               IN THE SUPREME COURT OF IOWA
                               No. 12–2055

                          Filed March 28, 2014


TINA LEE,

      Appellee,

vs.

STATE OF IOWA and POLK COUNTY CLERK OF COURT,

      Appellants.



      Appeal from the Iowa District Court for Polk County, James M.

Richardson, Judge.



      Defendants appeal the district court’s remand order that reinstated

plaintiff to her former employment and awarded wages and benefits.

AFFIRMED.



      Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Deputy

Attorney General, and Jeffrey C. Peterzalek and Meghan L. Gavin,

Assistant Attorneys General, for appellants.



      Paige E. Fiedler and Brooke C. Timmer of Fiedler & Timmer,

P.L.L.C., Urbandale, for appellee.
                                     2

WATERMAN, Justice.

      This case returns to us on defendants’ appeal following a remand.

On October 29, 2007, after a jury found the State terminated plaintiff in

violation of her right to self-care leave under the Family and Medical

Leave Act (FMLA), 29 U.S.C. § 2612(a)(1)(D) (2000), the district court

awarded plaintiff money damages and ordered the State to reinstate her

to her former position in the Polk County Clerk of Court Office.

Defendants appealed and successfully requested a stay of plaintiff’s

reinstatement pending the outcome.       In Lee v. State (Lee I), we held

sovereign immunity precluded plaintiff’s judgment for money damages

against the State. 815 N.W.2d 731, 743 (Iowa 2012). We remanded the

case for the district court to determine plaintiff’s entitlement to

prospective injunctive relief against a state official under Ex parte Young,

209 U.S. 123, 155–56, 28 S. Ct. 441, 452, 52 L. Ed. 714, 727 (1908).

Lee I, 815 N.W.2d at 743. On October 18, 2012, the district court again

ordered plaintiff reinstated and awarded her lost wages and benefits from

the date of the original 2007 reinstatement order.       The district court

concluded that plaintiff was entitled to reinstatement as a form of

injunctive relief and that the State had waived its sovereign immunity by

seeking a stay of the reinstatement order and promising to pay plaintiff’s

interim wages and benefits if we affirmed the 2007 order.

      Defendants nevertheless contend that the new reinstatement order

should be reversed because plaintiff failed to adequately plead claims for

such relief under Ex parte Young and the award of wages since 2007 is

barred by sovereign immunity. We disagree. Plaintiff’s pleadings were

sufficient to preserve her right to Ex parte Young remedies, and the

parties litigated the reinstatement remedy by consent. Further, this case

is strikingly similar to Barnes v. Bosley in which the plaintiff was
                                       3

wrongfully terminated from the St. Louis City Circuit Court Clerk’s

Office. 828 F.2d 1253, 1255 (8th Cir. 1987). We agree with the Eighth

Circuit Court of Appeals holding in that case: the Eleventh Amendment

to the United States Constitution does not bar an award of wages and

benefits for the period a reinstatement order was stayed.     See Barnes,

828 F.2d at 1257. We therefore affirm the district court’s 2012 order.

      I. Background Facts and Proceedings.

      On November 10, 2004, after taking FMLA leave to cope with

anxiety, Tina Lee was terminated from her employment with the judicial

branch of the State of Iowa, in the office of the Polk County Clerk of

Court. Lee sued the State of Iowa and the Polk County Clerk of Court,

alleging violations of her FMLA rights. A jury ultimately found in favor of

Lee and awarded her past lost earnings.         The district court awarded

additional amounts for Lee’s attorney fees, litigation expenses, and

interest and ordered her reinstated to her former position.     Additional

detail concerning Lee’s employment and the parties’ claims and defenses

are set forth in Lee I. See 815 N.W.2d at 734–35. We will now focus on

the facts relevant to this postremand appeal.

      At the outset of her lawsuit, Lee demanded the following remedies

in her petition’s prayer for relief:

      [J]udgment against Defendants, jointly and severally, in an
      amount which will fully and fairly compensate her for her
      injuries and damages, for liquidated damages, for interest as
      allowed by law, for attorneys’ fees, for the costs of this
      action, and for such other relief as may be just in the
      circumstances and consistent with the purpose of the Family
      and Medical Leave Act.

The case proceeded to trial, which commenced September 10, 2007. On

the witness stand, Lee asked the court to reinstate her to her former

position, and defendants cross-examined her on the propriety of
                                      4

reinstatement in light of Lee’s soured relationship with her supervisor in

the clerk’s office.   Outside the presence of the jury, the district court

discussed the remedy of reinstatement with the parties, and defendants

acknowledged “reinstatement is one of the equitable remedies available

to the Court if the jury concludes that there was liability.” The district

court responded, “That’s an agreement by both parties, that if there’s a

finding for the Plaintiff this Court has the subject matter jurisdiction to

reinstate the Plaintiff.” The parties also stipulated the issue of front pay

would be reserved for the district court.

      Two claims under the FMLA were submitted to the jury: wrongful

discharge and retaliation. On September 13, the jury found in favor of

Lee on both claims and awarded her damages for past lost earnings in

the   amount     of   $165,122.    Defendants     moved   for   a   judgment

notwithstanding the verdict, arguing sovereign immunity precluded

judgment against the State. Lee resisted this motion and filed her own

posttrial   “Motion   for   Reinstatement   and   Other   Equitable   Relief,”

requesting that the court order defendants to reinstate her, adopt an

FMLA retaliation policy, and provide all employees with FMLA training.

Defendants resisted, arguing reinstatement was impractical.               On

October 15, the district court held a hearing on the posttrial motions.

The district court ruled on the record in favor of Lee, ordering her

reinstatement.

      The district court memorialized its oral rulings in a written order

entered October 29. The district court concluded Congress abrogated the

State’s sovereign immunity as to the self-care provision of the FMLA.

The district court therefore awarded Lee past lost earnings in the amount

of the jury verdict of $165,122, with $19,127 in prejudgment interest,

plus $68,109 in attorney fees and $5734 in litigation expenses.          The
                                     5

district court ordered the State to reinstate Lee and pay her lost wages

and benefits in the amount of $1146 weekly from the date of the jury

verdict until the date of her reinstatement. Additionally, for the purposes

of retirement benefits and FMLA leave, the court ordered defendants to

credit Lee for years of service as if she had never been terminated.

      Defendants filed a notice of appeal and a “Motion to Stay All

Proceedings Pending Appeal without Filing a Supersedeas Bond.” In the

motion to stay, defendants represented to the district court,

      [t]he plaintiff will not suffer any irreparable harm or injury if
      the district court stays all proceedings. If the Supreme Court
      affirms the district court, then the State of Iowa will pay the
      judgment, plus any amounts owed to the plaintiff during the
      time she should have been reinstated and when she is
      reinstated. Thus, the plaintiff will be made whole.

Lee agreed to stay collection of the monetary judgment, but asked the

district court to compel her reinstatement.

      In a January 25, 2008 ruling on the motion to stay, the district

court concluded:

      Plaintiff here has shown that her loss has been, and
      continues to be, substantial. A stay of reinstatement would
      require Plaintiff to wait another 18–24 months before
      allowing her to return to work. This delay in salary and
      benefits would surely cause significant harm to Plaintiff as
      she has been unable to find comparable employment.

The district court also considered defendants’ likelihood of success on

the merits, whether defendants would suffer irreparable injury in the

absence of a stay, and the public interests implicated. The district court

ruled all of the factors supported a denial of the stay of reinstatement

and therefore ordered defendants to “immediately reinstate Plaintiff to

her previous position.”

      On February 16, defendants asked our court to stay Lee’s

reinstatement during their appeal, repeating their assurance that Lee
                                      6

would not suffer irreparable harm from a stay. We granted defendants’

motion, staying Lee’s reinstatement. We transferred the case to the court

of appeals, which affirmed the judgment in favor of Lee.         We granted

defendants’ application for further review.

      We held the appeal in abeyance pending a decision by the United

States Supreme Court on the issue of whether the self-care provision of

the FMLA validly abrogated the states’ sovereign immunity from suit.

That decision, Coleman v. Court of Appeals of Maryland, held Congress

failed to “identify a pattern of constitutional violations and tailor a

remedy congruent and proportional to the documented violations,” and

therefore, Congress failed to abrogate sovereign immunity. ___ U.S. ___,

___, 132 S. Ct. 1327, 1338, 182 L. Ed. 2d 296, 307 (2012) (plurality

opinion).   Accordingly, we held on May 25, 2012, that sovereign

immunity precluded Lee’s judgment against the State for money

damages.    Lee I, 815 N.W.2d at 743.       But, we noted injunctive relief

remained available to Lee under the doctrine of Ex parte Young:

      Nevertheless, states are bound to follow the self-care
      provisions of the FMLA, and state employees who are
      wrongfully denied self-care leave are still permitted to seek
      injunctive relief against the responsible state official.
      [Coleman, ___ U.S. at ___, 132 S. Ct. at 1350, 182 L. Ed. 2d
      at 320 (Ginsburg, J., dissenting)] (citing Ex parte Young, 209
      U.S. 123, 155–56, 28 S. Ct. 441, 452, 52 L. Ed. 714, 727
      (1908) (establishing proposition that suit for injunctive relief
      against state official does not offend sovereign immunity)). . . .
             In this case, the judgment entered by the district court
      was predicated on legal error. Accordingly, the noninjunctive
      relief granted in the judgment cannot stand, and we must
      reverse the district court. We remand the case to the district
      court to determine what relief granted in its judgment is still
      available to Lee within the framework of this lawsuit,
      findings of the jury at trial, and the cloak of immunity
      protecting the State. The district court shall permit the
      parties to be heard on this issue and enter a new final
      judgment for such relief. We do not retain jurisdiction.
                                    7

Id. (emphasis added).

        On remand, Lee filed a “Motion to Enforce Order Granting

Equitable Relief,” requesting enforcement of the 2007 order’s injunctive

relief, including her reinstatement, restoration of her retirement and

FMLA benefits, and lost wages and benefits of $1146 weekly from the

date of the 2007 order. Lee alternatively argued the State had waived

sovereign immunity by stipulating it would pay her lost wages and

benefits if the reinstatement order was affirmed.      Lee also moved to

amend her petition to expand her prayer for relief and to specifically

name Lois Leary as the Polk County Clerk of Court who fired her in

2004.

        Defendants resisted Lee’s motions.   They argued Lee’s motion to

amend was untimely and beyond the scope of our remand. Defendants

contended Ex parte Young injunctive relief is available only against state

officials sued in their official capacity and asserted Lee “has never named

any state official at all, let alone one named in his or her official

capacity.” Further, defendants argued Lee did not request prospective

injunctive relief in her original petition. Defendants also challenged the

characterization of lost wages and benefits as prospective injunctive

relief, arguing that an award of lost wages and benefits is essentially a

retroactive monetary award barred by sovereign immunity.           Finally,

defendants argued they did not waive immunity by pursuing a stay of

Lee’s reinstatement because they had agreed to pay Lee’s lost wages only

if our court affirmed the district court in Lee I—and we had instead

reversed and remanded for further proceedings.

        The district court entered its ruling on these motions on

October 18, 2012. The district court found Lee’s original petition suing

the “Clerk of Court” was sufficient to allow prospective injunctive
                                      8

remedies under Ex parte Young, stating “the Clerk of the Court is a state

official and it is unnecessary to name him or her by his or her given

name, as long as his or her official title is named.” The district court

found it significant that Lee I remanded the case to determine “what

relief granted in the judgment is still available to Lee,” without suggesting

that the “Clerk of Court” was not a proper party. The district court ruled

that the date of the original judgment, October 29, 2007, was “the

effective date requiring prospective injunctive relief.” The district court

found:

      The stay did not change the effective date of Plaintiff’s
      reinstatement, but prevented enforcement of such
      reinstatement . . . . [T]his Court finds that the Eleventh
      Amendment does not bar an award of pay to Plaintiff for the
      period during which the stay was in effect. This Court
      ordered prospective injunctive relief requiring future
      compliance and liability for payment of Plaintiff’s wages and
      benefits during this time, which is permissible.

The district court also agreed with Lee’s alternative argument, that

defendants waived sovereign immunity when requesting a stay of her

reinstatement. The district court concluded:

      Defendants made assertions that if the Supreme Court
      affirms the District Court, it will pay all damages stemming
      from the stay. The Supreme Court did not specifically
      reverse the District Court’s injunctive relief, so it is still the
      rule of the case. If Defendants did have immunity from the
      monetary damages stemming from their stay of the
      injunctive relief, then they clearly waived it when they made
      the promise to pay such damages.

Thus, the district court denied Lee’s motion to amend as moot and

ordered defendants to immediately reinstate Lee, pay her lost wages and

benefits from October 29, 2007, to the date of reinstatement in the
                                       9

amount of $1146 weekly, 1 provide her retirement and FMLA benefits as if

she had never been terminated, and pay postjudgment interest.

      Defendants appealed, raising five issues. Defendants do not argue

Lee waived her right to Ex parte Young relief by failing to raise the

doctrine as an exception to the State’s sovereign immunity defense.

Rather, they argue: (1) Ex parte Young injunctive relief is available only in

federal court, (2) Lee is not entitled to Ex parte Young injunctive relief

because she did not specifically request it in her petition, (3) Lee’s failure

to name a State official as a defendant precludes Ex parte Young

injunctive relief, (4) the 2007 order for reinstatement is not Ex parte

Young injunctive relief, and (5) they did not waive sovereign immunity by

seeking the stay of her reinstatement and promising to make her whole if

her relief was affirmed in the first appeal. We retained this appeal.

      II. Standard of Review.

      The availability of Ex parte Young remedies is a question of law.

See CSX Transp., Inc. v. Bd. of Pub. Works, 138 F.3d 537, 541 (4th Cir.

1998) (reviewing award of Ex parte Young relief de novo).          Accordingly,

our review of the district court’s award of relief under Ex parte Young is

for correction of errors at law. See Clinton Physical Therapy Servs., P.C.

v. John Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006)

(reviewing ruling on legal issue for correction of errors at law).




      1Defendants  did not argue in district court or on appeal that Lee   failed to
mitigate her damages or that her award should be reduced by any amount     that she
earned at other employment during these years. Cf. Barnes, 828 F.2d        at 1259
(remanding case with instructions to determine the amount a comparable     backpay
award should have been reduced to offset plaintiff’s interim earnings).
                                         10

        III. Analysis.

        We begin with an overview of Ex parte Young injunctive relief, one

of several exceptions to state sovereign immunity. 2             We discussed two

exceptions to sovereign immunity in Lee I: a private person may sue a

state directly if the state has waived its sovereign immunity, or if

Congress has validly abrogated the states’ sovereign immunity.                     Lee I,

815 N.W.2d at 739–43 (analyzing these two exceptions with regard to the

self-care provision of the FMLA).             Ex parte Young injunctive relief

provides a third exception to state sovereign immunity, in recognition of

the fact that “[a]lthough a state’s constitutional sovereign immunity

prevents individual enforcement of certain federal statutes against a

state, such as [Fair Labor Standards Act] claims . . . , that immunity

does not undermine the basic validity of the legislation.”               Gill v. Pub.

Emps. Ret. Bd. of Pub. Emps. Ret. Ass’n, 90 P.3d 491, 497 (N.M. 2009);

see also Va. Office for Prot. & Advocacy v. Stewart, ___ U.S. ___, ___, 131

S. Ct. 1632, 1638, 179 L. Ed. 2d 675, 686 (2011) (noting the Ex parte

Young     doctrine    “has    existed     alongside     our    sovereign-immunity

jurisprudence for more than a century, accepted as necessary to permit




        2As we discussed in Lee I, “ ‘the States’ immunity from suit is a fundamental
aspect of the sovereignty which the States enjoyed before the ratification of the
Constitution, and which they retain today.’ ” 815 N.W.2d 731, 739 (quoting Alden v.
Maine, 527 U.S. 706, 713, 119 S. Ct. 2240, 2246–47, 144 L. Ed. 2d 636, 652 (1999)).
While the phrase “Eleventh Amendment immunity” “is convenient shorthand,” it is
“something of a misnomer, for the sovereign immunity of the States neither derives
from, nor is limited by, the terms of the Eleventh Amendment.” Id. at 738–39 (quoting
Alden, 527 U.S. at 713, 119 S. Ct. at 2246–47, 144 L. Ed. 2d at 652). The Eleventh
Amendment to the United States Constitution provides:
       The Judicial power of the United States shall not be construed to extend
       to any suit in law or equity, commenced or prosecuted against one of the
       United States by Citizens of another State, or by Citizens or Subjects of
       any Foreign State.
                                      11

the federal courts to vindicate federal rights” (internal quotation marks

omitted)).

       The waiver and congressional abrogation exceptions to sovereign

immunity allow an individual to sue the state, while Ex parte Young

allows an individual to sue a responsible state official in his or her official

capacity to compel that official to comply with federal law. Stewart, ___

U.S. at ___, 131 S. Ct. at 1638, 179 L. Ed. 2d at 685–86 (discussing the

history of Ex parte Young).     The United States Supreme Court held in

Ex parte Young that “a suit challenging the constitutionality of a state

official’s action is not one against the State.”     Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 102, 104 S. Ct. 900, 909, 79 L. Ed. 2d

67, 79 (1984). Under Ex parte Young, a state official who violates federal

law is “stripped of his official or representative character and is subjected

in his person to the consequences of his individual conduct” because

“[t]he state has no power to impart to him any immunity from

responsibility to the supreme authority of the United States.” Ex parte

Young, 209 U.S. at 160, 28 S. Ct. at 454, 52 L. Ed. at 729. This doctrine

“rests on the premise—less delicately called a ‘fiction,’—that when a

federal court commands a state official to do nothing more than refrain

from violating federal law, he is not the State for sovereign-immunity

purposes.” Stewart, ___ U.S. at ___, 131 S. Ct. at 1638, 179 L. Ed. 2d at

686 (citation omitted)); see also Seminole Tribe of Florida v. Florida, 517

U.S. 44, 174, 116 S. Ct. 1114, 1180, 134 L. Ed. 2d 252, 339 (1996)

(Souter, J., dissenting) (“The decision in Ex parte Young, and the historic

doctrine it embodies, thus plays a foundational role in American

constitutionalism, and while the doctrine is sometimes called a ‘fiction,’

the long history of its felt necessity shows it to be something much more

estimable . . . .”).   Thus,   a   state’s   sovereign   immunity   does   not
                                    12

necessarily bar injunctive relief against a state official to require

compliance with federal law. See Stewart, ___ U.S. at ___, 131 S. Ct. at

1638, 179 L. Ed. 2d at 686.

      A judgment under Ex parte Young is limited, however, to

prospective injunctive relief, as an award of retroactive money damages

would run afoul of sovereign immunity. Id. Prospective injunctive relief

is not coextensive with “equitable relief.” Edelman v. Jordan, 415 U.S.

651, 666–67, 94 S. Ct. 1347, 1357, 39 L. Ed. 2d 662, 674–75 (1974)

(holding monetary relief payable out of the state treasury is not available

against a state officer merely because “the relief may be labeled

‘equitable’ in nature”). Nor does sovereign immunity bar all judgments

with “fiscal consequences to state treasuries”: such fiscal consequences

are permissible if they are “the necessary result of compliance with

decrees which by their terms were prospective in nature.” Id. at 667–68,

94 S. Ct. at 1358, 39 L. Ed. 2d at 675 (“State officials, in order to shape

their official conduct to the mandate of the Court’s decrees, would more

likely have to spend money from the state treasury than if they had been

left free to pursue their previous course of conduct.”); see also Kentucky

v. Graham, 473 U.S. 159, 169 n.18, 105 S. Ct. 3099, 3107 n.18, 87

L. Ed. 2d 114, 124 n.18 (1985) (“Monetary relief that is ‘ancillary’ to

injunctive relief also is not barred by the Eleventh Amendment.”).

Consequently, “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.

Pub. Serv. Comm’n, 535 U.S. 635, 645, 122 S. Ct. 1753, 1760, 152

L. Ed. 2d 871, 882 (2002). For example, in Barnes, state officials were

ordered to reinstate plaintiff but obtained a stay of reinstatement

pending appeal. 828 F.2d at 1255. After plaintiff prevailed on appeal,
                                           13

defendants were ordered to pay plaintiff’s salary for the period between

the reinstatement order and the date she in fact was reinstated.                       Id.

(noting backpay paid by State of Missouri). 3 We now turn to defendants’

arguments against Lee’s reinstatement and related relief under Ex parte

Young.

       A. Whether Ex parte Young Relief is Available in State Court.

In their appellate brief, defendants argue for the first time that Ex parte

Young relief is available only in federal court. As a general proposition,

“issues must be raised in the district court before we may review them on

appeal.”    Lee I, 815 N.W.2d at 739.            There is a question whether the

issue is preserved.       In any event, we decide the issue on the merits:

Ex parte Young applies to state-court suits. We reached that conclusion

in Lee I when we ordered the remand to allow the district court to

determine the relief available to Lee under Ex parte Young. See id. at

743.    The view that the doctrine is applicable in state courts is well

established. See Alden v. Maine, 527 U.S. 706, 746–47, 119 S. Ct. 2240,


       3Other   federal court decisions enforcing federal laws have required states to
expend their funds pursuant to prospective awards, notwithstanding the Eleventh
Amendment. In Hutto v. Finney, the district court issued an injunction following a
finding that conditions in Arkansas prisons violated the constitution. 437 U.S. 678,
683, 98 S. Ct. 2565, 2570, 57 L. Ed. 2d 522, 530 (1978). The district court later
determined defendants violated the court’s orders and sanctioned defendants by
awarding plaintiffs their attorney fees. Id. at 684–85, 98 S. Ct. at 2570, 57 L. Ed. 2d at
530–31. The Supreme Court upheld this award, holding the “less intrusive power to
impose a fine is properly treated as ancillary to the federal court’s power to impose
injunctive relief.” Id. at 691, 98 S. Ct. at 2574, 57 L. Ed. 2d at 534. In Milliken v.
Bradley, the state was ordered to bear half the cost of implementing comprehensive
educational programs pursuant to a desegregation plan. 433 U.S. 267, 288–90, 97
S. Ct. 2749, 2761–62, 53 L. Ed. 2d 745, 761–62 (1977). In Rye Psychiatric Hospital
Center, Inc. v. Surles, the court found defendants had improperly calculated payment
rates for the plaintiff Medicaid provider. 777 F. Supp. 1142, 1147 (S.D.N.Y. 1991). The
court later ordered defendants to reimburse plaintiff for inadequate payments made
after the date of the original order. Id. State officials in Libby v. Marshall were ordered
to pay for jail maintenance and renovations after the court found conditions at the jail
violated prisoners’ constitutional rights. 653 F. Supp. 359, 363 (D. Mass. 1986).
                                     14

2262–63, 144 L. Ed. 2d 636, 673–74 (1999) (citing Gen. Oil Co. v. Crain,

209 U.S. 211, 28 S. Ct. 475, 52 L. Ed. 754 (1908), as “extending the rule

of [Ex parte Young] to state-court suits”); Idaho v. Coeur d’Alene Tribe of

Idaho, 521 U.S. 261, 316–17 & n.14, 117 S. Ct. 2028, 2057–58 & n.14,

138 L. Ed. 2d 438, 478 & n.14 (1997) (Souter, J., dissenting) (stating

“every litigant seeking prospective relief in federal court under Young may

obtain some adequate redress in state court as well” and noting “in every

case in which Ex parte Young supports the exercise of federal-question

jurisdiction against a state officer, General Oil prohibits the declination of

state jurisdiction over the same officer on state immunity grounds”). The

Supreme Court held in Alden that Eleventh Amendment immunity

shelters states from suit in both federal and state court.       527 U.S. at

754, 119 S. Ct. at 2266, 144 L. Ed. 2d at 678.            Indeed, in Lee I,

defendants acknowledged Eleventh Amendment sovereign immunity

“applies equally in state court and federal court.” 815 N.W.2d at 738.

The corollary to this principle is that exceptions to Eleventh Amendment

immunity apply in both federal and state court. As Justice Souter noted

in Coeur d’Alene Tribe, “it appears that in all 50 States . . . , private

plaintiffs may obtain declaratory and injunctive relief in state court for

the acts of state officials in circumstances where relief would be available

in federal court under Young.” 521 U.S. at 317 n.15, 117 S. Ct. at 2058

n.15, 138 L. Ed. 2d at 479 n.15 (Souter, J., dissenting) (collecting cases);

accord Collins v. State Bd. of Soc. Welfare, 248 Iowa 369, 373, 81 N.W.2d

4, 6 (1957) (recognizing that when “no judgment or decree is asked

against the State, but the suit is rather to require its officers and agents

to perform their duty, there is no immunity recognized” and ordering

injunctive relief for a violation of the Iowa Constitution); Pierce v. Green,

229 Iowa 22, 32, 294 N.W. 237, 245 (1940) (commenting “[i]f the State
                                           15

has any interest in this case it is that its officers perform their duties”

and ordering the state to conduct tax assessments as required by law).

       Further, state courts can order Ex parte Young relief not only for

violations of the Federal Constitution, but also for violations of federal

statutes:

       Neither in theory nor in practice has it been shown
       problematic to have federal claims resolved in state courts
       where Eleventh Amendment immunity would be applicable
       in federal court but for an exception based on Young. For
       purposes of the Supremacy Clause, it is simply irrelevant
       whether the claim is brought in state or federal court. . . .
             . . . A doctrine based on the inherent inadequacy of
       state forums would run counter to basic principles of
       federalism. . . .
             Interpretation of federal law is the proprietary concern
       of state, as well as federal, courts. . . . It would be error
       coupled with irony were we to bypass the Eleventh
       Amendment, which enacts a scheme solicitous of the States,
       on the sole rationale that state courts are inadequate to
       enforce and interpret federal rights in every case.

Coeur d’Alene Tribe, 521 U.S. at 274–76, 117 S. Ct. at 2037, 138

L. Ed. 2d at 451–52 (citations omitted); 4 see also Lee I, 815 N.W.2d at

743 (ordering remand to determine prospective injunctive relief available

       4This  quotation comes from part II-C of the principal opinion written by Justice
Kennedy and joined by Chief Justice Rehnquist. See Coeur d’Alene Tribe, 521 U.S. at
274–76, 117 S. Ct. at 2037, 138 L. Ed. 2d at 451–52. The three-justice concurrence
took issue with parts II-B and II-C of the principal opinion, which suggested the
inadequacy of a state forum is a prerequisite to federal jurisdiction in Ex parte Young
cases. See id. at 294, 117 S. Ct. at 2046, 138 L. Ed. 2d at 463 (O’Connor, J.,
concurring in part and concurring in the judgment). The concurrence stated, “There is
no need to call into question the importance of having federal courts interpret federal
rights—particularly as a means of serving a federal interest in uniformity—to decide
this case.” Id. The concurrence did not disagree, however, with the principle reflected
in the passage we quote above, stating, “Nor does acknowledging the interpretive
function of federal courts suggest that state courts are inadequate to apply federal law.”
Id. The four dissenters agreed: “Federal-question jurisdiction turns on subject matter,
not the need to do some job a state court may wish to avoid; it addresses not the
adequacy of a state judicial system, but the responsibility of federal courts to vindicate
what is supposed to be controlling federal law.” Id. at 313, 117 S. Ct. at 2055, 138
L. Ed. 2d at 476 (Souter, J., dissenting).
                                          16

under Ex parte Young for violation of FMLA).                Thus, our court has

ordered      a   state   official   to   address   violations    of   federal    law,

notwithstanding sovereign immunity. See McKeown v. Brown, 167 Iowa

489, 497–99, 149 N.W. 593, 595–97 (1914) (ordering state treasurer to

return wrongfully escheated inheritance to rightful heir, taxed at rate

imposed by federal treaty).

       B. Whether Lee Named a Proper Party as a Defendant for

Relief Under Ex parte Young.               Defendants next argue Lee is not

entitled to Ex parte Young relief because she did not name a state official

as a defendant, “let alone an official being sued in that official’s ‘official’

capacity.” This omission is not fatal. Lee’s petition named “Defendants

State of Iowa and Polk County Clerk of Court.” “The real interests served

by the Eleventh Amendment are not to be sacrificed to elementary

mechanics of captions and pleading.” Coeur d’Alene Tribe, 521 U.S. at

270, 117 S. Ct. at 2034, 138 L. Ed. 2d at 448. We hold the “Polk County

Clerk of Court” is a state official and Lee was not required to plead the

given name of the individual 5 holding that position.

       Two principles support our conclusion.              First, the “ ‘course of

proceedings’ ” will typically “indicate the nature of the liability sought to
be imposed.” Graham, 473 U.S. at 167 n.14, 105 S. Ct. at 3106 n.14, 87

L. Ed. 2d at 122 n.14 (quoting Brandon v. Holt, 469 U.S. 464, 469, 105

S. Ct. 873, 876, 83 L. Ed. 2d 878, 884 (1985) (recognizing “[i]n many

cases, the complaint will not clearly specify whether officials are sued

personally, in their official capacity, or both”)). Here, Lee sued the Polk


       5As  a practical matter, naming a state official by job title alone, without
including the official’s given name, avoids the need to amend the petition when a new
person is hired into that role. Lois Leary was the Polk County Clerk of Court in 2004,
but Randy Osborn now holds that position.
                                     17

County Clerk of Court without seeking to impose personal liability on

Lois Leary, her supervisor. Our remand order assumed a proper party

was named for injunctive relief.

      Second, “[i]f a plaintiff’s complaint is silent about the capacity in

which she is suing the defendant, we interpret the complaint as

including only official-capacity claims.” Egerdahl v. Hibbing Cmty. Coll.,

72 F.3d 615, 619 (8th Cir. 1995); accord Baker v. Chisom, 501 F.3d 920,

923 (8th Cir. 2007).       This commonsense approach reinforces our

determination that Lee’s petition sued the Polk County Clerk of Court in

her official capacity. See City of El Paso v. Heinrich, 284 S.W.3d 366, 377

(Tex. 2009) (concluding plaintiff sued defendants in their official

capacities based on “ ‘the nature of the liability sought to be imposed’ ”

and “construing [the] pleadings liberally” (citation omitted)).

      Defendants rely on decisions by the Second Circuit and Ninth

Circuit, holding Ex parte Young does not apply when a plaintiff fails to

name a state official as a defendant: Santiago v. New York State

Department of Correctional Services, 945 F.2d 25, 31–32 (2d Cir. 1991),

and Douglas v. California Department of Youth Authority, 271 F.3d 812,

821 n.6 (9th Cir.), amended by 271 F.3d 910 (2001).          Both cases are

distinguishable.   In Douglas, the plaintiff sued only an agency, the

California Department of Youth Authority. 271 F.3d at 815. In Santiago,

the plaintiff sued an agency, the New York State Department of

Correctional Services, and a private psychiatrist.     945 F.2d at 27. By

contrast, Lee named as a defendant the Polk County Clerk of Court, an

individual who is a state official. We hold Lee sued a proper party for

Ex parte Young injunctive relief.

      C. Whether Lee’s Prayer for Relief Was Adequate for Ex parte

Young Injunctive Relief.      Defendants in turn argue the court cannot
                                       18

reinstate Lee because her pleadings did not request “Ex parte Young

relief” or “prospective injunctive relief,” and she “even failed to request

any relief in the form of reinstatement.” They assert that Lee asked for

relief only under the FMLA and that our holding in Lee I, finding

sovereign immunity protects the State from self-care FMLA suits, renders

her FMLA prayer for relief unenforceable.        Relatedly, defendants argue

the district court awarded Lee “equitable remedies” available under the

FMLA, which they believe are distinct from Ex parte Young injunctive

relief.

          We disagree that these perceived deficiencies in Lee’s pleadings

preclude her from reinstatement and related relief under Ex parte Young.

Lee’s petition requested “such other relief as may be just in the

circumstances.” Lee contends that under our liberal pleading rules, she

adequately put defendants on notice that she sought prospective

injunctive relief that includes reinstatement. In any event, we conclude

the reinstatement claim was litigated by consent in district court in

2007, obviating any need to amend Lee’s pleadings to specifically request

such relief.     Finally, we conclude it was unnecessary for Lee or the

district court to explicitly plead her reinstatement claim as “Ex parte

Young injunctive relief.”

          Under Iowa’s notice pleading rules, a prayer for general equitable

relief “ ‘is to be construed liberally, and will often justify granting relief in

addition to that contained in the specific prayer, provided it fairly

conforms to the case made by the petition and the evidence.’ ” Moser v.

Thorp Sales Corp., 312 N.W.2d 881, 895 (Iowa 1981) (quoting Holi-Rest,

Inc. v. Treloar, 217 N.W.2d 517, 526 (Iowa 1974)); see also Anderson v.

Yearous, 249 N.W.2d 855, 858–59 (Iowa 1977) (“The relief granted under

the general prayer must be consistent with the case made by the
                                    19

pleadings and must be such as will not surprise the defendant.”

(Internal quotation marks omitted.)).    We generally expect plaintiffs to

identify “the true nature of the action” and narrow the issues “at the

pretrial conference or during the trial before instruction.” Tigges v. City

of Ames, 356 N.W.2d 503, 507 (Iowa 1984) (citation omitted). Further,

parties may consent to try issues beyond the scope of the pleadings.

Iowa R. Civ. P. 1.457 (“When issues not raised by the pleadings are tried

by express or implied consent of the parties, they shall be treated in all

respects as if they had been raised in the pleadings.”); Molo Oil Co. v.

River City Ford Truck Sales, Inc., 578 N.W.2d 222, 229 (Iowa 1998)

(rejecting argument that affirmative defense was not specifically pled and

holding the issue was tried by consent when it “was presented before the

jury and there was abundant evidence to support a jury finding favoring

[the defense]”).

      Defendants were well aware during the 2007 proceedings that Lee

sought reinstatement as a judicial remedy. Reinstatement is a form of

prospective injunctive relief. See Nelson v. Univ. of Tex. at Dallas, 535

F.3d 318, 324 (5th Cir. 2008) (holding “a request for reinstatement is

sufficient to bring a case within the Ex parte Young exception to Eleventh

Amendment immunity” because “it is a claim for prospective relief

designed to end a continuing violation of federal law”); State Emps.

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

(“Every Circuit to have considered the issue . . . has held that claims for

reinstatement to previous employment satisfy the Ex parte Young

exception to the Eleventh Amendment’s sovereign immunity bar.”);

Treleven v. Univ. of Minn., 73 F.3d 816, 819 (8th Cir. 1996) (allowing

claim for reinstatement under Ex parte Young). At trial, Lee requested

reinstatement to her position in the Polk County Clerk of Court Office.
                                       20

Defendants cross-examined her on this issue. During trial, the district

court noted the parties agreed “that if there’s a finding for the Plaintiff

this Court has the subject matter jurisdiction to reinstate Plaintiff.” Lee’s

posttrial motion requested reinstatement.          Though defendants argued

reinstatement     was    inappropriate      in    both    their   brief   resisting

reinstatement and at the hearing, their brief acknowledged “courts

should reinstate employees who have suffered unlawful employment

discrimination” and conceded “[w]ithout question, the district court can

order the State of Iowa to reinstate Lee.” The district court’s January 25,

2007 ruling on defendants’ motion to stay recounted “[d]uring trial, the

parties stipulated that the issues of reinstatement and front pay would

be reserved for the Court.”      Defendants were not surprised by Lee’s

request for injunctive relief of reinstatement and had ample opportunity

to oppose such relief.

      In response to defendants’ argument that equitable relief under the

FMLA is distinct from injunctive relief under Ex parte Young, we conclude

the label is not controlling. Lee’s theory of liability remained the same on

remand: she is entitled to reinstatement because defendants violated the

FMLA.      Ex parte Young injunctive relief is a method of enforcing valid

federal legislation, in this case the self-care provision of the FMLA. As

such, it is appropriate to conceptualize Lee’s reinstatement both as relief

under the FMLA and as Ex parte Young relief.                 Defendants cite no

authority to the contrary.

      D. Whether an Award of Earnings from the Date of the

Original     Reinstatement     Order     to      Her     Actual   Reinstatement

Constitutes Prospective Injunctive Relief.                  Finally, we address

defendants’ argument that the award of wages and benefits from October

2007 constitutes impermissible retroactive relief.          The Ex parte Young
                                      21

doctrine allows only prospective injunctive relief. Edelman, 415 U.S. at

664, 94 S. Ct. at 1356, 39 L. Ed. 2d at 673. “[T]he Supreme Court has

established a bright line Eleventh Amendment test between permissible

prospective and impermissible retroactive relief, with the effective date of

the District Court’s order requiring future compliance being the operative

date.”     Barnes, 828 F.2d at 1257.       Thus, monetary awards through

injunctive relief are permissible under the Eleventh Amendment so long

as they fall on the prospective side of this timeline.       See Milliken v.

Bradley, 433 U.S. 267, 290, 97 S. Ct. 2749, 2762, 53 L. Ed. 2d 745,

761–62 (1977) (“That the programs are also ‘compensatory’ in nature

does not change the fact that they are part of a plan that operates

prospectively . . . . We therefore hold that such prospective relief is not

barred by the Eleventh Amendment.”); Vargas v. Trainor, 508 F.2d 485,

491 (7th Cir. 1974) (“[T]he entry of a court order or judgment requiring

that payments be made divides the past from the prospective for

Eleventh Amendment purposes.”); Libby v. Marshall, 653 F. Supp. 359,

361–62 (D. Mass. 1986) (“Later cases have made it even more clear that

the relevant distinction for Eleventh Amendment purposes is that

between a damage award and an injunction, not between one that would

cost the state money and one that would not.”). The parties disagree on

the date from which prospective relief should be measured.

         Defendants argue our decision in Lee I reversed the district court’s

October 29, 2007 order in its entirety, making the district court’s

October 18, 2012 order of reinstatement the point from which we should

award prospective relief of her weekly wages and benefits. They therefore

assert the district court’s 2012 order for lost wages and benefits from

2007 impermissibly awarded Lee retroactive monetary awards.              Lee

disagrees, arguing prospective relief should be measured from the 2007
                                         22

reinstatement order. Lee also argues defendants waived any objection to

paying her lost wages and benefits post-2007 by asking for a stay of her

reinstatement and assuring the court she would be made whole if she

prevailed. Defendants respond that they agreed to pay Lee’s post-2007

lost wages only if we affirmed in Lee I, and they assert our opinion was

instead a reversal.      We conclude Lee is correct on both accounts:

October 29, 2007, is the date from which prospective relief is properly

determined and defendants waived their objection to paying lost wages

from this date by attaining a stay of Lee’s reinstatement.            Any other

result would “permit States to achieve unfair tactical advantages.” See

Lapides v. Bd. of Regents of Univ. Sys., 535 U.S. 613, 621, 624, 122

S. Ct. 1640, 1645–46, 152 L. Ed. 2d 806, 814, 816 (2002) (holding state’s

removal of suit to federal court waived its Eleventh Amendment

immunity).

        Defendants’ arguments rest on a flawed premise—that we did not

uphold the reinstatement remedy in Lee I. Defendants are technically

correct that Lee I did not “affirm” the district court’s 2007 judgment.

Our decision stated that it reversed the judgment of the district court

and remanded the case for further proceedings, ordering the district

court to “enter a new final judgment.” Lee I, 815 N.W.2d at 743. But, we

agree with the district court’s interpretation of our remand: “None of the

trial   court’s   holdings   regarding    equitable   relief   were   specifically

overruled, and as law of the case, they must still be enforced.”              We

specifically held only the “noninjunctive relief granted in the judgment

cannot stand.”     Id.   We limited the district court’s task on remand to

“determin[ing] what relief granted in its judgment is still available to Lee

within the framework of this lawsuit, findings of the jury at trial, and the

cloak of immunity protecting the State.”         Id. (emphasis added).       The
                                       23

district court was therefore responsible only for categorizing the elements

of the 2007 order as injunctive or noninjunctive. In “the framework of

this lawsuit,” the district court’s 2012 ruling correctly concluded the

2007 reinstatement order is relief granted in that judgment that is still

available to Lee.

          Accordingly,   October 29,   2007,   the   date   of   the    original

reinstatement order, is the effective date on which defendants were

required to reinstate Lee to her former position. An award of Lee’s lost

earnings from that date forward is properly classified as prospective

relief.    See Buckhanon v. Percy, 708 F.2d 1209, 1216 (7th Cir. 1983)

(authorizing payments onward from “the date upon which the State of

Wisconsin came under a court-imposed obligation to provide more

adequate notice before reducing or terminating benefits”).             The 2012

order did not “impose upon the State ‘a monetary loss resulting from a

past breach of a legal duty.’ ” Verizon, 535 U.S. at 646, 122 S. Ct. at

1760, 152 L. Ed. 2d at 882 (emphasis omitted) (quoting Edelman, 415

U.S. at 668, 94 S. Ct. at 1358, 39 L. Ed. 2d at 676). Rather, the 2007

order imposed prospective injunctive relief from defendants’ violation of

the FMLA, creating an obligation to reinstate Lee. The 2012 order then

required payment of state funds as a necessary consequence of

defendants’ stay of the 2007 order. Compare Milliken, 433 U.S. at 289–

90, 97 S. Ct. at 2762, 53 L. Ed. 2d at 761–62 (upholding desegregation

plan that required state to bear half the cost of implementing

comprehensive educational programs), with Edelman, 415 U.S. at 668,

94 S. Ct. at 1358, 39 L. Ed. 2d at 675–76 (overturning district court

decree that “require[d] payment of state funds, not as a necessary

consequence of compliance in the future . . . , but as a form of

compensation to those whose applications were processed on the slower
                                           24

time schedule at a time when petitioner was under no court-imposed

obligation to conform to a different standard” (emphasis added)).

          The Eighth Circuit adjudicated a similar issue in a case with

comparable facts.            In Barnes, the St. Louis City Circuit Court Clerk’s

Office terminated Shirley Barnes on January 3, 1983, in violation of her

First Amendment rights.            828 F.2d at 1255.     On July 27, the district

court ordered Barnes reinstated and awarded her backpay from

January 3.             Id.   Defendants appealed and were granted a stay of

judgment pending the appeal.             Id.    The Eighth Circuit affirmed as to

Barnes, but reversed as to another plaintiff. Id. On remand, the district

court modified its prior judgment as it applied to the other plaintiff, but

“[t]he prior judgment remained unchanged insofar as it applied to

Barnes.”         Id.     In further proceedings, defendants raised a sovereign

immunity challenge to the backpay award for the time between her

termination and the reinstatement order and for the time the stay was in

effect.    Id.    The district court ruled that both components of backpay

constituted retrospective monetary relief prohibited by the Eleventh

Amendment, but held that defendants had waived sovereign immunity

for the post-July backpay by seeking a stay. Id. at 1255–56. Therefore,

the district court awarded Barnes backpay from July 1983 through the

date of her reinstatement. Id. at 1256. Defendants appealed this ruling.

Id. at 1256–57.

          The Eighth Circuit “reject[ed] defendants’ argument that the

Eleventh Amendment precludes an award of backpay for the period

during which the stay was in effect.” Id. at 1257. The court stated:

          In our view, the stay merely prevented immediate execution
          on and enforcement of the judgment. . . . Thus, insofar as
          the Eleventh Amendment is concerned, July 27, 1983, the
          date of the District Court’s original order finding a
                                          25
       constitutional violation and granting Barnes her remedies, is
       the operative date after which prospective relief (i.e., liability
       for the payment of Barnes’s salary) is permissible. We hold
       that the Eleventh Amendment does not bar an award of pay
       to Barnes for the period during which the stay pending
       appeal was in effect.

Id. at 1257–58 (footnotes omitted). The court aptly commented, “in the

circumstances of this case the term ‘backpay’ is somewhat of a

misnomer.” Id. at 1257 n.5. Because the court agreed with Barnes that

backpay from the date of the judgment was prospective, it did not reach

her alternative argument that the defendants had waived sovereign

immunity by seeking the stay. Id. at 1257–58 & n.6. 6

       We agree not only with the Eighth Circuit’s conclusion regarding

backpay awards during a stay, but also with the Barnes district court’s

conclusion that the state waived its sovereign immunity by requesting a

stay. The Barnes district court recounted the assurances given by the

defendants to persuade the court to issue a stay of reinstatement:

       “Plaintiffs, . . . incorrectly and with exaggeration seek to
       describe the harm that would result to them if the stay of
       judgment is granted. . . . With respect to plaintiffs’ income
       and benefits, . . . their alleged injury can be calculated and
       compensated by money damages if they were successful on a
       case on the merits. It is obvious that the amount which may
       be due plaintiffs for loss of income and benefits can be
       calculated and paid.”

Barnes v. Bosley, 625 F. Supp. 81, 86 (E.D. Mo. 1985). The district court

concluded:

             By this representation, the defendants waived the
       eleventh amendment protection they had as to Barnes
       because of the stay. The result is that defendants are liable

       6The  Eighth Circuit further concluded the district court miscalculated Barnes’s
backpay by refusing to offset the award by the amount Barnes had earned at another
job while awaiting her reinstatement. Id. at 1258–59. The Eighth Circuit remanded the
case with instructions to calculate Barnes’s interim earnings and to reduce her backpay
award by that amount. Id. at 1259.
                                          26
       to Barnes for reinstatement and benefits from the date of
       this Court’s original order, July 27, 1983.

Id.
       Defendants made equivalent assurances here to obtain a stay of

reinstatement—“[i]f the Supreme Court affirms the district court, . . . the

State of Iowa will pay . . . any amounts owed to the plaintiff during the

time she should have been reinstated and when she is reinstated.” We

hold those representations waived the State’s sovereign immunity.                     “A

representation made in a judicial proceeding for the purpose of inducing

the court to act or refrain from acting satisfies the [waiver] requirements

stated in Edelman.”         Vargas, 508 F.2d at 492; see also Vennerberg

Farms, Inc. v. IGF Ins. Co., 405 N.W.2d 810, 814 (Iowa 1987) (recognizing

the “commonsense” doctrine of “judicial estoppel or ‘preclusion by

inconsistent positions’ . . . prohibits a party who has successfully and

unequivocally asserted a position in one proceeding from asserting an

inconsistent position in a subsequent proceeding” (citation omitted)). In

granting the stay, we relied upon defendants’ representation that Lee

would “not suffer any irreparable harm or injury” and would “be made

whole.” Defendants cannot now use the Eleventh Amendment to avoid

honoring their promise. See Toll v. Moreno (Toll II), 458 U.S. 1, 17–18,

102 S. Ct. 2977, 2986, 73 L. Ed. 2d 563, 576–77 (1982) (holding state

university waived its sovereign immunity by seeking a stay and

representing to the district court that it would make refund payments if

the case was affirmed on appeal); 7 Vargas, 508 F.2d at 492 (holding


       7The   1982 decision in Toll II was the second time the case had reached the
United States Supreme Court. 458 U.S. at 8, 102 S. Ct. at 2981, 73 L. Ed. 2d at 570.
In a 1979 per curiam opinion, the Supreme Court vacated the judgment of the Fourth
Circuit and remanded the case to the district court for reconsideration. Toll v. Moreno
(Toll I), 441 U.S. 458, 462, 99 S. Ct. 2044, 2046, 60 L. Ed. 2d 354, 354–55 (1979). In
the 1982 decision, Toll II, defendants argued the per curiam opinion, Toll I, had vacated
                                           27

defendant waived sovereign immunity by representing he would make

deficiency payments if the plaintiffs were ultimately successful in order

to persuade the court not to enter an injunction against him).

       We therefore hold the district court correctly awarded Lee her lost

earnings from October 29, 2007, as prospective relief under Ex parte

Young.

       IV. Disposition.

       For the foregoing reasons, we hold Lee is entitled to prospective

injunctive relief under Ex parte Young, including an award of her weekly

wages and benefits from the date the district court ordered her

reinstatement on October 29, 2007.               We therefore affirm the district

court’s order of October 18, 2012.

       AFFIRMED.

       All justices concur except Cady, C.J., and Wiggins, J., who dissent.



_______________________
the district court’s original order. Toll II, 458 U.S. at 17–18, 102 S. Ct. at 2986, 73
L. Ed. 2d at 576–77. The Supreme Court rejected this argument, holding Toll I had “left
the judgment of the District Court undisturbed.” Id. at 18, 102 S. Ct. at 2986, 73
L. Ed. 2d at 577.      The Supreme Court further stated, “contrary to petitioners’
suggestion, a vacatur of the District Court’s judgment was not necessary to give the
District Court jurisdiction to reconsider the case.” Id. at 18, 102 S. Ct. at 2986–87, 73
L. Ed. 2d at 577. Defendants in this case rely on this language in Toll II to argue Lee I
reversed the district court’s ruling. As discussed above, we disagree and do not find Toll
II supports defendants’ position. To the contrary, we agree with the Toll II Court’s
footnote commenting:
       Even if we were to assume that the judgment of the District Court was
       indeed vacated, we could not say that the terms of the University’s waiver
       of sovereign immunity—that the District Court’s order be “finally affirmed
       on appeal”—would not be satisfied. Petitioners have not prevailed on the
       merits in a single court, despite the numerous decisions that this
       litigation has prompted. By its original order, the District Court held
       that the University’s in-state policy was invalid insofar as it
       discriminated against G–4 aliens. Today, we reaffirm that conclusion.

Id. at 19, 102 S. Ct. at 2987, 73 L. Ed. 2d at 577 n.27.
                                     28
                                                     #12–2055, Lee v. State
CADY, Chief Justice (dissenting).

      I respectfully dissent.   The proposition to support the judgment

entered against the State, despite its cloak of immunity granted by the

Eleventh Amendment to the United States Constitution, was not raised

by the plaintiff until after the appeal. It is a fundamental principle in our

civil system of justice that claims and defenses cannot be raised by a

party for the first time on, or after, appeal and used to justify and

support the final judgment. This principle has been ignored in this case,

and our justice system has failed to deliver on one of its most basic

promises—procedural fairness.

      Lee brought this lawsuit under the Federal Family and Medical

Leave Act (FMLA). She identified the State of Iowa and the Polk County

Clerk of Court as defendants. She claimed her rights as a state employee

under the FMLA self-care provision were denied by the State, and she

was subjected to wrongful and retaliatory termination for exercising her

FMLA rights. The State admitted in its answer to the petition that the

Polk County Clerk of Court was an office within the judicial branch of

government and was a part of the State of Iowa. Lee admitted the same,

and the case proceeded against the State with the parties treating the

Clerk of Court as the State.

      The State raised an affirmative defense in its answer. It claimed it

was immune from the lawsuit under the Eleventh Amendment to the

United States Constitution.       It subsequently moved for summary

judgment based on the single contention that the State and all of its

components were immune from the lawsuit.          Lee resisted the claim of

immunity by asserting two arguments. First, Lee averred the State had

no immunity against FMLA lawsuits because Congress abrogated the
                                          29

State’s immunity when it enacted the FMLA. Second, Lee argued that

even if Congress did not abrogate its immunity, the State waived

immunity by adopting the FMLA provisions as employee policies of the

judicial branch. 8 Within the framework of these arguments, the parties

vigorously litigated the issue of whether the lawsuit was required to be

dismissed because the State was immune.

      The district court agreed with the arguments asserted by Lee and

denied summary judgment.           The case proceeded to trial.           At trial, Lee

made claims for lost wages and benefits, reinstatement of employment,

front pay, and other relief under the FMLA. She argued the jury should

decide all such issues. The district court, however, only submitted the

issues of lost wages and benefits to the jury, along with liability, and

informed      the   jury   it   would   separately    consider      the     issues   of

reinstatement and front pay.

      The jury returned a verdict for Lee in the amount of the stipulated

past wages of $165,122. It found the State violated the FMLA. Lee then

asked the court for reinstatement and front pay, as permitted under the

FMLA. The district court ordered reinstatement and entered judgment

for weekly front pay until Lee actually returned to her job. As a part of

the   posttrial     proceedings,    the    State     moved    for     a      judgment

notwithstanding the verdict based on its claim of immunity. In response,

Lee again argued that Congress abrogated states immunity in enacting

the FMLA, and alternatively, immunity was waived by the State through

its actions in implementing provisions of the FMLA. No new arguments

      8More  specifically, Lee claimed the State waived its immunity by placing the
FMLA provisions in its handbook and on workplace posters. She also asserted the
State waived its immunity by failing to tell its employees that it was retaining its
immunity. Finally, Lee claimed the State waived its immunity by implementing the
FMLA provisions.
                                     30

were made.      The district court denied the motion, and the State

appealed. The judgment was stayed during the appeal on the condition

the State would pay the running weekly front pay in the event the

reinstatement was upheld.

      On appeal, the State claimed the district court erred in failing to

recognize its immunity. Lee again claimed this immunity was abrogated

by Congress when it enacted the FMLA and, alternatively, argued the

State waived immunity by incorporating the FMLA into its employment

policies. Again, no new arguments or claims were made.

      Ultimately, we recognized the Supreme Court’s holding that

Congress did not abrogate the State’s immunity in enacting the FMLA

self-care provision, and the State did not otherwise waive its immunity by

incorporating FMLA provisions into its employment policies. Lee v. State

(Lee I), 815 N.W.2d 731, 740, 743 (Iowa 2012); see also Coleman v. Ct. of

Appeals of Md., 566 U.S. ___, ___, 132 S. Ct. 1327, 1338, 182 L. Ed. 2d

296, 306–07 (2012) (plurality opinion).     In other words, the State was

successful in its appeal on all issues. If litigation is about winning and

losing, the State won. They won on all claims. We remanded the case to

the district court to determine “what relief granted in its judgment is still
available to Lee within the framework of this lawsuit.” Lee I, 815 N.W.2d

at 743.

      On remand, the district court found the reinstatement order and

front pay judgment were not covered by the state’s immunity. It made

this determination by declaring the lawsuit by Lee was, from the

beginning, actually one against a public official of the State to enforce

rights under federal law, and this type of claim fell outside the cloak of

immunity granted to the State. See Ex parte Young, 209 U.S. 123, 155–

56, 28 S. Ct. 441, 452, 52 L. Ed. 714, 727 (1908). In other words, the
                                     31

State lost. The Ex parte Young doctrine was recognized by the district

court to create an exception to the State’s immunity under the Eleventh

Amendment in Iowa in actions brought in state court.

       This second appeal from the decision by the district court now

recognizes and adopts the Ex parte Young doctrine as an exception to the

immunity granted to states under the Eleventh Amendment that

otherwise protects states from claims in state court to enforce federal

law.   I agree with this substantive legal principle.    The benefits and

protections of federal law should apply to employees of the State of Iowa

in the same way they apply to private employees in Iowa.         Moreover,

employees of the state must be able to sue public officials to enforce

federal law when they fail to do so. Finally, when a public officer fails to

follow federal law in her official capacity, the state’s immunity should not

apply. This is all sound law. In fact, we sua sponte raised the Ex parte

Young doctrine in Lee I to illustrate how state workers can enforce FMLA

self-care provision rights despite the state’s immunity from damage

claims. See Lee I, 815 N.W.2d at 743.

       Notwithstanding, our legal system does not just revolve around

substantive principles of law. There is an equally important procedural

law that guides the legal process itself.

       Lee did, in fact, sue the Polk County Clerk of Court. The Ex parte

Young doctrine does, in fact, recognize that a lawsuit for prospective

injunctive relief against a public official acting in his or her official

capacity is an exception to the state’s immunity. Edelman v. Jordan, 415

U.S. 651, 676–77, 94 S. Ct. 1347, 1362, 39 L. Ed. 2d 662, 680 (1974).

These are the two propositions to support the holding in this appeal that

Lee’s lawsuit was, therefore, not subject to the State’s immunity.      See

Verizon Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645, 122 S. Ct.
                                      32

1753, 1760, 152 L. Ed. 2d 871, 882 (2002) (“In determining whether the

doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, 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.’ ” (quoting Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U.S. 261, 296, 117 S. Ct. 2028, 2047, 138 L. Ed. 2d

438, 465 (1997) (O’Connor, J., concurring in part and concurring in

judgment))). As a theory of logic, this conclusion follows perfectly from

its two propositions. However, the legal process is not simply a product

of theoretical syllogisms.      It requires a process that is fair.     This

procedural fairness lies at the core of the entire American legal system

and helps explain its strength and success.

         In this case, procedural fairness has been ignored. The party who

won its lengthy and hard-fought appeal—the State—has now lost. The

State has not only lost, but it can now see for the first time it never had

any chance of winning from the beginning, unless its lawyers would have

done what has never been required of lawyers in the past. The only way

the State could have succeeded on its claim of immunity in this case was

to affirmatively make the argument for Lee when it moved for summary

judgment that the petition she filed implicated the Ex parte Young

doctrine and that this doctrine should be recognized as an exception to

states’ immunity, but not in this case.

         In its best light, this case now holds that a defendant who raises a

legal defense to a lawsuit must not only establish the proposition

defining the defense, it must affirmatively disprove all possible exceptions

to the defense, including those never urged or even recognized by the

plaintiff, even those never before recognized in the prior cases of this

court.     Conversely, the holding means the plaintiff does not need to
                                      33

identify the reasons a defense asserted by the defendant is invalid until a

court rules the defense has been proven and all appellate review has

been exhausted.

      This holding is contrary to our system of advocacy and requires a

litigant to be an advocate against itself. In turn, it now requires a lawyer

to flesh out the arguments for the opposing party and make a case

against his or her own client.          Few other holdings could be as

fundamentally antithetical to the foundational principles of practice.

      The State clearly had the duty to establish its defense of immunity.

However, that duty should not require the State to disprove any

particular exception to the immunity, at least not until the particular

exception was placed into issue by Lee. Under our law, when the State

raises the defense of immunity under the Eleventh Amendment, an

employee asserting the wrongful-termination claim must demonstrate an

exception to the immunity. See Nelson v. Univ. of Texas, 535 F.3d 318,

321 (5th Cir. 2008) (indicating a wrongful-termination lawsuit against a

public officer acting in his official capacity was required to be dismissed

unless the plaintiff could “demonstrate an exception” to the state’s

immunity).

      The immunity doctrine granted to the states under our United

States Constitution is applicable to the FMLA self-care provision.

Coleman, 566 U.S. at ___, 132 S. Ct. at 1338, 182 L. Ed. 2d at 306–07.

The doctrine means the State of Iowa is, in fact, immune from FMLA self-

care provision claims, Lee I, 815 N.W.2d at 743, and this immunity

extends to actions by state officers acting in their official capacities,

McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004)

(“[T]he principle of state-sovereign immunity generally precludes actions

against state officers in their official capacities . . . .”   (citing Edelman,
                                    34

415 U.S. at 663–69, 94 S. Ct. at 1355–58, 39 L. Ed. 2d at 672–76)). The

state’s immunity, however, is not absolute, but is subject to several

exceptions.   Alden v. Maine, 527 U.S. 706, 755–57, 119 S. Ct. 2240,

2266–67, 144 L. Ed. 2d 636, 678–80 (1999).            The Ex parte Young

doctrine is one exception that has been recognized in the federal courts

for over a century, and it applies to lawsuits against state officials for

prospective injunctive or declaratory relief that is designed to remedy an

ongoing violation of federal law. See Ex parte Young, 209 U.S. at 157, 28

S. Ct. at 453, 52 L. Ed. at 728. The rationale for this exception is that a

state officer who violates federal law is stripped of his official character

and loses the cloak of state immunity. Coeur d’Alene Tribe, 521 U.S. at

288, 117 S. Ct. at 2043, 138 L. Ed. 2d at 460 (O’Connor, J., concurring

in part and concurring in judgment); see Ex parte Young, 209 U.S. at

159–60, 28 S. Ct. at 454, 52 L. Ed. at 729.

      In this case, of course, Lee did not raise or argue the Ex parte

Young exception. Instead, she argued two other exceptions. This is an

undeniable fact. It is a basic rule of appellate law that arguments not

raised in the trial court “cannot be raised for the first time on appeal.”

Airport Comm’n v. Schade, 257 N.W.2d 500, 503 (Iowa 1977); see also

Minor v. State, 819 N.W.2d 383, 406 (Iowa 2012) (declining to consider an

argument made for the first time on appeal); Elkader Prod. Credit Ass’n v.

Eulberg, 251 N.W.2d 234, 237 (Iowa 1977) (holding an appellant cannot

assert a defense under one statute at trial and use a different statute to

support the defense on appeal). This rule has existed almost from the

beginning of our court system. See Davis v. Nolan, 49 Iowa 683, 686–87

(1878). We emphasized our strong commitment to this rule in DeVoss v.

State, 648 N.W.2d 56, 60–63 (Iowa 2002). We also emphasized that the

rule exists to promote fundamental fairness and prevent “ambush” on
                                     35

appeal. Id. at 63; see also State v. Tobin, 333 N.W.2d 842, 844 (Iowa

1983) (“[T]he requirement of error preservation gives opposing counsel

notice and an opportunity to be heard on the issue and a chance to take

proper corrective measures or pursue alternatives in the event of an

adverse ruling.”).

      The result of this case could not be more unfair to the State. If the

State knew the court would change course in this case and consider

Lee’s claim to be one under the Ex parte Young doctrine after the appeal

was completed, it would have never implicitly assumed liability for the

running front pay.    It would have been illogical for the State to imply

such a promise because it would have been required to make good on its

promise even if it won the appeal. It is unfair to now tag the State with a

judgment it never knew existed. We have been inconsistent in the past

in the application of our preservation-of-error doctrine, but never when it

has blindsided one of the parties by imposing such unfair consequences.

      As with all parties to litigation, the State had a right to expect that

it did not need to articulate a winning argument for the plaintiff. It also

had a right to expect that our fundamental rules of advocacy requiring

parties to make their own arguments would be followed. It also had a

right to expect our most basic rules of appellate practice that foreclose

new arguments on appeal would be followed.

      Finally, even if Lee should now be permitted to redefine her lawsuit

following the appeal, the judgment entered against the State is required

to be reversed because it is tainted by legal error. If Lee’s lawsuit was, in

fact, one against a public official acting in her official capacity under the

doctrine of Ex parte Young, then it should have only proceeded under a

process consistent with that claim.       It clearly did not.   The process

provided under Ex parte Young only entitled Lee to proceed against the
                                            36

individual public official, and the prospective claim should only be tried

to the court. Cf. Parsons v. Bedford, Breedlove & Robeson, 28 U.S. (3

Pet.) 433, 447, 7 L. Ed. 732, 737 (1830) (noting the Seventh Amendment

to the United States Constitution only guarantees a right to a jury trial in

“suits in which legal rights were to be ascertained and determined, in

contradistinction to those where equitable rights alone were recognized,

and equitable remedies were administered”).

       Instead, this claim proceeded within our jury process with the

State as the target defendant (the clerk of court was never even identified

by name) and liability (violation of the FMLA) was determined by the jury

within a body of evidence introduced at trial to support monetary relief

against the State.        This entire process was erroneous and extremely

prejudicial to the State because the State had a right to be dismissed

from the lawsuit from the beginning. 9                  The jury should not have

       9Importantly,   an Ex parte Young lawsuit proceeds only against an individual
public official. See Kentucky v. Graham, 473 U.S. 159, 166–67 & n.14, 105 S. Ct. 3099,
3105–06 & n.14, 87 L. Ed. 2d 114, 122 & n.14 (1985) (noting that “official-capacity
actions are not treated as actions against the State”). To be sure, an official-capacity
action “is no different from a suit against the State itself.” Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45, 58 (1989). However,
in what is only truly a “fiction,” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 114 n.25, 104 S. Ct. 900, 915 n.25, 79 L. Ed. 2d 67, 87 n.25 (1984), the State loses
its cloak of immunity only if the individual public official is found to be violating federal
law while in his or her official capacity, see Va. Office for Prot. & Advocacy v. Stewart,
563 U.S. ___, ___, 131 S. Ct. 1632, 1638, 179 L. Ed. 2d 675, 686 (2011) (“[W]hen a
federal court commands a state official to do nothing more than refrain from violating
federal law, he is not the State for sovereign-immunity purposes.”); see also Graham,
473 U.S. at 167, 105 S. Ct. at 3106, 87 L. Ed. 2d at 122–23 (noting that the public
official does not have recourse to “personal immunity defenses” like absolute or
qualified immunity, and that “[t]he only immunities that can be claimed in an official-
capacity action are forms of sovereign immunity that the entity, qua entity, may
possess, such as the Eleventh Amendment”). Nevertheless, in such an action, only
reinstatement or other prospective relief can be granted. See Nelson, 535 F.3d at 323;
see also Edelman, 415 U.S. at 677, 94 S. Ct. at 1362, 39 L. Ed. 2d at 680. Accordingly,
leaving the State as a named party to the suit—and leaving before the jury the State’s
“ ‘virtually unlimited ability . . . to pay the verdict,’ ” cf. Steinhardt v. Potter, 326
F. Supp. 2d 449, 451 (S.D.N.Y. 2004) (quoting Lehman v. Nakshian, 453 U.S. 156, 161
n.8, 101 S. Ct. 2698, 2702 n.8, 69 L. Ed. 2d 548, 554 n.8 (1981))—prejudiced the State.
                                     37

considered liability against the State, and the entire claim should be

considered without a jury. Cf. Parsons, 28 U.S. at 447, 7 L. Ed. at 737.

This error was prejudicial to the State, and this prejudice now prevents

the original judgment from being substituted on remand to support the

judgment under Ex parte Young.

      Justice can only be achieved if the process is fair. The process was

not fair in this case, and injustice has resulted.

      Wiggins, J., joins this dissent.
