Kelsey v. Kessel – Second Circuit Clarifies that Eleventh-Amendment Dismissals Must Be Without Prejudice and Re-emphasises the “Ongoing-Violation” Prerequisite to Ex parte Young

1. Introduction

In Kelsey v. Kessel, No. 24-1105 (2d Cir. May 7 2025), the United States Court of Appeals for the Second Circuit addressed whether a disbarred attorney could invoke the Ex parte Young exception to sovereign immunity to pursue prospective relief against a New York assistant district attorney who had prosecuted him for violating an order of protection (OOP).

The appellant, Michael N. Kelsey (pro se), claimed that the prosecution chilled his First Amendment right to petition the courts because mailing legal papers to the protected individual could expose him to renewed criminal charges. The district court dismissed the action for lack of subject-matter jurisdiction, holding that sovereign immunity barred the claim and that Ex parte Young did not apply; it also dismissed the case “with prejudice.”

On appeal the Second Circuit:

• Affirmed the jurisdictional dismissal, agreeing that Kelsey failed to allege an ongoing violation of federal law as required by Ex parte Young.
• Modified the judgment to specify that the dismissal is without prejudice, reiterating that Eleventh-Amendment dismissals, being jurisdictional, cannot operate with claim-preclusive effect.

2. Summary of the Judgment

Reviewing de novo, the Court held:

1. No Ongoing Violation Alleged. Kelsey offered only speculative, conditional statements that he might mail legal papers in the future. Such assertions were conclusory and insufficient under the plausibility standard.
2. Ex parte Young Inapplicable. Because the first prong (ongoing violation) of the two-part Ex parte Young test was unmet, the suit against the state officer in her official capacity remained barred by sovereign immunity.
3. Jurisdictional Dismissal Must Be Without Prejudice. Eleventh-Amendment immunity strips the court of power to reach the merits; thus, any dismissal must be without prejudice to refiling if jurisdictional defects are later cured.

3. Analysis

3.1 Precedents Cited and Their Influence

• Ex parte Young, 209 U.S. 123 (1908)
  – Established the exception permitting federal courts to enjoin state officials from ongoing violations of federal law. The Court revisited its twin requirements: (1) ongoing violation, (2) prospective relief.
• NAACP v. Merrill, 939 F.3d 470 (2d Cir. 2019) (per curiam)
  – Provides de novo review standard for immunity questions, cited for appellate posture.
• Silva v. Farrish, 47 F.4th 78 (2d Cir. 2022)
  – Restates the two-part Ex parte Young test. The panel used Silva as its primary doctrinal anchor.
• Lugo v. City of Troy, 114 F.4th 80 (2d Cir. 2024) & Jok v. City of Burlington, 96 F.4th 291 (2d Cir. 2024)
  – Supply the pleading standards for facial Rule 12(b)(1) challenges and clarify the plaintiff’s burden to establish federal jurisdiction.
• Makarova v. United States, 201 F.3d 110 (2d Cir. 2000)
  – Quoted for the proposition that a plaintiff must show an applicable waiver or exception to sovereign immunity.
• Vega v. Semple, 963 F.3d 259 (2d Cir. 2020) & MSP Recovery v. Hereford, 66 F.4th 77 (2d Cir. 2023)
  – Stand for the rule that jurisdictional dismissals are inherently without prejudice. These cases drove the panel’s correction of the district court’s order.
• Procedural Integrity Cases: Wright v. Ernst & Young, 152 F.3d 169 (2d Cir. 1998) (no amendment by appellate brief) and Michael Grecco Prods. v. RADesign, 112 F.4th 144 (2d Cir. 2024) (judicial notice) were invoked to reject belated factual allegations.

3.2 Legal Reasoning

(a) Sovereign-Immunity Framework. States and state officials in their official capacities share Eleventh-Amendment immunity from suits for damages or retroactive relief. Congress did not abrogate immunity under § 1983, nor did New York consent. Thus, Kelsey’s only avenue was Ex parte Young.

(b) Application of Ex parte Young.

• Ongoing Violation. The complaint contained conditional language (“should he attempt …”) rather than an actual, concrete intention to perform the proscribed conduct. The Second Circuit treated this as speculative, contrasting with cases where plaintiffs alleged planned future conduct (e.g., Susan B. Anthony List type controversies).
• Prospective Relief. While Kelsey did seek declaratory and injunctive relief, the absence of an ongoing violation made analysis of this prong unnecessary.

(c) Procedural Consequence – With vs. Without Prejudice. By labelling the dismissal “with prejudice,” the district court inadvertently suggested a merits adjudication. The panel corrected this, citing the well-settled rule that jurisdictional dismissals lack preclusive effect. The opinion thereby safeguards a plaintiff’s ability to re-file if jurisdiction can be established later.

3.3 Likely Impact

• Reaffirmation of Pleading Burdens. Plaintiffs invoking Ex parte Young within the Second Circuit must plead non-conclusory facts showing a real and immediate threat of future enforcement. Bare fears of prosecution or conditional statements are not enough.
• Guidance for District Courts. The correction from “with” to “without prejudice” signals to trial judges that any Eleventh-Amendment dismissal must leave the door open for future litigation if circumstances change.
• Prosecutorial Immunity Context. The decision, though summary, underscores that official-capacity claims are an entirely different sovereign-immunity inquiry from individual-capacity claims invoking absolute prosecutorial immunity.
• Strategic Considerations for Litigants. Litigants contemplating suits against state officials should assemble concrete allegations of future conduct and threatened enforcement (e.g., planned demonstrations, filings, or transactions) to satisfy Ex parte Young.

4. Complex Concepts Simplified

• Eleventh Amendment / Sovereign Immunity. A doctrine barring federal courts from hearing suits against a state or state official (when sued in an official capacity) unless immunity is waived or abrogated.
• Ex parte Young Exception. Allows federal courts to enjoin state officials from ongoing violations of federal law. It does not permit retrospective relief for past wrongs.
• Prospective vs. Retrospective Relief. Prospective relief stops future illegal acts (injunctions, declarations), while retrospective relief compensates for past harm (damages). Only the former fits within Ex parte Young.
• Rule 12(b)(1) Facial Challenge. A motion arguing the complaint fails on its face to establish federal jurisdiction, accepted as true only if facts are well-pleaded.
• With Prejudice / Without Prejudice. A dismissal “with prejudice” ends the case permanently on the merits; “without prejudice” allows the plaintiff to re-file if the defect can be cured.

5. Conclusion

Kelsey v. Kessel is a concise yet instructive decision. It makes two doctrinal contributions in the Second Circuit:

1. It reiterates that a plaintiff must allege concrete, imminent conduct triggering enforcement to invoke the Ex parte Young pathway around sovereign immunity.
2. It corrects lower-court practice by affirming that Eleventh-Amendment dismissals require disposition without prejudice, preserving the plaintiff’s ability to re-plead if jurisdictional facts later crystallise.

For constitutional litigators, the case emphasises meticulous factual pleading and vigilance in ensuring that jurisdictional dismissals are properly framed. For the judiciary, it serves as a reminder of the jurisdiction-merits divide that underpins the federal court system.