* LL.M. (Environmental Law), 1998, The George Washington University School of Law; J.D.; 1976, Louis D. Brandeis School of Law, University of Louisville; B.A., 1969, Duke University. Mr. Whalin previously held senior staff positions with the U.S. House of Representatives (1978–95) and is currently employed with the Social Security Administration. He also served as Assistant Attorney General of Kentucky (1977–78), where he engaged in appellate practice in the Kentucky and Federal courts. The analysis and opinions expressed in this article are those only of the author and should not be attributed (directly, indirectly, or inferentially) to any other person or organization (including the Social Security Administration) in the Executive Branch of the United States. This article is dedicated to the memory of Sharon Kaye (Cher) Brooks, 1947–1999, J.D. (1974), B.A. (1970), University of California, Berkeley, who fought against racial discrimination (the Ku Klux Klan burned a cross in her yard in North Carolina) and sexual discrimination and harassment, and fought for equal opportunity and economic security for all in our Nation. Cher made our land a better place during her journey here. A Pin Oak was planted in Cher’s memory on the grounds of the U.S. Capitol on August 6, 1999.
1 See Alden v. Maine, 119 S. Ct. 2240, 2246 (1999); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2224 (1999); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2205 (1999); Erwin Chemerinsky, Permission to Litigate: Sovereign Immunity Lets States Decide Who Can Sue Them, 85 A.B.A. J. 42 (1999); Marcia Coyle & Harvey Berkman, Back to Antebellum Federal Relations, Say Some Critics of Rulings, Nat’l L.J., July 5, 1999, at A1.
2 517 U.S. 44, 76 (1996) [hereinafter Seminole Tribe III].
3 See U.S. Const. amend. XI. “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Id.
4 See Biographical Directory of the United States Congress 1774–1989, S. Doc. No. 100–34 (U.S. G.P.O. 1989) at 729. Mr. Calhoun, 1782–1850, a native of South Carolina, as well as a lawyer and graduate of Yale College, served as a member of the U.S. House of Representatives (1811–17), a member of the U.S. Senate (1832–43 and 1845–50), Secretary of War (1817–25), Secretary of State (1844–45), and Vice President (1825–32). See id.
5 See John Niven, John C. Calhoun and the Price of Union 179 (1988). The “Nullification Doctrine” asserted that a state could nullify an act of Congress (or other federal intrusion) with which it disagreed and first came to prominence as a means of opposing the Jacksonian “tariff of abominations.” See id. Nat Turner’s rebellion in 1831 caused Calhoun to begin to assert this doctrine as a means of preserving slavery. See id. At the heart of this shift was a Southern “fear” that the industrialized North would insist on emancipation of the slaves and the creation of this “constitutional” doctrine was a means of preventing this from occurring from the federal level. See id. at 197. The Calhounian doctrine had at its heart the view that the Constitution was derived from the people but that the states as corporate bodies were the sole representatives of the people. See id. at 196. The contrary position, expounded most notably by Senator Daniel Webster and Chief Justice Marshall, also viewed the people as sovereign but did not interpose the states between the people and the Constitution. See id. This contrary view, together with the Hamiltonian doctrine of implied powers, functioned to establish the federal government as the representative of the people. See id. at 196–97.
6 See 25 U.S.C. §§ 2701–2721 (1994); Seminole Tribe v. Florida, 801 F. Supp. 655, 656 (S.D. Fla. 1992) [hereinafter Seminole Tribe I]. The Indian Gaming Regulatory Act was enacted pursuant to the Indian Commerce Clause, which required good faith negotiations and authorized an action in federal court against a state to compel performance. See U.S. Const. art. I, § 8, cl. 3; 25 U.S.C. §§ 2701–2721; Seminole Tribe III, 517 U.S. at 51–52.
7 See Seminole Tribe III, 517 U.S. at 51–52.
8 See Seminole Tribe I, 801 F. Supp. at 657.
9 See Seminole Tribe III, 517 U.S. at 55.
10 See Seminole Tribe I, 801 F. Supp. at 663.
11 See Seminole Tribe v. Florida, 11 F.3d 1016, 1020 (11th Cir. 1994) [hereinafter Seminole Tribe II].
12 See id. at 1018.
13 See id. at 1024.
14 See id. at 1028.
15 See id. at 1025.
16 See Seminole Tribe I, at 1028–29 (citing Ex parte Young, 209 U.S. 123 (1908)). The Ex parte Young doctrine is discussed separately in Section II.
17 Seminole Tribe III, 517 U.S. at 53.
18 See id. at 46.
19 See id. at 55 (citing Green v. Mansour, 474 U.S. 64, 68 (1985)).
20 Id.
21 See id. at 57.
22 Seminole Tribe III, 517 U.S. at 58 (citing Green, 474 U.S. at 68).
23 See id.
24 See id. (citing Cory v. White, 457 U.S. 85, 90 (1982)).
25 See id. (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48 (1994)).
26 See id.
27 See Seminole Tribe III, 517 U.S. at 58.
28 See id. at 58–59.
29 See id. (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246–47 (1985)).
30 See id.
31 U.S. Const. amend. XIV, §§ 1, 5.
32 See Seminole Tribe III, 517 U.S. at 59.
33 See id. at 60.
34 See id.
35 See id. at 63 (citing Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)).
36 U.S. Const. art. I, § 8, cl. 3.
37 See Seminole Tribe III, 517 U.S. at 63. The majority refers to the “plurality” opinion in Union Gas. See id.
38 See id. at 65.
39 See id.
40 See id.
41 See id. at 65–66.
42 See Seminole Tribe III, 517 U.S. at 66.
43 See id.
44 See id.
45 See id. (citing Parden v. Terminal Ry., 377 U.S. 184, 197–98 (1964)).
46 See id. at 72.
47 See Seminole Tribe III, 517 U.S. at 72.
48 See id. at 73.
49 See id.
50 209 U.S. 123 (1908).
51 See Seminole Tribe III, 517 U.S. at 73.
52 See id. at 75–76.
53 See id. It is worth noting that the Seminole Tribe subsequently began conducting gaming operations. See Seminole Tribe II, 181 F.3d at 1239. Florida sued, but their claim was dismissed under a doctrine of Indian sovereign immunity. See id. at 1245. Florida’s contention of the Tribe’s constructive waiver of its immunity was also unsuccessful. See id. at 1242–43. An Ex parte Young-type action was barred as was an implied cause of action. See id. at 1248–49.
54 See Seminole Tribe III, 517 U.S. at 76–100.
55 See id. at 85–100.
56 Id. at 78.
57 See id. at 98.
58 Id. at 100.
59 See Seminole Tribe III, 517 U.S. at 102.
60 See id. at 185.
61 See Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201–219 (1994). An aggrieved employee may bring an action against a state or private employer in either state or federal court to obtain back pay illegally withheld as well as prospective relief to prevent future violations. See 29 U.S.C. § 216(b). The U.S. Department of Labor may also bring an action in federal court on behalf of aggrieved employees for back pay and prospective relief. See id. § 216(c).
62 See Alden v. Maine, 715 A.2d 172, 173 (Me. 1998) [hereinafter Alden I].
63 See id.; Mills v. Maine, No. 92–410–P–H, 1996 U.S. Dist. LEXIS 9985, at *7 (D. Me. July 3, 1996), aff’d, 118 F.3d 37 (1st Cir. 1997).
64 See Alden I, 715 A.2d at 172.
65 See id.
66 See id. at 174.
67 See id. at 175.
68 See id. at 176–79 (interpreting U.S. Const. art. IV).
69 See Alden v. Maine, 119 S. Ct. 2240, 2246 (1999) [hereinafter Alden II].
70 Id. at 2246–47.
71 See id. at 2247.
72 Id.
73 See id. at 2251.
74 See Alden II, 119 S. Ct. at 2255–56.
75 See id. at 2257.
76 The Court asserted that Will v. Michigan Department of State Police, 491 U.S. 58 (1989), stood for the proposition that 42 U.S.C. § 1983 did not create a cause of action against a state in that instance. See id. at 2257. Hilton v. South Carolina Public Railways Commission, 502 U.S. 197 (1991), was a stare decisis decision that found that states which entered the railroad business after the enactment of the statute at issue had impliedly consented to suit. See id. at 2257–58. The Court further explained that sovereign immunity was not raised in that case and was not authority to the contrary of this holding. See id. at 2258. Nevada v. Hall, 440 U.S. 410 (1979), stands for the proposition that a state may subject another state to a suit for damages in that state’s courts. See id. at 2258–59. Reich v. Collins, 513 U.S. 106 (1994), stands for the proposition that when a state appears to provide a post deprivation remedy for taxes collected in violation of federal law it cannot deny that remedy. See id. at 2259 (“in this context, due process requires that State to provide the remedy it promised”). Implicit in this explanation is that a state does not have to provide any remedy and may use its sovereign immunity to bar a vindication of federal rights. Howlett v. Rose, 496 U.S. 356 (1990), holds that “a state court could not refuse to hear a [42 U.S.C.] § 1983 case against a school board on the basis of sovereign immunity” because the school board has no basis to assert this immunity since it was not an arm of the state. See id. at 2259–60. Apparently it is permissible for Congress to commandeer a state’s court for vindication of federal rights so long as the defendant is not a state. See id. This appears to be somewhat logically inconsistent with the Court’s opinion.
77 See id. at 2260.
78 209 U.S. 123 (1908).
79 Alden II, 119 S. Ct. at 2263. The “Doctrine” of Ex parte Young is discussed in Section II, infra.
80 See id. at 2263–64. This is somewhat illogical in light of its approval of allowing Congress to require a state’s courts to hear federal question cases when the defendant is not the state. See id. at 2259–60. Again, it appears that it is permissible for Congress to commandeer a state’s courts for vindication of federal rights so long as the defendant is not a state. See id. This appears to be somewhat logically inconsistent with the majority opinion.
81 See id. at 2266.
82 See id.
83 See id. at 2267.
84 See Alden II, 119 S. Ct. at 2267.
85 See id.
86 See id. What constitutes a state or arm of the state is discussed at length in Section II.
87 See id. This is discussed in Section II as part of Ex parte Young.
88 See id. at 2267–68. The usefulness of this remedy is limited to the insurance policy carried. It may act to functionally preclude the affluent from holding state office. Will only the judgement-proof seek to hold office?
89 Alden II, 119 S. Ct. at 2268.
90 See id. at 2269.
91 See id. One group of commentators contends that congressional attempts to use the War Powers Clause to allow a private party to enforce a federal statutory right similar to this provision of the FLSA is barred by the Quartet. See Faculty, The Judge Advocate General’s School, TJAGSA Practice Note: USERRA Note, Army Law., Aug. 1999, at 52, 53 (Aug. 1999).
92 See Alden II, 119 S. Ct. at 2269–94.
93 Id. at 2294–95.
94 See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 919 F. Supp. 756, 757 (D.N.J. 1996).
95 15 U.S.C. § 1125(a) (1994).
96 See College Sav. Bank, 919 F. Supp. at 758. There was also a parallel action for patent infringement which is discussed in the next section. See id. at 757.
97See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 948 F. Supp. 400, 404 (D.N.J. 1996) [hereinafter College Sav. Bank I].
98See id. at 420–21.
99Id. at 413. The “arm of the state” doctrine which the court examined at length was not an issue before the Supreme Court. This doctrine is discussed at length in Section II.
100Id. at 416.
101 See id. at 426.
102See College Sav. Bank I, 948 F. Supp. at 427–28.
103See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353 (3d Cir. 1997) [hereinafter College Sav. Bank II]. The patent act part of the case proceeded on a separate appellate track and is the subject of the next decision to be discussed.
104College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2222 (1999) [hereinafter College Sav. Bank III].
105 See id.
106 See id. at 2224.
107 See id.
108 Id.
109 College Sav. Bank III, 119 S. Ct. at 2224.
110 See id.
111 Id. at 2224–25. Preventing false advertising prohibits a violator from intruding into one’s ability to market a product and make a profit as well as preventing an intrusion into the general public’s right to expend their funds without being deprived of their property by false advertising. Evidently, the deprivation of money by proscribed activity is not protected property.
112 See id. at 2225. Apparently, the asset is protected property, but the use of the asset is not protected. If the use is not protected, then what value does the asset practically have? Wasn’t this settled by the Statute of Uses in 1535? For a discussion of this Statute see, Avisheh Avini, Comment, The Origins of the Modern English Trust Revisited, 70 Tul. L. Rev. 1139, 1140, 1143–47 (1996).
113 See College Sav. Bank III, 119 S. Ct. at 2226.
114 See id. The Eighth Circuit held that submitting a proof of claim in a bankruptcy action by a state entity constituted a valid waiver of sovereign immunity by invoking the jurisdiction of the court. See In re Michael S. Rose, No. 98–3440, 1999 U.S. App. LEXIS 18481, at *12 (8th Cir. Aug. 9, 1999).
115See College Sav. Bank III, 119 S. Ct. at 2226.
116 Id. (citing Parden v. Terminal R. of Ala. Docks Dept., 377 U.S. 184 (1964)).
117 See id. at 2228.
118 See id. at 2226–28.
119 Id. at 2228, 2230.
120 See College Sav. Bank III, 119 S. Ct. at 2231. This was recently explicated in Entergy Arkansas, Inc. v. Nebraska, No. 98CV3411, 1999 U.S. Dist. LEXIS 14643 (D. Neb. Sept. 22, 1999), where the court found that the compact did not allow suits by private parties. The compact, however, explicitly allowed suits against Nebraska by the interstate entity. See infra, note 172 and accompanying text.
121 See College Sav. Bank III, 119 S. Ct. at 2231.
122 Id. The impact was immediate. A case of major impact in the telecommunications field was dismissed and the Court’s holding in AT&T Corp. v. Iowa Utilities Bd., 119 S. Ct. 721 (1999), of a few weeks prior was effectively rendered a nullity. See Wisconsin Bell, Inc. v. Public Serv. Comm’n of Wis., No. S99–2061, 1999 U.S. Dist. LEXIS 10884, at *5 (W.D. Wis. July 12, 1999).
123 See College Sav. Bank III, 119 S. Ct. at 2234.
124 See id.
125 See id.
126 See id. Although this article will subsequently discuss the impact of this quartet of decisions on environmental law, the implications in other areas should be obvious. States routinely participate in the interstate securities market by issuing and purchasing securities. Are they now immunized from being sued for fraud or other transgressions in the federal courts by private purchasers or sellers? If a state agrees to waive its immunity as part of an issuance of a security, may it subsequently withdraw that consent? Will a private party in such a transaction want to be limited to only being subject to the courts of the issuing state with all the dangers inherent in a locally elected (usually) judiciary? Will prudent purchasers of such securities demand an interest premium to cover the greater risk of having the federal courts’ doors closed as well as that of a state’s treasury?
127 See id. at 2238.
128 See College Sav. Bank III, 119 S. Ct. at 2238.
129 Id.
130 Id. at 2240.
131 See 35 U.S.C. § 296(a) (1994); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 948 F. Supp. 400, 420 (D.N.J. 1996) [hereinafter College Sav. Bank I].
132 See College Sav. Bank I, 948 F. Supp. at 422.
133 See id. at 423.
134 See id.
135 See id.
136 See id. at 425–26.
137 See College Sav. Bank I, 948 F. Supp. at 428.
138 See Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2202 (1999).
139 See id.
140 See id. at 2204.
141 See id. at 2204–05.
142 See id. at 2205.
143 Florida Prepaid, 119 S. Ct. at 2206 (citing City of Boerne v. Flores, 521 U.S. 507, 519 (1997)). It should be noted that the Court did not use any of the traditional Fourteenth Amendment analyses—i.e., strict scrutiny, rational basis, etc.—but instead used the “appropriate” standard. See id.
144 See id. at 2207.
145 See id.
146 See id. at 2207–08.
147 See id.
148 See Florida Prepaid, 119 S. Ct. at 2207–08. It is “clear” that this analysis will be applied to congressional Fourteenth Amendment enactments seeking to enforce Section 1 “due process” rights via its Section 5 authority, but does this presage a hunting license for the federal courts to question the basis of statutes and choices made by Congress enacted pursuant to Article I of the Constitution? Are the federal courts to replace the judgements made by Congress that a statute is necessary with a court’s judgement that there is inadequate evidence of a need for congressional action or that the congressional choice between alternatives was inappropriately made?
149 Id. at 2208. This appears to state that depriving one of a use of property is not a proscribed activity within the ambit of the Fourteenth Amendment under consideration. See id.
150 See id.
151 See id. at 2209. In footnote nine, the Court stated that in Florida an aggrieved party may seek payment from the legislature or a court action for “a takings or conversion claim.” See id. n.9.
152 Id. at 2210.
153 See Florida Prepaid, 119 S. Ct. at 2210.
154 Id. at 2211.
155 See id.
156 See id.
157 Id. at 2212–13.
158 See Florida Prepaid, 119 S. Ct. at 2214–16.
159 See id. at 2219.
160 See Mark Browning, States 3, Congress 0: Supreme Court Cases Have Major Bankruptcy Implications, 34 BCD News & Comment, July 26, 1999; Richard A. Kaplan, IP Issues Grab Supreme Court’s Attention, Chicago Daily Law Bull., July 26, 1999, at 6; Keith B. Letourneau, The Tide Is Rising; State Pollution Prevention Regulations in Question, Tex. Lawyer, July 12, 1999, at 31; Curt A. Levey, The Quiet Revolution: Conservatives Continue Federalism Resurgence by Expanding State Immunity, Legal Times, July 12, 1999, at S23; Stuart Taylor, Jr., Supreme Court Errs on States Rights, N.Y.L.J., July 26, 1999, at 2; High Court Rulings May Slow Employment, Other Discrimination Suits, 2 H.R. on Campus, July 29, 1999.
161 See Lincoln County v. Luning, 133 U.S. 529, 530 (1890); Moor v. County of Alameda, 411 U.S. 693, 717–21 (1973).
162 See Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 280 (1977).
163 See id.
164 See id.
165 Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 401 (1979).
166 See id. In this case, a state’s treasury was not directly liable. See id. at 402.
167 See id. at 401.
168 See id. at 401–02.
169 See id. at 402.
170 See Lake Country Estates, 440 U.S. at 402.
171 Id.
172 See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 43 (1994). The “other side” of this doctrine is whether an interstate compact-related entity possessing the authority to sue and be sued in federal court may sue a compact state notwithstanding the Eleventh Amendment. A court recently found that the Eleventh Amendment was not a bar under the terms of the compact at issue. See Entergy Ark., Inc. v. Nebraska, No. 98–CV–3411, 1999 U.S. Dist. LEXIS 14553, at *2 (D. Neb. Sept. 15, 1999).
173 See Hess, 513 U.S. at 37.
174 See id.
175 See id. at 37–38.
176 Id. at 44–45.
177 See id. at 45.
178 Hess, 513 U.S. at 45.
179 See id.
180 In Auer v. Robbins, the Court found that the fact that a governor appointed four of the five members of the entity’s governing board was not dispositive because a city, not the state, was financially liable and that, beyond the appointments, the state exercised no further control. See 117 S. Ct. 905, 908 n.1 (1997). This would appear to reinforce the implication that the liability of a state’s treasury is the most significant factor to be considered, but this should not be overstated. See id.
181 See Regents of the Univ. of Cal. v. Doe, 117 S. Ct. 900, 904–05 (1997).
182 See generally Pikulin v. City Univ. of N.Y., No. 98–9236, 1999 U.S. App. LEXIS 9208 (2d Cir. May 13, 1999).
183 Id. at *4.
184 See id. at *5; see also Rosa R. v. Connelly, 889 F.2d 435, 437 (2d Cir. 1989), cert. denied, 496 U.S. 941 (1990); Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 38 (2d Cir. 1977).
185 See Carter v. City of Philadelphia, 181 F.3d 339, 341–42 (3d Cir. 1999).
186 Id. at 347.
187 See id.
188 See id.
189 See id. at 348.
190 See Carter, 181 F.3d at 348–49.
191 See id. at 353.
192 Id. at 353–54.
193 See id. at 354.
194 See id. at 354–55.
195 See Carter, 181 F.3d at 355.
196 See Richardson v. Southern Univ., 118 F.3d 450 (5th Cir. 1997), cert. denied, 522 U.S. 1078 (1998).
197 Id. at 452.
198 See id. at 456. The Fifth Circuit also held that “Congress has not expressly waived sovereign immunity for [42 U.S.C.] § 1983 suits.” Id. at 453.
199 See Earles v. State Bd. of Certified Pub. Accountants, 139 F.3d 1033, 1037 (5th Cir. 1998), cert. denied, 119 S. Ct. 444 (1998).
200 See id. at 1034. The members of the board were also individually sued. See id.
201 See id. at 1035.
202 See id. at 1038.
203 See id.
204 See Earles, 139 F.3d at 1038.
205 See id.
206 See id. at 1038–39.
207 See id. at 1039.
208 See Pendergrass v. Greater New Orleans Expressway Comm’n, 144 F.3d 342, 348 (5th Cir. 1998), cert. denied, 119 S. Ct. 617 (1998).
209 See id. at 347.
210 See id. at 346.
211 See id.
212 See id. at 348.
213 See Brotherton v. Cleveland, 173 F.3d 552, 561 (6th Cir. 1999).
214 See id. The court surveyed “arm of the state” decisions. See id. at 560–61.
215 See El-Ramly v. University of Haw., No. 98–15266, 1999 U.S. App. LEXIS 9782, at *7 (9th Cir. May 18, 1999).
216 Id. (quoting ITSI TV Prod., Inc. v. Agricultural Ass’ns, 3 F.3d 1289, 1292 (9th Cir. 1993)).
217 See id. at *8.
218 See Duke v. Grady Mun. Schs., 127 F.3d 972, 978 (10th Cir. 1997).
219 See id.
220 See id. at 978–79.
221 See id. at 979–80.
222 See id. at 980.
223 See Duke, 127 F.3d at 980.
224 See id. at 980–81.
225 See id. at 981; accord Elam Constr., Inc. v. Regional Transp. Dist., 129 F.3d 1343, 1345 (10th Cir. 1997), cert. denied, 118 S. Ct. 1363 (1998).
226 See V-1 Oil Co. v. Utah Dept. of Pub. Safety, 131 F.3d 1415, 1419–20 (10th Cir. 1997).
227 See id. at 1420 n.1.
228 See id. at 1421–22. The continued vitality of this decision is somewhat in doubt because the court recently held that if a state removes a case to federal court from state court, proceeds to litigate and then seeks to assert an Eleventh Amendment bar in oral argument before the Court of Appeals, a waiver will be found. See Sutton v. Utah St. Sch. for the Deaf & Blind, 173 F.3d 1226, 1233–36 (10th Cir. 1999). It is quite possible that this decision is based primarily upon the court’s annoyance with the state and should be limited to its facts. See id.
229 See V-1 Oil Co., 131 F.3d at 1421–22.
230 See Robertson v. Morgan County, No. 97–1469, 1999 U.S.App. LEXIS 95, at *9–*11 (10th Cir. Jan. 6, 1999).
231 ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1188 (10th Cir. 1998), cert. denied, 119 S. Ct. 904 (1999) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984)).
232 Id. at 1189 (citing Papasan v. Allain, 478 U.S. 265, 277–78 (1986)).
233 Id. (citing Green v. Mansour, 474 U.S. 64, 73 (1985)).
234 Id. (citing Edelman v. Jordan, 415 U.S. 651, 668 (1974)).
235 See Seminole Tribe v. Florida, 517 U.S. 44, 74–76 (1996); accord ANR Pipeline, 150 F.3d at 1189; Elephant Butte Irrigation Dist. v. Deptartment of Interior, 160 F.3d 602, 609 n.7 (10th Cir. 1998)(dictum), cert. denied sub nom. Salisbury v. Elephant Butte Irrigation Dist., 119 S. Ct. 1255 (1999).
236 See ANR Pipeline, 150 F.3d at 1191–92. The Tax Injunction Act is more formally known as follows: Act of Aug. 21, 1937, ch. 726, § 1 (1937) (codified at 28 U.S.C. § 1341 (1937)). Another court, however, permitted a suit for injunctive relief from an allegedly discriminatory tax to go forward although it did not consider the impact of the Tax Injunction Act. See CSX Transp., Inc. v. Board of Publ. Works of W. Va., 138 F.3d 537, 540, 543 (4th Cir. 1998), cert. denied, 119 S. Ct. 63 (1998).
237 See Wisconsin Bell, Inc. v. Public Serv. Comm’n of Wis., No. S99–2061, 1999 U.S. Dist. LEXIS 10884, at *26–*27 (W.D. Wis. July 12, 1999). In Waste Management Holdings, Inc. v. Gilmore, the court held that Ex parte Young was available to challenge the validity of a statute which violated the dormant commerce clause. See No. Civ. A. 3:99–CV–425, 1999 U.S. Dist. LEXIS 13508, at *14–*16, *19 (E.D. Va. Aug. 30, 1999). Ultimately, there was no statutory remedial scheme available, or at least it was not mentioned by this decision. See id.
238 See Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281 (1997).
239 See id.
240 See MacDonald v. Village of Northport, 164 F.3d 964, 966 (6th Cir. 1999).
241 See id. at 968.
242 See id. at 967.
243 See id. at 972–73.
244 See id. at 973.
245 See MacDonald, 164 F.3d at 973.
246 See ANR Pipeline, 150 F.3d at 1194. This court found two infirmities. See id.
247 See Elephant Butte Irrigation Dist. v. Department of Interior, 160 F.3d 602, 612–13 (10th Cir. 1998).
248 See Buchwald v. University of N.M. Sch. of Med., 159 F.3d 487, 495 n.6 (10th Cir. 1998).
249 Examinations of this issue post Seminole Tribe include: Laura S. Fitzgerald, Beyond Marbury: Jurisdictional Self-Dealing in Seminole Tribe, 52 Vand. L. Rev. 407 (1999); Vicki C. Jackson, Seminole Tribe, The Eleventh Amendment, and the Potential Evisceration of Ex parte Young, 72 N.Y.U.L. Rev. 495 (1997); Vicki C. Jackson, Couer d’Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rhenquist, 15 Const. Commentary 301 (1998).
250 See Federal Water Pollution Control Act (CWA), 33 U.S.C. §§ 1251–1387 (1994).
251 Id. § 1362 (7).
252 See 474 U.S. 121, 121 (1985).
253 See id. at 137–39.
254 See id. at 133.
255 See id. at 135, 137–39.
256 International Paper Co. v. Ouellette, 479 U.S. 481, 486 (1987).
257 See id. at 486, 498–99.
258 See id. at 483–84.
259 See Riverside Bayview, 474 U.S. at 137–39.
260 Alden v. Maine, 119 S. Ct. 2240, 2246–47 (1999).
261 See id. at 2247.
262 See id.
263 See id. at 2256.
264 See id.
265 See Idaho v. Coeur d’Alene, 521 U.S. 261, 283 (1997) (citing Utah Div. of State Lands v. United States, 482 U.S. 193, 195–98 (1987)).
266 Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), 42 U.S.C. §§ 9601–9675 (1994).
267 Id. § 9607(d)(2).
268 Id. § 9601(20).
269 See id. § 9601(21).
270 See id. § 9607 (a)–(m).
271 See 42 U.S.C. §§ 9607 (d) (2), 9601 (20) (D), 9601 (21).
272 Id. § 9659(a)(1).
273 See discussion supra Section II, A.
274 See Seminole Tribe v. Florida, 517 U.S. 44, 55–57 (1996).
275 See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2226–27 (1999); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2205 (1999).
276 See 42 U.S.C. § 9659 (a) (1) (1994).
277 See id. § 9607 (d) (2).
278 See id. § 9601 (20) (D).
279 See Seminole Tribe III, 517 U.S. at 55–57.
280 See id. at 59.
281 See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428–29 (1982); Pitts v. Unarco Indus., Inc., 712 F.2d 276, 279 (7th Cir. 1983), cert. denied sub nom. Pitts v. GAF Corp., 464 U.S. 1003 (1983).
282 See Richards v. Jefferson County, Ala., 517 U.S. 793, 804 (1996).
283 The author has searched the record and can find no such characterization. It is not possible to cite a nullity.
284 See Florida Prepaid, 119 S. Ct. at 2207–08; College Sav. Bank III, 119 S. Ct. at 2224–26. One somewhat recent decision held that a “legal cause of action” created by federal legislation was property within the ambit of the Fifth Amendment to the United States Constitution, and is subject to just compensation. See Alliance of Descendants of Tex. Land Grants v. United States, 37 F.3d 1478, 1481 (Fed. Cir. 1994) (citing Cities Serv. Co. v. McGrath, 342 U.S. 330, 335–36 (1952), and Ware v. Hylton, 3 U.S. (3 Dall.) 199, 245 (1796)).
285 U.S. Const. amend XIV, § 1, cl. 2.
286 See Saenz v. Roe, 119 S. Ct. 1518, 1530 (1999) (recognizing a constitutional right to travel in the Fourteenth Amendment).
287 U.S. Const. amend. XIV, § 1, cl. 3.
288 See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.15 (1978), rehearing denied, 438 U.S. 907 (1978).
289 See CERCLA, 42 U.S.C. § 9613(b) (1994). There has been almost no litigation on the meaning of this section—probably because the language is explicit and unambiguous. Cf. Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1385 (5th Cir. 1989); American Lifestyle Homes, Inc. v. United States 17 Cl. Ct. 711, 715 (1989); B.R. MacKay & Sons, Inc. v. United States, 633 F. Supp. 1290, 1296 (D. Utah 1986).
290 See Florida Prepaid, 119 S. Ct. at 2208.
291 See id. at 2203.
292 See id. at 2208.
293 See id. at 2207 (citing City of Boerne v. Flores, 521 U.S. 507, 519 (1997)). The Court contends that it may determine if the legislative remedy, though facially within congressional constitutional prerogatives, is proportionally congruent to the injury being prevented. See id.
294 Cf. David M. Whalin, Is There Still Pre-1980 CERCLA Liability After Eastern Enterprises?, 5 The Envl. Lawyer 701, 737 (1999).
295 The author must question, however, whether there will be a reasonable interpretation given that the Court in Florida Prepaid found an inadequate basis because there was insufficient evidence of patent infringement by the states. See 119 S. Ct. at 2207.
296 See Ninth Ave. Remedial Group v. Allis-Chalmers Corp., 962 F. Supp. 131, 133–35 (N.D. Ind. 1997) (finding that such a claim was barred by the Eleventh Amendment and that there was no waiver by the state). CERCLA actions for response costs were found barred by the Second Circuit based on the Quartet in Burnette v. Carothers. See Nos. 98–7835, –9003, 1999 U.S. App. LEXIS 22277, at *13–*16 (2d Cir. Sept. 13, 1999).
297 See Alden v. Maine, 119 S. Ct. 2240, 2268 (1999).
298 CERCLA, 42 U.S.C. § 9603 (1994).
299 See id. § 9659.
300 The impact of Seminole Tribe upon CERCLA has been analyzed previously. See, e.g., F.J. Dindinger, II, Seminole Tribe’s Impact on the Ability of Private Plaintiffs to Bring Environmental Suits Against States in Federal Court, 75 Denv. U.L. Rev. 253 (1997); Steven G. Davison, Governmental Liability under CERCLA, 25 B.C. Envtl. Aff. L. Rev. 47, 66–70 (1997); Cheri Gochberg, Note, Environmental Enforcement after Seminole Tribe v. Florida, 17 J. Land Resources & Envtl. L. 343 (1997); Gregory J. Hauck, Note, Seminole Tribe v. Florida: Has the Seminole Tribe Gambled with Citizens’ Rights to Sue Their State under CERCLA?, 8 Vill. Envtl. L.J. 479 (1997).
301 Clean Air Act (CAA), 42 U.S.C. §§ 7401–7671q (1994).
302 See generally Arnold W. Reitze, Jr., Air Pollution Law 4, 54–67 (1995) [hereinafter Reitze]; cf. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613 (1995).
303 42 U.S.C. §§ 7408–7409.
304 Id. § 7408(a)(1)(A), (a)(2).
305 Id. § 7408(g).
306 See id. § 7409(b)(1).
307 Id. § 7409(b)(2).
308 See Reitze, supra note 302, at 54 (citing Lead Indust. Ass’n v. EPA, 647 F.2d 1130, 1148 (D.C. Cir. 1980), cert. denied, 449 U.S. 1042 (1980)); American Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981), cert. denied sub nom. American Petroleum Inst. v. Gorsuch, 455 U.S. 1034 (1982); see also American Trucking Ass’n v. EPA, 175 F.3d 1027, 1034, 1040–41 (D.C. Cir. 1999) (finding an unconstitutional delegation of legislative power); American Lung Ass’n v. EPA, 134 F.3d 388, 389 (D.C. Cir. 1998); NRDC v. EPA, 902 F.2d 962, 974 (D.C. Cir. 1990), cert. denied sub nom. American Iron & Steel Inst. v. EPA, 498 U.S. 1082 (1991).
309 42 U.S.C. § 7602(h).
310 See Lead Indus., 647 F.2d at 1148 n.36; Motor & Equip. Mfrs. Ass’n v. EPA, 627 F.2d 1095, 1118 (D.C. Cir. 1979), cert. denied sub nom. General Motors Corp. v. Costle, 446 U.S. 952 (1980)
311 See American Petroleum Inst., 665 F.2d at 1185; Lead Indus., 647 F.2d at 1149.
312 See Lead Indus., 647 F.2d at 1150.
313 42 U.S.C. § 7409.
314 See Reitze, supra note 302, at 33–35.
315 See Florida Prepaid, 119 S. Ct. at 2205–06.
316 See id. at 2210.
317 See id.
318 Cf. Lead Indus., 647 F.2d at 1150.
319 See Florida Prepaid, 119 S. Ct. at 2211.
320 See 42 U.S.C. §§ 7408–7409 (1994).
321 See Florida Prepaid, 119 S. Ct. at 2215 (Stevens, J., dissenting).
322 See id. at 2207–09. This is akin to a court reviewing a law clerk’s legal memorandum to determine if the court below had an adequate basis.
323 42 U.S.C. § 7409.
324 Although this section has focused on the central provision of the CAA, it should be obvious that this new rule is available to challenge any statutory provision. The issue is not whether Congress acted within its constitutional parameters but whether it had an adequate basis for its decision.
325 U.S. Const. amend. V.
326 The Fifth Amendment states, in pertinent part: “nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V.
327 See Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 239 (1897) (incorporating the Fifth Amendment via the Due Process Clause of the Fourteenth Amendment); see also Phillips v. Washington Legal Found., 118 S. Ct. 1923, 1930 (1998); Dolan v. City of Tigard, 512 U.S. 374, 383–84 (1994).
328 See Seminole Tribe III, 517 U.S. at 65, 73.
329 See Regents of the Univ. of Cal. v. Doe, 117 S. Ct. 900, 905 (1997); supra Section II, A.
330 Seminole Tribe III, 517 U.S. at 59.
331 See, e.g., 28 U.S.C. § 1255 (1994); cf. Ex parte McCardle, 74 U.S. 506, 514–15 (1868). In this case, Congress validly withdrew jurisdiction from the Supreme Court while it was considering a writ of habeas corpus action. See id. The Court also stated that, “[w]e are not at liberty to inquire into the motives of the legislature.” Id. at 514.
332 See Florida Prepaid, 119 S. Ct. at 2205; College Sav. Bank III, 119 S. Ct. at 2223.
333 See Florida Prepaid, 119 S. Ct. at 2206.
334 See id. at 2208.
335 See Alden, 119 S. Ct. at 2246–47.
336 483 U.S. 825 (1987).
337 Id. at 847–48. The provision was adopted in 1879. See id. at 847.
338 See id. at 832.
339 See U.S. v. Rands, 389 U.S. 121, 123 (1967); Federal Power Comm’n v. Niagara Mohawk Power Co., 347 U.S. 239, 249 (1954). The exercise of this servitude does not invade any protected property right. See Rands, 389 U.S. at 123.
340 A subsequent purchaser should pay less for the property because it is subject to the dominant servitude, and thus have no claim for a taking even if the servitude is not asserted for years.
341 Cf. U.S. v. Cherokee Nation, 480 U.S. 700 (1987). In this case, the exercise of the dominant navigational servitude, which effectively destroyed the “property interests” of the complainant, was not found to be a taking even though the assertion of the servitude had lain dormant for years. See id. at 708.
342 483 U.S. at 833.
343 See College Sav. Bank III, 119 S. Ct. at 2225.
344 See Florida Prepaid, 119 S. Ct. at 2208.
345 118 S. Ct. 2131 (1998). A plurality found an economic taking. See Whalin, supra note 294, at 701. College Savings Bank III also undermines the rationale of this decision because the deprivation found by the plurality was money from doing business based upon past activity. See 118 S. Ct. at 2149. The distinction may be that in College Savings Bank III, the economic injury was caused by reasonably present and future conduct, but, on the other hand, the money “being taken” from Eastern Enterprises was present and future revenues. See id.
346 See MacDonald v. Village of Northport, 164 F.3d 964, 966 (6th Cir. 1999).
347 See id. at 966–67.
348 See id. at 970–71.
349 See id.
350 Id. at 972–73.
351 See MacDonald, 164 F.3d at 973. This circuit subsequently found that an action against state officials in their official capacities could go forward under the Ex parte Young exception when the state officials were acting under federal statutory delegated authority. See Michigan Bell Tel. Co. v. Climax Tel. Co., No. 98–1315, 1999 U.S. App. LEXIS 17729, at *15 (6th Cir. July 28, 1999). The court based its conclusion on Alden. See id. at *14. The author must question this decision because the FLSA plaintiffs were also seeking prospective relief, and the Sixth Circuit’s decision specifically ignored College Savings Bank III’s explicit rejection of constructive waiver where the plaintiffs were also seeking prospective relief. See Alden v. Maine, 715 A.2d 172, 173 (Me. 1998). The continued vitality of this July 28, 1999, decision in Michigan Bell is doubtful because the Sixth Circuit relied heavily on the Seventh Circuit’s decision in MCI Telecommunications Corp. v. Illinois Commerce Commission. See Michigan Bell, No. 98–1315, 1999 U.S. App. LEXIS 17729, at *9 & *15–*18 (citing 168 F.3d 315 (7th Cir. 1999)). The problem with this reliance is that the Seventh Circuit on June 25, 1999, vacated the denial of rehearing of June 23, 1999, granted a rehearing and set oral argument for September, 1999, with supplemental briefing on the issue of the applicability of Alden, College Savings Bank III, and Florida Prepaid. See MCI v. ICC, No. 98–2127, 1999 U.S. App. LEXIS 14213, at *1 (7th Cir. June 25, 1999). Thus, the Sixth Circuit cited as precedent a decision which had been vacated 33 days previously. See id.
352 505 U.S. 1003 (1992).
353 See, e.g., Federal Insecticide, Fungicide, & Rodenticide Act (FIFRA), 7 U.S.C. § 136(t)–136(v), 136(w–1) (1994); Toxic Substances Control Act (TSCA), 15 U.S.C. § 2627 (1994); Marine Mammal Protection Act of 1972 (MMPA), 16 U.S.C. § 1379 (1994); Endangered Species Act (ESA), 16 U.S.C. § 1535 (1994); Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA), 16 U.S.C. § 4724 (1994); Surface Mining Control & Reclamation Act of 1977 (SMCRA), 30 U.S.C. §§ 1235, 1253–1255 (1994); CWA, 33 U.S.C. §§ 1342(b), 1344(g)(l) (1994); Public Health Service Act (PHSA), 42 U.S.C. §§ 300g–2, 300h–300h–8 (1994); Solid Waste Disposal Act (SWDA), 42 U.S.C. §§ 6926–6929, 6931–6933, 6941–6948 (1994); CAA, 42 U.S.C. §§ 7410–7411, 7424, 7428, 7661a (1994); CERCLA, 42 U.S.C. §§ 9604(c)(3)&(d), 9621(f) (1994).
354 See Courtney E. Flora, Comment, An Inapt Fiction: The Use of the Ex parte Young Doctrine for Environmental Citizens Suits Against States after Seminole Tribe, 27 Nw. Envtl. L. 935 (1997) (providing a pre-June, 1999, analysis).
355 See, e.g., TSCA, 15 U.S.C. § 2619 (1994) (Eleventh Amendment not abrogated); ESA, 16 U.S.C. § 1540(g) (1994) (Eleventh Amendment not abrogated); SMCRA, 30 U.S.C. § 1270 (1994) (Eleventh Amendment not abrogated); CWA, 33 U.S.C. § 1365 (1994) (Eleventh Amendment not abrogated); Marine Protection, Research, & Sanctuaries Act of 1972 (MPRSA), 33 U.S.C. § 1415(g) (1994) (Eleventh Amendment not abrogated); Act to Prevent Pollution from Ships (APPS), 42 U.S.C. § 300 (j)–8 (1994) (Eleventh Amendment not abrogated); Noise Control Act of 1972 (NCA), 42 U.S.C. § 4911 (1994) (Eleventh Amendment not abrogated); SWDA, 42 U.S.C. § 6072 (1994) (Eleventh Amendment not abrogated); CAA, 42 U.S.C. § 7604 (1994) (Eleventh Amendment not abrogated); CERCLA, 42 U.S.C. § 9659 (1994) (Eleventh Amendment not abrogated); Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. §§ 10139, 10201 (1994); Emergency Planning & Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. § 11046(a)(1) (1994).
356 See Alfred R. Light, He Who Pays the Piper Should Call the Tune: Dual Sovereignty in U.S. Environmental Law, 4 The Envtl. Lawyer 779, 808–13 (1998).
357 See College Sav. Bank III, 119 S. Ct. at 2231. New Star Lasers v. Regents of the University of California, No. Civ. S–99–428, 1999 U.S. Dist. LEXIS 13411 (E.D. Cal. Aug. 26, 1999), found an acceptance of a gratuity waiver where the entity filed for a patent and thereby accepted the benefits of patent ownership as well as the detriment of a challenge in federal court to that patent’s validity. See id. at *9–*11. This court held that this was not an “otherwise lawful activity” which gave rise to the now overruled constructive waiver doctrine. See id. at *6–*7. The vitality of this decision must be questioned because there is no indication that the state entity affirmatively and explicitly accepted a waiver as a condition of receiving a patent. See id.
358 See id.
359 See note 355 and accompanying text. Some support for this assertion is found by the recent decision of In re Innes, No. 97–3363, 1999 U.S. App. LEXIS 20059 (10th Cir. Aug. 24, 1999). This was an adversarial bankruptcy case in which a state university participated in the Perkins Loan Program in a “contract” with the U.S. Department of Education which required the university to defend dischargeability claims. See id. at *1, *4. Abrogation was not an issue. See id. at *6. The court first found that Kansas had not expressly waived its immunity by its constitution or by statute. See id. at *9. The court then examined whether a state may waive its immunity by “affirmative conduct in the context of a federal program” and then found that when a state operates a program under delegated authority it may contractually waive its immunity. See id. at *9, *14–*15. The remaining issue was whether Kansas law precluded the consummation of such a contract by the state entity, and the court found no such preclusion. See id. at *26.
360 See Seminole Tribe III, 517 U.S. at 66. The Eighth Circuit recently explored this in Bradley v. Arkansas Department of Education in the context of the Individuals with Disabilities Education Act (IDEA) and the Rehabilitation Act (RA). See No. 98–1010, 1999 U.S. App. LEXIS 20831, at *2 (8th Cir. Aug. 31, 1999). The court held that IDEA validly abrogated a state’s immunity. See id. at *3–*4. It also held, however, that IDEA was invalid as not appropriate because “Congress did not adequately identify the constitutional transgressions it sought to remedy.” Id. at *13. In dicta, the court went on to find that IDEA exceeded Congress’ Fourteenth Amendment enforcement powers. See id. at *17. The court did hold that there was an explicit contractual waiver of immunity for IDEA claims by the state’s participation in IDEA. See id. at *20. The court then found that the RA was not appropriate because it sought to protect statutory rights rather than constitutional rights. See id. at *29–*30. The court then found the receipt of federal funds contractual waiver of RA was invalid because the waiver was overly broad and proscribed coercion. See id. at *34–*35. This court did not, however, examine whether the state’s waiver of IDEA was valid under that state’s law in contrast to In re Innes. See No. 97–3363, 1999 U.S. App. LEXIS 20059, at *9, *14–*15.
361 See College Sav. Bank III, 119 S. Ct. at 2233.
362 453 U.S. 1 (1981).
363 33 U.S.C. §§ 1401–1421 (1994); Clammers, 453 U.S. at 4.
364 See Clammers, 453 U.S. at 19.
365 See id. at 18.
366 See id. at 21; see also Garcia v. Cecos Int’l, Inc., 761 F.2d 76, 82–83 (1st Cir. 1985) (finding that RCRA foreclosed a 42 U.S.C. § 1983 claim); Adams v. Republic Steel Corp., 621 F. Supp. 370, 376 (W.D. Tenn. 1985) (finding TSCA precluded 42 U.S.C. § 1983 claims); Reeger v. Mill Serv., Inc., 592 F. Supp. 1266, 1268 (W.D. Pa. 1984) (finding that RCRA and CAA precluded 42 U.S.C. § 1983 claims); cf. Ann M. Lininger, Narrowing the Preemptive Scope of the Clean Water Act as a Means of Enhancing Environmental Protection, 20 Harv. Envtl. L. Rev. 165 (1996); Demian Schane, Note, Keeping the Citizens Out: How Virginia Has Manipulated the Mandate of the Clean Water Act, 21 Wm. & Mary Envtl. L. & Pol’y Rev. 457 (1997); Timothy J. Sullivan, Note, RCRA and the Recovery of Past Clean-Up Costs: Meghrig v. KFC Western, Inc., 8 Vill. Envtl. L.J. 627 (1997).
367 See Seminole Tribe III, 517 U.S. 44, 73–74 (1996).
368 See id. at 75.
369 Cf. Alsbrook v. City of Maumelle, No. 97–1825, 1999 U.S. App. LEXIS 16945 (8th Cir. en banc July 23, 1999). The Eighth Circuit, under the Quartet, dismissed against a state entity and its officials a Title II, American with Disabilities Act claim as not being a proper exercise of congressional Fourteenth Amendment section five power (Equal Protection Clause enforcement). See id. at *28. The court also dismissed a related 42 U.S.C. § 1983 claim because of the extensive federal statutory remedial scheme, even though it had already stated that statutory remedies were unavailable. See id. at *34. A contrary decision on the same question was reached in Martin v. Kansas. See Nos. 98–3102, 98–3118, 1999 U.S. App. LEXIS 19707 (10th Cir. Aug. 19, 1999).
370 See Michigan Peat v. EPA, 175 F.3d 422, 428 (6th Cir. 1999); Rowlands v. Pointe Mouille Shooting Club, No. 98–1514, 1999 U.S. App. LEXIS 16372 (6th Cir. July 14, 1999) (reaching same result under RCRA).
371 See Michigan Peat, 175 F.3d at 424.
372 See id. at 428.
373 See id.
374 See Froebel v. Meyer, 13 F. Supp. 2d 843, 844–45 (E.D. Wis. 1998).
375 See id. at 853–54 (citing Seminole Tribe III, 517 U.S. at 75 n.17). The author must question whether this survives the repudiation of constructive waiver in College Savings Bank III.
376 Burnette v. Rowland, Nos. 3:94–CV–00420, –00676, 1998 U.S. Dist. LEXIS 11710, *8–*9 (D. Conn. May 4, 1998), aff’d sub nom. Burnette v. Carothers, Nos. 98–7835 (L), 98–9003 (CON), 1999 U.S. App. LEXIS 22277 (2d Cir. Sept. 13, 1999).
377 See, e.g., American Canoe Ass’n v. EPA, 46 F. Supp. 2d 473 (E.D. Va. 1999).
378 162 F.3d 195 (2nd Cir. 1998), cert. granted, 119 S. Ct. 2391 (1999) (presenting the following questions to the Court: “(1) Whether a state is a “person” subject to liability under 31 U.S.C. § 3729(a) of the False Claims Act?; and (2) Whether the Eleventh Amendment precludes a private relator from commencing and prosecuting a False Claims Act suit against an unconsenting state”). On November 19, 1999, the following question was added to the two listed directly above: “Does a private person have standing under Article III to litigate claims of fraud upon the government?” See Supreme Court Collection at <http://supct.law.cornell.edu/supt/html/111999.ZR.html>.
379 See id. at 198.
380 See 31 U.S.C. §§ 3729–3733 (1994); Stevens, 162 F.3d at 198.
381 See Stevens, 162 F.3d at 207; accord, United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 46 F. Supp. 2d 546, 558–59 (E.D. La. 1999) (noting that there are splits among the circuits on this issue).
382 See Stevens, 162 F.3d at 199.
383 See id. at 201.
384 See id. at 202. A contrary conclusion was reached in United States ex rel. Foulds v. Texas Tech University. See 171 F.3d 279, 294 (5th Cir. 1999).
385 See Foulds, 171 F.3d at 294.
386 See generally Lester C. Thurow, Building Wealth: The New Rules for Individuals, Companies, and Nations in a Knowledge-Based Economy (1999).
387 See id. at 116–25, 261–62.
388 The author was not alone. See John T. Cross, Intellectual Property and the Eleventh Amendment After Seminole Tribe, 47 DePaul L. Rev. 519, 522–23 (1998).
389 See Reno v. Condon, 119 S. Ct. 1753 (1999). The question presented to the Court in Condon is whether the Driver’s Privacy Protection Act of 1994, 18 U.S.C. §§ 2721–2725, contravenes constitutional principles of federalism. See Supreme Court Collection at <http://supct.law.cornell.edu/supct/oct99qp.htm>; Kimel v. Florida Bd. of Regents, 119 S. Ct. 901 (1999). The question presented to the Court in Kimel is whether the Eleventh Amendment bars a private suit in federal court against a state for violation of the Age Discrimination in Employment Act. See Supreme Court Collection, supra this note; United States v. Florida Bd. of Regents, 119 S. Ct. 902 (1999). The questions presented to the Court in this case are:
(1) Whether the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., contains a clear abrogation of the States’ Eleventh Amendment immunity from suit by individuals; and (2) Whether the extension of the Age Discrimination in employment Act of 1967, 29 U.S.C. § 621 et seq., to the States was a proper exercise of Congress’ power under section five of the Fourteenth Amendment, thereby constituting a valid exercise of congressional power to abrogate the States’ Eleventh Amendment immunity from suit by individuals.
Supreme Court Collection, supra this note; see also Stephen J. Wermeil, Fall Docket Already Presents A Wide Variety of Hot-Button Issues, Legal Times, July 12, 1999, at S35.
390 See Clammers, 453 U.S. at 21. The preclusive nature of the Quartet may lead to further expansion of Clammers. See id.
391 For recent discussions of various scrutinies in various contexts see the following: Keith E. Sealing, The Myth of a Color-Blind Constitution, 54 Wash. U. J. Urb. & Contemp. L. 157 (1998); Roger Craig Green, Note, Interest Definition in Equal Protection: A Study of Judicial Technique, 108 Yale L.J. 439 (1998); Jason M. Skaggs, Comment, Justifying Gender-Based Affirmative Action under United States v. Virginia’s “Exceedingly Persuasive Justification” Standard, 86 Cal. L. Rev. 1169 (1998); Montgomery L. Wilson, Comment, Congress Imposes an “Undue Burden” in Poor Families: How the 1996 Personal Responsibility Act’s Full-Family Cut-Off Will Force Parents to Separate from Children, 8 Temp. Pol. & Civ. Rts. L. Rev. 141 (1998).
392 2000 U.S. LEXIS 498 (January 11, 2000) [hereinafter Kimel].
393 26 U.S.C. §§   621–634 (1994) (ADEA).
394 See Kimel at *14.
395 See id. at *54 n.1.
396 See id. at *20.
397 Id. at **21–22. All of the Justices joined in this conclusion save Justices Thomas and Kennedy. See id. at **8–9, 62, 67–68.
398 See id. at *33.
399 See Kimel at **37–38.
400 See id. at *38.
401 See id. at **38-40. It must be noted that the Court stated, although in dicta, that only race and gender classifications implicate special Equal Protection scrutiny—national origin and religious affiliation were not mentioned. See id. at **38-39.
402 Id. at **49-52.
403 Id. at *53.
404 See Kimel at *53.
405 See id.
406 See id. This issue was even further clouded by the Court’s citation of remedies supplied by state statutes, implying that there are no Federal rights available at all. See id.