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Federal Practice Manual for Legal Aid Attorneys: 8.1.4 Waiver of Immunity

There are three ways that states may be held to have waived their Eleventh Amendment immunity: (1) by state legislation explicitly waiving immunity from suit; (2) by accepting federal funds that have been provided on the condition that sovereign immunity is waived; and (3) by removing state court litigation to federal court.

Federal Practice Manual for Legal Aid Attorneys: 8.1.8 Prospective Injunctive Relief Under Ex Parte Young

In 1908, the Court in Ex parte Young addressed state sovereign immunity in the context of a federal injunction against a state attorney general that prevented him in his official capacity from enforcing a state law reducing freight rates chargeable by railroads. A federal court held the attorney general in contempt and committed him to federal custody, when he violated the injunction by commencing an enforcement action in state court.

Federal Practice Manual for Legal Aid Attorneys: 8.1.11 Arms of the State Entitled to Sovereign Immunity

Eleventh Amendment immunity applies if the state is the real party in interest, even if unnamed as a party defendant in the suit.4015 Determining whether a suit is actually against the state “is to be determined by the essential nature and effect of the proceeding.”4016 The state is the real party in interest when litigation seeks to recover money from the state.4017 The Court has focused on “the impetus for the Eleventh Amendment” as being “

Federal Practice Manual for Legal Aid Attorneys: 8.1.12 Interlocutory Appeals

One major factor to consider in naming defendants who may assert sovereign immunity is that in federal court a state or state official claiming immunity has a right to an interlocutory appeal if the district court rejects the immunity defense.4030 If an appeal is filed, proceedings against the appealing defendants come to a halt, and the district court has discretion to stay or limit proceedings against other defendants.4031 If, however, the district court certifies in writing that the immun

Federal Practice Manual for Legal Aid Attorneys: 8.1.14 Administrative Proceedings

In the context of a dispute involving maritime law, the Supreme Court held that states enjoy sovereign immunity from federal adjudicative administrative hearings initiated and prosecuted by private parties, so that a federal agency may not adjudicate a dispute between a private party and a nonconsenting state.4044 This may affect federal whistle-blower statutes that provide for administrative hearings.4045 However, the bar of sovereign immunity in that situation can be overcome if the federa

Federal Practice Manual for Legal Aid Attorneys: 8.2.2 Judicial Immunity

The Supreme Court held in Stump v. Sparkman that judges have absolute immunity from Section 1983 damage actions for their “judicial” acts.4052 The Court permitted liability only for acts not taken in the judge’s judicial capacity or for judicial acts taken “in the clear absence of all jurisdiction.”4053 Drawing from the common-law immunity of judges, the Court held that judicial immunity protects judges even when their judicial acts:

Federal Practice Manual for Legal Aid Attorneys: 8.2.3 Prosecutorial Immunity

Prosecutors enjoy absolute immunity from damage liability for the initiation and prosecution of a criminal case.4090 The Supreme Court, relying heavily on considerations of policy, reasoned that initiating a prosecution and presenting a case are activities that are “intimately associated with the judicial phase of criminal process, and thus were functions to which the reasons for absolute immunity apply with full force.”4091

Federal Practice Manual for Legal Aid Attorneys: 8.2.4 Witness Immunity

With the exception of complaining witnesses who sign affidavits seeking the issuance of search or arrest warrants, witnesses in judicial proceedings are absolutely immune from suit arising from their testimony.4113 This absolute immunity extends to suits arising from the witness’s grand jury testimony.4114 Though often phrased as witness immunity, the immunity can best be understood as an incident of judicial immunity.

Federal Practice Manual for Legal Aid Attorneys: 8.2.7 Clearly Established Law

A constitutional right is clearly established when its contours are “sufficiently clear that every reasonable official would understand that what he is doing violates that right.”4154 Although the “violative nature of the particular conduct” must be clearly established, there is no requirement for a case directly on point.4155 Rather, existing precedent need only “have placed the statutory or constitutional question beyond debate.”4156 Such p

Federal Practice Manual for Legal Aid Attorneys: 8.2.8 Qualified Immunity, Intentional Discrimination, and Retaliation

Conventional claims of unlawful discrimination and retaliation rest upon conduct whose legality depends upon the motive for—not the character of--the conduct. To wit, the Constitution does not prohibit firing public employees, but it does prohibit firing them because of a protected characteristic (e.g., race, sex, age, disability, religion, sexual orientation, national origin, etc.) or in retaliation for protected speech.

Federal Practice Manual for Legal Aid Attorneys: 8.2.9 Qualified Immunity Practice and Procedure

Qualified immunity protects public officials from the burden of litigation as well as from judgments.4182 Therefore, courts are instructed to resolve the issue early, before discovery if possible.4183 Because defendants are virtually certain to raise qualified immunity, either through a motion to dismiss or answer or motion for summary judgment, you must anticipate it in drafting the complaint with the plausibility pleading requirements of Iqbal in mind.

Federal Practice Manual for Legal Aid Attorneys: 3.1.9 Actual and Imminent Injury

Litigation, especially against government defendants, may involve plaintiffs faced with a risk of threatened injury. Once the plaintiff has asserted a cognizable injury, the Supreme Court has long cautioned that the injury in fact must be “actual and imminent, not conjectural or hypothetical.”697 Our discussion of non-economic injuries above describes the Court’s approach to this requirement of standing in several of the earlier cases.