                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


                             Filed April 30, 1999


                                 No. 98-5133


              United States of America, ex rel. Ronald E. Long, 

                           Appellee/Cross-Appellant

                                      v.

              SCS Business & Technical Institute, Inc., et al., 

                                  Appellees


                             State of New York, 

                           Appellant/Cross-Appellee


                   Attorney General of the United States, 

                                  Intervenor


                              Consolidated with 

                            Nos. 98-5149 & 98-5150


                Appeals from the United States District Court 

                        for the District of Columbia 

                                 (92cv02092)

                             Supplemental Opinion


     Howard L. Zwickel, Assistant Attorney General, State of 
New York, argued the cause for appellant/cross-appellee.  
With him on the briefs was Peter H. Schiff, Deputy Solicitor 
General.

     Ronald A. Shems, Assistant Attorney General, State of 
Vermont, argued the cause for amici curiae State of Ver-
mont, et al.  With him on the brief was William H. Sorrell, 
Attorney General.

     Douglas N. Letter, Appellate Litigation Counsel, United 
States Department of Justice, argued the cause for United 
States as intervenor.  With him on the briefs were Frank W. 
Hunger, Assistant Attorney General, and Wilma A. Lewis, 
United States Attorney.  Richard L. Cys entered an appear-
ance.

     Stuart F. Pierson argued the cause and filed the briefs for 
appellee/cross-appellant.

     Jill A. Dunn was on the notice of joinder in brief for 
appellant Joseph P. Frey.

     Mark B. Rotenberg was on the brief for amicus curiae The 
Regents of the University of Minnesota.

     Before:  Wald, Silberman, and Sentelle, Circuit Judges.

           Opinion for the Court filed by Circuit Judge Silberman.


     Silberman, Circuit Judge:  In the same week that our 
opinion issued, the Fifth Circuit held that the Eleventh 
Amendment bars a False Claims Act qui tam suit against a 
state in federal court.  See United States ex rel. Foulds v. 
Texas Tech Univ., No. 97-11182, 1999 WL 170139 (5th Cir., 
March 29, 1999).  The court thought it was obliged to decide 
that issue before reaching the question we decided--whether 
the statute provides for a qui tam action against a state--
because the Eleventh Amendment issue is jurisdictional.  Al-
though we certainly discussed the serious nature of the 
Eleventh Amendment issue as it bore on our order of deci-
sion, we did not consider whether, as a matter of judicial 
authority, we too were obliged to decide that issue.  Since our 


sister circuit implicitly challenged our jurisdiction--even 
though no party before us did--and our mandate has not 
issued, under these unusual circumstances, we think it appro-
priate to issue this supplemental opinion to explain why we 
believe we should stick with the order of decision we adopted.

     The Fifth Circuit reasoned as follows:  since the question 
whether a relator can sue a state under the Act is a cause of 
action or merits question, and since the question whether a 
federal court can hear such a suit under the Eleventh Amend-
ment is a jurisdictional one, the latter must be resolved 
before the former.  See id. at * 5-* 6.  The principal authori-
ty that the Fifth Circuit relied on is Steel Co. v. Citizens for a 
Better Env't, 118 S. Ct. 1003 (1998), in which the Supreme 
Court held that a question of Article III standing must be 
decided before the statutory question whether a cause of 
action exists.  See id. at 1012-16.  In so holding, the Court 
rejected the doctrine of "hypothetical jurisdiction," under 
which lower courts--including this one, see, e.g., Cross-Sound 
Ferry Servs., Inc. v. ICC, 934 F.2d 327, 333 (D.C. Cir. 1991)--
had assumed jurisdiction in order to reach the merits, where 
the merits question was easier and the prevailing party on 
the merits would be the same as the prevailing party were 
jurisdiction denied.  See Steel Co., 118 S. Ct. at 1012 (disap-
proving of Cross-Sound and other lower court decisions).  
The doctrine, the Court said, is flatly inconsistent with core 
principles limiting the role of Article III courts:  "For a court 
to pronounce upon the meaning or the constitutionality of a 
state or federal law when it has no jurisdiction to do so is, by 
very definition, for a court to act ultra vires."  Id. at 1016.

     We did not address this Steel Co. question in our opinion, 
we confess, because we did not focus on it.  Indeed, New 
York--whose immunity from suit is at stake--specifically 
urged us, apparently unlike Texas in Foulds, to decide the 
statutory question first on the ground that nonconstitutional 
grounds should be considered before constitutional ones.  Ad-
mittedly, we ordinarily are obliged to raise jurisdictional 
questions on our own, so the parties' litigating tactics would 
not excuse our oversight.  Still, the Eleventh Amendment bar 
on suits against the states in federal court is not a garden 



variety jurisdictional issue.  Although the Amendment speaks 
in terms of the limits of the judicial power, see U.S. Const. 
Amend. XI ("The Judicial power of the United States shall not 
be construed to extend...."), a state can waive its Eleventh 
Amendment defense and consent to suit in federal court, and 
the Supreme Court has held that there is no obligation for the 
Court to raise the issue sua sponte.  See Wisconsin Dep't of 
Corrections v. Schacht, 118 S. Ct. 2047, 2052-53 (1998) (citing 
Atascadero State Hsp. v. Scanlon, 473 U.S. 234, 241 (1985) 
and Patsy v. Board of Regents of Fla., 457 U.S. 496, 515 n.19 
(1982)).

     To be sure, the Court has also held that the "Eleventh 
Amendment defense sufficiently partakes of the nature of a 
jurisdictional bar so that it need not be raised in the trial 
court," Edelman v. Jordan, 415 U.S. 651, 678 (1974);  see 
Burkhart v. Washington Metropolitan Area Transit Auth., 
112 F.3d 1207, 1216 (D.C. Cir. 1997), and indeed can be raised 
for the first time in the Supreme Court, see Ford Motor Co. v. 
Department of Treasury, 323 U.S. 459, 467 (1945).  Given 
these somewhat conflicting rules, see Schacht, 118 S. Ct. at 
2055 (Kennedy, J., concurring), the Court has frankly recog-
nized that the Eleventh Amendment is a rather peculiar kind 
of "jurisdictional" issue.  See Calderon v. Ashmus, 118 S. Ct. 
1694, 1697 n.2 (1998) ("While the Eleventh Amendment is 
jurisdictional in the sense that it is a limitation on the federal 
court's judicial power, and therefore can be raised at any 
stage of the proceedings, we have recognized that it is not co-
extensive with the limitations on judicial power in Article 
III.");  Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 
267 (1997) ("The Amendment, in other words, enacts a sover-
eign immunity from suit, rather than a nonwaivable limit on 
the federal judiciary's subject-matter jurisdiction.").  The 
Court's most recent opinion noted that the question whether 
Eleventh Amendment immunity is a matter of subject matter 
jurisdiction is an open one.  See Schacht, 118 S. Ct. at 2054.

     New York's explicit request that we first decide the statu-
tory question could therefore be seen as a kind of agreement 
to assert its Eleventh Amendment defense only if it loses on 



the statutory one (a "springing" defense, as it were).  As the 
Supreme Court has recently made clear, "[t]he Eleventh 
Amendment ... does not automatically destroy original juris-
diction," but instead "grants the State a legal power to assert 
a sovereign immunity defense should it choose to do so."  
Schacht, 118 S. Ct. at 2052 (emphasis added).  A state can 
waive its immunity from suit in the context of a litigation, see, 
e.g., Ford Motor Co., 323 U.S. at 467-69, as long as it does so 
unequivocally, see Atascadero, 473 U.S. at 246-47.  Although 
there are difficult questions about whether the state's attor-
neys must be authorized by state law to waive the state's 
immunity, and about whether such authorization, if needed, 
has been granted, compare id. (suggesting that such authori-
zation is necessary) with Schacht, 118 S. Ct. at 2055-56 
(Kennedy, J., concurring) (questioning whether in the remov-
al context specific authorization is required), it may well be 
that New York's approach amounts to a partial consent to 
suit on the statutory question--subject to a later Eleventh 
Amendment defense.  And if so, we might be obligated to 
decide the statutory question first.

     But even if we were not so obligated, we think that we are 
at least permitted to do so.  Had New York chosen not to 
assert its Eleventh Amendment defense below, or even before 
us, it would not have been precluded from raising it thereaf-
ter.  See Calderon, 118 S. Ct. at 1697 n.2 (Eleventh Amend-
ment "can be raised at any stage of the proceedings");  but cf. 
Schacht, 118 S. Ct. at 2055 (Kennedy, J., concurring) (criticiz-
ing this rule because "permitting the belated assertion of the 
Eleventh Amendment bar ... allow[s] States to proceed to 
judgment without facing any real risk of adverse conse-
quences").  Unless that defense is asserted by the state, a 
court is arguably not obliged to raise the issue itself since the 
Supreme Court has made clear that the usual obligation to 
raise jurisdictional issues sua sponte does not apply (at least 
to the Court itself) in Eleventh Amendment cases.  See 
Patsy, 457 U.S. at 515 n.19.1  Therefore New York's litigation 

__________
     1  Whether the Patsy rule relieves lower courts of the sua 
sponte obligation to raise the Eleventh Amendment issue is a 



strategy--an Eleventh Amendment argument in the alterna-
tive--suggests that, at least, we are entitled to reverse the 
Steel Co. order.  After all, Steel Co.'s rule is premised on a 
court's lack of power to reach the merits without establishing 
its jurisdiction.  In the Eleventh Amendment context, where 
a court lacks power only if a state claims that it does, it is 
arguable that we have no obligation to decide the Eleventh 
Amendment issue first if the state does not demand that we 
do so.

     Moreover, the quasi-jurisdictional or "hybrid" status of the 
Eleventh Amendment, see Schacht, 118 S. Ct. at 2055 (Kenne-
dy, J., concurring), raises questions about Steel Co.'s applica-
bility in this context, quite apart from New York's request 
that we interpret the statute first.  Since the Eleventh 
Amendment at most "partakes of the nature of a jurisdiction-
al bar," Edelman, 415 U.S. at 678, it seems fair to ask 
whether the Eleventh Amendment is sufficiently jurisdictional 
to require us to decide a state's claim of Eleventh Amend-
ment immunity before turning to the merits.  One indication 
to the contrary is Calderon, in which the Supreme Court 
decided that it "must first address" whether a particular 
action for a declaratory judgment was an Article III case or 
controversy before deciding the Eleventh Amendment ques-
tion on which certiorari had been granted, observing that the 
Eleventh Amendment is "not co-extensive with the limitations 
of judicial power in Article III."  Calderon, 118 S. Ct. at 1697 
& n.2.  As between two jurisdictional issues, there ordinarily 
is no obligation to decide one before the other.  See Steel Co., 
118 S. Ct. at 1015 n.3;  In re Minister Papandreou, 139 F.3d 
247, 255 (D.C. Cir. 1998) (stating that dismissing on non-
merits grounds such as personal jurisdiction or forum non 
conveniens, before deciding subject-matter jurisdiction, is 

__________
matter of some controversy.  See Coolbaugh v. Louisiana, 136 F.3d 
430, 442 n.5 (5th Cir. 1998) (Smith, J., dissenting) (collecting cases 
and authorities).  We have raised an Eleventh Amendment question 
on our own in a prior case, see Morris v. Washington Metropolitan 
Area Transit Auth., 702 F.2d 1037, 1040 (D.C. Cir. 1983), but do not 
appear ever to have held whether we must do so, notwithstanding 
Patsy.



permissible under Steel Co.).2  That the Court in Calderon 
thought itself obliged to decide the case or controversy ques-
tion first suggests that the Eleventh Amendment, a less than 
pure jurisdictional question, need not be decided before a 
merits question.  One former judge of this court, in a concur-
ring opinion criticizing the hypothetical jurisdiction doctrine 
later rejected in Steel Co., pointed in that direction.  See 
Cross-Sound Ferry, 934 F.2d at 341 (Thomas, J., concurring 
in part and concurring in the denial of petition) (reasoning 
that the rule requiring consideration of jurisdictional issues 
before non-jurisdictional issues might not apply if "the ground 
passed over sufficiently, though not entirely, 'partakes of the 
nature' of a merits ground, or if the ground rested upon 
'sufficiently,' though not entirely, 'partakes of the nature of a 
jurisdictional bar' " (quoting Edelman, 415 U.S. at 678)).

     Another difficulty in applying Steel Co. here is that classify-
ing the statutory question in an Eleventh Amendment case as 
a "cause of action" or merits question is, though technically 
accurate, somewhat misleading.  The determination of wheth-
er a particular action is properly asserted against a state is 
also a kind of logical prerequisite to the jurisdictional inquiry.  
The Eleventh Amendment only bars a federal court from 
hearing a "suit in law or equity, commenced or prosecuted 
against one of the United States," and so it would seem 
perfectly appropriate--perhaps even necessary--for courts to 
determine whether there is even such a suit before the court.  
That kind of inquiry--sometimes classified as "jurisdiction to 
determine our jurisdiction," Nestor v. Hershey, 425 F.2d 504, 
511 (D.C. Cir. 1969) (inquiring whether student deferment 
sought was mandated by statute or within the discretion of 
the draft board, as jurisdiction existed only for the former)--
is fairly common, even though the rulings made in determin-
ing jurisdiction are made without certainty that jurisdiction 
actually exists.  Occasionally, as in this case, what a court 

__________
     2  The Fifth Circuit has concluded otherwise, holding that in the 
removal context, a district court must decide subject matter juris-
diction before personal jurisdiction.  See Marathon Oil Co. v. 
Ruhrgas AG, 145 F.3d 211, 215-25 (5th Cir.) (en banc), cert. 
granted, 119 S. Ct. 589 (1998).



says about an issue of statutory interpretation that logically 
precedes the ultimate jurisdictional determination removes 
any contention that the court's jurisdiction is in question.  
See, e.g., Webster v. Doe, 486 U.S. 592, 603-04 (1988) (using 
clear statement principles and the constitutional avoidance 
canon to hold that statutory provision did not, despite lan-
guage indicating that the statute was committed to agency 
discretion, preclude judicial review of constitutional claims).

     If the Eleventh Amendment were a statutory provision 
stripping the federal courts of jurisdiction, the inquiry wheth-
er the case before the court was of the kind that the statute 
forbade would be a fairly routine form of jurisdictional analy-
sis.3  Accordingly, in determining whether the Eleventh 

__________
     3  One analogy is cases involving the Norris-LaGuardia Act's 
bar on federal courts issuing certain injunctions in labor disputes.  
See 29 U.S.C. s 104 (1994) ("No court of the United States shall 
have jurisdiction to issue any restraining order or temporary or 
permanent injunction in any case involving or growing out of any 
labor dispute to prohibit any person or persons participating or 
interested in such dispute [from doing certain acts].").  Not surpris-
ingly, the Supreme Court has had to interpret that provision, 
together with the provision defining it, see id. at s 113 ("A case 
shall be held to involve or grow out of a labor dispute when the case 
involves persons who are engaged in the same industry, trade, craft, 
or occupation...."), to determine whether particular kinds of cases 
fall within the jurisdictional bar.  See, e.g., Burlington N. R.R. Co. 
v. Brotherhood of Maintenance of Way Employees, 481 U.S. 429, 
440-44 (1987) (rejecting restrictive interpretation of Norris- 
LaGuardia Act, under which a "labor dispute" would only include 
disputes in which the picketed employer is "substantially aligned" 
with the primary employer);  United States v. United Mine Work-
ers of Am., 330 U.S. 258, 269-89 (1947) (interpreting general 
language of ss 104 and 113 to exclude the United States, such that 
where the United States seizes actual possession of mines or other 
facilities and operates them, and where the United States is the 
employer of the workers, the Norris-LaGuardia Act does not 
apply);  id. at 250-51 (holding that district court properly issued 
restraining order to preserve existing conditions while it deter-
mined whether it had jurisdiction to issue injunctive relief, and that 



Amendment bars a particular suit, federal courts must decide 
a variety of issues that relate to the question whether the suit 
is actually one brought against the state, and do so before 
jurisdiction is finally resolved.  See, e.g., Regents of the 
University of California v. Doe, 117 S. Ct. 900, 904 & n.5 
(1997) (noting that determining whether a state agency is an 
"arm of the state" for Eleventh Amendment purposes, such 
that the suit is one against the state itself, involves an 
analysis of the state law provisions that define the agency's 
character);  Seminole Tribe of Florida v. Florida, 517 U.S. 44, 
55-57 (1996) (analyzing Indian Gaming Regulatory Act for the 
purpose of determining if Congress, consistent with Eleventh 
Amendment abrogation requirements, set forth a clear state-
ment of its intent to provide for suits against the states in 
federal court, and concluding that it did);  Hafer v. Melo, 502 
U.S. 21, 24 n.*, 30-31 (1991) (discussing, although not resolv-
ing, competing methods for determining whether a suit for 
monetary damages is against a state official in his or her 
official capacity, and thus against the state itself, or against a 
state official in his or her personal capacity, to which the 
Eleventh Amendment does not apply).

     Still, it might be thought that the "jurisdiction to determine 
jurisdiction" concept is not wholly satisfactory because wheth-
er states are persons under the False Claims Act is also a 
cause of action question (which is what the Fifth Circuit 
emphasized).  But even if the cause of action aspect of the 
statutory question takes it outside the "jurisdiction to deter-
mine jurisdiction" doctrine, two additional considerations jus-
tify the approach we have taken.

     As our discussion already indicates, the "merits" question 
is, in the Eleventh Amendment context, inextricably related 
to the "jurisdictional" question.  We noted this relationship in 
our opinion in explaining why the Eleventh Amendment's 
clear statement rule, ordinarily applied to an abrogation 
inquiry, is relevant in determining whether there is a cause of 
action against the states.  Even if we were to assume that 

__________
it had power to punish violations of its orders as criminal contempt 
before the jurisdictional question was resolved).



states are defendant persons, and then actually to decide that 
the Eleventh Amendment applied, we would then have to ask 
whether, for abrogation purposes, the statute contains a clear 
statement that states are to be defendants--which is more-or-
less the same statutory analysis that we previously under-
took.  This can be seen in the Fifth Circuit's opinion, where 
the court held that the state's Eleventh Amendment immuni-
ty was not abrogated because the Act did not contain the 
requisite clear statement.  See Foulds, 1999 WL 170139, at  
* 11.  The only real difference between the Fifth Circuit's 
analysis of the statute and our own is that the Fifth Circuit 
had to actually hold that the Eleventh Amendment applied--a 
serious constitutional issue--in order to get there.

     We think this close relationship between the statutory and 
"jurisdictional" issues, even putting aside "jurisdiction to de-
termine jurisdiction," provides an independent ground on 
which to distinguish Steel Co.  The relationship between 
these two issues is quite different from the relationship 
between an ordinary "cause of action" question and a pure 
jurisdictional issue such as standing.  The Court in Steel Co. 
rejected the contention that merits questions could be decided 
before constitutional standing questions because the Article 
III redressability requirement, for example, "has nothing to 
do with the text of the statute relied upon" (except with 
regard to entirely frivolous claims).  Steel Co., 118 S. Ct. at 
1013 n.2.  By contrast, the Court explained why merits 
questions can be decided before statutory or prudential 
standing questions:  the two questions overlap to such an 
extent that it would be "exceedingly artificial to draw a 
distinction between the two."  Id.  If an inextricable relation-
ship between statutory standing and the merits permits a 
court to decide the merits first, the same order would seem 
appropriate for the two claims before us.

     In addition, we do not think our approach even implicates 
the concerns underlying the Supreme Court's rejection of 
"hypothetical jurisdiction" because the statutory question is 
logically antecedent to the Eleventh Amendment question 
(even if it were not thought an aspect of "jurisdiction to 
determine jurisdiction").  We have not chosen to decide a 



pure (and relatively easier) merits question on the assump-
tion that we have jurisdiction--the paradigm of the hypothet-
ical jurisdiction model.  When a court decides, as we do, that 
a statute does not provide for a suit against the states, there 
is no risk at all that the court is issuing a hypothetical 
judgment--an advisory opinion by a court whose very power 
to act is in doubt.  See Steel Co., 118 S. Ct. at 1016.  Rather, 
the conclusion that the statute does not provide for suits 
against the states in federal court is, in effect, a resolution of 
the jurisdictional question, in that the Eleventh Amendment 
can no longer be said to apply (which is quite different from 
saying, as courts do under the hypothetical jurisdiction doc-
trine, that jurisdiction does not matter because the same 
party arguing a lack of jurisdiction prevails on the merits).  
The Supreme Court recently adopted precisely this reasoning 
in deciding a class action certification issue before an asserted 
"array of jurisdictional barriers," including ripeness, standing, 
and subject matter jurisdiction.  See Amchem Prods., Inc. v. 
Windsor, 117 S. Ct. 2231, 2244 (1997).  The Court said that, 
because resolution of the class certification issues was "logi-
cally antecedent to the existence of any Article III issues, it 
[was] appropriate to reach them first."  Id.  The Fifth Cir-
cuit's view instead is that a court must assume that states are 
defendants under the Act and address the Eleventh Amend-
ment question at the outset, lest the court give an interpreta-
tion of the statute that it has no power to give.  See Foulds, 
1999 WL 170139, at * 6 ("[I]f the Eleventh Amendment 
removes our jurisdictional authority to hear [the] case, we 
have no power to determine whether the False Claims Act 
creates a cause of action against states....").  But such an 
approach ostensibly avoids the evils of "hypothetical jurisdic-
tion" (not really at issue) in favor of deciding a purely 
hypothetical jurisdictional issue--that is, a jurisdictional issue 
that arises solely by virtue of the statutory question assumed.  
Since the Eleventh Amendment issue in this case "would not 
exist but for" that assumption, Amchem, 117 S. Ct. at 2244 
(quoting Georgine v. Amchem Prods., Inc., 83 F.3d 610, 623 
(3d Cir. 1996)), we think it is appropriate for us to decide the 
logically prior issue first.4


     Perhaps most important, our reasoning is confirmed by 
several Eleventh Amendment cases in which the Supreme 
Court itself has decided "cause of action" questions before 
turning to the Eleventh Amendment.  See, e.g., Hafer, 502 
U.S. at 21-30 (holding that state officials sued in their individ-
ual capacities are persons under 42 U.S.C. s 1983, and then 
holding that the Eleventh Amendment presents no bar to 
such a suit);  Lake Country Estates, Inc. v. Tahoe Regional 
Planning Agency, 440 U.S. 391, 398-402 (1979) (deciding that 
a claim against an interstate compact that required federal 
approval was a claim alleging a deprivation of constitutional 
rights "under color of state law" within the meaning of 
s 1983, and then deciding that the compact was not entitled 
to Eleventh Amendment immunity)5;  Monell v. Department 

__________
     4  Of course, we recognize some tension between Amchem and 
Steel Co., in that a cause of action question is, in a sense, logically 
antecedent to jurisdiction too:  without a cause of action, the ques-
tion whether a party satisfies jurisdictional requirements would not 
arise.  Yet Steel Co. clearly requires a court to decide jurisdiction 
first.  But the Court did not cast any doubt on Amchem in Steel 
Co., and we think logical priority, as in Amchem, should control 
here.

     5  Lake Country Estates went so far as to state that this order 
of decision was required.  See Lake Country Estates, 440 U.S. at 
398 ("Before addressing the immunity issues [of which the Eleventh 
Amendment was one], we must consider whether petitioners prop-
erly invoked the jurisdiction of a federal court [under 28 U.S.C. 
s 1331].").  Of course, as the Court went on to explain, the question 
whether a plaintiff has a federal cause of action sufficient to create 
jurisdiction under s 1331 is not itself a jurisdictional argument 
(except in the rare circumstances in which the cause of action is 
frivolous, see Steel Co., 118 S. Ct. at 1010 (citing Bell v. Hood, 327 
U.S. 678, 682 (1946)).  See Lake Country Estates, 440 U.S. at 398 
("[R]espondents' 'jurisdictional' arguments are not squarely direct-
ed at jurisdiction itself, but rather at the existence of a remedy for 
the alleged violation of their federal rights.").  Still, after identify-
ing the argument as a cause of action argument, the Court resolved 
that issue before even turning to the Eleventh Amendment ques-
tion.  If the Fifth Circuit were right, the Court should have 



of Social Servs., 436 U.S. 658, 664-90 & n.54 (1978) (deciding 
that municipalities are persons under s 1983 and, in conclu-
sion, noting that the Eleventh Amendment would not bar 
such suits to the extent that a municipality is not considered a 
part of the state for Eleventh Amendment purposes);  Mt. 
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 
278-80 (1977) (deciding first that the contention that munici-
palities were not persons under s 1983 was a merits question 
that had been waived, and then deciding that the Eleventh 
Amendment does not bar a suit against a municipality in 
federal court);  see also Doe v. Chiles, 136 F.3d 709, 713-21 
(11th Cir. 1998) (deciding first that a provision of the Medic-
aid Act created a federal right to reasonably prompt provision 
of assistance enforceable under s 1983, and only then con-
cluding that the suit was not barred by the Eleventh Amend-
ment).  Though these cases pre-date Steel Co., we think they 
lend considerable support--albeit implicit--to our approach.

     On the other hand, the Court in Welch v. Texas Depart-
ment of Highways and Public Transportation, 483 U.S. 468 
(1987), decided an Eleventh Amendment abrogation question 
and specifically reserved the question whether the statute 
created a cause of action.  See id. at 476 n.6 ("Because 
Eleventh Amendment immunity 'partakes of the nature of a 
jurisdictional bar,' we have no occasion to consider the State's 
additional argument that Congress did not intend to afford 
seamen employed by the States a remedy under the Jones 
Act" (quoting Edelman, 415 U.S. at 678)).  This decision is 
hardly support for our position.  But we do not think the 
Court's comment that it had "no occasion" to consider the 
cause of action question fairly should be read as a holding 
that cause of action questions must be decided second.  See 
also Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 
275, 277-83 (1959) (holding that the two states had waived 
their Eleventh Amendment immunity from suit in an inter-
state compact, and only then deciding that interstate com-

__________
assumed the cause of action existed once it satisfied itself that the 
claim was not a jurisdictional one.



pacts were not exempt from the term "employer" in the Jones 
Act, but giving no indication that that order of decision was 
required).  If that were so, Welch would be flatly inconsistent 
with the cases cited above.  Again, the Court in Welch 
referred to the quasi-jurisdictional nature of the Eleventh 
Amendment--that it "partakes" of the nature of a jurisdic-
tional bar--which of course suggests that the order of deci-
sion adopted was not a mandatory one.

     Nor do we think, as did the Fifth Circuit, see Foulds, 1999 
WL 170139, at *5, that Blatchford v. Native Village of Noa-
tak, 501 U.S. 775 (1991), is to the contrary.  The Supreme 
Court did note in Blatchford that, given the Eleventh Amend-
ment bar, it would not express a view about whether the 
respondent was a "tribe" within the meaning of the statute in 
question, see Blatchford, 501 U.S. at 788 n.5.  But the statuto-
ry question was not a "cause of action" question at all but 
rather a question concerning the jurisdictional statute under 
which the respondent had sued, see 28 U.S.C. s 1362 (provid-
ing for federal court jurisdiction for suits by tribes involving 
federal law).  At most, the Court in Blatchford, for reasons 
not entirely clear to us, decided the case on Eleventh Amend-
ment jurisdictional grounds instead of addressing a purely 
statutory jurisdictional argument--whether the tribe had 
even established jurisdiction in the first place as a "tribe" 
under s 1362--that could have made unnecessary its various 
constitutional holdings.  See id. at 779-82 (holding that suits 
by tribes are barred by the Eleventh Amendment);  id. at 
783-86 (holding that s 1362 did not effect a delegation of the 
United States' exemption from the Eleventh Amendment bar 
to tribes);  see id. at 786-88 (holding that s 1362 did not 
abrogate the states' Eleventh Amendment immunity).6  And 
again, while there does not appear to be a requirement that 
some jurisdictional grounds be decided before others, see 

__________
     6  The Ninth Circuit, interestingly enough, had decided the 
statutory jurisdictional question before turning to the Eleventh 
Amendment issues.  See Native Village of Noatak v. Hoffman, 896 
F.2d 1157, 1160-61 (9th Cir. 1990), rev'd, Blatchford, 501 U.S. 775 
(1991).  The Supreme Court obviously chose a different order, but 



Steel Co., 118 S. Ct. at 1015 n.3, the Court's statement in 
Calderon that it was required to decide a case or controversy 
question before reaching the Eleventh Amendment, see Cal-
deron, 118 S. Ct. at 1697, casts considerable doubt on Blatch-
ford's order of decision.  In any event, Blatchford certainly 
cannot be said to mandate the Fifth Circuit's view that the 
Eleventh Amendment issue must always be decided first.

     We have taken pains to discuss the issue that the Fifth 
Circuit identified because of its importance.  Although the 
issue is complex, and the case law not altogether clear, we are 
confident that no authority or principle prohibits our ap-
proach.  And because it has the significant virtue of avoiding 
a difficult constitutional question, we think it is also the 
preferable one.

__________
did not in any way purport to reject this aspect of the Ninth 
Circuit's approach.

           
