Community Care Health Plan of Neb. v. Jackson

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COMMUNITY CARE HEALTH PLAN OF NEB. v. JACKSON
Cite as 317 Neb. 141
Community Care Health Plan of Nebraska, Inc.,
doing business as Healthy Blue, a Nebraska
domestic corporation, appellee, v.
Jason Jackson, in his official capacity as
director of the Nebraska Department
of Administrative Services,
et al., appellants.
___ N.W.3d ___
Filed July 19, 2024. 	No. S-23-681.
1. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor.
2. Summary Judgment: Final Orders: Legislature: Appeal and Error.
The general rule is that an order denying summary judgment is not a
final, appealable order. But the Legislature carved out a limited excep-
tion to this general rule when it enacted Neb. Rev. Stat. § 25-1902(1)(d)
(Cum. Supp. 2022) to create a new category of final orders for purposes
of appeal.
3. Summary Judgment: Final Orders: Immunity. The plain text of Neb.
Rev. Stat. § 25-1902(1)(d) (Cum. Supp. 2022) sets out two requirements
which must be satisfied for an order to be final: (1) The order must
deny a motion for summary judgment, and (2) the summary judgment
motion must be based on either the assertion of sovereign immunity or
the immunity of a government official.
4. ____: ____: ____. To satisfy the final order requirement under Neb.
Rev. Stat. § 25-1902(1)(d) (Cum. Supp. 2022) based on the assertion of
sovereign immunity, the motion for summary judgment must do more
than merely reference sovereign immunity; the nature and substance of
the motion must actually present a claim of sovereign immunity.
5. Immunity: Words and Phrases. “Sovereign immunity” is a legal term
of art referring to the common-law doctrine of sovereign immunity.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:22 AM CDT

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COMMUNITY CARE HEALTH PLAN OF NEB. v. JACKSON
Cite as 317 Neb. 141
Under that doctrine, a state’s immunity from suit is recognized as a fun-
damental aspect of sovereignty.
6. Actions: Public Officers and Employees: Immunity. An action against
a public officer to obtain relief from an invalid act or from an abuse of
authority by the officer or agent is not a suit against the State and is not
prohibited by sovereign immunity.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County,
Andrew R. Jacobsen, Judge. Appeal dismissed.
Michael T. Hilgers, Attorney General, Zachary A. Viglianco,
Eric J. Hamilton, and John J. Schoettle for appellants.
Andre R. Barry and Jessica K. Robinson, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., and James A. Washburn,
William M. Droze, and Christopher R. Healy, of Troutman
Pepper Hamilton Sanders, L.L.P., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, and Freudenberg,
JJ.
Funke, J.
INTRODUCTION
Neb. Rev. Stat. § 25-1902(1)(d) (Cum. Supp. 2022) provides
that an order denying a motion for summary judgment is a
final, appealable order when such motion is based on the
assertion of sovereign immunity or the immunity of a gov-
ernment official. This case raises the question of whether a
motion for summary judgment alleging that a disappointed
bidder lacks standing as a taxpayer to maintain a claim against
public officers under the Uniform Declaratory Judgments Act
(UDJA) 1 constitutes a motion for summary judgment based
on the assertion of sovereign immunity. Because the public
officers do not assign any error as to the district court’s rul-
ing that the suit against them was not a suit against the State
1 Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016).

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COMMUNITY CARE HEALTH PLAN OF NEB. v. JACKSON
Cite as 317 Neb. 141
and, as such, was not barred by sovereign immunity, we find
that it does not. Accordingly, we dismiss the appeal for lack
of jurisdiction.
BACKGROUND
Factual Background
Community Care Health Plan of Nebraska, Inc., doing busi-
ness as Healthy Blue (Healthy Blue), was one of five vendors
that submitted proposals in response to a request for proposals
to operate Nebraska’s Medicaid managed care program effec-
tive January 1, 2024. The Nebraska Department of Health
and Human Services (DHHS) selected three of the vendors
to be awarded contracts. Healthy Blue was not among those
selected.
Healthy Blue filed a bid protest with DHHS alleging defects
in the winning proposals and in DHHS’ evaluation of the pro-
posals. The protest was denied. Healthy Blue requested recon-
sideration. That request was also denied.
Healthy Blue’s Complaint
Healthy Blue then filed suit in the district court for Lancaster
County, Nebraska, against Jason Jackson, in his official capac-
ity as director of the Department of Administrative Services;
Dannette Smith, in her official capacity as chief executive offi-
cer of DHHS; and the winning bidders. Hereinafter, we refer
to Jackson and Smith collectively as the “State Officials.”
Healthy Blue’s verified complaint and petition for writ of
mandamus included multiple counts, only one of which is
relevant to this appeal. In that count, Healthy Blue sought
declaratory and injunctive relief under the UDJA as a tax-
payer and as a “bidder entitled to an award of a contract
under the terms of the [request for proposals].” Specifically,
Healthy Blue sought a declaration that DHHS acted unlaw-
fully in awarding the contracts. Healthy Blue also sought a
declaration that the “Notice of Intent to Award” the contracts

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COMMUNITY CARE HEALTH PLAN OF NEB. v. JACKSON
Cite as 317 Neb. 141
and any resulting contracts violate Nebraska law and would
result in the illegal expenditure of state funds and harm to
the public interest, as well as an order enjoining DHHS from
“implementation activities” or performance of the contracts.
State Officials’ Motion to Dismiss
The State Officials moved to dismiss Healthy Blue’s UDJA
claim on the ground that Healthy Blue lacks standing to main-
tain the claim as a taxpayer or as an “unsuccessful bidder.”
The State Officials also raised other arguments, including, as
relevant here, that Healthy Blue’s UDJA claim is barred by
sovereign immunity. The State Officials acknowledged that
sovereign immunity does not bar an action against a public
officer to obtain relief from an invalid act or from an abuse of
authority by an officer because a court regards public officers’
illegal or unauthorized acts as their own acts and not acts of
the State. But the State Officials argued that Healthy Blue lacks
standing under the UDJA to pursue such an official-capacity
suit for the reasons stated.
The district court overruled the State Officials’ motion.
The district court agreed that unsuccessful bidders lack stand-
ing except in “egregious cases” where the public interest is
implicated. However, the district court declined to decide
whether the public interest exception applies here. Instead,
the district court found that Healthy Blue adequately pled
taxpayer standing. In so finding, the district court rejected
the State Officials’ argument that Griffith v. Nebraska Dept.
of Corr. Servs. 2 “impliedly abrogated taxpayer standing under
the [UDJA].” The district court explained that Griffith looked
to the language of Nebraska’s Administrative Procedure Act
(APA) in finding that the plaintiffs in Griffith lacked stand-
ing to maintain a suit under the APA as taxpayers. But the
district court reasoned that the UDJA differed from the APA
2 Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169
(2019).

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COMMUNITY CARE HEALTH PLAN OF NEB. v. JACKSON
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in that it did not waive the State’s sovereign immunity, among
other things.
The district court also rejected the State Officials’ argument
that sovereign immunity bars Healthy Blue’s UDJA claim.
The district court observed that the State Officials’ “argument
on this point [was] not well developed” but that the winning
bidders argued that Healthy Blue’s claim should be seen as
a claim against the State because the relief requested would
require the expenditure of public funds. However, the district
court concluded that the question of “whether public funds
would be expended” was a factual one that “cannot be decided
on the face of the [c]omplaint.”
State Officials’ Motion For
Summary Judgment
Several months later, the State Officials moved for summary
judgment, arguing that “[s]overeign immunity precludes tax-
payer standing” and, as such, “Healthy Blue’s UDJA claim is
barred by sovereign immunity.” In summary, the State Officials
argued that because official-capacity suits “are an exception”
to the State’s sovereign immunity, and because such excep-
tions must be strictly construed, the UDJA precludes taxpayer
standing because it does not expressly provide for such stand-
ing. The State Officials also argued that Healthy Blue’s claim
is a claim against the State because Healthy Blue seeks to
compel affirmative acts that would require the expenditure of
public funds and seeks retrospective relief. As such, the State
Officials argued that the claim did not fall within the exception
for official-capacity suits.
The district court disagreed. As to the State Officials’ argu-
ment that Healthy Blue’s claim was a claim against the State,
the district court found that Healthy Blue’s request to enjoin
the expenditure of public funds under allegedly unlawful
contracts “plainly seeks relief from an invalid act or abuse of
authority.” The court noted that generally, suits against public
officers in their official capacity for relief from an invalid

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COMMUNITY CARE HEALTH PLAN OF NEB. v. JACKSON
Cite as 317 Neb. 141
act or an abuse of authority are not barred by sovereign immu-
nity. 3 The district court also rejected the State Officials’ argu-
ment that Healthy Blue’s requested relief would require the
expenditure of public funds or constituted retrospective relief.
Therefore, the district court concluded that Healthy Blue’s
claim was an official-capacity one and, as such, was not
barred by sovereign immunity. This ruling was not appealed
by the State Officials.
Similarly, as to the State Officials’ argument that sovereign
immunity precludes taxpayer standing under the UDJA, the
district court found that “the reasoning in Griffith . . . does
not ‘map’ onto this case.” The district court distinguished
Griffith on the ground that the plaintiffs in Griffith sued a
state agency, while Healthy Blue sued public officers in their
official capacity, among other things. Accordingly, the district
court concluded that because the State Officials do not have
sovereign immunity, “there is no need to look for a statutory
waiver” of such immunity. This ruling was appealed by the
State Officials, and we granted their petition to bypass review
by the Nebraska Court of Appeals. 4
ASSIGNMENT OF ERROR
The State Officials assign, restated, that the district court
erred in finding that Healthy Blue has standing as a taxpayer
to sue them under the UDJA “despite the State [Officials’]
sovereign immunity, which requires the UDJA to be narrowly
construed.”
STANDARD OF REVIEW
[1] An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
3 See, e.g., Heist v. Nebraska Dept. of Corr. Servs., 312 Neb. 480, 979
N.W.2d 772 (2022).
4 See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2022).

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COMMUNITY CARE HEALTH PLAN OF NEB. v. JACKSON
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most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. 5
ANALYSIS
Before reaching the merits of the State Officials’ arguments
regarding taxpayer standing and the UDJA, we must first
address whether we have jurisdiction over this appeal. 6
[2,3] The general rule is that an order denying summary
judgment is not a final, appealable order. 7 But the Legislature
carved out a limited exception to this general rule when it
enacted § 25-1902(1)(d) to create a new category of final
orders for purposes of appeal. 8 Specifically, § 25-1902(1)(d)
provides that an order denying a motion for summary judg-
ment is a final, appealable order “when such motion is based
on the assertion of sovereign immunity or the immunity of
a government official.” As quoted here, the plain text of
§ 25-1902(1)(d) sets out two requirements which must be
satisfied for an order to be final: (1) The order must deny a
motion for summary judgment, and (2) the summary judgment
motion must be based on either the assertion of sovereign
immunity or the immunity of a government official. 9
In the present case, there is no dispute that the district court
denied, in relevant part, the State Officials’ motion for sum-
mary judgment on Healthy Blue’s UDJA claim. The question
is whether the State Officials’ motion for summary judgment
was based on the assertion of sovereign immunity.
Healthy Blue argues that the State Officials’ motion was
not actually based on sovereign immunity, but, rather, it
5 Griffith v. LG Chem America, 315 Neb. 892, 1 N.W.3d 899 (2024).
6 See Simpson v. Lincoln Public Schools, 316 Neb. 246, 4 N.W.3d 172
(2024) (before reaching legal issues presented for review, it is duty of
appellate court to determine whether it has jurisdiction over matter).
7 Id.
8 Id.
9 Clark v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).

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COMMUNITY CARE HEALTH PLAN OF NEB. v. JACKSON
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“‘merely reference[d]’” sovereign immunity as a “veneer
over their real argument: a broadside attack on taxpayer
standing.” 10 As such, Healthy Blue argues that we lack juris-
diction over this appeal.
The State Officials counter that we have jurisdiction because
“[t]he question of whether Healthy Blue’s request for UDJA
declaratory relief is properly within the scope of [the excep-
tion for official-capacity suits] is not tangentially related to
the [State Officials’] assertion of sovereign immunity, it is
directly determined by it.” 11 The State Officials also argue
that their appeal “directly invokes” a “‘foundational principle’
of Nebraska ‘sovereign immunity jurisprudence,’” 12 namely,
the rule that statutes purporting to waive sovereign immunity
are strictly construed in favor of the sovereign and against
the waiver.
[4,5] In our initial opinions relying on § 25-1902(1)(d) as
the basis for appellate jurisdiction, the parties’ characterization
of the summary judgment motion at issue as being based on
the assertion of sovereign immunity was unchallenged. 13 As
such, we did not analyze what constitutes a motion for sum-
mary judgment based on the assertion of sovereign immunity
for purposes of § 25-1902(1)(d). However, our subsequent
decisions in Clark v. Sargent Irr. Dist. 14 and Simpson v.
Lincoln Public Schools 15 held that to satisfy the final order
requirement under § 25-1902(1)(d) based on the assertion of
10 Brief for appellee at 19.
11 Reply brief for appellants at 13.
12 Id. at 14.
13 See, Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916, 958
N.W.2d 378 (2021), disapproved, Clark, supra note 9; Mercer v. North
Central Serv., 308 Neb. 224, 953 N.W.2d 551 (2021); Great Northern Ins.
Co. v. Transit Auth. of Omaha, 305 Neb. 609, 941 N.W.2d 497 (2020),
disapproved, Clark, supra note 9.
14 Clark, supra note 9.
15 Simpson, supra note 6.

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COMMUNITY CARE HEALTH PLAN OF NEB. v. JACKSON
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sovereign immunity, the motion for summary judgment “must
do more than merely reference sovereign immunity; the nature
and substance of the motion must actually present a claim of
sovereign immunity.” 16 Clark and Simpson also make clear that
as used in § 25-1902(1)(d), “sovereign immunity” is a legal
term of art referring to the common-law doctrine of sovereign
immunity. 17 Under that doctrine, a state’s immunity from suit
is recognized as a fundamental aspect of sovereignty. 18
In Clark, the district court denied the plaintiffs’ motion
for summary judgment on their negligence claims against a
political subdivision because it found that the claims were
barred under the discretionary function exemption of the
Political Subdivisions Tort Claims Act (PSTCA) and that
the plaintiffs failed to comply with the PSTCA’s presuit
claim procedures. 19 The plaintiffs appealed, and we found
that we had jurisdiction to review their assignment of error
as to the discretionary function exemption. 20 We reasoned
that the proper remedy when an exemption under the State
Tort Claims Act (STCA) or PSTCA applies is to dismiss the
claim for lack of subject matter jurisdiction. 21 Accordingly,
we held that “when a motion for summary judgment asserts
that the plaintiff’s claim falls within one or more of the statu-
tory exemptions under the STCA or the PSTCA, the motion
is based on the assertion of sovereign immunity within the
meaning of § 25-1902(1)(d).” 22
We took a different view as to the plaintiffs’ assignment
of error regarding the PSTCA’s presuit claim procedures. 23
16 Id. at 254, 4 N.W.3d at 180 (quoting Clark, supra note 9).
17 Cf. Clark, supra note 9.
18 Cf. id.
19 See id.
20 See id.
21 See id.
22 Id. at 133, 971 N.W.2d at 308.
23 See Clark, supra note 9.

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Drawing upon an earlier opinion, which found that such pro-
cedures “‘are not statutes in derogation of sovereign immu-
nity, but, rather, they are administrative in nature,’” 24 we con-
cluded that the procedures “are not jurisdictional[] and thus
do not bear directly on the question of sovereign immunity.” 25
We acknowledged that there was tension between this holding
and prior opinions wherein we exercised jurisdiction under
§ 25-1902(1)(d) based on the political subdivision’s asser-
tion that “because the presuit notice requirements were not
met, the [subdivision] ‘never waived sovereign immunity.’” 26
However, we observed, as was previously noted, that no
one in the earlier cases disputed the characterization of the
motions in question as being based on sovereign immunity. 27
We then held that mere reference to sovereign immunity was
not enough; instead, “the nature and substance of the motion
must actually present a claim of sovereign immunity.” 28 “To
hold otherwise would permit litigants to create appellate
jurisdiction simply by casting their claim as one implicating
sovereign immunity.” 29
Our subsequent decision in Simpson is consistent with
Clark. 30 In Simpson, we found that we had jurisdiction over a
political subdivision’s appeal of an order overruling its motion
for summary judgment on the plaintiff’s wrongful discharge
claim. 31 The plaintiff argued that the motion was not based
24 Id. at 134, 971 N.W.2d at 308 (quoting Saylor v. State, 306 Neb. 147, 944
N.W.2d 726 (2020)).
25 Id. at 135, 971 N.W.2d at 308.
26 Id. at 135, 971 N.W.2d at 309.
27 See Clark, supra note 9.
28 Id. at 136, 971 N.W.2d at 309.
29 Id. at 136, 971 N.W.2d at 309-10.
30 See, Simpson, supra note 6; Clark, supra note 9.
31 Simpson, supra note 6.

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on the assertion of sovereign immunity because it stated
only that there were no genuine issues of material fact. 32 The
plaintiff also observed that the political subdivision made no
mention of immunity in its statement of material facts. 33 We
disagreed. 34 We found that the “substance” of the motion “as
argued in both parties’ briefing and as addressed by the district
court” presented a claim of sovereign immunity. 35 In so find-
ing, we also observed that the political subdivision alleged
sovereign immunity as a defense in its answer. 36
In light of Clark and Simpson, as well as the facts and cir-
cumstances of this case, we agree with Healthy Blue that the
State Officials’ motion for summary judgment was not based,
in relevant part, on the assertion of sovereign immunity.
Granted, the State Officials’ answer, motion to dismiss, and
motion for summary judgment asserted that they are protected
by sovereign immunity. The State Officials’ brief in support
of its motion for summary judgment also argued that Healthy
Blue’s UDJA claim did not fall within the “exception” for
official action claims and, as such, was barred by sovereign
immunity. However, the district court rejected that argument,
and as previously noted, the State Officials do not assign any
error as to that ruling on appeal. 37
Instead, the State Officials’ sole assignment of error on
appeal concerns the district court’s finding that Healthy Blue
has standing as a taxpayer to maintain its suit against them
32 See id.
33 Id.
34 See id.
35 Id. at 254, 4 N.W.3d at 180.
36 Simpson, supra note 6.
37 Cf. State v. Clark, 315 Neb. 736, 1 N.W.3d 487 (2024) (alleged error must
be both specifically assigned and specifically argued in brief of party
asserting error to be considered by appellate court).

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under the UDJA “despite the State [Officials’] sovereign
immunity, which requires the UDJA to be narrowly con-
strued.” That argument obviously also references sovereign
immunity. However, none of the authorities cited by the State
Officials persuade us that such an argument can be seen to
be based on the assertion of sovereign immunity given their
failure to appeal the district court’s ruling that Healthy Blue’s
claim is an official-capacity claim and not a claim against
the State.
The State Officials argue that Healthy Blue and the dis-
trict court are mistaken in thinking that when the precedents
authorizing official-capacity suits “are invoked, sovereign
immunity principles simply do not apply.” 38 Instead, the State
Officials argue that there is an “initial, critical interpretive
step. At the threshold, an official[-]capacity suit against a
state official is a suit against the State that implicates its
sovereign immunity.” 39 As such, the State Officials maintain
that the “first question that must be addressed is whether the
State has consented to that suit by ‘express language’ or ‘such
overwhelming implication’ as to permit ‘no other reasonable
construction.’” 40
The State Officials do not, however, cite any cases that
reflect the application of the initial question that they posit
regarding whether the State has consented to an official-
capacity suit. Instead, opinions from this and other juris-
dictions show that the first question “‘[w]hen an action is
brought against an individual employee of a state agency’”
is “‘whether the action against the individual official is in
reality an action against the state and therefore barred by
38 Reply brief for appellants at 20.
39 Id. at 22.
40 Id. at 22-23.

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sovereign immunity.’” 41 If the action is found to be in reality
an action against the State, it is barred by sovereign immu-
nity. 42 However, if the action is not found to be in reality an
action against the State, it is not so barred, 43 on the theory that
“acts of state officers not legally authorized, or which exceed
or abuse the authority conferred upon them, are judicially
regarded as their own acts and not acts of the [S]tate.” 44
41 State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241, 249, 917
N.W.2d 903, 910 (2018) (quoting State ex rel. Steinke v. Lautenbaugh,
263 Neb. 652, 642 N.W.2d 132 (2002)). Cf., Anthony K. v. Nebraska Dept.
of Health & Human Servs., 289 Neb. 540, 855 N.W.2d 788 (2014); Doe
v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010), overruled
on other grounds, Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017);
Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006);
County of Lancaster v. State, 247 Neb. 723, 529 N.W.2d 791 (1995). See,
also, Virginia Office for Protection and Advocacy v. Stewart, 563 U.S. 247,
131 S. Ct. 1632, 179 L. Ed. 2d 675 (2011); Federal Maritime Comm’n v.
South Carolina Ports Authority, 535 U.S. 743, 122 S. Ct. 1864, 152 L. Ed.
2d 962 (2002); Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240, 144 L. Ed.
2d 636 (1999); Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 117
S. Ct. 2028, 138 L. Ed. 2d 438 (1997); Puerto Rico Aqueduct and Sewer
Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 113 S. Ct. 684, 121
L. Ed. 2d 605 (1993); Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002);
Gibson v. Arkansas Dept. of Correction, 265 F.3d 718 (8th Cir. 2001); Gill
v. Public Employees Retirement Bd., 135 N.M. 472, 90 P.3d 491 (2004);
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (Tex. 1997)
(superseded by statute on other grounds as stated in Nazari v. State, 561
S.W.3d 495 (Tex. App. 2018)); Carter v. Watson, 181 Conn. App. 637, 187
A.3d 478 (2018).
42 See, Anthony K., supra note 41; Zawaideh v. Nebraska Dept. of Health
& Human Servs., 285 Neb. 48, 825 N.W.2d 204 (2013) (discussing
County of Lancaster, supra note 41); Galyen v. Balka, 253 Neb. 270, 570
N.W.2d 519 (1997); State v. Mortensen, 69 Neb. 376, 95 N.W. 831 (1903)
(discussing In re Ayers, 123 U.S. 443, 8 S. Ct. 164, 31 L. Ed. 216 (1887),
and Hagood v. Southern, 117 U.S. 52, 6 S. Ct. 608, 29 L. Ed. 805 (1886)).
43 See, Nebraska State Patrol, supra note 41 (discussing Lautenbaugh, supra
note 41); Gillpatrick v. Sabatka-Rine, 297 Neb. 880, 902 N.W.2d 115
(2017); Myers, supra note 41; Mortensen, supra note 42 (discussing State
ex rel. R. M. F. Co. v. Toole, 26 Mont. 22, 66 P. 496 (1901)).
44 Nebraska State Patrol, supra note 41, 301 Neb. at 250, 917 N.W.2d at 910
(internal quotation marks omitted).

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[6] This and other courts have sometimes opined that the
State’s interests are “implicated to a certain extent” in official-
capacity suits 45 or that because the State can only act through
its officers, an official-capacity suit is “‘in effect, [a suit]
against the [S]tate.’” 46 However, such statements fall short of
the State Officials’ claim that an official-capacity suit is actu-
ally a suit against the State, at least initially. Moreover, even
when courts have made such statements, their sole means of
protecting the State’s interest has been to carefully scrutinize
official-capacity suits to determine whether they are in reality
suits against the State. 47 Otherwise, the courts have hewed to
the rule that an action against a public officer to obtain relief
from an invalid act or from an abuse of authority by the offi-
cer or agent is not a suit against the State and is not prohib-
ited by sovereign immunity. 48
45 Idaho, supra note 41, 521 U.S. at 278. See, also, Anthony K., supra note
41, 289 Neb. at 547, 855 N.W.2d at 795 (“[i]n an action for the recovery
of money, the State is the real party in interest. . . . This is because a
judgment against a public servant in his official capacity imposes liability
on the entity that he represents”) (internal quotation marks omitted).
46 Carter, supra note 41, 181 Conn. App. at 642, 187 A.3d at 482. See, also,
Mortensen, supra note 42, 69 Neb. at 385, 95 N.W. at 834 (“an action
against state officers is an action against the [S]tate”).
47 See, e.g., Stewart, supra note 41, 563 U.S. at 256 (“[t]o be sure, we
have been willing to police abuses of the doctrine that threaten to evade
sovereign immunity. To do otherwise ‘would be to adhere to an empty
formalism’” (quoting Idaho, supra note 41)); Antrican, supra note 41,
290 F.3d at 185 (exception allowing official-capacity suits must be applied
narrowly “‘so as not unduly to erode the important underlying doctrine of
sovereign immunity’”).
48 See, Heist, supra note 3; Nebraska State Patrol, supra note 41; Gillpatrick,
supra note 43; Anthony K., supra note 41; Zawaideh, supra note 42;
Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 810
N.W.2d 149 (2012), overruled on other grounds, Griffith, supra note 2;
Doe, supra note 41; Myers, supra note 41; Galyen, supra note 42; County
of Lancaster, supra note 41; Concerned Citizens v. Department of Environ.
Contr., 244 Neb. 152, 505 N.W.2d 654 (1993).

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317 Nebraska Reports
COMMUNITY CARE HEALTH PLAN OF NEB. v. JACKSON
Cite as 317 Neb. 141
While 	not 	inquiring 	into 	the 	legislative 	history 	of
§ 25-1902(1)(d) in our interpretation, 49 we are cognizant that
members of the Legislature at the time of its adoption were
concerned that the State’s sovereign immunity would be effec-
tively lost if the matter cannot be raised in an interlocutory
appeal. 50 However, insofar as the State Officials’ concerns
involve taxpayer standing, other courts have observed that
standing and sovereign immunity are “entirely distinct juris-
dictional concepts.” 51 With sovereign immunity, the issue is
“what sovereign immunity permits,” while with standing, the
issue is what the “law of standing might preclude.” 52 In par-
ticular, the focus of the standing inquiry is whether the plain-
tiff is the proper party to bring the claim. 53 To have standing,
the plaintiff must have some legal or equitable right, title, or
interest in the subject matter of the controversy. 54 This means
that the question of standing is “often ‘intertwined’ with that
of the merits” and, as such, it “can [be] and often is reviewed
on appeal [of a final order]” without being effectively lost in
the same way that sovereign immunity is. 55
49 Cf. Nebraska Journalism Trust v. Dept. of Envt. & Energy, 316 Neb. 174,
3 N.W.3d 361 (2024) (in order for court to inquire into statute’s legislative
history, statute’s terms must require interpretation or be reasonably
considered ambiguous).
50 Floor Debate, L.B. 179, 106th Leg., 1st. Sess. (Apr. 24, 2019) (statement
of Senator Michael Hilgers).
51 Grossman v. Wolfe, 578 S.W.3d 250, 258 (Tex. App. 2019). See, also,
Odden v. Kotek, No. 3:22-CV-1086-SI, 2023 WL 2071501 (D. Or. Feb. 17,
2023).
52 San Juan County, Utah v. U.S., 503 F.3d 1163 (10th Cir. 2007) (en banc).
But see Western Energy Alliance v. Zinke, 877 F.3d 1157, 1165 (10th Cir.
2017) (recognizing San Juan County, Utah as having been “abrogated on
other grounds”).
53 See Preserve the Sandhills v. Cherry County, 313 Neb. 590, 985 N.W.2d
599 (2023).
54 See Neb. Rev. Stat. § 25-301 (Reissue 2016).
55 Williams v. Davis, No. 22-30181, 2023 WL 119452 at *2 (5th Cir. Jan. 6,
2023).

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
COMMUNITY CARE HEALTH PLAN OF NEB. v. JACKSON
Cite as 317 Neb. 141
CONCLUSION
Because the State Officials’ motion for summary judgment
cannot be seen to have been based on the assertion of sover-
eign immunity, given their failure to assign any error as to the
district court’s ruling that Healthy Blue’s claim was a claim
against them in their official capacities and not a claim against
the State, we dismiss the appeal for lack of jurisdiction.
Appeal dismissed.
Miller-Lerman and Papik, JJ., not participating.