IN THE UNITED STATES DISTRICT COURT FOR 

THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION

CAMELLIA THERAPEUTIC FOSTER ) 

AGENCY ) 

 ) 

 Plaintiff, ) 

 ) 

V. ) CASE NO. 2:06 CV 735-MHT 

 ) 

ALABAMA DEPARTMENT OF ) 

HUMAN RESOURCES ) 

 ) 

 Defendant. ) 

DHR’S SUPPLEMENTAL BRIEF ON IMMUNITY ISSUES

COMES NOW Defendant Alabama Department of Human Resources (hereafter 

referred to as “DHR”), and files this Supplemental Brief On Immunity Issues as directed by 

the Court. DHR shows onto the Court as follows: 

I. THERE HAS BEEN NO ABROGATION OF SOVEREIGN OR ELEVENTH

AMENDMENT IMMUNITY 

II. DHR AND HAS NOT WAIVED SOVEREIGN OR ELEVENTH 

AMENDMENT IMMUNITY. 

III. DHR HAS NOT WAIVED SOVEREIGN OR ELEVENTH IMMUNITY BY 

PARTICIPATION IN FEDERAL PROGRAMS. 

IV. DHR HAS NOT WAIVED IMMUNITY BY THE REMOVAL OF THIS 

CASE. 

V. SECTION 504 IS NOT ENFORCABLE SPENDING CLAUSE 

LEGISLATION. 

Case 2:06-cv-00735-MHT-CSC Document 45 Filed 10/18/2007 Page 1 of 18
VI. THE TENTH AMENDMENT PROHIBITS THE RELIEF REQUESTED. 

I. THERE HAS BEEN NO ABROGATION OF SOVEREIGN OR ELEVENTH

AMENDMENT IMMUNITY. 

The Eleventh Amendment to the Constitution of the United States is a 

jurisdictional bar to a suit against an unconsenting state in federal court. Hans, supra; 

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). 

Generally, the Eleventh Amendment is a complete bar to lawsuits brought in federal court 

against a state or state agency by Individuals. Halderman, 465 U.S. at 98-100, 104 S.Ct. at 

906-908 (Eleventh Amendment bar to suit against state and state agencies applies “regardless 

of the nature of the relief sought.”). See Edelman v. Jordan, 415 U.S. 651, 662-663, 94 S.Ct. 

1347, 1355-1356, 39 L.Ed.2d 662 (1974); Carr v. City of Florence, 916 F.2d 1521 (11th Cir. 

1990). Additionally, in Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3037, 57 L.Ed.2d 1114 

(1978), the United States Supreme Court held that actions for injunctive relief against a state 

or its instrumentalities were not an exception to the Eleventh Amendment bar. 

Sovereign immunity is not absolute, however. There are two ways in which a state 

may surrender Eleventh Amendment sovereign immunity. 

First, Congress may authorize such a suit in the exercise of its 

power to enforce the Fourteenth Amendment—an amendment

enacted after the Eleventh Amendment and specifically

designed to alter the federal-state balance. Fitzpatrick v.

Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). 

Second, a state may waive its sovereign immunity by 

consenting to suit. Clark v. Barnard, 108 U.S. 436, 447-448, 2 

S.Ct. 878, 27 L.Ed. 780 (1883) 

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Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). 

The first method is generally referred to as “abrogation” while the second method is called 

“waiver.” 

At one time there were two recognized constitutional sources from which Congress 

could derive power to validly abrogate Eleventh Amendment sovereign immunity. One 

source was the Commerce Clause of Article I of the Constitution. Pennsylvania v. Union 

Gas Co., 491 U.S. 1, 19-20, 109 S.Ct. 2273, 2284, 105 L.Ed.2d 1 (1989). The other source 

was § 5, the so-called enforcement provision, of the Fourteenth Amendment. Fitzpatrick v. 

Bitzer, 427 U.S. 445, 455, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). 

In a change of heart, the United States Supreme Court has concluded that Article I 

cannot be used to abrogate Eleventh Amendment sovereign immunity. Seminole Tribe of 

Florida v. Florida, 517 U.S. 44, 72-73, 116 S.Ct. 1114, 1131-1132, 134 L.Ed.2d 252 (1996). 

In Seminole Tribe, the United States Supreme Court identified the following ways by which 

Congress may exercise its authority to abrogate state sovereign immunity: 

In order to determine whether Congress has abrogated the 

States’ sovereign immunity, we ask two questions: first, 

whether Congress has “unequivocally expresse[d] its intent to 

abrogate the immunity,” Green v. Mansour, 474 U.S. 64, 68, 

106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985); and second, 

whether Congress has acted “pursuant to a valid exercise of 

power,” ibid. 

 

Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123. The sole remaining constitutional source 

for abrogating Eleventh Amendment sovereign immunity, according to the United States 

Supreme Court, in several decisions, is § 5 of the Fourteenth Amendment. Id.; see also

College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 

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666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Kimel v. Florida Board of Regents, 528 U.S. 

62, 120 S.Ct. 631, 639, 145 L.Ed.2d 522 (2000). 

The United States Supreme Court’s has clearly admonished that: 

The Eleventh Amendment restricts the judicial powers under 

Article III, and Article I cannot be used to circumvent the 

constitutional limitations placed upon federal jurisdiction. 

 

Seminole Tribe, 517 U.S. at 72-73, 116 S.Ct. at 1131-1132. 

The Supremacy Clause ensures as the “supreme law of the land only those Federal 

Acts that accord with the constitutional design.” Alden v. Maine, 527 U.S. 706, 731, 119 

S.Ct. 2240, 2255, 144 L.Ed.2d 636 (1999): 

The Constitution, by delegating to Congress the power 

to establish the supreme law of the land when acting within its

enumerated powers, does not foreclose a State from asserting 

immunity to claims arising under federal law merely because 

that law derives not from the State itself but from the national 

power. ... We reject any contention that substantive federal 

law by its own force necessarily overrides the sovereign 

immunity of the States. When a State asserts its immunity to

suit, the question is not the primacy of federal law but the 

implementation of the law in a manner consistent with the 

constitutional sovereignty of the States. 

Alden v. Maine, 527 U.S. at 732. 

 As Alden v. Maine points out, the question is not whether state sovereignty frustrates 

the federal laws but whether the federal laws frustrate state sovereignty. The United States 

Supreme Court has held that allowing states to be sued by their citizens frustrates immunity: 

Private suits against nonconsenting States, however, present 

“the indignity of subjecting a State to the coercive process of 

judicial tribunals at the instance of private parties,” In re Ayers, 

supra, at 505, 8 S.Ct. 164; accord, Seminole Tribe, 517 U.S. at 

58, 116 S.Ct. 1114, regardless of the forum. Not only must a 

State defend or default but also it must face the prospect of 

being thrust by federal fiat and against its will, into the 

disfavored status of a debtor, subject to the power of private 

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citizens to levy on its treasury or perhaps even government 

buildings or property which the State administers on the 

public’s behalf. 

 

Alden v. Maine, 527 U.S. at 749 (emphasis added). 

The Supreme Court, in Alden v. Maine, supra, held that “the text and history of the 

Eleventh Amendment also suggest that Congress acted not to change but to restore the 

original constitutional design.” Alden, 527 U.S. at 722. The Court held that the Supremacy 

Clause in Article I, § 8, of the Constitution “does not foreclose a State from asserting 

immunity to claims arising under federal law.” Id. at 732. Alden also holds that “neither the 

Supremacy Clause nor the enumerated powers of Congress confer authority to abrogate the 

State’s immunity from suit in federal court.” Id. at 733. 

The states did not intentionally or otherwise authorize a broad-based surrender of 

their sovereign immunity in adopting the United States Constitution. The Supreme Court 

held in Seminole Tribe that Congress may not abrogate state sovereign immunity by 

legislation passed pursuant to its Article I powers. 517 U.S. at 71-74, 116 S.Ct. at 1131-

1132. The Supreme Court thereby overruled Pennsylvania v. Union Gas, supra, its only 

prior case finding congressional authority to abrogate state sovereign immunity pursuant to 

an Article I power, and “restored the balance of power between Congress and the Judiciary 

anticipated by the Framers in Article I and Article III of the Constitution....” Close v. New 

York, 125 F.3d 31, 38 (2d Cir. 1997). 

 In Seminole Tribe, the Supreme Court was faced with Congress’ use of its authority 

under the Indian Commerce Clause, which is found in Article I, § 8, clause 2. See U.S. 

CONST. art. 1, § 8, cl. 2 (“Congress shall have power...To regulate Commerce...with the 

Indian Tribes”). College Savings Bank v. Florida Prepaid, supra, held that Congress cannot

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abrogate state sovereign immunity under the Patent Clause in Article I, § 8, clause 7. See

U.S. CONST., art. I, § 8, cl. 7 (“to promote the progress of secure and useful arts, by securing 

for limited time to authors and inventors the exclusive right to their respective writings and 

discoveries”). College Savings Bank reaffirms that there is no exception to Seminole Tribe

for exclusively federal powers, even those involving exclusive federal jurisdiction. 

 In Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 

(2000), the Supreme Court stated that, for legislation to be appropriate enforcement 

legislation under the Fourteenth Amendment, § 5, it must meet the standards of City of 

Boerne v. Flores, 521 U.S. 507, 519-520, 117 S.Ct. 257, 138 L.Ed.2d 624 (1997), that the 

enforcement power of Congress is remedial in nature only, meaning that: 

1) The legislation must be designed to “deter or remedy” a

constitutional violation. Congress does not have the power to 

change or determine what is a constitutional violation; and 

2) There must be congruence and “proportionality” 

between the injury to be prevented and the means adopted to 

that end. 

 

Kimel, 521 U.S. at 81. 

II. DHR AND HAS NOT WAIVED SOVEREIGN OR ELEVENTH 

AMENDMENT IMMUNITY. 

 Having determined that Eleventh Amendment sovereign immunity has not 

been abrogated, we now turn to the question of whether DHR is entitled to assert sovereign 

immunity and whether that immunity has been waived. Generally, the Eleventh Amendment 

prohibits actions seeking a monetary award from a state, state agency, or state employee sued 

in his or her official capacity. Edelman v. Jordan, 415 U.S. 651, 662-663, 94 S.Ct. 1347, 

1355-1356, 39 L.Ed.2d 662 (1974); Carr v. City of Florence, 916 F.2d 1521 (11th Cir. 1990). 

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To ascertain whether an entity is an arm of the state, the Court must examine state law. 

Brown v. East Central Health District, 752 F.2d 615, 617 (11th Cir. 1985). By statute, the 

Department of Human Resources has sovereign immunity. ALA.CODE § 38-2-8 (1975); 

Mitchell v. Davis, 598 So.2d 801 (Ala. 1992) (“DHR and the BCDHR [Barbour County 

DHR], as State agencies, can assert the defense of absolute immunity from suit.” 

(Parenthetical information added.)); see also Ross v. State of Alabama, 893 F.Supp. 1545, 

1550 (M.D.Ala. 1995) (holding that by statute the Houston County DHR is a division of the 

State Department of Human Resources and operates under its direction. Thus, the Court 

concludes that the Houston County DHR is a state agency for purposes of the Eleventh 

Amendment.”). 

The test for determining whether a state has waived its immunity from federal-court 

jurisdiction is a stringent one.” Atascadero, 473 U.S. at 241. To date, the Supreme Court has 

identified only three ways in which a state may effect a waiver of its Eleventh Amendment 

sovereign immunity: (1) by state statute or constitutional provision, see Pennhurst, 465 U.S. 

at 99; (2) by participation in a federal program, see Edelman v. Jordan, 415 U.S. 651, 673, 94 

S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974); or (3) by certain conduct, such as filing a 

complaint, in federal court, see Clark v. Barnard, 108 U.S. at 447-448. In order to constitute 

waiver of Eleventh Amendment immunity from suit in federal court, a state statute must 

employ language that is either explicit, or else admits of no other reasonable interpretation. 

Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347; Gamble v. Florida Dept. of Health and 

Rehabilitative Services, 779 F.2d 1509, 1512 (11th Cir. 1986). 

Alabama does not have a general statutory or constitutional provision waiving its sovereign 

immunity. Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 (11th Cir. 1990): 

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The state of Alabama has not waived its immunity. Free v. 

Granger, 887 F.2d 1552, 1557 (11th Cir. 1989); Parker v. 

Williams, 862 F.2d 1471, 1476 (11th Cir. 1989). Article 1, 

section 14 of the Alabama Constitution of 1901 expressly 

states that “the State of Alabama shall never be made a 

defendant in any court of law or equity.” 

 

Carr v. City of Florence, 916 F.2d at 1525. 

Neither does Alabama have any state statutes waiving immunity in DHR child 

welfare or other programs. See ALA.CODE § 38-2-6, et seq. (1975). First, a waiver of 

Eleventh Amendment immunity by state statute or constitutional provision must be clear and 

unequivocal in order for it to be effective. Seminole Tribe, 517 U.S. at 55-56, 116 S.Ct. at

1122-1123. It must be “stated by the most express language or by such overwhelming 

implications from the text as [will] leave no room for any other reasonable construction.” 

College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 

666, 678, 119 S.Ct. 2219, 2227, 144 L.Ed.2d 605 (1999) (quoting Edelman v. Jordan, 415 

U.S. at 673 (internal quotation marks omitted)). The following examples of provisions in

state statutes and constitutions, which the Supreme Court held would not effectuate a waiver,

give an idea of how clear the waiver must be: a statement consenting to suit in the courts of

its own creation does not waive immunity. Smith v. Reeves, 178 U.S. 436, 441-445, 20 S.Ct. 

919, 921-923, 44 L.Ed. 1140 (1900); a declaration of the state’s intention that it or one of its 

agencies can “sue or be sued” does not waive immunity. Florida Dept. of Health and 

Rehabilitative Services v. Florida Nursing Home Ass’n, 450 U.S. 147, 149-150, 101 S.Ct. 

1032, 1034, 67 L.Ed.2d 132 (1981); and a statement authorizing suits against the state or one 

of its agencies “in any court of competent jurisdiction,” does not waive immunity. Kennecott

Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 577-579, 66 S.Ct. 745, 747, 90 L.Ed. 862 

(1946). 

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III. DHR HAS NOT WAIVED SOVEREIGN OR ELEVENTH IMMUNITY 

BY PARTICIPATION IN FEDERAL PROGRAMS. 

Second, mere participation in a federal program or an agreement to recognize and 

abide by federal laws, regulations, and guidelines is insufficient to waive Eleventh 

Amendment immunity. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246, 247, 

105 S.Ct. 3142, 3149-3150, 87 L.Ed.2d 171 (1985) (holding that participation in federal 

programs and receipt of federal funds under such programs “fall[] far short of manifesting a 

clear intent...to waive immunity”); Florida Nursing Home Ass’n, 450 U.S. at 150, 101 S.Ct. 

at 1034 (stating that state agency’s explicit agreement “to obey federal law in administering 

the federal program” can hardly be deemed an express waiver of Eleventh Amendment 

immunity); Edelman, 415 U.S. at 673-674, 94 S.Ct. at 1360-1361 (holding that neither mere 

participation in a federal program nor a provision requiring compliance with federal law is 

sufficient to establish that the state consented to be sued in federal court. Atascadero, 473 

U.S. at 238 n.1 & 241, 105 S.Ct. 3145 n.1 & 3146-3147; College Savings Bank, 527 U.S. at 

679-683, 119 S.Ct. 2219, 2228-2229, 144 L.Ed.2d 605 (rejecting the Parden v. Terminal Ry. 

of Alabama State Docks Dept., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), doctrine 

of constructive consent because it conflicts with the longstanding requirement that a waiver 

of a constitutional right must be unequivocally expressed and altogether voluntary). A state’s 

receipt of federal funds does not automatically constitute a waiver of its Eleventh 

Amendment immunity. The Supreme Court in South Dakota v. Dole, 483 U.S. 203, 107 

S.Ct. 2793, 97 L.Ed.2d 171 (1987) described the limited circumstances in which a waiver 

will be recognized: (1) Federal expenditures must benefit the general welfare; (2) the 

conditions imposed on the recipients must be unambiguous; (3) The conditions must be 

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reasonably related to the purpose of the expenditure; and (4) No condition may violate any 

independent constitutional prohibition. Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 278 

(5th Cir. 2005), citing Dole,483 U.S. at 207-08, 107 S.Ct. 2793. Dole also recognizes a fifth 

requirement that the condition may not be coercive. Id.

A State waives its immunity by voluntarily participating in federal spending programs 

only when Congress includes a clear statement of intent to condition participation in the 

programs on a State’s consent to waive its constitutional immunity. Atascadero, 473 U.S. at 

247, 105 S.Ct. 3142. “By insisting that congress speak with a clear voice, we enable the 

States to exercise their choice [to waive sovereign immunity] knowingly.” Pace, 403 F.2d at 

279 9quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 

67 L.Ed.2d 694). In seeking to determine whether the language of a condition is sufficiently 

clear, courts must view the statute “from the perspective of a state official who is engaged in 

the process of deciding whether the state should accept [federal] funds and the obligations 

that go with those funds,” asking “whether ... a state official would clearly understand [the 

nature of the condition].” Arlington Cent. Sch. Dist. Bd. Of Educ. v. Murphy, --- U.S. ---, 

126 S.Ct. 2455, 2459, 165 L.Ed.2d 526 (2006). “In a Spending Clause case, the key is not 

[the intention of Congress] but what the States are clearly told regarding the conditions that 

go along with the acceptance of ... funds.” Id. at 2463. A statute must furnish “clear notice 

regarding the liability at issue” to which the state has allegedly waived its immunity. Id. at 

2459. 

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IV. DHR HAS NOT WAIVED IMMUNITY BY THE REMOVAL OF THIS

 CASE.

The third ground for waiver, i.e., certain conduct such as filing a complaint in federal 

court, is the ground most frequently at issue in bankruptcy court sovereign immunity waiver 

cases. In Gardner v. New Jersey, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504 (1947), the 

United States Supreme Court addressed the effect of filing a proof of claim in a bankruptcy 

proceeding on a state’s assertion of Eleventh Amendment immunity. In that case, the State

of New Jersey filed a proof of claim for unpaid taxes against the debtor. Id. at 570, 67 S.Ct. 

at 470. See also Clark v. Barnard, 108 U.S. 436, 447-448, 2 S.Ct. 878, 883, 27 L.Ed. 780 

(1883) (holding that the State of Rhode Island had waived its sovereign immunity by 

voluntarily intervening as a claimant to a bankruptcy fund paid into federal court). In this 

case, there is no allegation that DHR has filed any complaint in this case.

 In Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 

122 S.Ct. 1640, 152 L.Ed2d 806 (2002), the United Supreme Court held that states waived 

sovereign immunity by taking certain actions in removing cases to federal court. 

Summarizing prior law, the court stated that “(t)his Court consistently has found a waiver 

when a state’s attorney general, authorized (as here) to bring a case in federal court, has 

voluntarily invoked that Court’s jurisdiction.” Lapides, 535 U.S. at 622. The Court 

concluded that “the State’s action joining the removal of this case to federal court waived its 

Eleventh Amendment immunity.” Lapides, 535 U.S. at 624. The court specifically stated 

that it was limiting its holding “to the context of state-law claims, in respect to which the 

State has explicitly waived immunity from state-court proceeding. Lapides, 535 U.S. at 617. 

that clearly means the holding is limited to cases where sovereign immunity has been 

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waived. The Court went on to say that it did not need to “address the scope of waiver by 

removal in a situation where the State’s underlying sovereign immunity from suit has not 

been waived or abrogated in state court.” Id. at 618. Thus, the Court did not hold that 

removal of a federal claim from state court to federal court constituted a waiver of the 

underlying sovereign immunity. It was simply not an issue in the case. 

Furthermore, one federal court of appeals, Stewart v. North Carolina, 393 F.3d 484 

(4th cir. 2005), has considered the removal of a state-law claim in a situation that did not fit 

the Lapides pattern. North Carolina had not waived immunity from suit on the claim in its 

own courts. The Fourth Circuit found it improper to rely “exclusively” on Lapides because 

the Court in Lapides reserved judgment as to whether removal constituted waiver outside its 

exact situation. Id. at 490. “Nevertheless,” the Fourth Circuit state, “the principles 

animating Lapides she light on the issue we resolve today.” Id.

The difference in this case, however, is that the Alabama Department of Human 

Resources never sought removal of the case to federal court. The original Complaint in this 

case filed in the Circuit Court of Montgomery County, Alabama was filed against the 

following Defendants: Bob Riley, Governor of Alabama; Page Walley, Commissioner of the 

Department of Human Resources; and Susan Ward, Director of Federal and State contracts of 

the Alabama Department of Human Resources. Doc. 2. The Notice of Removal was filed by 

Riley, Walley, and Ward. Doc. 1. A Motion to Dismiss the original Complaint was filed and 

a dismissal order entered on September 26, 2006. Doc. 9; Doc. 10. Plaintiff filed a Motion 

to Amend the Complaint which was granted on September 26, 2006. Doc. 8; Doc. 10. The 

Amended Complaint named only the Alabama Department of Human Resources as the 

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Defendant. Doc. 13. A summons was issued to DHR (Doc. 14) and a return of service was 

filed confirming service on DHR on October 4, 2006. Doc. 15. 

Alabama DHR has not waived its sovereign immunity. The Fifth Circuit Court of 

Appeals has ruled that state which later finds itself in a case removed to federal court has not

waived its sovereign immunity. 

(A) state may find itself in a case removed to federal court without having 

joined in the removal. Such a state, having taken no affirmative act, has not 

waived immunity and can still assert it. Also contrary to plaintiffs’

suggestion, the simple act of assuming jurisdiction over a case with a state 

defendant does not step on its sovereign immunity. A federal court may 

ignore sovereign immunity until the state asserts it. 

Frazier v. Pioneer America, LLC, 455 F.3d 542, 547 (5th Cir. 2006) footnote omitted.

V. SECTION 504 IS NOT ENFORCABLE SPENDING CLAUSE 

 LEGISLATION 

Consistent with its spending power, Congress may attach conditions on the receipt of

federal funds. See South Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793, 97 L.Ed.2d 171 

(1987). The spending power is not unlimited. The United States Supreme Court has 

recognized general limitations to the Spending Clause: (1) spending must be in pursuit of the 

general welfare; (2) any attached conditions must be unambiguous; (3) conditions must also 

be related to a federal interest; and (4) the obligations imposed by Congress may not violate 

any independent constitutional provisions. See, Dole, 483 U.S. at 207-208. Section 504 

provisions are not clearly “unambiguous”. 

Spending-clause legislation is fundamentally different from laws passed pursuant to 

other sources of congressional power. Specifically, in a spending-clause enactment, 

Congress does not attempt to impose unilaterally a condition upon the states, but instead 

wields the “power of the purse” to regulate indirectly states’ conduct by conditioning the 

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receipt of federal funds on states’ compliance with particular conditions. See Pennhurst State 

School & Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1540, 67 L.Ed.2d 694 

(1981) (noting that “legislation enacted pursuant to the spending power is much in the nature 

of a contract; in return for federal funds, states agree to comply with federally imposed 

conditions”); see also Davis v. Monroe County Board of Education, 526 U.S. 629, 640, 119 

S.Ct. 1661, 1670, 143 L.Ed.2d 839 (1999); Gebser v. Lago Vista Independent School Dist., 

524 U.S. 274, 286, 118 S.Ct. 1989, 1997, 141 L.Ed.2d 277 (1998); Guardians Assn. v. Civil 

Serv. Comm’n of New York City, 463 U.S. 582, 599, 103 S.Ct. 3221, 3231, 77 L.Ed.2d 866 

1983 (opinion of White, J.); id., at 632-633, 103 S.Ct. 3221, 3249 (Marshall, J., dissenting); 

Lau v. Nichols, 414 U.S. 563, 568-569, 94 S.Ct. 786, 789, 39 L.Ed.2d 1 (1974). 

 In Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002), the 

United States Supreme Court took a potentially significant leap toward limiting the reach of 

Spending Clause legislation. In a decision that bars private recovery of punitive damages

under Title II of the Americans with Disabilities Act (“ADA”), the Supreme Court held that 

private recovery under Spending Clause legislation is limited to remedies either traditionally 

available for breach of contract or expressly provided for by statute. Writing for the Court, 

Justice Scalia held that punitive damages may not be awarded in a private cause of action 

under sections 202 and 504 of the ADA. He determined that punitive damages are not 

“appropriate relief” under sections 202 and 504. Justice Scalia based this conclusion on 

contract law principles. Congress enacted Title VI, from which sections 202 and 504 borrow 

their remedies, through its spending power. Justice Scalia noted that, in past cases, the Court

has characterized Spending Clause legislation as “much in the nature of a contract: in return

for federal funds, the [recipients] agree to comply with federally imposed conditions.”

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Barnes, 122 S.Ct. at 2100-2101 (parenthetical information in the original). Thus, the 

Supreme Court has often applied contract law principles to determine the scope of liability

under Spending Clause legislation. For example, recipients cannot be held liable for

violating conditions on their federal grants unless Congress has imposed those conditions

unambiguously. The rationale for this rule, based on contract law, is that recipients can be 

held liable only for terms they “voluntarily and knowingly accept[].” Id. at 2101. 

Defendants assert that state compliance with spending power legislation is dependent upon 

state agreement to comply and that there has been no affirmative agreement to accept

constantly changing federal regulations and policy guidelines. 

VI. THE TENTH AMENDMENT PROHIBITS THE RELIEF REQUESTED 

The Tenth Amendment to the Constitution of the United States is implicated where 

the financial incentives offered by the federal government to the states cross the 

impermissible line where “pressure turns into compulsion.” See Dole, 483 U.S. at 211. 

Congress may use its spending power to influence a state’s legislative choices by providing 

incentives for states to adopt certain policies, but it may not compel or coerce a state, or go so 

far as to “commandeer the legislative processes of the States by directly compelling them to 

enact and enforce a federal regulatory program.” See New York v. United States, 505 U.S. 

144, 161, 112 S.Ct. 2408, 2421, 120 L.Ed.2d 120 (1992). Congress, under the Commerce 

Clause, may, however, offer the states a choice of regulation either under federal control or 

preemption under federal regulations. See Hodel v. Virginia Surface Mining & Reclamation 

Association, Inc., 452 U.S. 264, 288, 101 S.Ct. 2352, 2366, 69 L.Ed.2d 1 (1981). 

Alabama has not affirmatively agreed to federal employment and program 

participation requirements. Defendants assert that Section 504 and its accompanying 

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regulations and policy guidelines “cross the line” by compelling and coercing the state to 

spend millions of dollars to comply with employment and program participation 

requirements. Furthermore, the federal guidelines effectively have a coercive adverse effect 

on state budgets by requiring that actions that interfere with other state priorities. 

Defendants also asserts that the federal statutes and regulations, in this case are 

impermissibly coercive in violation of the Tenth Amendment to the Constitution of the 

United States. In Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 

(1997), the Supreme Court applied this same Tenth Amendment analysis to invalidate a 

provision of federal law requiring state and local enforcement officers to conduct background 

checks on prospective purchasers. The Printz Court stated: 

We held in New York [v. United States, 505 U.S. 144, 

112 S.Ct. 2408, 120 L.Ed.2d 120 (1992)], that Congress cannot 

compel the States to enact or enforce a federal regulatory 

program. Today we hold that Congress cannot circumvent that 

prohibition by conscripting the State’s officers directly. The 

Federal Government may neither issue directives requiring the 

States to address particular problems, nor command the 

State’s officers, or those of their political subdivisions, to 

administer or enforce a federal regulatory program. 

Printz, 521 U.S. at 935 (emphasis added). In Reno v. Condon, 528 U.S. 141, 120 S.Ct. 666, 

145 L.Ed.2d 587 (2000), the Supreme Court explained that the New York and Printz rulings 

were premised upon “federalism.” Condon, 528 U.S. at 149 (“While Congress has 

substantial powers to govern the Nation directly, ... the Constitution has never been 

understood to confer upon Congress the ability to require the States to govern according to

Congress’ instructions.”). The same analysis applies here in this case. Congress may not

coercively bind states to follow rules they had no notice of or did not agree to or rules in 

violation of Tenth Amendment federalism principles. 

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CONCLUSION

This Court should dismiss Camellia Therapeutic Foster Agency’s Complaint holding

that Alabama DHR has sovereign and Eleventh Amendment immunity. 

 RESPECTFULLY SUBMITTED,

 

 TROY KING (KIN047) 

ATTORNEY GENERAL 

 SHARON FICQUETTE (FIC001)

CHIEF LEGAL COUNSEL 

_s/ James E. Long_______________

James E. Long - LON016 

Deputy Attorney General 

State of Alabama 

Department of Human Resources 

P.O. Box 304000 

Montgomery, Alabama 36130-4000 

Phone: (334) 242-9330 

Fax: (334) 242-0689 

ATTORNEYS FOR DEFENDANT

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Case 2:06-cv-00735-MHT-CSC Document 45 Filed 10/18/2007 Page 17 of 18
CERTIFICATE OF SERVICE

I hereby certify that I have served the foregoing DHR’S SUPPLEMENTAL BRIEF 

ON IMMUNITY ISSUES on the following by placing a copy thereof, addressed as 

indicated below, in United States Mail, First Class postage prepaid, on this the 29th day of 

May 2007. 

Hon. Kathryn Dickey 

Attorney at Law 

322 Alabama St. 

Montgomery, AL 36104 

Hon. Jamie Spears-Turk 

Attorney at Law 

2735 Office Park Cir. 

Montgomery, AL 36116 

_s/ James E. Long _____________ 

James E. Long – LON 016 

Deputy Attorney General 

State of Alabama 

Department of Human Resources 

P.O. Box 304000 

Montgomery, Alabama 36130-4000 

Phone: (334) 242-9330 

Fax: (334) 242-0689 

ATTORNEY FOR DEFENDANT ALABAMA 

DEPARTMENT OF HUMAN RESOURCES 

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