Tenth Circuit Clarifies Ex parte Young’s Availability for Takings Claims Without an Adequacy-of-Remedy Inquiry

Commentary on Teva Pharmaceuticals v. Weiser (10th Cir. Sept. 5, 2025)

Introduction

Teva Pharmaceuticals v. Weiser presents a high-stakes collision of state drug-affordability policy and federal constitutional procedure. Colorado enacted a program capping the out-of-pocket price that qualifying uninsured consumers pay for epinephrine auto-injectors (EpiPens) at $60 per two-pack. To make pharmacies whole, the law requires manufacturers to either reimburse the pharmacy’s higher acquisition cost or replace (resupply) the dispensed units. Teva, a manufacturer subject to the law, alleges that this “reimburse or resupply” mandate effects an uncompensated taking in violation of the Fifth Amendment’s Takings Clause.

The case reached the Tenth Circuit on an interlocutory appeal from the denial of a motion to dismiss. The dispositive issue on appeal was narrow but consequential: whether the Eleventh Amendment bars Teva’s federal suit for injunctive relief against the Colorado Attorney General and members of the State Board of Pharmacy in their official capacities—or whether the Ex parte Young exception permits the suit to go forward. The Tenth Circuit affirmed the district court’s refusal to dismiss, holding that under the Supreme Court’s “straightforward inquiry” from Verizon Maryland, Inc. v. Public Service Commission of Maryland, Ex parte Young allows Teva’s action to proceed, irrespective of any just-compensation remedy available in state court and without asking, at the jurisdictional gateway, whether legal remedies are adequate.

Summary of the Judgment

• The panel affirmed the district court’s denial of Eleventh Amendment immunity and allowed Teva’s suit to proceed against state officials under Ex parte Young.
• Applying Verizon Maryland’s “straightforward inquiry,” the court held that Teva’s complaint (1) alleges an ongoing violation of federal law (an unconstitutional taking) and (2) seeks relief properly characterized as prospective (an injunction preventing enforcement of the “reimburse or resupply” requirement).
• The court clarified that its prior decision in Williams v. Utah Department of Corrections does not bar Ex parte Young in Takings Clause suits; Williams addressed the Eleventh Amendment’s general applicability to takings claims but did not displace the traditional Ex parte Young exception.
• The adequacy of legal remedies (e.g., the availability of a state inverse-condemnation action) is not part of whether Ex parte Young “suit lies” under Verizon’s threshold inquiry. That question may matter later when a court determines whether to grant an injunction, but it does not defeat jurisdiction at the outset.
• To the extent other circuits conflate Ex parte Young’s threshold with the adequacy-of-remedy analysis, the Tenth Circuit expressly adheres to Verizon’s “straightforward inquiry” and departs from contrary Eighth Circuit approaches.

Background and Parties

Colorado’s 2023 law (H.B. 23-1002; codified at Colo. Rev. Stat. § 12-280-142) aimed to improve access to epinephrine auto-injectors by capping eligible uninsured consumers’ cost at $60 per two-pack. Pharmacies that sell at this capped price may recoup losses by submitting claims to manufacturers. Manufacturers, in turn, must either:

• Reimburse the pharmacy in the amount it paid for the dispensed auto-injectors; or
• Resupply the pharmacy with an equivalent quantity of auto-injectors.

Failure to comply is deemed a deceptive trade practice, subjecting manufacturers to fines. Teva sued the Colorado Attorney General and State Board of Pharmacy members in their official capacities, seeking declaratory and injunctive relief against enforcement of the reimburse/resupply mandate as an unconstitutional taking. The district court denied a motion to dismiss on Eleventh Amendment grounds. The defendants appealed under the collateral order doctrine.

Detailed Analysis

1) The Legal Framework: Eleventh Amendment and Ex parte Young

The Eleventh Amendment ordinarily bars federal suits against nonconsenting states and state officials (in their official capacities) for retrospective relief, including damages. But Ex parte Young creates a well-known, “narrow” yet vital exception: private parties may sue state executive officers for prospective injunctive relief to end an ongoing violation of federal law. The Supreme Court in Verizon Maryland distilled the gatekeeping inquiry to two questions:

• Does the complaint allege an ongoing violation of federal law?
• Does the plaintiff seek relief properly characterized as prospective?

If the answers are “yes,” the suit may proceed under Ex parte Young, regardless of the merits of the federal claim or whether a legal remedy might ultimately be deemed adequate to preclude an injunction at a later, remedial stage.

2) Application to Teva’s Complaint

• Ongoing violation: Teva alleges that Colorado’s “reimburse or resupply” mandate effects a Fifth Amendment taking without just compensation. The alleged violation is ongoing because the mandate is operative and enforced.
• Prospective relief: Teva seeks an injunction preventing state officials from enforcing the mandate moving forward. That is quintessentially prospective, as distinguished from a claim for retroactive damages for past losses.

The court emphasized that whether an injunction will ultimately issue (given equitable principles like the adequacy of legal remedies) is a distinct, later question. At the jurisdictional threshold, the complaint fits within Ex parte Young.

3) What the Court Did—and Did Not—Decide

• Decided: Ex parte Young permits Teva’s federal suit against state officials to proceed notwithstanding Eleventh Amendment immunity.
• Not decided: (a) Whether Colorado’s program is in fact an unconstitutional taking; (b) whether Teva is entitled to an injunction on the merits; or (c) whether Teva can prove the inadequacy of legal remedies to justify final equitable relief. The district court previously denied preliminary injunctive relief but left the door open to later injunctive relief depending on the development of the record.

4) Precedents and How They Shaped the Outcome

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

The foundation of the modern doctrine permitting federal courts to enjoin state officials from enforcing unconstitutional state laws. The Tenth Circuit applies its core rationale: prospective relief to halt ongoing violations is not barred by the Eleventh Amendment.

Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635 (2002)

The Supreme Court instructed courts to conduct a “straightforward inquiry” to determine if suit lies under Ex parte Young: look only to whether the complaint alleges an ongoing violation of federal law and seeks prospective relief. The Tenth Circuit adopts this test verbatim and refuses to expand the threshold inquiry to consider the ultimate availability of equitable relief or adequacy of legal remedies.

Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021)

Reiterates Ex parte Young’s grounding “in traditional equity practice” and clarifies when state officials may be proper defendants in suits challenging state laws. Here, state officials with enforcement authority over the affordability statute are standard Ex parte Young defendants.

Williams v. Utah Department of Corrections, 928 F.3d 1209 (10th Cir. 2019)

Williams held that Eleventh Amendment immunity generally extends to takings claims so long as a remedy exists in state court. Defendants argued Williams foreclosed Ex parte Young for takings claims if a state remedy exists. The Tenth Circuit rejects that reading: Williams recognized the general rule but separately considered—and declined to apply—Ex parte Young on that case’s facts. Williams did not abrogate Ex parte Young for takings claims; it simply held that the exception did not apply on the allegations there. Teva clarifies any confusion by explicitly reaffirming that Ex parte Young can apply to Takings Clause suits.

Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007)

Hill underscores the distinction between prospective and retrospective relief. Relief that is forward-looking, aimed at preventing ongoing enforcement, falls within Ex parte Young; requests that are, in substance, for retroactive monetary relief do not. Teva’s requested injunction is prospective.

Hendrickson v. AFSCME Council 18, 992 F.3d 950 (10th Cir. 2021); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299 (1990); Collins v. Daniels, 916 F.3d 1302 (10th Cir. 2019)

These decisions frame the Eleventh Amendment’s scope and the standard of review (de novo) for immunity-based dismissals, reinforcing the analytical posture of Teva’s appeal.

Comparative Circuit Decisions

• Sixth Circuit: Laborers’ International Union of North America, Local 860 v. Neff, 29 F.4th 325 (6th Cir. 2022). The Tenth Circuit reads Laborers’ as recognizing Ex parte Young at the threshold and only later assessing whether injunctive relief is available—consistent with Verizon’s sequence.
• Eighth Circuit: Long v. Area Manager, Bureau of Reclamation, 236 F.3d 910 (8th Cir. 2001); EEE Minerals, LLC v. State of North Dakota, 81 F.4th 809 (8th Cir. 2023). To the extent these decisions embed an adequacy-of-remedy inquiry into Ex parte Young’s threshold, the Tenth Circuit departs and hews to Verizon’s “straightforward inquiry.” Notably, the Eighth Circuit has applied Ex parte Young after finding state remedies inadequate in a takings setting, see Pharmaceutical Research & Manufacturers of America v. Williams, 64 F.4th 932 (8th Cir. 2023), but Teva holds that such “adequacy” analysis is not a prerequisite to clearing the Ex parte Young bar.

5) The Court’s Legal Reasoning, Step by Step

1. Identify the controlling test: Verizon Maryland’s “straightforward inquiry” governs whether Ex parte Young permits suit.
2. Apply the two prongs:
   • Ongoing violation: Teva alleges a present, continuing Takings Clause violation triggered by Colorado’s mandate.
   • Prospective relief: Teva seeks to enjoin future enforcement, not to recover damages for past harms.
3. Exclude non-threshold considerations: Whether a legal remedy is ultimately adequate—and thus whether an injunction should issue—is not part of the Ex parte Young jurisdictional analysis. The merits of the takings claim and traditional equitable factors (likelihood of success, irreparable harm, adequacy of legal remedies, balance of equities, public interest) come later.
4. Clarify circuit precedent: Williams does not bar Ex parte Young in takings cases; it merely recognized the general Eleventh Amendment rule and then, separately, found Ex parte Young inapplicable under its facts. Teva therefore fits comfortably within, not outside, the Tenth Circuit’s own precedent.
5. Address inter-circuit views: The Tenth Circuit aligns with Verizon and, to the extent other circuits have blended adequacy inquiries into the Ex parte Young threshold, declines to do so.

6) Impact and Forward-Looking Implications

Teva’s jurisdictional holding is small but significant, especially in regulated industries:

• Takings plaintiffs may sue state enforcement officials in federal court to enjoin ongoing enforcement of state laws, even where a state inverse-condemnation remedy exists. The Eleventh Amendment does not block the courthouse door when the plaintiff alleges an ongoing constitutional violation and seeks prospective relief.
• States cannot insulate enforcement of price-cap or “reimburse or resupply” regimes from federal-court scrutiny merely by pointing to the availability of state compensation remedies. Plaintiffs in the Tenth Circuit will clear the Ex parte Young threshold if they plead ongoing violations and seek forward-looking relief.
• The practical effect is to keep federal merits litigation alive in regulatory takings challenges to state economic regulations, potentially increasing pre-enforcement or ongoing-enforcement injunction requests against state actors in the pharmaceutical, energy, and infrastructure spaces.
• Litigants should note, however, that clearing Ex parte Young does not guarantee an injunction. Plaintiffs must still satisfy the traditional equitable requirements, including showing that money damages would be inadequate—an issue the Tenth Circuit emphasizes is distinct from the threshold jurisdictional analysis.
• Doctrinally, the decision tightens the Tenth Circuit’s adherence to Verizon’s two-prong test and clarifies intra-circuit law after Williams, while acknowledging that some Eighth Circuit formulations differ. This clarification could influence forum selection and may contribute to continued circuit dialogue about the precise contours of Ex parte Young in takings cases.

Complex Concepts Simplified

• Eleventh Amendment Immunity: A doctrine that generally prevents private suits in federal court against states and state officials (in their official capacity) for retrospective relief like damages unless the state consents or Congress validly abrogates immunity.
• Ex parte Young Exception: A long-standing rule allowing suits against state officials to stop ongoing violations of federal law. The relief must be prospective (e.g., an injunction), not retrospective damages.
• “Straightforward Inquiry” (Verizon Maryland): The two-part threshold test for Ex parte Young—does the complaint allege an ongoing federal-law violation, and is the requested relief prospective?
• Prospective vs. Retrospective Relief: Prospective relief prevents future enforcement; retrospective relief compensates past harms (e.g., damages). Ex parte Young permits the former, not the latter, against state officials in federal court.
• Takings Clause: The Fifth Amendment prohibits the government from taking private property for public use without just compensation. Disputes often involve whether a regulation or mandate amounts to a taking and, if so, whether compensation is due.
• Inverse Condemnation: A state-law action through which a property owner seeks compensation for an alleged taking when the government has not formally exercised eminent domain.
• Collateral Order Doctrine: Allows certain interlocutory appeals, including orders denying Eleventh Amendment immunity, to be reviewed immediately because they resolve important issues separate from the merits and would be effectively unreviewable after final judgment.

Context: The Statute at Issue

Colorado’s epinephrine affordability program caps the consumer price at $60 per two-pack for qualifying uninsured individuals. Because pharmacies typically acquire the product at a much higher price, the law shifts the financial difference to manufacturers via a “reimburse or resupply” mandate. Failure to comply triggers enforcement mechanisms, including classification as a deceptive trade practice and fines. Teva alleges this compelled transfer is an unconstitutional taking. The Tenth Circuit does not reach that merits question here.

Practical Guidance for Litigants

• Pleading Strategy (Plaintiffs): Identify specific enforcement officials with a role in implementing the challenged statute; plead an ongoing federal-law violation; and seek only forward-looking relief against those officials to fit within Ex parte Young.
• Remedies Strategy (Plaintiffs): Anticipate that, at the preliminary-injunction or merits stage, courts will require a showing that legal remedies (money damages) are inadequate to prevent irreparable harm. That is a separate—and later—hurdle.
• Defense Strategy (States): Arguments that a state inverse-condemnation remedy exists will not, by themselves, defeat Ex parte Young at the threshold in the Tenth Circuit. Focus on later-stage equitable defenses, merits defenses (no taking, no property interest, no compulsion), and justiciability issues specific to injunctive relief.

Note on Precedential Status

The court labels this an “order and judgment” that is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel; however, it may be cited for its persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Even as a nonprecedential decision, it is a clear and practical roadmap for Ex parte Young analysis in the takings context within the Tenth Circuit.

Conclusion

Teva Pharmaceuticals v. Weiser refines an important procedural gateway in constitutional litigation against state officials. The Tenth Circuit reaffirms and clarifies that, under Verizon Maryland, whether “suit lies” under Ex parte Young turns on a simple, two-part test: an alleged ongoing violation of federal law and a request for prospective relief. The court expressly decouples this threshold jurisdictional analysis from any inquiry into the adequacy of legal remedies or the ultimate availability of an injunction. It also dispels misreadings of Williams that might suggest takings claims cannot proceed under Ex parte Young when state compensation remedies exist.

This holding will shape how takings challenges to state regulatory programs—especially price-cap or cost-shifting mandates like Colorado’s EpiPen affordability law—are litigated in the Tenth Circuit. Plaintiffs can access federal courts for prospective relief against enforcement officials without first overcoming an adequacy-of-remedy screening at the jurisdictional stage. The real battles now move to the merits and to the equitable requirements for injunctions, where courts will decide whether the challenged mandates are unconstitutional takings and whether money damages would suffice, or whether injunctive relief is truly necessary to forestall ongoing constitutional harm.