UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES/LONG, RONALD E.

v.

STATE OF NEW YORK


98-5133b

D.C. Cir. 1999


*	*	*


Silberman, Circuit Judge: In the same week that our  opinion issued,
the Fifth Circuit held that the Eleventh  Amendment bars a False
Claims Act qui tam suit against a  state in federal court. See United
States ex rel. Foulds v.  Texas Tech Univ., No. 97-11182, 1999 WL
170139 (5th Cir.,  March 29, 1999). The court thought it was obliged
to decide  that issue before reaching the question we decided--whether
 the statute provides for a qui tam action against a state-- because
the Eleventh Amendment issue is jurisdictional. Al- though we
certainly discussed the serious nature of the  Eleventh Amendment
issue as it bore on our order of deci- sion, we did not consider
whether, as a matter of judicial  authority, we too were obliged to


sister circuit implicitly challenged our jurisdiction--even  though no
party before us did--and our mandate has not  issued, under these
unusual circumstances, we think it appro- priate to issue this
supplemental opinion to explain why we  believe we should stick with
the order of decision we adopted.


The Fifth Circuit reasoned as follows: since the question  whether a
relator can sue a state under the Act is a cause of  action or merits
question, and since the question whether a  federal court can hear
such a suit under the Eleventh Amend- ment is a jurisdictional one,
the latter must be resolved  before the former. See id. at * 5-* 6.
The principal authori- ty that the Fifth Circuit relied on is Steel
Co. v. Citizens for a  Better Env't, 118 S. Ct. 1003 (1998), in which
the Supreme  Court held that a question of Article III standing must
be  decided before the statutory question whether a cause of  action
exists. See id. at 1012-16. In so holding, the Court  rejected the
doctrine of "hypothetical jurisdiction," under  which lower
courts--including this one, see, e.g., Cross-Sound  Ferry Servs., Inc.
v. ICC, 934 F.2d 327, 333 (D.C. Cir. 1991)-- had assumed jurisdiction
in order to reach the merits, where  the merits question was easier
and the prevailing party on  the merits would be the same as the
prevailing party were  jurisdiction denied. See Steel Co., 118 S. Ct.
at 1012 (disap- proving of Cross-Sound and other lower court
decisions).  The doctrine, the Court said, is flatly inconsistent with
core  principles limiting the role of Article III courts: "For a court
 to pronounce upon the meaning or the constitutionality of a  state or
federal law when it has no jurisdiction to do so is, by  very
definition, for a court to act ultra vires." Id. at 1016.


We did not address this Steel Co. question in our opinion,  we confess,
because we did not focus on it. Indeed, New  York--whose immunity from
suit is at stake--specifically  urged us, apparently unlike Texas in
Foulds, to decide the  statutory question first on the ground that
nonconstitutional  grounds should be considered before constitutional
ones. Ad- mittedly, we ordinarily are obliged to raise jurisdictional 
questions on our own, so the parties' litigating tactics would  not
excuse our oversight. Still, the Eleventh Amendment bar  on suits
against the states in federal court is not a garden 


variety jurisdictional issue. Although the Amendment speaks  in terms
of the limits of the judicial power, see U.S. Const.  Amend. XI ("The
Judicial power of the United States shall not  be construed to
extend...."), a state can waive its Eleventh  Amendment defense and
consent to suit in federal court, and  the Supreme Court has held that
there is no obligation for the  Court to raise the issue sua sponte.
See Wisconsin Dep't of  Corrections v. Schacht, 118 S. Ct. 2047,
2052-53 (1998) (citing  Atascadero State Hsp. v. Scanlon, 473 U.S.
234, 241 (1985)  and Patsy v. Board of Regents of Fla., 457 U.S. 496,
515 n.19  (1982)).


To be sure, the Court has also held that the "Eleventh  Amendment
defense sufficiently partakes of the nature of a  jurisdictional bar
so that it need not be raised in the trial  court," Edelman v. Jordan,
415 U.S. 651, 678 (1974); see  Burkhart v. Washington Metropolitan
Area Transit Auth.,  112 F.3d 1207, 1216 (D.C. Cir. 1997), and indeed
can be raised  for the first time in the Supreme Court, see Ford Motor
Co. v.  Department of Treasury, 323 U.S. 459, 467 (1945). Given  these
somewhat conflicting rules, see Schacht, 118 S. Ct. at  2055 (Kennedy,
J., concurring), the Court has frankly recog- nized that the Eleventh
Amendment is a rather peculiar kind  of "jurisdictional" issue. See
Calderon v. Ashmus, 118 S. Ct.  1694, 1697 n.2 (1998) ("While the
Eleventh Amendment is  jurisdictional in the sense that it is a
limitation on the federal  court's judicial power, and therefore can
be raised at any  stage of the proceedings, we have recognized that it
is not co- extensive with the limitations on judicial power in Article
 III."); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261,  267
(1997) ("The Amendment, in other words, enacts a sover- eign immunity
from suit, rather than a nonwaivable limit on  the federal judiciary's
subject-matter jurisdiction."). The  Court's most recent opinion noted
that the question whether  Eleventh Amendment immunity is a matter of
subject matter  jurisdiction is an open one. See Schacht, 118 S. Ct.


New York's explicit request that we first decide the statu- tory
question could therefore be seen as a kind of agreement  to assert its
Eleventh Amendment defense only if it loses on 


the statutory one (a "springing" defense, as it were). As the  Supreme
Court has recently made clear, "[t]he Eleventh  Amendment ... does not
automatically destroy original juris- diction," but instead "grants
the State a legal power to assert  a sovereign immunity defense should
it choose to do so."  Schacht, 118 S. Ct. at 2052 (emphasis added). A
state can  waive its immunity from suit in the context of a
litigation, see,  e.g., Ford Motor Co., 323 U.S. at 467-69, as long as
it does so  unequivocally, see Atascadero, 473 U.S. at 246-47.
Although  there are difficult questions about whether the state's
attor- neys must be authorized by state law to waive the state's 
immunity, and about whether such authorization, if needed,  has been
granted, compare id. (suggesting that such authori- zation is
necessary) with Schacht, 118 S. Ct. at 2055-56  (Kennedy, J.,
concurring) (questioning whether in the remov- al context specific
authorization is required), it may well be  that New York's approach
amounts to a partial consent to  suit on the statutory
question--subject to a later Eleventh  Amendment defense. And if so,
we might be obligated to  decide the statutory question first.


But even if we were not so obligated, we think that we are  at least
permitted to do so. Had New York chosen not to  assert its Eleventh
Amendment defense below, or even before  us, it would not have been
precluded from raising it thereaf- ter. See Calderon, 118 S. Ct. at
1697 n.2 (Eleventh Amend- ment "can be raised at any stage of the
proceedings"); but cf.  Schacht, 118 S. Ct. at 2055 (Kennedy, J.,
concurring) (criticiz- ing this rule because "permitting the belated
assertion of the  Eleventh Amendment bar ... allow[s] States to
proceed to  judgment without facing any real risk of adverse conse-
quences"). Unless that defense is asserted by the state, a  court is
arguably not obliged to raise the issue itself since the  Supreme
Court has made clear that the usual obligation to  raise
jurisdictional issues sua sponte does not apply (at least  to the
Court itself) in Eleventh Amendment cases. See  Patsy, 457 U.S. at 515




__________

n 1 Whether the Patsy rule relieves lower courts of the sua  sponte
obligation to raise the Eleventh Amendment issue is a 


strategy--an Eleventh Amendment argument in the alterna-
tive--suggests that, at least, we are entitled to reverse the  Steel
Co. order. After all, Steel Co.'s rule is premised on a  court's lack
of power to reach the merits without establishing  its jurisdiction.
In the Eleventh Amendment context, where  a court lacks power only if
a state claims that it does, it is  arguable that we have no
obligation to decide the Eleventh  Amendment issue first if the state
does not demand that we  do so.


Moreover, the quasi-jurisdictional or "hybrid" status of the  Eleventh
Amendment, see Schacht, 118 S. Ct. at 2055 (Kenne- dy, J.,
concurring), raises questions about Steel Co.'s applica- bility in
this context, quite apart from New York's request  that we interpret
the statute first. Since the Eleventh  Amendment at most "partakes of
the nature of a jurisdiction- al bar," Edelman, 415 U.S. at 678, it
seems fair to ask  whether the Eleventh Amendment is sufficiently
jurisdictional  to require us to decide a state's claim of Eleventh
Amend- ment immunity before turning to the merits. One indication  to
the contrary is Calderon, in which the Supreme Court  decided that it
"must first address" whether a particular  action for a declaratory
judgment was an Article III case or  controversy before deciding the
Eleventh Amendment ques- tion on which certiorari had been granted,
observing that the  Eleventh Amendment is "not co-extensive with the
limitations  of judicial power in Article III." Calderon, 118 S. Ct.
at 1697  & n.2. As between two jurisdictional issues, there ordinarily
 is no obligation to decide one before the other. See Steel Co.,  118
S. Ct. at 1015 n.3; In re Minister Papandreou, 139 F.3d  247, 255
(D.C. Cir. 1998) (stating that dismissing on non- merits grounds such
as personal jurisdiction or forum non  conveniens, before deciding




__________

n matter of some controversy. See Coolbaugh v. Louisiana, 136 F.3d 
430, 442 n.5 (5th Cir. 1998) (Smith, J., dissenting) (collecting cases
 and authorities). We have raised an Eleventh Amendment question  on
our own in a prior case, see Morris v. Washington Metropolitan  Area
Transit Auth., 702 F.2d 1037, 1040 (D.C. Cir. 1983), but do not 
appear ever to have held whether we must do so, notwithstanding 


permissible under Steel Co.).2 That the Court in Calderon  thought
itself obliged to decide the case or controversy ques- tion first
suggests that the Eleventh Amendment, a less than  pure jurisdictional
question, need not be decided before a  merits question. One former
judge of this court, in a concur- ring opinion criticizing the
hypothetical jurisdiction doctrine  later rejected in Steel Co.,
pointed in that direction. See  Cross-Sound Ferry, 934 F.2d at 341
(Thomas, J., concurring  in part and concurring in the denial of
petition) (reasoning  that the rule requiring consideration of
jurisdictional issues  before non-jurisdictional issues might not
apply if "the ground  passed over sufficiently, though not entirely,
'partakes of the  nature' of a merits ground, or if the ground rested
upon  'sufficiently,' though not entirely, 'partakes of the nature of
a  jurisdictional bar' " (quoting Edelman, 415 U.S. at 678)).


Another difficulty in applying Steel Co. here is that classify- ing the
statutory question in an Eleventh Amendment case as  a "cause of
action" or merits question is, though technically  accurate, somewhat
misleading. The determination of wheth- er a particular action is
properly asserted against a state is  also a kind of logical
prerequisite to the jurisdictional inquiry.  The Eleventh Amendment
only bars a federal court from  hearing a "suit in law or equity,
commenced or prosecuted  against one of the United States," and so it
would seem  perfectly appropriate--perhaps even necessary--for courts
to  determine whether there is even such a suit before the court. 
That kind of inquiry--sometimes classified as "jurisdiction to 
determine our jurisdiction," Nestor v. Hershey, 425 F.2d 504,  511
(D.C. Cir. 1969) (inquiring whether student deferment  sought was
mandated by statute or within the discretion of  the draft board, as
jurisdiction existed only for the former)-- is fairly common, even
though the rulings made in determin- ing jurisdiction are made without
certainty that jurisdiction  actually exists. Occasionally, as in this




__________

n 2 The Fifth Circuit has concluded otherwise, holding that in the 
removal context, a district court must decide subject matter juris-
diction before personal jurisdiction. See Marathon Oil Co. v.  Ruhrgas
AG, 145 F.3d 211, 215-25 (5th Cir.) (en banc), cert.  granted, 119 S.
Ct. 589 (1998).


says about an issue of statutory interpretation that logically 
precedes the ultimate jurisdictional determination removes  any
contention that the court's jurisdiction is in question.  See, e.g.,
Webster v. Doe, 486 U.S. 592, 603-04 (1988) (using  clear statement
principles and the constitutional avoidance  canon to hold that
statutory provision did not, despite lan- guage indicating that the
statute was committed to agency  discretion, preclude judicial review
of constitutional claims).


If the Eleventh Amendment were a statutory provision  stripping the
federal courts of jurisdiction, the inquiry wheth- er the case before
the court was of the kind that the statute  forbade would be a fairly
routine form of jurisdictional analy- sis.3 Accordingly, in
determining whether the Eleventh 




__________

n 3 One analogy is cases involving the Norris-LaGuardia Act's  bar on
federal courts issuing certain injunctions in labor disputes.  See 29
U.S.C. s 104 (1994) ("No court of the United States shall  have
jurisdiction to issue any restraining order or temporary or  permanent
injunction in any case involving or growing out of any  labor dispute
to prohibit any person or persons participating or  interested in such
dispute [from doing certain acts]."). Not surpris- ingly, the Supreme
Court has had to interpret that provision,  together with the
provision defining it, see id. at s 113 ("A case  shall be held to
involve or grow out of a labor dispute when the case  involves persons
who are engaged in the same industry, trade, craft,  or
occupation...."), to determine whether particular kinds of cases  fall
within the jurisdictional bar. See, e.g., Burlington N. R.R. Co.  v.
Brotherhood of Maintenance of Way Employees, 481 U.S. 429,  440-44
(1987) (rejecting restrictive interpretation of Norris-  LaGuardia
Act, under which a "labor dispute" would only include  disputes in
which the picketed employer is "substantially aligned"  with the
primary employer); United States v. United Mine Work- ers of Am., 330
U.S. 258, 269-89 (1947) (interpreting general  language of ss 104 and
113 to exclude the United States, such that  where the United States
seizes actual possession of mines or other  facilities and operates
them, and where the United States is the  employer of the workers, the
Norris-LaGuardia Act does not  apply); id. at 250-51 (holding that
district court properly issued  restraining order to preserve existing
conditions while it deter- mined whether it had jurisdiction to issue


Amendment bars a particular suit, federal courts must decide  a
variety of issues that relate to the question whether the suit  is
actually one brought against the state, and do so before  jurisdiction
is finally resolved. See, e.g., Regents of the  University of
California v. Doe, 117 S. Ct. 900, 904 & n.5  (1997) (noting that
determining whether a state agency is an  "arm of the state" for
Eleventh Amendment purposes, such  that the suit is one against the
state itself, involves an  analysis of the state law provisions that
define the agency's  character); Seminole Tribe of Florida v. Florida,
517 U.S. 44,  55-57 (1996) (analyzing Indian Gaming Regulatory Act for
the  purpose of determining if Congress, consistent with Eleventh 
Amendment abrogation requirements, set forth a clear state- ment of
its intent to provide for suits against the states in  federal court,
and concluding that it did); Hafer v. Melo, 502  U.S. 21, 24 n.*,
30-31 (1991) (discussing, although not resolv- ing, competing methods
for determining whether a suit for  monetary damages is against a
state official in his or her  official capacity, and thus against the
state itself, or against a  state official in his or her personal
capacity, to which the  Eleventh Amendment does not apply).


Still, it might be thought that the "jurisdiction to determine 
jurisdiction" concept is not wholly satisfactory because wheth- er
states are persons under the False Claims Act is also a  cause of
action question (which is what the Fifth Circuit  emphasized). But
even if the cause of action aspect of the  statutory question takes it
outside the "jurisdiction to deter- mine jurisdiction" doctrine, two
additional considerations jus- tify the approach we have taken.


As our discussion already indicates, the "merits" question  is, in the
Eleventh Amendment context, inextricably related  to the
"jurisdictional" question. We noted this relationship in  our opinion
in explaining why the Eleventh Amendment's  clear statement rule,
ordinarily applied to an abrogation  inquiry, is relevant in
determining whether there is a cause of  action against the states.
Even if we were to assume that 




__________

n it had power to punish violations of its orders as criminal contempt 
before the jurisdictional question was resolved).


states are defendant persons, and then actually to decide that  the
Eleventh Amendment applied, we would then have to ask  whether, for
abrogation purposes, the statute contains a clear  statement that
states are to be defendants--which is more-or- less the same statutory
analysis that we previously under- took. This can be seen in the Fifth
Circuit's opinion, where  the court held that the state's Eleventh
Amendment immuni- ty was not abrogated because the Act did not contain
the  requisite clear statement. See Foulds, 1999 WL 170139, at  * 11.
The only real difference between the Fifth Circuit's  analysis of the
statute and our own is that the Fifth Circuit  had to actually hold
that the Eleventh Amendment applied--a  serious constitutional
issue--in order to get there.


We think this close relationship between the statutory and 
"jurisdictional" issues, even putting aside "jurisdiction to de-
termine jurisdiction," provides an independent ground on  which to
distinguish Steel Co. The relationship between  these two issues is
quite different from the relationship  between an ordinary "cause of
action" question and a pure  jurisdictional issue such as standing.
The Court in Steel Co.  rejected the contention that merits questions
could be decided  before constitutional standing questions because the
Article  III redressability requirement, for example, "has nothing to 
do with the text of the statute relied upon" (except with  regard to
entirely frivolous claims). Steel Co., 118 S. Ct. at  1013 n.2. By
contrast, the Court explained why merits  questions can be decided
before statutory or prudential  standing questions: the two questions
overlap to such an  extent that it would be "exceedingly artificial to
draw a  distinction between the two." Id. If an inextricable relation-
ship between statutory standing and the merits permits a  court to
decide the merits first, the same order would seem  appropriate for


In addition, we do not think our approach even implicates  the concerns
underlying the Supreme Court's rejection of  "hypothetical
jurisdiction" because the statutory question is  logically antecedent
to the Eleventh Amendment question  (even if it were not thought an
aspect of "jurisdiction to  determine jurisdiction"). We have not
chosen to decide a 


pure (and relatively easier) merits question on the assump- tion that
we have jurisdiction--the paradigm of the hypothet- ical jurisdiction
model. When a court decides, as we do, that  a statute does not
provide for a suit against the states, there  is no risk at all that
the court is issuing a hypothetical  judgment--an advisory opinion by
a court whose very power  to act is in doubt. See Steel Co., 118 S.
Ct. at 1016. Rather,  the conclusion that the statute does not provide
for suits  against the states in federal court is, in effect, a
resolution of  the jurisdictional question, in that the Eleventh
Amendment  can no longer be said to apply (which is quite different
from  saying, as courts do under the hypothetical jurisdiction doc-
trine, that jurisdiction does not matter because the same  party
arguing a lack of jurisdiction prevails on the merits).  The Supreme
Court recently adopted precisely this reasoning  in deciding a class
action certification issue before an asserted  "array of
jurisdictional barriers," including ripeness, standing,  and subject
matter jurisdiction. See Amchem Prods., Inc. v.  Windsor, 117 S. Ct.
2231, 2244 (1997). The Court said that,  because resolution of the
class certification issues was "logi- cally antecedent to the
existence of any Article III issues, it  [was] appropriate to reach
them first." Id. The Fifth Cir- cuit's view instead is that a court
must assume that states are  defendants under the Act and address the
Eleventh Amend- ment question at the outset, lest the court give an
interpreta- tion of the statute that it has no power to give. See
Foulds,  1999 WL 170139, at * 6 ("[I]f the Eleventh Amendment  removes
our jurisdictional authority to hear [the] case, we  have no power to
determine whether the False Claims Act  creates a cause of action
against states...."). But such an  approach ostensibly avoids the
evils of "hypothetical jurisdic- tion" (not really at issue) in favor
of deciding a purely  hypothetical jurisdictional issue--that is, a
jurisdictional issue  that arises solely by virtue of the statutory
question assumed.  Since the Eleventh Amendment issue in this case
"would not  exist but for" that assumption, Amchem, 117 S. Ct. at 2244
 (quoting Georgine v. Amchem Prods., Inc., 83 F.3d 610, 623  (3d Cir.
1996)), we think it is appropriate for us to decide the  logically


Perhaps most important, our reasoning is confirmed by  several Eleventh
Amendment cases in which the Supreme  Court itself has decided "cause
of action" questions before  turning to the Eleventh Amendment. See,
e.g., Hafer, 502  U.S. at 21-30 (holding that state officials sued in
their individ- ual capacities are persons under 42 U.S.C. s 1983, and
then  holding that the Eleventh Amendment presents no bar to  such a
suit); Lake Country Estates, Inc. v. Tahoe Regional  Planning Agency,
440 U.S. 391, 398-402 (1979) (deciding that  a claim against an
interstate compact that required federal  approval was a claim
alleging a deprivation of constitutional  rights "under color of state
law" within the meaning of  s 1983, and then deciding that the compact
was not entitled  to Eleventh Amendment immunity)5; Monell v.




__________

n 4 Of course, we recognize some tension between Amchem and  Steel Co.,
in that a cause of action question is, in a sense, logically 
antecedent to jurisdiction too: without a cause of action, the ques-
tion whether a party satisfies jurisdictional requirements would not 
arise. Yet Steel Co. clearly requires a court to decide jurisdiction 
first. But the Court did not cast any doubt on Amchem in Steel  Co.,
and we think logical priority, as in Amchem, should control  here.


5 Lake Country Estates went so far as to state that this order  of
decision was required. See Lake Country Estates, 440 U.S. at  398
("Before addressing the immunity issues [of which the Eleventh 
Amendment was one], we must consider whether petitioners prop- erly
invoked the jurisdiction of a federal court [under 28 U.S.C.  s
1331]."). Of course, as the Court went on to explain, the question 
whether a plaintiff has a federal cause of action sufficient to create
 jurisdiction under s 1331 is not itself a jurisdictional argument 
(except in the rare circumstances in which the cause of action is 
frivolous, see Steel Co., 118 S. Ct. at 1010 (citing Bell v. Hood, 327
 U.S. 678, 682 (1946)). See Lake Country Estates, 440 U.S. at 398 
("[R]espondents' 'jurisdictional' arguments are not squarely direct-
ed at jurisdiction itself, but rather at the existence of a remedy for
 the alleged violation of their federal rights."). Still, after
identify- ing the argument as a cause of action argument, the Court
resolved  that issue before even turning to the Eleventh Amendment
ques- tion. If the Fifth Circuit were right, the Court should have 


of Social Servs., 436 U.S. 658, 664-90 & n.54 (1978) (deciding  that
municipalities are persons under s 1983 and, in conclu- sion, noting
that the Eleventh Amendment would not bar  such suits to the extent
that a municipality is not considered a  part of the state for
Eleventh Amendment purposes); Mt.  Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274,  278-80 (1977) (deciding first that the
contention that munici- palities were not persons under s 1983 was a
merits question  that had been waived, and then deciding that the
Eleventh  Amendment does not bar a suit against a municipality in 
federal court); see also Doe v. Chiles, 136 F.3d 709, 713-21  (11th
Cir. 1998) (deciding first that a provision of the Medic- aid Act
created a federal right to reasonably prompt provision  of assistance
enforceable under s 1983, and only then con- cluding that the suit was
not barred by the Eleventh Amend- ment). Though these cases pre-date
Steel Co., we think they  lend considerable support--albeit


On the other hand, the Court in Welch v. Texas Depart- ment of Highways
and Public Transportation, 483 U.S. 468  (1987), decided an Eleventh
Amendment abrogation question  and specifically reserved the question
whether the statute  created a cause of action. See id. at 476 n.6
("Because  Eleventh Amendment immunity 'partakes of the nature of a 
jurisdictional bar,' we have no occasion to consider the State's 
additional argument that Congress did not intend to afford  seamen
employed by the States a remedy under the Jones  Act" (quoting
Edelman, 415 U.S. at 678)). This decision is  hardly support for our
position. But we do not think the  Court's comment that it had "no
occasion" to consider the  cause of action question fairly should be
read as a holding  that cause of action questions must be decided
second. See  also Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 
275, 277-83 (1959) (holding that the two states had waived  their
Eleventh Amendment immunity from suit in an inter- state compact, and
only then deciding that interstate com-




__________

n assumed the cause of action existed once it satisfied itself that the
 claim was not a jurisdictional one.


pacts were not exempt from the term "employer" in the Jones  Act, but
giving no indication that that order of decision was  required). If
that were so, Welch would be flatly inconsistent  with the cases cited
above. Again, the Court in Welch  referred to the quasi-jurisdictional
nature of the Eleventh  Amendment--that it "partakes" of the nature of
a jurisdic- tional bar--which of course suggests that the order of
deci- sion adopted was not a mandatory one.


Nor do we think, as did the Fifth Circuit, see Foulds, 1999  WL 170139,
at *5, that Blatchford v. Native Village of Noa- tak, 501 U.S. 775
(1991), is to the contrary. The Supreme  Court did note in Blatchford
that, given the Eleventh Amend- ment bar, it would not express a view
about whether the  respondent was a "tribe" within the meaning of the
statute in  question, see Blatchford, 501 U.S. at 788 n.5. But the
statuto- ry question was not a "cause of action" question at all but 
rather a question concerning the jurisdictional statute under  which
the respondent had sued, see 28 U.S.C. s 1362 (provid- ing for federal
court jurisdiction for suits by tribes involving  federal law). At
most, the Court in Blatchford, for reasons  not entirely clear to us,
decided the case on Eleventh Amend- ment jurisdictional grounds
instead of addressing a purely  statutory jurisdictional
argument--whether the tribe had  even established jurisdiction in the
first place as a "tribe"  under s 1362--that could have made
unnecessary its various  constitutional holdings. See id. at 779-82
(holding that suits  by tribes are barred by the Eleventh Amendment);
id. at  783-86 (holding that s 1362 did not effect a delegation of the
 United States' exemption from the Eleventh Amendment bar  to tribes);
see id. at 786-88 (holding that s 1362 did not  abrogate the states'
Eleventh Amendment immunity).6 And  again, while there does not appear
to be a requirement that  some jurisdictional grounds be decided




__________

n 6 The Ninth Circuit, interestingly enough, had decided the  statutory
jurisdictional question before turning to the Eleventh  Amendment
issues. See Native Village of Noatak v. Hoffman, 896  F.2d 1157,
1160-61 (9th Cir. 1990), rev'd, Blatchford, 501 U.S. 775  (1991). The
Supreme Court obviously chose a different order, but 


Steel Co., 118 S. Ct. at 1015 n.3, the Court's statement in  Calderon
that it was required to decide a case or controversy  question before
reaching the Eleventh Amendment, see Cal- deron, 118 S. Ct. at 1697,
casts considerable doubt on Blatch- ford's order of decision. In any
event, Blatchford certainly  cannot be said to mandate the Fifth
Circuit's view that the  Eleventh Amendment issue must always be
decided first.


We have taken pains to discuss the issue that the Fifth  Circuit
identified because of its importance. Although the  issue is complex,
and the case law not altogether clear, we are  confident that no
authority or principle prohibits our ap- proach. And because it has
the significant virtue of avoiding  a difficult constitutional
question, we think it is also the  preferable one.




__________

n did not in any way purport to reject this aspect of the Ninth 
Circuit's approach.