                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


DAVID LYTLE; JEANETTE LYTLE; JOAN       
MAGUIRE,
                Plaintiffs-Appellees,
                 v.
CHARLES D. GRIFFITH, JR., in his
official capacity as Norfolk
Commonwealth Attorney;
HONORABLE JAMES S. GILMORE, III,
in his official capacity as Governor              No. 99-2609
of the Commonwealth of Virginia,
               Defendants-Appellants,
                and
CHARLES R. BREWER, Individually
and in his official capacity as
Lieutenant of the Norfolk Police
Department,
                           Defendant.
                                        
           Appeal from the United States District Court
          for the Eastern District of Virginia, at Norfolk.
                Jerome B. Friedman, District Judge.
                          (CA-99-1366-2)

                      Argued: September 29, 2000

                      Decided: February 16, 2001

  Before WILKINSON, Chief Judge, and MICHAEL and KING,
                     Circuit Judges.
2                          LYTLE v. GRIFFITH
Remanded by published opinion. Judge King wrote the majority opin-
ion, in which Judge Michael joined. Chief Judge Wilkinson wrote a
dissenting opinion.


                             COUNSEL

ARGUED: William Henry Hurd, Solicitor General, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellants.
Michael Joseph DePrimo, AMERICAN FAMILY ASSOCIATION
CENTER FOR LAW AND POLICY, Tupelo, Mississippi, for Appel-
lees. ON BRIEF: Mark L. Earley, Attorney General of Virginia,
Judith Williams Jadgmann, Deputy Attorney General, Gregory E.
Lucyk, Senior Assistant Attorney General, Kevin O. Barnard, Assis-
tant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellants. Stephen M. Crampton, Brian
Fahling, AMERICAN FAMILY ASSOCIATION CENTER FOR
LAW AND POLICY, Tupelo, Mississippi, for Appellees.


                              OPINION

KING, Circuit Judge:

   This appeal relates to whether James S. Gilmore, III, the Governor
of the Commonwealth of Virginia (the "Governor"), is protected by
the Eleventh Amendment from suit in the underlying action — an
issue the Governor failed to raise in the district court prior to this
appeal. In the underlying case, the district court granted a preliminary
injunction barring enforcement of Virginia Code section 46.2-930,
which prohibits loitering on designated bridges. See Order and Opin-
ion of November 2, 1999 ("Order"); Order of June 1, 2000
("Modifying Order").

   The Governor and his fellow defendant, Charles D. Griffith, Jr., the
Commonwealth’s Attorney for the City of Norfolk ("Griffith"), do not
seek to overturn the injunction on its merits. Rather, the Governor
asserts that he lacks a sufficient connection to enforcement of the
challenged statute and, thus, cannot be made a party to this action pur-
                           LYTLE v. GRIFFITH                           3
suant to the exception to sovereign immunity found in Ex parte
Young, 209 U.S. 123, 159-60 (1908) (permitting federal actions
against appropriate state officers for prospective relief from continu-
ing violations of federal law). Although we possess jurisdiction, we
remand in order for the district court to consider the issue in the first
instance.

                                   I.

                                   A.

  Enacted in 1966 and last amended in 1989, the challenged statute
provides, in its entirety:

    Pedestrians shall not loiter on any bridge on which the Com-
    monwealth Transportation Commissioner has posted signs
    prohibiting such action. Any person violating the provisions
    of this section shall be guilty of a traffic infraction.

Va. Code Ann. § 46.2-930 (Michie’s 1998 & Supp. 2000). The maxi-
mum penalty for violating the statute is a fine of two hundred dollars.
See Va. Code Ann. § 46.2-113 (Michie’s 1998). For purposes of
arrest, traffic infractions are treated as misdemeanors. See Va. Code
Ann. § 46.2-937 (Michie’s 1998). Otherwise, traffic infractions are
"violations of public order . . . and not deemed to be criminal in
nature." Va. Code Ann. § 18.2-8 (Michie’s 1996 & Supp. 2000).

   The powers of the Governor are set forth in article V of the Consti-
tution of Virginia and in the Virginia Code. The Governor is the chief
executive officer of the Commonwealth of Virginia (the "Common-
wealth"). See Va. Const. art. V, § 1. He must "take care that the laws
be faithfully executed." Va. Const. art. V, § 7. He appoints the Super-
intendent of State Police, see Va. Code Ann. § 52-2 (Michie’s 1998),
and he is the commander-in-chief of the Commonwealth’s armed
forces, see Va. Code Ann. § 44-8 (Michie’s 1999). The Governor has
the authority to summon law enforcement agencies to suppress riots
and preserve the peace when local efforts prove insufficient. See Va.
Code Ann. § 18.2-410 (Michie’s 1996). He also has the power to
request criminal prosecutions by the Attorney General, see Va. Code
Ann. § 2.1-124 (Michie’s 1995 & Supp. 2000).
4                             LYTLE v. GRIFFITH
                                      B.

   The plaintiffs, David Lytle, Jeanette Lytle, and Joan Maguire (col-
lectively, the "Lytles"), filed this action under 42 U.S.C. § 1983 seek-
ing to enjoin enforcement of section 46.2-930 on the ground that the
Virginia statute unlawfully abridges First and Fourteenth Amendment
rights.1 The Lytles are anti-abortion protesters who, on July 16, 1999,
faced arrest pursuant to section 46.2-930 during a demonstration on
the Picadilly Overpass, a pedestrian bridge crossing Interstate 64 in
the City of Norfolk (the "City"). The Lytles displayed large placards
from the bridge — which bore a no-loitering sign — to passing
motorists on the interstate highway below. Some forty-five minutes
into the demonstration, police arrived and warned the Lytles and fel-
low protesters that they would be arrested unless they ceased their
activities. The Lytles left the overpass after observing the arrests of
two of their confederates. It was later discovered that despite the no-
loitering sign, the overpass had not been designated by the Common-
wealth Transportation Commissioner (the "Commissioner") under the
provision of section 46.2-930.

                                      C.

   Following their encounter with police, the Lytles received assur-
ances from representatives of the Commonwealth and the City that
enforcement of section 46.2-930 would be — at least temporarily —
suspended, and charges were dismissed against the two protesters
who had been arrested. Unappeased, the Lytles filed their action in
the district court and immediately moved for a preliminary injunction.
The district court heard arguments on their motion on October 7,
1999, and, the following day, received additional written assurances
from the Governor and Griffith regarding the Commonwealth’s
enforcement of the statute. Being "unpersuaded that the defendants’
    1
    Additionally, the Lytles seek a declaratory judgment that the statute
is unconstitutional, and nominal damages from the City of Norfolk (the
"City"). They also requested nominal and punitive damages from Charles
Brewer, a lieutenant of the Norfolk Police Department, but he was dis-
missed as a party on December 15, 1999. According to the briefs filed
in this court, the district court thereafter granted leave to the Lytles to file
an amended complaint naming the City as a defendant.
                             LYTLE v. GRIFFITH                              5
assurances adequately protect the constitutional rights of the plain-
tiffs[,]" the court granted the preliminary injunction. See Order, at 6,
24. The injunction prohibits enforcement of section 46.2-930, bars
further designation of any bridges under the statute, directs immediate
covering or removal of existing no-loitering signs, and orders "what-
ever steps are necessary and appropriate to notify local law enforce-
ment within the Commonwealth regarding the substance of this
Order[.]" Id. at 24.

   The Governor and Griffith filed a notice of appeal on December 3,
1999. On appeal, they alleged for the first time that: (1) the injunction
violated the principles of sovereign immunity because, by its express
language, it enjoined "the Commonwealth" directly;2 (2) sovereign
immunity protects the Governor from this action; and (3) because the
Governor should be dismissed as a party, the scope of the injunction
should be limited to the City.3
  2
   This issue — naming of "the Commonwealth" directly — was ren-
dered moot, however, when the district court modified the injunction to
replace dubious references to "the Commonwealth" with the names of
the Governor and Griffith. See Modifying Order, at 12. The court
explained that it had used the term "the Commonwealth" to refer to the
Governor and Griffith throughout its earlier opinion on the motion for
preliminary injunction, and had mistakenly carried over that shorthand
reference into the injunction order. See id. at 9. "[T]he Commonwealth,"
the district court clarified, "is not a defendant in this matter, and the
Court should have been more clear in its Order enjoining the enforce-
ment of the statute." Id. (footnote omitted).
   We note that the Modifying Order was issued on June 1, 2000, subse-
quent to the filing of the notice of appeal. Generally, the filing of a notice
of appeal immediately transfers jurisdiction of all matters relating to the
appeal from the district court to the court of appeals. See In re Grand
Jury Proceedings Under Seal, 947 F.2d 1188, 1190 (4th Cir. 1991) (cita-
tions omitted). However, the district court possessed jurisdiction to mod-
ify the injunction under an exception to the general rule: "[A] district
court does not lose jurisdiction to proceed as to matters in aid of the
appeal." Id. (citations omitted). The district court aided in this appeal by
relieving us from considering the substance of an issue begotten merely
from imprecise wording in the injunction.
   3
     When the merits of the preliminary injunction were argued in the dis-
trict court, the Governor and Griffith asserted that the Commonwealth
6                          LYTLE v. GRIFFITH
   After filing their notice of appeal on December 3, 1999, the Gover-
nor and Griffith finally raised the sovereign immunity issues in the
district court, in a December 14, 1999 motion to dismiss the Governor
and to modify the Order. They also requested a stay of the prelimi-
nary injunction pending appeal. However, according to the district
court, these motions were neither scheduled for hearing by counsel
nor referred to the court for a decision on the briefs. Then, on March
30, 2000, the Governor and Griffith filed a second motion to dismiss,
again raising many of these same issues in the district court. This
motion, unlike the earlier motions, was scheduled for hearing. The
court, "[i]n the interest of efficiency, judicial economy, and to clear
any confusion in the record of this case," chose to discuss each of the
pending motions. See Modifying Order, at 2. However, after review-
ing relevant authorities regarding the Governor’s sovereign immunity
defense, the court deferred ruling on the motion to dismiss pending
disposition of this appeal. See id. at 2-9, 12. The court also clarified
the language of its earlier Order, see id. at 12; supra note 2, and
denied the motion for a stay of the injunction pending appeal, see
Modifying Order, at 12.

                                   II.

   We possess jurisdiction, pursuant to 28 U.S.C. § 1292(a)(1), to hear
appeals from orders granting injunctions. Moreover, although the
ground for appeal in this case — sovereign immunity — was not
raised in the district court, we nonetheless possess jurisdiction to
determine the matter. See Suarez Corp. Indus. v. McGraw, 125 F.3d
222, 227 (4th Cir. 1997) (recognizing that a court may consider the
issue of Eleventh Amendment immunity, because of its jurisdictional
nature, at any time).

would be irreparably harmed if the court enjoined enforcement of section
46.2-930, because the statute is "one of the tools available to the Com-
missioner . . . to promote safety on Virginia roadways." Order, at 11. The
Governor and Griffith have not raised any such safety concern on appeal,
and do not otherwise challenge the merits or propriety of the injunction.
                             LYTLE v. GRIFFITH                              7
                                     III.

                                     A.

   The Eleventh Amendment provides that "[t]he 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." U.S. Const. amend. XI. Although the Eleventh Amendment,
by its terms, applies only to suits brought against a state by "Citizens
of another State," it is well established that "an unconsenting State is
immune from suits brought in federal courts by her own citizens as
well as by citizens of another State." Edelman v. Jordan, 415 U.S.
651, 663 (1974) (citations omitted). State officers acting in their offi-
cial capacity are also entitled to Eleventh Amendment protection,
because "a suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit against the official’s
office." Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989) (citations omitted).

   A well-recognized exception to this rule is found, however, in Ex
parte Young, 209 U.S. 123 (1908), which allows suits against state
officers for prospective equitable relief from ongoing violations of
federal law. See Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 269
(1997) ("We do not . . . question the continuing validity of the Ex
parte Young doctrine."). In Ex parte Young, the Supreme Court began
with the premise that states are incapable of authorizing unconstitu-
tional conduct, and created the fiction that a state officer engaging in
unconstitutional conduct is no longer acting as a state agent — and,
thus, is no longer protected by the Eleventh Amendment. See 209
U.S. at 159-60. As to identifying proper defendants, the Court held
that

     [i]n making an officer of the State a party defendant in a suit
     to enjoin the enforcement of an act alleged to be unconstitu-
     tional it is plain that such officer must have some connection
     with the enforcement of the act, or else it is merely making
     him a party as a representative of the State, and thereby
     attempting to make the State a party.
8                          LYTLE v. GRIFFITH
Id. at 157 (emphasis added). The Court further instructed that "[t]he
fact that the state officer by virtue of his office has some connection
with the enforcement of the act is the important and material fact, . . .
whether it arises out of the general law, or is specially created by the
act itself[.]" Id.

                                   B.

   In this case, the Lytles assert that the Governor has a sufficient
connection under Ex parte Young to the enforcement of section 46.2-
930 because he has a duty to "take care that the laws be faithfully exe-
cuted," Va. Const. art. V, § 7; he is the chief executive officer of the
state, see id. art. V, § 1; he is the commander-in-chief of the Com-
monwealth’s armed forces, see Va. Code Ann. § 44-8; he has author-
ity to order state and local law enforcement agencies to preserve the
peace, see id. § 18.2-410; and he appoints the Superintendent of
Police, see id. § 52-2. Additionally, they argue that because their fel-
low protesters "were arrested, handcuffed, and taken into custody for
purportedly violating the loitering statute[,] . . . the offense must be
deemed criminal in nature[.]" Brief of Appellees, at 14 n.7 (emphasis
in original). Thus, the Lytles reason, the Governor has the power, pur-
suant to Virginia Code section 2.1-124, to request the Attorney Gen-
eral to prosecute violations of section 46.2-930.

   The Governor, on the other hand, asserts that a violation of the stat-
ute is a non-criminal traffic infraction that does not implicate his
authority to seek prosecutions by the Attorney General. He also
rejects the purported connections between the gubernatorial powers
cited by the Lytles and enforcement of the anti-loitering statute. The
Governor argues that the Lytles are left with his general duty to "take
care that the laws be faithfully executed," Va. Const. art. V, § 7,
which is simply not sufficient to merit an exception to sovereign
immunity. Moreover, the Governor asserts that "it is difficult, if not
impossible, to imagine the Governor using the power of his office to
enforce the act — a traffic violation." Reply Brief of Appellants, at
9.

   In addition to these factual and legal disputes, the Governor and
Griffith assert that rather than choosing the Governor as a defendant,
the Lytles should have either sued the Commissioner, or brought their
                              LYTLE v. GRIFFITH                              9
case as a class action naming one or more Commonwealth’s Attor-
neys as class representatives, see, e.g., Virginia Soc’y for Human Life,
Inc. v. Caldwell, 152 F.3d 268 (4th Cir. 1998). The Lytles counter that
the only relevant duty of the Commissioner with regard to section
46.2-930 is determining where to post anti-loitering signs, and he has
no authority over state and local law enforcement agencies. Further,
although they perhaps could have sued Commonwealth’s Attorneys as
class representatives, they instead, "as masters of their complaint, . . .
appropriately chose to sue the chief executive officer of the state,
Governor Gilmore[.]" Brief of Appellees, at 29.4

                                      C.

   Although we possess jurisdiction to decide the sovereign immunity
issue, see supra Part II, we also have the discretion to decline to do
so until the district court has had the opportunity to consider the mat-
ter. Where "‘[t]he District Court is in the best position to address in
the first instance the competing questions of fact and state law neces-
sary to resolve the [E]leventh [A]mendment issue,’ . . . we remand for
that purpose." Keller v. Prince George’s County, 827 F.2d 952, 964
  4
    Although the district court deferred ruling on the sovereign immunity
issue, it did agree with another of the Lytles’ contentions, that "the Gov-
ernor’s inconsistency in litigating cases in the Commonwealth (as to
whether he does or does not move to dismiss when he is named person-
ally in a case) cuts against the Governor’s argument that he should be
immune from suits challenging the constitutionality of state statutes
under the Eleventh Amendment." Modifying Order, at 7. The district
court observed:
      Most notably, the [Lytles] refer to the Governor’s status as a
      defendant in the recent partial birth abortion case, Richmond
      Medical Center for Women v. Gilmore, 11 F. Supp. 2d 795 (E.D.
      Va. 1998) . . . . The Governor argues that his litigation tactics in
      other cases should not impact this Court’s decision, and essen-
      tially, that he should not be required to make consistent legal
      arguments in each case. While the inconsistency of the Gover-
      nor’s arguments should not be the sole basis for denying the
      instant motion, the Court disagrees with the Governor’s position
      on this issue.
Id.
10                          LYTLE v. GRIFFITH
(4th Cir. 1987) (quoting Patsy v. Board of Regents, 457 U.S. 496, 516
n.19 (1982)); accord Gray v. Laws, 51 F.3d 426, 434 (4th Cir. 1995);
Roberts v. College of the Desert, 870 F.2d 1411, 1415 (9th Cir. 1989)
("We decline to decide this [Eleventh Amendment] question, believ-
ing that it is one for the district court to determine in the first instance,
coincident with the development of an appropriate factual record.").

   In Keller, we were presented with an Eleventh Amendment argu-
ment that rested on whether a county social services department was
an arm of the state government. See 827 F.2d at 964. We remanded
the case to the district court to develop a record on the issue and per-
haps "resolve some of the [E]leventh [A]mendment difficulties in this
case by permitting amendments to the pleadings." Id. Facing a similar
question in Gray, we remanded for the district court to reconsider the
sovereign immunity issue in light of intervening Supreme Court pre-
cedent. See 51 F.3d at 430, 434. Citing Keller, we noted that it was
"especially true" that the district court was in the best position to
address the issue in the first instance, "given the barrenness of the
record." Id. at 434.

   The sovereign immunity issue raised by the Governor encompasses
two significant questions: (1) What is the Governor’s connection, if
any, to the enforcement of the challenged anti-loitering statute? and
(2) If there is a connection, is it sufficient to implicate the exception
to sovereign immunity found in Ex parte Young? The first question,
at least, requires a determination of disputed questions of fact and
state law — and we have been provided with an incomplete record
on which to address these questions, even if we were mandated to do
so.

   By remanding, we enable the district court to handle this case in
the normal and most orderly fashion, and we permit it to address in
the first instance the relevant questions of fact and state law. More-
over, in light of the disagreement over the naming of appropriate
defendants, the district court may consider permitting amendments to
the pleadings to resolve any Eleventh Amendment difficulties in this
case. Such a remand would not, apparently, be unwelcome by the dis-
trict court. In staying the motion to dismiss the Governor pending our
decision, Judge Friedman commented:
                            LYTLE v. GRIFFITH                            11
      The Court understands and agrees that the claim for immu-
      nity is not waived if not argued before the District Court.
      However, the Court questions the defendant’s tactic and use
      of judicial resources in pursuing an appeal of a preliminary
      injunction on a jurisdictional issue without first addressing
      the question at the District Court level.

Modifying Order, at 3. We note also that, although the district court
deferred ruling on sovereign immunity, the court had first researched
and discussed the applicable authorities on this question. Because we
conclude that the district court should have the opportunity to address
this issue in the first instance, we are constrained to remand.5

  REMANDED

WILKINSON, Chief Judge, dissenting:

   I respectfully dissent from the decision to remand this case. The
parties have thoroughly briefed and argued the Eleventh Amendment
question. It is ripe for resolution. The Governor of Virginia simply is
not a proper party to this suit. There is no indication that the Governor
actively enforced the challenged traffic statute or that he intends to do
so in the future. Furthermore, the Governor’s general duty to enforce
the laws of Virginia does not satisfy Ex parte Young’s requirement
  5
    We observe that it is passing strange to utilize an interlocutory appeal
of an injunction (where we possess jurisdiction under 28 U.S.C.
§ 1292(a)(1)) to seek review of an issue never raised in the district court,
particularly in a circumstance where the appellant has abandoned appel-
late review of the injunction’s propriety. See supra note 3. We have not
addressed the merits of this issue, and need not do so; our position may
or may not be in accordance with that espoused in the dissent of our good
Chief Judge. Rather, we believe this case should be handled in a routine
and orderly manner, and without the specter of an advisory opinion on
an issue the district court has not been permitted to fully address. While
the dissent maintains that "[r]emanding this case serves only to encour-
age future plaintiffs to denominate Governors routinely as party defen-
dants in the hope that a ‘special relation’ may one day appear," post, at
13 n.*, remand should in fact serve to discourage litigants and their coun-
sel from engaging in court-shopping, an untoward maneuver that, as the
district court indicated, may well lie at the root of this unusual appeal.
12                         LYTLE v. GRIFFITH
that the Governor bear a "special relation" to the statute under chal-
lenge. Any other result would routinely subject a Governor to suits
challenging the validity of the most minor of state laws and regula-
tions. I would dismiss the Governor as a defendant in this action.

                                   I.

   As an initial matter, I disagree with my good colleagues that a
remand in this case is appropriate. It is proper to consider here the
Eleventh Amendment question even though Virginia did not raise it
in the district court prior to filing this appeal. See Edelman v. Jordan,
415 U.S. 651, 677-78 (1974) (holding that a defendant may raise an
Eleventh Amendment argument in the court of appeals, even after
failing to do so in the lower court); Suarez Corp. Industries v.
McGraw, 125 F.3d 222, 227 (4th Cir. 1997) ("We believe that,
because of its jurisdictional nature, a court ought to consider the issue
of Eleventh Amendment immunity at any time, even sua sponte.").

   Remand serves no useful purpose in this case. Both parties have
ably briefed and argued this issue. Indeed, the district court has stated
that it is waiting for this court to decide it. This court fully under-
stands the Eleventh Amendment issue and its application to the facts
here. As a result, we have an obligation to render a decision.

   Furthermore, the parties deserve better than to have a preliminary
issue remanded by this court. We ought not to lose sight of the fact
that this is an interlocutory appeal. See 28 U.S.C. § 1292(a)(1).
Remand on a preliminary matter will only delay the parties in reach-
ing the merits of their case. By contrast, even if the Governor is
removed from this case, the plaintiffs may name a more suitable state
official as defendant and proceed with their suit.*

  *The majority suggests that any opinion on the Governor’s status
might somehow be advisory. See supra, n.5. Not so. This appeal squarely
presents a jurisdictional issue, which is not going to disappear upon
remand.
  Plaintiffs bear the burden of alleging facts which, if proven, would
establish that the Governor actually belongs in the suit. This plaintiffs
have failed to do. Plaintiffs have not even requested a remand for find-
                           LYTLE v. GRIFFITH                           13
                                   II.

  Turning to the Eleventh Amendment question, it is clear that the
Governor is not a proper party to this action.

                                   A.

    Ex parte Young, 209 U.S. 123 (1908), permits citizens to sue state
officials to enjoin the enforcement of unconstitutional laws. This rule
is an exception to the general constitutional command that federal
courts do not have jurisdiction over suits by citizens against the states.
The Young exception is limited, however, by its requirement that
named state officials bear a special relation to the challenged statute.
Young recognized that the fundamental purpose of the Eleventh
Amendment would be thwarted if parties could name any state offi-
cial in an action. The Court stated that "it is plain that such officer
must have some connection with the enforcement of the act, or else
it 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.

  Young’s "special relation" requirement prevents parties from cir-
cumventing the dictates of the Eleventh Amendment. Young demands
precision in naming parties because otherwise:

     the constitutionality of every act passed by the legislature
     could be tested by a suit against the governor and the attor-
     ney general, based upon the theory that the former, as the
     executive of the State, was, in a general sense, charged with
     the execution of all its laws, and the latter, as attorney gen-
     eral, might represent the State in litigation involving the
     enforcement of its statutes.

ings of jurisdictional facts, nor have they suggested that the Governor
bears anything other than the general legal connection of any chief exec-
utive to the challenged enactment. Remanding this case serves only to
encourage future plaintiffs to denominate Governors routinely as party
defendants in the hope that a "special relation" may one day appear. This
is not what I understand the rule of Ex parte Young to be about.
14                         LYTLE v. GRIFFITH
Young, 209 U.S. at 157 (quoting Fitts v. McGhee, 172 U.S. 516, 530
(1899)). The Supreme Court recognized that such a strategy might be
a convenient way to obtain a speedy determination of constitutional
questions. However, that strategy "cannot be applied to the States of
the Union consistently with the fundamental principle that they can-
not, without their assent, be brought into any court at the suit of pri-
vate persons." Id. at 157 (quoting Fitts, 172 U.S. at 530).

   Young went on to note that general grants of authority may some-
times create a "special relation" between a state official and the chal-
lenged statute. The Court held: "The fact that the state officer by
virtue of his office has some connection with the enforcement of the
act is the important and material fact, and whether it arises out of the
general law, or is specially created by the act itself, is not material so
long as it exists." Young, 209 U.S. at 157. Young failed to explain,
however, what type of "general laws" create a sufficient connection.
It is upon this question that the current appeal now turns.

                                   B.

   The question of whether the Governor of Virginia has any "special
relation" to Virginia Code § 46.2-930 is determined by analyzing state
law. See Young, 209 U.S. at 157. The text of § 46.2-930 reads in full:

     Loitering on Bridges. Pedestrians shall not loiter on any
     bridge on which the Commonwealth Transportation Com-
     missioner has posted signs prohibiting such action. Any per-
     son violating the provisions of this section shall be guilty of
     a traffic infraction.

   The text makes no mention of the Governor. Rather, the only state
official mentioned by § 46.2-930 is the Commonwealth’s Transporta-
tion Commissioner, who has authority to post signs prohibiting loiter-
ing. Furthermore, Virginia law delegates the enforcement of the
challenged statute to local police officers. See Va. Code § 46.2-937.

   The plaintiffs argue, however, that Governor Gilmore is suffi-
ciently connected to § 46.2-930 by virtue of his general duties as
Governor. They contend that Young’s special relation requirement
                           LYTLE v. GRIFFITH                         15
applies solely to state officials, such as the Secretary of Education,
who have "no duty at all with regard to the act." Young, 209 U.S. at
158 (emphasis added). By contrast, the plaintiffs argue that Governor
Gilmore’s duty to "take care that the laws be faithfully executed" suf-
ficiently connects him to § 46.2-930. See Va. Const. art. V, § 7. The
Governor also has authority to request that the Attorney General pros-
ecute § 46.2-930, or to summon law enforcement agencies to enforce
the Act if such enforcement is necessary to preserve the peace and
safety of the Commonwealth. See Va. Code §§ 2.1-124; 18.2-410.

   I do not think that the Governor’s general authority to enforce the
laws of the Commonwealth is sufficient to satisfy Young’s special
relation requirement. "General authority to enforce the laws of the
state is not sufficient to make government officials the proper parties
to litigation challenging the law." Children’s Healthcare is a Legal
Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996) (citing 1st
Westco Corp. v. School Dist. of Philadelphia, 6 F.3d 108, 113 (3d Cir.
1993)); see also Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir. 1998)
("[A] generalized duty to enforce state law or general supervisory
power over the persons responsible for enforcing the challenged pro-
vision will not subject an official to suit") (citing Los Angeles County
Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)); Mendez v.
Heller, 530 F.2d 457, 460 (2d Cir. 1976) (attorney general’s duties to
support the constitutionality of challenged state statutes and to defend
actions in which the state is interested do not make him a proper
defendant); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979)
(general duty of governor "to enforce state laws does not make him
a proper defendant in every action attacking the constitutionality of
a state statute"). To hold otherwise would extend Young beyond what
the Supreme Court has intended and held. See Children’s Healthcare,
92 F.3d at 1416; see also Pennhurst State School & Hosp. v. Halder-
man, 465 U.S. 89, 102 (1984).

   Rather, it is only appropriate to allow a state official to be named
in a suit based on his general duties where there is a "real, not ephem-
eral, likelihood or realistic potential that the connection will be
employed against the plaintiff’s interests." 1st Westco, 6 F.3d at 114
(internal citation omitted); see also Long v. Van de Kamp, 961 F.2d
151, 152 (9th Cir. 1992) (per curiam) (holding that state attorney gen-
eral was not proper party where there was no real likelihood that he
16                         LYTLE v. GRIFFITH
would enforce his supervisory powers against the plaintiffs’ interest);
Sherman v. Community Consol. School Dist. 21, 980 F.2d 437, 440-
41 (7th Cir. 1992) (holding that state attorney general was not proper
party where he never threatened the plaintiffs with prosecution and
apparently had no authority to do so). This requirement is consistent
with Young, where the Minnesota Attorney General had already com-
menced proceedings to enforce the challenged statute. Young, 209
U.S. at 160.

   Here, the Governor bears no real connection to the enforcement of
§ 46.2-930. There is no allegation that the Governor ordered its
enforcement against the plaintiffs. Insofar as this record shows, the
Governor has never ordered its enforcement against anyone. Nor is
there a real likelihood that the Governor will ever use the power of
his office to enforce a mere traffic infraction, a violation of which is
punishable by a fine and costs totaling forty-three dollars. Further-
more, since traffic infractions are "not deemed to be criminal in
nature" under Virginia law, see Va. Code § 18.2-8, it is doubtful
whether the Governor’s separate power to request criminal prosecu-
tion by the Attorney General is even implicated in this case. See Va.
Code § 2.1-124.

   Removing the Governor as defendant will not have the effect of
pushing the plaintiffs out of court. The plaintiffs can still seek relief
by naming as defendant the Commonwealth’s Transportation Com-
missioner. As the text of § 46.2-930 explicitly indicates, the Commis-
sioner plays a crucial role in the statutory scheme. It is only by his
designation that a bridge may receive a "No Loitering" designation
under the Act. Without this designation, no state official can enforce
§ 46.2-930. Likewise, the Commissioner possesses the authority to
cover the signs if the court orders him to do so, thus rendering § 46.2-
930 unenforceable. By contrast, the Governor has no special relation
to this law, nor is there any indication that the Governor himself
intends to enforce the law in the future.

                                   C.

  If the Governor is forced to remain a party to this suit, then the
Governor also may be named in lawsuits challenging the validity of
any state law. Such an approach would be problematic in several
                           LYTLE v. GRIFFITH                         17
ways. First, such a practice would be inconsistent with the approach
governing suits which challenge federal laws. Such suits are not rou-
tinely brought against the President simply by virtue of his constitu-
tional duty to enforce the laws. Rather, other federal officials who
bear a discernable relationship to the challenged statute are typically
named. See, e.g., Reno v. American Civil Liberties Union, 521 U.S.
844 (1997) (Attorney General named as a defendant in a suit chal-
lenging the constitutionality of federal statute criminalizing the know-
ing transmission of indecent materials to minors); National
Endowment for the Arts v. Finley, 524 U.S. 569 (1998) (Chairperson
of the NEA named as a defendant in a suit challenging the constitu-
tionality of federal statute requiring NEA to ensure that grants are
awarded based upon artistic excellence and artistic merit); Eastern
Enterprises v. Apfel, 524 U.S. 498 (1998) (Commissioner of Social
Security named as a defendant in a suit challenging the constitutional-
ity of federal statute requiring coal company to pay premiums for
beneficiaries assigned by Commissioner). Moreover, when cases
challenge the validity of federal regulations, the defendant is gener-
ally the Secretary of the department that issued them. See, e.g.,
Regions Hosp. v. Shalala, 522 U.S. 448 (1998); Public Lands Council
v. Babbitt, 529 U.S. 728 (2000). The President’s general duty to
ensure that the laws of the land are faithfully executed does not mean
that the President is a defendant in every suit testing the validity of
a federal enactment.

   Next, permitting a party to name the Governor in any suit challeng-
ing the validity of state law would allow the rule in Ex parte Young
to swallow the protections offered by the Eleventh Amendment.
Plaintiffs could routinely name the Governor as a defendant in an
effort to obtain a judgment binding on the State. Plaintiff’s approach
would also regularly subject the Governor to the risk of contempt.
The President of the United States may not be enjoined in the perfor-
mance of his official duties. See Mississippi v. Johnson, 71 U.S. (4
Wall.) 475, 501 (1867). This rule is founded partly upon an unwilling-
ness to subject the head of the Executive branch to the possibility of
being cited for contempt. Unlike his Cabinet officers and other subor-
dinate officials, the Governor is the embodiment of the Executive
power in Virginia. Subjecting governors gratuitously to the threat of
citations for contempt is an unwarranted federal interference with the
administration of state government.
18                         LYTLE v. GRIFFITH
   At the very least, this court should leave it to the states to choose
which officials they would subject to binding federal decrees. The
federal courts should not lightly interfere with state decisions on the
very organization of state governments. It is difficult to imagine a
more fundamental intrusion on state sovereignty. The Supreme Court
drew this line as far back as 1911 in Coyle v. Smith, 221 U.S. 559,
565 (1911), where it forbade the federal government from ordering
the State of Oklahoma to locate its capital in a certain city. See also
Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (holding that the
states’ right to structure their internal governmental operations and to
create restrictions on the exercise of government authority is "a deci-
sion of the most fundamental sort for a sovereign entity"). Plaintiffs
ask us to interpret Virginia law to bestow upon the Governor an obli-
gation to enforce a mere traffic statute. However, Virginia’s officials
have designed state operations so that the Governor is not charged
with the enforcement of § 46.2-930. The Virginia legislature deter-
mined that the Transportation Commissioner and the local police
would assume this duty. Likewise, the Governor has not assumed that
duty by attempting to enforce this statute. Implicit in the legislature’s
and the Governor’s choice is a desire not to subject the Governor of
the Commonwealth to the onus of judicial process in suits seeking to
enjoin enforcement of § 46.2-930. Holding that the Governor bears a
special connection to this statute simply neglects Virginia’s decisions
in this area.

                                  III.

   The purpose of the "special relation" requirement is not to erect
barriers for parties seeking to enforce their constitutional rights under
Ex parte Young. Rather, the requirement merely seeks to enforce a
modicum of precision in determining which state officials are named.
In this case, officials other than the Governor bear the duty of enforc-
ing § 46.2-930. To allow the Governor to remain a named party in
this case would eviscerate the limits Young established and reorder
settled Eleventh Amendment law.

     I would dismiss the Governor as a defendant in this case.
