Smith et al v. Commonwealth of Kentucky et al
Order and Opinion: Consistent with the attached opinion, the Court grants Defendants' second motion to dismiss (DN 10 ) and denies Defendants' first motion to dismiss as moot (DN 6 ). cc: Counsel (JM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
STEPHANIE LOGSDON SMITH, ET AL.
COMMONWEALTH OF KENTUCKY
OPINION & ORDER
Stephanie Logsdon Smith, Bridgett Dennis, and Cammie Musinski (through
her estate) allege that a state probation officer repeatedly sexually abused them while
his supervisor concealed a complaint about the officer’s behavior. Both lost their state
jobs for this conduct, and the probation officer faces related criminal charges.
Understandably, the victims want justice and compensation. But they filed
this lawsuit against the Commonwealth of Kentucky and the Governor, not the
probation officer or his supervisor. The Complaint seeks $30 million in compensatory
damages and $90 million in punitive damages under 42 U.S.C. § 1983 for violations
of the U.S. Constitution’s Thirteenth Amendment, which abolished slavery and
involuntary servitude. DN 1 at ¶¶ 1, 5, 6, 20, 111, 116.
The Defendants moved to dismiss based on the Commonwealth’s sovereign
immunity and because “neither a State nor its officials acting in their official
capacities are ‘persons’ under § 1983.” DN 6 at 3 (quoting Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989)). In response, Plaintiffs amended their complaint (DN
7) to eliminate its reliance on § 1983 and drop their claim against the Governor. DN
7; First Opp. Br. (DN 8) at 2. But this created a new problem: What is the cause of
action against the Commonwealth? And why would it overcome state sovereign
immunity? See Second Motion to Dismiss (DN 10) at 4–5.
All the answers, Plaintiffs say, may be found within the Thirteenth
Amendment itself. According to their second opposition brief, the constitutional text
both creates a cause of action for damages and abrogates sovereign immunity. DN 11
at 3, 9, 13. Because neither contention is correct, the Court must dismiss this lawsuit.
A. The Thirteenth Amendment does not provide a cause of action
Plaintiffs may not bring a civil lawsuit for any and all perceived violations of
the law. They must have a “legal entitlement to sue,” also known as a cause of action,
which depends on “some legal authority (e.g., a statute) that allows the plaintiff to
come into court in the first place.” Samuel L. Bray & Paul B. Miller, Getting Into
Equity, 97 NOTRE DAME L. REV. at 10 (forthcoming 2022) (Oct. 28, 2021 draft); see
Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Typically, a cause of action must
come from some legal source that creates a private remedy. See Alexander, 532 U.S.
at 286. While courts in prior decades have interpreted several legal provisions to
imply the existence of a cause of action, the Supreme Court has cautioned against
inferring new causes of action unless Congress’ intent to create a private remedy is
clear from the text and structure of the law. See id. 288. The same holds true, only
more so, for causes of action based on the text of the Constitution alone. See Ziglar
v. Abbasi, 137 S. Ct. 1843, 1855–56 (2017).
Yet Plaintiffs root their legal right to sue the Commonwealth in § 1 of the
Thirteenth Amendment itself, relying on precedent, text, and context. Each
argument, however, ultimately reflects the absence of a direct cause of action.
1. Precedent. Plaintiffs describe this as “a case of first impression,” Second
Opp. Br. (DN 11) at 1, asserting that no reported opinion has held that a citizen
cannot sue a state directly for damages “in federal court for violation of the
prohibition against involuntary sexual servitude of U.S. Const. amend. XIII,” First
Opp. Br. (DN 8) at 3. Perhaps not, when the question is framed in that very particular
way. Although the Sixth Circuit has, as the Commonwealth emphasizes, “long held
that § 1983 provides the exclusive remedy for constitutional violations,” at least
concerning damages for the violation of rights protected by the Fourteenth
Amendment. Second Motion to Dismiss (DN 10) at 4 (quoting Foster v. Michigan, 573
F. App’x 377, 391 (6th Cir. 2014)). And other courts have rejected the notion that the
Thirteenth Amendment created a cause of action for damages to remedy involuntary
servitude. See Beauregard v. Lewis Cnty., 329 F. App’x 710, 712 (9th Cir. 2009)
(neither the Thirteenth nor Fourteenth Amendments directly create a cause of action
for damages); Gomez v. Kern, 2012 WL 1069186, at *2 (S.D. Fla. Mar. 29, 2012) (“[T]he
Thirteenth Amendment, by itself, does not provide a private cause of action” for
involuntary servitude; rather, “a plaintiff must proceed under one of the Thirteenth
Amendment's implementing statutes.”) (collecting cases). As Plaintiffs acknowledge,
no caselaw recognizes a damages cause of action that is express or implied in the
Thirteenth Amendment. Second Opp. Br. (DN 11) at 1.
Despite the lack of contemporary precedent applying a constitutional damages
remedy, Plaintiffs contend that the Supreme Court’s 1883 decision in the Civil Rights
Cases recognized that the Thirteenth Amendment was “undoubtedly self-executing”
in establishing a cause of action, even “without any ancillary legislation” from
Congress implementing the Amendment’s prohibitions. Second Opp. Br. at 3 (quoting
109 U.S. 3, 20). “By its own unaided force,” Plaintiffs explain, the Amendment
“abolished slavery, and established universal freedom.” Id. at 20 (quoting 109 U.S.
at 20–21). But Plaintiffs’ invocation of the Civil Rights Cases—not generally
remembered for a broad embrace of private civil-rights enforcement, cf. 109 U.S. at
61–62 (Harlan J., dissenting)—likewise says nothing about private damages. And
reading the passage on which Plaintiffs rely in its fuller context undermines
Plaintiffs’ interpretation of the Thirteenth Amendment to directly authorize federal
courts to hear damages suits, without the need for any further legislative action:
This amendment, as well as the Fourteenth, is
undoubtedly self-executing without any ancillary
legislation, so far as its terms are applicable to any existing
state of circumstances. By its own unaided force it
abolished slavery, and established universal freedom.
Still, legislation may be necessary and proper to meet all
the various cases and circumstances to be affected by it,
and to prescribe proper modes of redress for its violation in
letter or spirit. And such legislation may be primary and
direct in its character; for the amendment is not a mere
prohibition of State laws establishing or upholding slavery,
but an absolute declaration that slavery or involuntary
servitude shall not exist in any part of the United States.
It is true that slavery cannot exist without law any more
than property in lands and goods can exist without law,
and therefore the Thirteenth Amendment may be regarded
as nullifying all State laws which establish or uphold
slavery. But it has a reflex character also, establishing and
decreeing universal civil and political freedom throughout
the United States; and it is assumed that the power vested
in Congress to enforce the article by appropriate legislation,
clothes Congress with power to pass all laws necessary and
proper for abolishing all badges and incidents of slavery.
Civil Rights Cases, 109 U.S. at 20–21 (emphases added).
This passage makes plain the critical distinction between the Amendment’s
two sections, echoed in the separate roles for courts and Congress, all of which reveals
even greater flaws in Plaintiffs’ position.
2. The Text of the Thirteenth Amendment. Enacted in the aftermath of
the Civil War, the Amendment eradicated the great evil of slavery in America.
Section 1 proclaims that “[n]either slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted, shall exist
within the United States, or any place subject to their jurisdiction.” This prohibits
slavery; it says nothing about private plaintiffs suing for damages if public actors
violate that prohibition. Crucially, § 2 adds that “Congress shall have power to
enforce this article by appropriate legislation.” By adverting to Congress, rather than
the courts, § 2 moves even further from Plaintiffs’ desired inference that the framers
and ratifiers of the Thirteenth Amendment directly created a cause of action for
True, the Amendment does have a self-executing effect. But that effect is to
nullify contrary state laws, not to create damages actions. As the Civil Rights Cases
recognized, “the Thirteenth Amendment may be regarded as nullifying all State laws
which establish or uphold slavery.” 109 U.S. at 20. If someone was still held in
slavery after 1865, for example, he or she could assert rights under the Thirteenth
Amendment in a suit to shield the plaintiff from a state slavery law that might’ve
otherwise authorized servitude. Id. at 20–21. Nothing indicates that plaintiff had a
claim for damages based solely in the federal constitution, however; a right to sue
historically rooted in equity or habeas, for example, would’ve been a more natural fit.
As one of Plaintiffs’ cited cases illustrates, a plaintiff could seek a writ of habeas
ordering release from slavery under the Thirteenth Amendment. See In re Sah Quah,
31 F. 327, 330–31 (D. Alaska 1886) (utilizing habeas remedy to free an escaped slave
from bondage imposed by a fellow member of an Indian tribe).1
Yet Plaintiffs do not allege that any state law violates the Thirteenth
Amendment. Nor do they rely on a traditional claim—rooted in common law, equity,
or habeas—to overcome state action that violates the Thirteenth Amendment.
Instead, they seek damages against the state due to a state employee’s past sexual
abuse. But damages are a legal remedy that operates retrospectively; this species of
relief typically requires a statutory or common-law cause of action. See Mertens v.
Hewitt Assocs., 508 U.S. 248, 255 (1993) (“Money damages are, of course, the classic
form of legal relief.”); see also Curtis v. Loether, 415 U.S. 189, 195–96 (1974); Elhady
v. Unidentified CBP Agents, No. 20-1339, Slip Op. at 4 (6th Cir. Nov. 19, 2021)
(creating causes of action is a “quintessentially legislative choice”). Plaintiffs point
to no such cause of action under the Thirteenth Amendment that allows them to come
into court to redress a past harm with a damages award. Rather, they ask this Court
Plaintiffs’ focus on a damages remedy for constitutional violations almost entirely
overlooks the primary role played by these other fonts of judicial relief. After all, “[t]he ability
to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts
of equity, and reflects a long history of judicial review of illegal executive action, tracing back
to England.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015) (“What our
cases demonstrate is that, in a proper case, relief may be given in a court of equity to prevent
an injurious act by a public officer.”) (quotation omitted). See also Ziglar, 137 S. Ct. at 1862–
63 (damages not available for constitutional violations if “injunctive relief” and the “writ of
habeas” are). And a plaintiff could sue a state official to enjoin the enforcement of a slavery
law under Ex Parte Young, which recognized an equitable cause of action (of sorts) to enjoin
constitutional violations. See 209 U.S. 123, 149 (1908); Green Valley Special Util. Dist. v.
City of Schertz, 969 F.3d 460, 475 (5th Cir. 2020) (en banc) (concluding that Ex Parte Young
created an equitable cause of action). Although to this day scholars and judges continue to
debate whether the equitable source of and justifications for Ex Parte Young reflect a longstanding equitable action known as an anti-suit injunction, see John Harrison, Ex Parte
Young, 60 STAN. L. REV. 989, 997–99, 1014–18 (2008); Mich. Corr. Org. v. Mich. Dep’t of Corr.,
774 F.3d 895, 905–06 (6th Cir. 2014), or rather a natural evolution of historical equitable
jurisdiction, see generally James E. Pfander, Jacob P. Wentzel, The Common Law Origins of
Ex Parte Young, 72 STAN. L. REV. 1269 (2020).
to infer that such a cause of action inheres in the text and history of the Thirteenth
Doing so, however, would completely ignore the Amendment’s second section:
“Congress shall have power to enforce this article by appropriate legislation.” The
very passage from the Civil Rights Cases on which Plaintiffs rely most heavily makes
clear that the Amendment assigns Congress—not courts—principal authority “to
prescribe proper modes of redress,” beyond the invalidation of state slavery laws,
through “legislation [that] may be necessary and proper.” 109 U.S. at 20–21
(discussing Amend. XIII § 2). In other words, the Amendment’s first section nullifies
state slavery laws, while the “reflex character” of its second section authorizes
Congress to “enforce” freedom from slavery through legislation. Id. at 20.
Many courts have recognized that Congress’ authority under § 2 allows it to
provide “proper modes of redress,” which could include creating damages actions. See
id. In Jones v. Alfred H. Mayer Co., the Supreme Court rejected a constitutional
challenge to a statutory remedy for race-based housing discrimination,
acknowledging that the Thirteenth Amendment itself “abolished slavery,” while
granting Congress “power to pass all laws necessary and proper for abolishing all
badges and incidents of slavery.” 392 U.S. 409, 439 (1968). See also Griffin v.
Breckenridge, 403 U.S. 88, 95 (1971) (Section 2 of the Thirteenth Amendment
invested Congress with authority to create a damages action based on private
conspiracy to violate civil rights).
Plaintiffs argue that § 2 is limited to regulating the “badges and incidents of
slavery,” not direct acts of slavery like the ones they allege happened in this case.
Second Opp. Br. at 3 (quoting Channer v. Hall, 112 F.3d 214, 217 n.5 (5th Cir. 1997)
(suggesting in dicta that § 2 is limited to causes of action to redress the badges of
slavery)). It is true that the Supreme Court has long held that § 2 authorizes
Congress to legislate concerning the badges and incidents of slavery. See Civil Rights
Cases, 109 U.S. at 20. But Plaintiffs offer no authority supplying a precise definition
of the “badges and incidents of slavery” that would exclude the facts of this case from
Congress’ reach. Cf. Jones, 392 U.S. at 438–44 (interpreting the scope of the
Thirteenth Amendment to reach “badges and incidents of slavery” such as private
housing discrimination); Jennifer Mason McAward, Defining the Badges and
Incidents of Slavery, 14 U. PA. J. CONST. L. 561, 605–06 (2012) (arguing Congress has
primary authority for defining and regulating the badges and incidents of slavery).
Nor do Plaintiffs offer any support for the notion that Congress may only
legislate concerning the badges and incidents of slavery, and not slavery itself, or that
(even if true) this would imply a direct cause of action for actual slavery. Indeed,
Congress has used its § 2 authority to criminalize instances of slavery and peonage.
See, e.g., Anti-Peonage Act of 1867 (outlawing, 18 U.S.C. § 1994, and criminalizing,
18 U.S.C. § 1581, a type of debt slavery common in New Mexico); United States v.
Kozminski, 487 U.S. 931, 945 (1988) (18 U.S.C. § 1584, enacted under § 2, provided
criminal punishments for knowingly and willfully holding another “to involuntary
servitude” as described in § 1); United States v. Roof, 10 F.4th 314, 394–95 (4th Cir.
2021) (Hates Crimes Act, 18 U.S.C. § 249(a)(1), recognized as valid application of
Congress’ § 2 authority).
Indeed, Congress has used its authority under § 2 to create private remedies
for harms similar to those alleged in this case: imposing badges of slavery and holding
someone in involuntary servitude. And courts have upheld the exercise of this
authority. See, e.g., Runyon v. McCrary, 427 U.S. 160, 179 (1976) (damages for
private conduct, under § 1981a, was validly enacted under Congress’ § 2 authority).
One statute enacted under § 2 appears even more directly applicable. The Victims of
Trafficking and Violence Protection Act of 2000 criminalized—and made privately
enforceable through damages actions—acts of peonage, slavery, involuntary
servitude, and forced labor. See TVPA, Pub. L. No. 106-386, § 102(b)(1), (12)–(13),
(22) (codified at 18 U.S.C. §§ 1589–91); 18 U.S.C. § 1595(a) (civil damages) (2003
amendments to TVPA). Courts have interpreted this law to cover some types of
repeated sexual abuse. See Ricchio v. McLean, 853 F.3d 553 (1st Cir. 2017) (Souter,
J.) (reversing dismissal of TVPA damages suit that alleged commercialized sexual
abuse); Noble v. Weinstein, 335 F. Supp. 3d 504, 515–17 (S.D.N.Y. 2018) (broadly
reading civil-remedy provision to apply to sex abuse). And some plaintiffs have
brought TVPA claims against employees working for a government entity. See
Bridges v. Poe, 487 F. Supp. 3d 1250, 1263 (N.D. Ala. 2020) (allowing civil claims
under TVPA against state jailers for sexual servitude); Roe v. Howard, 917 F.3d 229,
236 (4th Cir. 2019) (upholding application of civil remedy to sexual abuse by
government employee serving overseas); Gonzalez v. CoreCivic, Inc., 986 F.3d 536,
537 (5th Cir. 2021) (upholding application of civil remedy against private facility
detaining immigrants on behalf of the federal government).
So Congress has used § 2 to target both the badges and incidents of slavery
and slavery itself with criminal and civil remedies, including damages. And while
courts may rely on § 1 alone to enjoin contrary state laws, a damages remedy would
require an act of Congress. See Alma Soc. Inc. v. Mellon, 601 F.2d 1225, 1237 (2d Cir.
1979) (“Notwithstanding Congress’s broad authority to legislate under § 2 of the
Amendment, the [Supreme] Court has directly invoked the Amendment only to strike
down state laws imposing the condition of peonage.” (internal citations omitted)). As
the Ninth Circuit aptly put it, “[r]egardless of whether the text of the Thirteenth
Amendment itself admits of the self-enforcing construction that [Plaintiff] attaches
to it, she cannot possibly assert a right to damages on account of it.” Cato v. United
States, 70 F.3d 1103, 1110 (9th Cir. 1995).
At this late date, few justifications remain for recognizing the Bivens-style
remedy that Plaintiffs effectively request. See Abbasi, 137 S. Ct. at 1857 (“expanding
the Bivens remedy is now a ‘disfavored’ judicial activity”); Alexander, 532 U.S. at 286.
Much less a new Bivens-for-states variant. Even assuming these justifications did
exist, when—as here—Congress has made “alternative methods of relief … available,
a Bivens remedy usually is not.” Id. at 1863. Congress’ remedies needn’t be “perfectly
congruent” nor “provide complete relief” to militate against judge-made remedies,
Minneci v. Pollard, 565 U.S. 118, 129 (2012), particularly given the inherent
separation-of-powers, federalism, and “risk of interference” concerns that Plaintiffs’
novel theory raises, Callahan v. Fed. Bureau of Prisons, 965 F.3d 520, 524 (6th Cir.
2020). Nothing indicates that the express civil-damages provisions enacted as part
of statutes authorized by § 2 were redundant with the sort of implied cause of action
Plaintiffs perceive in § 1 of the Thirteenth Amendment itself.
3. The Neighboring Fourteenth Amendment. Plaintiffs spill plenty of ink
over the inferences that courts should and shouldn’t draw from extensive judicial
examination of congressional efforts to create statutory damages remedies against
state actors under the Fourteenth Amendment. But examining the limits of
Congress’ legislative authority under § 5 of the Fourteenth Amendment cuts against
Plaintiffs’ position: no caselaw cited by Plaintiff or known to this Court indicates that
the neighboring amendment contains a direct cause of action for damages, or that
any such hypothetical right would extend to the Thirteenth Amendment in any event.
The Supreme Court has compared the Thirteenth Amendment to the
Fourteenth, which it has described as “self-executing.” Civil Rights Cases, 109 U.S.
at 20–21. But as discussed above, see A.3, that just begs the question: what legal
rights does the constitutional text secure without the need for congressional action?
Not a cause of action for damages. An equitable remedy may be available, by contrast,
to enjoin an ongoing violation of the Equal Protection Clause even without
implementing legislation. See Papasan v. Allain, 478 U.S. 265, 282, n.14 (1986)
(citing Ex Parte Young, 209 U.S. 123, 126, 149 (1908), which affirmed an injunction
to enforce Fourteenth Amendment rights). But the Supreme Court has made crystal
clear that this right to enforce the Constitution against state actors extends only to
equitable “prospective” relief. Edelman v. Jordan, 415 U.S. 651, 664–66 (1974). For
retrospective damages, parties must rely on a statute to vindicate their Fourteenth
Amendment rights. See Fitzpatrick v. Bitzer, 427 U.S. 445, 447–48 (1976) (Title VII,
enacted under § 5 of the Fourteenth Amendment, authorized damages to remedy
state officials’ discriminatory actions). Most often, that statute is 42 U.S.C. § 1983,
which Plaintiffs disavowed in this case. See First Opp. Br. (DN 8) at 2; Richardson
v. City of S. Euclid, 904 F.2d 1050, 1052 (6th Cir. 1990) (“A state induced deprivation
of liberty can provide a valid basis for claiming section 1983 damages pursuant to the
In fact, Congress enacted § 1983 itself under the authority conferred by the
enforcement provision of the Fourteenth Amendment, authorizing parties to recover
damages for some state officials’ violations of their constitutional rights. See Monell
v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 685, n.45 (1978); Monroe v.
Pape, 365 U.S. 167, 171–72 (1961).2 And at least for rights protected by the
Fourteenth Amendment, several courts have said that § 1983 is the sole source of
authority for private plaintiffs to pursue damages against state actors. See, e.g.,
Foster v. Michigan, 573 F. App’x 377, 391 (6th Cir. 2014) (“To the extent that
Appellants attempt to assert direct constitutional claims, they fail; we have long held
that § 1983 provides the exclusive [damages] remedy for constitutional violations”);
Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (“[A]
litigant complaining of a constitutional right must utilize 42 U.S.C. § 1983.”); Sanders
v. Walmart Stores, Inc., 2016 WL 6246361, at *2 (W.D. Ky. Oct. 24, 2016) (same).
Ascribing a broader, “self-executing” damages remedy to the Thirteenth
Amendment, but not the Fourteenth, would make little sense. See Civil Rights Cases,
109 U.S. at 20–21. The Fourteenth Amendment required legislation to supply a cause
of action for damages. See Fitzpatrick, 427 U.S. at 447–48. Why wouldn’t the
Thirteenth? Nothing in its text implies a direct cause of action absent from the text
of the Fourteenth Amendment. Other Amendments bar government conduct with at
least equal clarity: “Congress shall pass no law … abridging the freedom of speech,”
for instance. U.S. CONST. amend. I § 1. Yet such amendments likewise create no
direct cause of action for damages. See, e.g., Bush v. Lucas, 462 U.S. 367, 390 (1983)
(rejecting Bivens cause of action for damages under the First Amendment in
deference to Congress’ choice of right and remedy, if any); Heffernan v. City of
Paterson, 578 U.S. 266 (2016) (resting First Amendment damages claim on
congressional authorization of enforcement suit under § 1983).
Given the lack of support in precedent, text, or context for recognizing a “selfexecuting” cause of action for damages under the Thirteenth Amendment, the Court
declines to concoct one now, and must dismiss Plaintiffs’ claim. The Thirteenth
Amendment nullified state slavery laws. That by itself was a good day’s work, but
the framers didn’t stop there. They authorized Congress—in § 2 of the Thirteenth
Amendment—to enact enforcement legislation. And Congress has repeatedly
exercised this authority. Neither text nor precedent empowers individual judges to
go further. That may strike Plaintiffs as a bug. But it is a critical feature of our
B. The Thirteenth Amendment does not abrogate sovereign
immunity against damages actions
Even if the Plaintiffs had a cause of action, Kentucky maintains its sovereign
immunity and asserts it here as a defense. Historically, a “sovereign could not be
Defendants also argue that Plaintiffs fail to state a claim against the Commonwealth
under Monell, 436 U.S. at 691, and that the claims are time barred. Since these arguments
address claims brought under § 1983, which the Plaintiffs no longer rely on, both points are
sued without its consent.” Alden v. Maine, 527 U.S. 706, 715–716 (1999). And the
Supreme Court has recognized that this longstanding doctrine, derived from the
common law and law of nations, bars even a suit by a citizen against his or her own
state. See Franchise Tax Bd. of California v. Hyatt, 139 S. Ct. 1485, 1496 (2019)
(citing Hans v. Louisiana, 134 U.S. 1, 18 (1890)). Unlike Eleventh Amendment
immunity proscribing suits against states by non-citizens, immunity against a suit
by a state’s own citizen may be waived by the state or abrogated by Congress. William
Baude & Stephen Sachs, The Misunderstood Eleventh Amendment, 169 U. PA. L. REV.
609, 611–14 (2021) (contrasting sovereign immunity’s historical framework with
current doctrine). Courts strictly construe both waiver and abrogation, requiring a
clear and unequivocal expression of intent by the state or Congress. Sossamon v.
Texas, 563 U.S. 277, 284–85 (2011) (waiver); Seminole Tribe of Fla. v. Fla., 517 U.S.
44, 55 (1996) (abrogation).
The Sixth Circuit has made clear that the Thirteenth Amendment did not
directly abrogate sovereign immunity. Foulks v. Ohio Department of Rehabilitation
& Correction held that 42 U.S.C. § 1981—enacted under enforcement authority
conferred by § 2 of the Thirteenth Amendment—lacked the “clear congressional
purpose” necessary to abrogate sovereign immunity. 713 F.2d 1229, 1233 (6th Cir.
1983); see Sheils v. Bucks Cnty. Domestic Rels. Section, 921 F. Supp. 2d 396, 405–06
(E.D. Pa. 2013). If the Thirteenth Amendment alone abrogated state sovereign
immunity, as Plaintiffs contend, then the Sixth Circuit wouldn’t have had any need
to even confront this question. And if even a statute enacted under the enforcement
provision of § 2 did not abrogate sovereign immunity, the likelihood that the text of
§ 1 did so on its own is vanishingly small.
Similarly, the D.C. Circuit has observed, in the context of tribal sovereignty,
that “[n]othing in § 1 of the Thirteenth Amendment so much as hints at a federal
court suit by a private party to enforce the prohibition against badges and incidents
of slavery ...” Vann v. Kempthorne, 534 F.3d 741, 748 (D.C. Cir. 2008) (sovereign
immunity barred a suit against a tribe for badges and incidents of slavery, though it
tolerated a suit against tribal officials under Ex Parte Young). While Congress
conceivably could abrogate sovereign immunity under § 2, consistent with the
Supreme Court’s precedents on this subject, the legislative branch has not seen fit to
do so. See id. Instead, when parties seek to overcome state sovereign immunity in
order to sue over a constitutional violation, they rely on Ex Parte Young to seek
prospective relief against the state official responsible for enforcing or implementing
the law in question. Id. at 749–50.
The Ninth Circuit has applied this logic outside of the badges-and-incidents
context, holding that even if § 1 created a direct cause of action concerning slavery,
this would not waive sovereign immunity against damages. Cato, 70 F.3d at 1110–
12 (upholding sovereign immunity of United States against claim for damages based
on history and consequences of slavery). As with Plaintiffs’ purported cause of action,
so too with sovereign immunity: they point to no statute in which Congress even
arguably abrogated sovereign immunity in cases like this. Instead they put all their
eggs in the basket of the Thirteenth Amendment—whose text and precedent cannot
bear that weight.
The framers did not abrogate state sovereign immunity against citizen suits
for damages. Plaintiffs’ contrary argument emphasizes that the Thirteenth
Amendment speaks directly to states, three-fourths of which had to consent to the
Amendment. So, in Plaintiffs’ view, the states must have also consented to waive
their immunity. That doesn’t follow—not as a matter of logic or interpretation: “the
13th Amendment names no party or authority, but simply forbids slavery and
involuntary servitude, grant[ing] to Congress power to enforce this prohibition by
appropriate legislation.” Clyatt v. United States, 197 U.S. 207, 216 (1905). “The
prohibitions of the 14th and 15th Amendments,” by contrast, “largely [address] the
acts of the states.” Id. Despite that textual hook, absent here, these amendments
don’t directly abrogate sovereign immunity; Congress still must use its enforcement
authority to clearly abrogate immunity. See Fitzpatrick, 427 U.S. 457. Not even
§ 1983 abrogates state sovereign immunity, despite its passage under the same
enforcement clause as Title VII. See Brent v. Wayne County Dep’t of Hum. Servs., 901
F.3d 656, 683 (6th Cir. 2018) (neither Due Process Clause nor § 1983 abrogates state
sovereign immunity). Instead, the statute allows suits only against state officials in
their personal capacities, precisely because courts have interpreted Congress not to
have unequivocally expressed its intent to abrogate the states’ immunity. See Quern
v. Jordan, 440 U.S. 332, 342 (1979).
Plaintiffs point to the Constitution’s Bankruptcy Clause, which does directly
abrogate immunity without the need for legislative action. The Clause does so, the
Supreme Court recently explained, because it rests “on a different plane, governed by
principles all its own.” Allen v. Cooper, 140 S. Ct. 994, 1002–03 (2020). If true for
bankruptcy, Plaintiffs’ ask, why not slavery? The answer is that abrogation of
immunity in the bankruptcy context rested on history and logic unique to that clause.
The Supreme Court made that clear in Allen when it refused to import the logic of
“bankruptcy exceptionalism” to copyrights. Id. (the “‘singular nature’ of bankruptcy
jurisdiction” was “‘premised on the debtor and his estate, and not on the creditors’
(including a State)”). Sovereign-immunity concerns sounded differently in this area
of the law, given the framers’ desire to avoid state competition over debt. See id. at
1002. This is why the Bankruptcy Clause uniquely abrogated sovereign immunity
without the need of a statute, id. at 1003, and why it cuts against Plaintiffs’ reading
and request for a “clause-by-clause reexamination” of constitutional (as opposed to
statutory) waivers. To the “contrary, it points to a good-for-one-clause-only holding.”
Id. Nothing in the Allen decision (or any other cited by the Plaintiffs) would extend
this constitutional abrogation of immunity to the Thirteenth Amendment.
The allegations in this case are awful. If true, the victims undoubtedly suffered
harm and deserve relief. But the Court cannot carve a new cause of action against
Plaintiffs’ preferred defendants and despite Kentucky’s sovereign immunity. The
Constitution is not a Swiss Army knife judges carry to whittle away inconvenient
aspects of state law. Not every injury—not even the most profound—finds a remedy
in the U.S. Constitution. Like the Fourteenth Amendment, the Thirteenth isn’t “a
font of tort law to be super-imposed upon” the states. Daniels v. Williams, 474 U.S.
327, 332 (1986). The question is “who should decide” whether the Constitution
creates a damages remedy: “Congress or the courts?” Ziglar, 137 S. Ct. at 1857. “The
answer,” the Supreme Court has reiterated, “most often will be Congress.” Id.
Given this division of authority, the Court must grant Defendant’s second
motion to dismiss (DN 10), deny the first motion to dismiss as moot (DN 6), and
dismiss Plaintiffs’ claims with prejudice.
November 19, 2021
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