                              In the

United States Court of Appeals
                For the Seventh Circuit

No. 08-3183

INDIANA P ROTECTION AND A DVOCACY S ERVICES,

                                                  Plaintiff-Appellee,
                                  v.


INDIANA F AMILY AND S OCIAL S ERVICES
A DMINISTRATION, et al.,
                                   Defendants-Appellants.


          Appeal from the United States District Court for the
          Southern District of Indiana, Indianapolis Division.
         No. 1:06-cv-1816-LJM-TAB—Larry J. McKinney, Judge.


        A RGUED JANUARY 20, 2009—D ECIDED JULY 28, 2009




  Before E ASTERBROOK, Chief Judge, SYKES, Circuit Judge,
and K ENDALL, District Judge.
  E ASTERBROOK, Chief Judge. Each state that accepts
federal grants under the Developmental Disabilities
Assistance and Bill of Rights Act must establish “a system




    Of the Northern District of Illinois, sitting by designation.
2                                               No. 08-3183

to protect and advocate the rights of individuals with
developmental disabilities.” 42 U.S.C. §15043. A second
statute, the Protection and Advocacy for Individuals
with Mental Illness Act, 42 U.S.C. §§ 10801–51 (PAIMI),
provides extra funding for systems established under
§15043. A system that receives money under §10803 is
entitled to investigate “incidents of abuse and neglect of
individuals with mental illness” (§10805(a)(1)(A)) and, to
carry out its investigations, to see patient-care records,
unless a legal guardian is in charge of the patient’s inter-
ests. 42 U.S.C. §§ 10805(a)(4), 10806. Indiana has taken
the federal grants. Its system is called Indiana Protection
and Advocacy Services (“Advocacy Services” for short).
  Advocacy Services asked for records about J.Y.G., a
mentally disabled patient at LaRue Carter Memorial
Hospital. J.Y.G. had died, and Advocacy Services wanted
to learn whether she was a victim of abuse, so that it
could propose improvements in medical procedures. The
Hospital, a part of the state, see Ind. Code §12-7-2-184,
declined to furnish all of the records that Advocacy
Services wanted. Some of them are covered by state
privacy protections, the Hospital asserted, and the dis-
closure of others would violate the privacy interests of
J.Y.G.’s parents. Advocacy Services then filed this
suit in federal court, naming as defendants not only the
Hospital but also the Indiana Family and Social Services
Administration (which superintends the Hospital), plus
several state officials. The district court held that defen-
dants must hand over the records, because J.Y.G. was an
adult at the time of death and her parents had not
been appointed as her legal guardians. The absence of a
No. 08-3183                                               3

guardian brought J.Y.G. within the scope of Advocacy
Services’ authority under §10805(a)(4) and 42 C.F.R. §51.2,
the commentary to which says that parents are deemed
guardians of minor children but not of adult children,
unless the parents are appointed to that role by a court.
  Defendants (collectively “Indiana”) contend on appeal
that the regulation is invalid and that parents should be
treated as guardians of their (mentally disabled) adult as
well as their minor children, whether or not a court
appoints them to that role. If J.Y.G.’s parents were her
guardians, then Advocacy Services needs their consent.
Disclosure without consent, Indiana maintains, would
violate the parents’ constitutional and statutory rights.
  Underneath this apparently simple dispute lies a
bushel full of issues that the parties did not mention in
the district court, or this court. For example: How does
Advocacy Services, which describes itself as an ombuds-
man rather than a law-enforcement agency, have
standing to obtain information that pertains to J.Y.G.?
What is Advocacy Services’ injury? (The answer may
be that the lack of information is injury in itself; this
argument has carried the day under the Freedom of
Information Act, and we need not decide whether it
applies to §10805 and §10806 too.) Conversely, why is
Indiana entitled to assert the privacy interests of J.Y.G.’s
parents? They can speak for themselves. It is not as if
Advocacy Services wanted to rummage through the
parents’ diaries. The medical records are already in the
possession of state government, and allowing another
state agency to see them differs from disclosing them to
4                                                 No. 08-3183

the public, which Advocacy Services is forbidden to do.
42 U.S.C. §10806(a), (b). Cf. Bowen v. Roy, 476 U.S. 693
(1986).
   Then there is the question whether Advocacy Services
is entitled to sue in federal court. Neither federal
statute gives “systems” an express right of action. These
statutes are enacted under the Spending Clause, and
the usual way in which such laws are enforced is by
withholding grants from states that do not satisfy the
conditions. See Brunner v. Ohio Republican Party, 129 S. Ct.
5 (2008); Gonzaga University v. Doe, 536 U.S. 273 (2002);
Alexander v. Sandoval, 532 U.S. 275 (2001). Cf. Pennhurst
State School & Hospital v. Halderman, 451 U.S. 1 (1981). In
response to a request for supplemental briefs, Advocacy
Services and the United States (as amicus curiae) have
argued that §§ 10805 and 10806 are specific enough
to create personal rights that are enforceable through
litigation, under the approach of Wilder v. Virginia Hospital
Ass’n, 496 U.S. 498 (1990), and Wright v. Roanoke Redevelop-
ment & Housing Authority, 479 U.S. 418 (1987). And four
courts have held that these statutes create specific federal
rights—though none of the four cites Wilder, Wright,
Gonzaga, or Alexander. See Protection & Advocacy for
Persons with Disabilities v. Mental Health & Addiction
Services, 448 F.3d 119 (2d Cir. 2006) (Sotomayor, J.); Pennsyl-
vania Protection & Advocacy, Inc. v. Houstoun, 228 F.3d
423, 428 (3d Cir. 2000) (Alito, J.); Missouri Protection &
Advocacy Services v. Missouri Department of Mental Health,
447 F.3d 1021 (8th Cir. 2006); Center for Legal Advocacy v.
Hammons, 323 F.3d 1262, 1272 (10th Cir. 2003).
No. 08-3183                                                5

  All four of these decisions assume that, if the rights in
§§ 10805 and 10806 are specific, then they must be en-
forceable in federal court. But this begs an important
question. Usually statutes that induce state cooperation
through the lure of federal grants leave to states the
implementation of the grant’s conditions. See South
Dakota v. Dole, 483 U.S. 203 (1987). The Protection and
Advocacy for Individuals with Mental Illness Act may
or may not follow that approach—yet another question
that the parties have not addressed. The statutory
language is equivocal. Section 10805(a)(1), for example,
says that the system “shall . . . have the authority to . . .
investigate incidents of abuse” and obtain records. The
word “shall” in such a construction could mean that the
national government bestows these powers on any “sys-
tem” that receives a federal dime. Or it could mean that, to
qualify for a grant, the state “shall” ensure that the
system can do all of the listed things. That’s the norm
for strings attached to federal grants. Yet the parties’
supplemental briefs agree that Indiana has not enacted
legislation, or promulgated regulations, giving Advocacy
Services the powers listed in §§ 10805 and 10806.
  Private rights of action to enforce spending legislation
are derived through 42 U.S.C. §1983 and the approach of
Maine v. Thiboutot, 448 U.S. 1 (1980). Section 1983 autho-
rizes federal courts to enforce statutes, as well as the
Constitution, against misbehaving state actors. The Su-
preme Court concluded in Wilder and Wright that
spending statutes that contain personal rights come
within §1983, as understood in Thiboutot. But Advocacy
Services is unable to use §1983, because Advocacy
6                                                No. 08-3183

Services is itself a state actor, and thus not a “person” for
the purpose of §1983. See Will v. Michigan Department of
State Police, 491 U.S. 58 (1989). Only “persons” can sue
under §1983, and the upshot of this is that §1983 cannot
be used by one branch of a state to sue another. See
Illinois v. Chicago, 137 F.3d 474 (7th Cir. 1998). Yet that is
exactly what Advocacy Services is trying to do. This
suit might as well be captioned “Indiana v. Indiana.”
Virginia Office for Protection and Advocacy v. Reinhard, 405
F.3d 185 (4th Cir. 2005) (Virginia I), holds that a “system”
established under §15043 cannot sue another state
agency in federal court to enforce §10805 or §10806. We
agree with that conclusion, which means that the other
issues we have identified need not be resolved. (There is
no priority among reasons for deciding that a suit
does not belong in federal court. See Sinochem Inter-
national Co. v. Malaysia International Shipping Corp., 549
U.S. 422 (2007). Any one reason not to decide the merits
will do, even if some of the unresolved issues are
jurisdictional.)
   Advocacy Services denies that it is suing under §1983. It
contends that the claim arises directly under federal
law—§§ 10805 and 10806. This does not help, because
those sections lack a right of action. It is hard to see where
the right of action comes from, if not §1983. That’s why
Wright and Wilder both relied on Thiboutot. So the fact
that Advocacy Services is not a “person” is conclusive
against this federal action. Indiana might have estab-
lished its “system” as a private entity, the way legal
services corporations are organized. See 42 U.S.C.
No. 08-3183                                                        7

§10805(c). Some other states have done this. ^ But because
Advocacy Services is a public agency rather than a
private corporation or foundation, it cannot use §1983
and must sue in state rather than federal court.
  The eleventh amendment provides another obstacle to
a federal-court action. The Supreme Court understands
this amendment to cover suits based on federal law. Hans
v. Louisiana, 134 U.S. 1 (1890). Occasionally Congress
has specified that a federal law supersedes states’ sover-
eign immunity. The Supreme Court has recognized two
such instances: statutes enforcing the fourteenth amend-


^
   Wisconsin is among them. See Disability Rights Wisconsin, Inc.
v. Wisconsin Department of Public Instruction, 463 F.3d 719, 722
(7th Cir. 2006), which describes Wisconsin’s system as a
“nonprofit stock corporation”. Our opinion held that a protec-
tion and advocacy system is entitled to information without
consent by affected persons. The opinion assumed that there
is a right of action under federal law and that relief is proper
against a state agency. None of the briefs contested those
matters, and as they do not affect subject-matter jurisdiction
the panel was not obliged to address them on its own. See
Grable & Sons Metal Products, Inc. v. Darue Engineering & Manu-
facturing, 545 U.S. 308 (2005) (existence of a private right of
action is not a jurisdictional question); Lapides v. Board of
Regents of University System of Georgia, 535 U.S. 613 (2002) (ability
of states to waive the defense of sovereign immunity shows
that the issue is not jurisdictional). Moreover, even if these
subjects were jurisdictional, the fact that they have been over-
looked does not establish a holding on the subject. See Steel Co.
v. Citizens for a Better Environment, 523 U.S. 83, 91–92 (1998);
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952).
8                                               No. 08-3183

ment, see Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), and
statutes implementing the bankruptcy power, see
Central Virginia Community College v. Katz, 546 U.S. 356
(2006). But Advocacy Services does not contend that this
litigation rests on §5 of the fourteenth amendment or the
bankruptcy clause. Statutes implementing other clauses,
including the commerce and spending powers, remain
subject to the eleventh amendment. See Seminole Tribe
v. Florida, 517 U.S. 44 (1996). A state’s decision to
accept federal funds is not enough, standing alone, to
waive the state’s immunity from suit, see Atascadero
State Hospital v. Scanlon, 473 U.S. 234, 246–47 (1985).
Congress occasionally insists that states submit to suit as a
condition on the receipt of federal money, see, e.g., 42
U.S.C. §2000d–7, but Advocacy Services does not
contend that any of the statutes under which it operates
requires such a waiver or that Indiana has otherwise
consented to be sued in federal court on the claim in
this litigation.
  Plaintiffs often step around the eleventh amendment by
seeking prospective relief against state officials who
disregard federal statutes. See Ex parte Young, 209 U.S.
123 (1908). That won’t work for claims against the
Hospital and the Indiana Family and Social Services
Administration, which are parts of the State of Indiana
rather than officeholders. Advocacy Services has not
invoked Ex parte Young even with respect to the three
natural persons it has named as defendants, because it
wants a remedy for a concrete injury, not an injunction
governing public officials’ future conduct. The Supreme
Court has held that the eleventh amendment applies to
No. 08-3183                                                  9

a plaintiff’s efforts to obtain a turnover order for
property in a state’s possession (at least when the state
has a “colorable claim” to a possessory interest). See, e.g.,
California v. Deep Sea Research, Inc., 523 U.S. 491 (1998), and
Florida Department of State v. Treasure Salvors, Inc., 458
U.S. 670 (1982) (both collecting cases). Yet that’s the sort
of remedy Advocacy Services wants. See also Virginia
Office for Protection and Advocacy v. Reinhard, 2009 U.S.
App. L EXIS 11737 (4th Cir. June 2, 2009) (Virginia II), at
*14–31 (Ex parte Young does not permit “systems” to
obtain information from state agencies).
  Because Advocacy Services wants information, the
Supreme Court’s treatment of intellectual-property claims
is informative. And the Court held in Florida Prepaid
Postsecondary Education Expense Board v. College Savings
Bank, 527 U.S. 627 (1999), that the eleventh amendment
blocks enforcement of patent claims against states and
their agencies. We do not see any reason why patent
holders should be turned away on grounds of sovereign
immunity while other demands concerning information
in state hands would be unaffected by that doctrine.
  And we add, as did Virginia II, that the Supreme
Court has never used Ex parte Young to let one arm of a
state sue another. For private parties affected by states’
failure to implement federal law, prospective equitable
relief using the legal fiction that the defendant “isn’t
really the state” may be the only recourse. Intramural
disputes among governmental bodies can and should
be worked out in political ways—or through the
state courts, if a state chooses that method of dispute
resolution.
10                                             No. 08-3183

  Some future decision will need to wrestle with the
problems that arise when a “system” established as a
private organization sues in federal court to obtain infor-
mation from a private medical provider, or when a
“system” sues its home state in state court. This suit,
between one state agency and another, is outside the
scope of §1983 and blocked by the eleventh amendment.
The judgment of the district court is vacated, and the
case is remanded with instructions to dismiss for want
of jurisdiction.




                          7-28-09
