The 11th Effect
Sovereign immunity could force lawyers to duplicate efforts


Minneapolis lawyer Howard L. Bolter is learning more about the 11th Amendment than he ever wanted to know. His experience may alarm other lawyers who seek to sue state agencies.

They are watching as Bolter takes what he has learned to the U.S. Supreme Court, where he is arguing that Congress has the power to toll state statutes of limitation. If he loses in Raygor v. the University of Minnesota, No. 00-1514, these lawyers may be forced to file their federal and state claims in two courts at once.

Double Trouble

The lawsuit began six years ago, when Bolter took on the cases of Lance Raygor and James Goodchild. Both are University of Minnesota technicians who allege they were pushed into early retirement.

Bolter filed an age bias suit on their behalf in federal District Court, citing both the federal and state anti-discrimination laws.

But their federal claim ran smack into the 11th Amendment when the Supreme Court ruled last year that states, as employers, have a sovereign immunity from federal age bias claims. Kimel v. Florida Board of Regents, 120 S. Ct. 631.

Undaunted, Bolter moved to state court to pursue the age discrimination claims under Minnesota law. A federal law on supplemental jurisdiction, 28 U.S.C. § 1367, tolled the state’s statute of limitations while the case had proceeded in the U.S. District Court.

But the state’s lawyers argued that Raygor and Goodchild had missed the filing deadlines. Moreover, Congress cannot waive the state’s time periods for suing, they maintained.

The Minnesota Supreme Court agreed. Forcing the states to waive their filing deadlines “is an unconstitutional infringement on the state’s sovereign immunity in violation of the 11th Amendment,” the state’s high court said.

“We’ve had the door shut on us,” says Bolter, summing up the litigation to this point.

Instead of arguing the merits of his clients’ age bias claim, he will go before the U.S. Supreme Court on Nov. 26 in hopes of saving the supplemental jurisdiction statute Congress passed in 1990.

Bolter maintains the existing rule has practical benefits for both plaintiffs lawyers and the defense side. “This is about judicial economy and streamlining the litigation. It makes sense to litigate all the claims at once in one forum, rather than splitting them,” he says.

Lawyers should watch the outcome closely, says Erwin Chemerinsky, a law professor at the University of Southern California. If the justices side with the state and strike down the federal tolling statute, a plaintiffs lawyer would face a difficult choice in an uncertain legal environment, he says.

“There are many situations where a lawyer can’t know in advance whether a particular claim will be barred by sovereign immunity,” he says.

“One choice [for the lawyer] would be to go to state court with all your claims, but you would be giving up the federal forum. Or you could file the federal claims in federal court and the state claims in state court. But whichever court decides first, you could face an issue of claim preclusion in the other court,” Chemerinsky says.

Suits and Shields

The reach of the 11th Amendment is something of a work in progress. The Supreme Court has said states are shielded from certain federal lawsuits, such as those involving patent infringement claims and job bias allegations from older and disabled workers.

But it is not clear whether the state’s immunity shield will be extended to other federal claims, such as those involving sexual harassment. It is also not clear just who or what is a “state” entitled to the 11th Amendment shield.

Not surprisingly, many state lawyers applaud the growth of the sovereign immunity doctrine. “I don’t see the problem. If you’re suing the state, you should go to state court,” says Mark B. Rotenberg, general counsel for the University of Minnesota.

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.