                                                                        RECOMMENDED FOR FULL-TEXT PUBLICATION
12   Lawson, et al. v. Shelby                   No. 98-6065                  Pursuant to Sixth Circuit Rule 206
     County, Tennessee, et al.                                      ELECTRONIC CITATION: 2000 FED App. 0155P (6th Cir.)
                                                                                File Name: 00a0155p.06

                             II.
   Accordingly, I respectfully dissent from the majority’s       UNITED STATES COURT OF APPEALS
opinion because I would affirm the district court’s opinion by                 FOR THE SIXTH CIRCUIT
finding that the statute of limitations barred this action.                      _________________


                                                                                                  ;
                                                                                                   
                                                                 RANDY LAWSON and SHARON
                                                                                                   
                                                                 LAWSON,
                                                                                                   
                                                                       Plaintiffs-Appellants,
                                                                                                   
                                                                                                       No. 98-6065

                                                                                                   
                                                                             v.                     >
                                                                                                   
                                                                                                   
                                                                                                   
                                                                 SHELBY COUNTY,

                                                                                                   
                                                                 TENNESSEE, and its division

                                                                 ELECTION COMMISSION, O.C. 
                                                                 the SHELBY COUNTY
                                                                                                   
                                                                 PLEASANT, JR., DAVID H.           
                                                                                                   
                                                                                                   
                                                                 LILLARD, JR.,YVONNE B.

                                                                                                   
                                                                 ACEY, RICHARD L. HOLDEN,

                                                                                                   
                                                                 and MYRA STILES, in their
                                                                                                   
                                                                 official capacity as members
                                                                                                   
                                                                 of the Shelby County
                                                                 Election Commission, and          
                                                                                                   
                                                                                                   
                                                                 THE STATE OF TENNESSEE

                                                                                                   
                                                                 and DON SUNDQUIST, in his
                                                                                                   
                                                                 official capacity as Governor

                                                                          Defendants-Appellees. 
                                                                 of the State of Tennessee,

                                                                                                  1
                                                                        Appeal from the United States District Court
                                                                     for the Western District of Tennessee at Memphis.
                                                                     No. 97-03034—Bernice B. Donald, District Judge.

                                                                                            1
2     Lawson, et al. v. Shelby                    No. 98-6065      No. 98-6065                     Lawson, et al. v. Shelby      11
      County, Tennessee, et al.                                                                   County, Tennessee, et al.

                Submitted: October 26, 1999                          In Delaware State College v. Ricks, a junior faculty
                                                                   member was notified that he had been denied tenure, but was
              Decided and Filed: May 3, 2000                       given a “terminal” contract that extended his employment for
                                                                   one-year beyond the date his tenure was denied. The
    Before: MARTIN, Chief Judge; SUHRHEINRICH and                  Supreme Court found that the cause of action for his denial of
                 SILER, Circuit Judges.                            tenure accrued on the date that he was given notice of the
                                                                   denial, rather than on the date of his termination at the
                    _________________                              conclusion of his “terminal” contract. The Court noted that
                                                                   the “termination of employment at Delaware State is a
                         COUNSEL                                   delayed, but inevitable consequence of the denial of tenure.”
                                                                   Id. at 257-58 (emphasis added). The Supreme Court has also
ON BRIEF: Mark L. Pittman, PITTMAN & KELLY,                        held that for the purposes of computing the statute of
Memphis, Tennessee, for Appellants. William J. Marett, Jr.,        limitations period, the “proper focus is on the time of the . . .
OFFICE OF THE ATTORNEY GENERAL, Nashville,                         act, not the point at which the consequences of the act become
Tennessee, for Appellees.                                          painful.” Chardon v. Fernandez, 454 U.S. at 8 (42 U.S.C.
                                                                   § 1983 employment termination case)(original emphasis).
  MARTIN, C. J., delivered the opinion of the court, in
which SILER, J., joined. SUHRHEINRICH, J. (pp. 10-12),                This notice-based test to determine when a cause of action
delivered a separate dissenting opinion.                           has accrued has also been applied in a variety of other civil
                                                                   rights actions. See, e.g., Watts v. Graves, 720 F.2d 1416 (5th
                    _________________                              Cir. 1983) (per curiam) ( 42 U.S.C. § 1983 civil rights action
                        OPINION                                    against local police alleging violation of Fourth Amendment
                    _________________                              rights based on warrantless search); Eagleston v. Guido, 41
                                                                   F.3d 865 (2d Cir. 1994) (42 U.S.C. § 1983 civil rights action
  BOYCE F. MARTIN, JR., Chief Judge. Randy and Sharon              against police alleging equal protection violation in police
Lawson appeal an order dismissing their amended complaint          arrest policies relating to domestic violence complaints).
for failure to state a claim. The Lawsons claim that they were
denied the right to vote when they refused to disclose their         Likewise, in this case, the Lawsons’ inability to vote on
social security numbers as a condition to exercising their right   November 5, 1996, was a delayed, but inevitable consequence
to vote to the Shelby County Election Commission.                  of the denial of their registration application in October, 1996.
                                                                   The alleged deprivation of their rights occurred, and the filing
   On September 26, 1996, Randy and Sharon Lawson                  limitations period began to run, at the time their registration
attempted to register to vote in Shelby County by mail.            application was denied, even though the effect of that denial
Instead of writing their social security number as required on     did not occur until election day. Since the Lawsons were
the voter registration form, Randy and Sharon each wrote           notified of that denial in October, 1996, more than one year
“See Public Law 93-579.” Public Law 93-579 is an                   prior to filing their complaint, their suit is time-barred.
amendment to the Freedom of Information/Privacy Act,
which states that neither the federal, state, nor local
governments may deny benefits because of an individual’s
10   Lawson, et al. v. Shelby                     No. 98-6065      No. 98-6065                     Lawson, et al. v. Shelby      3
     County, Tennessee, et al.                                                                    County, Tennessee, et al.

                    _________________                              refusal to disclose his social security number. The Shelby
                                                                   County Election Commission notified the Lawsons before the
                        DISSENT                                    October 5 registration deadline that their registration was
                    _________________                              denied because they omitted their social security numbers.
   SUHRHEINRICH, Circuit Judge, dissenting. I write                  The Lawsons attempted to vote in the November 5 general
separately to respectfully dissent from the majority’s opinion     election, but were denied because they were not registered.
because I would find that this suit is barred by the one-year      Randy and Sharon each presented to the election official at
statute of limitations.                                            the poll, a letter, for signature, stating that he/she was being
                                                                   denied the right to vote because his/her registration was
                               I.                                  rejected for failure to disclose his/her social security number.
  I agree with the majority that a one-year statute of               On November 5, 1997, exactly one year after the election,
limitations applies to this case under Tennessee law. I also       the Lawsons filed suit in federal court against Shelby County,
agree that federal law determines when a cause of action is        the Shelby County Election Commission and the Chair of the
deemed to have accrued. However, I disagree with the               Commission, Mr. O.C. Pleasant, Jr., “individually and in his
majority’s finding that the cause of action in this case accrued   official capacity.” The Lawsons, seeking injunctive and
on election day, November 5, 1996. Instead, I agree with the       declaratory relief, damages and attorney’s fees, claim that
district court and would find that the cause of action accrued     they were denied the right to vote on November 5, 1996,
in October, 1996, when the plaintiffs were given official          because they refused to disclose their social security numbers
notice that they were being denied the right to vote because of    on their voter registration form. This, they allege, constituted
their failure to provide their social security numbers.            a deprivation of their rights, privileges and immunities
                                                                   secured by the Constitution of the United States under the
   Generally, a civil rights cause of action accrues when the      First and Fourteenth Amendments, Article IV § 1 of the
plaintiff knew or should have known of the injury. For             Tennessee Constitution, and the Privacy Act of 1974. The
example, the Supreme Court held that a cause of action             Lawsons then filed an Amended Complaint on February 27,
accrues at the time the plaintiff has notice of the                1998, naming all the remaining members of the election
discriminatory act for civil rights cases in the employment        commission in their official, but not in their individual,
context. See Delaware State College v. Ricks, 449 U.S. 250         capacities, the State of Tennessee, and Governor Sundquist in
(1980) (denial of tenure case filed under Title VII of the Civil   his official capacity. In their second amended complaint, the
Rights Act of 1964 and 42 U.S.C. § 1981 accrued on date            Lawsons assert a cause of action under 42 U.S.C. § 1983.
tenure was denied, not when employment terminated a year
later as a result of that denial); see also Janikowski v. Bendix      After granting the Lawson’s permission to amend their
Corp., 823 F.2d 945, 947-48 (6th Cir. 1987) (Age                   complaint, the district court dismissed the Lawsons’ claims
Discrimination in Employment Act action accrued on date            finding that they were barred by the Eleventh Amendment,
employee was notified of pending termination, not on the           and assuming that the complaint was not barred by the
actual date of termination) (citing Chardon v. Fernandez, 454      Eleventh Amendment, the claims were barred by the one year
U.S. 6 (1981) (per curiam), and Delaware State College v.          statute of limitations. The Lawsons filed a timely notice of
Ricks, 449 U.S. 250 (1980)).                                       appeal to this Court on July 31, 1998.
4    Lawson, et al. v. Shelby                    No. 98-6065      No. 98-6065                    Lawson, et al. v. Shelby     9
     County, Tennessee, et al.                                                                  County, Tennessee, et al.

  This Court reviews de novo the district court’s dismissal for   the cause of action accrued, thus satisfying the statute of
failure to state a claim upon which relief can be granted.        limitations.
Cline v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996).
                                                                    Thus, we remand the case to the district court to order such
   The Lawsons contend that the district court erred in           relief as will allow the Lawsons to vote and such other relief
dismissing their suit for failure to state a claim upon which     as appropriate.
relief can be granted because Eleventh Amendment immunity
does not apply to suits brought by a private citizen seeking
injunctive or declaratory relief against a state official. The
full text of the Eleventh Amendment provides: “The judicial
power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” As originally
drafted, the suits to which the Amendment referred were only
those suits brought against a state by out-of-state or foreign
citizens. But, in 1890, the Supreme Court held that in-state as
well as out-of-state citizens were barred by the Eleventh
Amendment from suing a state. Hans v. Louisiana, 134 U.S.
1 (1890). Under current law, the Amendment is a bar to
federal court jurisdiction whenever any private citizen
attempts to sue a state.
  There are, however, three qualified exceptions to Eleventh
Amendment immunity, only two of which are addressed by
the district court in this case. First, a state may waive the
protection of the Amendment by consenting to the suit.
Consent may occur in a number of ways. A state may
expressly waive immunity from suit for money damages in
court. Thiokol Corp. V. Mich. Dep’t of Treasury, 987 F.2d
376 (6th Cir. 1993). Consent may also take the form of a
voluntary appearance and defense on the merits in federal
court. Clark v. Barnard, 108 U.S. 436 (1883). Furthermore,
consent may result when the state agrees to administer a
federal-state program that imposes certain federal standards
8    Lawson, et al. v. Shelby                     No. 98-6065      No. 98-6065                        Lawson, et al. v. Shelby          5
     County, Tennessee, et al.                                                                       County, Tennessee, et al.

election day for failing to be registered. The denial of the       upon the state.1 In this case, the district court correctly
right to vote, they contend, occurred at the moment they were      asserted that no consent had been given by the defendant to
denied the opportunity to vote on election day. Defendants,        satisfy this first exception to the Eleventh Amendment bar.
however, dispute this contention, arguing instead that the         Thus, the exception does not apply here.
Lawsons were denied the right to vote when they received
notice that their registration application was not successful on      The second exception to the Eleventh Amendment bar is
October 1, 1996, which is more than a year before the              that Congress, under certain provisions of the Constitution,
complaint was filed. The district court agreed with                may abrogate the sovereign immunity of the states through
Defendants on this issue and therefore dismissed the case.         statute. For a Congressional abrogation of state sovereign
                                                                   immunity to be valid, two conditions must be satisfied. First,
  We reverse the district courts decision on this issue for two    Congress must state clearly that it intends a statute to abrogate
reasons. First, the issue at hand in this case is the              state sovereign immunity. Seminole        Tribe of Florida v.
fundamental right to vote not the right to register to vote. The   Florida, 517 U.S. 44, 55 (1996).2 Second, a determination
U.S. Constitution protects an individual’s right to vote during    must be made as to whether3Congress has acted “pursuant to
an election, not the right to register to vote prior to an         a valid exercise of power.” Id. Thus, the mere fact that a
election.                                                          statute was passed is not enough to show that Congress
                                                                   intended to nullify state sovereign immunity. Defendants
   Second, the district court cites a number of wrongful           correctly assert in their brief that Congress never expressly
employment termination cases in its opinion to show that           abrogated state sovereign immunity under the Privacy Act.
employees brought actions against their respective employers       Thus, the Lawsons cannot escape the Eleventh Amendment
outside of the limitations periods as measured from the dates      bar against their Privacy Act claim under the second
on which they were notified that they had been terminated.         exception. But Defendants also note that the Lawsons may be
Chardon v. Fernandez, 454 U.S. 6 (1981); In re Rin, 782 F.2d       able to circumvent a state sovereign immunity defense under
603 (6th Cir. 1986). The court concludes that the “act” is         a third exception to the Eleventh Amendment bar.
what is important, not the point at which the consequences of
the act become painful. These cases, however, do not apply
to the Lawson’s situation. The Lawsons were not denied the
right to vote when they were notified that their registrations
had been rejected, they were denied the right to vote when             1
they presented themselves at the appropriate polling place and          Thus far, consent to suit on this basis has never been found. See
were denied access to the voting booth. The rejection letters      Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985).
merely served as notice to the Lawsons that they were not              2
registered, and in order to become registered, they needed to           The Supreme Court has found no clear statement of intent to
                                                                   abrogate under the Civil Rights Act, 42 U.S.C. § 1983. Quern v. Jordan,
provide their social security numbers. This could have been        440 U.S. 332 (1979).
done up until the time they presented themselves at the polls
on election day. Therefore, the harm to the Lawsons occurred           3
                                                                        Congress may abrogate state sovereign immunity under the
on November 5, 1996 (election day) when they presented             Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The
themselves at their polling station and were refused the right     Supreme Court has suggested that Congress may also abrogate state
to vote. The complaint was then filed within one year after        sovereign immunity under the Fifteenth Amendment. City of Rome v.
                                                                   United States, 446 U.S. 156 (1980).
6     Lawson, et al. v. Shelby                        No. 98-6065       No. 98-6065                      Lawson, et al. v. Shelby        7
      County, Tennessee, et al.                                                                         County, Tennessee, et al.

   Under the third exception, a federal court may enjoin a              because the Lawsons’ requests for declaratory relief and
“state official” from violating federal law. Ex parte Young,            attorneys’ fees are ancillary to their request for prospective
209 U.S. 123 (1908). The idea behind this exception is that             injunctive relief, such relief would also fall under the Young
a suit against a state officer is not a suit against the state when     exception.
the remedy sought is an injunction against an illegal action,
for an officer is not acting on behalf of the state when he acts           Finally, subdivisions of the state, such as counties and
illegally. In effect, the illegal act strips the state officer of his   municipalities, are not protected by the Eleventh Amendment.
character as an agent of the state for the purposes of the              Lincoln County v. Luning, 133 U.S. 529 (1890). The
Eleventh Amendment. Injunctive relief is available under the            Eleventh Amendment        limits the jurisdiction only as to suits
Young exception only against state officers — not the state             against a state.4 Id., at 530. Even though a county is
itself — who violate federal law. Pennhurst State School &              territorially a part of the state, it is also a corporation created
Hospital v. Halderman, 465 U.S. 89 (1984). Relief ancillary             by it, and is therefore only a part of the state “in that remote
to injunctive relief, such as attorneys’ fees is also permitted.        sense in which any city, town or other municipal corporation
Hutto v. Finney, 437 U.S. 678 (1978). However, retroactive              may be said to be a part of the state.” Id. In this case, the
relief, such as money damages, is not permitted because such            Lawsons filed suit against Shelby County and the Shelby
relief would require the “payment of funds from the state               County Election Commission. These entities are not
treasury.” Edelman v. Jordan, 415 U.S. 651 (1974).                      protected by the Eleventh Amendment under Luning.
                                                                        Therefore, the Lawsons’ claims against these entities should
  In this case, because the Young exception is limited to the           not have been dismissed on Eleventh Amendment grounds.
award of prospective nonmonetary relief, any claim for
retroactive relief or damages is barred under the Eleventh                 In regard to the district court’s dismissal of the Lawson’s
Amendment. Id. In addition, the Lawsons’ claims against the             case based on an expired statute of limitations, the Lawsons
State of Tennessee are barred by the Eleventh Amendment,                argue that the court’s decision should be reversed because the
because the Amendment prohibits suits against a “state” in              complaint was filed within the required time period. The
federal court whether for injunctive, declaratory or monetary           statute of limitations for federal civil rights claims is the
relief.                                                                 appropriate state statute of limitations. Wilson v. Garcia, 471
                                                                        U.S. 261 (1985). Tennessee law requires that actions brought
   However, the Lawsons’ claims for prospective injunctive              under the federal civil rights statutes shall be commenced
and declaratory relief against the individual state and county          within one year after the cause of action accrues. Tenn. Code
officials should not be dismissed. Under the fiction of Ex              Ann. § 28-3-104(a)(3). Federal law ordinarily determines
parte Young, these officials may be stripped of their character         when a cause of action is deemed to have accrued. Sevier v.
as agents of the state when they violate federal law. The               Turner, 742 F.2d 262, 272 (6th Cir. 1984).
Lawsons allege that Governor Sundquist, the Chairman of the
Shelby County Election Commission and the remaining                       The Lawsons filed their complaint on November 5, 1997,
members of the Commission engaged in conduct that violated              exactly one year after they were turned away from the polls on
federal law when they denied the Lawsons the right to vote
for failing to disclose their social security numbers. Thus,
                                                                            4
their request for prospective injunctive relief against these                Suits may be brought by private citizens against counties and
officials is permitted under the Young exception. Moreover,             municipalities under section 1983. Monell v. Department of Social
                                                                        Services, 436 U.S. 658 (1978).
