                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-2521
JOHN P. HOLTON, JR.,
                                          Plaintiff-Appellant,
                              v.

INDIANA HORSE RACING COMMISSION
and JOE GORAJEC,
                                       Defendants-Appellees.
                        ____________
        Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
  No. 1:03-cv-1961-LJM-WTL—Larry J. McKinney, Chief Judge.
                        ____________
 ARGUED JANUARY 26, 2005—DECIDED FEBRUARY 22, 2005
                    ____________


  Before EASTERBROOK, RIPPLE, and EVANS, Circuit Judges.
   EASTERBROOK, Circuit Judge. Stewards at Hoosier Park
in Indiana concluded that Chilly Peppa had violated race
rules and set her back from second to third place. The
difference in the purse was $6,250. John Holton, the
filly’s owner, asked the Indiana Horse Racing Commission
to review the stewards’ decision. It declined, deeming
the action non-reviewable under 71 Ind. Admin. Code 10-2-
9(f). Although the Commission’s disposition could have been
challenged in state court, see Ind. Code §4-21.5-5-2, Holton
let the period of limitations expire. But time remained
in the longer period for a suit under 42 U.S.C. §1983,
so Holton has tried this instead. He sued both the Com-
2                                              No. 04-2521

mission and Joe Gorajec, its executive director, contending
that they violated the equal protection clause of the four-
teenth amendment by entertaining appeals selectively. The
commission reviews some decisions notwithstanding Rule
10-2-9(f), Holton maintains, and he submits that selectivity
is unconstitutional.
   The district court dismissed the complaint for lack of
jurisdiction, ruling that the eleventh amendment forecloses
all possibility of relief. 2004 U.S. Dist. LEXIS 14442 (S.D.
Ind. May 18, 2004). This was a misstep. The Commission,
which is part of Indiana’s state government, is not a “per-
son” for purposes of §1983. It is both unnecessary and
inappropriate to decide whether the Constitution would
prevent litigation that Congress has not authorized in the
first place. See Lapides v. University of Georgia, 535 U.S.
613, 617-18 (2002). Gorajec is a “person” who may be sued,
in his official capacity, under the doctrine of Ex parte
Young, 209 U.S. 123 (1908). The relief that Holton re-
quests—an order directing the Commission to review the
stewards’ decision in order to meet a constitutional
requirement—is a kind of prospective equitable remedy
compatible with state sovereign immunity under Young.
See also, e.g., Verizon Maryland Inc. v. Public Service
Commission of Maryland, 535 U.S. 635, 645-46 (2002).
Holton would encounter a problem had he asked the court
to direct the Commission to reverse the stewards’ decision
and pay him $6,250, see Edelman v. Jordan, 415 U.S. 651
(1974), but a request for review differs from a request for
damages.
  On the merits, however, Holton’s claim is unavail-
ing. No decision of which we are aware holds that the
Constitution creates a right to administrative review. Many
systems—of which the Social Security disability-benefits
apparatus is a good example—allow review at the discretion
of appellate tribunals. That is common within the judiciary
too; think of the Supreme Court’s certiorari power. Holton
No. 04-2521                                                3

does not contend that the Commission took his race,
religion, or any other forbidden characteristic into account,
nor does he claim to be a “class of one” burdened by an
irrational and perhaps vindictive application of rules that
are valid as written. See Willowbrook v. Olech, 528 U.S. 562
(2000). His sole contention is that the Constitution entitles
everyone to an administrative appeal as a matter of right.
That position lacks support in the Constitution’s language,
history, and judicial interpretation. See McKane v. Durston,
153 U.S. 684 (1894) (no constitutional right to appeal,
even in a criminal prosecution).
  At oral argument Holton’s lawyer changed ground
and insisted that the stewards themselves had violated
the due process clause by failing to afford him an oppor-
tunity to present evidence and arguments before making
a decision. But the stewards are not parties to this lit-
igation, and no such contention appears in his brief; it
is therefore doubly forfeited. What is more, the stewards
appear to be private rather than state actors, no more
bound to offer hearings than are referees of the National
Football League engaged in replay review. We therefore
need not decide whether the placement and purse at a horse
race in Indiana are property interests to which the due
process clause applies. Compare Goldberg v. Kelly, 397 U.S.
254 (1970), with Edelberg v. Illinois Racing Board, 540 F.2d
279, 282-83 (7th Cir. 1976).
  The judgment of the district court is vacated, and the case
is remanded with instructions to dismiss the complaint on
the merits.
4                                         No. 04-2521

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—2-22-05
