PUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 22-1465

INDUSTRIAL SERVICES GROUP, INC., d/b/a Universal Blastco, 

 Plaintiff - Appellee, 

 v. 

JOSH DOBSON, in his official capacity as North Carolina Commissioner of Labor; 

KEVIN BEAUREGARD, in his official capacity as Director of the Occupational Safety 

and Health Division of the North Carolina Department of Labor, 

 Defendants - Appellants. 

Appeal from the United States District Court for the Western District of North Carolina, at 

Asheville. Martin K. Reidinger, Chief District Judge. (1:21-cv-00090-MR-WCM) 

Argued: January 27, 2023 Decided: May 16, 2023 

Before GREGORY, Chief Judge, WILKINSON, and HEYTENS, Circuit Judges.

Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge 

Wilkinson and Judge Heytens joined. 

ARGUED: Stacey Alayne Phipps, NORTH CAROLINA DEPARTMENT OF JUSTICE, 

Raleigh, North Carolina, for Appellants. Travis Wayne Vance, FISHER & PHILLIPS, 

LLP, Charlotte, North Carolina, for Appellee. ON BRIEF: Joshua H. Stein, Attorney 

General, Victoria L. Voight, Special Deputy Attorney General, NORTH CAROLINA 

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. David I. Klass, 

FISHER & PHILLIPS LLP, Charlotte, North Carolina, for Appellee.

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GREGORY, Chief Judge:

The North Carolina Occupational Safety and Health Hazard Association (“NC 

OSHA”) issued several itemized citations to Industrial Services Group (“ISG”) following 

the on-site deaths of two ISG employees. Soon thereafter, ISG filed for declaratory and 

injunctive relief against two North Carolina state officials, Josh Dobson, the North Carolina 

Commissioner of Labor and acting Chief Administrative Officer for the North Carolina 

Department of Labor (“NCDOL”), and Kevin Beauregard, the Director of NCDOL’s 

Occupational Safety and Health Division, (collectively “Defendants”), in their official 

capacities. ISG alleged that the issued citations were unlawful because they stemmed from 

North Carolina’s occupational health and safety plan, which in their view violates 29 

U.S.C. § 657(h) of the federal Occupational Safety and Health Act (“OSH Act”), a 

provision that forbids Defendants from evaluating their employees’ enforcement activities

based on the number of penalties they have assessed and citations they have issued.

The district court denied Defendants’ motions to dismiss and for judgment on 

pleadings, holding, inter alia, that they were not entitled to Eleventh Amendment sovereign 

immunity because ISG’s claims satisfied the Ex Parte Young exception. Through this 

interlocutory appeal, the parties ask us to grapple with that same issue. Defendants also 

raise, for the first time, two arguments questioning ISG’s standing and insist that the 

abstention doctrine bars federal courts from hearing ISG’s suit. For the reasons that follow, 

we affirm the district court’s decision to deny Defendants Eleventh Amendment immunity 

and decline to exercise pendent appellate jurisdiction over Defendants’ newly-raised claims.

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I.

A.

Enacted in 1970, the OSH Act establishes a comprehensive regulatory scheme 

designed “to assure so far as possible . . . safe and healthful working conditions” for “every 

working man and woman in the Nation.” 29 U.S.C. § 651(b). Along with the OSH Act, 

Congress created the federal Occupational Safety and Health Administration (“OSHA”) to 

ensure the OSH Act’s enforcement nationwide.

In addition to establishing federal regulations, the OSH Act “encourag[es] the States

to assume the fullest responsibility for the administration and enforcement of their 

occupational safety and health laws,” 29 U.S.C. § 651(b)(11), and to “provide[] for the

development and enforcement of safety and health standards relating to one or more safety 

or health issues” covered by the Act. 29 U.S.C. § 667(c)(2). To assume this responsibility, 

the State must submit—and OSHA must approve—a “State Plan” which guarantees

standards “at least as effective in providing safe and healthful employment” as those 

developed by the OSH Act. Id. A State Plan must also “provide a program for the 

enforcement of the State standards which is, or will be, at least as effective as that provided 

in the Act, and provide assurances that the State’s enforcement program will continue to 

be at least as effective as the Federal program.” 29 C.F.R. § 1902.3(d)(1).

After OSHA approves a State Plan, it will “make a continuing evaluation of the 

manner in which [the] State . . . is carrying out such plan.” 29 C.F.R. § 667(f). If OSHA 

determines “that in the administration of the State plan there is a failure to comply 

substantially with any provision of the State plan (or any assurance contained therein),” the 

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Secretary of Labor will inform the State Agency of their withdrawal of approval, and once 

notice of receipt is received, the State Plan will “cease to be in effect.” Id. And, as relevant 

here, in 1998, Congress amended the OSH Act to forbid the Secretary from “us[ing] the 

results of enforcement activities, such as the number of citations issued or penalties assessed, 

to evaluate employees directly involved in enforcement activities under this chapter or to 

impose quotas or goals with regard to the results of such activities.” 29 U.S.C. § 657(h).

With that background in mind, we turn to the facts before us.

B.

ISG—a South Carolina based corporation—is a heavy industry business, often 

performing fabrication, installation, repairs, and inspections of industrial equipment on 

behalf of its customers. The corporation, which operates under the trade name “Universal 

Blastco,” frequently conducts its business outside the state, including in North Carolina,

where the events underlying this appeal transpired.

On September 21, 2020, two ISG employees were onsite at the Evergreen Packaging 

Paper Mill in Canton, North Carolina conducting lamination-based work when a fire broke

out. Tragically, the two ISG employees lost their lives due to carbon monoxide poisoning 

and blunt force trauma stemming from the fire. ISG properly reported the fatalities to the 

NCDOL, which initiated an inspection of the worksite. Following their inspection, on 

March 16, 2021, NCDOL’s Occupational Safety and Health Division issued ISG three 

citations with thirteen overall violations: one “Willful Serious” violation, nine “Serious” 

violations, and three “Non-Serious” violations resulting in total penalties of $112,000. 

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Shortly thereafter, ISG filed a complaint in the United States District Court for the Western 

District of North Carolina against Dobson and Beauregard in their official capacities.

ISG’s Complaint raised three primary claims. Counts One and Two, brought under

28 U.S.C. §§ 2201 and 2202, contended that Dobson and Beauregard could not lawfully

issue these citations because they maintain a practice of employee performance evaluation

in violation of § 657(h). Specifically, the Complaint asserted that Dobson, who plays a 

role in administering the North Carolina State Plan (“NC State Plan”)1 as the 

Commissioner of Labor, “has admitted that the performance of ‘compliance officers’—

who inspect workplaces for hazardous conditions and issue citations for alleged 

violations—is evaluated based on . . . ‘the number of inspections opened and closed, and 

the number of citations issued and upheld.’” J.A. 8. Given the Commissioner’s admission, 

the Complaint alleged that the NC State Plan “directly violates” § 657(h) and therefore “is 

preempted by” the federal OSH Act. Id.; J.A. 11.

ISG’s third claim, raised under 42 U.S.C. § 1983, asserted that Defendants had 

violated their due process rights by “engaging in enforcement activities against ISG despite 

lacking the proper legal authority to do so” and “incentivizing their compliance officers to 

commence investigation and enforcement activities and issue citations and penalties 

against ISG pursuant to an official policy or practice that violates and is preempted by 

1 The NC State Plan received initial approval in 1973 and final approval in 1996; it

“covers all private-sector employers and employees, with several notable exceptions, as 

well as State and local government employers and employees, within the State.” See

www.osha.gov/laws-regs/regulations/standardnumber/1952/1952.5 (last visited May 5, 

2023); J.A. 10. The NC State Plan is administered by the NCDOL and the NC OSHA.

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federal law.” J.A. 26. For these reasons, ISG argued, Defendants cannot lawfully issue 

citations pursuant to their illegal operation of the NC State Plan nor enforce a policy 

preempted by federal law. ISG seeks, inter alia, six forms of declaratory relief and two 

requests for injunctive relief.

2

2 Specifically, ISG’s Complaint states the following prayers for declaratory and 

injunctive relief:

(a) A declaration that Defendants’ official policy or practice of evaluating 

compliance officers’ performance based on the number of citations issued or 

penalties assessed violates the OSH Act;

(b) A declaration that the official policy or practice described in subsection 

(a) has placed Defendants’ administration of the North Carolina State Plan 

out of compliance with the OSH Act;

(c) A declaration that the official policy or practice described in subsection 

(a) has placed Defendants’ administration of the North Carolina State Plan 

out of compliance with the stated terms of the Plan itself;

(d) A declaration that the official policy or practice described in subsection 

(a) is preempted by the OSH Act;

(e) A declaration that by maintaining the official policy or practice described 

in subsection (a), Defendants have violated ISG’s substantive due process 

rights under the Fourteenth Amendment;

(f) A declaration that by maintaining the official policy or practice described 

in subsection (a), Defendants have violated ISG’s procedural due process 

rights under the Fourteenth Amendment;

(g) A preliminary and permanent injunction prohibiting Defendants, their 

officers, agents, servants, employees, and attorneys, and those persons in 

active concert or participation with them who receive actual notice of the 

injunction from engaging in enforcement activities against ISG, including 

initiating or maintaining administrative proceedings;

(h) A preliminary and permanent injunction prohibiting Defendants, their 

officers, agents, servants, employees, and attorneys, and those persons in 

active concert or participation with them who receive actual notice of the 

injunction from engaging in enforcement activities against any employer that 

has been inspected or issued citations under the official policy or practice 

described in subsection (a), including issuing citations, prosecuting existing 

citations, or initiating or maintaining administrative proceedings.

J.A. 27.

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Defendants moved to dismiss and for judgment on the pleadings. Relevant to this 

appeal, they asserted that ISG’s suit is barred because ISG’s claims in effect seek suit 

against the state agency, which is protected by Eleventh Amendment immunity. On 

January 7, 2022, a magistrate judge issued a Report & Recommendation (“R&R”) that 

recommended denying both motions. In relevant part, the magistrate rejected Defendants’

Eleventh Amendment argument because it determined that ISG’s suit fell squarely within 

the parameters of the Ex Parte Young exception.

In parallel proceedings, ISG pursued dismissal or stay of the issued citations with the 

North Carolina Occupational Safety and Health Review Commission (“NC OSHRC”) on 

August 13, 2021, arguing that Dobson lacked “the legal authority to institute and prosecute 

this administrative action.” J.A. 700. In denying ISG’s motions, the NC OSHRC Hearing 

Examiner concluded that § 657(h) is not an OSH Act standard that states are required to 

enforce and, further, that there is no statutory or regulatory support for treating the provision 

as a requirement under the State Plan. The Hearing Examiner also upheld several itemized 

citations and dismissed one. Finally, the decision left open the opportunity for either party 

to “raise the issue of staying these proceedings again, should a decision issue from the federal 

court which suggests that further consideration is appropriate.” J.A. 710.

After the parties filed timely objections and responses, the district court accepted 

the magistrate’s R&R, affirming denial of the motions. From that decision, Defendants 

filed this interlocutory appeal. See Litman v. George Mason Univ., 186 F.3d 544, 548 (4th 

Cir. 1999) (demonstrating this Court’s authority to hear, on interlocutory appeal, a district 

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court’s order denying Eleventh Amendment immunity). Thus, we have jurisdiction to hear 

Defendants’ interlocutory appeal.

II.

We review the grant or denial of a motion to dismiss de novo. See Benjamin v. 

Sparks, 986 F.3d 332, 351 (4th Cir. 2021). That includes “a district court’s legal 

determination of whether Ex Parte Young relief is available,” which is an “immediately 

appealable” issue. Franks v. Ross, 313 F.3d 184, 192–93 (4th Cir. 2002); Antrican v. 

Odom, 290 F.3d 178, 184 (4th Cir. 2002). We similarly review motions for Rule 12(c)

judgment on the pleadings de novo. Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009).

III.

Defendants challenge the district court’s conclusion that ISG’s suit satisfies the 

parameters of the Ex Parte Young exception, which denies Defendants Eleventh 

Amendment immunity protection and allows ISG’s claims to proceed. Defendants also 

argue—for the first time on appeal—that: (1) ISG lacks Article III standing and (2) the 

abstention doctrine (without indicating which specific abstention doctrine) bars federal 

courts from hearing this case because it is also being actively litigated in state proceedings. 

In response, ISG argues that Defendants have implicitly requested this court’s discretion 

to exercise pendent appellate jurisdiction over their newly raised issues. ISG urges us to

decline that invitation and to affirm the district court’s decision denying Eleventh 

Amendment immunity.

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We agree with ISG on both scores. Taking each argument in turn, we first address 

Defendants’ Ex Parte Young argument and hold that the district court correctly denied them 

Eleventh Amendment immunity. We then explain why we decline to exercise pendent 

appellate jurisdiction over Defendants’ standing and abstention arguments.

A.

Turning to the most fundamental issue, we consider whether ISG’s suit falls within 

the Ex Parte Young exception, thereby placing Defendants beyond the Eleventh 

Amendment’s ambit.

1.

The Eleventh Amendment prohibits “any suit in law or equity, commenced or 

prosecuted against one of the United States by Citizens of another State, or by Citizens or 

Subjects of any Foreign State.” U.S. Const. amend. XI. Thisimmunity “has been judicially 

interpreted to run as well to actions by a state’s own citizens, by [Native American] tribes, 

and . . . by foreign states.” Republic of Paraguay v. Allen, 134 F.3d 622, 627 (4th Cir. 

1998) (internal citations omitted). It not only precludes suits against states as named parties 

but also against state agents or officials “that are in fact actions against the state as the real 

party in interest.” Id.

In Ex Parte Young, the Supreme Court devised an exception to Eleventh Amendment 

immunity for suits brought against state officials. See id.; Ex Parte Young, 209 U.S. 123, 160 

(1908). State officers or agents acting in violation of the Constitution are “stripped of [their] 

official or representative character and [are] subjected in [their] person to the consequences 

of [their] individual conduct.” Id. Thus, this exception “allows private citizens, in proper 

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cases, to petition a federal court to enjoin State officials in their official capacities from 

engaging in future conduct that would violate the Constitution or a federal statute.” Antrican, 

290 F.3d at 184. To satisfy this exception, “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 (2002) (cleaned up); see also Allen, 134 F.3d at 627. Taking ISG’s Complaint at 

face value, we find that this suit falls well within Ex Parte Young’s bounds.

2.

As stated, the magistrate judge briefly determined that because ISG sued Defendants 

in their official capacity and the declaratory and injunctive relief sought was prospective, 

“as to future actions NC OSHA may take against” the company, the suit appropriately met 

the Ex Parte Young exception, and Defendants were not entitled to Eleventh Amendment 

immunity. J.A. 728. On appeal, Defendants contend that the district court erred in failing 

to dismiss on Eleventh Amendment immunity grounds because NCDOL, and therefore the 

state of North Carolina (rather than the named Defendants) is the “real, substantial party in 

interest,” Ford Motor Co., 323 U.S. at 464; and ISG’s requested relief is retrospective in 

nature. 3

 Upon review, we reject these arguments.

At the outset, ISG’s Complaint properly alleges that Defendants’ supposed violation 

of the federal OSH Act is “ongoing” or “continuing.” Our Ex Parte Young inquiry “does 

3 Defendants also assert, and ISG does not deny, that NCDOL (and therefore North 

Carolina) did not waive its Eleventh Amendment immunity. And there is no indication in 

the record that North Carolina and NCDOL have waived sovereign immunity.

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not include an analysis of the merits of the claim.” Verizon, 535 U.S. at 646. Instead, 

“[t]he requirement that the violation of federal law be ongoing is satisfied when a state 

officer’s enforcement of an allegedly unconstitutional state law is threatened, even if the 

threat is not yet imminent.” McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010) 

(quoting Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 330 (4th Cir. 2001)). 

Stated differently, to qualify for the exception, ISG need not prove that Defendants’ alleged 

employee evaluation actions are an ongoing or continuing violation of the federal OSH 

Act. Rather, it is sufficient that ISG’s Complaint merely alleges the ongoing behavior. See 

Verizon, 535 U.S. at 645–46.

That is precisely what the Complaint achieves. ISG’s claims focus on the NC State 

Plan’s past and continuing violation of § 657(h), which prohibits consideration of the 

number of citations issued or penalties assessed, as well as the implementation of quotas 

or goals with regard to such, in the course of employment evaluations. ISG’s Complaint 

also alleges Dobson’s repeated admissions that NC OSHA’s compliance officers’ 

performance is based, in part, on the number of citations they issue. See, e.g., J.A. 12 

(“[A]dmitted, in that the number of citations issued are one of a number of factors 

considered when reviewing compliance officer performance.”); J.A. 15 (“Complainant 

does admit that inspectors are reviewed as required by law annually which consider the 

performance of the inspector including . . . the number of inspections opened and closed, 

the number of citations issued and upheld.”). Therefore, we conclude that ISG properly 

alleges an ongoing or continuing violation of federal law.

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3.

Moreover, the relief ISG requests is prospective in nature. Without explanation, 

Defendants urge us to view ISG’s prayers for relief as a wolf in sheep’s clothing: an 

attempt to attain “retrospective relief in the form of rescission of its citations.” Opening 

Br. at 22. We do not accept this notion.

ISG’s two injunctive requests are quintessential examples of prospective injunctive 

relief not barred by Eleventh Amendment immunity. See Ex Parte Young, 209 U.S. at 

159–60. Their injunctive claims ask to prohibit Defendants “from engaging in enforcement 

activities against ISG, including initiating or maintaining administrative proceedings” and 

“from engaging in enforcement activities against any employer that has been inspected or 

issued citations under the official policy or practice . . . including issuing citations, 

prosecuting existing citations, or initiating or maintaining administrative proceedings.” 

J.A. 27–28. To the extent that portions of the requested injunctive relief have 

“retrospective” characteristics, that concern is easily addressed by our precedent.

Specifically, we look to CSX Transp., Inc. v. Bd. of Public Works of State of West 

Virginia, 138 F.3d 537 (4th Cir. 1998) for guidance. There, the district court concluded 

that an injunction against future tax collection from West Virginia’s Board of Public Works 

(“Board”) requested retrospective relief, and was therefore “improper under Ex parte 

Young, once the amount of the taxes had been assessed.” Id. at 540. The district court 

reasoned that the plaintiffs’ requested injunction would “hold invalid and change the past 

assessment,” making it a retrospective order due to the fact that the amount to be collected 

had already been decided. Id. at 541 (cleaned up). On appeal, however, we rejected the 

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district court’s conclusion because it would foreclose any injunction “pursuant to Ex parte 

Young if the action to be enjoined had already been decided upon by a state official.” Id.

at 542. Because plaintiffs in those circumstances “have no way to know that they must sue 

to enjoin an official’s action until after the official has decided to take that action,” we held 

that “[a]n injunction against the future collection of the illegal taxes, even those that already 

have been assessed, is prospective, and therefore available under the Ex parte Young

doctrine.” Id. at 541–42.

This case is on all fours with CSX. ISG’s Complaint indicates that Defendants have 

issued multiple citations against the company following the on-site death of two of their 

employees. We do not take the tragic facts underlying these citations lightly. However, 

our review finds that, like the plaintiff in CSX, ISG seeks relief that would prohibit 

Defendants from any additional or future allegedly unlawful actions. That is, ISG’s 

Complaint does not seek to expunge their past citations,4 but rather to preclude Defendants 

from continuing their alleged illegal policies or practices (which ISG likely could not have 

discovered until after the citations were issued) that they believe are in violation of the 

federal OSH Act. See Coakley v. Welch, 877 F.3d 304, 305 (4th Cir. 1989) (affirming 

district court’s decision denying state official Eleventh Amendment immunity where 

plaintiff alleged state official had violated their due process rights and sought injunctive 

relief ordering reinstatement to their job, based on conclusion that termination was an 

ongoing harm preventing the plaintiff from obtaining the benefits of employment). Even 

4 This course of relief, however, is actively being pursued in state proceedings. See

supra note 3.

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assuming that ISG’s requested relief relies on Defendants’ previous allegedly unlawful 

actions, the true “essence,” see Allen, 134 F.3d at 628, of the relief is prospective.

In sum, ISG’s prayers for relief are not retrospective, as Defendants claim, but 

properly prospective, and satisfy the second piece to the Ex Parte Young exception.

4.

Finally, Defendants insist that NCDOL, and therefore the state of North Carolina, 

is the true party in interest. Not so.

Courts find that “the state is the real, substantial party in interest” when the “relief 

sought nominally against an officer is in fact against the sovereign if the decree would 

operate against the latter.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 

(1984) (quoting Hawaii v. Gordon, 373 U.S. 57, 58 (1963)). Here, ISG’s Complaint alleges 

that the NC State Plan has and continues to violate the OSH Act. It also claims that Dobson 

and Beauregard, who in their official capacities are responsible for overseeing NCDOL’s 

implementation of the NC State Plan and its conformity with federal law, are accountable 

for the unlawful employee evaluation practices. Relying on that, the Complaint does not 

seek action by North Carolina, but rather, by the named Defendants who are at the helm of 

the NC State Plan’s operation. Thus, Dobson and Beauregard were properly named as such 

in this suit. See D.T.M. ex rel. McCartney v. Cansler, 382 F. App’x. 334, 338 (4th Cir. 

2010) (concluding that Secretary of North Carolina’s Medicaid program was not entitled 

to Eleventh Amendment immunity because he, in his official capacity, was the “person 

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responsible for assuring that the agency’s decision compl[ies] with federal law”)

(unpublished).5

B. 

Given that Defendants are not entitled to Eleventh Amendment Immunity, we now 

address whether we should exercise pendent appellate jurisdiction over Defendants’ 

freshly-raised standing and abstention claims. We decline to do so. 

1. 

Our “appellate jurisdiction is limited to final orders from the district courts.” Rux 

v. Republic of Sudan, 461 F.3d 461, 474 (4th Cir. 2006). Importantly, however, the 

collateral order doctrine creates an exception to that rule for claims involving Eleventh 

Amendment immunity. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 

U.S. 139, 144 (1993). On the other hand, the collateral order doctrine does not provide us 

with appellate jurisdiction over Defendants’ standing and abstention claims. Therefore, 

we must determine whether we have “pendent appellate jurisdiction, a judicially-created, 

discretionary exception to the final judgment requirement,” over those new arguments. 

Rux, 461 F.3d at 475. 

Intended to be “of limited and narrow application driven by considerations of need, 

rather than of efficiency,” this exception allows appellate courts to review issues that are 

not otherwise subject to immediate appeal when such issues “are so interconnected with 

5

 Defendants briefly cite to our recent holding in Cunningham v. Lester, 990 F.3d 

361 (4th Cir. 2021), for further support. However, because Cunningham does not analyze 

the Ex Parte Young exception—which is the integral issue before us today—it is 

unnecessary to address here. 

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immediately appealable issues that they warrant concurrent review.” Id. Pendent appellate 

jurisdiction is exclusively available “(1) when an issue is ‘inextricably intertwined’ with a 

question that is the proper subject of an immediate appeal; or (2) when review of a 

jurisdictionally insufficient issue is ‘necessary to ensure meaningful review’ of an 

immediately appealable issue.” Id. at 475 (quoting Swint v. Chambers Cnty. Comm’n, 514 

U.S. 35 50–51 (1995)). 

“Two separate rulings are ‘inextricably intertwined’ if ‘the same specific question 

will underlie both the appealable and the non-appealable order, such that resolution of the 

question will necessarily resolve the appeals from both orders at once.’” Scott v. Fam. 

Dollar Stores, Inc., 733 F.3d 105, 111 (4th Cir. 2013) (quoting Ealy v. Pinkerton Gov. 

Servs., Inc., 514 F. App’x 299, 309 (4th Cir. 2013) (per curiam, unpublished)). Moreover, 

“review of a pendent issue will be necessary to ensure meaningful review of an 

immediately appealable issue if resolution of the pendent issue is necessary, or essential in 

resolving the immediately appealable issue.” Ealy, 514 F. App’x at 309 (internal 

quotations omitted). 

Because a district court’s denial of a motion to dismiss on Eleventh Amendment 

immunity grounds is immediately appealable, see Metcalf & Eddy, 506 U.S. at 147, our 

consideration of Defendants’ standing and abstention arguments thus hinges on whether 

those issues are “inextricably intertwined” with or “necessary to ensure meaningful review 

of” the Eleventh Amendment immunity claim. See Rux, 461 F.3d at 476. Because we find 

that they are not, we cannot exercise pendent appellate jurisdiction over those claims. 

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2.

We begin with Defendants’ new standing claim. Standing is the “irreducible 

constitutional minimum” required to make “Cases” or “Controversies” justiciable under 

Article III, § 2 of the Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992). It is axiomatic that standing is a threshold jurisdictional issue that must be 

determined before a court can consider the merits of a case. See Steel Co. v. Citizens for a 

Better Env’t, 523 U.S. 83, 88 (1998). But while standing is a vital threshold issue, it is not 

an essential prerequisite to determining the other jurisdictional, immediately appealable

claim in this case: Eleventh Amendment immunity.

The Supreme Court has long recognized that passage of the Eleventh Amendment 

highlights “the fundamental principle of sovereign immunity [which] limits the grant of 

judicial authority in Art. III.” Pennhurst, 465 U.S. at 97. Absent unequivocal expression of 

consent from a state, this immunity bars citizens from bringing suits against it, id. at 99, and 

also its officials if, upon further analysis, the suits truly seek to establish “the state as the real 

party in interest,” Allen, 134 F.3d at 627. Thus, like standing, Eleventh Amendment 

immunity presents a jurisdictional question that may bar a suit from advancing to the merits. 

See Edelman v. Jordan, 415 U.S. 651, 678 (1974) (holding that “it has been well settled . . . 

that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional 

bar.”); Pearson v. Callahan, 555 U.S. 223, 231 (2009) (holding that Eleventh Amendment 

immunity is “an immunity from suit rather than a mere defense to liability.”).

With that in mind, Defendants’ standing assertion is not so “inextricably 

intertwined” with their Eleventh Amendment immunity claim because resolution of the 

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former does not underlie or necessarily resolve the latter. The immediately appealable 

Eleventh Amendment immunity issue asks us to determine whether this suit falls within 

the parameters of the Ex Parte Young exception, thereby barring Defendants from 

immunity. As discussed above, that analysis required our inquiry into the form of the relief 

requested. That analysis in turn required us to determine whether the relief sought was 

prospective or retrospective, as well as whether ISG sufficiently alleged that Defendants’ 

unlawful conduct was ongoing.

Defendants’ pendent standing argument, on the other hand, would require us to 

undertake an entirely irrelevant inquiry. For instance, under the standing doctrine’s “injury 

in fact” prong, this Court would examine whether ISG suffered a “concrete and 

particularized” and “actual and imminent” injury, Lujan, 504 U.S. at 560, by Defendants. 

This prong alone would require a fact-intensive analysis that bears on considerations not 

relevant to the Eleventh Amendment immunity claim, such as whether the violations, fines, 

and penalties Defendants issued to ISG caused the company harm. See Sierra Nat. Ins. 

Holdings, Inc. v. Credit Lyonnais S.A., 64 F. App’x 6, 7 n.1 (9th Cir. 2003) (declining to 

exercise pendent appellate jurisdiction, in part, over a “quite fact-dependent” standing issue

in an interlocutory appeal stemming from a district court’s denial of state immunity 

protection) (unpublished). Where Defendants’ standing argument asks us to grapple with 

such questions, the Eleventh Amendment immunity claim does not. See Moniz v. City of Fort 

Lauderdale, 145 F.3d 1278, 1281 n.3 (11th Cir. 1998) (declining to exercise pendent appellate 

jurisdiction over a newly raised standing claim on appeal because the Court could “resolve 

the qualified immunity [immediately appealable] issue . . . without reaching the merits of 

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appellants’ challenge to . . . standing.”). Thus, the standing argument does not rest on the 

“same specific question” that “will necessarily resolve” or would be necessary to review the 

Eleventh Amendment immunity issue. Ealy, 514 F. App’x at 309 (emphasis added).

For similar reasons, the standing analysis is not “necessary to ensure meaningful 

review of” Defendants’ Eleventh Amendment claim. Id. While a standing analysis could

foreclose the need to address the immunity defense if ISG does indeed lack standing, that 

is not the pendent jurisdiction test. We therefore hold that we do not have jurisdiction over

the pendent standing issue.

3.

We are, also, unpersuaded by Defendants’ pendent abstention argument. The

abstention doctrine articulated in Younger v. Harris, 401 U.S. 37 (1971), compels federal 

courts to refrain from exercising jurisdiction over state proceedings if there is (1) “an 

ongoing state judicial proceeding, instituted prior to any substantial progress in the federal 

proceeding,” (2) that “implicates important, substantial, or vital state interests,” and (3) 

“provides an adequate opportunity for the plaintiff to raise the federal constitutional claim 

advanced in the federal lawsuit.” Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 165 

(4th Cir. 2008). Specifically, Defendants insist that the district court must abstain from 

hearing this case because it stems from the same set of circumstances and seeks some of 

the same relief; and the state-court decision, which is being actively litigated, would 

ultimately decide the validity of the citations issued.

We fail to see how the pendent abstention issue is “inextricably intertwined” with 

the immediately appealable issue here. Defendants’ abstention claim asks us to consider 

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whether the district court should refrain from hearing the case, given the ongoing nature of 

the state proceedings and both cases’ foundation in the same set of facts. But answering 

this question will have no bearing on how we resolve Defendants’ Eleventh Amendment 

claim. In other words, this is not the same specific question as the underlying, appealable 

immunity question discussed above. Nor is it necessary to review the doctrine of abstention 

to resolve the immunity defense properly before this Court. Hence, we will not decide this 

adjoining pendent issue.6

****

Defendants’ standing and abstention arguments may be meritorious, but they are not 

sufficiently related to the Eleventh Amendment claim before us. Accordingly, we are 

without jurisdiction to review them.

IV.

For the preceding reasons, we decline to exercise pendent appellate jurisdiction over 

Defendants’ standing and abstention arguments. We also agree with the district court and

conclude that Defendants are not protected by Eleventh Amendment immunity because 

ISG’s suit fits squarely within the Ex Parte Young exception. Thus, ISG may proceed with 

the merits of its claims below. We, therefore,

AFFIRM.

6 ISG also argues that Defendants’ standing and abstention arguments are not 

properly before this Court as they were not raised below. However, because we have 

determined that we cannot hear these claims based on our lack of pendent appellate

jurisdiction over them, we need not address this argument.

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