Friday, December 14, 2012
Mark Brown (Capital University) has posted Serving State Officers in Official-Capacity Actions: Is Mail an Option? to SSRN.
Rule 4 distinguishes service rules for states that are "subject to suit" from those rules that are applicable to individuals. In particular, Rule 4's mail "alternative," which provides incentives to defendants to accept informal service-by-mail, does not apply to state-defendants. Of course, states are ordinarily immune from suit in federal court because of the Eleventh Amendment, meaning they will usually not be subject to suit, let alone service of process. In Constitutional cases, however, states can be yoked into federal court under the fiction of Ex parte Young. Suits seeking prospective relief (as opposed to money damages) are not prohibited by the Eleventh Amendment (or the modern interpretation of 42 USC 1983) because they are not (wink, wink) suits against states. Given this fiction, the question I explore is how service should proceed in an Ex parte Young action. Should the state officials be served as individuals or as states. If the former, then mail is an option. If the latter, it is not under Rule 4. My thesis is that state officials in these cases must be served as individuals, which not only changes the basic mechanics of service, but also makes mail an option. The Circuits are presently split over this issue.