The fiction created by Ex parte Young — i.e., that a constitutional claim for prospective relief against a state official is not an action against the state for eleventh amendment purposes — has never been applied by the Supreme Court or this Circuit to determine whether a state is a party to an action for purposes of diversity jurisdiction. The proposition advanced by the Seney court has apparently been arguably embraced by but one reported decision, Mouton v. Sinclair Oil Gas Co., 410 F.2d 717 (5th Cir. 1969), cert. denied, 398 U.S. 957, 90 S.Ct. 2163, 26 L.Ed.2d 542 (1970), while it has been generally criticized. Eure v. NVF Co., 481 F. Supp. 639, 641 (E.D.N.C. 1979); National Market Reports, Inc. v. Brown, 443 F. Supp. 1301, 1305 n. 6 (S.D.W.Va. 1978); State Tax Commission v. Union Carbide Corp., 386 F. Supp. 250, 253 n. 7 (D. Idaho 1974).
" Nuclear Engineering Co. v. Scott, 660 F.2d 241, 250-51 (7th Cir. 1981). "The proposition advanced by the Seney court has apparently been arguably embraced by but one reported decision, Mouton v. Sinclair Oil Gas Co., 410 F.2d 717 (5th Cir. 1969) . . . while it has been generally criticized." Id. at 251.
The defendant's proposed extension, however, goes too far. Star proffers two cases as supporting its interpretation: State of Ohio ex rel Seney v. Swift Co., 270 F. 141 (6th Cir. 1921) and Mouton v. Sinclair Oil and Gas Co., 410 F.2d 717 (5th Cir. 1969). Seney involved a suit by a county prosecutor to enjoin violations of an Ohio anti-trust law.
The plaintiff ignores what is set out in the pleadings and in the petition for removal: that the bank is authorized not only as a depository of public money of the United States, but also is authorized by the Secretary of the Treasury to establish banks on military bases. See Mouton v. Sinclair Oil and Gas Company, 410 F.2d 717 [5th Cir. 1969]; and Teague v. Grand River Dam Authority, 279 F. Supp. 703 [N.D.Okla. 1968].
4 U.S.C. § 110(c).See also Shell Oil v. Mouton, 410 F.2d 715 (5th Cir. 1969) and Mouton v. Sinclair Oil and Gas Company, 410 F.2d 717 (5th Cir. 1969), cert. denied, 398 U.S. 957 (1970), wherein the Fifth Circuit issued per curiam opinions based on its decision inCocreham. Judge Rives, dissenting on rehearing, reiterated that for the grant of exclusive jurisdiction pursuant to Art. I, § 8, cl. 17 of the federal Constitution to take effect, the consent of the Louisiana legislature was required.