                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                       UNITED STATES COURT OF APPEALS August 31, 2012
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 JOHN ROUNDS,

          Plaintiff - Appellee,

 v.

 TOM CLEMENTS, in his official
                                                        No. 11-1220
 capacity as Executive Director of the
                                             (D.C. No. 04-cv-02532-CMA-KMT)
 Colorado Department of Corrections,
                                                         (D. Colo.)
          Defendant - Appellant,

 DENNIS CORBIN, in his individual
 capacity,

          Defendant.


                              ORDER AND JUDGMENT *


Before GORSUCH, SEYMOUR, and MATHESON, Circuit Judges.


      John Rounds is a state prisoner and an electrician. He used to perform

electrical jobs inside the Colorado Territorial Correction Facility and enjoyed

many privileges there — his own room, access to a hobby shop, and more. But

when prison officials allegedly told him to engage in shoddy electrical work that


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
violated professional standards and the state code, Mr. Rounds bristled and took

the matter up the chain. As he tells it, prison officials uniformly turned a deaf ear

to his complaints — and eventually even conspired to transfer him to a less

desirable facility where he can no longer ply his trade and where he has lost all

his privileges.

      And that led Mr. Rounds to file this lawsuit. By now, the suit has amassed

a considerable history of its own, including a prior visit to this court. See Rounds

v. Corbin, 236 F. App’x 402 (10th Cir. 2007). But only a bit of that history is

needed to understand this appeal. Mr. Rounds says he is being retaliated against

for exercising his free speech rights, all in violation of the First Amendment and

actionable under 42 U.S.C. § 1983. Among the defendants Mr. Rounds has

named in his lawsuit is Tom Clements, Executive Director of the Colorado

Department of Corrections. Shortly after being added to the suit, Mr. Clements

moved to dismiss, arguing that the Eleventh Amendment renders him immune

from suit. The district court denied the motion. The court recognized that state

officials like Mr. Clements are often immune from suit. But, the court held, this

suit falls within the exception to Eleventh Amendment immunity recognized by

Ex parte Young, 209 U.S. 123 (1908). This because, in the district court’s view,

Mr. Rounds’s suit alleges ongoing retaliatory conduct by Mr. Clements in

violation of the First Amendment and seeks by way of relief only an injunction

ordering the defendants to end their punitive conduct and restore the position and

                                        -2-
privileges he once enjoyed. And to come within the Ex parte Young exception, “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.” Verizon Md., Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635,

645 (2002) (quotation and alteration omitted). 1

      Though the district court’s ruling merely held Mr. Clements susceptible to

suit and did not reach the question of liability (one way or the other), Mr.

Clements now appeals it all the same. And this he has the right to do under

established precedent. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 506 U.S. 139 (1992) (extending collateral order doctrine to district

court denials of Eleventh Amendment immunity).

      In his appeal, Mr. Clements argues that we should grant him immunity from

suit because, contrary to the district court’s ruling, he hasn’t participated in any

ongoing violation of federal law as required by Ex parte Young. The problem

with this argument is that Mr. Rounds’s operative complaint alleges that he is

currently, on an ongoing basis, being denied his previous prison placement and

many other privileges in retaliation for exercising his First Amendment rights.


      1
         To be precise, Mr. Rounds originally named and the district court’s
decision discussed Mr. Clements’s predecessor as Executive Director, Aristedes
Zavaras. But because the suit was filed against Mr. Zavaras in his official
capacity, when Mr. Clements took the job he automatically found himself
replacing Mr. Zavaras in this suit. Fed. R. Civ. P. 25(d). For simplicity’s sake, in
the text we refer only and throughout to Mr. Clements.

                                         -3-
Aplt. App. at 134 ¶ 29. And there is no dispute Mr. Rounds added Mr. Clements

to the suit because Mr. Clements alone has the power to undo this state of affairs,

see Aplt. Br. at 8 (acknowledging this), something Mr. Clements has so far

declined to do. As remedy, Mr. Rounds seeks only a prospective injunction

forcing Mr. Clements to restore the privileges he has not chosen to restore

voluntarily. Aplt. App. at 134 ¶ 36, 135 ¶ A. Drawing the reasonable inference

in Mr. Rounds’s favor — as we must at this, the motion to dismiss stage, see

United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001) — it is

plain enough Mr. Rounds alleges that Mr. Clements is currently participating in

an ongoing scheme to deny him (Mr. Rounds) a prison placement and privileges

that he once enjoyed, all in retaliation for exercising his First Amendment rights.

Mr. Rounds’s motion to amend his complaint supports the same inference.

See Aplt. App. 118-121, ¶¶ 17-21.

      To be sure, Mr. Rounds doesn’t allege Mr. Clements was involved in the

original decision to transfer him and strip him of his privileges. But under our

binding circuit precedent, that much is not required. Under our case law, the

failure to reinstate privileges that remain currently and wrongfully withheld under

federal law, together with a request for relief limited to prospective injunctive

relief, is enough to render a defendant subject to suit under Ex parte Young. See

Meiners v. Univ. of Kan., 359 F.3d 1222, 1232 (10th Cir. 2004). As best we can

tell, every other circuit to face the question has reached this same conclusion.

                                        -4-
See, e.g., Nelson v. Univ. of Tex., 535 F.3d 318, 323-34 (5th Cir. 2008); State

Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 96-98 (2d Cir. 2007);

Whalen v. Mass. Trial Court, 397 F.3d 19, 29-30 (1st Cir. 2005); Carten v. Kent

State Univ., 282 F.3d 391, 395-96 (6th Cir. 2002); Doe v. Lawrence Livermore

Nat’l Lab., 131 F.3d 836, 839-41 (9th Cir. 1997); Coakley v. Welch, 877 F.2d

304, 306 (4th Cir. 1989); Elliott v. Hinds, 786 F.2d 298, 302 (7th Cir. 1986).

      However that may be, Mr. Clements replies that a retaliatory transfer

should not be enough to create an ongoing violation for Eleventh Amendment

purposes when it is insufficient to toll the application of the statute of limitations

in the employment law context. See Martinez v. Potter, 347 F.3d 1208, 1210-11

(10th Cir. 2003). What we refer to as the “continuing violation doctrine” in

employment law extends the accrual period for certain claims, but not for claims

of retaliatory discharge or transfer. Id. But the simple fact is that the two rules

serve different purposes. Accrual rules tell us when a plaintiff has discovered

enough facts to allow him to bring a claim, all with the aim of ensuring claims are

promptly pursued and claimants don’t sleep on their rights. Meanwhile, the

Young doctrine seeks to give force to the Supremacy Clause by stopping ongoing

violations of federal law. See Green v. Mansour, 474 U.S. 64, 68 (1985). That

someone may have discovered all the elements necessary to bring an employment

claim and needs to get that claim to court in a timely fashion doesn’t necessarily

or ineluctably speak to the scope of the effort necessary to give effect to the

                                          -5-
Supremacy Clause, as Mr. Clements supposes. Besides and in any event, we are

hardly empowered to undo binding circuit precedent in Meiners and write a

different rule now. See Nelson, 535 F.3d at 324 n.5.

      Separately, Mr. Clements points out that Mr. Rounds sued him in his

official capacity. And this, Mr. Clements says, means he is immune from suit.

“[A]n official capacity suit against a state actor,” he argues, “is a suit against the

state and is also barred by the Eleventh Amendment.” Aplt. Br. at 12. But this

statement is true only to the extent that a suit seeks financial recovery: in official

capacity suits any financial recovery comes from the (immune) state, a result

clearly barred by the Eleventh Amendment just as Mr. Clements suggests. See

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). But the Supreme

Court has also plainly and long held that Ex parte Young permits suit against state

employees for prospective relief whether the employee happens to be sued in his

individual or official capacity. Will, 491 U.S. at 71 n.10. What matters under our

received Eleventh Amendment jurisprudence isn’t the capacity in which the

officer is sued, but the nature of the wrong alleged and remedy sought.

      Separately still, Mr. Clements argues that when a plaintiff sues a state

employee in his official capacity, he must prove some “policy or custom” played

a role in the alleged violation of federal law. Aplt. Br. at 18 (citing Kentucky v.

Graham, 473 U.S. 159, 166 (1985)). But at least two problems attend this line of

argument. First, the “policy or custom” standard is a standard for determining

                                          -6-
liability under § 1983, not immunity from suit under the Eleventh Amendment.

See Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978). And, of course,

the only question over which we have jurisdiction in this interlocutory appeal is

the question of immunity, not the merits which even the district court has yet to

reach. Second, the “policy or custom” standard isn’t just a liability standard, it’s

a liability standard for suits against municipalities — entities not immune from

suit under the Eleventh Amendment — and it has no applicability to state officers

who are immune from suit for damages but susceptible to suit under Ex parte

Young for injunctive relief. See Monell, 436 U.S. at 694-95.

      In fairness to Mr. Clements, and as Supreme Court has recognized,

Eleventh Amendment jurisprudence is full of twists and turns and contains more

than its share of fictions. See Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 105 (1984); see also Hill v. Kemp, 478 F.3d 1236, 1256 (10th Cir. 2007)

(acknowledging “rococo quality” of Eleventh Amendment jurisprudence). We

understand and are not immune to the objections and difficulties Mr. Clements

may have with it. But all the same our received Eleventh Amendment

jurisprudence isn’t something we are free to rewrite, and it has long made clear

that someone in his shoes is susceptible to suit, even if liability may be a question

for another day.




                                        -7-
Affirmed.



            ENTERED FOR THE COURT



            Neil M. Gorsuch
            Circuit Judge




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