State Sovereign Immunity in Administrative Adjudication
Pulliam, Jessica A., Texas Law Review
State Sovereign Immunity in Administrative Adjudication^
Recent Supreme Court decisions extending states' Eleventh Amendment immunity from suit have foreclosed many avenues for private plaintiffs seeking to enforce federal law against the states.1 Under the Court's state-sovereign-immunity doctrine, nonconsenting states are constitutionally protected from suit by private plaintiffs in both federal and state courts.2 Exceptions to sovereign immunity provide limited options for plaintiffs seeking to hold states accountable under federal law, but these options have been narrowly construed.
The expansion of state sovereign immunity has provided plaintiffs and scholars impetus for exploring uncharted areas in sovereign-immunity law in search of opportunities to circumvent the doctrine.3 One such area is suits against states before an administrative agency. Administrative agencies may provide a forum for plaintiffs to bring actions for recovery of damages or to bring claims for injunctive relief directly against a state.4 But the Supreme Court recently granted certiorari in a case that questions whether states retain their sovereign-immunity rights in administrative adjudications.5
In the case pending before the Court, a private plaintiff brought a claim for prospective and retrospective relief against a South Carolina agency
before the Federal Maritime Commission (FMC).6 Federal law creates a cause of action for plaintiffs before the FMC, but because the FMC's orders-as with many agency orders-are not self-executing, the plaintiff must seek enforcement before an Article III court.7 Federal law also grants the Attorney General of the United States the power to enforce FMC orders for prospective relief benefiting a private plaintiff.8 One could easily imagine a statute authorizing the United States to enforce both prospective and retrospective awards on behalf of private plaintiffs.
A plaintiff seeking to enforce an agency's order against a state will face two hurdles. First, courts must address whether state sovereign immunity extends to claims against states by private plaintiffs before administrative agencies. Second, courts must address whether the private plaintiff or the United States may constitutionally enforce any agency order resulting from such a suit. This Note primarily addresses the first hurdle, the constitutionality of a private suit brought directly against a state before an administrative agency.
Two large and complex bodies of case law-the Court's extensive state-- sovereign-immunity jurisprudence and the Court's cases analyzing the constitutionality of non-Article III judicial tribunals-comprise the precedent relevant to whether private plaintiffs may bring claims directly against states before administrative agencies. Traditionally, state-sovereign-immunity law has asked whether a state is immune from suit in federal courts exercising Article III judicial power.9 The issue of immunity before an administrative agency seems to raise additional questions: Do administrative agencies exercise the judicial power? If not, does the doctrine of sovereign immunity apply? The Court has addressed the role of agency tribunals in cases concerning Congress's creation of Article I tribunals.10 It has developed a doctrine that seeks to balance administrative agency encroachment on the judiciary with Congress's interest in providing alternatives to suit in an Article III court.11 Addressing the issue of state immunity before administrative tribunals requires an examination of agencies' function in the constitutional system of tripartite government.
Part II of this Note reviews the doctrine of state sovereign immunity as it relates to the possibility of immunity before an administrative agency. An important aspect of this review of sovereign-immunity doctrine is an examination of the federalism values the Court has deemed pertinent in any
state-immunity inquiry. …