HATCHETT, Circuit Judge:
We took this ease in banc to determine whether Florida Statute 320.02(9) violates the Supremacy Clause and the Commerce Clause of the United States Constitution. Finding the statute unconstitutional, we affirm in part and reverse in part.1
FACTS
On April 30, 1985, Myra Holladay Sims imported from Europe an automobile popularly known as a “gray market” automobile.2 Gray market automobiles are imported automobiles which do not comply with United States emissions and safety standards. The Florida Import and Compliance Association (FICA) is a trade association whose members directly participate in importing and altering gray market automobiles.
Two federal statutes govern the importation of foreign manufactured automobiles into the United States. The Clean Air Act (42 U.S.C. § 7522), and the Safety Act (15 U.S.C. § 1397), bar the importation of motor vehicles which do not comply with the applicable federal emissions and safety standards. Specifically, the Clean Air Act prohibits
the sale, or the offering for sale, or the introduction, or delivery for introduction, into commerce, or (in the case of any person, except as provided by regulation of the Administrator), the importation into the United States, of any new motor vehicle or new motor vehicle engine, manufactured after the effective date of regulations under this part which are applicable to such vehicle or engine unless such vehicle or engine is covered by a certificate of conformity issued (and in effect) under regulations prescribed [by this statute].3
[1452]*145242 U.S.C. § 7522(a)(1). Also, section 7522(b)(2) provides:
[t]he Secretary of the Treasury and the Administrator [of the Environmental Protection Agency (EPA) ] may, by joint regulation provide for deferring final determination as to admission and authorizing the delivery of such a motor vehicle or engine offered for import to the owner or consignee thereof upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to ensure that any such motor vehicle or engine will be brought into conformity with the standards, requirements, and limitations applicable to it under this part. The Secretary of the Treasury shall, if a motor vehicle or engine is finally refused admission under this paragraph, cause disposition thereof in accordance with the customs laws unless it is exported, under regulations prescribed by such Secretary, within ninety days of the date of notice of such refusal or such additional time as may be permitted pursuant to such regulations, except that disposition in accordance with the customs laws may not be made in such manner as may result, directly or indirectly, in the sale, to the ultimate customer, of a new motor vehicle or new motor vehicle engine that fails to comply with applicable standards of the Administrator under this part.
Similarly, the Safety Act provides that “[n]o person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle [unless it is in conformity with applicable federal motor vehicle safety standards].” 15 U.S.C. § 1897(a)(1)(A). In addition, that statute provides:
[T]he Secretary of the Treasury and the Secretary [of the National Highway Transportation Safety Administration, Department of Transportation (DOT)] may, by ... regulations, provide for authorizing the importation of such motor vehicle or item of motor vehicle equipment into the United States upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to ensure that any such motor vehicle or item of motor vehicle equipment will be brought into conformity with any applicable federal motor vehicle safety standard prescribed under this subchapter, or will be exported or abandoned to the United States.
15 U.S.C. § 1397(b)(3).
Despite general prohibitions against importing nonconforming motor vehicles into the United States, Congress, under the above provisions, authorized the importation of gray market vehicles upon the furnishing of a bond or other means of assuring that the importers and their customers do not circumvent the federal environmental safety laws. The EPA, the DOT, and the Treasury Department promulgated regulations governing such importation. See generally 19 C.F.R. §§ 12.73, 12.80; 40 C.F.R. Part 85, Subpart P and 49 C.F.R. Part 571. Under these regulations, the authorities conditionally admit gray market vehicles into the United States for the limited purpose of enabling the importer to comply with federal emissions and safety laws. The importer must post an entry bond with the United States Customs Service (Customs) for an amount equal to the value of the vehicle plus the customs duty. See Automobile Importers Compliance Association, Handbook of Vehicle Importation, 21 (1984). In addition, the importer must sign a statement indicating that the motor vehicle “is not covered by a certificate of conformity with federal motor vehicle emission standards but will be brought into conformity with such standards.” 19 C.F.R. § 12.73(b)(5)(x) (1986). Finally, the importer must declare that the vehicle “was not manufactured in conformity [with] all applicable safety standards, but it has been or will be brought into [1453]*1453conformity.” 19 C.F.R. § 12.80(b)(l)(iii).4 The entry bond assists in enforcing the importer’s obligation to comply with federal emission requirements and safety standards because Customs will not release the bond until it receives assurance from the EPA and the DOT that the importer has complied with the standards. See 19 C.F. R. §§ 12.73c and 12.80e.
When Sims’s automobile arrived in Jacksonville, Florida, she complied with the applicable federal regulations governing the importation of gray market vehicles, which included posting a bond in the requisite amount. The EPA exempted Sims from conforming her vehicle to the applicable federal emission standards and sent her a letter releasing the EPA obligation on the bond.5 In complying with the Safety Act and the DOT regulations, Sims completed the requirements under 19 C.F.R. § 12.80(b)(l)(iii).
In 1984, the Florida legislature passed the following statute concerning motor vehicle titling and registration:
Before a motor vehicle which has not been manufactured in accordance with the federal Clean Air Act and the federal Motor Vehicle Safety Act can be sold to a consumer and titled and registered in this state, the motor vehicle must be certified by the United States Customs Service or the United States Department of Transportation and the United States Environmental Protection Agency to be in compliance with these federal standards. A vehicle which is registered pursuant to this subsection shall not be titled as a new motor vehicle.
Act approved June 11, 1984, ch. 84-155, § 3, 1984 Fla. Laws 457, 458 (codified as amended at Fla.Stat. § 320.02(9) (1985)). This provision prevents a gray market vehicle owner from acquiring title and vehicle registration in Florida until the owner has obtained the required documentation from the federal government.
Subsequent to the passage of Fla.Stat. § 320.02(9), Sims unsuccessfully sought to title and register her automobile at the Florida Department of Highway Safety and Motor Vehicles (DMV). The DMV refused to title and register Sims’s vehicle because she did not produce release letters from the DOT and Customs certifying compliance with federal standards. Sims had not received a bond release letter from the DOT because the DOT had an excessive number of forms for review.6
PROCEDURAL HISTORY
Following refusal to title and register the vehicle, Sims and the FICA filed suit in United States District Court for the North[1454]*1454ern District of Florida alleging that the state’s enforcement of section 320.02(9) violated the Supremacy and Commerce clauses of the United States Constitution: (1) the Clean Air Act and the Safety Act preempt the state’s authority to require compliance with federal emission and safety standards, and (2) enforcement of section 320.02(9) impermissibly burdens foreign and interstate commerce. The district court concluded that the Clean Air Act and Safety Act preempt the state’s authority to enforce section 320.02(9) and that enforcement of the statute would violate the commerce clause. The district court declared section 320.02(9) unconstitutional and enjoined its enforcement. The state brings this appeal from the district court’s ruling.
DISCUSSION
We first discuss those issues the parties presented to the district court, upon which the district court ruled, and the state of Florida initially appealed: the constitutionality of Florida Statute 320.02(9) under the Supremacy and Commerce clauses of the United States Constitution.7
I. Supremacy Clause
Sims and the FICA successfully challenged the constitutionality of Fla.Stat. § 320.02(9) in the district court. The district court held that the Clean Air Act and the Safety Act preempt the state’s authority to require compliance with federal emission and safety standards. Federal preemption of state law is derived from the Supremacy Clause of article VI, clause 2, of the United States Constitution, which reads:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.
The Supreme Court stated the three ways in which federal law may preempt state law:
Federal law may preempt state law in any of three ways. First, in enacting the federal law, Congress may explicitly define the extent to which it intends to preempt state law. [Citation omitted.] Second, even in the absence of express preemptive language, Congress may indicate an intent to occupy an entire field of regulation, in which case the states must leave all regulatory activity in that area to the federal government. [Citations omitted.] Finally, if Congress has not displaced state regulation entirely, it may nonetheless preempt state law to the extent that the state law actually conflicts with federal law.
Michigan Canners and Freezers Association, Inc. v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 469, 104 S.Ct. 2518, 2523, 81 L.Ed.2d 399 (1984).
We “acknowledge^] the well established principle that the touchstone of preemption analysis is congressional intent_” Howard v. Uniroyal, Inc., 719 F.2d 1552, 1555 (11th Cir.1983). Additionally, we have noted that “[t]he intent of Congress to pre-empt a state law may be either express or implied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’ ” Howard, 719 F.2d at 1556 (citing Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)).
A. The Clean Air Act
The Clean Air Act contains the following preemptive provision regarding state enforcement of federal emission standards:
No state or any political subdivision thereof shall adopt of attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to [the [1455]*1455vehicle emission standards of the Clean Air Act]. No state shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.
42 U.S.C. § 7543(a). The express language in section 7543(a) indicates Congress’s intent to exclusively regulate the control of new motor vehicle emissions prior to their initial sale. See Michigan Canners, 467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399.
The state contends that Fla.Stat. § 320.02(9) simply ensures that new motor vehicles coming onto Florida’s highways comply with the Clean Air Act; it does not establish new or conflicting emission standards. Although the state may base its contention on proper and wholesome intentions, nevertheless, Congress specifically stated that “[n]o state ... shall adopt or attempt to enforce any [federal or state] standard relating to the control of emissions from new motor vehicles” prior to the initial sale. 42 U.S.C. § 7543(a) (emphasis added). Thus, we agree with the district court’s ruling and hold that “[enforcement of the Clean Air Act before [the] first sale [of new motor vehicles] is the sole and exclusive prerogative of the federal government.”8
B. The Safety Act
The Safety Act likewise contains a preemptive provision which reads in part:
Whenever a federal motor vehicle safety standard established under this subchap-ter is in effect, no state or political subdivision of a state shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the federal standard.
15 U.S.C. § 1392(d). Unlike the preemptive provision contained in the Clean Air Act, this section precludes states from enforcement of safety standards only when such standards differ from federal standards.
The district court held that prior to a motor vehicle’s first sale, “[t]he states are absolutely barred from acting in any manner whatsoever in” enforcing federal safety standards and that “the role of the states in enforcing the federal laws and regulations is confined solely to the period after the first sale of an automobile.” We disagree with the district court.
The Safety Act does not expressly preclude states from requiring proof of compliance with federal safety standards before obtaining title and registration for gray market automobiles. The United States Supreme Court stated that “[tjhe question whether the regulation of an entire field has been reserved by the federal government is, essentially, a question of ascertaining the intent underlying the federal scheme.” Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 714, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714, 722 (1985). Congress enacted the Motor Vehicle Safety Act to establish uniform federal safety standards. See H.R. 1776, 89th Cong., 2d Sess. 17 (1966). The Safety Act as originally enacted, restricted federal enforcement of safety standards to the initial sale of new vehicles and permitted state enforcement of safety standards identical to corresponding federal standards after the first sale of new vehicles. S.Rep. No. 1301, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Admin.News 2709, 2720.
Also, the District Court for the Middle District of Pennsylvania held that the federal laws preempted state safety standards [1456]*1456identical to federal standards because Congress intended to preclude states from pre-sale enforcement of federal safety standards. Truck Safety Equipment Institute v. Kane, 466 F.Supp. 1242 (M.D.Pa.1979). The court in Kane, however, noted that the standards derived under the Pennsylvania system required independent testing and the payment of fees to cover the cost of such testing. Kane, 466 F.Supp. at 1245-46. Unlike the Pennsylvania regulations examined in Kane, section 320.02(9) does not impose requirements on a gray market vehicle importer beyond those imposed by the applicable federal standards.
In 1982, the National Highway Traffic Safety Administration (NHTSA) issued an opinion interpreting the extent to which the Safety Act preempted state enforcement of federal safety standards. Federal Motor Vehicle Safety Standards: Interpretation Regarding Preemption and Presale State Enforcement of Safety Standards, 47 Fed. Reg. 884 (Advisory Letter) (1982). In its interpretation, the NHTSA stated:
[I]t is the position of the NHTSA that any state requirement which necessitates that manufacturers pay fees in order to obtain approval under a state standard identical to an FMVSS [Federal Motor Vehicle Safety Standard], and any imposition of requirements for approval which has the effect of prescribing the sale of equipment certified under the Act to a standard such as FMVSS 218 would be preempted by operation of the Act and of the agency’s action in adopting the federal standard in question.
47 Fed. Reg. at 885.
Recently, the Fifth Circuit examined a Texas statute similar in language to Fla. Stat. § 320.02(9) and stated:9
H.B. 1805 places no burden on the manufacturer, which was clearly the concern behind the interpretation. H.B. 1805 does not involve the payment of any fees, nor does it have the effect of prescribing the sale of federally certified equipment. Indeed, H.B. 1805 does not require any certification except federal certification by federal authorities. As best we can tell, the original pre-1982 amendment provision was enacted to assure uniformity of standards for manufacturers so vehicles and equipment meeting the federal standards could be sold freely in any state. See remarks of Senator Magnu-son (one of the NHTSA’s sponsors), 112 Cong.Rec. S14230 (daily ed. June 14, 1966) (remarks of Senator Magnuson). The Texas statute. H.B. 1805, does not impair this objective since it creates no independent state standard or certification of the automobiles.
Direct Automobile Imports Association, Inc. v. Townsley, 804 F.2d 1408, 1414 (5th Cir.1986). The same rationale applies to Fla. Stat. § 320.02(9). Section 320.02(9) does not impose additional requirements or burdens on the manufacturer or importer, nor does it require the payment of additional fees. Further, section 320.02(9) does not prescribe the sale of federally certified equipment or impair Congress’s objective of establishing uniform federal safety standards to permit the free marketability of vehicles in all states.
In 1982, Congress added the following sentence to section 1392(d): “Nothing in this section shall be construed as preventing any state from enforcing any safety standard which is identical to a federal safety standard.” 15 U.S.C. § 1392(d) [1457]*1457(1982). The Senate issued a report on the amendment which reads in part:
The committee intends that states are not preempted from enforcing safety-standards identical to federal standards which they have adopted. States may not require [state] certification or approval of motor vehicles or motor vehicle equipment. However, state enforcement may be carried out according to applicable state laws. States may undertake independent testing, and also may require manufacturers to submit adequate test data concurrent with the first sale or thereafter. [Emphasis added.]
S. Rep. No. 505, 97th Cong., 2d Sess. 6, reprinted in 1982 U.S. Code Cong. & Admin. News 3169, 3174.
The District Court for the Northern District of Georgia addressed the constitutionality of Georgia statutes O.C.G.A. §§ 40-2-25.110, 40-3-29.111, and 16-9-11012 (1985) in light of 15 U.S.C. § 1392(d) (1982). Georgia Automobile Importers Compliance Association, Inc. v. Bowers, 639 F.Supp. 352 (N.D.Ga.1986). In reviewing the legislative history of section 1392(d), the district court noted several statements made on the floor of the House of Representatives on the bill’s passage which indicated congressional intent. Representative Wirth stated that “[a] recent court case and NHTSA opinion have changed the scope of traditional state enforcement.” 128 Cong. Rec. H3438 (daily ed. June 14, 1982) (remarks of Rep. Wirth). Representative Moorhead considered the amendment to affirmatively declare states as having a role in enforcing federal safety standards. See 128 Cong. Rec. H3439 (daily ed. June 14, 1982) (remarks of Rep. Moorhead). In addition, Representative Dingell stated that under the amended section 1392(d) “states may undertake independent testing of vehicles or equipment and may require manufacturers to submit adequate data concurrently with the first sale within a state, or thereafter.” 128 Cong. Rec. H3440 (daily ed. June 14, 1982) (remarks of Rep. Din-gell).
We agree with the Fifth Circuit’s conclusion in Townsley that “the legislative history shows an intent to preempt state presale enforcement of federal standards where the sale of federally certified equipment is impaired by an independent state compliance system.” Townsley, 804 F.2d at 1415. Fla. Stat. § 320.02(9) does not impair the [1458]*1458enforcement of federal safety standards or frustrate Congress’s intent of establishing uniform standards for vehicle manufacturers; consequently, we hold that the Safety Act, as amended, does not preempt Fla. Stat. § 320.02(9) (1985).
II. Commerce Clause
Although we hold that the Safety Act does not preempt the Florida Statute, we earlier held that the federal government solely and exclusively may enforce the Clean Air Act before a vehicle’s first sale. Consequently, the Clean Air Act preempts Florida Statute 320.02(9), rendering this Florida statute unconstitutional. In light of this holding on the preemption issue, we need not decide the statute’s constitutionality under the Commerce Clause.13
III. Jurisdictional Issues
We now turn to the jurisdictional issues of standing, mootness, and sovereign immunity.14
A. Standing
The state of Florida contends that Sims and the FICA lack standing to challenge the constitutionality of Fla.Stat. § 320.02(9) because they failed to show (1) a judicially cognizable injury traceable to the statute’s enforcement, and (2) a likelihood of redress if we declare the statute unconstitutional. “[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). To satisfy the standing requirement, a plaintiff must allege a personal injury fairly traceable to the challenged conduct and a likelihood that the requested relief will redress such injury. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
The Supreme Court requires the courts to “accept as true all material allegations of the complaint, and ... construe the complaint in favor of the complaining party.” Warth, 422 U.S. at 501, 95 S.Ct. at 2206; see Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979). In satisfying the initial article III standing requirement—an allegation of “a distinct and palpable injury,” Sims and the FICA allege that the state’s enforcement of section 320.02(9) unlawfully prevents titling and registering gray market vehicles in Florida. See Warth, 422 U.S. at 501, 95 S.Ct. at 2206. Assuming, as we must, the truth of these allegations, the state’s unlawful refusal to issue titles and registrations to owners of gray market vehicles constitutes a distinct and palpable personal injury to Sims and the FICA.
Sims and the FICA make additional assertions sufficient to establish the second standing requirement—the requested relief’s likelihood of redress. Absent section 320.02(9), Florida would title and register Sim’s and other owners gray market vehicles.
The state’s standing contention has no merit. We must determine standing at the time a plaintiff files suit. Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332, 100 S.Ct. 1166, 1170, 63 L.Ed.2d 427, 435 (1980). At the time Sims filed this lawsuit, Sims owned the vehicle that Flor[1459]*1459ida refused to title. The state relied on the statute for its refusal. Who suffers a greater injury than the owner to whom the state denies title and registration? Likewise, Sims prayed that the district court declare the statute unconstitutional and enjoin its future enforcement. The district court provided this relief.
As to the FICA’s standing, we must determine its members’ involvement in importing and marketing gray market automobiles. According to the complaint, FICA members include
persons and Florida business entities who support improving opportunities for commerce with foreign nations in the importation, use and sale in the United States of foreign-manufactured automobiles that are converted in this country to comply with emission and safety standards of the Cleán Air Act and the Vehicle Safety Act. Plaintiff FICA’s members include importers of automobiles for their personal use as well as importers for sale, or dealers; brokers of import transactions; owners and operators of automotive conversion and compliance facilities, equipped to comply with safety standards established pursuant to the Vehicle Safety Act; and owners and operators of specialized automotive testing laboratories, equipped to comply or verify compliance with emission standards established pursuant to the Clean Air Act.
If owners, importers for personal use, importers for sale, dealers, brokers, automotive conversion mechanics, and compliance testing laboratories involved in the gray market vehicle business do not have standing to challenge the statute, then no individual or entity would have the requisite standing.
B. Mootness
The mootness issue need not cause delay.15 We have ruled that Sims and the FICA have standing to bring this suit. Mootness and standing are related doctrines. Where a party challenges standing, the court inquires whether the plaintiff is entitled to relief. Where mootness is at issue, the court determines whether judicial activity remains necessary. Warth v. Seldin, 422 U.S. 490, 499 n. 10, 95 S.Ct. 2197, 2205 n. 10, 45 L.Ed.2d 343 (1975). Mootness demands that the plaintiff’s personal interest in the lawsuit (standing) continue to the lawsuit’s end.
This case undoubtedly is not moot as to the FICA. The FICA presently has the same personal interest and stake in the lawsuit as it did on the date of filing. The FICA’s members continue importing, converting, testing, and selling gray market vehicles. The Florida statute still delays the effective conduct of FICA members’ businesses.
The state failed to make the only possible mootness argument regarding Sims. Sims received the bond release letter on September 18, 1985, after the district court trial which held the statute unconstitutional. One could argue that Sims’s case became moot when she received the documents pri- or to the state’s appeal. Because we decide the statute’s constitutionality in this opinion, this argument simply asserts that a gray market vehicle owner could never attack the Florida statute; the state could deliver the documents at any time, even after trial, resulting in the lawsuit’s dismissal. The court would never determine the statute’s constitutionality in a gray market vehicle owner’s lawsuit because of litigation’s inherent length and delays.
Although such an argument is legally and logically specious, we need not rely on its specious nature. The Supreme Court established the doctrine of “capable of repetition yet evading review” for application to mootness issues. Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). This doctrine allows federal jurisdiction to continue where seemingly no continuing controversy exists. The Supreme Court [1460]*1460held that mootness does not apply in these “exceptional circumstances” if a plaintiff can demonstrate that the alleged injury is capable of repetition, but time constraints or other circumstances preclude the court’s review. DeFunis, 416 U.S. at 318-19, 94 S.Ct. at 1706-07. Sims’s injury is capable of repetition. The record shows that individuals import thousands of gray market vehicles into the United States each year. All of these vehicle owners who seek title and registration in Florida will suffer the same injuries as Sims, and similarly find themselves unable to attack the statute because the state ultimately, even after trial, delivers the documents. Consequently, effective review of an owner’s claim would never occur if we hold that delivery of the documents at any time, even after trial renders the owner’s claim moot.
This action is not moot.
C. Immunity
Sims and the FICA filed suit in the district court naming as defendants the State of Florida, the Department of Highway Safety and Motor Vehicles, and the Attorney General. Sims and the FICA then filed an uncontested motion to dismiss the Attorney General as a defendant. The parties never named as a defendant the Director of the Division of Motor Vehicles, Florida Department of Highway Safety and Motor Vehicles. Thus, the State of Florida and one of its agencies—the Department of Highway Safety and Motor Vehicles remain the only defendants in this action. “It is clear ... that in the absence of consent a suit in which the state or one of its agencies or departments is named as the defendant is prescribed by the eleventh amendment.” Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984).
The state of Florida failed to plead sovereign immunity under the eleventh amendment as a defense to this constitutional challenge. The state never mentioned the eleventh amendment, not even at trial. In addition, the state did not initially raise the issue on appeal, but only raised sovereign immunity after this court requested that the parties brief the issue.
Sims and the FICA contend that this court unwarrantedly raised the eleventh amendment defense. They rely on the Supreme Court’s statement: “[W]e have never held that [the eleventh amendment defense] is jurisdictional in the sense that it must be raised and decided by this court on its own motion.” Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 2567 n. 19, 73 L.Ed.2d 172, 187 n. 19 (1982).
In response to the state's late and compelled sovereign immunity defense, Sims and the FICA moved this court to add the Director of the Division of Motor Vehicles as a defendant. We grant this motion, even though we would remand the sovereign immunity issue to the district court in other circumstances.16 In this case, however, in light of the state’s initial waiver of the defense, the state’s reluctance to urge the issue before the in banc court, and the lack of prejudice to the state and its officials, the district court would clearly abuse its discretion if it denied the motion to formally add as a defendant the Director of the Division of Motor Vehicles for the State of Florida.
CONCLUSION
In summary, we affirm the district court’s ruling that Fla. Stat. § 320.02(9) violates the Clean Air Act, 42 U.S.C. § 7522 because Congress has exclusively reserved to the federal government the enforcement of federal emission standards. We reverse the district court’s ruling that Fla. Stat. § 320.02(9) violates the Safety Act. Accordingly, we affirm in part and reverse in [1461]*1461part.17
AFFIRMED in part and REVERSED in part.