     Case: 18-50646   Document: 00515222965        Page: 1   Date Filed: 12/04/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit


                                    No. 18-50646
                                                                      FILED
                                                               December 4, 2019
                                                                 Lyle W. Cayce
CITY OF AUSTIN,                                                       Clerk

             Plaintiff - Appellee

v.

KEN PAXTON, Attorney General of the State of Texas; TEXAS
WORKFORCE COMMISSION,

             Defendants - Appellants




                Appeal from the United States District Court
                     for the Western District of Texas


Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      The City of Austin enacted a housing ordinance that prohibits landlords
from refusing tenants who wish to pay their rent with federal housing
vouchers. Shortly thereafter, the State of Texas enacted a statute that sought
to invalidate the City’s ordinance and to allow landlords to continue to refuse
federal vouchers. The City then sued Ken Paxton, the Texas Attorney General,
and the Texas Workforce Commission (together, the “State”), seeking to enjoin
the Texas statute, alleging it was preempted by federal law. The State moved
to dismiss the complaint for lack of jurisdiction based on standing and
Eleventh Amendment sovereign immunity and for the City’s failure to state
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                                 No. 18-50646
any plausible claims. The district court denied the State’s motion, holding that
the City had standing, and that the City’s suit could proceed against Attorney
General Paxton and the Texas Workforce Commission under the Ex parte
Young exception to sovereign immunity. The State then brought this
interlocutory appeal with respect to the district court’s sovereign-immunity
holding only. Because Attorney General Paxton does not possess the requisite
“connection to the enforcement” of the Texas statute to satisfy Ex parte Young,
and because the Texas Workforce Commission is a state agency immune to
suit, we REVERSE and REMAND to the district court.
                                       I.
      The Federal Housing Choice Voucher Program (the “voucher program”
or the “program”) allows low-income families to use federally-funded vouchers
to access the private rental market. The United States Department of Housing
and Urban Development (“HUD”) funds the program, but state and local
public-housing authorities administer it. A voucher recipient is responsible for
finding a landlord that will accept federal housing vouchers. See 24 C.F.R. §
982.302(a).
      In December 2014, the City adopted a housing ordinance (the
“Ordinance”), that bars landlords from refusing to rent to tenants paying their
rent with program vouchers. The City contends that the Ordinance helps to
“remove barriers to fair housing choice by allowing voucher holders . . . [to
rent] housing in higher opportunity neighborhoods in the City.” The City
asserts that enacting the Ordinance is part of its obligation under the voucher
program’s mandate: “[the program was created] [f]or the purpose of aiding low-
income families in obtaining a decent place to live and of promoting
economically mixed housing.” 42 U.S.C. § 1437f(a).
      In response to the Ordinance, the Texas legislature enacted Texas Local
Government Code § 250.007 to prevent municipalities and counties from
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                                   No. 18-50646
adopting ordinances that restrict landlords’ rights to refuse to rent to voucher
program participants. Section 250.007(a) bars municipalities or counties from
“adopt[ing] or enforc[ing] an ordinance or regulation that prohibits [a landlord]
. . . from refusing to lease or rent [a] housing accommodation to a person
because the person’s lawful source of income to pay rent includes funding from
a federal housing assistance program.” TEX. LOC. GOV’T CODE § 250.007(a).
Section 250.007(c) permits municipalities and counties to create incentive and
other programs that encourage landlords to allow federal housing vouchers. Id.
§ 250.007(c).
      The City originally sued the State of Texas and Greg Abbott, the
Governor of Texas, alleging that federal law preempts § 250.007 because
§ 250.007 “obstructs [Congress’s] purposes and objectives” in creating the
voucher program. The State of Texas moved to dismiss the proceeding for
(i) lack of subject-matter jurisdiction based on standing and sovereign
immunity, and (ii) the City’s failure to state any plausible claims. The City
then amended its complaint, replacing Governor Abbott with Ken Paxton, the
Texas Attorney General, in his official capacity, and the Texas Workforce
Commission.
      The district court denied the State’s motion to dismiss for lack of
jurisdiction,   rejecting   the   State’s       standing   and    sovereign-immunity
arguments. The court dismissed the City’s conflict-preemption claim and one
of its express-preemption claims but denied the State’s motion to dismiss the
City’s second express-preemption claim. The issue in this interlocutory appeal
is whether Attorney General Paxton and the Texas Workforce Commission are
subject to the Ex parte Young exception to Eleventh Amendment sovereign
immunity.




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                                  No. 18-50646
                                        II.
      We review the district court’s jurisdictional determination of sovereign
immunity de novo. NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 393 (5th Cir.
2015); Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 962
(5th Cir. 2014).
                                        III.
      In most cases, Eleventh Amendment sovereign immunity bars private
suits against nonconsenting states in federal court. See Va. Office for Prot. &
Advocacy v. Stewart, 563 U.S. 247, 253 (2011) (“Sovereign immunity is the
privilege of the sovereign not to be sued without its consent.”); see also Bd. of
Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (“The ultimate
guarantee of the Eleventh Amendment is that nonconsenting [s]tates may not
be sued by private individuals in federal court.”). The Supreme Court has
recognized that sovereign immunity also prohibits suits against state officials
or agencies that are effectively suits against a state. See, e.g., Edelman v.
Jordan, 415 U.S. 651, 663−69 (1974) (extending sovereign immunity to state
officers in their official capacities); Ford Motor Co. v. Dep’t of Treas., 323 U.S.
459, 463−64 (1945) (barring suits in which the state is a real party in interest,
despite not being a named defendant). In short, Eleventh Amendment
immunity is not limited to cases in which states are named as defendants. So,
unless the state has waived sovereign immunity or Congress has expressly
abrogated it, the Eleventh Amendment bars the suit. See AT&T Commc’ns v.
Bellsouth Telecomms. Inc., 238 F.3d 636, 644−45 (5th Cir. 2001).
      Enter the Ex parte Young exception to Eleventh Amendment sovereign
immunity, which was established in its namesake case. See 209 U.S. 123
(1908). The Young exception is a legal fiction that allows private parties to
bring “suits for injunctive or declaratory relief against individual state officials
acting in violation of federal law.” Raj v. La. State Univ., 714 F.3d 322, 328
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                                  No. 18-50646
(5th Cir. 2013). For the exception to apply, the state official, “by virtue of his
office,” must have “some connection with the enforcement of the [challenged]
act, or else [the suit] is merely making him a party as a representative of the
state, and thereby attempting to make the state a party.” Young, 209 U.S. at
157. The text of the challenged law need not actually state the official’s duty to
enforce it, although such a statement may make that duty clearer. Id.
        The Supreme Court’s recent Ex parte Young jurisprudence explains that
the inquiry into whether a suit is subject to the Young exception does not
require an analysis of the merits of the claim. See Verizon Md., Inc. v. Pub.
Serv. Comm’n, 535 U.S. 635, 646 (2002). Rather, “a court need only conduct a
‘straightforward inquiry into whether [the] complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective.’”
Va. Office, 563 U.S. at 255 (alteration in original) (quoting Verizon, 535 U.S. at
645).
        It is undisputed that Texas has not consented to this suit and that
Congress has not abrogated the State’s immunity. The question, then, is
whether the defendants are subject to suit under the Ex parte Young exception.
        A. Ken Paxton, Texas Attorney General
        We begin with whether the district court was correct in holding that
Attorney General Paxton was subject to the Young exception. In conducting
our Ex parte Young analysis, we first consider whether the plaintiff has named
the proper defendant or defendants. Where a state actor or agency is
statutorily tasked with enforcing the challenged law and a different official is
the named defendant, our Young analysis ends. For example, in Morris v.
Livingston, an inmate in the custody of the Texas Department of Criminal
Justice (“TDCJ”) sued the Governor of Texas, challenging the constitutionality
of a statute that required TDCJ inmates to pay a “health care services fee” if
an inmate initiated a visit to a health care provider. 739 F.3d 740, 742 (5th Cir.
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                                  No. 18-50646
2014). The statute specifically tasked the TDCJ as responsible for its
enforcement. Id. at 745−46. Thus, a panel of this court held that the Governor
was an improper defendant and upheld the district court’s dismissal of the
inmate’s claims against him. Id. at 746 (“[The challenged statute] makes clear
that TDCJ is the agency responsible for the section’s administration and
enforcement . . . . It does not [] task [the] Governor [] with its enforcement.”).
Where no state official or agency is named in the statute in question, we
consider whether the state official actually has the authority to enforce the
challenged law. Here, the State concedes in its brief that the Attorney General
has the authority to enforce § 250.007: “[T]he Attorney General does have the
power to enforce this provision [§ 250.007].”
       Once it’s clear that the named defendant is proper, our precedent directs
us to read the language in Young and Verizon together. Such an approach
results in two analyses that help us to determine whether the Young exception
applies to the relevant state official. We conduct a Verizon “straightforward
inquiry into whether the complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.” 535 U.S. at 645. We
also decide whether the official in question has a “sufficient connection [to] the
enforcement” of the challenged act. Young, 209 U.S. at 157; see Air Evac EMS,
Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 519 (5th Cir.
2017) (“First, as the district court noted, [plaintiff] claims an ongoing violation
of federal law and seeks prospective relief . . . . Next, we hold state defendants
have a sufficient connection to the enforcement of the [challenged law].”).
      The district court held that the “complaint alleges an ongoing violation
of federal law and seeks relief properly characterized as prospective.” Verizon,
535 U.S. at 645. The court reasoned that the City’s allegation that “§ 250.007
is invalid and preempted by federal law . . . qualifies as an ongoing violation of
federal law for the purposes of Ex parte Young.” This court has previously held
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                                  No. 18-50646
that an allegation in a plaintiff’s complaint of federal preemption of the law at
issue satisfies the Verizon standard for the purposes of the Young exception.
See Air Evac, 851 F.3d at 519 (holding that because the complaint claimed
federal law “expressly preempt[ed] the [challenged Texas law] and [sought] an
injunction and declaratory judgment,” plaintiff claimed “an ongoing violation
of federal law and [sought] prospective relief”); see also Green Valley Special
Util. Dist. v. Walker, 324 F.R.D. 176, 182 (W.D. Tex. 2018). Thus, the district
court was correct with respect to its Verizon analysis.
      However, we next hold that the district court was incorrect in finding
that Attorney General Paxton has a sufficient “connection to the enforcement”
of § 250.007 to be subject to the Ex parte Young exception. What constitutes a
sufficient “connection to [] enforcement” is not clear from our jurisprudence. In
Okpalobi v. Foster, an en banc court deciding whether the Governor of
Louisiana and Attorney General were entitled to Eleventh Amendment
sovereign immunity examined the “connection” element of the “connection [to]
the enforcement” language in Young. 244 F.3d 405, 410−24 (5th Cir. 2001)
(plurality op.); see Young, 209 U.S. at 157. The Okpalobi plurality held that,
for a state official to have the requisite “connection” to apply the Young
exception, the official must have “the particular duty to enforce the statute in
question and a demonstrated willingness to exercise that duty.” Okpalobi, 244
F.3d at 416. (This same “connection” standard was also phrased in Okpalobi
as requiring the state official in question to be “specially charged with the duty
to enforce the statute” and “be threatening to exercise that duty.” Id. at 414.)
      But panels have recognized that this definition of “connection”—and the
entire Eleventh Amendment sovereign immunity analysis in Okpalobi—may
not be binding precedent. In K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010),
a panel of this court “explicitly declin[ed] to follow” the Okpalobi “connection”
standard because it was not “binding precedent.” Air Evac, 851 F.3d at 518; see
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K.P., 627 F.3d at 124 (“Defendants rely heavily on the lead opinion in Okpalobi
for the proposition that a ‘special’ relationship—not just ‘some connection’—
needs to exist [between a state official and the challenged law to apply the
Young exception]. Because that part of the en banc opinion did not garner
majority support, the Eleventh Amendment analysis is not binding precedent.”
(citations omitted)). Further, the panel in Air Evac EMS, Inc. v. Texas,
Department of Insurance, Division of Workers’ Compensation noted K.P.’s
holding regarding Okpalobi’s Eleventh Amendment analysis but declined to
address whether it found that part of the opinion to be precedential. See Air
Evac, 851 F.3d at 518 (“[T]he Eleventh Amendment analysis in Okpalobi . . .
received support only from a plurality of our en banc court[] [and] the majority
decided the case on standing. Subsequently, in K.P., our court stated . . . [that]
‘the Eleventh Amendment analysis [in Okpalobi] is not binding precedent.’”
(citations omitted) (quoting K.P., 627 F.3d at 124)). On the other hand, the
panel in Morris, a published case, quoted the Okpalobi “connection” standard
as the correct one in analyzing whether a suit against a state official can
proceed pursuant to the Young exception: “The required ‘connection’ [to apply
the Ex parte Young exception to a state official] is not ‘merely the general duty
to see that the laws of the state are implemented,’ but ‘the particular duty to
enforce the statute in question and a demonstrated willingness to exercise that
duty.’” Morris, 739 F.3d at 746 (quoting Okpalobi, 244 F.3d at 416).
      So, unsurprisingly, the parties devote much of their briefs to arguing
over whether Attorney General Paxton has a sufficient “connection” to the
enforcement of § 250.007 under the Okpalobi standard (reiterated in Morris,
739 F.3d at 746). However, in the same vein as panels before us, we find that
we need not define the outer bounds of this circuit’s Ex parte Young analysis
today—i.e., whether Attorney General Paxton must have “the particular duty
to enforce the statute in question and a demonstrated willingness to exercise
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                                    No. 18-50646
that duty” to be subject to the exception. Okpalobi, 244 F.3d at 416; see K.P.,
627 F.3d at 124 (“We need not resolve whether Ex parte Young requires . . . a
‘special relationship’ between the state actor and the challenged statute.”); see
also Air Evac, 851 F.3d at 519 (“The parties debate whether Ex parte Young
applies only when there is a threatened or actual proceeding to enforce the
challenged state law. We need not resolve that question.”). Instead, as
explained below, we hold that Attorney General Paxton is not subject to the Ex
parte Young exception because our Young caselaw requires a higher showing
of “enforcement” than the City has proffered here.
      Panels in this circuit have defined “enforcement” as “typically involv[ing]
compulsion or constraint.” K.P., 627 F.3d at 124; see Air Evac, 851 F.3d at 519.
The City contends that Paxton’s “authority . . . constrain[s] the City’s ability to
enforce its ordinance, which is sufficient to show that Ex [p]arte Young’s
exception applies.” It claims that the Attorney General has a “habit of suing or
intervening in litigation against the City” involving municipal ordinances and
policies to “enforce the supremacy of state law.” 1 The City supports its
allegation that this “habit” exists by pointing to several recent lawsuits where
Paxton intervened in matters related to municipal ordinances. The district
court agreed with the City, holding that the Attorney General “possesses ‘some
connection’ to the enforcement of the statute” because “he might similarly bring
a proceeding to enforce the supremacy of § 250.007.” (emphasis added). We
disagree.
      In K.P., a panel of this court considered whether the Louisiana Patients’
Compensation Fund Oversight Board (the “Board”) had the requisite


      1  Although the State concedes that Attorney General Paxton has the authority to
enforce § 250.007, we recognize this is an odd type of enforcement authority. It appears
§ 250.007 would be enforced as a defense in a private suit brought by the City against a
landlord refusing to abide by the Ordinance—and the Attorney General could intervene in
such a suit to “enforce the supremacy of state law.”
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“connection [to] the enforcement” of a challenged statute that removed the
medical malpractice cap for abortion providers. 627 F.3d at 119. The Board was
charged with overseeing malpractice claims lodged against physicians enrolled
in the Patient Compensation Fund, a program that capped physicians’ liability
in exchange for certain concessions. Id. The Board denied the plaintiffs
coverage for an abortion-related malpractice claim, relying on the challenged
statute. Id. Plaintiffs sued the Board, alleging the abortion statute was
unconstitutional, and the Board invoked Eleventh Amendment sovereign
immunity. Id. at 120. The K.P. panel noted that the Board was required to
differentiate allowed claims and those not allowed under the challenged
abortion statute and, thus, took an “active role” in enforcing the statute. Id. at
125. In concluding the Board had the requisite enforcement authority as to the
abortion statute under Young, the panel held that, “the Board’s role starts with
deciding whether to have a medical review panel consider abortion claims and
ends with deciding whether to pay them.” Id.
      In Air Evac, an air-ambulance company alleged that a state workers’
compensation statute that set the maximum allowable reimbursement amount
for medical services was preempted by federal law. 851 F.3d at 510−13. The
air-ambulance company sought to employ the Ex parte Young exception to sue
the Texas Commissioner of Insurance and the Texas Commissioner of Workers’
Compensation. Id. The state officials in question engaged in “rate-setting”
under the workers’ compensation statute and oversaw the initial arbitration
process for provider-insurer fee disputes. Id. Relying on K.P.’s definition of
enforcement as “compulsion or constraint,” the panel in Air Evac held that the
state officials were subject to the Young exception because they “constrain[ed]
[the air-ambulance company’s] ability to collect more than the maximum-
reimbursement rate under the [workers’ compensation statute] . . . [and thus,]
effectively ensur[ed] the maximum-reimbursement scheme [was] enforced
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from start to finish.” Id. at 519 (emphasis omitted). Importantly, the Air Evac
panel noted that direct enforcement of the challenged law was not required:
actions that constrained the plaintiffs were sufficient to apply the Young
exception to the Air Evac officials under this court’s K.P. holding. Id.
       Likewise, in NiGen Biotech, L.L.C. v. Paxton, this court considered
whether Ex parte Young could apply to Attorney General Paxton where he
continuously refused to justify numerous “threatening letters” from his office
to a manufacturer and distributor of dietary supplements and its retailers
alleging that the manufacturer’s packaging was in violation of the Texas
Deceptive Trade Practices Act (“DTPA”). 804 F.3d at 392−95. There, the court
did not explicitly examine Paxton’s “connection to the enforcement” of the
DTPA. Id. But the fact that Paxton sent letters threatening enforcement of the
DTPA makes it clear that he had not only the authority to enforce the DTPA,
but was also constraining the manufacturer’s activities, in that it faced possible
prosecution if it continued to make and distribute its products. 2
       In K.P., Air Evac, and NiGen, the panels pointed to specific enforcement
actions of the respective defendant state officials warranting the application of
the Young exception: (i) prohibiting payment of claims under the abortion
statute in K.P., (ii) rate-setting in Air Evac, and (iii) sending letters
threatening formal enforcement of the DTPA in NiGen. Here, the City has
made no such showing with respect to the Attorney General’s enforcement of
§ 250.007. Namely, none of the cases the City cites to demonstrate the Attorney
General’s “habit” of intervening in suits involving municipal ordinances to



       2  NiGen focused on whether the manufacturer’s complaint alleged an ongoing violation
of federal law for the purposes of the Young exception. 804 F.3d at 392−95. It did: (i) the
manufacturer alleged the Attorney General was unconstitutionally restraining its
commercial speech and punishing it without due process by sending the threatening letters,
and (ii) the Attorney General was violating federal law because of his “continued refusal (now
after nearly four years) to justify [his] threatening letters.” Id. at 395.
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“enforce the supremacy of state law” have any overlapping facts with this case
or are even remotely related to the Ordinance. And the mere fact that the
Attorney General has the authority to enforce § 250.007 cannot be said to
“constrain” the City from enforcing the Ordinance. The City simply provides
no evidence that the Attorney General may “similarly bring a proceeding” to
enforce § 250.007: that he has chosen to intervene to defend different statutes
under different circumstances does not show that he is likely to do the same
here. Further, we note that the City faces no consequences if it attempts to
enforce its Ordinance. Contrary to what the City argues, this is not a case akin
to Steffel v. Thompson, because the City faces no threat of criminal prosecution
like the plaintiff there. See 415 U.S. 452, 475 (1974) (holding that “federal
declaratory relief is not precluded when no state prosecution is pending and a
federal plaintiff demonstrates a genuine threat of enforcement of a disputed
state [] statute”). Thus, we find that Attorney General Paxton lacks the
requisite “connection to the enforcement” of § 250.007. And although we don’t
opine on the Okpalobi “connection” standard, we recognize that this circuit’s
caselaw requires some scintilla of “enforcement” by the relevant state official
with respect to the challenged law. We see no “compulsion or constraint” on
the part of the Attorney General here. Accordingly, the City’s suit against
Attorney General Paxton is barred by Eleventh Amendment sovereign
immunity.
      We also recognize that our standing jurisprudence bolsters this
conclusion. This court has acknowledged that our Article III standing analysis
and Ex parte Young analysis “significantly overlap.” Air Evac, 851 F.3d at 520.
Generally, to have standing to sue under Article III, a plaintiff must allege:
(i) an injury-in-fact that is (ii) fairly traceable to the defendant’s challenged
action and (iii) redressable by a favorable outcome. Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 411 (2013); see Lujan v. Defenders of Wildlife, 504 U.S. 555,
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560−561 (noting that an injury-in-fact must be “(a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical”). A plaintiff “can
meet the standing requirements when suit is brought under the Declaratory
Judgment Act, 28 U.S.C. §§ 2201−02, by establishing actual present harm or a
significant possibility of future harm.” Roark & Hardee LP v. City of Austin,
522 F.3d 533, 542 (5th Cir. 2008) (emphasis added) (quoting Bauer v. Texas,
341 F.3d 352, 357–58 (5th Cir. 2003)).
      In fact, it may be the case that an official’s “connection to [] enforcement”
is satisfied when standing has been established. See Russell v. Lundergan-
Grimes, 784 F.3d 1037, 1047 (6th Cir. 2015) (“[A]t the point that a threatened
injury becomes sufficiently imminent and particularized to confer Article III
standing, that threat of enforcement also becomes sufficient to satisfy [the
connection to the enforcement] element of Ex parte Young.”). That is, because
it’s been determined that an official can act, and there’s a significant possibility
that he or she will act to harm a plaintiff, the official has engaged in enough
“compulsion or constraint” to apply the Young exception. And even if Article
III standing’s requirement of a “significant possibility of future harm” and the
“connection to [] enforcement” requirement under our precedent are not
identical, there are certainly notable similarities between the two. At the
minimum, our caselaw shows that a finding of standing tends toward a finding
that the Young exception applies to the state official(s) in question. See, e.g.,
K.P., 627 F.3d at 122 (addressing standing in an appeal of dismissal based on
Ex parte Young because “there exists a significant question about it” despite
“neither party [] rais[ing] the issue,” and finding that: (i) standing existed and
(ii) the Young exception applied to the relevant state officials).




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       The district court held that the City had standing to sue the Attorney
General. We note that it’s unlikely the City had standing. 3 The City fails to
show how the Attorney General’s past interventions in suits involving
municipal ordinances demonstrate that there is “a significant possibility” that
the Attorney General will inflict “future harm” by acting to enforce “the
supremacy of [§ 250.007]” over the Ordinance.
       B. Texas Workforce Commission
       We next consider whether the district court correctly found that the
Texas Workforce Commission was subject to the Ex parte Young exception. The
State contends that the court erred in exercising jurisdiction over the
Commission because state agencies are not subject to the exception. 4
       The State is correct in its assertion that the Commission is immune to
suit and not subject to the Young exception. State agencies are entitled to
Eleventh Amendment sovereign immunity. See Cozzo v. Tangipahoa Par.
Council-President Gov’t, 279 F.3d 273, 280–81 (5th Cir. 2002) (“The Eleventh


       3  Although we decline to do so today, courts in this circuit have considered standing
on interlocutory appeal in the past. For example, this court has recognized that a review of
standing in the context of a Rule 23(f) class certification interlocutory appeal is appropriate
in some instances. See Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 F.3d 290, 294 (5th Cir.
2001) (“Standing, however, goes to the constitutional power of a federal court to entertain an
action, and this court has the duty to determine whether standing exists even if not raised by
the parties.”) (emphasis added). The court also considered standing in an interlocutory appeal
of a district court’s Eleventh Amendment sovereign immunity determination in an
unpublished case, Walker v. Livingston, 381 F. App’x 477 (5th Cir. 2010) (per curiam). Walker
involved a 42 U.S.C. § 1983 wrongful death claim for damages where defendants brought an
interlocutory appeal on Eleventh Amendment grounds after the district court denied their
motion for summary judgment. Id. at 478. There, this court held that although “Ex parte
Young allows, under certain circumstances, the plaintiff to seek injunctive relief . . . it is clear
that the plaintiffs lack standing to assert claims for injunctive or declaratory relief.” Id.
        4 The State also argues that the City has waived its Young arguments with respect to

the Texas Workforce Commission because it did not discuss the applicability of the exception
to the Commission in its brief. To the extent it matters, we agree. See Yohey v. Collins, 985
F.2d 222, 224−25 (5th Cir. 1993) (holding that one “abandon[s] [one’s] arguments by failing
to argue them in the body of [one’s] brief”); see also United States v. Thibodeaux, 211 F.3d
910, 912 (5th Cir. 2000) (“It has long been the rule in this circuit that any issues not briefed
on appeal are waived.”).
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Amendment bars a state’s citizens from filing suit against the state or its
agencies in federal courts . . . . When a state agency is the named defendant,
the Eleventh Amendment bars suits for both money damages and injunctive
relief unless the state has waived its immunity.” (citation omitted)). We have
held that, “[the] TWC is an agency of the State of Texas and therefore all claims
brought against it are barred by the Eleventh Amendment.” Salinas v. Tex.
Workforce Comm’n, 573 F. App’x 370, 372 (5th Cir. 2014) (per curiam). Texas
law also confirms that the Commission is a state agency. Texas Local
Government Code § 325.002 defines “[s]tate agency” as an entity expressly
made subject to Chapter 325. TEX. LOC. GOV’T CODE § 325.002. And the Texas
Labor Code states that, “[t]he Texas Workforce Commission is subject to
Chapter     325,   Government     Code    (Texas     Sunset    Act).”   TEX.   LAB.
CODE § 301.008; see U.S. Oil Recovery Site Potentially Responsible Parties Grp.
v. R.R. Comm’n of Tex., 898 F.3d 497, 502 (5th Cir. 2018) (finding that the
Railroad Commission of Texas is a state agency because it is subject to Chapter
325).
        However, “the Eleventh Amendment does not bar suits for injunctive or
declaratory relief against individual state officials acting in violation of federal
law.” Raj, 714 F.3d at 328 (citing Young, 209 U.S. at 155–56). But in order “[t]o
fall within the Ex parte Young exception to sovereign immunity . . . a plaintiff
must name individual state officials as defendants in their official capacities.”
Id. (finding that although plaintiff had asserted claims for injunctive and
declaratory relief, he could not utilize the Young exception to sovereign
immunity because he named only state entities, and not their individual
officers, as defendants). Here, the City clearly named only the “Texas
Workforce Commission,” a state agency immune to suit, and did not name any
individual commissioners. Thus, the City’s suit against the Commission is
barred by sovereign immunity.
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   Case: 18-50646     Document: 00515222965      Page: 16      Date Filed: 12/04/2019



                                  No. 18-50646
                                       IV.
      For the foregoing reasons, we hold that the district court was incorrect
in finding that the City’s suit against Attorney General Paxton and the Texas
Workforce Commission could proceed pursuant to the Ex parte Young
exception to sovereign immunity. We REVERSE and REMAND to the district
court with instructions to dismiss for lack of jurisdiction.




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