Tina Lee v. State of Iowa and Polk County Clerk of Court , 2014 Iowa Sup. LEXIS 34 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 12–2055
Filed March 28, 2014
TINA LEE,
Appellee,
vs.
STATE OF IOWA and POLK COUNTY CLERK OF COURT,
Appellants.
Appeal from the Iowa District Court for Polk County, James M.
Richardson, Judge.
Defendants appeal the district court’s remand order that reinstated
plaintiff to her former employment and awarded wages and benefits.
AFFIRMED.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Deputy
Attorney General, and Jeffrey C. Peterzalek and Meghan L. Gavin,
Assistant Attorneys General, for appellants.
Paige E. Fiedler and Brooke C. Timmer of Fiedler & Timmer,
P.L.L.C., Urbandale, for appellee.
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WATERMAN, Justice.
This case returns to us on defendants’ appeal following a remand.
On October 29, 2007, after a jury found the State terminated plaintiff in
violation of her right to self-care leave under the Family and Medical
Leave Act (FMLA), 29 U.S.C. § 2612(a)(1)(D) (2000), the district court
awarded plaintiff money damages and ordered the State to reinstate her
to her former position in the Polk County Clerk of Court Office.
Defendants appealed and successfully requested a stay of plaintiff’s
reinstatement pending the outcome. In Lee v. State (Lee I), we held
sovereign immunity precluded plaintiff’s judgment for money damages
against the State. 815 N.W.2d 731, 743 (Iowa 2012). We remanded the
case for the district court to determine plaintiff’s entitlement to
prospective injunctive relief against a state official under Ex parte Young,
209 U.S. 123, 155–56, 28 S. Ct. 441, 452, 52 L. Ed. 714, 727 (1908).
Lee I, 815 N.W.2d at 743. On October 18, 2012, the district court again
ordered plaintiff reinstated and awarded her lost wages and benefits from
the date of the original 2007 reinstatement order. The district court
concluded that plaintiff was entitled to reinstatement as a form of
injunctive relief and that the State had waived its sovereign immunity by
seeking a stay of the reinstatement order and promising to pay plaintiff’s
interim wages and benefits if we affirmed the 2007 order.
Defendants nevertheless contend that the new reinstatement order
should be reversed because plaintiff failed to adequately plead claims for
such relief under Ex parte Young and the award of wages since 2007 is
barred by sovereign immunity. We disagree. Plaintiff’s pleadings were
sufficient to preserve her right to Ex parte Young remedies, and the
parties litigated the reinstatement remedy by consent. Further, this case
is strikingly similar to Barnes v. Bosley in which the plaintiff was
3
wrongfully terminated from the St. Louis City Circuit Court Clerk’s
Office. 828 F.2d 1253, 1255 (8th Cir. 1987). We agree with the Eighth
Circuit Court of Appeals holding in that case: the Eleventh Amendment
to the United States Constitution does not bar an award of wages and
benefits for the period a reinstatement order was stayed. See Barnes,
828 F.2d at 1257. We therefore affirm the district court’s 2012 order.
I. Background Facts and Proceedings.
On November 10, 2004, after taking FMLA leave to cope with
anxiety, Tina Lee was terminated from her employment with the judicial
branch of the State of Iowa, in the office of the Polk County Clerk of
Court. Lee sued the State of Iowa and the Polk County Clerk of Court,
alleging violations of her FMLA rights. A jury ultimately found in favor of
Lee and awarded her past lost earnings. The district court awarded
additional amounts for Lee’s attorney fees, litigation expenses, and
interest and ordered her reinstated to her former position. Additional
detail concerning Lee’s employment and the parties’ claims and defenses
are set forth in Lee I. See 815 N.W.2d at 734–35. We will now focus on
the facts relevant to this postremand appeal.
At the outset of her lawsuit, Lee demanded the following remedies
in her petition’s prayer for relief:
[J]udgment against Defendants, jointly and severally, in an
amount which will fully and fairly compensate her for her
injuries and damages, for liquidated damages, for interest as
allowed by law, for attorneys’ fees, for the costs of this
action, and for such other relief as may be just in the
circumstances and consistent with the purpose of the Family
and Medical Leave Act.
The case proceeded to trial, which commenced September 10, 2007. On
the witness stand, Lee asked the court to reinstate her to her former
position, and defendants cross-examined her on the propriety of
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reinstatement in light of Lee’s soured relationship with her supervisor in
the clerk’s office. Outside the presence of the jury, the district court
discussed the remedy of reinstatement with the parties, and defendants
acknowledged “reinstatement is one of the equitable remedies available
to the Court if the jury concludes that there was liability.” The district
court responded, “That’s an agreement by both parties, that if there’s a
finding for the Plaintiff this Court has the subject matter jurisdiction to
reinstate the Plaintiff.” The parties also stipulated the issue of front pay
would be reserved for the district court.
Two claims under the FMLA were submitted to the jury: wrongful
discharge and retaliation. On September 13, the jury found in favor of
Lee on both claims and awarded her damages for past lost earnings in
the amount of $165,122. Defendants moved for a judgment
notwithstanding the verdict, arguing sovereign immunity precluded
judgment against the State. Lee resisted this motion and filed her own
posttrial “Motion for Reinstatement and Other Equitable Relief,”
requesting that the court order defendants to reinstate her, adopt an
FMLA retaliation policy, and provide all employees with FMLA training.
Defendants resisted, arguing reinstatement was impractical. On
October 15, the district court held a hearing on the posttrial motions.
The district court ruled on the record in favor of Lee, ordering her
reinstatement.
The district court memorialized its oral rulings in a written order
entered October 29. The district court concluded Congress abrogated the
State’s sovereign immunity as to the self-care provision of the FMLA.
The district court therefore awarded Lee past lost earnings in the amount
of the jury verdict of $165,122, with $19,127 in prejudgment interest,
plus $68,109 in attorney fees and $5734 in litigation expenses. The
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district court ordered the State to reinstate Lee and pay her lost wages
and benefits in the amount of $1146 weekly from the date of the jury
verdict until the date of her reinstatement. Additionally, for the purposes
of retirement benefits and FMLA leave, the court ordered defendants to
credit Lee for years of service as if she had never been terminated.
Defendants filed a notice of appeal and a “Motion to Stay All
Proceedings Pending Appeal without Filing a Supersedeas Bond.” In the
motion to stay, defendants represented to the district court,
[t]he plaintiff will not suffer any irreparable harm or injury if
the district court stays all proceedings. If the Supreme Court
affirms the district court, then the State of Iowa will pay the
judgment, plus any amounts owed to the plaintiff during the
time she should have been reinstated and when she is
reinstated. Thus, the plaintiff will be made whole.
Lee agreed to stay collection of the monetary judgment, but asked the
district court to compel her reinstatement.
In a January 25, 2008 ruling on the motion to stay, the district
court concluded:
Plaintiff here has shown that her loss has been, and
continues to be, substantial. A stay of reinstatement would
require Plaintiff to wait another 18–24 months before
allowing her to return to work. This delay in salary and
benefits would surely cause significant harm to Plaintiff as
she has been unable to find comparable employment.
The district court also considered defendants’ likelihood of success on
the merits, whether defendants would suffer irreparable injury in the
absence of a stay, and the public interests implicated. The district court
ruled all of the factors supported a denial of the stay of reinstatement
and therefore ordered defendants to “immediately reinstate Plaintiff to
her previous position.”
On February 16, defendants asked our court to stay Lee’s
reinstatement during their appeal, repeating their assurance that Lee
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would not suffer irreparable harm from a stay. We granted defendants’
motion, staying Lee’s reinstatement. We transferred the case to the court
of appeals, which affirmed the judgment in favor of Lee. We granted
defendants’ application for further review.
We held the appeal in abeyance pending a decision by the United
States Supreme Court on the issue of whether the self-care provision of
the FMLA validly abrogated the states’ sovereign immunity from suit.
That decision, Coleman v. Court of Appeals of Maryland, held Congress
failed to “identify a pattern of constitutional violations and tailor a
remedy congruent and proportional to the documented violations,” and
therefore, Congress failed to abrogate sovereign immunity. ___ U.S. ___,
___, 132 S. Ct. 1327, 1338, 182 L. Ed. 2d 296, 307 (2012) (plurality
opinion). Accordingly, we held on May 25, 2012, that sovereign
immunity precluded Lee’s judgment against the State for money
damages. Lee I, 815 N.W.2d at 743. But, we noted injunctive relief
remained available to Lee under the doctrine of Ex parte Young:
Nevertheless, states are bound to follow the self-care
provisions of the FMLA, and state employees who are
wrongfully denied self-care leave are still permitted to seek
injunctive relief against the responsible state official.
[Coleman, ___ U.S. at ___, 132 S. Ct. at 1350, 182 L. Ed. 2d
at 320 (Ginsburg, J., dissenting)] (citing Ex parte Young, 209
U.S. 123, 155–56, 28 S. Ct. 441, 452, 52 L. Ed. 714, 727
(1908) (establishing proposition that suit for injunctive relief
against state official does not offend sovereign immunity)). . . .
In this case, the judgment entered by the district court
was predicated on legal error. Accordingly, the noninjunctive
relief granted in the judgment cannot stand, and we must
reverse the district court. We remand the case to the district
court to determine what relief granted in its judgment is still
available to Lee within the framework of this lawsuit,
findings of the jury at trial, and the cloak of immunity
protecting the State. The district court shall permit the
parties to be heard on this issue and enter a new final
judgment for such relief. We do not retain jurisdiction.
7
Id. (emphasis added).
On remand, Lee filed a “Motion to Enforce Order Granting
Equitable Relief,” requesting enforcement of the 2007 order’s injunctive
relief, including her reinstatement, restoration of her retirement and
FMLA benefits, and lost wages and benefits of $1146 weekly from the
date of the 2007 order. Lee alternatively argued the State had waived
sovereign immunity by stipulating it would pay her lost wages and
benefits if the reinstatement order was affirmed. Lee also moved to
amend her petition to expand her prayer for relief and to specifically
name Lois Leary as the Polk County Clerk of Court who fired her in
2004.
Defendants resisted Lee’s motions. They argued Lee’s motion to
amend was untimely and beyond the scope of our remand. Defendants
contended Ex parte Young injunctive relief is available only against state
officials sued in their official capacity and asserted Lee “has never named
any state official at all, let alone one named in his or her official
capacity.” Further, defendants argued Lee did not request prospective
injunctive relief in her original petition. Defendants also challenged the
characterization of lost wages and benefits as prospective injunctive
relief, arguing that an award of lost wages and benefits is essentially a
retroactive monetary award barred by sovereign immunity. Finally,
defendants argued they did not waive immunity by pursuing a stay of
Lee’s reinstatement because they had agreed to pay Lee’s lost wages only
if our court affirmed the district court in Lee I—and we had instead
reversed and remanded for further proceedings.
The district court entered its ruling on these motions on
October 18, 2012. The district court found Lee’s original petition suing
the “Clerk of Court” was sufficient to allow prospective injunctive
8
remedies under Ex parte Young, stating “the Clerk of the Court is a state
official and it is unnecessary to name him or her by his or her given
name, as long as his or her official title is named.” The district court
found it significant that Lee I remanded the case to determine “what
relief granted in the judgment is still available to Lee,” without suggesting
that the “Clerk of Court” was not a proper party. The district court ruled
that the date of the original judgment, October 29, 2007, was “the
effective date requiring prospective injunctive relief.” The district court
found:
The stay did not change the effective date of Plaintiff’s
reinstatement, but prevented enforcement of such
reinstatement . . . . [T]his Court finds that the Eleventh
Amendment does not bar an award of pay to Plaintiff for the
period during which the stay was in effect. This Court
ordered prospective injunctive relief requiring future
compliance and liability for payment of Plaintiff’s wages and
benefits during this time, which is permissible.
The district court also agreed with Lee’s alternative argument, that
defendants waived sovereign immunity when requesting a stay of her
reinstatement. The district court concluded:
Defendants made assertions that if the Supreme Court
affirms the District Court, it will pay all damages stemming
from the stay. The Supreme Court did not specifically
reverse the District Court’s injunctive relief, so it is still the
rule of the case. If Defendants did have immunity from the
monetary damages stemming from their stay of the
injunctive relief, then they clearly waived it when they made
the promise to pay such damages.
Thus, the district court denied Lee’s motion to amend as moot and
ordered defendants to immediately reinstate Lee, pay her lost wages and
benefits from October 29, 2007, to the date of reinstatement in the
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amount of $1146 weekly, 1 provide her retirement and FMLA benefits as if
she had never been terminated, and pay postjudgment interest.
Defendants appealed, raising five issues. Defendants do not argue
Lee waived her right to Ex parte Young relief by failing to raise the
doctrine as an exception to the State’s sovereign immunity defense.
Rather, they argue: (1) Ex parte Young injunctive relief is available only in
federal court, (2) Lee is not entitled to Ex parte Young injunctive relief
because she did not specifically request it in her petition, (3) Lee’s failure
to name a State official as a defendant precludes Ex parte Young
injunctive relief, (4) the 2007 order for reinstatement is not Ex parte
Young injunctive relief, and (5) they did not waive sovereign immunity by
seeking the stay of her reinstatement and promising to make her whole if
her relief was affirmed in the first appeal. We retained this appeal.
II. Standard of Review.
The availability of Ex parte Young remedies is a question of law.
See CSX Transp., Inc. v. Bd. of Pub. Works, 138 F.3d 537, 541 (4th Cir.
1998) (reviewing award of Ex parte Young relief de novo). Accordingly,
our review of the district court’s award of relief under Ex parte Young is
for correction of errors at law. See Clinton Physical Therapy Servs., P.C.
v. John Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006)
(reviewing ruling on legal issue for correction of errors at law).
1Defendants did not argue in district court or on appeal that Lee failed to
mitigate her damages or that her award should be reduced by any amount that she
earned at other employment during these years. Cf. Barnes, 828 F.2d at 1259(remanding case with instructions to determine the amount a comparable backpay
award should have been reduced to offset plaintiff’s interim earnings).
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III. Analysis.
We begin with an overview of Ex parte Young injunctive relief, one
of several exceptions to state sovereign immunity. 2 We discussed two
exceptions to sovereign immunity in Lee I: a private person may sue a
state directly if the state has waived its sovereign immunity, or if
Congress has validly abrogated the states’ sovereign immunity. Lee I,
815 N.W.2d at 739–43 (analyzing these two exceptions with regard to the
self-care provision of the FMLA). Ex parte Young injunctive relief
provides a third exception to state sovereign immunity, in recognition of
the fact that “[a]lthough a state’s constitutional sovereign immunity
prevents individual enforcement of certain federal statutes against a
state, such as [Fair Labor Standards Act] claims . . . , that immunity
does not undermine the basic validity of the legislation.” Gill v. Pub.
Emps. Ret. Bd. of Pub. Emps. Ret. Ass’n, 90 P.3d 491, 497 (N.M. 2009);
see also Va. Office for Prot. & Advocacy v. Stewart, ___ U.S. ___, ___, 131
S. Ct. 1632, 1638, 179 L. Ed. 2d 675, 686 (2011) (noting the Ex parte
Young doctrine “has existed alongside our sovereign-immunity
jurisprudence for more than a century, accepted as necessary to permit
2As we discussed in Lee I, “ ‘the States’ immunity from suit is a fundamental
aspect of the sovereignty which the States enjoyed before the ratification of the
Constitution, and which they retain today.’ ” 815 N.W.2d 731, 739 (quoting Alden v.
Maine, 527 U.S. 706, 713, 119 S. Ct. 2240, 2246–47, 144 L. Ed. 2d 636, 652 (1999)).
While the phrase “Eleventh Amendment immunity” “is convenient shorthand,” it is
“something of a misnomer, for the sovereign immunity of the States neither derives
from, nor is limited by, the terms of the Eleventh Amendment.” Id. at 738–39 (quoting
Alden, 527 U.S. at 713, 119 S. Ct. at 2246–47, 144 L. Ed. 2d at 652). The Eleventh
Amendment to the United States Constitution provides:
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.
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the federal courts to vindicate federal rights” (internal quotation marks
omitted)).
The waiver and congressional abrogation exceptions to sovereign
immunity allow an individual to sue the state, while Ex parte Young
allows an individual to sue a responsible state official in his or her official
capacity to compel that official to comply with federal law. Stewart, ___
U.S. at ___, 131 S. Ct. at 1638, 179 L. Ed. 2d at 685–86 (discussing the
history of Ex parte Young). The United States Supreme Court held in
Ex parte Young that “a suit challenging the constitutionality of a state
official’s action is not one against the State.” Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 102, 104 S. Ct. 900, 909, 79 L. Ed. 2d
67, 79 (1984). Under Ex parte Young, a state official who violates federal
law is “stripped of his official or representative character and is subjected
in his person to the consequences of his individual conduct” because
“[t]he state has no power to impart to him any immunity from
responsibility to the supreme authority of the United States.” Ex parte
Young, 209 U.S. at 160, 28 S. Ct. at 454, 52 L. Ed. at 729. This doctrine
“rests on the premise—less delicately called a ‘fiction,’—that when a
federal court commands a state official to do nothing more than refrain
from violating federal law, he is not the State for sovereign-immunity
purposes.” Stewart, ___ U.S. at ___, 131 S. Ct. at 1638, 179 L. Ed. 2d at
686 (citation omitted)); see also Seminole Tribe of Florida v. Florida, 517
U.S. 44, 174, 116 S. Ct. 1114, 1180, 134 L. Ed. 2d 252, 339 (1996)
(Souter, J., dissenting) (“The decision in Ex parte Young, and the historic
doctrine it embodies, thus plays a foundational role in American
constitutionalism, and while the doctrine is sometimes called a ‘fiction,’
the long history of its felt necessity shows it to be something much more
estimable . . . .”). Thus, a state’s sovereign immunity does not
12
necessarily bar injunctive relief against a state official to require
compliance with federal law. See Stewart, ___ U.S. at ___, 131 S. Ct. at
1638, 179 L. Ed. 2d at 686.
A judgment under Ex parte Young is limited, however, to
prospective injunctive relief, as an award of retroactive money damages
would run afoul of sovereign immunity. Id. Prospective injunctive relief
is not coextensive with “equitable relief.” Edelman v. Jordan, 415 U.S.
651, 666–67, 94 S. Ct. 1347, 1357, 39 L. Ed. 2d 662, 674–75 (1974)
(holding monetary relief payable out of the state treasury is not available
against a state officer merely because “the relief may be labeled
‘equitable’ in nature”). Nor does sovereign immunity bar all judgments
with “fiscal consequences to state treasuries”: such fiscal consequences
are permissible if they are “the necessary result of compliance with
decrees which by their terms were prospective in nature.” Id. at 667–68,
94 S. Ct. at 1358, 39 L. Ed. 2d at 675 (“State officials, in order to shape
their official conduct to the mandate of the Court’s decrees, would more
likely have to spend money from the state treasury than if they had been
left free to pursue their previous course of conduct.”); see also Kentucky
v. Graham, 473 U.S. 159, 169 n.18, 105 S. Ct. 3099, 3107 n.18, 87
L. Ed. 2d 114, 124 n.18 (1985) (“Monetary relief that is ‘ancillary’ to
injunctive relief also is not barred by the Eleventh Amendment.”).
Consequently, “a court need only conduct a ‘straightforward inquiry’ into
whether the complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.” Verizon Md. Inc. v.
Pub. Serv. Comm’n, 535 U.S. 635, 645, 122 S. Ct. 1753, 1760, 152
L. Ed. 2d 871, 882 (2002). For example, in Barnes, state officials were
ordered to reinstate plaintiff but obtained a stay of reinstatement
pending appeal. 828 F.2d at 1255. After plaintiff prevailed on appeal,
13
defendants were ordered to pay plaintiff’s salary for the period between
the reinstatement order and the date she in fact was reinstated. Id.(noting backpay paid by State of Missouri). 3 We now turn to defendants’
arguments against Lee’s reinstatement and related relief under Ex parte
Young.
A. Whether Ex parte Young Relief is Available in State Court.
In their appellate brief, defendants argue for the first time that Ex parte
Young relief is available only in federal court. As a general proposition,
“issues must be raised in the district court before we may review them on
appeal.” Lee I, 815 N.W.2d at 739. There is a question whether the
issue is preserved. In any event, we decide the issue on the merits:
Ex parte Young applies to state-court suits. We reached that conclusion
in Lee I when we ordered the remand to allow the district court to
determine the relief available to Lee under Ex parte Young. See id. at
743. The view that the doctrine is applicable in state courts is well
established. See Alden v. Maine, 527 U.S. 706, 746–47, 119 S. Ct. 2240,
3Other federal court decisions enforcing federal laws have required states to
expend their funds pursuant to prospective awards, notwithstanding the Eleventh
Amendment. In Hutto v. Finney, the district court issued an injunction following a
finding that conditions in Arkansas prisons violated the constitution. 437 U.S. 678,
683, 98 S. Ct. 2565, 2570, 57 L. Ed. 2d 522, 530 (1978). The district court later
determined defendants violated the court’s orders and sanctioned defendants by
awarding plaintiffs their attorney fees. Id. at 684–85, 98 S. Ct. at 2570, 57 L. Ed. 2d at
530–31. The Supreme Court upheld this award, holding the “less intrusive power to
impose a fine is properly treated as ancillary to the federal court’s power to impose
injunctive relief.” Id. at 691, 98 S. Ct. at 2574, 57 L. Ed. 2d at 534. In Milliken v.
Bradley, the state was ordered to bear half the cost of implementing comprehensive
educational programs pursuant to a desegregation plan. 433 U.S. 267, 288–90, 97
S. Ct. 2749, 2761–62, 53 L. Ed. 2d 745, 761–62 (1977). In Rye Psychiatric Hospital
Center, Inc. v. Surles, the court found defendants had improperly calculated payment
rates for the plaintiff Medicaid provider. 777 F. Supp. 1142, 1147 (S.D.N.Y. 1991). The
court later ordered defendants to reimburse plaintiff for inadequate payments made
after the date of the original order. Id. State officials in Libby v. Marshall were ordered
to pay for jail maintenance and renovations after the court found conditions at the jail
violated prisoners’ constitutional rights. 653 F. Supp. 359, 363 (D. Mass. 1986).
14
2262–63, 144 L. Ed. 2d 636, 673–74 (1999) (citing Gen. Oil Co. v. Crain,
209 U.S. 211, 28 S. Ct. 475, 52 L. Ed. 754 (1908), as “extending the rule
of [Ex parte Young] to state-court suits”); Idaho v. Coeur d’Alene Tribe of
Idaho, 521 U.S. 261, 316–17 & n.14, 117 S. Ct. 2028, 2057–58 & n.14,
138 L. Ed. 2d 438, 478 & n.14 (1997) (Souter, J., dissenting) (stating
“every litigant seeking prospective relief in federal court under Young may
obtain some adequate redress in state court as well” and noting “in every
case in which Ex parte Young supports the exercise of federal-question
jurisdiction against a state officer, General Oil prohibits the declination of
state jurisdiction over the same officer on state immunity grounds”). The
Supreme Court held in Alden that Eleventh Amendment immunity
shelters states from suit in both federal and state court. 527 U.S. at
754, 119 S. Ct. at 2266, 144 L. Ed. 2d at 678. Indeed, in Lee I,
defendants acknowledged Eleventh Amendment sovereign immunity
“applies equally in state court and federal court.” 815 N.W.2d at 738.
The corollary to this principle is that exceptions to Eleventh Amendment
immunity apply in both federal and state court. As Justice Souter noted
in Coeur d’Alene Tribe, “it appears that in all 50 States . . . , private
plaintiffs may obtain declaratory and injunctive relief in state court for
the acts of state officials in circumstances where relief would be available
in federal court under Young.” 521 U.S. at 317 n.15, 117 S. Ct. at 2058
n.15, 138 L. Ed. 2d at 479 n.15 (Souter, J., dissenting) (collecting cases);
accord Collins v. State Bd. of Soc. Welfare, 248 Iowa 369, 373, 81 N.W.2d
4, 6 (1957) (recognizing that when “no judgment or decree is asked
against the State, but the suit is rather to require its officers and agents
to perform their duty, there is no immunity recognized” and ordering
injunctive relief for a violation of the Iowa Constitution); Pierce v. Green,
229 Iowa 22, 32, 294 N.W. 237, 245 (1940) (commenting “[i]f the State
15
has any interest in this case it is that its officers perform their duties”
and ordering the state to conduct tax assessments as required by law).
Further, state courts can order Ex parte Young relief not only for
violations of the Federal Constitution, but also for violations of federal
statutes:
Neither in theory nor in practice has it been shown
problematic to have federal claims resolved in state courts
where Eleventh Amendment immunity would be applicable
in federal court but for an exception based on Young. For
purposes of the Supremacy Clause, it is simply irrelevant
whether the claim is brought in state or federal court. . . .
. . . A doctrine based on the inherent inadequacy of
state forums would run counter to basic principles of
federalism. . . .
Interpretation of federal law is the proprietary concern
of state, as well as federal, courts. . . . It would be error
coupled with irony were we to bypass the Eleventh
Amendment, which enacts a scheme solicitous of the States,
on the sole rationale that state courts are inadequate to
enforce and interpret federal rights in every case.
Coeur d’Alene Tribe, 521 U.S. at 274–76, 117 S. Ct. at 2037, 138
L. Ed. 2d at 451–52 (citations omitted); 4 see also Lee I, 815 N.W.2d at
743 (ordering remand to determine prospective injunctive relief available
4This quotation comes from part II-C of the principal opinion written by Justice
Kennedy and joined by Chief Justice Rehnquist. See Coeur d’Alene Tribe, 521 U.S. at274–76, 117 S. Ct. at 2037, 138 L. Ed. 2d at 451–52. The three-justice concurrence
took issue with parts II-B and II-C of the principal opinion, which suggested the
inadequacy of a state forum is a prerequisite to federal jurisdiction in Ex parte Young
cases. See id. at 294, 117 S. Ct. at 2046, 138 L. Ed. 2d at 463 (O’Connor, J.,
concurring in part and concurring in the judgment). The concurrence stated, “There is
no need to call into question the importance of having federal courts interpret federal
rights—particularly as a means of serving a federal interest in uniformity—to decide
this case.” Id. The concurrence did not disagree, however, with the principle reflected
in the passage we quote above, stating, “Nor does acknowledging the interpretive
function of federal courts suggest that state courts are inadequate to apply federal law.”
Id. The four dissenters agreed: “Federal-question jurisdiction turns on subject matter,
not the need to do some job a state court may wish to avoid; it addresses not the
adequacy of a state judicial system, but the responsibility of federal courts to vindicate
what is supposed to be controlling federal law.” Id. at 313, 117 S. Ct. at 2055, 138
L. Ed. 2d at 476 (Souter, J., dissenting).
16
under Ex parte Young for violation of FMLA). Thus, our court has
ordered a state official to address violations of federal law,
notwithstanding sovereign immunity. See McKeown v. Brown, 167 Iowa
489, 497–99, 149 N.W. 593, 595–97 (1914) (ordering state treasurer to
return wrongfully escheated inheritance to rightful heir, taxed at rate
imposed by federal treaty).
B. Whether Lee Named a Proper Party as a Defendant for
Relief Under Ex parte Young. Defendants next argue Lee is not
entitled to Ex parte Young relief because she did not name a state official
as a defendant, “let alone an official being sued in that official’s ‘official’
capacity.” This omission is not fatal. Lee’s petition named “Defendants
State of Iowa and Polk County Clerk of Court.” “The real interests served
by the Eleventh Amendment are not to be sacrificed to elementary
mechanics of captions and pleading.” Coeur d’Alene Tribe, 521 U.S. at
270, 117 S. Ct. at 2034, 138 L. Ed. 2d at 448. We hold the “Polk County
Clerk of Court” is a state official and Lee was not required to plead the
given name of the individual 5 holding that position.
Two principles support our conclusion. First, the “ ‘course of
proceedings’ ” will typically “indicate the nature of the liability sought to
be imposed.” Graham, 473 U.S. at 167 n.14, 105 S. Ct. at 3106 n.14, 87
L. Ed. 2d at 122 n.14 (quoting Brandon v. Holt, 469 U.S. 464, 469, 105
S. Ct. 873, 876, 83 L. Ed. 2d 878, 884 (1985) (recognizing “[i]n many
cases, the complaint will not clearly specify whether officials are sued
personally, in their official capacity, or both”)). Here, Lee sued the Polk
5As a practical matter, naming a state official by job title alone, without
including the official’s given name, avoids the need to amend the petition when a new
person is hired into that role. Lois Leary was the Polk County Clerk of Court in 2004,
but Randy Osborn now holds that position.
17
County Clerk of Court without seeking to impose personal liability on
Lois Leary, her supervisor. Our remand order assumed a proper party
was named for injunctive relief.
Second, “[i]f a plaintiff’s complaint is silent about the capacity in
which she is suing the defendant, we interpret the complaint as
including only official-capacity claims.” Egerdahl v. Hibbing Cmty. Coll.,
72 F.3d 615, 619 (8th Cir. 1995); accord Baker v. Chisom, 501 F.3d 920,
923 (8th Cir. 2007). This commonsense approach reinforces our
determination that Lee’s petition sued the Polk County Clerk of Court in
her official capacity. See City of El Paso v. Heinrich, 284 S.W.3d 366, 377
(Tex. 2009) (concluding plaintiff sued defendants in their official
capacities based on “ ‘the nature of the liability sought to be imposed’ ”
and “construing [the] pleadings liberally” (citation omitted)).
Defendants rely on decisions by the Second Circuit and Ninth
Circuit, holding Ex parte Young does not apply when a plaintiff fails to
name a state official as a defendant: Santiago v. New York State
Department of Correctional Services, 945 F.2d 25, 31–32 (2d Cir. 1991),
and Douglas v. California Department of Youth Authority, 271 F.3d 812,
821 n.6 (9th Cir.), amended by 271 F.3d 910 (2001). Both cases are
distinguishable. In Douglas, the plaintiff sued only an agency, the
California Department of Youth Authority. 271 F.3d at 815. In Santiago,
the plaintiff sued an agency, the New York State Department of
Correctional Services, and a private psychiatrist. 945 F.2d at 27. By
contrast, Lee named as a defendant the Polk County Clerk of Court, an
individual who is a state official. We hold Lee sued a proper party for
Ex parte Young injunctive relief.
C. Whether Lee’s Prayer for Relief Was Adequate for Ex parte
Young Injunctive Relief. Defendants in turn argue the court cannot
18
reinstate Lee because her pleadings did not request “Ex parte Young
relief” or “prospective injunctive relief,” and she “even failed to request
any relief in the form of reinstatement.” They assert that Lee asked for
relief only under the FMLA and that our holding in Lee I, finding
sovereign immunity protects the State from self-care FMLA suits, renders
her FMLA prayer for relief unenforceable. Relatedly, defendants argue
the district court awarded Lee “equitable remedies” available under the
FMLA, which they believe are distinct from Ex parte Young injunctive
relief.
We disagree that these perceived deficiencies in Lee’s pleadings
preclude her from reinstatement and related relief under Ex parte Young.
Lee’s petition requested “such other relief as may be just in the
circumstances.” Lee contends that under our liberal pleading rules, she
adequately put defendants on notice that she sought prospective
injunctive relief that includes reinstatement. In any event, we conclude
the reinstatement claim was litigated by consent in district court in
2007, obviating any need to amend Lee’s pleadings to specifically request
such relief. Finally, we conclude it was unnecessary for Lee or the
district court to explicitly plead her reinstatement claim as “Ex parte
Young injunctive relief.”
Under Iowa’s notice pleading rules, a prayer for general equitable
relief “ ‘is to be construed liberally, and will often justify granting relief in
addition to that contained in the specific prayer, provided it fairly
conforms to the case made by the petition and the evidence.’ ” Moser v.
Thorp Sales Corp., 312 N.W.2d 881, 895 (Iowa 1981) (quoting Holi-Rest,
Inc. v. Treloar, 217 N.W.2d 517, 526 (Iowa 1974)); see also Anderson v.
Yearous, 249 N.W.2d 855, 858–59 (Iowa 1977) (“The relief granted under
the general prayer must be consistent with the case made by the
19
pleadings and must be such as will not surprise the defendant.”
(Internal quotation marks omitted.)). We generally expect plaintiffs to
identify “the true nature of the action” and narrow the issues “at the
pretrial conference or during the trial before instruction.” Tigges v. City
of Ames, 356 N.W.2d 503, 507 (Iowa 1984) (citation omitted). Further,
parties may consent to try issues beyond the scope of the pleadings.
Iowa R. Civ. P. 1.457 (“When issues not raised by the pleadings are tried
by express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.”); Molo Oil Co. v.
River City Ford Truck Sales, Inc., 578 N.W.2d 222, 229 (Iowa 1998)
(rejecting argument that affirmative defense was not specifically pled and
holding the issue was tried by consent when it “was presented before the
jury and there was abundant evidence to support a jury finding favoring
[the defense]”).
Defendants were well aware during the 2007 proceedings that Lee
sought reinstatement as a judicial remedy. Reinstatement is a form of
prospective injunctive relief. See Nelson v. Univ. of Tex. at Dallas, 535
F.3d 318, 324 (5th Cir. 2008) (holding “a request for reinstatement is
sufficient to bring a case within the Ex parte Young exception to Eleventh
Amendment immunity” because “it is a claim for prospective relief
designed to end a continuing violation of federal law”); State Emps.
Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 96 (2d Cir. 2007)
(“Every Circuit to have considered the issue . . . has held that claims for
reinstatement to previous employment satisfy the Ex parte Young
exception to the Eleventh Amendment’s sovereign immunity bar.”);
Treleven v. Univ. of Minn., 73 F.3d 816, 819 (8th Cir. 1996) (allowing
claim for reinstatement under Ex parte Young). At trial, Lee requested
reinstatement to her position in the Polk County Clerk of Court Office.
20
Defendants cross-examined her on this issue. During trial, the district
court noted the parties agreed “that if there’s a finding for the Plaintiff
this Court has the subject matter jurisdiction to reinstate Plaintiff.” Lee’s
posttrial motion requested reinstatement. Though defendants argued
reinstatement was inappropriate in both their brief resisting
reinstatement and at the hearing, their brief acknowledged “courts
should reinstate employees who have suffered unlawful employment
discrimination” and conceded “[w]ithout question, the district court can
order the State of Iowa to reinstate Lee.” The district court’s January 25,
2007 ruling on defendants’ motion to stay recounted “[d]uring trial, the
parties stipulated that the issues of reinstatement and front pay would
be reserved for the Court.” Defendants were not surprised by Lee’s
request for injunctive relief of reinstatement and had ample opportunity
to oppose such relief.
In response to defendants’ argument that equitable relief under the
FMLA is distinct from injunctive relief under Ex parte Young, we conclude
the label is not controlling. Lee’s theory of liability remained the same on
remand: she is entitled to reinstatement because defendants violated the
FMLA. Ex parte Young injunctive relief is a method of enforcing valid
federal legislation, in this case the self-care provision of the FMLA. As
such, it is appropriate to conceptualize Lee’s reinstatement both as relief
under the FMLA and as Ex parte Young relief. Defendants cite no
authority to the contrary.
D. Whether an Award of Earnings from the Date of the
Original Reinstatement Order to Her Actual Reinstatement
Constitutes Prospective Injunctive Relief. Finally, we address
defendants’ argument that the award of wages and benefits from October
2007 constitutes impermissible retroactive relief. The Ex parte Young
21
doctrine allows only prospective injunctive relief. Edelman, 415 U.S. at
664, 94 S. Ct. at 1356, 39 L. Ed. 2d at 673. “[T]he Supreme Court has
established a bright line Eleventh Amendment test between permissible
prospective and impermissible retroactive relief, with the effective date of
the District Court’s order requiring future compliance being the operative
date.” Barnes, 828 F.2d at 1257. Thus, monetary awards through
injunctive relief are permissible under the Eleventh Amendment so long
as they fall on the prospective side of this timeline. See Milliken v.
Bradley, 433 U.S. 267, 290, 97 S. Ct. 2749, 2762, 53 L. Ed. 2d 745,
761–62 (1977) (“That the programs are also ‘compensatory’ in nature
does not change the fact that they are part of a plan that operates
prospectively . . . . We therefore hold that such prospective relief is not
barred by the Eleventh Amendment.”); Vargas v. Trainor, 508 F.2d 485,
491 (7th Cir. 1974) (“[T]he entry of a court order or judgment requiring
that payments be made divides the past from the prospective for
Eleventh Amendment purposes.”); Libby v. Marshall, 653 F. Supp. 359,
361–62 (D. Mass. 1986) (“Later cases have made it even more clear that
the relevant distinction for Eleventh Amendment purposes is that
between a damage award and an injunction, not between one that would
cost the state money and one that would not.”). The parties disagree on
the date from which prospective relief should be measured.
Defendants argue our decision in Lee I reversed the district court’s
October 29, 2007 order in its entirety, making the district court’s
October 18, 2012 order of reinstatement the point from which we should
award prospective relief of her weekly wages and benefits. They therefore
assert the district court’s 2012 order for lost wages and benefits from
2007 impermissibly awarded Lee retroactive monetary awards. Lee
disagrees, arguing prospective relief should be measured from the 2007
22
reinstatement order. Lee also argues defendants waived any objection to
paying her lost wages and benefits post-2007 by asking for a stay of her
reinstatement and assuring the court she would be made whole if she
prevailed. Defendants respond that they agreed to pay Lee’s post-2007
lost wages only if we affirmed in Lee I, and they assert our opinion was
instead a reversal. We conclude Lee is correct on both accounts:
October 29, 2007, is the date from which prospective relief is properly
determined and defendants waived their objection to paying lost wages
from this date by attaining a stay of Lee’s reinstatement. Any other
result would “permit States to achieve unfair tactical advantages.” See
Lapides v. Bd. of Regents of Univ. Sys., 535 U.S. 613, 621, 624, 122
S. Ct. 1640, 1645–46, 152 L. Ed. 2d 806, 814, 816 (2002) (holding state’s
removal of suit to federal court waived its Eleventh Amendment
immunity).
Defendants’ arguments rest on a flawed premise—that we did not
uphold the reinstatement remedy in Lee I. Defendants are technically
correct that Lee I did not “affirm” the district court’s 2007 judgment.
Our decision stated that it reversed the judgment of the district court
and remanded the case for further proceedings, ordering the district
court to “enter a new final judgment.” Lee I, 815 N.W.2d at 743. But, we
agree with the district court’s interpretation of our remand: “None of the
trial court’s holdings regarding equitable relief were specifically
overruled, and as law of the case, they must still be enforced.” We
specifically held only the “noninjunctive relief granted in the judgment
cannot stand.” Id. We limited the district court’s task on remand to
“determin[ing] what relief granted in its judgment is still available to Lee
within the framework of this lawsuit, findings of the jury at trial, and the
cloak of immunity protecting the State.” Id. (emphasis added). The
23
district court was therefore responsible only for categorizing the elements
of the 2007 order as injunctive or noninjunctive. In “the framework of
this lawsuit,” the district court’s 2012 ruling correctly concluded the
2007 reinstatement order is relief granted in that judgment that is still
available to Lee.
Accordingly, October 29, 2007, the date of the original
reinstatement order, is the effective date on which defendants were
required to reinstate Lee to her former position. An award of Lee’s lost
earnings from that date forward is properly classified as prospective
relief. See Buckhanon v. Percy, 708 F.2d 1209, 1216 (7th Cir. 1983)
(authorizing payments onward from “the date upon which the State of
Wisconsin came under a court-imposed obligation to provide more
adequate notice before reducing or terminating benefits”). The 2012
order did not “impose upon the State ‘a monetary loss resulting from a
past breach of a legal duty.’ ” Verizon, 535 U.S. at 646, 122 S. Ct. at
1760, 152 L. Ed. 2d at 882 (emphasis omitted) (quoting Edelman, 415
U.S. at 668, 94 S. Ct. at 1358, 39 L. Ed. 2d at 676). Rather, the 2007
order imposed prospective injunctive relief from defendants’ violation of
the FMLA, creating an obligation to reinstate Lee. The 2012 order then
required payment of state funds as a necessary consequence of
defendants’ stay of the 2007 order. Compare Milliken, 433 U.S. at 289–
90, 97 S. Ct. at 2762, 53 L. Ed. 2d at 761–62 (upholding desegregation
plan that required state to bear half the cost of implementing
comprehensive educational programs), with Edelman, 415 U.S. at 668,
94 S. Ct. at 1358, 39 L. Ed. 2d at 675–76 (overturning district court
decree that “require[d] payment of state funds, not as a necessary
consequence of compliance in the future . . . , but as a form of
compensation to those whose applications were processed on the slower
24
time schedule at a time when petitioner was under no court-imposed
obligation to conform to a different standard” (emphasis added)).
The Eighth Circuit adjudicated a similar issue in a case with
comparable facts. In Barnes, the St. Louis City Circuit Court Clerk’s
Office terminated Shirley Barnes on January 3, 1983, in violation of her
First Amendment rights. 828 F.2d at 1255. On July 27, the district
court ordered Barnes reinstated and awarded her backpay from
January 3. Id. Defendants appealed and were granted a stay of
judgment pending the appeal. Id. The Eighth Circuit affirmed as to
Barnes, but reversed as to another plaintiff. Id. On remand, the district
court modified its prior judgment as it applied to the other plaintiff, but
“[t]he prior judgment remained unchanged insofar as it applied to
Barnes.” Id. In further proceedings, defendants raised a sovereign
immunity challenge to the backpay award for the time between her
termination and the reinstatement order and for the time the stay was in
effect. Id. The district court ruled that both components of backpay
constituted retrospective monetary relief prohibited by the Eleventh
Amendment, but held that defendants had waived sovereign immunity
for the post-July backpay by seeking a stay. Id. at 1255–56. Therefore,
the district court awarded Barnes backpay from July 1983 through the
date of her reinstatement. Id. at 1256. Defendants appealed this ruling.
Id. at 1256–57.
The Eighth Circuit “reject[ed] defendants’ argument that the
Eleventh Amendment precludes an award of backpay for the period
during which the stay was in effect.” Id. at 1257. The court stated:
In our view, the stay merely prevented immediate execution
on and enforcement of the judgment. . . . Thus, insofar as
the Eleventh Amendment is concerned, July 27, 1983, the
date of the District Court’s original order finding a
25
constitutional violation and granting Barnes her remedies, is
the operative date after which prospective relief (i.e., liability
for the payment of Barnes’s salary) is permissible. We hold
that the Eleventh Amendment does not bar an award of pay
to Barnes for the period during which the stay pending
appeal was in effect.
Id. at 1257–58 (footnotes omitted). The court aptly commented, “in the
circumstances of this case the term ‘backpay’ is somewhat of a
misnomer.” Id. at 1257 n.5. Because the court agreed with Barnes that
backpay from the date of the judgment was prospective, it did not reach
her alternative argument that the defendants had waived sovereign
immunity by seeking the stay. Id. at 1257–58 & n.6. 6
We agree not only with the Eighth Circuit’s conclusion regarding
backpay awards during a stay, but also with the Barnes district court’s
conclusion that the state waived its sovereign immunity by requesting a
stay. The Barnes district court recounted the assurances given by the
defendants to persuade the court to issue a stay of reinstatement:
“Plaintiffs, . . . incorrectly and with exaggeration seek to
describe the harm that would result to them if the stay of
judgment is granted. . . . With respect to plaintiffs’ income
and benefits, . . . their alleged injury can be calculated and
compensated by money damages if they were successful on a
case on the merits. It is obvious that the amount which may
be due plaintiffs for loss of income and benefits can be
calculated and paid.”
Barnes v. Bosley, 625 F. Supp. 81, 86 (E.D. Mo. 1985). The district court
concluded:
By this representation, the defendants waived the
eleventh amendment protection they had as to Barnes
because of the stay. The result is that defendants are liable
6The Eighth Circuit further concluded the district court miscalculated Barnes’s
backpay by refusing to offset the award by the amount Barnes had earned at another
job while awaiting her reinstatement. Id. at 1258–59. The Eighth Circuit remanded the
case with instructions to calculate Barnes’s interim earnings and to reduce her backpay
award by that amount. Id. at 1259.
26
to Barnes for reinstatement and benefits from the date of
this Court’s original order, July 27, 1983.
Id.
Defendants made equivalent assurances here to obtain a stay of
reinstatement—“[i]f the Supreme Court affirms the district court, . . . the
State of Iowa will pay . . . any amounts owed to the plaintiff during the
time she should have been reinstated and when she is reinstated.” We
hold those representations waived the State’s sovereign immunity. “A
representation made in a judicial proceeding for the purpose of inducing
the court to act or refrain from acting satisfies the [waiver] requirements
stated in Edelman.” Vargas, 508 F.2d at 492; see also Vennerberg
Farms, Inc. v. IGF Ins. Co., 405 N.W.2d 810, 814 (Iowa 1987) (recognizing
the “commonsense” doctrine of “judicial estoppel or ‘preclusion by
inconsistent positions’ . . . prohibits a party who has successfully and
unequivocally asserted a position in one proceeding from asserting an
inconsistent position in a subsequent proceeding” (citation omitted)). In
granting the stay, we relied upon defendants’ representation that Lee
would “not suffer any irreparable harm or injury” and would “be made
whole.” Defendants cannot now use the Eleventh Amendment to avoid
honoring their promise. See Toll v. Moreno (Toll II), 458 U.S. 1, 17–18,
102 S. Ct. 2977, 2986, 73 L. Ed. 2d 563, 576–77 (1982) (holding state
university waived its sovereign immunity by seeking a stay and
representing to the district court that it would make refund payments if
the case was affirmed on appeal); 7 Vargas, 508 F.2d at 492 (holding
7The 1982 decision in Toll II was the second time the case had reached the
United States Supreme Court. 458 U.S. at 8, 102 S. Ct. at 2981, 73 L. Ed. 2d at 570.
In a 1979 per curiam opinion, the Supreme Court vacated the judgment of the Fourth
Circuit and remanded the case to the district court for reconsideration. Toll v. Moreno
(Toll I), 441 U.S. 458, 462, 99 S. Ct. 2044, 2046, 60 L. Ed. 2d 354, 354–55 (1979). In
the 1982 decision, Toll II, defendants argued the per curiam opinion, Toll I, had vacated
27
defendant waived sovereign immunity by representing he would make
deficiency payments if the plaintiffs were ultimately successful in order
to persuade the court not to enter an injunction against him).
We therefore hold the district court correctly awarded Lee her lost
earnings from October 29, 2007, as prospective relief under Ex parte
Young.
IV. Disposition.
For the foregoing reasons, we hold Lee is entitled to prospective
injunctive relief under Ex parte Young, including an award of her weekly
wages and benefits from the date the district court ordered her
reinstatement on October 29, 2007. We therefore affirm the district
court’s order of October 18, 2012.
AFFIRMED.
All justices concur except Cady, C.J., and Wiggins, J., who dissent.
_______________________
the district court’s original order. Toll II, 458 U.S. at 17–18, 102 S. Ct. at 2986, 73
L. Ed. 2d at 576–77. The Supreme Court rejected this argument, holding Toll I had “left
the judgment of the District Court undisturbed.” Id. at 18, 102 S. Ct. at 2986, 73
L. Ed. 2d at 577. The Supreme Court further stated, “contrary to petitioners’
suggestion, a vacatur of the District Court’s judgment was not necessary to give the
District Court jurisdiction to reconsider the case.” Id. at 18, 102 S. Ct. at 2986–87, 73
L. Ed. 2d at 577. Defendants in this case rely on this language in Toll II to argue Lee I
reversed the district court’s ruling. As discussed above, we disagree and do not find Toll
II supports defendants’ position. To the contrary, we agree with the Toll II Court’s
footnote commenting:
Even if we were to assume that the judgment of the District Court was
indeed vacated, we could not say that the terms of the University’s waiver
of sovereign immunity—that the District Court’s order be “finally affirmed
on appeal”—would not be satisfied. Petitioners have not prevailed on the
merits in a single court, despite the numerous decisions that this
litigation has prompted. By its original order, the District Court held
that the University’s in-state policy was invalid insofar as it
discriminated against G–4 aliens. Today, we reaffirm that conclusion.
Id. at 19, 102 S. Ct. at 2987, 73 L. Ed. 2d at 577 n.27.
28
#12–2055, Lee v. State
CADY, Chief Justice (dissenting).
I respectfully dissent. The proposition to support the judgment
entered against the State, despite its cloak of immunity granted by the
Eleventh Amendment to the United States Constitution, was not raised
by the plaintiff until after the appeal. It is a fundamental principle in our
civil system of justice that claims and defenses cannot be raised by a
party for the first time on, or after, appeal and used to justify and
support the final judgment. This principle has been ignored in this case,
and our justice system has failed to deliver on one of its most basic
promises—procedural fairness.
Lee brought this lawsuit under the Federal Family and Medical
Leave Act (FMLA). She identified the State of Iowa and the Polk County
Clerk of Court as defendants. She claimed her rights as a state employee
under the FMLA self-care provision were denied by the State, and she
was subjected to wrongful and retaliatory termination for exercising her
FMLA rights. The State admitted in its answer to the petition that the
Polk County Clerk of Court was an office within the judicial branch of
government and was a part of the State of Iowa. Lee admitted the same,
and the case proceeded against the State with the parties treating the
Clerk of Court as the State.
The State raised an affirmative defense in its answer. It claimed it
was immune from the lawsuit under the Eleventh Amendment to the
United States Constitution. It subsequently moved for summary
judgment based on the single contention that the State and all of its
components were immune from the lawsuit. Lee resisted the claim of
immunity by asserting two arguments. First, Lee averred the State had
no immunity against FMLA lawsuits because Congress abrogated the
29
State’s immunity when it enacted the FMLA. Second, Lee argued that
even if Congress did not abrogate its immunity, the State waived
immunity by adopting the FMLA provisions as employee policies of the
judicial branch. 8 Within the framework of these arguments, the parties
vigorously litigated the issue of whether the lawsuit was required to be
dismissed because the State was immune.
The district court agreed with the arguments asserted by Lee and
denied summary judgment. The case proceeded to trial. At trial, Lee
made claims for lost wages and benefits, reinstatement of employment,
front pay, and other relief under the FMLA. She argued the jury should
decide all such issues. The district court, however, only submitted the
issues of lost wages and benefits to the jury, along with liability, and
informed the jury it would separately consider the issues of
reinstatement and front pay.
The jury returned a verdict for Lee in the amount of the stipulated
past wages of $165,122. It found the State violated the FMLA. Lee then
asked the court for reinstatement and front pay, as permitted under the
FMLA. The district court ordered reinstatement and entered judgment
for weekly front pay until Lee actually returned to her job. As a part of
the posttrial proceedings, the State moved for a judgment
notwithstanding the verdict based on its claim of immunity. In response,
Lee again argued that Congress abrogated states immunity in enacting
the FMLA, and alternatively, immunity was waived by the State through
its actions in implementing provisions of the FMLA. No new arguments
8More specifically, Lee claimed the State waived its immunity by placing the
FMLA provisions in its handbook and on workplace posters. She also asserted the
State waived its immunity by failing to tell its employees that it was retaining its
immunity. Finally, Lee claimed the State waived its immunity by implementing the
FMLA provisions.
30
were made. The district court denied the motion, and the State
appealed. The judgment was stayed during the appeal on the condition
the State would pay the running weekly front pay in the event the
reinstatement was upheld.
On appeal, the State claimed the district court erred in failing to
recognize its immunity. Lee again claimed this immunity was abrogated
by Congress when it enacted the FMLA and, alternatively, argued the
State waived immunity by incorporating the FMLA into its employment
policies. Again, no new arguments or claims were made.
Ultimately, we recognized the Supreme Court’s holding that
Congress did not abrogate the State’s immunity in enacting the FMLA
self-care provision, and the State did not otherwise waive its immunity by
incorporating FMLA provisions into its employment policies. Lee v. State
(Lee I), 815 N.W.2d 731, 740, 743 (Iowa 2012); see also Coleman v. Ct. of
Appeals of Md., 566 U.S. ___, ___, 132 S. Ct. 1327, 1338, 182 L. Ed. 2d
296, 306–07 (2012) (plurality opinion). In other words, the State was
successful in its appeal on all issues. If litigation is about winning and
losing, the State won. They won on all claims. We remanded the case to
the district court to determine “what relief granted in its judgment is still
available to Lee within the framework of this lawsuit.” Lee I, 815 N.W.2d
at 743.
On remand, the district court found the reinstatement order and
front pay judgment were not covered by the state’s immunity. It made
this determination by declaring the lawsuit by Lee was, from the
beginning, actually one against a public official of the State to enforce
rights under federal law, and this type of claim fell outside the cloak of
immunity granted to the State. See Ex parte Young, 209 U.S. 123, 155–
56, 28 S. Ct. 441, 452, 52 L. Ed. 714, 727 (1908). In other words, the
31
State lost. The Ex parte Young doctrine was recognized by the district
court to create an exception to the State’s immunity under the Eleventh
Amendment in Iowa in actions brought in state court.
This second appeal from the decision by the district court now
recognizes and adopts the Ex parte Young doctrine as an exception to the
immunity granted to states under the Eleventh Amendment that
otherwise protects states from claims in state court to enforce federal
law. I agree with this substantive legal principle. The benefits and
protections of federal law should apply to employees of the State of Iowa
in the same way they apply to private employees in Iowa. Moreover,
employees of the state must be able to sue public officials to enforce
federal law when they fail to do so. Finally, when a public officer fails to
follow federal law in her official capacity, the state’s immunity should not
apply. This is all sound law. In fact, we sua sponte raised the Ex parte
Young doctrine in Lee I to illustrate how state workers can enforce FMLA
self-care provision rights despite the state’s immunity from damage
claims. See Lee I, 815 N.W.2d at 743.
Notwithstanding, our legal system does not just revolve around
substantive principles of law. There is an equally important procedural
law that guides the legal process itself.
Lee did, in fact, sue the Polk County Clerk of Court. The Ex parte
Young doctrine does, in fact, recognize that a lawsuit for prospective
injunctive relief against a public official acting in his or her official
capacity is an exception to the state’s immunity. Edelman v. Jordan, 415
U.S. 651, 676–77, 94 S. Ct. 1347, 1362, 39 L. Ed. 2d 662, 680 (1974).
These are the two propositions to support the holding in this appeal that
Lee’s lawsuit was, therefore, not subject to the State’s immunity. See
Verizon Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645, 122 S. Ct.
321753, 1760, 152 L. Ed. 2d 871, 882 (2002) (“In determining whether the
doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a
court need only conduct a ‘straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.’ ” (quoting Idaho v. Coeur d’Alene
Tribe of Idaho, 521 U.S. 261, 296, 117 S. Ct. 2028, 2047, 138 L. Ed. 2d
438, 465 (1997) (O’Connor, J., concurring in part and concurring in
judgment))). As a theory of logic, this conclusion follows perfectly from
its two propositions. However, the legal process is not simply a product
of theoretical syllogisms. It requires a process that is fair. This
procedural fairness lies at the core of the entire American legal system
and helps explain its strength and success.
In this case, procedural fairness has been ignored. The party who
won its lengthy and hard-fought appeal—the State—has now lost. The
State has not only lost, but it can now see for the first time it never had
any chance of winning from the beginning, unless its lawyers would have
done what has never been required of lawyers in the past. The only way
the State could have succeeded on its claim of immunity in this case was
to affirmatively make the argument for Lee when it moved for summary
judgment that the petition she filed implicated the Ex parte Young
doctrine and that this doctrine should be recognized as an exception to
states’ immunity, but not in this case.
In its best light, this case now holds that a defendant who raises a
legal defense to a lawsuit must not only establish the proposition
defining the defense, it must affirmatively disprove all possible exceptions
to the defense, including those never urged or even recognized by the
plaintiff, even those never before recognized in the prior cases of this
court. Conversely, the holding means the plaintiff does not need to
33
identify the reasons a defense asserted by the defendant is invalid until a
court rules the defense has been proven and all appellate review has
been exhausted.
This holding is contrary to our system of advocacy and requires a
litigant to be an advocate against itself. In turn, it now requires a lawyer
to flesh out the arguments for the opposing party and make a case
against his or her own client. Few other holdings could be as
fundamentally antithetical to the foundational principles of practice.
The State clearly had the duty to establish its defense of immunity.
However, that duty should not require the State to disprove any
particular exception to the immunity, at least not until the particular
exception was placed into issue by Lee. Under our law, when the State
raises the defense of immunity under the Eleventh Amendment, an
employee asserting the wrongful-termination claim must demonstrate an
exception to the immunity. See Nelson v. Univ. of Texas, 535 F.3d 318,
321 (5th Cir. 2008) (indicating a wrongful-termination lawsuit against a
public officer acting in his official capacity was required to be dismissed
unless the plaintiff could “demonstrate an exception” to the state’s
immunity).
The immunity doctrine granted to the states under our United
States Constitution is applicable to the FMLA self-care provision.
Coleman, 566 U.S. at ___, 132 S. Ct. at 1338, 182 L. Ed. 2d at 306–07.
The doctrine means the State of Iowa is, in fact, immune from FMLA self-
care provision claims, Lee I, 815 N.W.2d at 743, and this immunity
extends to actions by state officers acting in their official capacities,
McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004)
(“[T]he principle of state-sovereign immunity generally precludes actions
against state officers in their official capacities . . . .” (citing Edelman,
34
415 U.S. at 663–69, 94 S. Ct. at 1355–58, 39 L. Ed. 2d at 672–76)). The
state’s immunity, however, is not absolute, but is subject to several
exceptions. Alden v. Maine, 527 U.S. 706, 755–57, 119 S. Ct. 2240,
2266–67, 144 L. Ed. 2d 636, 678–80 (1999). The Ex parte Young
doctrine is one exception that has been recognized in the federal courts
for over a century, and it applies to lawsuits against state officials for
prospective injunctive or declaratory relief that is designed to remedy an
ongoing violation of federal law. See Ex parte Young, 209 U.S. at 157, 28
S. Ct. at 453, 52 L. Ed. at 728. The rationale for this exception is that a
state officer who violates federal law is stripped of his official character
and loses the cloak of state immunity. Coeur d’Alene Tribe, 521 U.S. at
288, 117 S. Ct. at 2043, 138 L. Ed. 2d at 460 (O’Connor, J., concurring
in part and concurring in judgment); see Ex parte Young, 209 U.S. at159–60, 28 S. Ct. at 454, 52 L. Ed. at 729.
In this case, of course, Lee did not raise or argue the Ex parte
Young exception. Instead, she argued two other exceptions. This is an
undeniable fact. It is a basic rule of appellate law that arguments not
raised in the trial court “cannot be raised for the first time on appeal.”
Airport Comm’n v. Schade, 257 N.W.2d 500, 503 (Iowa 1977); see also
Minor v. State, 819 N.W.2d 383, 406 (Iowa 2012) (declining to consider an
argument made for the first time on appeal); Elkader Prod. Credit Ass’n v.
Eulberg, 251 N.W.2d 234, 237 (Iowa 1977) (holding an appellant cannot
assert a defense under one statute at trial and use a different statute to
support the defense on appeal). This rule has existed almost from the
beginning of our court system. See Davis v. Nolan, 49 Iowa 683, 686–87
(1878). We emphasized our strong commitment to this rule in DeVoss v.
State, 648 N.W.2d 56, 60–63 (Iowa 2002). We also emphasized that the
rule exists to promote fundamental fairness and prevent “ambush” on
35
appeal. Id. at 63; see also State v. Tobin, 333 N.W.2d 842, 844 (Iowa
1983) (“[T]he requirement of error preservation gives opposing counsel
notice and an opportunity to be heard on the issue and a chance to take
proper corrective measures or pursue alternatives in the event of an
adverse ruling.”).
The result of this case could not be more unfair to the State. If the
State knew the court would change course in this case and consider
Lee’s claim to be one under the Ex parte Young doctrine after the appeal
was completed, it would have never implicitly assumed liability for the
running front pay. It would have been illogical for the State to imply
such a promise because it would have been required to make good on its
promise even if it won the appeal. It is unfair to now tag the State with a
judgment it never knew existed. We have been inconsistent in the past
in the application of our preservation-of-error doctrine, but never when it
has blindsided one of the parties by imposing such unfair consequences.
As with all parties to litigation, the State had a right to expect that
it did not need to articulate a winning argument for the plaintiff. It also
had a right to expect that our fundamental rules of advocacy requiring
parties to make their own arguments would be followed. It also had a
right to expect our most basic rules of appellate practice that foreclose
new arguments on appeal would be followed.
Finally, even if Lee should now be permitted to redefine her lawsuit
following the appeal, the judgment entered against the State is required
to be reversed because it is tainted by legal error. If Lee’s lawsuit was, in
fact, one against a public official acting in her official capacity under the
doctrine of Ex parte Young, then it should have only proceeded under a
process consistent with that claim. It clearly did not. The process
provided under Ex parte Young only entitled Lee to proceed against the
36
individual public official, and the prospective claim should only be tried
to the court. Cf. Parsons v. Bedford, Breedlove & Robeson, 28 U.S. (3
Pet.) 433, 447, 7 L. Ed. 732, 737 (1830) (noting the Seventh Amendment
to the United States Constitution only guarantees a right to a jury trial in
“suits in which legal rights were to be ascertained and determined, in
contradistinction to those where equitable rights alone were recognized,
and equitable remedies were administered”).
Instead, this claim proceeded within our jury process with the
State as the target defendant (the clerk of court was never even identified
by name) and liability (violation of the FMLA) was determined by the jury
within a body of evidence introduced at trial to support monetary relief
against the State. This entire process was erroneous and extremely
prejudicial to the State because the State had a right to be dismissed
from the lawsuit from the beginning. 9 The jury should not have
9Importantly, an Ex parte Young lawsuit proceeds only against an individual
public official. See Kentucky v. Graham, 473 U.S. 159, 166–67 & n.14, 105 S. Ct. 3099,
3105–06 & n.14, 87 L. Ed. 2d 114, 122 & n.14 (1985) (noting that “official-capacity
actions are not treated as actions against the State”). To be sure, an official-capacity
action “is no different from a suit against the State itself.” Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45, 58 (1989). However,
in what is only truly a “fiction,” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 114 n.25, 104 S. Ct. 900, 915 n.25, 79 L. Ed. 2d 67, 87 n.25 (1984), the State loses
its cloak of immunity only if the individual public official is found to be violating federal
law while in his or her official capacity, see Va. Office for Prot. & Advocacy v. Stewart,
563 U.S. ___, ___, 131 S. Ct. 1632, 1638, 179 L. Ed. 2d 675, 686 (2011) (“[W]hen a
federal court commands a state official to do nothing more than refrain from violating
federal law, he is not the State for sovereign-immunity purposes.”); see also Graham,
473 U.S. at 167, 105 S. Ct. at 3106, 87 L. Ed. 2d at 122–23 (noting that the public
official does not have recourse to “personal immunity defenses” like absolute or
qualified immunity, and that “[t]he only immunities that can be claimed in an official-
capacity action are forms of sovereign immunity that the entity, qua entity, may
possess, such as the Eleventh Amendment”). Nevertheless, in such an action, only
reinstatement or other prospective relief can be granted. See Nelson, 535 F.3d at 323;
see also Edelman, 415 U.S. at 677, 94 S. Ct. at 1362, 39 L. Ed. 2d at 680. Accordingly,
leaving the State as a named party to the suit—and leaving before the jury the State’s
“ ‘virtually unlimited ability . . . to pay the verdict,’ ” cf. Steinhardt v. Potter, 326
F. Supp. 2d 449, 451 (S.D.N.Y. 2004) (quoting Lehman v. Nakshian, 453 U.S. 156, 161
n.8, 101 S. Ct. 2698, 2702 n.8, 69 L. Ed. 2d 548, 554 n.8 (1981))—prejudiced the State.
37
considered liability against the State, and the entire claim should be
considered without a jury. Cf. Parsons, 28 U.S. at 447, 7 L. Ed. at 737.
This error was prejudicial to the State, and this prejudice now prevents
the original judgment from being substituted on remand to support the
judgment under Ex parte Young.
Justice can only be achieved if the process is fair. The process was
not fair in this case, and injustice has resulted.
Wiggins, J., joins this dissent.