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Bench Book - 1.7.2 Eleventh Amendment Issues for Interstate Commissions

The Eleventh Amendment guarantees state sovereign immunity from suit in federal court. The Eleventh Amendment ensures that states retain certain attributes of sovereignty, including sovereign immunity. Hans v. Louisiana, 134 U.S. 1, 13 (1890). Over the years, the U.S. Supreme Court has established a clear approach to determining whether an interstate commission is a “state” or political subdivision thereof such that it enjoys immunity under the Eleventh Amendment; or, if through participation in a Compact, states waived immunity. Now, however, the application of the Eleventh Amendment immunity to interstate commissions is well established. In Petty v. Tennessee-Missouri Bridge Commission, supra at 277-78, the Supreme Court has opined that the text of the Compact stating that the Bridge Commission should have the power “to contract, to sue and be sued in its own name,” and Congress’ grant of consent to the Compact, stating “that nothing herein contained shall be construed to affect, impair, or diminish any right, power, or jurisdiction of the United States or of any court, department, board, bureau, officer, or official of the United States, over or in regard to any navigable waters . . . ” effectively abrogates the states’ Eleventh Amendment immunity by reserving the jurisdiction of the federal courts. 359 U.S. 275, 277 (1959).

In Hess v. Port Authority Trans-Hudson Corp 513 U.S. 30, 52 (1994), the Supreme Court has determined that when the Lake Country Estates factors point in different directions, the Eleventh Amendment’s “twin reasons for being”—(1) respect for the dignity of the states as sovereigns, and (2) the “prevention of federal-court judgments that must be paid out of a State’s treasury” should be the court’s prime guide. 513 U.S. 30, 47-48 (1994).

There are many different actors involved with administering the ICAOS—the Interstate Commission, state agencies and officials, and local agencies and officials. Local agencies and officials do not enjoy Eleventh Amendment Immunity and suit may be brought against them in federal court. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). However, the Eleventh Amendment may apply to the Interstate Commission and state agencies and actors. The “sue and be sued” provisions in Articles III and IV of the ICAOS may constitute a state waiver of immunity from suits against the Interstate Commission in state courts, but it does not necessarily constitute a waiver of Eleventh Amendment immunity against suits in federal courts. See, e.g., Fla. Dep’t of Health and Rehab. Servs v. Fla. Nursing Home Assoc., 450 U.S. 147, 150 (1981); Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 39-40 (2d Cir. 1977). Arguably, the ICAOS evidences intent by the states to be financially and administratively responsible for the actions of the commission, which may provide Eleventh Amendment immunity under the test articulated in Hess 513 U.S. at 47-48. The ICAOS provides that the Commission “shall defend the Commissioner of a Compacting State, or his or her representatives or employees, or the Commission’s representatives or employees, in any civil action seeking to impose liability, arising out of any actual or alleged act, error or omission that occurred within the scope of Interstate Commission employment, duties or responsibilities[.]” The ICAOS requires the Commission to indemnify and hold harmless a Commissioner, appointed designee or employees, or the Commission’s representatives or employees in the amount of any settlement or judgment arising out of actual or alleged errors, acts or omissions that are within the scope of the Commission’s duties or responsibilities.

Even if the Eleventh Amendment does not offer protection, the commission may be immune from suit governed by non-Eleventh Amendment considerations. For example, in Morris v. Washington Metropolitan Area Transit Authority, the court has determined that a bare “sue and be sued” clause extends only as far as other more specific partial waivers in the Compact, not to any and all suits. 781 F.2d 218, 221 n.3 (D.C. Cir. 1986). (For a broader discussion of immunity issues associated with the application of the ICAOS, see Chapter 5.)

Article VII of the ICAOS requires that judicial review of the Interstate Commission’s rulemaking actions be brought in federal court for the District of Columbia or the federal district where the Commission has its principal offices. Additionally, Article XII.C specifies that the Interstate Commission may seek to enforce the ICAOS in the same federal courts. These two provisions specifying suit in federal court are specific to the types of suits described. Not all types of disputes involving the Interstate Commission may be brought in federal court.

PRACTICE NOTE: Currently the principal offices of the Commission are located in Lexington, Kentucky. Any challenge to an Interstate Commission’s rulemaking action brought in state court would be subject to removal to federal court.



Click terms below to reveal definitions used in this rule.

By-Laws – means those by-laws established by the Interstate Commission for Adult Offender Supervision for its governance, or for directing or controlling the Interstate Commission’s actions or conduct.