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Date: 03-02-2018

Case Style:

John Doe v. Eric Holcomb

Southern District of Indiana Federal Courthouse - Indianapolis, Indiana

Case Number: 17-1756

Judge: Kanne

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Southern District of Indiana (Marion County)

Plaintiff's Attorney: Barbara J. Baird, Matthew J. Barragan, Veronica Cortez, Shawn Thomas Meerkamper

Defendant's Attorney: Betsy M. Isenberg, Thomas J.O. Moore, Donald Eugene Morgan, Matthew Keith Phillips

Description: John Doe, whose legal name is Jane
Doe,1 is a transgender man residing in Marion County, Indiana.
Though Doe is originally from Mexico, the United States
granted him asylum in 2015 because of the persecution he
might face in Mexico for being transgender. But this suit arises
out of Doe’s treatment in the United States. He alleges that he
faces harassment and discrimination in the United States
when he gives his legal name or shows his identification bearing
it to others. Consequently, Doe seeks to legally change his
name from Jane to John so that his name conforms to his gender
identity and physical appearance, which are male.
Doe asserts that the Indiana statute governing name
changes is unconstitutional because it requires name‐change
petitioners to provide proof of U.S. citizenship. Ind. Code
§ 34‐28‐2‐2.5(a)(5) (2016).2 As an asylee, Doe can’t provide
such proof. He brought this case against the Governor and Attorney
General of Indiana, the Marion County Clerk of Court,
and the Executive Director of the Indiana Supreme Court Di‐
1 On November 22, 2016, U.S. Magistrate Judge Debra McVicker
Lynch granted the plaintiff’s unopposed motion to proceed anonymously,
ordering that he be referred to in court filings as John Doe (or John Doe
formerly known as Jane Doe). (R. 42 at 1, 4.)
2 “(a) If a person petitioning for a change of name under this chapter
is at least seventeen (17) years of age, the person’s petition must include
at least the following information: … (5) Proof that the person is a United
States citizen.”
No. 17‐1756 3
vision of State Court Administration in their official capacities.
He seeks a declaration that the citizenship requirement
violates his First and Fourteenth Amendment rights and an
injunction to prevent the defendants from enforcing it.
The district court dismissed Doe’s case against all the defendants
for lack of standing after the defendants filed motions
to dismiss for lack of subject‐matter jurisdiction. Doe appeals.
We review the district court’s dismissal de novo, accepting
well‐pleaded allegations as true and drawing reasonable
inferences in favor of Doe. See Lewert v. P.F. Chang’s China Bistro,
Inc., 819 F.3d 963, 966 (7th Cir. 2016); Evers v. Astrue, 536
F.3d 651, 656 (7th Cir. 2008). For the reasons discussed below,
we affirm.
I. ANALYSIS
Federal courts have jurisdiction over certain cases and
controversies. U.S. Const. art. III, § 2. Standing is “the irreducible
constitutional minimum” that determines which cases
and controversies “are of the justiciable sort referred to in Article
III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The
party invoking federal jurisdiction must establish the elements
of standing: (1) that he suffered an injury in fact, (2) that
the injury is causally connected to the challenged conduct of
the defendant, and (3) that the injury is likely to be redressed
by a favorable judicial decision. Id. at 560–61.
But even if a plaintiff could otherwise establish that he has
standing to sue a state or a state official, the Eleventh Amendment
generally immunizes those defendants from suit in federal
court. A plaintiff can avoid this bar, however, by naming
a state official who has “some connection with the enforcement”
of an allegedly unconstitutional state statute for the
4 No. 17‐1756
purpose of enjoining that enforcement. Ex parte Young, 209
U.S. 123, 157 (1908).
Thus, where a plaintiff sues a state official to enjoin the
enforcement of a state statute, the requirements of Ex parte
Young overlap significantly with the last two standing requirements—
causation and redressability. That is, a plaintiff must
show that the named state official plays some role in enforcing
the statute in order to avoid the Eleventh Amendment.
But, in order to satisfy the requirements of causation and redressability,
he must also establish that his injury is causally
connected to that enforcement and that enjoining the enforcement
is likely to redress his injury.
Here, Doe sued three state officials—the Governor, the Attorney
General, and the Executive Director of the Indiana Supreme
Court Division of State Court Administration—and
one county official—the Marion County Clerk of Court. We
take each defendant in turn to address whether Doe can sue
them in federal court. He cannot.
A. The Eleventh Amendment bars Doe’s suit against the named
state officials.
Doe has not shown that any of the named state officials are
connected with the enforcement of the name‐change statute,
so the Eleventh Amendment bars his suit against them.
1. The Governor
“The mere fact that a governor is under a general duty to
enforce state laws does not make him a proper defendant in
every action attacking the constitutionality of a state statute.”
Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979). Instead,
Doe must allege that the Indiana Governor played some role
in enforcing the name‐change statute.
No. 17‐1756 5
Doe’s strongest argument, though it still fails, is that the
Governor plays a role in enforcing the name‐change statute as
head of the Bureau of Motor Vehicles (“BMV”). The BMV law
provides that applications for driver’s licenses or state‐issued
IDs must include “the full legal name of the applicant.” Ind.
Code § 9‐24‐9‐2(1) (2016). And the BMV will not issue an ID
to an applicant that reflects a different full name than what
appears on the person’s other legal documents unless the applicant
provides a court order approving a full name change.
See 140 Ind. Admin. Code 7‐1.1‐3(b)(1)(K) (2017). Together, Indiana’s
name‐change statute and the BMV’s requirements
deny non‐citizens the privilege of a full‐name change on their
identification.
Doe may have been able to overcome the Eleventh
Amendment had he sued the Governor to enjoin the enforcement
of the BMV’s requirements. Instead, Doe sued the Governor
in his official capacity to prevent him from enforcing the
name‐change statute. But the Governor was not specifically
charged with a duty to enforce the name‐change statute, see
Ex parte Young, 209 U.S. at 158, and he has not taken on any
duty to enforce it either, see Love v. Pence, 47 F. Supp. 3d 805,
808 (S.D. Ind. 2014). In short, the Governor doesn’t do anything
to enforce the name‐change statute; if Indiana’s statute
permitted non‐citizens to obtain a name change, then the
BMV would, too. Consequently, the Eleventh Amendment
bars this suit against the Indiana Governor. See Watford v.
Quinn, No. 14–cv–00571–MJR, 2014 WL 3252201, at *2–3 (S.D.
Ill. July 8, 2014) (noting that an Illinois statute prohibiting
prisoners from petitioning for name changes “makes clear
that it is the exclusive prerogative of the state circuit courts,
not the Governor, to grant a name change,” and holding that,
6 No. 17‐1756
consequently, the Eleventh Amendment barred the suit
against the governor).
2. The Attorney General
An attorney general cannot be sued simply because of his
duty to support the constitutionality of a challenged state statute.
See Mendez v. Heller, 530 F.2d 457, 460 (2d Cir. 1976). This
duty does not make an attorney general an adverse party, but
rather “a representative of the State’s interest in asserting the
validity of its statutes.” Id. Instead, in order for a plaintiff to
overcome the Eleventh Amendment, the attorney general
must play some role in enforcing (not just defending) the
complained‐of statute.
Doe argues that the Attorney General enforces the
name‐change statute because he is vested with the broad authority
to enforce criminal laws. To the contrary, however, the
general rule in Indiana is that the Attorney General cannot initiate
prosecutions; instead, he may only join them when he
sees fit. See Ind. Code § 4‐6‐1‐6 (2016); Ind. Code §§ 33‐39‐1‐5,
12‐15‐23‐6(d) (2017); State v. Holovachka, 142 N.E.2d 593, 603
(Ind. 1957). But see Arnold v. Sendak, 416 F. Supp. 22, 23 (S.D.
Ind. 1976) (holding that the Attorney General was a proper
defendant in a suit challenging a statute that made “abortion
… a criminal act” because of his “broad powers in the enforcement
of the criminal laws of the state”), aff’d without addressing
standing, 429 U.S. 968 (1976).
Moreover, there are no criminal penalties for violating Ind.
Code § 34‐28‐2‐2.5(a)(5). It is true that the Attorney General
could assist a local prosecuting attorney in a perjury prosecution
if Doe perjured himself on his name‐change petition by
indicating he was a citizen. See Ind. Code §§ 4‐6‐1‐6,
No. 17‐1756 7
34‐28‐2‐2(a) (2016); Ind. Code § 35‐44.1‐2‐1 (2014). Some
courts have suggested this would be enough. See, e.g., Baskin
v. Bogan, 12 F. Supp. 3d 1144, 1152–53 (S.D. Ind. 2015) aff’d
without addressing standing, 766 F.3d 648 (7th Cir. 2014). But
that connection is too attenuated, especially considering that
the Attorney General could not initiate the prosecution himself.
Permitting Doe’s complaint challenging § 34‐28‐2‐2.5 to
bring the Attorney General into court would extend Ex parte
Young past its limits.
The Attorney General has not threatened to do anything,
and cannot do anything, to prosecute a violation of
§ 34‐28‐2‐2.5. Children’s Healthcare is a Legal Duty, Inc. v. Deters,
92 F.3d 1412, 1415 (6th Cir. 1996) (“Young does not apply when
a defendant state official has neither enforced nor threatened
to enforce the allegedly unconstitutional state statute.”). Our
ultimate inquiry is whether the Attorney General’s connection
to the enforcement of the name‐change statute “is sufficiently
intimate to meet the requirements of Ex parte Young.” Shell Oil
Co., 608 F.2d at 210. In this case, it is not. The Eleventh Amendment
bars Doe’s suit against the Attorney General from being
heard in federal court.
3. The Executive Director of State Court Administration
Doe also named the Executive Director of the Indiana Supreme
Court Division of State Court Administration as a defendant.
He alleges that the Director caused his injuries because
her office “prevent[s] or discourage[s] non‐citizens
from accessing changes of legal name.” (R. 24 at 4.) The Director’s
office generates a form that is available online or at the
clerk’s office to help petitioners file name‐change petitions.
The form instructs petitioners to provide proof of U.S. citizenship.
The Director’s office also generates a form order for the
8 No. 17‐1756
state court’s use that includes the finding that “[t]he Petitioner
has presented proof of United States citizenship.” (Appellant’s
Br. at 11 (alteration in original).) These forms are provided
for convenience; they are not mandatory.
Even though the Director works for the judiciary, she is
nonetheless a state official for the purpose of the Eleventh
Amendment. See Hess v. Port Auth. Trans‐Hudson Corp., 513
U.S. 30, 48 (1994) (“[T]he impetus for the Eleventh Amendment
[is] the prevention of federal‐court judgments that must
be paid out of a State’s treasury.”). The Director’s generation
and publication of non‐mandatory forms are not connected to
the enforcement of the name‐change statute. Accordingly, the
Eleventh Amendment bars Doe from bringing this suit
against the Director in federal court.
B. Doe failed to prove that he has standing to sue the Marion
County Clerk of Court.
The Marion County Clerk of Court concedes that she is not
a state official, and therefore the Eleventh Amendment does
not bar Doe’s suit against her. Nonetheless, Doe does not have
standing to bring this suit against the Clerk. Though Doe alleged
an injury in fact, he did not satisfy the final two requirements
for standing: causation and redressability.
1. Doe alleged an injury in fact.
An injury in fact must be “concrete and particularized,”
Lujan, 504 U.S. at 560, and “actual or imminent,” id. (quoting
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). “When the government
erects a barrier that makes it more difficult for members
of one group to obtain a benefit than it is for members of
another group, … [t]he ‘injury in fact’ … is the denial of equal
treatment resulting from the imposition of the barrier.” Ne.
No. 17‐1756 9
Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville,
508 U.S. 656, 666 (1993).
This is the case here. Though Doe never submitted a petition,
he alleged an actual, concrete, and particularized injury:
that the statute denies him the benefit of obtaining a name
change simply because he is not a U.S. citizen. See Associated
Gen. Contractors at 666; see also Lac Du Flambeau Band of Lake
Superior Chippewa Indians v. Norton, 422 F.3d 490, 496 (7th Cir.
2005) (noting that a plaintiff does not “lack[] standing merely
because [he] asserts an injury that is shared by many people”).
In fact, the barrier Doe faces is much worse than the one in the
affirmative‐action cases like Associated General Contractors, because
it makes it impossible—not just difficult—for people in
his class to obtain the desired state benefit, and that benefit is
freely available to persons in the favored class (U.S. citizens).
This injury supports his due process and free speech
claims just as it supports his equal protection claim. If the Indiana
statute permitted citizens and non‐citizens alike to
change their legal names, Doe would not need to bring this
suit claiming that he is denied due process and freedom of
speech by not being able to change his.
2. Doe has not satisfied the final two standing requirements of
causation and redressability.
There must be a causal connection between the plaintiff’s
injury and the conduct of which he complains. Lujan, 504 U.S.
at 560. That is, the plaintiff’s injury must be “fairly traceable”
to a defendant’s actions. Id. Standing is not always lost when
the causal connection is weak, Banks v. Sec’y of Ind. Family &
10 No. 17‐1756
Soc. Servs. Admin., 997 F.2d 231, 239 (7th Cir. 1993), and a defendant’s
actions need not be “the very last step in the chain
of causation,” Bennett v. Spear, 520 U.S. 154, 168–69 (1997).
Once a plaintiff establishes an adequate causal connection,
he must show that it is likely a favorable decision against the
named defendant would redress the plaintiff’s injury. Lujan,
504 U.S. at 561.
Doe argues that he has standing to sue the Clerk because
her office distributes the Director’s forms advertising the noncitizen
exclusion, advises non‐citizens that the statute requires
proof of citizenship when they ask about the statute’s
requirements, and processes name‐change petitions through
an allegedly unconstitutional system.
But in processing the name‐change petitions, the Clerk has
no power to grant or deny a petition. She is tasked only with
accepting and processing petitions without any authority to
screen them. In fact, Doe’s complaint acknowledged that the
Clerk filed at least one non‐citizen application in the past. (R.
24 at 13.) Because Doe failed to show that the Clerk has any
authority in the name‐change process, Doe has failed to show
that his injury is fairly traceable to the Clerk’s action of processing
petitions. Cf. Campaign for S. Equal. v. Miss. Dep’t of Human
Servs., 175 F. Supp. 3d 691, 703–05 (S.D. Miss. 2016) (finding
that the plaintiffs had standing to sue the director of human
services in a constitutional challenge to a state statute
prohibiting adoptions by same‐sex couples because the department
of human services had the ability to block adoption
applications).
The Clerk’s other two actions can best be characterized as
educating and informing the public about the name‐change
No. 17‐1756 11
statute’s requirements. Even assuming Doe’s injury was fairly
traceable to this activity, Doe has not shown that any injunction
the court may issue against the Clerk would be likely to
redress his injury. The state courts would still deny Doe’s petition
on the basis of the citizenship requirement regardless of
what information the Clerk provided to him.
II. CONCLUSION
The Eleventh Amendment bars Doe’s suit against the
named state officials. And though the Marion County Clerk
of Court is not a state official, Doe does not have standing to
sue her. We therefore AFFIRM the district court’s dismissal of
Doe’s suit. The federal courts are not the proper forum for his
claims.
12 No. 17‐1756
WOOD, Chief Judge, dissenting. This is an unusual case, but
in the end it is not one that we should bar from adjudication.
I therefore dissent from the majority’s conclusion that John
Doe’s suit to change his name cannot move forward in its present
form. As the majority notes, Doe is a Mexican national
who is lawfully in the United States after a grant of asylum.
As a transgender male, he wants to change his name from his
birth‐name of “Jane Doe” to the gender‐appropriate name
“John Doe.” His efforts have been blocked by an Indiana law
that requires name‐change petitioners to provide proof of U.S.
citizenship. Ind. Code § 34‐28‐2‐2.5(a)(5) (2016).
My colleagues conclude that Doe’s suit must be rejected
before it is ever considered. They first note that Indiana’s
Governor is under no legal obligation to enforce the namechange
statute. This fact, they say, means that the Eleventh
Amendment bars Doe’s suit against the Governor. Ante at 5–
6. (I do not understand why a conclusion that a certain action
lies outside the scope of a statute conferring authority on an
official leads inexorably to a conclusion that the state’s
sovereign immunity also shields that official, but I put that
question to one side for present purposes.) Next, they
conclude that the state Attorney General is not a proper
defendant, because they can identify no criminal penalties
associated with name changes. Id. at 7. The Executive Director
of State Court Administration falls out of the case because all
the Director does is create non‐mandatory forms, and they
regard the link between those forms and name changes as too
tenuous to support this lawsuit. Id. at 7–8. Finally, they
conclude that Doe lacks standing to sue the Marion County
Clerk of Court because Doe can neither establish a link
between the Clerk’s authority and a name‐change order nor
No. 17‐1756 13
can he show that any court order addressed to the Clerk
would make a difference. Id. at 9–10.
In my view, the majority’s analysis gives insufficient
weight to the significant roles played by the Attorney General,
Executive Director, and Clerk in enforcing the name‐change
statute and preventing Doe from securing official recognition
of his identity. Because the authority and duties of all three
undergird the deprivation of constitutional rights asserted by
Doe, all three must answer to his suit. Moreover, while I agree
with the majority that the Governor’s role in administering
section 34‐28‐2‐2.5(a)(5) is attenuated, I would give Doe an opportunity
to amend his complaint to name other executivebranch
officials whose responsibilities include the policing of
the name a person uses in order to receive services or to deal
with the state.
Looking first at the Executive Director and the Clerk, one
can see that their authority to create forms, issue guidance,
and move along petitions, enables them to exert substantial
influence on the name‐change process. This is best illustrated
by example. Suppose, for example, the Executive Director’s
name‐change form stated at the top that no traditionally
Muslim names could be submitted, and that the Clerk
routinely discouraged or refused to accept applications with
such names. Over and above the psychic harm of such an
action (which itself would be at least as offensive as
forbidding the teaching of a particular language, for instance,
see Meyer v. Nebraska, 262 U.S. 390 (1923)), the chilling effect
on name‐changes for the group experiencing such
discrimination would be powerful—powerful enough, I
should think, to support an injunction against that practice.
14 No. 17‐1756
I therefore do not agree with the majority that the Clerk’s
role is so minor that no effective relief can come from that
quarter. Doe seeks to compel the Clerk to accept an application
with a name that does not reflect his birth name and to
stop discouraging attempts to submit such an application.
The majority accepts counsel’s word for the fact that Clerks in
the past have accepted applications that do not conform to Indiana’s
name‐change law, but at this early stage in the proceedings
we do not have a complete record on this point. We
must accept Doe’s representation that such applications are
normally rejected for noncompliance with Indiana law, and
that an application from him would suffer the same fate.
As for the Attorney General, the majority acknowledges
that Indiana’s courts have the power to punish perjurers or
those who commit a fraud on the court, but that is where it
leaves matters. It observes that there are no criminal penalties
directly tied to violations of Ind. Code §§ 34‐28‐2‐2 and 34‐28‐
2‐2.5, and from this it assumes that the Attorney General has
no meaningful role to play in their implementation. In fact,
both perjury and fraud can also be prosecuted independently:
Indiana recognizes perjury as a stand‐alone crime, see Ind.
Code § 35‐44.1‐2‐1 (a felony; see also Ind. Code § 34‐28‐2‐2(a)
(requiring that name‐change petitions include proof of citizenship
and be sworn “under the penalties of perjury”), as
well as obstruction of justice, see Ind. Code § 35‐44.1‐2‐2 (a
felony). Nonetheless, the majority appears to treat these consequences
as too indirect to sweep in the Attorney General. I
would not dismiss them so readily.
Furthermore, even if the majority has correctly assessed
those criminal remedies, there is more to Doe’s case than the
possibility of abuse of the state court’s process. Doe also cites
No. 17‐1756 15
the misdemeanor of “false identity statement,” which
punishes knowing material misstatements of identity in
connection with official proceedings or investigations, when
done with the intent to mislead public servants. Ind. Code §
35‐44.1‐2‐4. This is a big problem for Doe: if he presents
himself in a manner that accords with his gender identity—
that is, as John Doe, rather than under his “legal” name, Jane
Doe—he is at risk of being prosecuted for a Class A
misdemeanor. Id. at 35‐44.1‐2‐4(a). And that is not all. For
example, an applicant for a driver’s license must provide
“[t]he full legal name of the applicant.” Ind. Code § 9‐24‐9‐
2(a)(1). Failure to comply with this requirement (or any other
rule in that chapter of the Indiana Code) is a Class C
infraction. Ind. Code § 9‐24‐9‐6. These might not be the
strictest penalties in the world, but they lie within the
authority of the Attorney General to pursue, see Ind. Code
§ 4‐6‐1‐6, and they easily support injury‐in‐fact, causation,
and redressability. (Although Doe did not cite the BMV
provision in his briefs, we are entitled to take judicial notice
of Indiana’s statutes. The extent to which these matters are
addressed by the state’s statutes is a pure question of law
within this court’s de novo review powers.) Taking all these
provisions into account, Doe’s case proves to be much closer
to Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), than the
majority allows. Indeed, I would find it controlled by Baskin
insofar as he is suing the Attorney General.
Last, we have the state’s Governor. I agree with the majority
that he was properly dismissed. From a practical standpoint,
as it notes, one should not be able simply to sue the
Governor every time some part of the state’s executive branch
does something objectionable. Instead, it is necessary in each
instance to see how directly the Governor is connected with
16 No. 17‐1756
the contested action. If the Governor has meaningful oversight
over a particular area, it has been established since at
least Ex parte Young, 209 U.S. 123 (1908), that an aggrieved person
may sue him or her as the responsible official for prospective
injunctive relief without running afoul of the Eleventh
Amendment. If instead the responsibility is lodged in a department
head, such as the Commissioner of the BMV, then
that official is the proper person to sue under the Ex parte
Young regime. There are practical reasons for taking care not
to have a system under which the Governor automatically
stands in for every department head. Such a rule would burden
the Governor’s office with litigation over countless matters
for which state law assigns primary responsibility to
other officials (some of whom, such as the Attorney General,
are independently elected).
The majority hints that Doe might “have been able to overcome
the Eleventh Amendment had he sued the Governor to
enjoin the enforcement of the BMV’s requirements.” Ante at 5.
But then it immediately says that such a suit would have
failed, because the Governor has no duty to enforce the namechange
statute. Yet someone must have the authority to enforce
that statute; I have explained above why I believe that
one such person is the Attorney General, and I add here that
another such person would have been the Commissioner of
the BMV. This is not a case that forces us to accept the unpalatable
notion that alleged constitutional violations escape all
judicial review.
Consider the consequences if any state function entrusted
to the state‐court system were placed beyond the power of the
federal courts to address (an outcome, I note, that would be
incompatible with Mitchum v. Foster, 407 U.S. 225 (1972),
No. 17‐1756 17
which upheld the power of the federal courts to issue civilrights
injunctions against state‐court proceedings). A state hypothetically
could refuse to allow an African‐American person
to change his or her surname on an identification‐card to
that of a Caucasian spouse, in flagrant violation of Loving v.
Virginia, 388 U.S. 1 (1967), or it could pass a statute refusing to
allow a single surname for a same‐sex couple, in disregard of
the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct.
2584 (2015). The expedient of placing final authority for namechanges
in the state court system cannot operate to avoid accountability
for potential violations of the federal constitution
by other state officials. Nor can it have the effect of negating
the right of any person to bring an action under 42 U.S.C.
§ 1983, which lies within the subject‐matter jurisdiction of the
federal courts, see 28 U.S.C. §§ 1331, 1343(a).
In the end, I believe that the majority has attached too
much importance to the fact that the state courts are the ones
charged with the duty of issuing name‐change orders. The
fact that this responsibility is lodged in the courts does not
mean that Doe’s suit is nonjusticiable. Name changes are not
the only state function that is assigned to state courts.
Uncontested divorces go straight to the state court, for
example, as do probate matters when a will needs to be
probated, or an estate needs to be administered. When there
is a problem in the system, those aggrieved by that problem
sue the state official best suited to the situation. As I noted
earlier, in addition to the avenues he chose, Doe could have
sued the Commissioner of the BMV to compel the director to
issue a driver’s license to him in the name of “John Doe.” If
the Commissioner had refused, Doe could have raised his
complaints about Indiana’s name‐change statute in a lawsuit
in state or federal court. It is likely that the Commissioner
18 No. 17‐1756
would have defended his action in such a lawsuit on the basis
of the state statute, but Doe’s response to such a defense
would have rested on his constitutional rights.
Suing each department head, one by one, for particular redress
would not be a particularly efficient system, but that
seems to be the only path the majority has left open for an
action in federal court. Evidently it acknowledges that Doe
could sue the Commissioner of the BMV in order to get the
proper name on his driver’s license; the Commissioner of the
Indiana Department of Revenue for the right to file his taxes
under the proper name; the Recorder of Deeds where he lives
in order to have a property deed listed under the proper
name, and so on. I also understand the majority to be leaving
open the door to a more general suit in state court. Such a suit
might be triggered by the state court’s predictable rejection of
Doe’s application for a name change. Doe might have a right
to appeal that rejection to a higher Indiana court. If he does,
then he can raise his federal claims there. If no such right of
appeal exists—that is, if the name‐change court is “the highest
court of [the] State in which a decision could be had,” 28
U.S.C. § 1257(a)—he could go straight to the U.S. Supreme
Court. See Thompson v. City of Louisville, 362 U.S. 199, 202
(1960) (certiorari to local police court whose decisions were not
otherwise appealable within the state‐court system). What the
majority has not explained to my satisfaction, however, is
why the same suit cannot be brought in the form and forum
Doe has chosen—that is, in a federal court, when no conflicting
state‐court proceeding or judgment exists.
What we know is enough to support Doe’s lawsuit. We
know that state law presently stands in the way of Doe’s name
change, because it insists on U.S. citizenship even though Doe
No. 17‐1756 19
is lawfully in the country and is here as a recipient of asylum,
meaning that he cannot safely return to his own country. The
defendants (save the Governor) whom Doe already has
named have the power to do something about his quandary.
To repeat, Doe is alleging that the various state officials are
refusing to process his case to correct his name, and that the
state court would similarly deny relief unless the underlying
law demanding U.S. citizenship is enjoined or otherwise set
aside. This is more than enough to permit adjudication of the
question whether such an injunction or declaratory judgment
should be entered.
I would find that Doe can move forward against the
Executive Director, the Clerk, and the Attorney General. I
agree with my colleagues that the Governor was the wrong
defendant. As I understand them, in addition, if Doe had
named the various heads of agency or department who were
responsible for recording a name on the different state‐issued
documents he holds, they may have come to a different result.
In my view, Doe did not need to take the latter step, although
if that is all that is needed to save the case, I would remand to
give him the opportunity to do so. The underlying principle
Doe is trying to vindicate is an important one, which has a
broader application than may initially be apparent. I therefore
respectfully dissent.

Outcome: The Eleventh Amendment bars Doe’s suit against the
named state officials. And though the Marion County Clerk
of Court is not a state official, Doe does not have standing to
sue her. We therefore AFFIRM the district court’s dismissal of
Doe’s suit. The federal courts are not the proper forum for his
claims.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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