2014 UT App. 100 (Utah Ct. App., May
1, 2014)
When
[ironies] come, they come not single spies, but in battalions.
—
Paraphrasing Hamlet IV.v
The Department of
Workforce Services, charged with administering Utah employment law, fired
Blauer, its legal counsel, for rejecting its proposed accommodations to his
disabilities. Blauer’s physicians
recommended he avoid sedentary labors.
In response, DWS assigned Blauer to hear employment cases—mostly by
phone. Blauer refused, asserting that
this was purely sedentary work. The DWS
replied that since he would be on the telephone most of the time, he
could walk about during the hearings.
Eventually, the DWS terminated Blauer, who brought suit in Utah state
court under the federal Americans with Disabilities Act (ADA) and the Utah
Antidiscrimination Act (UADA).
Blauer pointed to the
ADA’s specific abrogation of Eleventh Amendment immunity, declaring that
no state could violate the ADA and then retreat behind the Eleventh Amendment. Ironically, however, in its
endless tug-of-war with Congress, the US Supreme Court had struck that
provision down in 2001 as unconstitutionally abrogating the Eleventh Amendment. Board
of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364, 373–74
(2001). Moreover, the Utah Court of
Appeals pointed out, the Eleventh Amendment applies to federal
jurisdiction. Blauer had brought his
suit in state court. Blauer seemed to be
arguing, the court mused, that the absence from the Eleventh Amendment of
explicit protection for the states from federal claims in state court somehow
allowed Blauer to sue DWS in state instead of federal court. 2014 UT App. at ¶
7. This idea, however, the US Supreme
Court had particularly rejected, declaring that “state courts could [not] be
required ‘to entertain federal suits which are not within the judicial power of
the United States and could not be heard in federal courts.’” Id.,
quoting Alden v. Maine, 527 U.S. 706,
712–13, 754 (1999).
The Blauer Court leaves unanswered the rather critical question how
there could ever be a federal suit
outside the jurisdiction of the federal courts, or how a state legislature
might create such a thing, or by what mechanism a plaintiff might lawfully
bring it. But since state sovereign
immunity from federal suits “exists
irrespective of the Eleventh Amendment,” it probably makes little
difference. Except of course to Mr.
Blauer.
Blauer v. DWS stands, apparently, for the
proposition that the Eleventh Amendment is superfluous, that nobody but other governments can
maintain a federal (or state) suit against a state. And this applies especially to suits based on
laws the federal government cannot pass.