United States Ex Rel. Long v. SCS Business & Technical Institute, Inc.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed April 30, 1999
No. 98-5133
United States of America, ex rel. Ronald E. Long,
Appellee/Cross-Appellant
v.
SCS Business & Technical Institute, Inc., et al.,
Appellees
State of New York,
Appellant/Cross-Appellee
Attorney General of the United States,
Intervenor
Consolidated with
Nos. 98-5149 & 98-5150
Appeals from the United States District Court
for the District of Columbia
(92cv02092)
Supplemental Opinion
Howard L. Zwickel, Assistant Attorney General, State of
New York, argued the cause for appellant/cross-appellee.
With him on the briefs was Peter H. Schiff, Deputy Solicitor
General.
Ronald A. Shems, Assistant Attorney General, State of
Vermont, argued the cause for amici curiae State of Ver-
mont, et al. With him on the brief was William H. Sorrell,
Attorney General.
Douglas N. Letter, Appellate Litigation Counsel, United
States Department of Justice, argued the cause for United
States as intervenor. With him on the briefs were Frank W.
Hunger, Assistant Attorney General, and Wilma A. Lewis,
United States Attorney. Richard L. Cys entered an appear-
ance.
Stuart F. Pierson argued the cause and filed the briefs for
appellee/cross-appellant.
Jill A. Dunn was on the notice of joinder in brief for
appellant Joseph P. Frey.
Mark B. Rotenberg was on the brief for amicus curiae The
Regents of the University of Minnesota.
Before: Wald, Silberman, and Sentelle, Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: In the same week that our
opinion issued, the Fifth Circuit held that the Eleventh
Amendment bars a False Claims Act qui tam suit against a
state in federal court. See United States ex rel. Foulds v.
Texas Tech Univ., No. 97-11182, 1999 WL 170139 (5th Cir.,
March 29, 1999). The court thought it was obliged to decide
that issue before reaching the question we decided--whether
the statute provides for a qui tam action against a state--
because the Eleventh Amendment issue is jurisdictional. Al-
though we certainly discussed the serious nature of the
Eleventh Amendment issue as it bore on our order of deci-
sion, we did not consider whether, as a matter of judicial
authority, we too were obliged to decide that issue. Since our
sister circuit implicitly challenged our jurisdiction--even
though no party before us did--and our mandate has not
issued, under these unusual circumstances, we think it appro-
priate to issue this supplemental opinion to explain why we
believe we should stick with the order of decision we adopted.
The Fifth Circuit reasoned as follows: since the question
whether a relator can sue a state under the Act is a cause of
action or merits question, and since the question whether a
federal court can hear such a suit under the Eleventh Amend-
ment is a jurisdictional one, the latter must be resolved
before the former. See id. at * 5-* 6. The principal authori-
ty that the Fifth Circuit relied on is Steel Co. v. Citizens for a
Better Env't, 118 S. Ct. 1003 (1998), in which the Supreme
Court held that a question of Article III standing must be
decided before the statutory question whether a cause of
action exists. See id. at 1012-16. In so holding, the Court
rejected the doctrine of "hypothetical jurisdiction," under
which lower courts--including this one, see, e.g., Cross-Sound
Ferry Servs., Inc. v. ICC, 934 F.2d 327, 333 (D.C. Cir. 1991)--
had assumed jurisdiction in order to reach the merits, where
the merits question was easier and the prevailing party on
the merits would be the same as the prevailing party were
jurisdiction denied. See Steel Co., 118 S. Ct. at 1012 (disap-
proving of Cross-Sound and other lower court decisions).
The doctrine, the Court said, is flatly inconsistent with core
principles limiting the role of Article III courts: "For a court
to pronounce upon the meaning or the constitutionality of a
state or federal law when it has no jurisdiction to do so is, by
very definition, for a court to act ultra vires." Id. at 1016.
We did not address this Steel Co. question in our opinion,
we confess, because we did not focus on it. Indeed, New
York--whose immunity from suit is at stake--specifically
urged us, apparently unlike Texas in Foulds, to decide the
statutory question first on the ground that nonconstitutional
grounds should be considered before constitutional ones. Ad-
mittedly, we ordinarily are obliged to raise jurisdictional
questions on our own, so the parties' litigating tactics would
not excuse our oversight. Still, the Eleventh Amendment bar
on suits against the states in federal court is not a garden
variety jurisdictional issue. Although the Amendment speaks
in terms of the limits of the judicial power, see U.S. Const.
Amend. XI ("The Judicial power of the United States shall not
be construed to extend...."), a state can waive its Eleventh
Amendment defense and consent to suit in federal court, and
the Supreme Court has held that there is no obligation for the
Court to raise the issue sua sponte. See Wisconsin Dep't of
Corrections v. Schacht, 118 S. Ct. 2047, 2052-53 (1998) (citing
Atascadero State Hsp. v. Scanlon, 473 U.S. 234, 241 (1985)
and Patsy v. Board of Regents of Fla., 457 U.S. 496, 515 n.19
(1982)).
To be sure, the Court has also held that the "Eleventh
Amendment defense sufficiently partakes of the nature of a
jurisdictional bar so that it need not be raised in the trial
court," Edelman v. Jordan, 415 U.S. 651, 678 (1974); see
Burkhart v. Washington Metropolitan Area Transit Auth.,
112 F.3d 1207, 1216 (D.C. Cir. 1997), and indeed can be raised
for the first time in the Supreme Court, see Ford Motor Co. v.
Department of Treasury, 323 U.S. 459, 467 (1945). Given
these somewhat conflicting rules, see Schacht, 118 S. Ct. at
2055 (Kennedy, J., concurring), the Court has frankly recog-
nized that the Eleventh Amendment is a rather peculiar kind
of "jurisdictional" issue. See Calderon v. Ashmus, 118 S. Ct.
1694, 1697 n.2 (1998) ("While the Eleventh Amendment is
jurisdictional in the sense that it is a limitation on the federal
court's judicial power, and therefore can be raised at any
stage of the proceedings, we have recognized that it is not co-
extensive with the limitations on judicial power in Article
III."); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261,
267 (1997) ("The Amendment, in other words, enacts a sover-
eign immunity from suit, rather than a nonwaivable limit on
the federal judiciary's subject-matter jurisdiction."). The
Court's most recent opinion noted that the question whether
Eleventh Amendment immunity is a matter of subject matter
jurisdiction is an open one. See Schacht, 118 S. Ct. at 2054.
New York's explicit request that we first decide the statu-
tory question could therefore be seen as a kind of agreement
to assert its Eleventh Amendment defense only if it loses on
the statutory one (a "springing" defense, as it were). As the
Supreme Court has recently made clear, "[t]he Eleventh
Amendment ... does not automatically destroy original juris-
diction," but instead "grants the State a legal power to assert
a sovereign immunity defense should it choose to do so."
Schacht, 118 S. Ct. at 2052 (emphasis added). A state can
waive its immunity from suit in the context of a litigation, see,
e.g., Ford Motor Co., 323 U.S. at 467-69, as long as it does so
unequivocally, see Atascadero, 473 U.S. at 246-47. Although
there are difficult questions about whether the state's attor-
neys must be authorized by state law to waive the state's
immunity, and about whether such authorization, if needed,
has been granted, compare id. (suggesting that such authori-
zation is necessary) with Schacht, 118 S. Ct. at 2055-56(Kennedy, J., concurring) (questioning whether in the remov-
al context specific authorization is required), it may well be
that New York's approach amounts to a partial consent to
suit on the statutory question--subject to a later Eleventh
Amendment defense. And if so, we might be obligated to
decide the statutory question first.
But even if we were not so obligated, we think that we are
at least permitted to do so. Had New York chosen not to
assert its Eleventh Amendment defense below, or even before
us, it would not have been precluded from raising it thereaf-
ter. See Calderon, 118 S. Ct. at 1697 n.2 (Eleventh Amend-
ment "can be raised at any stage of the proceedings"); but cf.
Schacht, 118 S. Ct. at 2055 (Kennedy, J., concurring) (criticiz-
ing this rule because "permitting the belated assertion of the
Eleventh Amendment bar ... allow[s] States to proceed to
judgment without facing any real risk of adverse conse-
quences"). Unless that defense is asserted by the state, a
court is arguably not obliged to raise the issue itself since the
Supreme Court has made clear that the usual obligation to
raise jurisdictional issues sua sponte does not apply (at least
to the Court itself) in Eleventh Amendment cases. See
Patsy, 457 U.S. at 515 n.19.1 Therefore New York's litigation
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1 Whether the Patsy rule relieves lower courts of the sua
sponte obligation to raise the Eleventh Amendment issue is a
strategy--an Eleventh Amendment argument in the alterna-
tive--suggests that, at least, we are entitled to reverse the
Steel Co. order. After all, Steel Co.'s rule is premised on a
court's lack of power to reach the merits without establishing
its jurisdiction. In the Eleventh Amendment context, where
a court lacks power only if a state claims that it does, it is
arguable that we have no obligation to decide the Eleventh
Amendment issue first if the state does not demand that we
do so.
Moreover, the quasi-jurisdictional or "hybrid" status of the
Eleventh Amendment, see Schacht, 118 S. Ct. at 2055 (Kenne-
dy, J., concurring), raises questions about Steel Co.'s applica-
bility in this context, quite apart from New York's request
that we interpret the statute first. Since the Eleventh
Amendment at most "partakes of the nature of a jurisdiction-
al bar," Edelman, 415 U.S. at 678, it seems fair to ask
whether the Eleventh Amendment is sufficiently jurisdictional
to require us to decide a state's claim of Eleventh Amend-
ment immunity before turning to the merits. One indication
to the contrary is Calderon, in which the Supreme Court
decided that it "must first address" whether a particular
action for a declaratory judgment was an Article III case or
controversy before deciding the Eleventh Amendment ques-
tion on which certiorari had been granted, observing that the
Eleventh Amendment is "not co-extensive with the limitations
of judicial power in Article III." Calderon, 118 S. Ct. at 1697
& n.2. As between two jurisdictional issues, there ordinarily
is no obligation to decide one before the other. See Steel Co.,
118 S. Ct. at 1015 n.3; In re Minister Papandreou, 139 F.3d
247, 255 (D.C. Cir. 1998) (stating that dismissing on non-
merits grounds such as personal jurisdiction or forum non
conveniens, before deciding subject-matter jurisdiction, is
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matter of some controversy. See Coolbaugh v. Louisiana, 136 F.3d
430, 442 n.5 (5th Cir. 1998) (Smith, J., dissenting) (collecting cases
and authorities). We have raised an Eleventh Amendment question
on our own in a prior case, see Morris v. Washington Metropolitan
Area Transit Auth., 702 F.2d 1037, 1040 (D.C. Cir. 1983), but do not
appear ever to have held whether we must do so, notwithstanding
Patsy.
permissible under Steel Co.).2 That the Court in Calderon
thought itself obliged to decide the case or controversy ques-
tion first suggests that the Eleventh Amendment, a less than
pure jurisdictional question, need not be decided before a
merits question. One former judge of this court, in a concur-
ring opinion criticizing the hypothetical jurisdiction doctrine
later rejected in Steel Co., pointed in that direction. See
Cross-Sound Ferry, 934 F.2d at 341 (Thomas, J., concurring
in part and concurring in the denial of petition) (reasoning
that the rule requiring consideration of jurisdictional issues
before non-jurisdictional issues might not apply if "the ground
passed over sufficiently, though not entirely, 'partakes of the
nature' of a merits ground, or if the ground rested upon
'sufficiently,' though not entirely, 'partakes of the nature of a
jurisdictional bar' " (quoting Edelman, 415 U.S. at 678)).
Another difficulty in applying Steel Co. here is that classify-
ing the statutory question in an Eleventh Amendment case as
a "cause of action" or merits question is, though technically
accurate, somewhat misleading. The determination of wheth-
er a particular action is properly asserted against a state is
also a kind of logical prerequisite to the jurisdictional inquiry.
The Eleventh Amendment only bars a federal court from
hearing a "suit in law or equity, commenced or prosecuted
against one of the United States," and so it would seem
perfectly appropriate--perhaps even necessary--for courts to
determine whether there is even such a suit before the court.
That kind of inquiry--sometimes classified as "jurisdiction to
determine our jurisdiction," Nestor v. Hershey, 425 F.2d 504,
511 (D.C. Cir. 1969) (inquiring whether student deferment
sought was mandated by statute or within the discretion of
the draft board, as jurisdiction existed only for the former)--
is fairly common, even though the rulings made in determin-
ing jurisdiction are made without certainty that jurisdiction
actually exists. Occasionally, as in this case, what a court
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2 The Fifth Circuit has concluded otherwise, holding that in the
removal context, a district court must decide subject matter juris-
diction before personal jurisdiction. See Marathon Oil Co. v.
Ruhrgas AG, 145 F.3d 211, 215-25 (5th Cir.) (en banc), cert.
granted, 119 S. Ct. 589 (1998).
says about an issue of statutory interpretation that logically
precedes the ultimate jurisdictional determination removes
any contention that the court's jurisdiction is in question.
See, e.g., Webster v. Doe, 486 U.S. 592, 603-04 (1988) (using
clear statement principles and the constitutional avoidance
canon to hold that statutory provision did not, despite lan-
guage indicating that the statute was committed to agency
discretion, preclude judicial review of constitutional claims).
If the Eleventh Amendment were a statutory provision
stripping the federal courts of jurisdiction, the inquiry wheth-
er the case before the court was of the kind that the statute
forbade would be a fairly routine form of jurisdictional analy-
sis.3 Accordingly, in determining whether the Eleventh
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3 One analogy is cases involving the Norris-LaGuardia Act's
bar on federal courts issuing certain injunctions in labor disputes.
See 29 U.S.C. s 104 (1994) ("No court of the United States shall
have jurisdiction to issue any restraining order or temporary or
permanent injunction in any case involving or growing out of any
labor dispute to prohibit any person or persons participating or
interested in such dispute [from doing certain acts]."). Not surpris-
ingly, the Supreme Court has had to interpret that provision,
together with the provision defining it, see id. at s 113 ("A case
shall be held to involve or grow out of a labor dispute when the case
involves persons who are engaged in the same industry, trade, craft,
or occupation...."), to determine whether particular kinds of cases
fall within the jurisdictional bar. See, e.g., Burlington N. R.R. Co.
v. Brotherhood of Maintenance of Way Employees, 481 U.S. 429,
440-44 (1987) (rejecting restrictive interpretation of Norris-
LaGuardia Act, under which a "labor dispute" would only include
disputes in which the picketed employer is "substantially aligned"
with the primary employer); United States v. United Mine Work-
ers of Am., 330 U.S. 258, 269-89 (1947) (interpreting general
language of ss 104 and 113 to exclude the United States, such that
where the United States seizes actual possession of mines or other
facilities and operates them, and where the United States is the
employer of the workers, the Norris-LaGuardia Act does not
apply); id. at 250-51 (holding that district court properly issued
restraining order to preserve existing conditions while it deter-
mined whether it had jurisdiction to issue injunctive relief, and that
Amendment bars a particular suit, federal courts must decide
a variety of issues that relate to the question whether the suit
is actually one brought against the state, and do so before
jurisdiction is finally resolved. See, e.g., Regents of the
University of California v. Doe, 117 S. Ct. 900, 904 & n.5
(1997) (noting that determining whether a state agency is an
"arm of the state" for Eleventh Amendment purposes, such
that the suit is one against the state itself, involves an
analysis of the state law provisions that define the agency's
character); Seminole Tribe of Florida v. Florida, 517 U.S. 44,
55-57 (1996) (analyzing Indian Gaming Regulatory Act for the
purpose of determining if Congress, consistent with Eleventh
Amendment abrogation requirements, set forth a clear state-
ment of its intent to provide for suits against the states in
federal court, and concluding that it did); Hafer v. Melo, 502
U.S. 21, 24 n.*, 30-31 (1991) (discussing, although not resolv-
ing, competing methods for determining whether a suit for
monetary damages is against a state official in his or her
official capacity, and thus against the state itself, or against a
state official in his or her personal capacity, to which the
Eleventh Amendment does not apply).
Still, it might be thought that the "jurisdiction to determine
jurisdiction" concept is not wholly satisfactory because wheth-
er states are persons under the False Claims Act is also a
cause of action question (which is what the Fifth Circuit
emphasized). But even if the cause of action aspect of the
statutory question takes it outside the "jurisdiction to deter-
mine jurisdiction" doctrine, two additional considerations jus-
tify the approach we have taken.
As our discussion already indicates, the "merits" question
is, in the Eleventh Amendment context, inextricably related
to the "jurisdictional" question. We noted this relationship in
our opinion in explaining why the Eleventh Amendment's
clear statement rule, ordinarily applied to an abrogation
inquiry, is relevant in determining whether there is a cause of
action against the states. Even if we were to assume that
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it had power to punish violations of its orders as criminal contempt
before the jurisdictional question was resolved).
states are defendant persons, and then actually to decide that
the Eleventh Amendment applied, we would then have to ask
whether, for abrogation purposes, the statute contains a clear
statement that states are to be defendants--which is more-or-
less the same statutory analysis that we previously under-
took. This can be seen in the Fifth Circuit's opinion, where
the court held that the state's Eleventh Amendment immuni-
ty was not abrogated because the Act did not contain the
requisite clear statement. See Foulds, 1999 WL 170139, at
* 11. The only real difference between the Fifth Circuit's
analysis of the statute and our own is that the Fifth Circuit
had to actually hold that the Eleventh Amendment applied--a
serious constitutional issue--in order to get there.
We think this close relationship between the statutory and
"jurisdictional" issues, even putting aside "jurisdiction to de-
termine jurisdiction," provides an independent ground on
which to distinguish Steel Co. The relationship between
these two issues is quite different from the relationship
between an ordinary "cause of action" question and a pure
jurisdictional issue such as standing. The Court in Steel Co.
rejected the contention that merits questions could be decided
before constitutional standing questions because the Article
III redressability requirement, for example, "has nothing to
do with the text of the statute relied upon" (except with
regard to entirely frivolous claims). Steel Co., 118 S. Ct. at
1013 n.2. By contrast, the Court explained why merits
questions can be decided before statutory or prudential
standing questions: the two questions overlap to such an
extent that it would be "exceedingly artificial to draw a
distinction between the two." Id. If an inextricable relation-
ship between statutory standing and the merits permits a
court to decide the merits first, the same order would seem
appropriate for the two claims before us.
In addition, we do not think our approach even implicates
the concerns underlying the Supreme Court's rejection of
"hypothetical jurisdiction" because the statutory question is
logically antecedent to the Eleventh Amendment question
(even if it were not thought an aspect of "jurisdiction to
determine jurisdiction"). We have not chosen to decide a
pure (and relatively easier) merits question on the assump-
tion that we have jurisdiction--the paradigm of the hypothet-
ical jurisdiction model. When a court decides, as we do, that
a statute does not provide for a suit against the states, there
is no risk at all that the court is issuing a hypothetical
judgment--an advisory opinion by a court whose very power
to act is in doubt. See Steel Co., 118 S. Ct. at 1016. Rather,
the conclusion that the statute does not provide for suits
against the states in federal court is, in effect, a resolution of
the jurisdictional question, in that the Eleventh Amendment
can no longer be said to apply (which is quite different from
saying, as courts do under the hypothetical jurisdiction doc-
trine, that jurisdiction does not matter because the same
party arguing a lack of jurisdiction prevails on the merits).
The Supreme Court recently adopted precisely this reasoning
in deciding a class action certification issue before an asserted
"array of jurisdictional barriers," including ripeness, standing,
and subject matter jurisdiction. See Amchem Prods., Inc. v.
Windsor, 117 S. Ct. 2231, 2244 (1997). The Court said that,
because resolution of the class certification issues was "logi-
cally antecedent to the existence of any Article III issues, it
[was] appropriate to reach them first." Id. The Fifth Cir-
cuit's view instead is that a court must assume that states are
defendants under the Act and address the Eleventh Amend-
ment question at the outset, lest the court give an interpreta-
tion of the statute that it has no power to give. See Foulds,
1999 WL 170139, at * 6 ("[I]f the Eleventh Amendment
removes our jurisdictional authority to hear [the] case, we
have no power to determine whether the False Claims Act
creates a cause of action against states...."). But such an
approach ostensibly avoids the evils of "hypothetical jurisdic-
tion" (not really at issue) in favor of deciding a purely
hypothetical jurisdictional issue--that is, a jurisdictional issue
that arises solely by virtue of the statutory question assumed.
Since the Eleventh Amendment issue in this case "would not
exist but for" that assumption, Amchem, 117 S. Ct. at 2244
(quoting Georgine v. Amchem Prods., Inc., 83 F.3d 610, 623
(3d Cir. 1996)), we think it is appropriate for us to decide the
logically prior issue first.4
Perhaps most important, our reasoning is confirmed by
several Eleventh Amendment cases in which the Supreme
Court itself has decided "cause of action" questions before
turning to the Eleventh Amendment. See, e.g., Hafer, 502
U.S. at 21-30 (holding that state officials sued in their individ-
ual capacities are persons under 42 U.S.C. s 1983, and then
holding that the Eleventh Amendment presents no bar to
such a suit); Lake Country Estates, Inc. v. Tahoe Regional
Planning Agency, 440 U.S. 391, 398-402 (1979) (deciding that
a claim against an interstate compact that required federal
approval was a claim alleging a deprivation of constitutional
rights "under color of state law" within the meaning of
s 1983, and then deciding that the compact was not entitled
to Eleventh Amendment immunity)5; Monell v. Department
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4 Of course, we recognize some tension between Amchem and
Steel Co., in that a cause of action question is, in a sense, logically
antecedent to jurisdiction too: without a cause of action, the ques-
tion whether a party satisfies jurisdictional requirements would not
arise. Yet Steel Co. clearly requires a court to decide jurisdiction
first. But the Court did not cast any doubt on Amchem in Steel
Co., and we think logical priority, as in Amchem, should control
here.
5 Lake Country Estates went so far as to state that this order
of decision was required. See Lake Country Estates, 440 U.S. at
398 ("Before addressing the immunity issues [of which the Eleventh
Amendment was one], we must consider whether petitioners prop-
erly invoked the jurisdiction of a federal court [under 28 U.S.C.
s 1331]."). Of course, as the Court went on to explain, the question
whether a plaintiff has a federal cause of action sufficient to create
jurisdiction under s 1331 is not itself a jurisdictional argument
(except in the rare circumstances in which the cause of action is
frivolous, see Steel Co., 118 S. Ct. at 1010 (citing Bell v. Hood, 327
U.S. 678, 682 (1946)). See Lake Country Estates, 440 U.S. at 398("[R]espondents' 'jurisdictional' arguments are not squarely direct-
ed at jurisdiction itself, but rather at the existence of a remedy for
the alleged violation of their federal rights."). Still, after identify-
ing the argument as a cause of action argument, the Court resolved
that issue before even turning to the Eleventh Amendment ques-
tion. If the Fifth Circuit were right, the Court should have
of Social Servs., 436 U.S. 658, 664-90 & n.54 (1978) (deciding
that municipalities are persons under s 1983 and, in conclu-
sion, noting that the Eleventh Amendment would not bar
such suits to the extent that a municipality is not considered a
part of the state for Eleventh Amendment purposes); Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
278-80 (1977) (deciding first that the contention that munici-
palities were not persons under s 1983 was a merits question
that had been waived, and then deciding that the Eleventh
Amendment does not bar a suit against a municipality in
federal court); see also Doe v. Chiles, 136 F.3d 709, 713-21
(11th Cir. 1998) (deciding first that a provision of the Medic-
aid Act created a federal right to reasonably prompt provision
of assistance enforceable under s 1983, and only then con-
cluding that the suit was not barred by the Eleventh Amend-
ment). Though these cases pre-date Steel Co., we think they
lend considerable support--albeit implicit--to our approach.
On the other hand, the Court in Welch v. Texas Depart-
ment of Highways and Public Transportation, 483 U.S. 468(1987), decided an Eleventh Amendment abrogation question
and specifically reserved the question whether the statute
created a cause of action. See id. at 476 n.6 ("Because
Eleventh Amendment immunity 'partakes of the nature of a
jurisdictional bar,' we have no occasion to consider the State's
additional argument that Congress did not intend to afford
seamen employed by the States a remedy under the Jones
Act" (quoting Edelman, 415 U.S. at 678)). This decision is
hardly support for our position. But we do not think the
Court's comment that it had "no occasion" to consider the
cause of action question fairly should be read as a holding
that cause of action questions must be decided second. See
also Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S.
275, 277-83 (1959) (holding that the two states had waived
their Eleventh Amendment immunity from suit in an inter-
state compact, and only then deciding that interstate com-
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assumed the cause of action existed once it satisfied itself that the
claim was not a jurisdictional one.
pacts were not exempt from the term "employer" in the Jones
Act, but giving no indication that that order of decision was
required). If that were so, Welch would be flatly inconsistent
with the cases cited above. Again, the Court in Welch
referred to the quasi-jurisdictional nature of the Eleventh
Amendment--that it "partakes" of the nature of a jurisdic-
tional bar--which of course suggests that the order of deci-
sion adopted was not a mandatory one.
Nor do we think, as did the Fifth Circuit, see Foulds, 1999
WL 170139, at *5, that Blatchford v. Native Village of Noa-
tak, 501 U.S. 775 (1991), is to the contrary. The Supreme
Court did note in Blatchford that, given the Eleventh Amend-
ment bar, it would not express a view about whether the
respondent was a "tribe" within the meaning of the statute in
question, see Blatchford, 501 U.S. at 788 n.5. But the statuto-
ry question was not a "cause of action" question at all but
rather a question concerning the jurisdictional statute under
which the respondent had sued, see 28 U.S.C. s 1362 (provid-
ing for federal court jurisdiction for suits by tribes involving
federal law). At most, the Court in Blatchford, for reasons
not entirely clear to us, decided the case on Eleventh Amend-
ment jurisdictional grounds instead of addressing a purely
statutory jurisdictional argument--whether the tribe had
even established jurisdiction in the first place as a "tribe"
under s 1362--that could have made unnecessary its various
constitutional holdings. See id. at 779-82 (holding that suits
by tribes are barred by the Eleventh Amendment); id. at
783-86 (holding that s 1362 did not effect a delegation of the
United States' exemption from the Eleventh Amendment bar
to tribes); see id. at 786-88 (holding that s 1362 did not
abrogate the states' Eleventh Amendment immunity).6 And
again, while there does not appear to be a requirement that
some jurisdictional grounds be decided before others, see
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6 The Ninth Circuit, interestingly enough, had decided the
statutory jurisdictional question before turning to the Eleventh
Amendment issues. See Native Village of Noatak v. Hoffman, 896
F.2d 1157, 1160-61 (9th Cir. 1990), rev'd, Blatchford, 501 U.S. 775(1991). The Supreme Court obviously chose a different order, but
Steel Co., 118 S. Ct. at 1015 n.3, the Court's statement in
Calderon that it was required to decide a case or controversy
question before reaching the Eleventh Amendment, see Cal-
deron, 118 S. Ct. at 1697, casts considerable doubt on Blatch-
ford's order of decision. In any event, Blatchford certainly
cannot be said to mandate the Fifth Circuit's view that the
Eleventh Amendment issue must always be decided first.
We have taken pains to discuss the issue that the Fifth
Circuit identified because of its importance. Although the
issue is complex, and the case law not altogether clear, we are
confident that no authority or principle prohibits our ap-
proach. And because it has the significant virtue of avoiding
a difficult constitutional question, we think it is also the
preferable one.
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did not in any way purport to reject this aspect of the Ninth
Circuit's approach.