Kroll v. Board of Trustees of University of Illinois

Decision Date22 July 1991
Docket Number90-1075,Nos. 89-3414,s. 89-3414
Citation934 F.2d 904
Parties67 Ed. Law Rep. 1077 William A. KROLL, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF the UNIVERSITY OF ILLINOIS, an Illinois Public Corporation, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Marvin Gerstein, Urbana, Ill., for plaintiff-appellee.

Edward H. Rawles, Reno, O'Byrne & Kepley, Champaign, Ill., for defendant-appellant.

Before WOOD, Jr., COFFEY and MANION, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

William Kroll, a former employee of the University of Illinois Athletic Association, took issue with the timing of and reasons for his discharge. He filed this suit on January 6, 1989, seeking damages from the Athletic Association, the Board of Trustees of the University of Illinois ("Board"), and Neale Stoner, individually and in his official capacity as director of the Athletic Association ("Stoner"). The district court concluded that the Board was entitled to eleventh amendment immunity and for this reason, as well as others not important to this decision, Kroll's complaint was dismissed on June 13, 1989, with leave to refile.

When Kroll filed an amended complaint on July 18, 1989, he requested relief under 42 U.S.C. Sec. 1983, as well as various state law theories, and named as defendants only the Athletic Association and Stoner. To his surprise, however, the Athletic Association no longer existed. On June 29, 1989, the Illinois General Assembly had passed special legislation allowing the Athletic Association, a not-for-profit corporation, to merge into the Board. Public Act 86-6, 1989 Ill.Legis.Serv. 299, 300-01 (West) (codified at ILL.REV.STAT. ch. 144, para. 28d). The two entities had thereafter entered into a merger agreement and filed articles of merger with the Illinois Secretary of State. On June 30, 1989, with the Secretary's issuance of a certificate of merger, the Board became the surviving corporation and the Athletic Association ceased to exist as a separate entity. ILL.REV.STAT. ch. 144, paras. 28d(c)(1), (d)(2); Plan of Merger p 1.3.

The Board, now appearing as the surviving entity of the merger, reasserted its eleventh amendment immunity from suit. The district court rejected this argument by means of an order entered on October 4, 1989, and a supplemental order entered on December 12, 1989. These interlocutory orders were immediately appealable under the rationale set forth in Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-18, 86 L.Ed.2d 411 (1985), and as a result we have appellate jurisdiction to decide the question of law presented by the Board's timely notices of appeal. Accord Chrissy F. ex rel. Medley v. Mississippi Dep't of Pub. Welfare, 925 F.2d 844, 848-49 (5th Cir.1991) (denial of motion to dismiss on eleventh amendment grounds is immediately appealable); Schopler v. Bliss, 903 F.2d 1373, 1376-78 (11th Cir.1990) (same); Dube v. SUNY, 900 F.2d 587, 594 (2d Cir.) (same), cert. denied on other issues sub nom. Wharton v. Dube, 59 U.S.L.W. 3278 (U.S. Oct. 9, 1990); Coakley v. Welch, 877 F.2d 304, 305 (4th Cir.) (same), cert. denied, --- U.S. ----, 110 S.Ct. 501, 107 L.Ed.2d 503 (1989); see also R.R. Donnelley & Sons Co. v. FTC, 931 F.2d 430, 432 (7th Cir.1991). But see Libby v. Marshall, 833 F.2d 402, 404-07 (1st Cir.1987) (state officials sued in their official capacity for injunctive relief cannot make interlocutory appeal from district court's denial of motion to dismiss on eleventh amendment grounds). 1

The eleventh amendment to our Constitution states: "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." U.S. CONST. amend. XI. That language seems plain enough, but eleventh amendment jurisprudence has not precisely followed the text of the amendment. Heavily influenced by the judicially created doctrine of sovereign immunity, see Port Auth. Trans-Hudson Corp. v. Feeney, --- U.S. ----, 110 S.Ct. 1868, 1872, 109 L.Ed.2d 264 (1990) [hereinafter PATH ], the Supreme Court has broadened the amendment's language in some respects and narrowed it in others.

Today, eleventh amendment issues may arise whenever a private party files a federal lawsuit against a state, a state agency, or a state official. The effect of the amendment may differ, however, depending on the category of defendant. Brunken v. Lance, 807 F.2d 1325, 1328-29 (7th Cir.1986). We therefore begin an eleventh amendment analysis by looking at the caption of the lawsuit.

Private party suits against a state are easy to identify and the analysis is relatively straightforward. Put simply, a state may claim immunity from suit in federal court and must be dismissed from the litigation unless there exists one of two well-established exceptions. See id.; Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). First, a state may by unequivocal language waive the protections of the eleventh amendment and thereby consent to suit in federal court. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). Second, Congress may by unequivocal language use its enforcement powers under the fourteenth amendment to abrogate the states' eleventh amendment immunity. See id.; see also id. at 246, 105 S.Ct. at 3149 ("When Congress chooses to subject the States to federal jurisdiction, it must do so specifically.") (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) [hereinafter Pennhurst II ] (citing Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)).

State agencies are treated the same as states. See Pugh, 438 U.S. at 781-82, 98 S.Ct. at 3057-58; Gleason v. Board of Educ., 792 F.2d 76, 79 (7th Cir.1986). Indeed, a state agency is the state for purposes of the eleventh amendment. Davidson v. Board of Govs., 920 F.2d 441, 442 (7th Cir.1990); see also Pennhurst II, 465 U.S. at 100, 104 S.Ct. at 907 ("It is clear, of course, that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the eleventh amendment."). This is so, moreover, "regardless of the nature of the relief sought." Id.; Gleason, 792 F.2d at 79. The only new issue, therefore, is whether a particular defendant is really a state agency, i.e., whether an entity is more like " 'an arm of the State' " than a county or city. Kashani v. Purdue Univ., 813 F.2d 843, 845 (7th Cir.) (quoting Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977)), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987); see also Monell v. Department of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 n. 54 (1978).

State officials present a more complicated analysis, but one that is set forth rather neatly in Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Suits against state officials are sometimes permissible, and the key inquiry is whether the state is " 'the real, substantial party in interest.' " Pennhurst II, 465 U.S. at 101, 104 S.Ct. at 908 (citing Ford Motor Co. v. Department of Treas., 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945)). Personal-capacity suits raise no eleventh amendment issues even though an official might have the requisite nexus to the state in order for his or her actions to be labelled state action. See Graham, 473 U.S. at 165-67, 105 S.Ct. at 3104-07. A victory in such a suit, however, is a victory against only the individual defendant; an award of damages may be executed only against that official's personal assets. Id. at 165-66, 105 S.Ct. at 3104-05. Official-capacity suits, in contrast, are deemed to be against the " 'entity of which an officer is an agent.' " Id. at 165, 105 S.Ct. at 3105 (quoting Monell, 436 U.S. at 690 n. 55, 98 S.Ct. at 2035 n. 55). Accordingly, official-capacity suits for retrospective relief--i.e., money damages payable from the state treasury--generally implicate the eleventh amendment in the absence of a waiver by the state or a valid congressional override. See Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Under an exception to the general rule, however, official-capacity actions may not be barred by the eleventh amendment insofar as they request prospective relief--i.e., an injunction or a declaratory judgment and monetary damages that are "ancillary" to either. Graham, 473 U.S. at 169 n. 18, 105 S.Ct. at 3107 n. 18; Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

The suit before the district court involved both an action against a state agency as well as personal-capacity and official-capacity actions against Stoner. Only the Board, however, has appealed and only the Board's immunity, therefore, need be addressed. This acknowledgment, in turn, leads us to Cannon v. University of Health Sciences/Chicago Medical School, 710 F.2d 351 (7th Cir.1983).

In Cannon, this court concluded that the Board was a state agency and, as such, that it was entitled to eleventh amendment immunity. Id. at 356-57. Kroll does not contest the validity of our analysis in Cannon (and we therefore do not revisit its holding) 2 but he does try to circumvent the case.

Kroll first cites Quern, a suit against state officials in which the Supreme Court observed that "a suit in federal court by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." 440 U.S. at 337, 99 S.Ct. at 1143. The Athletic Association, Kroll contends, raised funds solely from such sources as ticket sales, alumni donations, and sales of...

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