Lapides v. Board of Regents of Univ. System of Ga., 535 U.S. 613 (2002)

OCTOBER TERM, 2001

Syllabus

LAPIDES v. BOARD OF REGENTS OF UNIVERSITY SYSTEM OF GEORGIA ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 01-298. Argued February 25, 2002-Decided May 13,2002

Petitioner, a professor in the Georgia state university system, filed a statecourt suit against respondents-the system's board of regents (hereinafter Georgia or State) and university officials in their personal capacities and as state agents-alleging that the officials had violated state tort law and 42 U. S. C. § 1983 when they placed sexual harassment allegations in his personnel files. The defendants removed the case to Federal District Court and then sought dismissal. Conceding that a state statute had waived Georgia's sovereign immunity from state-law suits in state court, the State claimed Eleventh Amendment immunity from suit in the federal court. The District Court held that Georgia had waived such immunity when it removed the case to federal court. In reversing, the Eleventh Circuit found that, because state law was unclear as to whether the state attorney general had the legal authority to waive Georgia's Eleventh Amendment immunity, the State retained the legal right to assert immunity, even after removal.

Held: A State waives its Eleventh Amendment immunity when it removes a case from state court to federal court. pp. 617-624.

(a) Because this case does not present a valid federal claim against Georgia, see Will v. Michigan Dept. of State Police, 491 U. S. 58, 66, the answer to the question presented is limited to the context of state-law claims where the State has waived immunity from state-court proceedings. Although absent a federal claim, the Federal District Court might remand the state claims against the State to state court, those claims remain pending in the federal court, which has the discretion to decide the remand question in the first instance. Thus, the question presented is not moot. Pp. 617-618.

(b) This Court has established the general principle that a State's voluntary appearance in federal court amounts to a waiver of its Eleventh Amendment immunity, Clark v. Barnard, 108 U. S. 436,447; Gardner v. New Jersey, 329 U. S. 565, 574; Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 284, and has often cited with approval the cases embodying that principle, see, e. g., College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 681, n. 3. Here, Georgia was brought involuntarily into the case as a defendant in state

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614 LAPIDES v. BOARD OF REGENTS OF UNIV. SYSTEM OF GA.

Syllabus

court, but it then voluntarily removed the case to federal court, thus voluntarily invoking that court's jurisdiction. Unless this Court is to abandon the general principle requiring waiver or there is something special about removal in this case, the general principle should apply. Pp. 618-620.

(c) Contrary to respondents' arguments, there is no reason to abandon the general principle. The principle enunciated in Gunter, Gardner, and Clark did not turn on the nature of the relief and is sound as applied to money damages cases such as this. And more recent cases requiring a clear indication of a State's intent to waive its immunity, e. g., College Savings Bank, 527 U. S., at 675-681, distinguished the kind of constructive waivers repudiated there from waivers effected by litigation conduct, id., at 681, n. 3. Nor have respondents pointed to a special feature of removal or of this case that would justify taking the case out from the general rule. That Georgia claims a benign motive for removalnot to obtain litigating advantages for itself but to provide the officials sued in their personal capacities with the interlocutory appeal provisions available in federal court-cannot make a critical difference. Motives are difficult to evaluate, while jurisdictional rules should be clear. Because adopting respondents' position would permit States to achieve unfair tactical advantages, if not in this case, then in others, see Wisconsin Dept. of Corrections v. Schacht, 524 U. S. 381, 393-394, the rationale for applying the general principle is as strong here as elsewhere. Respondents also argue that Georgia is entitled to immunity because state law does not authorize its attorney general to waive Eleventh Amendment immunity and because, in Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459, a State regained immunity by showing such lack of authority-even after the State had litigated the case against it. Here, however, Georgia voluntarily invoked the federal court's jurisdiction, while the State in Ford had involuntarily been made a federal-court defendant. This Court has consistently found waiver when a state attorney general, authorized to bring a case in federal court, has voluntarily invoked that court's jurisdiction. More importantly, in large part the rule governing voluntary invocations of federal jurisdiction has rested upon the inconsistency and unfairness that a contrary rule would create. A rule that finds waiver through a state attorney general's invocation of federal-court jurisdiction avoids inconsistency and unfairness, but a rule that, as in Ford, denies waiver despite the attorney general's state-authorized litigating decision does the opposite. For these reasons, Clark, Gunter, and Gardner represent the sounder line of authority, and Ford, which is inconsistent with the basic rationale of those cases, is overruled insofar as it would

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otherwise apply. Respondents' remaining arguments are unconvincing. Pp. 620-624.

251 F.3d 1372, reversed.

BREYER, J., delivered the opinion for a unanimous Court.

David J. Bederman argued the cause for petitioner. With him on the briefs were Michael J. Bowers and Patrick W McKee.

Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Clement, Mark B. Stern, and Alisa B. Klein.

Devon Orland, Assistant Attorney General of Georgia, argued the cause for respondents. With her on the brief were Thurbert E. Baker, Attorney General, Kathleen Pacious, Deputy Attorney General, and John C. Jones and Patricia Downing, Senior Assistant Attorneys General.

Julie Caruthers Parsley, Solicitor General of Texas, argued the cause for the State of Texas et al. as amici curiae urging affirmance. With her on the brief were John Cornyn, Attorney General, Jeffrey S. Boyd, Deputy Attorney General, and Lisa R. Eskow, Assistant Solicitor General, and the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Steve Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, David Samson of New Jersey, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Paul G. Summers of Ten-

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616 LAPIDES v. BOARD OF REGENTS OF UNIV. SYSTEM OF GA.

nessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, and Jerry W Kilgore of Virginia.*

JUSTICE BREYER delivered the opinion of the Court.

The Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States, U. S. Const., Amdt. 11, and by its own citizens as well, Hans v. Louisiana, 134 U. S. 1 (1890). The question before us is whether the State's act of removing a lawsuit from state court to federal court waives this immunity. We hold that it does.

I

Paul Lapides, a professor employed by the Georgia state university system, brought this lawsuit in a Georgia state court. He sued respondents, the Board of Regents of the University System of Georgia (hereinafter Georgia or State) and university officials acting in both their personal capacities and as agents of the State. Lapides' lawsuit alleged that university officials placed allegations of sexual harassment in his personnel files. And Lapides claimed that their doing so violated both Georgia law, see Georgia Tort Claims Act, Ga. Code Ann. § 50-21-23 (1994), and federal law, see Civil Rights Act of 1871, Rev. Stat. § 1979, 42 U. S. C. § 1983 (1994 ed., Supp. V).

All defendants joined in removing the case to Federal District Court, 28 U. S. C. § 1441, where they sought dismissal. Those individuals whom Lapides had sued in their personal capacities argued that the doctrine of "qualified immunity" barred Lapides' federal-law claims against them. And the District Court agreed. The State, while conceding that a state statute had waived sovereign immunity from state-law suits in state court, argued that, by virtue of the Eleventh Amendment, it remained immune from suit in federal court.

* John Townsend Rich filed a brief for Ceres Marine Terminals, Inc., as amicus curiae urging reversal.

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See U. S. Const., Amdt. 11 (limiting scope of "Judicial power of the United States" (emphasis added)). But the District Court did not agree. Rather, in its view, by removing the case from state to federal court, the State had waived its Eleventh Amendment immunity. See Atascadero State Hospital v. Scanlon, 473 U. S. 234, 238 (1985) (State may waive Eleventh Amendment immunity).

The State appealed the District Court's Eleventh Amendment ruling. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144-145 (1993) (allowing interlocutory appeal). And the Court of Appeals for the Eleventh Circuit reversed. 251 F.3d 1372 (2001). In its view, state law was, at the least, unclear as to whether the State's attorney general possessed the legal authority to waive the State's Eleventh Amendment immunity. And, that being so, the State retained the legal right to assert its immunity, even after removal. See Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459 (1945).

Lapides sought certiorari. We agreed to decide whether "a state waive[s] its Eleventh Amendment immunity by its affirmative litigation conduct when it removes a case to federal court .... " Pet. for Cert. (i).

It has become clear that we must limit our answer to the context of state-law claims, in respect to which the State has explicitly waived immunity from state-court proceedings. That is because Lapides' only federal claim against the State arises under 42 U. S. C. § 1983, that claim seeks only monetary damages, and we have held that a State is not a "person" against whom a § 1983 claim for money damages might be asserted. Will v. Michigan Dept. of State Police, 491 U. S. 58, 66 (1989). Compare Tr. of Oral Arg. 57-58 (asserting that complaint also sought declaratory judgment on the federal claim), with complaint, App. 9-19 (failing, implicitly or explicitly, to seek any such relief). Hence this case does not present a valid federal claim against the State. Nor need we address the scope of waiver by removal in a

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618 LAPIDES v. BOARD OF REGENTS OF UNIV. SYSTEM OF GA.

situation where the State's underlying sovereign immunity from suit has not been waived or abrogated in state court.

It has also become clear that, in the absence of any viable federal claim, the Federal District Court might well remand Lapides' state-law tort claims against the State to state court. 28 U. S. C. § 1367(c)(3). Nonetheless, Lapides' statelaw tort claims against the State remain pending in Federal District Court, § 1367(a), and the law commits the remand question, ordinarily a matter of discretion, to the Federal District Court for decision in the first instance. Moor v. County of Alameda, 411 U. S. 693, 712 (1973). Hence, the question presented is not moot. We possess the legal power here to answer that question as limited to the state-law context just described. And, in light of differences of view among the lower courts, we shall do so. Compare McLaughlin v. Board of Trustees of State Colleges of Colo., 215 F.3d 1168, 1171 (CAlO 2000) (removal waives immunity regardless of attorney general's state-law waiver authority); and Newfield House, Inc. v. Massachusetts Dept. of Public Welfare, 651 F.2d 32, 36, n. 3 (CAl1981) (similar); with Estate of Porter ex rel. Nelson v. Illinois, 36 F. 3d 684,690-691 (CA7 1994) (removal does not waive immunity); Silver v. Baggiano, 804 F.2d 1211, 1214 (CAll 1986) (similar); and Gwinn Area Community Schools v. Michigan, 741 F.2d 840, 846-847 (CA6 1984) (similar).

II

The Eleventh Amendment provides that the "Judicial power of the United States shall not be construed to extend to any suit ... commenced or prosecuted against one of the ... States" by citizens of another State, U. S. Const., Arndt. 11, and (as interpreted) by its own citizens. Hans v. Louisiana, 134 U. S. 1 (1890). A State remains free to waive its Eleventh Amendment immunity from suit in a federal court. See, e. g., Atascadero, supra, at 238. And the question before us now is whether a State waives that im-

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munity when it removes a case from state court to federal court.

It would seem anomalous or inconsistent for a State both (1) to invoke federal jurisdiction, thereby contending that the "Judicial power of the United States" extends to the case at hand, and (2) to claim Eleventh Amendment immunity, thereby denying that the "Judicial power of the United States" extends to the case at hand. And a Constitution that permitted States to follow their litigation interests by freely asserting both claims in the same case could generate seriously unfair results. Thus, it is not surprising that more than a century ago this Court indicated that a State's voluntary appearance in federal court amounted to a waiver of its Eleventh Amendment immunity. Clark v. Barnard, 108 U. S. 436, 447 (1883) (State's "voluntary appearance" in federal court as an intervenor avoids Eleventh Amendment inquiry). The Court subsequently held, in the context of a bankruptcy claim, that a State "waives any immunity ... respecting the adjudication of" a "claim" that it voluntarily files in federal court. Gardner v. New Jersey, 329 U. S. 565, 574 (1947). And the Court has made clear in general that "where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment." Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 284 (1906) (emphasis added). The Court has long accepted this statement of the law as valid, often citing with approval the cases embodying that principle. See, e. g., College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 681, n. 3 (1999) (citing Gardner); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 294, and n. 10 (1973) (Marshall, J., concurring in result) (citing Clark); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U. S. 275, 276 (1959) (citing Clark).

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620 LAPIDES v. BOARD OF REGENTS OF UNIV. SYSTEM OF GA.

In this case, the State was brought involuntarily into the case as a defendant in the original state-court proceedings. But the State then voluntarily agreed to remove the case to federal court. See 28 U. S. C. § 1446(a); Chicago, R.1. & P. R. Co. v. Martin, 178 U. S. 245, 248 (1900) (removal requires the consent of all defendants). In doing so, it voluntarily invoked the federal court's jurisdiction. And unless we are to abandon the general principle just stated, or unless there is something special about removal or about this case, the general legal principle requiring waiver ought to apply.

We see no reason to abandon the general principle. Georgia points out that the cases that stand for the principle, Gunter, Gardner, and Clark, did not involve suits for money damages against the State-the heart of the Eleventh Amendment's concern. But the principle enunciated in those cases did not turn upon the nature of the relief sought. And that principle remains sound as applied to suits for money damages.

Georgia adds that this Court decided Gunter, Gardner, and Clark before it decided more recent cases, which have required a "clear" indication of the State's intent to waive its immunity. College Savings Bank, 527 U. S., at 675-681. But College Savings Bank distinguished the kind of constructive waivers repudiated there from waivers effected by litigation conduct. Id., at 681, n. 3. And this makes sense because an interpretation of the Eleventh Amendment that finds waiver in the litigation context rests upon the Amendment's presumed recognition of the judicial need to avoid inconsistency, anomaly, and unfairness, and not upon a State's actual preference or desire, which might, after all, favor selective use of "immunity" to achieve litigation advantages. See Wisconsin Dept. of Corrections v. Schacht, 524 U. S. 381, 393 (1998) (KENNEDY, J., concurring). The relevant "clarity" here must focus on the litigation act the State takes that creates the waiver. And that act-removal-is clear.

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Nor has Georgia pointed to any special feature, either of removal or of this case, that would justify taking the case out from under the general rule. Georgia argues that its motive for removal was benign. It agreed to remove, not in order to obtain litigating advantages for itself, but to provide its codefendants, the officials sued in their personal capacities, with the generous interlocutory appeal provisions available in federal, but not in state, court. Compare Mitchell v. Forsyth, 472 U. S. 511, 524-530 (1985) (authorizing interlocutory appeal of adverse qualified immunity determination), with Turner v. Giles, 264 Ga. 812, 813, 450 S. E. 2d 421, 424 (1994) (limiting interlocutory appeals to those certified by trial court). And it intended, from the beginning, to return to state court, when and if its codefendants had achieved their own legal victory.

A benign motive, however, cannot make the critical difference for which Georgia hopes. Motives are difficult to evaluate, while jurisdictional rules should be clear. See Hanover Star Milling Co. v. Metcalf, 240 U. S. 403, 426 (1916) (Holmes, J., concurring). To adopt the State's Eleventh Amendment position would permit States to achieve unfair tactical advantages, if not in this case, in others. See Schacht, supra, at 393-394, 398 (KENNEDY, J., concurring); cf. ALl, Study of the Division of Jurisdiction Between State and Federal Courts 366-367 (1968) (discussing the unfairness of allowing one who has invoked federal jurisdiction subsequently to challenge that jurisdiction). And that being so, the rationale for applying the general "voluntary invocation" principle is as strong here, in the context of removal, as elsewhere.

More importantly, Georgia argues that state law, while authorizing its attorney general "[t]o represent the state in all civil actions tried in any court," Ga. Code Ann. § 45-15-3(6) (1990); see Ga. Const., Art. 5, § 3, ~ 4, does not authorize the attorney general to waive the State's Eleventh Amendment immunity, id., Art. 1, § 2, ~~ 9(e), (f), reprinted in 2 Ga. Code

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622 LAPIDES v. BOARD OF REGENTS OF UNIV. SYSTEM OF GA.

Ann. (Supp. 1996). Georgia adds that in Ford, this Court unanimously interpreted roughly similar state laws similarly, that the Court held that "no properly authorized executive or administrative officer of the state has waived the state's immunity," 328 U. S., at 469, and that it sustained an Eleventh Amendment defense raised for the first time after a State had litigated a claim brought against it in federal court. That is to say, in Ford a State regained immunity by showing the attorney general's lack of statutory authority to waiveeven after the State litigated a case brought against it in federal court. Why, then, asks Georgia, can it not regain immunity in the same way, even after it removed its case to federal court?

The short answer to this question is that this case involves a State that voluntarily invoked the jurisdiction of the federal court, while Ford involved a State that a private plaintiff had involuntarily made a defendant in federal court. This Court consistently has found a waiver when a State's attorney general, authorized (as here) to bring a case in federal court, has voluntarily invoked that court's jurisdiction. See Gardner, 329 U. S., at 574-575; Gunter, 200 U. S., at 285-289, 292; cf. Clark, 108 U. S., at 447-448 (not inquiring into attorney general's authority). And the Eleventh Amendment waiver rules are different when a State's federal-court participation is involuntary. See Hans v. Louisiana, 134 U. S. 1 (1890); cf. U. S. Const., Amdt. 11 (discussing suits "commenced or prosecuted against" a State).

But there is a more important answer. In large part the rule governing voluntary invocations of federal jurisdiction has rested upon the problems of inconsistency and unfairness that a contrary rule of law would create. Gunter, supra, at 284. And that determination reflects a belief that neither those who wrote the Eleventh Amendment nor the States themselves (insofar as they authorize litigation in federal courts) would intend to create that unfairness. As in analogous contexts, in which such matters are questions of federal

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law, cf., e. g., Regents of Univ. of Cal. v. Doe, 519 U. S. 425, 429, n. 5 (1997), whether a particular set of state laws, rules, or activities amounts to a waiver of the State's Eleventh Amendment immunity is a question of federal law. A rule of federal law that finds waiver through a state attorney general's invocation of federal-court jurisdiction avoids inconsistency and unfairness. A rule of federal law that, as in Ford, denies waiver despite the state attorney general's state-authorized litigating decision, does the opposite. For these reasons one Member of this Court has called for Ford's reexamination. Schacht, 524 U. S., at 394, 397 (KENNEDY, J., concurring). And for these same reasons, we conclude that Clark, Gunter, and Gardner represent the sounder line of authority. Finding Ford inconsistent with the basic rationale of that line of cases, we consequently overrule Ford insofar as it would otherwise apply.

The State makes several other arguments, none of which we find convincing. It points to cases in which this Court has permitted the United States to enter into a case voluntarily without giving up immunity or to assert immunity despite a previous effort to waive. See United States v. United States Fidelity & Guaranty Co., 309 U. S. 506 (1940); United States v. Shaw, 309 U. S. 495 (1940); see also Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla., 498 U. S. 505 (1991). Those cases, however, do not involve the Eleventh Amendment-a specific text with a history that focuses upon the State's sovereignty vis-a-vis the Federal Government. And each case involves special circumstances not at issue here, for example, an effort by a sovereign (i. e., the United States) to seek the protection of its own courts (i. e., the federal courts), or an effort to protect an Indian tribe.

Finally, Georgia says that our conclusion will prove confusing, for States will have to guess what conduct might be deemed a waiver in order to avoid accidental waivers. But we believe the rule is a clear one, easily applied by both

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624 LAPIDES v. BOARD OF REGENTS OF UNIV. SYSTEM OF GA.

federal courts and the States themselves. It says that removal is a form of voluntary invocation of a federal court's jurisdiction sufficient to waive the State's otherwise valid objection to litigation of a matter (here of state law) in a federal forum. As JUSTICE KENNEDY has pointed out, once "the States know or have reason to expect that removal will constitute a waiver, then it is easy enough to presume that an attorney authorized to represent the State can bind it to the jurisdiction of the federal court (for Eleventh Amendment purposes) by the consent to removal." See Schacht, supra, at 397 (concurring opinion).

We conclude that the State's action joining the removing of this case to federal court waived its Eleventh Amendment immunity-though, as we have said, the District Court may well find that this case, now raising only state-law issues, should nonetheless be remanded to the state courts for determination. 28 U. S. C. § 1367(c)(3).

For these reasons, the judgment of the Court of Appeals is reversed.

It is so ordered.