Freedom From Religion Foundation v. Mack

An alternate holding by a motions panel of the Fifth Circuit in Freedom From Religion Foundation v. Mack threatens to disincentivize civil rights litigation. This concerning holding re-defines the relationship between two litigation tools frequently deployed by civil rights lawyers — Ex parte Young and 42 U.S.C. § 1983. The two are used in tandem: litigants plead their claims against state officials under § 1983, and through Ex parte Young, strip state officials of sovereign immunity to sue them as individuals. Deviating from this understanding, the motions panel held that equitable suits against state officials can only arise under Ex parte Young, not through § 1983, despite contrary treatment of the two by the Supreme Court, Congress, and even the Fifth Circuit itself. This poses serious practical threats to ongoing and future civil rights litigation. 

FIRE joined the Institute for Justice to file an amicus curiae brief in support of the plaintiff Freedom from Religion Foundation, Inc., to challenge this concerning holding and encourage the full merits panel to expressly reject it before it disrupts constitutional rights enforcement. 

Unfortunately, on July 9, 2021, the Fifth Circuit issued a merits opinion doubling down on its earlier interpretation, holding that the plaintiff’s official-capacity claim should have been dismissed because it was pleaded exclusively under § 1983, not Ex parte Young.