Cardenas

Opinion by Judge THOMPSON; Concurrence by Judge O’SCANNLAIN.

OPINION

This case arises from the comprehensive settlement agreement reached in 1998 among major American tobacco companies and 46 states, including Hawaii, that sued them for reimbursement of Medicaid and other costs attributable to smoking. Pursuant to the settlement agreement, Hawaii will receive approximately $1.38 billion over the next 25 years. The plaintiffs are Medicaid recipients 1 who suffer from smoking-related illnesses. The plaintiffs assert that to the extent the settlement funds to be received by the State of Hawaii exceed the State’s actual expendi *932 tures for tobacco-related illnesses on behalf of Medicaid recipients (hereafter the “overage”), the State of Hawaii is required by 42 U.S.C. § 1396k(b) to distribute that “overage” to Medicaid recipients. Although the plaintiffs sued Hawaii state officials in their official capacities, not the State of Hawaii directly, the district court dismissed the lawsuit, determining it was barred by sovereign immunity under the Eleventh Amendment.

We conclude, pursuant to the doctrine of Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), that the…

concurring in part and concurring in the judgment:

I join the court’s opinion with the exception of Part III. I would hold, as did the *941 district court, that this action is in essence a suit for damages against the State of Hawai‘i and, therefore, is barred by the Eleventh Amendment. Nonetheless, I agree that, as Part IV of the court’s opinion concludes, the 1999 amendments to the Medicaid statute extinguish any possible claim by the plaintiffs to a portion of future tobacco settlement payments, and I concur in the judgment to that extent.

The court holds that plaintiffs’ claims are within the Ex Parte Young, 209 U.S. 123 , 28 S.Ct. 441 (1908) exception because they seek remedy for a present and ongoing violation of federal law. In its analysis, the majority declines to follow the Sixth Circuit’s holding in Barton, 293 F.3d 944 (6th Cir.2002) that plaintiffs’ claims are an attempt to recover retrospective relief in the form of money damages, and therefore barred. I am persuaded that Barton should apply here and therefore believe that the State of Hawaii has a present vested right in the settlement funds.

In distinguishing between permissible prospective, and impermissible…