The Strange Case of Blauer and the DWS: A Question of Sovereign Immunity … Sort of
BLAUER v. DEPARTMENT OF WORKFORCE SERVICES
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.
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.