Georgetown University Law Center
               Continuing Legal Education Division
                       EEO Update Program
                    April 27 and May 11, 1995
                  RELIEF: MONEY AND INJUNCTIONS
                     by Richard T. Seymour
                             EXCERPT
     K. Eleventh Amendment Sovereign Immunity
            1. The Eleventh Amendment to the Constitution bars
               damage awards in Federal court against the State,
               State agencies, and State officials in their offi-
               cial capacities.  It has no application to suits
               in State court.
            2. Congress has the authority to pierce that immuni-
               ty, but must do so explicitly.  Atascadero State
               Hospital v. Scanlon, 473 U.S. 234, 242 (1985).
            3. Congress amended Title VI of the Civil Rights Act
               of 1964 to express the required unequivocal intent
               with respect to a series of laws: % 504 of the
               Rehabilitation Act of 1973, Title IX of the Educa-
               tion Amendments of 1972, the Age Discrimination
               Act of 1975, Title VI of the Civil Rights Act of
               1964, and the provisions of all other Federal
               statutes prohibiting discrimination by recipients
               of Federal financial assistance.  42 U.S.C. %
               2000d-7, as amended by % 1003 of the Rehabilita-
               tion Act Amendments of 1986, Pub.L. 99-506, 100
               Stat. 1807, 1845.  Sec. 608's reference to the Age
               Discrimination Act of 1975 is to the prohibition
               of age discrimination in Federally assisted pro-
               grams.  See 42 U.S.C. %% 6101 et seq.
            4. The Civil Rights Act of 1991 makes clear that
               damages may be awarded against States, because it
               incorporates the definition of "respondent" in
               Title VII.
            5. The Eleventh Amendment does not apply to suits
               against counties, political subdivisions, and
               similar municipal corporations.  Monell v. Dept.
               of Social Services, 436 U.S. 658 (1978); Mt.
               Healthy City School Dist. Bd. of Educ. v. Doyle,
               429 U.S. 274 (1977).
       L. "Absolute" and "Qualified" Immunity of State and Local
          Officials Who Are Sued in their Personal Capacities
            6. State and local governmental officials may be sued
               in their personal capacities under 42 U.S.C. %%
               1981 and 1983 for actions taken under color of
               State law.  Hafer v. Melo, supra.
            7. The plaintiff in such a lawsuit does not need to
               prove that the challenged action was taken pur-
               suant to official policy or custom.  Hafer v.
               Melo, 116 L.Ed.2d at 309-10; Kentucky v. Graham,
               473 U.S. 159, 166 (1985).
            8. A small proportion of officials enjoy absolute
               immunity because of the importance of the govern-
               mental function at issue.  Examples are judges and
               prosecutors.  Hafer v. Melo, 116 L.Ed.2d at 312;
               Burns v. Reed, 500 U.S. ___, 114 L.Ed.2d 547, 111
               S.Ct. 1934 (1991).
            9. When such officials act on administrative matters
               such as making employment decisions, outside of
               the function which normally entitles them to abso-
               lute immunity, they lose the protection of abso-
               lute immunity as to that matter and are entitled
               only to the normal qualified immunity.  Hafer v.
               Melo, id.
            10.     A State or local governmental official sued
                    for damages in his or her personal capacity
                    and not entitled to absolute immunity is
                    still entitled to qualified immunity.  In
                    Harlow v. Fitzgerald, 457 U.S. 800, 815-19,
                    73 L.Ed.2d 396, 102 S.Ct. 2727 (1982), the
                    Court expressed great dissatisfaction with
                    the operation of the subjective element of
                    the traditional good faith defense set forth
                    in Pierson v. Ray, 386 U.S. 547, 18 L.Ed.2d
                    288, 87 S.Ct. 1213 (1967), because it allowed
                    too many claims to be subject to discovery
                    and go to trial, with the attendant disrup-
                    tion of the public business.  Instead, it
                    opted for an "objective" test:
                    We therefore hold that government officials
                    performing discretionary functions generally
                    are shielded from liability for civil damages
                    insofar as their conduct does not violate
                    clearly established statutory or constitu-
                    tional rights of which a reasonable person
                    would have known.
               457 U.S. at 818.  The Court held that the immunity
               question was threshold and should be determined
               prior to discovery, because it involves immunity
               from suit, not just immunity from damages.
            11.     A denial of qualified immunity is immediately
                    appealable.  Mitchell v. Forsyth, 472 U.S.
                    511 (1985).
            12.     Municipalities sued under % 1983 enjoy no
                    such immunity from suit, and must respond to
                    bare allegations and engage in discovery and
                    the other normal proceedings in litigation
                    without plaintiffs having to plead their
                    claims with more specificity than required
                    for other causes of action.  Leatherman v.
                    Tarrant County Narcotics Intelligence and
                    Coordination Unit, 507 U.S. ___, 122 L.Ed.2d
                    517, 523-24, 113 S.Ct. 1160 (1993) (freedom
                    from liability is not to be confused with
                    immunity from suit).
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