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 individual5 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 selfcare 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 officialcapacity 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.