No. 00-1711 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA, PETITIONER 

v. 

PUBLIC SERVICE COMMISSION OF MARYLAND, ET AL. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

Counsel of Record 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

BARBARA MCDOWELL 

Assistant to the Solicitor 

General 

MARK B. STERN 
CHARLES W. SCARBOROUGH 
KATHLEEN A. KANE 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTIONS PRESENTED 

The Telecommunications Act of 1996 (1996 Act), Pub. 
L. No. 104-104, 110 Stat. 56, establishes comprehensive 
procedures to open local telecommunications markets to 
competition through the formation of interconnection 
agreements between incumbent local exchange carriers 
and potential competitors providing, inter alia, for the 
lease of incumbents’ network elements. The 1996 Act 
permits, but does not require, state public utility com- 
missions to assume regulatory authority over those 
agreements and provides that such exercises of author- 
ity are subject to review in federal court. The ques- 
tions presented in this case are: 

1. Whether a state commission’s action relating to 
the interpretation or enforcement of an interconnec- 
tion agreement entered into pursuant to 47 U.S.C. 252 
(Supp. IV 1998) is a “determination under [Section 
252]” and therefore is reviewable in federal court under 
47 U.S.C. 252(e)(6) (Supp. IV 1998). 

2. Whether a federal district court has subject- 
matter jurisdiction under 28 U.S.C. 1331 to determine 
whether a state commission’s action interpreting or en- 
forcing an interconnection agreement violates the 1996 
Act. 

3. Whether a state commission waives its Eleventh 
Amendment immunity by accepting Congress’s invita- 
tion to implement a federal regulatory scheme that 
provides for review of state commission determinations 
in federal court. 

(I) 

II 

4. Whether the doctrine of Ex parte Young, 209 U.S. 
123 (1908), permits an action against the members of a 
state commission in their official capacities to enjoin 
ongoing violations of federal law in performing regula- 
tory functions under the 1996 Act. 

III 
PARTIES TO THE PROCEEDINGS 

The United States of America was an intervenor and 
appellant in the courts below and is a petitioner in this 
Court. Verizon Maryland Inc. (formerly Bell Atlantic) 
was an appellant in the court of appeals. The appellees 
in the court of appeals were the Public Service Com- 
mission of Maryland, together with its members Glenn 
F. Ivey, Claude M. Ligon, E. Mason Hendrickson, 
Susan Brogan, and Catherine I. Riley; American Com- 
munications Services of Maryland, Inc.; RCN Telecom 
Services of Maryland, Inc.; Starpower Communications, 
LLC; TCG-Maryland; MCImetro Access Transmission 
Services, Inc.; Maryland Office of People’s Counsel; and 
MCI WorldCom, Inc. 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 2 

Constitutional and statutory provisions involved ................... 
2 

Statement ........................................................................................ 2 

Discussion ........................................................................................ 11 

Conclusion ....................................................................................... 15 

TABLE OF AUTHORITIES 

Cases: 

AT&T Communications v. BellSouth Telecomms., 

Inc., 238 F.3d 636 (5th Cir. 2001) ...................................... 

12 

AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366 

(1999) ........................................................................................ 2 

MCI Telecomms. Corp. v. Illinois Bell Tel. Co., 

222 F.3d 323 (7th Cir. 2000), cert. denied, 121 S. Ct. 

896 (2001) ................................................................................. 

12 

MCI Telecomms. Corp. v. Public Serv. Comm’n, 

216 F.3d 929 (10th Cir. 2000), cert. denied, 121 

S. Ct. 1167 (2001) ................................................................... 

12 

Mathias v. WorldCom Techs., Inc., 121 S. Ct. 1224 

(2001) ........................................................................................ 11 

Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 

804 (1986) ................................................................................. 

10 

Michigan Bell Tel. Co. v. Climax Tel. Co., 202 F.3d 

862 (6th Cir.), cert. denied, 121 S. Ct. 54 (2000) ............... 

12 

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & 

Eddy, Inc., 506 U.S. 139 (1993) .......................................... 

14 

Southwestern Bell Tel. Co. v. Connect Communica- 
tions Corp., 225 F.3d 942 (8th Cir. 2000) ......................... 

12 

United States v. AT&T, 524 F. Supp. 1336 (D.D.C. 

1981) ......................................................................................... 2 

Vermont Agency of Natural Resources v. United 

States, 529 U.S. 765 (2000) .................................................. 

14 

Young, Ex parte, 209 U.S. 123 (1908) ................................... 7, 12 

(IV) 

V 

Constitution, statutes and rule: 

Page 

U.S. Const. Amend. XI ................................ 

2, 6, 7, 10, 11, 12, 14 

Hobbs Administrative Orders Review Act, 28 U.S.C. 

2341 et seq. (1994 & Supp. V 1999) ...................................... 

5 

Sherman Act, 15 U.S.C. 1 et seq. ............................................ 

2 

Telecommunications Act of 1996, Pub. L. No. 104-104, 

110 Stat. 56 (47 U.S.C. 251 et seq. (Supp. IV 1998)) ........ 

2 

47 U.S.C. 251 ...................................................................... 

3, 5 

47 U.S.C. 251(b)(4) ............................................................ 

4 

47 U.S.C. 251(b)(5) ............................................................ 

6 

47 U.S.C. 251(c) ................................................................. 

4 

47 U.S.C. 251(c)(2) ............................................................. 

3 

47 U.S.C. 251(c)(3) ............................................................. 

4 

47 U.S.C. 251(c)(4) ............................................................. 

4 

47 U.S.C. 251(c)(6) ............................................................. 
4 

47 U.S.C. 252 ............................................................ 
4, 5, 9, 10 

47 U.S.C. 252(b) ................................................................. 
4 

47 U.S.C. 252(c) ................................................................. 
5 

47 U.S.C. 252(e)(1) ............................................................ 
5 

47 U.S.C. 252(e)(2)(A) ...................................................... 
5 

47 U.S.C. 252(e)(2)(B) ....................................................... 
5 

47 U.S.C. 252(e)(4) ............................................................ 
5 

47 U.S.C. 252(e)(5) ............................................................ 
4 

47 U.S.C. 252(e)(6) ..................................... 
5, 6, 9, 10, 12, 13 

28 U.S.C. 1331 ....................................................... 
2, 6, 10, 12, 13 

Fed. R. Civ. P. 19 ...................................................................... 
7 

Miscellaneous: 

H.R. Rep. No. 204, 104th Cong., 1st Sess. (1995) ................ 

3 

H.R. Conf. Rep. No. 458, 104th Cong., 2d Sess. (1996) ...... 2, 3 

In the Supreme Court of the United States 

No. 00-1711 

UNITED STATES OF AMERICA, PETITIONER 

v. 

PUBLIC SERVICE COMMISSION OF MARYLAND, ET AL. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

The Acting Solicitor General, on behalf of the United 
States of America, respectfully petitions for a writ of 
certiorari to review the judgment of the United States 
Court of Appeals for the Fourth Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (reproduced in the 
Appendix to Verizon Maryland’s petition for a writ of 
certiorari in No. 00-1531 [hereinafter Verizon App.] at 
1a-72a) is reported at 240 F.3d 279. The opinion of the 
district court (Verizon App. 73a-90a) is unreported. The 
order of the Maryland Public Service Commission 
(Verizon App. 91a-111a) is unreported. 

(1) 

2 

JURISDICTION 

The judgment of the court of appeals was entered on 
February 14, 2001. The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1). 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

The Eleventh Amendment to the United States 
Constitution, the relevant portions of the Telecom- 
munications Act of 1996, the Federal Communications 
Commission’s implementing regulations, and 28 U.S.C. 
1331 are set forth at Verizon App. 112a-134a. 

STATEMENT 

The Telecommunications Act of 1996 (1996 Act), Pub. 
L. No. 104-104, 110 Stat. 56, effected a comprehensive 
overhaul of telecommunications regulation designed to 
“open[] all telecommunications markets to competition.” 
H.R. Conf. Rep. No. 458, 104th Cong., 2d Sess. 113 
(1996); see generally AT&T Corp. v. Iowa Utils. Bd., 
525 U.S. 366 (1999). This case concerns the provisions 
of the 1996 Act aimed at enhancing competition in local 
telecommunications markets. 

1. For many years, most telephone service in the 
United States was provided by AT&T and its corporate 
affiliates, collectively known as the Bell System. In 
1974, the United States sued AT&T under the Sherman 
Act, 15 U.S.C. 1 et seq., alleging, among other things, 
that the Bell System had improperly used its monopoly 
power in local markets to impede competition in the 
long-distance market. See United States v. AT&T, 524 
F. Supp. 1336 (D.D.C. 1981). In 1982, to settle that law- 
suit, AT&T entered into a consent decree that required 
it to divest its local exchange operations. The newly 
independent Bell Operating Companies continued to 

3 

provide monopoly local exchange service in their 
respective regions. What remained of AT&T continued 
to provide nationwide long-distance service. See H.R. 
Rep. No. 204, 104th Cong., 1st Sess. 48-50 (1995). 

a. In considering how to encourage competition in 
local telephone markets, Congress recognized that the 
economic barriers to entry into those markets would 
remain formidable, even if the regulatory restrictions 
on competition were removed. H.R. Conf. Rep. No. 458, 
supra, at 113. It would be economically impracticable, 
at least with the current technology, for even the 
largest prospective competitor fully to duplicate an 
incumbent carrier’s local network—i.e., to create a new 
network of switches and a new infrastructure of loops 
connecting every house and business in a calling area to 
those switches and thus to one another. Moreover, 
without rights of access to the existing network, a 
prospective competitor could not gradually enter the 
market through partial duplication of local exchange 
facilities; the competitor would win few customers if, 
for example, those customers could call only one 
another and not customers of the incumbent’s separate 
(and already established) network. 

Accordingly, Congress, in Section 251 of the 1996 
Act, 47 U.S.C. 251,1 provided for prospective competi- 
tors to enter local telephone markets by using incum- 
bent carriers’ own networks in three distinct but com- 
plementary ways. First, new entrants are entitled to 
“interconnect” their networks with the incumbent’s 
existing network, and to do so at rates and on terms 
and conditions that are “just, reasonable, and non- 
discriminatory.” 47 U.S.C. 251(c)(2). Second, new 
entrants are entitled to gain access to elements of an 

1 All citations of the 1996 Act are of Supp. IV 1998. 

4 

incumbent’s network “on an unbundled basis”—i.e., to 
lease individual network elements (loops, switching 
capability, etc.) at rates and on terms and conditions 
that are “just, reasonable, and nondiscriminatory.” 47 
U.S.C. 251(c)(3). Third, new entrants are entitled to 
buy an incumbent’s retail services “at wholesale rates” 
and to resell those services to end users. 47 U.S.C. 
251(c)(4). Incumbents are also required to provide 
physical access to their poles, ducts, conduits, and 
rights-of-way, in order to allow new entrants to install 
their own facilities, as well as physical access to their 
premises to permit interconnection among networks. 
47 U.S.C. 251(b)(4) and (c)(6). 

The 1996 Act requires an incumbent to negotiate 
in good faith with a new entrant that requests inter- 
connection, access to network elements, resale of ser- 
vices, and other arrangements contemplated by the 
Act. 47 U.S.C. 251(c), 252. The Act provides for 
binding arbitration in the event that the parties cannot 
conclude such “interconnection agreements” through 
negotiation. 47 U.S.C. 252(b). 

b. The 1996 Act permits, but does not require, state 
public utility commissions to assume regulatory author- 
ity over interconnection agreements, to set the terms 
and conditions for those agreements (subject to the 
standards set forth in the Act and the regulations 
promulgated by the Federal Communications Com- 
mission (FCC) pursuant to the Act), and to exercise re- 
view and enforcement authority. If the state com- 
mission elects not to assume regulatory authority, the 
FCC will perform that role. 47 U.S.C. 252(e)(5). 

Under the 1996 Act, the extent of the regulatory 
responsibilities of the state public utility commission, or 
alternatively the FCC, depends, in part, on whether the 
interconnection agreement was negotiated or arbi- 

5 

trated. A negotiated agreement is subject to review 
by the state commission (or, if the state commission 
chooses not to regulate, by the FCC) to determine 
whether the agreement discriminates against non-party 
carriers and is consistent with the public interest, 
convenience, and necessity. 47 U.S.C. 252(e)(2)(A). 

If the parties are unable to conclude an agreement 
through negotiations and proceed to arbitration, the 
state public utility commission (or, if the state com- 
mission chooses not to regulate, the FCC) will resolve 
any open issue, including the rates, terms, and con- 
ditions under which competitors will enter the local 
market, as well as prices that the incumbent and the 
new entrant will pay one another for transport and 
termination of calls. The 1996 Act sets forth standards 
for state commissions to follow in setting such rates; the 
state commissions are also required to follow FCC 
regulations. 47 U.S.C. 252(c). An arbitrated agreement 
is subject to review by the state commission to deter- 
mine whether the agreement complies with Sections 
251 and 252 of the 1996 Act and applicable FCC regu- 
lations. 47 U.S.C. 252(e)(1) and (2)(B). If the state 
commission does not act to approve or reject an agree- 
ment within the allotted time period, the agreement is 
deemed approved. 47 U.S.C. 252(e)(4). 

The 1996 Act provides that any party “aggrieved” by 
a determination of a state public utility commission may 
file suit in federal district court for a determination 
“whether the agreement * * * meets the require- 
ments of ” Sections 251 and 252 of the Act. 47 U.S.C. 
252(e)(6). If the FCC rather than the State has 
assumed the regulatory role, the Hobbs Administrative 
Orders Review Act, 28 U.S.C. 2341 et seq. (1994 & 
Supp. V 1999), authorizes federal appellate court re- 
view of the FCC’s orders. 

6 

2. The Public Service Commission of Maryland 
(MPSC) has voluntarily exercised regulatory authority 
under the 1996 Act. The MPSC approved interconnec- 
tion agreements between Bell Atlantic, the incumbent 
service provider in Maryland (and a predecessor to 
Verizon Communications, Inc.), and prospective en- 
trants to the local telephone markets, including MCI 
WorldCom. As required under the 1996 Act, those 
agreements provided for the payment of reciprocal 
compensation (i.e., payments by the carrier of the party 
originating a local call to the carrier of the party 
receiving the call) for “local” calls. See 47 U.S.C. 
251(b)(5). When a dispute subsequently arose concern- 
ing Bell Atlantic’s obligation to pay reciprocal compen- 
sation for calls bound for internet service providers, the 
MPSC again exercised regulatory authority under the 
1996 Act, issuing a determination that such calls are 
“local” and ordering the payment of reciprocal compen- 
sation. 

3. Invoking 47 U.S.C. 252(e)(6) and 28 U.S.C. 1331, 
Bell Atlantic sought review of the MPSC’s reciprocal 
compensation order in federal district court, arguing 
that the order was contrary to federal law. Bell 
Atlantic named as defendants the MPSC, its individual 
commissioners in their official capacities, and the 
affected carriers. 

The MPSC and its commissioners moved to dismiss. 
They argued that the district courts lack subject- 
matter jurisdiction to review decisions of a state public 
utility commission enforcing (as opposed to approving 
or rejecting) a previously approved interconnection 
agreement. They also argued that state commissions 
and their commissioners are immune from such actions 
under the Eleventh Amendment. The United States 

7 

intervened to defend the constitutionality of the judicial 
review provisions of the 1996 Act. 

The district court dismissed the action. The court 
concluded that the Eleventh Amendment barred suit 
against the MPSC and its individual members. Verizon 
App. 77a-84a. The court rejected the argument that the 
MPSC had waived its sovereign immunity by volun- 
tarily electing to exercise regulatory authority under 
the 1996 Act. Id. at 77a-79a. The court also rejected 
the argument that the action could proceed against 
the individual commissioners under the doctrine of 
Ex parte Young, 209 U.S. 123 (1908), which authorizes 
actions against state officers in their official capacities 
to enjoin violations of federal law. Verizon App. 79a- 
83a. The court then concluded that the MPSC was an 
indispensable party to the action under Rule 19 of the 
Federal Rules of Civil Procedure, and thus that the 
action had to be dismissed against the other defendants 
as well. Verizon App. 84a-86a. 

4. A divided panel of the Fourth Circuit affirmed. 
The panel held that state public utility commissions and 
their commissioners are immune from suit in federal 
court under the Eleventh Amendment. The panel also 
held that the district courts lack subject-matter juris- 
diction to review state commission decisions enforcing 
or interpreting previously approved interconnection 
agreements. Verizon App. 1a-51a. 

First, the panel held that the MPSC had not waived 
its sovereign immunity by electing to exercise regu- 
latory authority over interconnection agreements 
entered into pursuant to the 1996 Act. Verizon App. 
14a-21a. The panel accepted that “a State commission 
that elects to make § 252 determinations must, of 
necessity, also be electing to have its determinations 
reviewed by a federal court under § 252(e)(6).” Id. at 

8 

14a-15a. But the panel declined to “infer from this 
consent to federal-court review a consent by a State 
commission itself to be made a party to that federal 
review.” Id. at 15a. The panel noted that no provision 
of the Act expressly states that a state commission, by 
electing to regulate under the 1996 Act, “thereby 
agrees to be named as a party in federal court or * * * 
waives its Eleventh Amendment immunity.” Ibid. The 
panel concluded that, absent such an “unmistakably 
clear and unequivocal” expression of Congress’s intent 
“to condition State utility commissions’ participation in 
the regulation of interconnection agreements on a 
waiver of sovereign immunity from private suit,” no 
such waiver could properly be inferred. Id. at 18a-19a. 

Second, the panel held that the individual commis- 
sioners are not amenable to suit under Ex parte Young. 
Verizon App. 21a-30a. The panel focused its analysis on 
“the federal interests served by permitting [such] a 
federal suit.” Id. at 24a. The panel reasoned that “[t]he 
federal interest furthered by the 1996 Act is to have 
§ 252 determinations made by State commissions re- 
viewed in federal court,” not “to discipline individual 
State officials or to expose them to any liability.” Ibid. 
The panel concluded that “this interest would not be 
frustrated if we were to preserve the Eleventh Amend- 
ment immunity of State officials with respect to such 
suits.” Id. at 25a. 

In addition, the panel expressed doubt that “Bell 
Atlantic’s action is designed to prevent an ongoing 
violation of federal law,” noting that federal law does 
not clearly prohibit the treatment of ISP-bound calls 
as “local” traffic. Verizon App. 25a-27a. The panel 
suggested that, “in any suit against State commis- 
sioners, it is more likely that State-contract-law, rather 

9 

than federal-law, violations would be redressed.” Id. at 
29a. 

The panel also suggested that allowing Ex parte 
Young actions to challenge the decisions of state 
commissions “would improperly expand the federal 
remedy selected by Congress.” Verizon App. 29a. The 
panel construed the 1996 Act as reflecting Congress’s 
determination to limit federal court review to only 
those decisions of state commissions that involve the 
initial approval or rejection of interconnection agree- 
ments. Id. at 28a-29a. 

Third, the panel held that federal district courts do 
not have jurisdiction under Section 252(e)(6) to review 
state commission decisions enforcing previously ap- 
proved interconnection agreements, as distinguished 
from decisions approving or rejecting interconnection 
agreements in the first instance. Verizon App. 30a-47a. 
The panel noted that Section 252(e)(6) provides, by its 
terms, for review of state commission “determination[s] 
under this section [i.e., Section 252]” to ascertain 
whether those determinations “meet[] the require- 
ments of section 251 and this section [i.e., Section 252].” 
Id. at 38a-39a. The panel reasoned that “in the final 
analysis, the State commission determinations under 
§ 252 involve only approval or rejection of such agree- 
ments.” Id. at 39a. The panel concluded that other 
state commission determinations, including those en- 
forcing interconnection agreements, are “left for review 
as specified by State law.” Ibid. 

Here, the panel noted that the MPSC had approved 
the interconnection agreements between Bell Atlantic 
and MCI Worldcom and that “no party challenged that 
approval” in the district court. Verizon App. 40a. The 
panel concluded that the MPSC’s decision enforcing 
that previously approved agreement “was not a § 252 

10 

determination and therefore was not reviewable in 
federal court by virtue of § 252(e)(6).” Id. at 43a. 

Finally, the panel held that 28 U.S.C. 1331 likewise 
does not provide a basis for federal court jurisdiction to 
review state commission decisions enforcing intercon- 
nection agreements. Verizon App. 47a-50a. The panel 
reasoned that Congress intended to limit federal court 
review with respect to the Section 252 process to the 
circumstances specified in Section 252(e)(6). “[I]n light 
of the limited grant of federal jurisdiction in 47 U.S.C. 
§ 252(e)(6),” the court observed, “the exercise of § 1331 
general federal-question jurisdiction would ‘flout, or at 
least undermine, congressional intent.’ ” 

Id. at 48a 
(quoting Merrell Dow Pharms. Inc. v. Thompson, 478 
U.S. 804, 812 (1986)). 

5. Judge King dissented from the panel’s holdings on 
both the jurisdictional issue and the Eleventh Amend- 
ment issue, which he noted were in conflict with hold- 
ings of the Fifth, Sixth, Seventh, Eighth, and Tenth 
Circuits. Verizon App. 52a-53a (citing cases). On the 
jurisdictional issue, Judge King concluded that federal 
district courts have jurisdiction under Section 252(e)(6) 
to review state commission decisions enforcing pre- 
viously approved interconnection agreements. Verizon 
App. 54a-58a. He reasoned that “the power granted to 
states under § 252 to approve or reject interconnection 
agreements * * * necessarily includes the power to 
enforce the interconnection agreement.” Id. at 55a 
(internal quotation marks omitted). He therefore con- 
cluded that a state commission decision enforcing an 
interconnection agreement is a “determination under 
[Section 252]” within the meaning of the grant of 
federal court jurisdiction in Section 252(e)(6). Ibid. 

On the Eleventh Amendment issue, Judge King con- 
cluded that the MPSC waived its sovereign immunity 

11 

by electing to exercise regulatory authority under the 
1996 Act. Verizon App. 59a-67a He disagreed with the 
panel majority’s determination that Congress had not 
invited the States to waive their sovereign immunity 
with sufficient clarity. He viewed the judicial review 
provisions of the Act as “clearly show[ing] Congress’s 
intent to subject participating states to suit in federal 
court.” Id. at 60a-61a. 

In the alternative, Judge King concluded that the 
individual MPSC commissioners are amenable to suit 
under Ex parte Young. Verizon App. 67a-71a. He 
reasoned that the 1996 Act does not create an elaborate 
remedial scheme that would be improperly “expand- 
[ed]” by allowing such review, id. at 69a-70a, and that 
Maryland has no “special sovereignty interest” in the 
regulation of aspects of local telecommunications now 
governed by the Act, id. at 71a. 

DISCUSSION 

1. On March 5, 2001, this Court granted the petition 
for a writ of certiorari in Mathias v. WorldCom 
Technologies, Inc. (No. 00-878). See 121 S. Ct. 1224. 
The questions presented in Mathias, which arises from 
a decision of the Seventh Circuit, are essentially identi- 
cal to the questions presented in this case: whether 
federal district courts have subject-matter jurisdiction 
over actions to review state public utility commission 
decisions enforcing interconnection agreements entered 
into pursuant to the 1996 Act, and whether state 
commissions or their commissioners may be 
made defendants in such actions consistent with the 
Eleventh Amendment. 

The United States has intervened in a number of 
cases, including the present case, in order to address 

12 

those issues.2 
The United States has taken the position 

that the district courts possess jurisdiction, under 47 
U.S.C. 252(e)(6) and 28 U.S.C. 1331, over actions seek- 
ing review of state commission decisions enforcing pre- 
viously approved interconnection agreements. In 
addition, the United States has taken the position that 
the Eleventh Amendment does not preclude such 
actions against state commissions or individual state 
commissioners in their official capacities. The United 
States has argued that state commissions waived their 
sovereign immunity by electing to exercise regulatory 
authority under the 1996 Act; alternatively, the United 
States has argued that state commissioners are 
amenable to such suits under the doctrine of Ex parte 
Young, 209 U.S. 123 (1908). 

The Court’s decision in Mathias will very likely affect 
the proper disposition of this case. The petition for a 
writ of certiorari should, therefore, be held pending this 
Court’s decision in Mathias and then disposed of as 
appropriate in light of that decision. 

2. We note, however, that there are two considera- 
tions that might warrant also granting plenary review 
in this case. 

First, Verizon, in its own petition for certiorari, urges 
that this case affords the Court an opportunity to 

2 See, e.g., AT&T Communications v. BellSouth Telecomms., 
Inc., 238 F.3d 636 (5th Cir. 2001); Southwestern Bell Tel. Co. v. 
Connect Communications Corp., 225 F.3d 942 (8th Cir. 2000); MCI 
Telecomms. Corp. v. Illinois Bell Tel. Co., 222 F.3d 323 (7th Cir. 
2000), cert. denied, 121 S. Ct. 896 (2001); MCI Telecomms. Corp. v. 
Public Serv. Comm’n, 216 F.3d 929 (10th Cir. 2000), cert. denied, 
121 S. Ct. 1167 (2001); Michigan Bell Tel. Co. v. Climax Tel. Co., 
202 F.3d 862 (6th Cir.), cert. denied, 121 S. Ct. 54 (2000). The 
United States did not intervene, however, in the lower court pro- 
ceedings in Mathias. 

13 

consider whether 28 U.S.C. 1331 provides an alterna- 
tive basis for federal court jurisdiction to review state 
commission determinations enforcing interconnection 
agreements. See Pet. at 3-4, 15-26, Verizon Maryland 
Inc. v. Public Serv. Comm’n, No. 00-1531. As Verizon 
notes, the jurisdictional question on which the Court 
granted certiorari in Mathias refers only to 47 U.S.C. 
252(e)(6), and the Seventh Circuit did not address the 
question of jurisdiction under 28 U.S.C. 1331 in that 
case. See Pet. App. at 24a, 29a n.3, Mathias v. 
WorldCom Techs., Inc., No. 00-878. 

In our view, however, this Court could consider in 
Mathias whether federal court jurisdiction to review 
such state commission determinations exists under 28 
U.S.C. 1331, if this Court were to disagree with the 
Seventh Circuit’s holding that jurisdiction exists under 
47 U.S.C. 252(e)(6). The plaintiff in Mathias cited 28 
U.S.C. 1331 as an alternative basis for jurisdiction. See 
Pet. at 7, Mathias, supra, No. 00-878. The district court, 
after determining that federal court jurisdiction existed 
under 47 U.S.C. 252(e)(6), noted that it therefore did 
not have to consider whether jurisdiction also existed 
under 28 U.S.C. 1331. See Pet. App. at 29a n.3, 
Mathias, supra, No. 00-878. The Seventh Circuit like- 
wise had no reason to reach the issue of Section 1331 
jurisdiction in light of its conclusion that jurisdiction 
existed under Section 252(e)(6). In opposing the peti- 
tion for certiorari in Mathias, the respondents noted 
the availability of 28 U.S.C. 1331 as an alternative 
basis for jurisdiction. See Br. in Opp. of Worldcom 
Technologies, Inc., et al., at 20, Mathias, supra, No. 00- 
878. 

As Verizon’s petition for certiorari notes (at 14), the 
telecommunications industry and federal and state 
regulators have a need for prompt and definitive 

14 

resolution of the question whether federal courts may 
review state commission decisions enforcing intercon- 
nection agreements. Accordingly, if the Court has 
substantial doubt about its ability in Mathias to con- 
sider Section 1331 as an alternative basis for juris- 
diction, we suggest that the Court grant our petition 
and Verizon’s petition in this case, rather than hold the 
petitions pending the disposition of Mathias, so that the 
jurisdictional question may be definitively resolved 
during the Court’s October 2001 Term. 

Second, some question may exist as to the standing 
of the Illinois Commerce Commission (ICC) and its 
commissioners in Mathias to seek review of the 
Seventh Circuit’s Eleventh Amendment and juris- 
dictional holdings. The Seventh Circuit affirmed the 
ICC’s underlying ruling that was challenged in 
Mathias. A decision by this Court in the ICC’s favor on 
the Eleventh Amendment or jurisdictional issues would 
afford the ICC no greater relief with respect to that 
case. This Court may conclude, however, that the ICC 
and its commissioners have standing to raise those 
issues.3 Again, if the Court has any substantial concern 
about the ICC’s standing in Mathias, the Court may 
wish to grant plenary review in this case as well. 

3 It would nonetheless appear that the ICC would be able to 
assert its Eleventh Amendment arguments on an interlocutory 
appeal in future litigation. See Puerto Rico Aqueduct & Sewer 
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993). And, because 
the issue of statutory jurisdiction is logically antecedent to that of 
Eleventh Amendment immunity, see Vermont Agency of Natural 
Resources v. United States, 529 U.S. 765, 779 (2000), an inter- 
locutory appeal also could properly present the jurisdictional 
question. 

15 

CONCLUSION 

The petition for a writ of certiorari should be held 
pending this Court’s decision in Mathias v. WorldCom 
Technologies, Inc., No. 00-878, and disposed of as ap- 
propriate in light of the decision in that case. Alter- 
natively, the petition should be granted and the case 
should be considered together with Mathias. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

BARBARA MCDOWELL 

Assistant to the Solicitor 

General 

MARK B. STERN 
CHARLES W. SCARBOROUGH 
KATHLEEN A. KANE 

Attorneys 

MAY 2001