                                   United States Court of Appeals,

                                             Fifth Circuit.

                                             No. 92–8145

                                         Summary Calendar.

                               Roger M. SALTZ, Plaintiff–Appellant,

                                                   v.

   TENNESSEE DEPARTMENT OF EMPLOYMENT SECURITY, Texas Employment
Commission, and Reece Albert, Inc., Defendants–Appellees.

                                            Nov. 10, 1992.

Appeal from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, SMITH, and DeMOSS Circuit Judges.

        DeMOSS, Circuit Judge:

                                             Background

        On March 3, 1988, after approximately five weeks of employment, Saltz was fired by Reece

Albert, Inc. ("employer") for refusing to submit to a urinalysis test. Saltz contends that the test was

unannounced and was not disclosed to him at the time of his employment. The employer contends

that the obligation of all employees to participate in random drug testing program was disclosed to

and accepted by Saltz at the time of his employment. Prior to commencing his employment with

Reece Albert, Inc., Saltz lived in Tennessee. Saltz filed his initial claim for unemployment benefits

with the Texas Employment Commission ("TEC") who treated his claim as an "interstate claim" by

reason of his short employment history in Texas as co mpared to his prior employment history in

Tennessee and transferred the claim to the Tennessee Department of Employment Security ("TDES")

for determination of plaintiff's benefits. The TDES initially determined that Saltz was not eligible for

unemployment benefits because his refusal to take the urinalysis test was deemed "work related

misconduct" under Tennessee law. After various administrative hearings and appeals during which

Saltz first requested the TEC to hold a hearing in Texas which was refused by the TEC and later

requested the TDES to issue subpoenas for witnesses and documents in Texas, which was refused

by TDES on the grounds that it had no such authority, the board of review of TDES finally
determined on December 9, 1988, that Saltz was ineligible for benefits. In 1989, Saltz sued his

employer, TEC, TDES, and the U.S. Secretary of Labor in the U.S. District Court for the District

of Columbia. This initial suit was transferred to the U.S. District Court for the Western District of

Texas where it was dismissed in October, 1990 for failure of Saltz to attend a status conference and

failure to properly prosecute his action. Thereafter in November, 1990 Saltz filed this present action

in the Western District of Texas against the same parties defendant except he omitted the U.S.

Secretary of Labor. Each defendant moved to dismiss the complaint. The employer moved to

dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil

Procedure 12(b)(6). TDES and TEC each moved to dismiss on failure to state a claim upon which

relief can be granted and asserted sovereign immunity as guaranteed by the Eleventh Amendment of

the United States Constitution. In spite of the fact that the motions to dismiss might have been

avoided by amendment of the complaint, Saltz elected to stand on his pleadings and made no response

to the motions to dismiss for over a year. Further difficulties arose regarding scheduling orders,

conferences of attorneys, and completion of discovery, and on November 27, 1991, the District Judge

entered an order to Saltz to show cause on or before December 9, 1991, why the case should not be

dismissed. When the show cause order did not resolve the scheduling problems, the District Court

entered another order postponing the then trial setting and scheduled a status report for all parties

on January 20, 1992. Though the defendants timely filed such reports, Saltz did not file his report

until January 21, 1992, and filed a motion for summary judgment at the same time. On January 27,

1992, the district judge entered an order which granted the defendants' motions to dismiss and

dismissed the complaint with prejudice for failure to prosecute and to comply with the court orders.

After a motion for new trial was overruled, Saltz filed a timely notice of appeal to this court.

       In his complaint Saltz sought declaratory and injunctive relief against the TEC and TDES on

the grounds that (i) the applicat ion of Tennessee law to the facts of his underlying claim for

unemployment compensation benefits violated his right to substantive due process of law as

guaranteed by the Fourteenth Amendment of the Constitution; and (ii) that the failure to provide for

reciprocal discovery and subpoena enforcement violated his constitutional rights to procedural due
process of law as guaranteed by the Fourteenth Amendment. Apparently Saltz joined his employer

as a necessary party to his pendent state claim appealing the denial of unemployment compensation

benefits by the TDES.

                                                 Opinion

Dismissal of the State Agencies

        The Eleventh Amendment to the United States Constitution reads:

        "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."

        On its face, the Eleventh Amendment shields the states from suits by non-citizens only, but

the Supreme Court early on construed it in light of a broader notion of sovereign immunity implicit

in our federal/state scheme so as to prohibit also suits against a state by its own citizens. See Hans

v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). However, as stated by this court in

Brennan v. Stewart, 834 F.2d 1248, 1252 (1988), "a gaping hole in the shield of sovereign immunity

created by the eleventh amendment and the Supreme Court" is the doctrine of Ex parte Young, 209

U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). This doctrine holds that acts by state officials which

are contrary to federal law cannot have been authorized or be ratified by the state; and suits seeking

to enjoin such wrongful and unauthorized acts are not suits against the state and a federal courts'

injunction against such wrongful act s is not a judgment against the state itself. The essential

ingredients of the Ex parte Young doctrine are that a suit must be brought against individual persons

in their official capacities as agents of the state and the relief sought must be declaratory or injunctive

in nature and prospective in effect.1 While labeled as a "fiction", the doctrine of Ex parte Young has

become a fixture in federal litigation see Brennan at page 1252, note 6. Clearl y the nature of the

relief sought by Saltz would qualify as part of the Ex parte Young doctrine; but for some inexplicable

reason Saltz has failed or refused to satisfy the other essential ingredient, i.e., suing individual state

officials in their official capacities. Fiction though it may be, we hold that the requirement for suing


   1
    For fuller discussion see Wright Miller & Cooper, Federal Practice and Procedure:
Jurisdiction 2d, §§ 4231, 4232 (1988).
state officials in their individual capacities is an essential element of the Ex parte Young doctrine; and

the district court was correct in dismissing Saltz's complaint against TEC and TDES on the grounds

of sovereign immunity under the Eleventh Amendment. Since that gro und is sufficient in itself to

support the district court's action, we need not decide the correctness of the other grounds referred

to by the district court in entering its order of dismissal. In his reply brief, Saltz attempts to avoid the

Eleventh Amendment bar by asserting either that the relevant statutes establishing the unemployment

compensation scheme contained express Congressional waivers of Eleventh Amendment immunity

or that the States impliedly waived the Eleventh Amendment bar by participating therein; but we find

those assertions unpersuasive and foreclosed by the holdings of the Supreme Court in Eddleman v.

Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

Dismissal of the Employer

        Saltz's complaint asks for no relief of any kind against the employer. Since the federal claims

against TDES cannot be maintained because of the Eleventh Amendment, the pendent state action

for reversal of the decision of TDES regarding Saltz's ineligibility for unemployment compensation

benefits, wherein the employer may have been a necessary party, is no longer sustainable in the district

court. The decision of the district court to dismiss the employer under rule 12(b)(6) is AFFIRMED.

        We AFFIRM the judgment of the District Court.
