging the denial. (19)

The Fifth Circuit affirmed. (20) Writing for the majority, Chief Judge King concluded that the Ex parte Young doctrine enabled suits against state officers to proceed under Title II of the ADA. (21) Moreover, the court held that the officials' challenge to the constitutionality of Title II of the ADA and section 504 of the Rehabilitation Act was, at that stage, improper for review because it was "irrelevant to the question whether Texas's Eleventh Amendment immunity from suit ha[d] been infringed." (22) In discussing the constitutionality challenge, the court relied heavily on Verizon Maryland Inc. v. Public Service Commission, (23) which held that "the inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim." (24) The court stressed that "analyzing the applicability of the Ex parte Young exception should generally be a simple matter," (25) whereas the "resolution of the constitutional questions" would be a mere defense to liability, not reviewable in an interlocutory appeal. (26) The court noted that the constitutionality of the statutes could be reviewed on appeal from the final judgment and that a finding of unconstitutionality would not constitute "a determination that the Ex parte Young exception is inapplicable." (27)

Judge Emilio M. Garza concurred in part and dissented in part. (28) Judge Garza argued that considering "the constitutionality of the federal law underlying a plaintiff's Young suit" was proper and necessary in an interlocutory appeal. (29) He noted that the "justification for the Young exception is not present" when there is no valid federal right to vindicate, (30) a determination that depends on "whether the federal law underlying the Young suit is constitutional. …


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