Appeal from the United States District Courtfor the Western District of WashingtonJ. Kelly Arnold, Magistrate Judge, PresidingArgued and SubmittedJuly 8, 1997--Seattle, WashingtonFiled September 15, 1997Before: Thomas M. Reavley,* Diarmuid F. O'Scannlain andFerdinand F. Fernandez, Circuit Judges.Opinion by Judge O'ScannlainSUMMARY
______________________COUNSEL Beverly Norwood Goetz, Assistant Attorney General, Seattle,Washington, for the defendant-appellant.Christopher W. Tompkins, Betts, Patterson & Mines, Seattle,Washington, and Edward M. Basile, King & Spalding, Wash-ington, D.C., for the plaintiff-appellee.
_____________________________OPINION O'SCANNLAIN, Circuit Judge:We must decide whether an official of the State of Wash-ington is subject to suit in federal court for alleged violationsof federal trademark law.IMark Brown, Director of the Department of Labor andIndustries of the State of Washington, appeals interlocutorilythe district court's order denying his motion to dismiss anaction brought against him pursuant to S 43(a) of the LanhamAct, 15 U.S.C. S 1125(a),1 by Sofamor Danek Group, Inc.("Sofamor"), a manufacturer of spinal fixation devicesimplanted as part of lumbar fusion spinal surgery. Brownclaims that the district court erred in not finding him immunefrom suit under the Eleventh Amendment of the United StatesConstitution. Sofamor is currently seeking an injunction in thedistrict court prohibiting Brown from making allegedly falseand misleading statements in violation of the Lanham Actregarding its spinal fixation devices in a document issued bythe Department.In his capacity as Director of the Department, Brownadministers the Industrial Insurance Act ("Act"). Wash. Rev.Code S 51. The Act is a statutory scheme created by the legis-lature of the State of Washington to provide "sure and certainrelief for workers, injured in their work, and their families ordependents." Id. S 51.04.010. The State of Washington pro-vides insurance (including medical insurance) for workersdirectly, rather than requiring employers to purchase suchinsurance from private insurance companies. Id. Among Brown's legislatively-mandated functions is thesupervision of "medical, surgical, and hospital treatment tothe intent that it may be in all cases efficient and up to the rec-ognized standard of modern surgery." Id. S 51.04.020(4).Brown is also required to: [S]upervise the providing of prompt and efficient care and treatment . . . and to that end shall, from time to time, establish and promulgate and supervise the administration of printed forms, rules, regula- tions, and practices for the furnishing of such care and treatment . . . .Id. S 51.04.030.Pursuant to the foregoing, the Department issued medicalguidelines regarding lumbar fusion surgery and a "LumbarFusion Informed Consent Form" ("Consent Form"). Brownrequired that the surgeon and the patient sign the ConsentForm before undergoing any lumbar fusion surgery on thelower spine that would be covered by the Act. The ConsentForm contains, inter alia, statements regarding the effective-ness of lumbar fusion spinal surgery in general and, more spe-cifically, the regulatory status of and risks associated withpedicle screw device systems, which Sofamor manufactures.Sofamor claims that the statements in the Consent Form con-cerning spinal fixation devices (such as Sofamor's) are falseand misleading in violation of the Lanham Act.Sofamor filed suit in federal district court on June 3, 1996,seeking a prospective injunction against Brown "in his officialcapacity as Director of the State of Washington Departmentof Labor & Industries." In its complaint, followed immedi-ately by a motion for preliminary injunction, Sofamor soughtan injunction prohibiting: Brown, and his agents or employees . . . from adopt- ing, publishing, or requiring use of the Consent Form, or any required consent form, or the dissemi- nation of specified information with respect to Sofamor's pedicle screw spinal devices.Sofamor sought neither money damages nor a declaratoryjudgement. Sofamor alleged that Brown uses the ConsentForm for a commercial purpose, and that Sofamor is sufferingcommercial harm as a result of the alleged false and mislead-ing statements therein.In response, Brown moved to dismiss Sofamor's complaintbased on lack of subject matter jurisdiction pursuant to Fed.R. Civ. P. 12(b)(1), and failure to state a claim upon whichrelief can be granted under Fed. R. Civ. P. 12(b)(6). Brownclaimed, inter alia, that he was immune from suit by virtue ofthe Eleventh Amendment, and that S 43(a) of the Lanham Actwas inapplicable to the Consent Form.By consent of the parties, Magistrate Judge J. Kelly Arnoldheard and decided Sofamor's motion for a preliminary injunc-tion and Brown's motion to dismiss, denying both motions.Brown unsuccessfully moved the district court on July 25,1996, for reconsideration of the denial of his motion to dis-miss and thereafter filed a timely notice of appeal. 2IIThe sole issue before us is whether the district court erredin failing to dismiss Sofamor's complaint on EleventhAmendment3 grounds.A[1] The Eleventh Amendment creates an important limita-tion on federal court jurisdiction, generally prohibiting federalcourts from hearing suits brought by private citizens againststate governments without the state's consent. See Hans v.Louisiana,
134 U.S. 1
, 15 (1890); Natural Resources DefenseCouncil v. California Dep't of Transportation, 96 F.3d 420,421 (9th Cir. 1996). Even when Congress is vested with com-plete law-making authority over a particular area by the Con-stitution, the Eleventh Amendment prevents congressionalauthorization of suits by private parties against unconsentingstates. See Seminole Tribe of Florida v. Florida, 116 S. Ct.1114, 1131 (1996). The recognition of sovereign immunityembodied in the Eleventh Amendment has not been limited tothe suits described in its text, however. See Idaho v. Coeurd'Alene, 117 S. Ct. 2028, 2033 (1997); Seminole Tribe, 116S. Ct. at 1122. Acknowledging the broader concept of statesovereign immunity implicit in the Constitution and therespect afforded to states in our federal system, protectionfrom suit has been extended to suits brought by a state's owncitizens, Hans,
134 U.S. 1
, and to suits invoking the federal-question jurisdiction of Article III courts. See Coeur d'Alene,117 S. Ct. at 2033.[2] With one exception, state immunity from suit extendsalso to its agencies and officers. See Puerto Rico Acqueduct,
506 U.S. at 142
-46; Pennhurst State Sch. & Hosp. v. Halder-man,
465 U.S. 89, 101
-02 (1984); Natural Resources DefenseCouncil, 96 F.3d at 421. The Supreme Court recognized theexception in the case of Ex parte Young,
209 U.S. 123
(1908),in which it held that federal courts have jurisdiction over suitsagainst state officers to enjoin official actions that violate fed-eral law, even if the state itself is immune from suit under theEleventh Amendment. See id. at 155-56. The Ex parte Youngdoctrine is predicated on the notion that a state cannot autho-rize one of its agents to violate the Constitution and laws ofthe United States. See Pennhurst,
465 U.S. at 102
; Ex parteYoung,
209 U.S. at 159
-60; Natural Resources Defense Coun-cil, 96 F.3d at 422; Almond Hill Sch. v. United States Dep'tof Agriculture, 768 F.2d 1030, 1034 (9th Cir. 1985). A stateofficer acting in violation of federal law is considered"stripped of his official or representative character" and, con-sequently, is not shielded from suit by the state's sovereignimmunity. See Pennhurst,
465 U.S. at 102
(quoting Ex parteYoung,
209 U.S. at 159
-60); Natural Resources DefenseCouncil, 96 F.3d at 422; Almond Hill Sch., 768 F.2d at 1034.As a result, state officials may, in limited circumstances, besubject to suit in federal court "to permit the federal courts tovindicate federal rights and hold [them] responsible to the`supreme authority of the United States.' " See Pennhurst,
465 U.S. at 105
(quoting Ex parte Young,
209 U.S. at 160
).[3] The Supreme Court recently addressed the "properscope and application" of the Ex parte Young doctrine inIdaho v. Coeur d'Alene. See Coeur d'Alene, 117 S. Ct. at2034. Although the "continuing validity" of Ex parte Youngwas not questioned, the Court cautioned that "application ofthe Young exception must reflect a proper understanding of itsrole in our federal system and respect for state courts insteadof a reflexive reliance on an obvious fiction." Id. Justice Ken-nedy, writing for the majority, emphasized that Ex parteYoung must be interpreted consistently with the "real interestsserved by the Eleventh Amendment." Id. To permit federalcourt jurisdiction in every case where prospective declaratoryand injunctive relief is sought against an officer of the state,named in his official capacity, "would be to adhere to anempty formalism and to undermine the principle, reaffirmedjust last Term in Seminole Tribe, that Eleventh Amendmentimmunity represents a real limitation on a federal court'sfederal-question jurisdiction." Id. B[4] Brown argues as an initial matter that Sofamor's claimmust fail because Ex parte Young applies only to federal con-stitutional violations, not to violations of federal statutory law.We have held that Ex parte Young applies to violations of fed-eral statutory law as well as federal constitutional violations.See, e.g., Natural Resources Defense Council, 96 F.3d at 422(holding that Ex parte Young applies to violations of federalstatutory law); Almond Hill Sch., 768 F.2d at 1034 ("Theunderlying purpose of Ex parte Young seems to require itsapplication to claims against state officials for violations offederal statutes."); see also Pennhurst,
465 U.S. at 105
("[T]he Young doctrine has been accepted as necessary to per-mit the federal courts to vindicate federal rights .. . ."). There-fore, Sofamor's action can not be barred simply because it hasalleged a violation of federal statutory law as opposed to aviolation of the Constitution.[5] Brown further argues that the kind of injunctive reliefsought by Sofamor is not authorized by Ex parte Young. Wedisagree. Sofamor's claim pertains solely to prospectiveinjunctive relief; Sofamor wants Brown to stop making state-ments about its spinal fixation devices which it alleges violatefederal law. Sofamor is not seeking retroactive relief thatwould require the payment of funds from the state treasury.See Pennhurst,
465 U.S. at 102
-03 (holding that federal courtmay award injunction governing state official's future con-duct, but may not award retroactive monetary relief);Edelman v. Jordan,
415 U.S. 651, 667
-69 (1974) (holding thatEleventh Amendment does not bar suit to compel future statecompliance with federal standards for processing welfareapplications, but rejecting injunction ordering retroactive pay-ment of previously owed benefits); Quern v. Jordan, 440 U.S.332, 337 (1979) ("The distinction between the relief permissi-ble under the doctrine of Ex parte Young and that foundbarred in Edelman was the difference between prospectiverelief on one hand and retrospective relief on the other.");Natural Resources Defense Council, 96 F.3d at 422 (federalcourt may award prospective injunctive relief that governsstate official's future conduct, but not retroactive relief thatrequires payment of funds from state treasury). Nor isSofamor seeking any other relief which could arguably beheld to implicate "state policies or procedures " regardinghealthcare in the State of Washington to the extent that theState could be considered the real party in interest in this liti-gation. See Coeur d'Alene, 117 S. Ct. at 2034. Instead,Sofamor has "scrupulously followed the dictates of theSupreme Court's Eleventh Amendment cases" in requestingthis narrowly tailored relief. See National Resources DefenseCouncil, 96 F.3d at 423; see also Coeur d'Alene, 117 S. Ct.at 2046 (O'Connor, J. concurring) ("[A] Young suit is avail-able where a plaintiff alleges an ongoing violation of federallaw and where the relief sought is prospective rather thanretrospective."). Sofamor's suit against Brown is not barredunder traditional Eleventh Amendment analysis.CBrown also argues that Sofamor's suit is neverthelessbarred because the Supreme Court held in Seminole Tribe thatCongress may not abrogate state sovereign immunity underthe Commerce Clause, the constitutional provision underwhich the Lanham Act was enacted. Although Brown is cor-rect to the extent he argues that Seminole Tribe limited thepower of Congress unilaterally to abrogate states' EleventhAmendment immunity to instances where Congress is actingpursuant to a valid grant of constitutional authority, thisaspect of Seminole Tribe does not concern us. Sofamor hasnot brought suit against the State of Washington, but againstone of its officials. Seminole Tribe did not alter the ability to"bring suit against a state officer in order to ensure that theofficer's conduct is in compliance with federal law. " SeminoleTribe, 116 S. Ct. at 1131 n.14.[6] The Supreme Court did acknowledge in Seminole Tribe,however, that even if traditional Ex parte Young criteria areotherwise satisfied, a federal court's discretion to permitactions to proceed against state officials is not unlimited. TheCourt held "where Congress has prescribed a detailed reme-dial scheme for the enforcement against a state of a statutorilycreated right, a court should hesitate before casting asidethose limitations and permitting an action against a state offi-cer based on Ex parte Young." Seminole Tribe, 116 S. Ct at1132. A fortiori, it is within the power of Congress to limit theavailability of Ex parte Young suits against state officers forviolations of federal statutory law. See Natural ResourcesDefense Council, 96 F.3d at 423. In order to determinewhether Sofamor's action against Brown may proceed, there-fore, we are required to determine whether Congress intendedto limit the availability of Ex parte Young suits over a causeof action brought under the statute at issue in the current dis-pute, the Lanham Act.As in any case of statutory interpretation, we turn first tothe text of the statute. In defining the parties subject to its pro-visions, the Lanham Act provides: Any person who [acts in violation of the statute ] . . . shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act . . . . [T]he term "any person " includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instru- mentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.15 U.S.C S 1125(a) (emphasis added). It is evident from theplain language of the statute that Congress intended to autho-rize suit against state officials under the Lanham Act. Indeed,the Lanham Act contemplates suit against state officials evenmore clearly than the Clean Water Act, 33 U.S.C.S 1365,which we held not to contain any Congressional limitation onEx parte Young actions. See Natural Resources DefenseCouncil, 96 F.3d at 424. To compare, the text of the CleanWater Act provides that suit may be brought against "any . . .governmental instrumentality or agency to the extent permit-ted by the eleventh amendment to the Constitution, " whichevidenced Congress' implicit intent to authorize citizens tobring Ex parte Young suits in order to further the goals of thestatute. Id. The Lanham Act is even less ambiguous in thisregard; its remedial scheme does not require us to determineCongress' implicit intent because Congress' explicit authori-zation of Ex parte Young actions is readily discernable fromthe very terms of the statute.[7] We conclude, therefore, that Congress did not intend tolimit the availability of Ex parte Young suits against state offi-cials under the Lanham Act and, thus, the district court didnot err in finding that Seminole Tribe does not preempt theapplication of Ex parte Young to the facts in this case.4III[8] For the foregoing reasons, we conclude that the districtcourt did not err when it held that Brown, as an official of theState of Washington, is subject to suit in federal court foralleged violations of the Lanham Act. The district court'srefusal to dismiss the action for lack of subject matter juris-diction is therefore AFFIRMED and this case isREMANDED to the district court for proceedings not incon-sistent with this opinion.AFFIRMED and REMANDED.
___________________________FOOTNOTES *The Honorable Thomas M. Reavley, Senior United States CircuitJudge for the Fifth Circuit, sitting by designation.1 The Lanham Act, in relevant part, provides: False designations of origin, false descriptions, and dilution forbidden. (a) Civil action (1) Any person who, in connection with any goods or ser- vices, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or mislead- ing description of fact, or false or misleading representation of fact which: (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, spon- sorship, or approval of his or her goods, services, or com- mercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods services, or com- mercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. (2) As used in this subsection, the term "any person" includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her offi- cial capacity. Any State, and any such instrumentality, offi- cer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.15 U.S.C. S 1125(a).2 Appellate courts have jurisdiction to hear appeals only from "finaldecisions" of district courts. See 28 U.S.C. S 1291. A district court's orderdenying a motion to dismiss on a claim of Eleventh Amendment immunityis an immediately appealable "collateral order " under 28 U.S.C. S 1291because the central benefit of immunity, the right not to stand trial in thefirst instance, is effectively lost if a case is erroneously permitted to pro-ceed to trial. See, e.g., Puerto Rico Aqueduct and Sewer Auth. v. Metcalf& Eddy, Inc.,
506 U.S. 139, 143
-44 (1993); Mitchell v. Forsyth, 472 U.S.511, 530 (1985); Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541
,546 (1947). Therefore, we have jurisdiction over Brown's Fed. R. Civ. P.12(b)(1) claim that the district court erred in failing to dismiss Sofamor'scomplaint due to lack of subject matter jurisdiction.We review de novo the issue of whether a party is immune from suitunder the Eleventh Amendment. See, e.g., Eaglesmith v. Ward, 73 F.3d857, 859 (9th Cir. 1995); Harrison v. Hickel, 6 F.3d 1347, 1352 (9th Cir.1993).3 The text of the Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.U.S. Const. amend XI.4 We do not reach the other arguments raised by Brown. On October 22,1996, Brown moved the district court for certification under 28 U.S.C.S 1292(b) of his Fed. R. Civ. P. 12(b)(6) motion, that Sofamor had failedto state a claim under the Lanham Act upon which relief may be granted,but this motion was denied. This issue has never been certified for inter-locutory appeal to the court of appeals pursuant to 28 U.S.C. S 1292(b).Accordingly, we lack jurisdiction to consider this claim. See 28 U.S.C.S 1292(b); Zucker v. Maxicare Health Plans Inc., 14 F.3d 477, 485 (9thCir. 1994) (court of appeals lacks jurisdiction over issues not certifiedunder 28 U.S.C. S 1292(b)).Brown argues for the first time on appeal that he should be entitled tostate action immunity under the doctrine of Parker v. Brown,
317 U.S. 341
(1943). Before an argument will be considered on appeal, "the argumentmust be raised sufficiently for the trial court to rule on it," Broad v.Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996), cert. denied, 117 S. Ct.768 (Jan. 21, 1997) (quoting In Re E.R. Fergert, Inc., 887 F.2d 955, 957(9th Cir. 1989)), or fall within one of the "narrow exceptions" to the gen-eral rule that an issue may not be raised for the first time on appeal. SeeUnited States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990). Brown hasnot argued that there are any "exceptional circumstances" why the issuewas not raised in the district court. See Carlson, 900 F.2d at 1349. Nor hashe claimed that there has been any recent change in the law during thependency of this appeal. Id. Finally, Brown has not convinced us that thisis purely an issue of law and that Sofamor would not be prejudiced as aresult of his failure to raise this issue before the district court. Id. the end