Bair v. Krug, 853 F.2d 672 (9th Cir. 1988). · Go Syfert
Bair v. Krug, 853 F.2d 672 (9th Cir. 1988). Cases Citing This Book View Copy Cite
58 citation events (49 in the last 25 years) across 15 distinct courts.
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
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At page 675 Barring suits against state officers under eleventh amendment34 citing cases[T]he eleventh amendment bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant’s federally protected rights, where the nature of the relief sought is retroactive, i.e., money damages, rather than prospective, e.g., an injunction24 citing courts put it this way
  • Denis v. Ige, 557 F. Supp. 3d 1083 (D. Haw. 2021).published
    (Put simply, the eleventh amendment bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant's federally protected rights, where the nature of the relief…)
  • Griffin v. State of Hawaii, No. 1:20-cv-00454 (D. Haw. May 27, 2021).
    (Put simply, the eleventh amendment bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant's federally protected rights, where the nature of the relief…)
  • Carmen v. San Francisco Unified Sch. Dist., 982 F. Supp. 1396 (N.D. Cal. 1997).published
    ([T]he eleventh amendment bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant’s federally protected rights, where the nature of the relief sought is…)
  • Arno Kuigoua v. Loretta Melby, et al., No. 2:26-cv-06117 (C.D. Cal. June 8, 2026).
    “bars action 2 against state officers sued in their official capacities for past alleged misconduct 3 involving a complainant’s federally protected rights, where the nature of the 4 relief sought is retroactive”
  • Clendenin, No. 2:22-cv-01521 (E.D. Cal. Dec. 3, 2025). 2 cites
    See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Flint v. Dennison, 488 17 F.3d 816, 824-25 (9th Cir. 2007); Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988).
  • (PC) Bejarano v. Lynch, No. 2:23-cv-01620 (E.D. Cal. May 14, 2025).
    See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Flint v. Dennison, 488 16 F.3d 816, 824-25 (9th Cir. 2007); Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988).
  • Bonning v. Idaho State Police Dep't, No. 1:25-cv-00002 (D. Idaho Apr. 7, 2025).
    RICO does not abrogate a state’s sovereign immunity, see Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988), and governmental entities are not subject to suit under RICO because they “are incapable of forming a malicious intent,” Lancaster Cm…
  • Nelson v. Tewalt, No. 1:24-cv-00333 (D. Idaho Oct. 15, 2024).
    RICO does not abrogate a state’s sovereign immunity, see Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988), and governmental entities are not subject to suit under RICO because they “are incapable of forming a malicious intent,” Lancaster Cm…
  • Ramirez v. Cnty. of San Diego, No. 3:24-cv-00366 (S.D. Cal. May 15, 2024).
    “the eleventh amendment bars actions against state officers 21 sued in their official capacities for past alleged misconduct involving a complainant’s 22 federally protected rights, where the nature of the relief sought…”
  • Weible v. Las Vegas Metro. Police Dep't, No. 2:23-cv-01752 (D. Nev. Feb. 1, 2024).
    “bars actions against state officers sued 18 in their official capacities for past alleged misconduct involving a complainant’s federally protected rights, 19 where the nature of the relief sought is retroactive, i.e., m…”
Show 24 more citing cases
  • Judkins v. Clark Cnty. Det. Ctr., No. 2:22-cv-00878 (D. Nev. Apr. 24, 2023).
    “bars actions against state officers sued in their official capacities for past alleged 6 misconduct involving a complainant’s federally protected rights, where the nature of the relief 7 sought is retroactive, i.e., mon…”
  • Gathrite v. Wilson, No. 3:19-cv-01852 (S.D. Cal. Mar. 29, 2023).
    “[T]he eleventh amendment bars actions against state officers sued in their official 20 capacities for past alleged misconduct involving a complainant's federally protected 21 rights, where the nature of the relief sough…”
  • Marvin Lee James v. D. Samuel, No. 2:22-cv-05277 (C.D. Cal. Nov. 29, 2022).
    “the eleventh amendment bars actions against state 22 officers sued in their official capacities for past alleged misconduct involving a 23 complainant’s federally protected rights, where the nature of the relief sought…”
  • Bates v. Las Vegas Metro. Police Dept., No. 2:22-cv-00957 (D. Nev. Oct. 14, 2022).
    Bates 13 submitted an amended IFP application (ECF No. 7) and after a subsequent review, the 14 magistrate judge entered the R&R (ECF No. 10) granting Bates’ application but recommending 15 that the claims against LVMPD officers in their o…
  • Bates v. Las Vegas Metro. Police Dept., No. 2:22-cv-00957 (D. Nev. Sept. 21, 2022).
    “bars actions against state 16 officers sued in their official capacities for past alleged misconduct involving a complainant’s 17 federally protected rights, where the nature of the relief sought is retroactive, i.e., m…”
  • Sharrod Moten v. Pedro Pulido, No. 2:22-cv-04942 (C.D. Cal. Aug. 17, 2022).
    “bars actions against state officers sued in their official capacities for past alleged misconduct 16 involving a complainant’s federally protected rights, where the nature of the relief sought is 17 retroactive, i.e., m…”
  • Melike Dewey v. Superior Court of California, Cnty. of Ventura, No. 2:21-cv-09834 (C.D. Cal. Feb. 23, 2022).
    “bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant’s federally protected rights, where the nature of the relief sought is retroactive, i.e., money d…”
  • Melike Dewey v. Superior Court of California, Cnty. of Ventura, No. 2:21-cv-09834 (C.D. Cal. Jan. 10, 2022).
    “bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant’s federally protected rights, where the nature of the relief sought is retroactive, i.e., money d…”
  • Lewis v. Calvin, No. 3:21-cv-02003 (N.D. Cal. Aug. 13, 2021).
    ([T]he eleventh 22 amendment bars actions against state officers sued in their official capacities for past alleged 23 misconduct involving a complainant’s federally protected rights, where the nature of the relief 24 s…)
  • Bonning v. Bartlett, No. 1:21-cv-00165 (D. Idaho Aug. 2, 2021).
    Quern v. Jordan, 440 U.S. 332 , 342–44 (1979); Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988).
  • Porretti v. Attorney Gen. State of Nevada, No. 2:20-cv-02343 (D. Nev. Feb. 1, 2021).
    “bars 5 actions against state officers sued in their official capacities for past alleged misconduct involving a 6 complainant’s federally protected rights, where the nature of the relief sought is retroactive, i.e., 7 m…”
  • Mitchell v. Las Vegas Metro. Police Dep't, No. 2:18-cv-00646 (D. Nev. Jan. 13, 2021).
    “bars actions against state officers sued in 7 their official capacities for past alleged misconduct involving a complainant’s federally protected 8 rights, where the nature of the relief sought is retroactive, i.e., mon…”
  • Avery v. Milton, No. 2:20-cv-01843 (D. Nev. Dec. 21, 2020).
    Analysis of Plaintiff’s Complaint 2 A. Claims Against Officer Milton for Money Damages in his Official Capacity Must be Dismissed. 3 4 The Eleventh Amendment “bars actions against state officers sued in their official capacities 5 for past…
  • Avery v. Milton, No. 2:20-cv-01843 (D. Nev. Dec. 18, 2020).
    Analysis of Plaintiff’s Complaint 22 A. Claims Against Officer Milton for Money Damages in his Official Capacity Must be Dismissed. 23 24 The Eleventh Amendment “bars actions against state officers sued in their official capacities 25 for…
  • Carroll v. California Dep't of Corr., No. 3:19-cv-02126 (S.D. Cal. Sept. 29, 2020).
    “Put simply, the eleventh amendment bars actions against state officers sued in 4 their official capacities for past alleged misconduct involving a complainant’s federally 5 protected rights, where the nature of the reli…”
  • William Allen Garrett v. Josie Gastello, No. 2:20-cv-04057 (C.D. Cal. July 13, 2020).
    “[T]he [E]leventh [A]mendment bars actions against state officers 17 sued in their official capacities for past alleged misconduct involving a complainant's 18 federally protected rights, where the nature of the relief s…”
  • Rasheed Joel Hilson, Sr. v. I. Mijares, No. 2:20-cv-01179 (C.D. Cal. July 13, 2020).
    “[T]he [E]leventh [A]mendment bars actions against state officers 20 sued in their official capacities for past alleged misconduct involving a complainant's 21 federally protected rights, where the nature of the relief s…”
  • McLaughlin v. NDOC, No. 2:18-cv-01562 (D. Nev. June 23, 2020).
    Plaintiff’s claims for injunctive relief, under the Eighth Amendment, and for monetary damages against Defendants in their official capacities fail as a matter of 5 law. 6 The Eleventh Amendment “bars actions against state officers sued in…
  • Kenneth Martin v. Rains, No. 5:20-cv-00883, 2020 WL 2395212 (C.D. Cal. May 11, 2020).
    “the eleventh amendment bars actions against 1 state officers sued in their official capacities for past alleged misconduct involving a 2 complainant’s federally protected rights, where the nature of the relief sought is…”
  • Vincent Valdez Davis v. M. Wykoff, No. 2:20-cv-01682 (C.D. Cal. Mar. 26, 2020).
    “[T]he [E]leventh [A]mendment bars actions against state officers sued in their 20 official capacities for past alleged misconduct involving a complainant's federally protected 21 rights, where the nature of the relief s…”
  • Edward Tyrone Malone v. August Privratsky, No. 2:19-cv-10796 (C.D. Cal. Jan. 30, 2020).
    “[T]he [E]leventh [AJmendment bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant's federally protected 15 rights, where the nature of the relief soug…”
  • Jonathan Grigsby v. Debbie Asuncion, No. 2:18-cv-09826 (C.D. Cal. Dec. 23, 2019).
    “bars 16 actions against state officers sued in their official capacities for past alleged misconduct involving 17 a complainant’s federally protected rights, where the nature of the relief sought is retroactive, i.e., 1…”
  • Holestine v. R.J. Donovan Corr. Facility, No. 3:18-cv-02094 (S.D. Cal. Sept. 30, 2019).
    “bars actions 27 against state officers sued in their official capacities for past alleged misconduct involving 28 a complainant’s federally protected rights, where the nature of the relief sought is 1 retroactive, i.e.,…”
  • Swan v. Cochran, 56 F.3d 73 (9th Cir. 1995).published
    Sys., 939 F.2d 676, 677-79 (9th Cir. 1991); Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988).
At page 674 State immunity and RICO claims8 citing casesfinding that RICO does not override a state’s sovereign immunity2 citing courts put it this way
  • Comm. to Protect our Agric. Water v. Occidental Oil & Gas Corp., 235 F. Supp. 3d 1132 (E.D. Cal. 2017).published
    (finding that RICO does not override a state’s sovereign immunity)
  • Alfred Banks v. Acs Educ., 638 F. App'x 587 (9th Cir. 2016).unpublished
    Congress has not abrogated state immunity under RICO, Bair v. Krug, 853 F.2d 672, 674-75 (9th Cir.1988) or the FDCPA, 15 U.S.C. § 1692a(6)(C) (excluding states from the definition of “debt collector”), and could not validly abrogate immuni…
  • Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303 (C.D. Cal. 1998).published
    Bair v. Krug, 853 F.2d 672, 674-75 (9th Cir.1988); Production & Leasing, Ltd. v. Hotel Conquistador, Inc., 709 F.2d 21, 21-22 (9th Cir.1983); Gaines v. Texas Tech.
  • Diaz v. Carlson, 5 F. Supp. 2d 809 (C.D. Cal. 1997).published
    Bair v. Krug, 853 F.2d 672, 674-675 (9th Cir.1988) (citation omitted); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101 , 104 S.Ct. 900 , 79 L.Ed.2d 67 (1984).
  • Smith v. Babbitt, 875 F. Supp. 1353 (D. Minn. 1995).published
    (holding that State of Nevada was immune from RICO suit absent a waiver of its sovereign immunity)
  • Carey v. Andrews, 207 F. App'x 863 (9th Cir. 2006).unpublished
    See Bair v. Krug, 853 F.2d 672, 674-75 (9th Cir.1988).
  • Gaines v. Texas Tech Univ., 965 F. Supp. 886 (N.D. Tex. 1997).published
    (holding inter alia in action alleging civil RICO claims that appellants had no argued or proffered authority that Congress had overriden Eleventh Amendment immunity)
  • Walker v. Clark, 53 F. App'x 804 (9th Cir. 2002).unpublished
    (RICO does not override a state’s sovereign im munity)
Other citing cases5 with no pin cite or quoted language on record
Pearl BAIR Gus Balash Joseph Barry Linda M. Barry Barbara Carr Debbie Carr Evelyn L. Carr Sheri Carr John S. Decristo Elio Donato Helen Donato Cecelia D. Hasior Walter Hasior Colon K. Hedges, Harvey Jensen Patricia A. Johnson Willard E. Johnson Linda Jones Hildegard Jopes Raymond Jopes David K. Kaplan Eileen Kerner Valdas
v.
Kiskis Florence Klessig W.K. Klessig Cecelia Laborati Juan C. Laborati Doris Landman Kenneth Landman Nelvin Landman Wayne Landman Madeline Lesky Mark Lesky Nancy Lian Faye Margolin Sara J. Melissa Armond Merluzzi Lawrence Murphy Robert Nason Helen E. Pinon Zip L. Pinon Carmen Ramos Joseph Ramos Mary L. Rossi Max Sparks Sally Sparks Nancy Taylor Nancy Tillman Marla Vaccaro Robert A. Vaccaro Erik Westblom Richard H. Wheeler Sara R. Wheeler and Joe R. Wickman v. Glenn D. "Sam" KRUG, and Glen F. Walquist, in his capacity as Deputy Administrator of Financial Institutions Division of the Department of Commerce of the State of Nevada L. Scott Walshaw, in his capacity as Administrator of Financial Institutions Division of the Department of Commerce of the State of Nevada and Larry D. Struve, in his capacity as Director of the Department of Commerce of the State of Nevada
No. 87-2399.
Court of Appeals for the Ninth Circuit.
Jul 26, 1988.
Published opinion
853 F.2d 672
1988 U.S. App. LEXIS 9981
1988 WL 76019
Chris Maglaras, Jr., Ward & Maglaras, Las Vegas, Nev., for plaintiffs-appellants., Philip R. Byrnes, Deputy Atty. Gen., Las Vegas, Nev., for defendants-appellees.
Chambers, Noonan, Scannlain.
Cited by 36 opinions  |  Published
O’SCANNLAIN, Circuit Judge:

In this appeal and the case of Central Reserve Life of North America Ins. Co. v. Struve, 852 F.2d 1158 (9th Cir.1988), we are called upon to outline the scope and extent of eleventh amendment immunity as it relates to situations in which a state has not been named as a party defendant. Although the bases of jurisdiction in the two cases are different, the issues presented and the analyses set forth are similar.

FACTS

In 1978 All State Thrift (“Thrift”), variously described as a “bank” or “savings and loan association,” received a license from the State of Nevada to operate as a thrift company under Nevada law. Beginning in January 1984 and continuing through October of that same year, officers of Thrift (defendants below but not parties to this appeal) solicited numerous private individuals ("appellants”) to invest in Thrift. Responding to these solicitations, the appellants purchased more than $3 million of Thrift investment certificates.

Meanwhile, in February 1984, Thrift had been placed under state supervision and control.[1] An audit of the institution’s books performed the following year disclosed that Thrift’s liabilities exceeded its assets by some $10 million. As a result of Thrift’s insolvency, its assets were sold to another financial institution, with the appellants recovering approximately 50% of the value of their original $3 million investment.

Shortly thereafter, the appellants filed the instant action in federal district court, asserting federal claims under the Securities Act of 1933, the Securities Exchange Act of 1934, Rule 10b-5 of the Securities Exchange Commission Rules, and the Racketeer Influenced and Corrupt Organizations Act, as well as a pendent state law claim, against various individual and[*674] corporate defendants.[2] Jurisdiction in the district court was predicated on the existence of a federal question under 28 U.S.C. § 1331.

Among those named as party defendants were Larry Struve, Glen Walquist, and Scott Walshaw (“appellees”), state officials charged under Nevada law with the regulatory oversight of state-chartered financial institutions. The State of Nevada was neither named as a party defendant nor served with copies of the summons and complaint. The appellees filed a motion to dismiss the complaint as against them, arguing that the State of Nevada was the real party in interest and that the eleventh amendment therefore barred the district court from exercising subject matter jurisdiction. The district court granted the motion to dismiss and subsequently entered judgment in favor of the appellees. The appellants have filed a timely appeal.

DISCUSSION

The only issue presented on this appeal is whether the eleventh amendment bars an action against state officials sued in their official capacities based on alleged past misconduct. In addressing eleventh amendment problems, we note that five questions must be answered: (1) is the plaintiff one to whom the amendment applies; (2) is the state the real party in interest; (3) is the relief sought barred by the amendment; (4) has the state waived its sovereign immunity; and, if not, (5) is there a congressional statute overriding the state’s immunity? See 1 J. Nowak, R. Rotunda & J. Young, Treatise on Constitutional Law: Substance and Procedure, § 2.12(b) at 85 (1986) (“Constitutional Law ”).

The first, fourth, and fifth questions are easily disposed of. Although the express wording of the eleventh amendment only bars actions filed against a state by citizens of another state or foreign country, the amendment has also been construed to preclude law suits filed against a state by one of its own citizens. Papasan v. Allain, 478 U.S. 265, 275-77, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986); Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 507, 33 L.Ed. 842 (1890). Simply put, all private plaintiffs are subject to the amendment. Constitutional Law at 85. Accordingly, the appellants are subject to the eleventh amendment here.

With respect to the fourth question, there is nothing in the record to indicate that the State of Nevada has waived its sovereign immunity in such actions. To the contrary, Nevada has expressly reserved its eleventh amendment immunity. See Nev.Rev.Stat. § 41.031(3).[3] See also Nev.Rev.Stat. § 41.032 (extending immunity generally to state officers).[4]

As for the fifth question, the appellants have neither argued nor proffered any authority in support of a contention that Con[*675]gress has overridden Nevada’s eleventh amendment immunity under the facts as alleged. We therefore turn to an examination of the interrelated second and third questions.

As this court has already noted, where the eleventh amendment is concerned,

[T]he state need not be a named party to [an] action; the Amendment bars a suit against state officials when “the state is the real, substantial party in interest.” ... [T]he Eleventh Amendment bars a suit in federal court by private parties seeking to impose a liability which must be paid from public funds in the state treasury.

Kerr Center Parents Ass’n v. Charles, 842 F.2d 1052, 1058 (9th Cir.1988). Thus, even though not named as a party defendant, a state will be deemed the real party in interest where, e.g., “the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration....” Demery v. Kupperman, 735 F.2d 1139, 1146 (9th Cir.1984) (quoting Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963)), cert. denied, 469 U.S. 1127 (1985). Put simply, the eleventh amendment bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant’s federally protected rights, where the nature of the relief sought is retroactive, i.e., money damages, rather than prospective, e.g., an injunction. Papasan, 478 U.S. at 278, 106 S.Ct. at 2940; Shaw v. California Dept. of Alcoholic Beverage Control, 788 F.2d 600, 604 (9th Cir.1986).

A qualification to the general rule stated above is that an action will not be deemed to be against the state where the plaintiff seeks to impose personal liability on a state official sued in his individual capacity as a result of actions undertaken by that official which violated the plaintiff’s federally protected rights. Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974);[5] Draper v. Coombs, 792 F.2d 915, 919 (9th Cir.1986); Shaw, 788 F.2d at 604; Demery, 735 F.2d at 1146. It is upon this exception to the rule that the appellants have hung their collective hats.

The caption to the appellants’ amended complaint identifies the appellees as follows:

GLEN F. WALQUIST, in his capacity as Deputy Administrator of Financial Institutions Division of the Department of Commerce of the State of Nevada; L. SCOTT WALSHAW, in his capacity as Administrator of Financial Institutions Division of the Department of Commerce of the State of Nevada; LARRY D. STRUVE, in his capacity as Director of the Department of Commerce of the State of Nevada.

Similarly, Messrs. Walquist, Walshaw, and Struve are identified throughout the rest of the appellants’ amended complaint solely in their official capacities. More to the point, there is no indication anywhere in the record that the appellants genuinely sought to impose a personal liability for damages on the appellees rather than on the State of Nevada.

It is clear that the appellees were sued solely in their official capacities based on past conduct for which the appellants sought only retroactive monetary relief. It is equally clear that any judgment in favor of the appellants on their claims against the appellees “would expend itself on the public treasury or domain.” See Dugan, 372 U.S. at 620, 83 S.Ct. at 1006. Accordingly, the eleventh amendment bars this action against the appellees, and the district court did not err in dismissing the complaint as against the appellees.

With respect to the appellants’ pendent state law damages claim asserted against appellee Walshaw, the eleventh amendment absolutely precludes such claims from being brought in federal district court. See[*676] Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106, 121, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1984); Central Reserve Life of North America, 852 F.2d at 1160-61.

AFFIRMED.

1

It is not clear from the record just what is meant by "state control” as alleged in the appellants’ amended complaint. Presumably it implies some form of operating, as opposed to liquidating, receivership.

2

Among the defendants listed by the appellants in their amended complaint were individual and corporate John Does. These defendants were not made parties to the appellees' motion to dismiss nor to the district court’s granting of that motion, and no error has been asserted on appeal with respect to the Doe defendants. Because jurisdiction was predicated on the existence of a federal question, no problems are raised here such as those presented in the cases of Bryant v. Ford Motor Co., 844 F.2d 602, 605-06 (9th Cir.1988) (en banc) (as amended) (removal of case from California state court to federal district court involving Doe defendants) or Garter-Bare Co. v. Munsingwear, Inc., 650 F.2d 975, 981 (9th Cir.1980), foll, remand, 723 F.2d 707, cert. denied, 469 U.S. 980, 105 S.Ct. 381, 83 L.Ed.2d 316 (1984) (presence of Doe defendants destroys diversity of citizenship with respect to claim asserted against Doe defendants).

3

"The State of Nevada does not waive its immunity from suit conferred by Amendment XI of the Constitution of the United States."

4

[N]o action may be brought ... against ... an officer or employee of the state ... which is: (1) Based upon an act or omission of an officer [or] employee ... exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid, if the statute or regulation has not been declared invalid by a court of competent jurisdiction; or (2) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of ... any officer [or] employee ... of [the State], whether or not the discretion involved is abused.

(in relevant part).

5

Technically, the plaintiffs in Scheuer had sued the defendants in their official capacities. However, the Court concluded that the plaintiffs’ claims were in reality directed against the defendants in their individual capacities for which the plaintiffs sought to impose personal liability. 416 U.S. at 238. Accord Papasan, 478 U.S. at 278 n. 11, 106 S.Ct. at 2940 n. 11.