OCTOBER TERM, 1997
Syllabus
WISCONSIN DEPARTMENT OF CORRECTIONS ET AL.
v. SCHACHT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No.97-461. Argued April 20, 1998-Decided June 22, 1998
Respondent Schacht filed a state-court suit against the
defendants (petitioners here), the Wisconsin Department of
Corrections and several of its employees, both in their "personal"
and in their "official" capacities, alleging that his dismissal
from his prison guard position violated the Federal Constitution
and federal civil rights laws. The defendants removed the case to
federal court and then filed an answer raising the "defense" that
the Eleventh Amendment doctrine of sovereign immunity barred the
claims against the Department and its employees in their official
capacity. The District Court granted the individual defendants
summary judgment on the "personal capacity" claims and dismissed
the claims against the Department and the individual defendants in
their "official capacity." On appeal, Schacht challenged only the
disposition of the "personal capacity" claims, but the Seventh
Circuit determined that the removal had been improper because the
presence of even one claim subject to an Eleventh Amendment bar
deprives the federal courts of removal jurisdiction over the entire
case.
Held: The presence in an otherwise removable case of a
claim barred by the Eleventh Amendment does not destroy removal
jurisdiction that would otherwise exist. A federal court can
proceed to hear the remaining claims, and the District Court did
not err in doing so in this case. Pp. 386-393.
(a) Title 28 U. S. C. § 1441(a), which allows a defendant to
remove "any civil action brought in a State court of which the
[federal] district courts ... have original jurisdiction,"
obviously permits the removal of a case containing only claims that
"arise under" federal law, since federal courts have original
jurisdiction over such claims, see § 1331. There are several parts
to respondent's argument that removal jurisdiction is destroyed if
one of those federal claims is subject to an Eleventh Amendment
bar. First, the argument distinguishes cases with both federal-law
and state-law claims from cases with federal-law claims that
include one or more Eleventh Amendment claims. In the former cases
the state-law claims fall within the federal courts' supplemental
jurisdiction. In the latter cases the comparable claims are ones
that the Eleventh Amendment prohibits the federal courts from
deciding.
382
Second, the argument emphasizes the "jurisdictional" nature of
the difference, since neither the law permitting supplemental
jurisdiction, nor any other law, gives the federal court the power
to decide a claim barred by the Eleventh Amendment. Third, the
argument looks to removal based upon "diversity jurisdiction" for
analogical authority leading to its conclusion that the
"jurisdictional" problem is so serious that the presence of even
one Eleventh Amendment barred claim destroys removal jurisdiction
with respect to all claims, i.
e., the "case." The analogy
is unconvincing, for this case differs significantly from diversity
cases with respect to original jurisdiction. The presence of a
nondiverse party automatically destroys such jurisdiction: No party
need assert the defect. No party can waive the defect, or consent
to jurisdiction. No court can ignore the defect; rather a court,
noticing the defect, must raise the matter on its own. In contrast,
the Eleventh Amendment does not automatically destroy original
jurisdiction. It grants the State a legal power to assert a
sovereign immunity defense. The State can waive the defense, and a
court may ignore the defect unless it is raised by the State. Since
a federal court would have original jurisdiction to hear this case
had Schacht originally filed it there, the defendants may remove
the case from state to federal courts. Other conditions-e. g., the
fact that removal jurisdiction is determined as of the time a case
was filed in state court, which was before the defendants filed
their answer in federal court-further undermine the analogy. Pp.
386-391.
(b) Schacht's one further argument-that, after the State
asserted its Eleventh Amendment defense, the federal court lacked
subject-matter jurisdiction over the entire case and thus had to
remand it to state court under § 1447(c)-is rejected. An ordinary
reading of § 1447(c) indicates that it refers to an instance in
which a federal court "lacks subject matter jurisdiction" over a
"case," not simply over one claim within the case. Moreover, §
1447(c)'s objective-to specify the procedures that a federal court
must follow in remanding a case after removal-is irrelevant to the
question presented here. Pp. 391-393.
116 F.3d
1151, vacated and remanded.
BREYER, J., delivered the opinion for a unanimous Court.
KENNEDY, J., filed a concurring opinion,
post, p. 393.
Richard Briles Moriarty, Assistant Attorney General of
Wisconsin, argued the cause for petitioners. With him on the briefs
was
James E. Doyle, Attorney General.
383
David E. Lasker argued the cause and filed a brief for
respondent. *
JUSTICE BREYER delivered the opinion of the Court.
The question before us is whether defendants in a case filed in
a state court, with claims "arising under" federal law, can remove
that case to federal court-where some claims, made against a State,
are subject to an Eleventh Amendment bar. We conclude that the
defendants can remove the case to a federal court and that the
court can decide the nonbarred claims.
I
In 1993, the Wisconsin Department of Corrections dismissed Keith
Schacht, a prison guard, for stealing items from the Oakhill
Correctional Institution, a state prison. In January 1996, Schacht
filed a complaint in state court against the Department and several
of its employees, both in their "personal" and in their "official"
capacities. The complaint, in several different claims, alleged
that the Department and its employees had deprived Schacht of
"liberty" and "property" without "due process of law," thereby
violating the Federal Constitution and civil rights laws. U. S.
Const.,
* A brief of
amici curiae urging reversal was filed for
the State of Indiana et al. by
Jeffrey A. Modisett, Attorney
General of Indiana, and
Jon Laramore, Geoffrey Slaughter,
and
Anthony Scott Chinn, Deputy Attorneys General, and by
the Attorneys General for their respective States as follows:
Bill Pryor of Alabama,
Grant Woods of Arizona,
Robert A. Butterworth of Florida,
Thurbert E. Baker
of Georgia,
Margery S.
Bronster of Hawaii,
James
E. Ryan of Illinois, J.
Joseph Curran, Jr., of Maryland,
Scott Harshbarger of Massachusetts,
Frank J.
Kelley of Michigan,
Mike Moore of Mississippi,
Joseph P. Mazurek of Montana,
Philip T. McLaughlin of
New Hampshire,
Frankie Sue Del Papa of Nevada,
Dennis
C.
Vacco of New York,
Heidi Heitkamp of North Dakota,
Betty D. Montgomery of Ohio,
John Knox Walkup of
Tennessee,
Dan Morales of Texas,
Jan Graham of Utah,
William H. Sorrell of Vermont, and
William U. Hill of
Wyoming.
384
Amdt. 14, § 1; Rev. Stat. § 1979, 42 U. S. C. § 1983. The
defendants immediately removed the case to federal court.
The defendants' answer, filed in federal court, in part raised
as a "defense" that the "eleventh amendment to the United States
Constitution, and the doctrine of sovereign immunity, bars any
claim under 42 U. S. C. § 1983 against" the State itself, namely,
the "defendant Wisconsin Department of Corrections [and] against
any of the named defendants in their official capacities." Answer
and Defenses, App. 14-15. See
Kentucky v.
Graham,
473 U. S. 159,
165-167, and n. 14 (1985) (suit for damages against state officer
in official capacity is barred by the Eleventh Amendment);
Alabama v.
Pugh, 438 U. S. 781, 782 (1978)
(per curiam) (suit against state agency is barred by the
Eleventh Amendment).
After further proceedings, the Federal District Court considered
those claims that were not against the State, that is, the claims
against the individual defendants in their "personal capacit[ies]."
It concluded as to those claims that, even if Schacht's factual
allegations were true, Schacht had received the process that was
his "due," and his dismissal did not violate the Fourteenth
Amendment. No. 96C-122-S (WD Wis., Sept. 13, 1996), App. 31-34. It
therefore granted the defendants' motion for summary judgment with
respect to those claims.
Id., at 34.
The federal court also considered the defendants' motion to
dismiss those claims filed against the State, i.
e., the
claims against the Department of Corrections and its employees in
their "official capacities." The District Court granted the motion,
stating:
"Plaintiff agrees his claims for money damages are barred [by
the Eleventh Amendment] but pursues his claims for injunctive
relief. Plaintiff does not, however, request injunctive relief in
his complaint .... Defendants' motion to dismiss plaintiff's claims
against the Wisconsin Department of Corrections and the
individual
385
defendants in their official capacities will be granted."
Id., at 30.
Schacht appealed. He did not assert that the District Court was
wrong to have dismissed the claims against the State. He argued
only that the court's disposition of the "personal capacity"
claims, i.
e., the grant of summary judgment, was legally
erroneous. During the appeal, the Court of Appeals for the Seventh
Circuit itself raised the question whether the removal from state
to federal court had been legally permissible. See
116 F.3d
1151, 1153 (1997). After supplemental briefing, the Court of
Appeals concluded that removal had been improper and the federal
courts lacked jurisdiction over Schacht's case.
Ibid.
The Court of Appeals pointed out that Schacht's original
state-court complaint, while presenting only claims arising under
federal law, asserted some of those claims against the State.
Id., at 1152. The court added that the Eleventh Amendment,
as interpreted by this Court, prohibited the assertion of those
claims in federal court.
Ibid. (citing U. S. Const., Arndt.
11;
Hans v.
Louisiana, 134 U. S 1, 10 (1890)). The
Court of Appeals concluded that the presence of even one such claim
in an otherwise removable case deprived the federal courts of
removal jurisdiction over the entire case. 116 F. 3d, at 1152-1153
(relying on
Frances J. v.
Wright, 19 F. 3d 337, 341
(CA7 1994)). Hence, it held, the District Court's judgment must be
vacated and the entire case returned to the state court for the
litigation to begin all over again. 116 F. 3d, at 1153-1154.
We granted certiorari to review the Seventh Circuit's view of
the matter, and the similar views taken in several earlier cases
upon which that court relied, see,
e. g., Frances J.,
supra; McKay v.
Boyd Constr. Co., 769 F.2d
1084 (CA51985). Those decisions conflict with the decisions of
other Courts of Appeals. See,
e. g., Kruse v.
Hawai'i, 68 F.3d
331 (CA9 1995);
Henry v.
Metropolitan Sewer
Dist., 922 F.2d
332 (CA6 1990); see also
Silver v.
Baggiano,
804 F.2d
1211 (CAll
386
1986). We now conclude, contrary to the Seventh Circuit, that
the presence in an otherwise removable case of a claim that the
Eleventh Amendment may bar does not destroy removal jurisdiction
that would otherwise exist.
II
The governing provision of the federal removal statute
authorizes a defendant to remove "any civil action brought in a
State court of which the district courts of the United States have
original jurisdiction." 28 U. S. C. § 1441(a). See also Judiciary
Act of 1789, § 12, 1 Stat. 79-80 (original removal statute); Act of
Mar. 3, 1887, 24 Stat. 552, corrected by Act of Aug. 13, 1888, 25
Stat. 433 (setting forth removal power in terms roughly similar to
present law). The language of this section obviously permits the
removal of a case that contains only claims that "arise under"
federal law. That is because a federal statute explicitly grants
the federal courts "original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United
States," 28 U. S. C. § 1331. This case, however, requires us to
consider what happens if one, or more, of those claims is subject
to an Eleventh Amendment bar. Does that circumstance destroy
removal jurisdiction that would otherwise exist?
The primary argument that it does destroy removal jurisdiction
has several parts. First, the argument distinguishes a case with
federal-law claims that include one or more Eleventh Amendment
claims from a case with both federal-law claims and state-law
claims. See 116 F. 3d, at 1152. We have suggested that the presence
of even one claim "arising under" federal law is sufficient to
satisfy the requirement that the case be within the original
jurisdiction of the district court for removal. See
Chicago
v.
International College of Surgeons, 522 U. S. 156, 163-166
(1997). In
Chicago, for example, we wrote:
"[The] federal claims suffice to make the actions 'civil
actions' within the 'original jurisdiction' of the district
387
courts for purposes of removal. ... Nothing in the
jurisdictional statutes suggests that the presence of related state
law claims somehow alters the fact that [the] complaints, by virtue
of their federal claims, were 'civil actions' within the federal
courts' 'original jurisdiction.'" Id., at 166 (citation
omitted).
See also Metropolitan Life Ins. Co. v. Taylor,
481 U. S. 58 (1987);
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust
for Southern Cal.,
463
U. S. 1, 7-12 (1983).
This statement, however, and others like it, appear in the
context of cases involving both federal-law and state-law claims.
And the Seventh Circuit found a significant difference between such
cases and cases in which the Eleventh Amendment applies to some of
the federal-law claims. See 116 F. 3d, at 1152. In the former cases
the state-law claims fall within the supplemental jurisdiction of
the federal courts. Supplemental jurisdiction allows federal courts
to hear and decide state-law claims along with federal-law claims
when they "are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy." 28 U. S. C. § 1367(a); see
Chicago, supra, at
164-166. Cf. § 1441(c) (explicitly providing discretionary removal
jurisdiction over entire case where federal claim is accompanied by
a "separate and independent" state-law claim). In the latter cases,
the comparable claims do not fall within the federal courts'
"pendent" jurisdiction, but rather, it is argued, are claims that
the Eleventh Amendment prohibits the federal courts from
deciding.
Second, the argument emphasizes the "jurisdictional" nature of
this difference. The Seventh Circuit, for example, said: "Claims
barred by sovereign immunity stand on different footing than other
claims that are not independently removable, because of the
affirmative limitation on jurisdiction imposed by the sovereign
immunity doctrines." 116 F. 3d, at 1152 (citing
Frances J.,
supra, at 340-341, and n. 4). That is to say, according to
the Court of Appeals, neither the law
388
permitting supplemental jurisdiction, nor any other law, see,
e. g., § 1441(c), gives the federal court the power to
decide a claim barred by the Eleventh Amendment. See
Pennhurst
State School and Hospital v.
Halderman, 465 U. S. 89, 121
(1984); Frances J., 19 F. 3d, at 341.
Third, the argument looks to removal based upon "diversity
jurisdiction," 28 U. S. C. § 1332, for analogical authority that
leads to its conclusion, namely, that this "jurisdictional" problem
is so serious that the presence of even one
Eleventh-Amendment-barred claim destroys removal jurisdiction with
respect to
all claims (i.
e., the entire "case").
See,
e. g., 116 F. 3d, at 1152 (citing
Frances J.,
supra, at 341);
McKay v.
Boyd Constr. Co., 769
F. 2d, at 1086-1087 (discussing analogy to removal based on
diversity jurisdiction). A case falls within the federal district
court's "original" diversity "jurisdiction" only if diversity of
citizenship among the parties is complete, i.
e., only if
there is no plaintiff and no defendant who are citizens of the same
State. See
Carden v.
Arkoma Associates, 494 U. S. 185, 187
(1990);
Strawbridge v.
Curtiss, 3 Cranch 267 (1806).
But cf. Fed. Rule Civ. Proc.
21; Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U. S. 826, 832-838
(1989) (Rule 21 authorizes courts to dismiss nondiverse defendants
in order to cure jurisdictional defects, instead of the entire
case). Consequently, this Court has indicated that a defendant
cannot remove a case that contains some claims against "diverse"
defendants as long as there is one claim brought against a
"nondiverse" defendant. See
Caterpillar Inc. v.
Lewis, 519 U.
S. 61, 68-69 (1996). If the analogy is appropriate, then, an
Eleventh Amendment bar with respect to one claim would prevent
removal of a case that contains some "arising under" claims, which,
had they stood alone, would have permitted removal.
Frances
J.,
supra, at 341;
McKay, supra, at 1087.
We find the analogy unconvincing. This case differs
significantly from a diversity case with respect to a federal
dis-
389
trict court's
original jurisdiction. The presence of the
nondiverse party automatically destroys original jurisdiction:
No party need assert the defect. No party can waive the defect
or consent to jurisdiction.
Insurance Corp. of Ireland v.
Compagnie des Bauxites de Guinee, 456 U. S. 694, 702
(1982);
People's Bank v.
Calhoun, 102 U. S. 256,
260-261 (1880). No court can ignore the defect; rather a court,
noticing the defect, must raise the matter on its own.
Insurance
Corp. of Ireland, supra, at 702;
Mansfield, C. &
L. M. R. Co.
The Eleventh Amendment, however, does not automatically destroy
original jurisdiction. Rather, the Eleventh Amendment grants the
State a legal power to assert a sovereign immunity defense should
it choose to do so. The State can waive the defense.
Atascadero
State Hospital v.
Scanlon, 473 U. S. 234, 241
(1985);
Clark v.
Barnard, 108 U. S. 436, 447
(1883). Nor need a court raise the defect on its own. Unless the
State raises the matter, a court can ignore it. See
Patsy v.
Board of Regents of Fla., 457 U. S. 496, 515,
These differences help to explain why governing authority has
treated the defects differently for purposes of original
jurisdiction. Where original jurisdiction rests upon Congress'
statutory grant of "diversity jurisdiction," this Court has held
that one claim against one nondiverse defendant destroys that
original jurisdiction. See,
e. g., NewmanGreen, Inc., supra,
at 829 ("When a plaintiff sues more than one defendant in a
diversity action, the plaintiff must meet the requirements of the
diversity statute for
each defendant or face dismissal").
But, where original jurisdiction rests upon the Statute's grant of
"arising under" jurisdiction, the Court has assumed that the
presence of a potential Eleventh Amendment bar with respect to one
claim, has not destroyed original jurisdiction over the case.
E.
g., Pugh, 438 U. S., at 782;
Papasan v.
Allain,
478 U. S. 265
(1986). See also
390
Henry, 922 F. 2d, at 338-339;
Roberts v.
College of the Desert, 870 F.2d
1411, 1415
(CA9 1988). Cf.
Pennhurst, supra, at
121 (suggesting that courts must analyze the applicability of the
Eleventh Amendment to each claim rather than case as whole). Since
a federal court would have original jurisdiction to hear this case
had Schacht originally filed it there, the defendants may remove
the case from state to federal courts. See § 1441(a).
Other considerations further undermine the analogy. For example,
for purposes of removal jurisdiction, we are to look at the case as
of the time it was filed in state court-prior to the time the
defendants filed their answer in federal court. See,
e. g., St.
Paul Mercury Indemnity Co. v.
Red Cab Co., 303 U. S. 283, 291 (1938)
("[T]he status of the case as disclosed by the plaintiff's
complaint is controlling in the case of a removal, since the
defendant must file his petition before the time for answer or
forever lose his right to remove"). As of that time, a case that
involved "incomplete diversity" automatically would have fallen
outside the federal courts' "original jurisdiction." By contrast,
as of that time, the State's participation as a defendant would not
automatically have placed the case outside the federal courts'
jurisdictional authority. That is because the underlying relevant
condition (the federal courts' effort to assert jurisdiction over
an objecting State) could not have existed prior to removal, see,
e. g., Maine v.
Thiboutot, 448 U. S. 1, 9, n. 7
(1980), and because the State might not have asserted the defense
in federal court, but could have decided instead to defend on the
merits. (Here, for example, the State, while not waiving its
Eleventh Amendment defense, has asserted in the alternative that
Schacht could not state a § 1983 claim against the State. See
Will v.
Michigan Dept. of State Police, 491 U. S. 58, 64
(1989).)
These differences between "diversity" and "Eleventh Amendment"
cases with respect to original and removal jurisdiction are
sufficient to destroy the analogy upon which
391
the lower court opinions rest. A case such as this one is more
closely analogous to cases in which a
later event, say, the
change in the citizenship of a party or a subsequent reduction of
the amount at issue below jurisdictional levels, destroys
previously existing jurisdiction. In such cases, a federal court
will
keep a removed case. See
St. Paul Mercury Indemnity
Co., supra, at 293-295;
Phelps v.
Oaks, 117 U. S. 236, 240-241
(1886);
Kanouse v.
Martin, 15 How. 198, 207-210
(1854). See also
Carnegie-Mellon Univ. v.
Cohill,
484 U. S. 343,
350, and n. 7 (1988) (federal court may exercise jurisdiction over
remaining state-law claims under supplemental jurisdiction, if all
federal-law claims are eliminated before trial). Here, too, at the
time of removal, this case fell within the "original jurisdiction"
of the federal courts. The State's later invocation of the Eleventh
Amendment placed the particular
claim beyond the power of
the federal courts to decide, but it did not destroy removal
jurisdiction over the entire case.
III
We must consider one further argument that respondent has made.
That argument is not based upon an analogy but upon the specific
language of a particular statutory provision, 28 U. S. C. §
1447(c). The provision says: "If at any time before final judgment
it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded."
Ibid. Respondent
argues that, at least after the State asserted its Eleventh
Amendment defense, the federal court "lacked subject matter
jurisdiction." Brief for Respondent 19. He points out that the
statute says that the entire
"case shall be remanded" to the
state court. That is to say, he contends that, if the "district
court lacks subject matter jurisdiction" over
any claim,
then
every claim, i.
e., the entire "case," must be
"remanded" to the state court.
Even making the assumption that Eleventh Amendment immunity is a
matter of subject-matter jurisdiction-a question we have not
decided-we reject respondent's argument
392
because we do not read the statute in this way. An ordinary
reading of the language indicates that the statute refers to an
instance in which a federal court "lacks subject matter
jurisdiction" over a "case," and not simply over one claim within a
case. Cf. § 1441(c) (permitting "the entire case" to be removed or
remanded, when one or more "non-removable claims or causes of
action" is joined with a federal question "claim or cause of
action"). Conceivably, one might also read the statute's reference
to "case" to include a claim within a case as well as the entire
case. But neither reading helps Schacht. The former reading would
make the provision inapplicable here; the latter would make it
applicable, but requires remand only of the relevant claims, and
not the entire case as Schacht contends.
Nor does the statute's purpose favor Schacht's interpretation.
The statutory section that contains the provision deals, not with
the question of what is removable, but with the procedures that a
federal court is to follow after removal occurs. It is entitled:
"Procedure after removal generally." § 1447. In substance, the
section differentiates between removals that are defective because
of lack of subject-matter jurisdiction and removals that are
defective for some other reason,
e. g., because the removal
took place after relevant time limits had expired. For the latter
kind of case, there must be a motion to remand filed no later than
30 days after the filing of the removal notice. § 1447(c). For the
former kind of case, remand may take place without such a motion
and at any time.
Ibid. The provision, then, helps to specify
a procedural difference that flows from a difference in the kinds
of reasons that could lead to a remand. That objective is
irrelevant to the kind of problem presented in this case.
We repeat our conclusion: A State's proper assertion of an
Eleventh Amendment bar after removal means that the federal court
cannot hear the barred claim. But that circumstance does not
destroy removal jurisdiction over the remaining claims in the case
before us. A federal court can
393
proceed to hear those other claims, and the District Court did
not err in doing so.
For these reasons, the judgment of the Court of Appeals is
vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE KENNEDY, concurring.
In joining the opinion of the Court, I write to observe we have
neither reached nor considered the argument that, by giving its
express consent to removal of the case from state court, Wisconsin
waived its Eleventh Amendment immunity. Insofar as the record
shows, this issue was not raised in the proceedings below; and it
was not part of the briefs filed here or the arguments made to the
Court. The question should be considered, however, in some later
case.
Removal requires the consent of all of the defendants.
See,
e. g., Chicago, R. 1. &
P. R. Co. v.
Martin, 178 U.
S. 245, 248 (1900); 14A C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure § 3731, p. 504 (2d ed. 1985). Here
the State consented to removal but then registered a prompt
objection to the jurisdiction of the United States District Court
over the claim against it. By electing to remove, the State created
the difficult problem confronted in the Court of Appeals and now
here. This is the situation in which law usually says a party must
accept the consequences of its own acts. It would seem simple
enough to rule that once a State consents to removal, it may not
turn around and say the Eleventh Amendment bars the jurisdiction of
the federal court. Consent to removal, it can be argued, is a
waiver of the Eleventh Amendment immunity.
Given the latitude accorded the States in raising the immunity
at a late stage, however, a rule of waiver may not be all that
obvious. The Court has said the Eleventh Amendment bar may be
asserted for the first time on appeal, so a State which is sued in
federal court does not waive the Eleventh Amendment simply by
appearing and defending on the mer-
394
its. See
Florida Dept. of State v.
Treasure Salvors,
Inc., 458 U. S.
670, 683, n. 18 (1982) (plurality opinion); see also
Calderon v.
Ashmus, 523 U. S. 740, 745, n. 2
(1998);
Pennhurst State School and Hospital v.
Halderman, 465
U. S. 89, 99, n. 8 (1984);
Edelman v.
Jordan,
415 U. S. 651,
678 (1974);
Ford Motor Co. v.
Department of Treasury of
Ind., 323 U. S.
459, 467 (1945).
I have my doubts about the propriety of this rule. In permitting
the belated assertion of the Eleventh Amendment bar, we allow
States to proceed to judgment without facing any real risk of
adverse consequences. Should the State prevail, the plaintiff would
be bound by principles of res judicata. If the State were to lose,
however, it could void the entire judgment simply by asserting its
immunity on appeal.
This departure from the usual rules of waiver stems from the
hybrid nature of the jurisdictional bar erected by the Eleventh
Amendment. In certain respects, the immunity bears substantial
similarity to personal jurisdiction requirements, since it can be
waived and courts need not raise the issue
sua sponte. See
Patsy v.
Board of Regents of Fla., 457 U. S. 496, 516, n. 19
(1982). Permitting the immunity to be raised at any stage of the
proceedings, in contrast, is more consistent with regarding the
Eleventh Amendment as a limit on the federal courts' subject-matter
jurisdiction. See
Insurance Corp. of Ireland v.
Compagnie
des Bauxites de Guinee, 456 U. S. 694, 702-704
(1982) (comparing personal jurisdiction with subject-matter
jurisdiction). We have noted the inconsistency. Although the text
is framed in terms of the extent of the "Judicial power of the
United States," U. S. Const., Arndt. 11, our precedents have
treated the Eleventh Amendment as "enact[ing] a sovereign immunity
from suit, rather than a nonwaivable limit on the federal
judiciary's subject-matter jurisdiction."
Idaho v.
Coeur
d'Alene Tribe of Idaho, 521 U. S. 261, 267
(1997); see also E. Chemerinsky, Federal Jurisdiction § 7.6, p. 405
(2d ed. 1994) (noting that allowing waiver of the immunity
"seems
395
inconsistent with viewing the Eleventh Amendment as a
restriction on the federal courts' subject matter
jurisdiction").
The Court could eliminate the unfairness by modifying our
Eleventh Amendment jurisprudence to make it more consistent with
our practice regarding personal jurisdiction. Under a rule
inferring waiver from the failure to raise the objection at the
outset of the proceedings, States would be prevented from gaining
an unfair advantage. See Fed. Rule Civ. Proc. 12(h)(1).
We would not need to make this substantial revision to find
waiver in the circumstances here, however. Even if appearing in
federal court and defending on the merits is not sufficient to
constitute a waiver, a different case may be presented when a State
under no compulsion to appear in federal court voluntarily invokes
its jurisdiction. As the Court recognized in
Gunter v.
Atlantic Coast Line R. Co., 200 U. S. 273, 284
(1906), "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."
An early decision of this Court applied this principle in
holding that a State's voluntary intervention in a federalcourt
action to assert its own claim constituted a waiver of the Eleventh
Amendment.
Clark v.
Barnard, 108 U. S. 436, 447-448
(1883); see also
Employees of Dept. of Public Health and Welfare
of Mo. v.
Department of Public Health and Welfare of
Mo., 411 U. S.
279, 294, n. 10 (1973) (Marshall, J., concurring in result)
(citing
Clark v.
Barnard with approval);
Petty
v.
Tennessee-Missouri Bridge Comm'n, 359 U. S. 275, 276 (1959)
(same);
Missouri v.
Fiske, 290 U. S. 18, 24-25 (1933)
(same). The Court also found a waiver of the Eleventh Amendment
when a State voluntarily appeared in bankruptcy court to file a
claim against a common fund.
Gardner v.
New Jersey,
329 U. S. 565,
574 (1947). Since a State which is made a defendant to a
state-court action is under no com-
396
pulsion to appear in federal court and, like any other
defendant, has the unilateral right to block removal of the case,
any appearance the State makes in federal court may well be
regarded as voluntary in the same manner as the appearances which
gave rise to the waivers in
Clark and
Gardner.
Some Courts of Appeals, following this reasoning, have
recognized that consent to removal may constitute a waiver.
Newfield House, Inc. v.
Massachusetts Dept. of Pub.
Welfare, 651 F.2d
32, 36, n. 3 (CA1), cert. denied,
454 U. S. 1114 (1981);
see also
Estate of Porter v.
Illinois, 36 F.3d
684, 691
(CA7 1994); Silver v.
Baggiano,
804 F.2d
1211, 1214 (CAll
1986); Gwinn Area Community Schools v.
Michigan, 741 F.2d
840, 847 (CA6 1984). These cases have first inquired, however,
whether state law authorized the attorneys representing the State
to waive the Eleventh Amendment on its behalf. Petitioners cited
this qualification when we raised the issue at oral argument in the
instant case. This was also the Court's apparent concern in
Ford
Motor Co., in which it held:
"It is conceded by the respondents that if it is within the
power of the administrative and executive officers of Indiana to
waive the state's immunity, they have done so in this proceeding.
The issue thus becomes one of their power under state law to do so.
As this issue has not been determined by state courts, this Court
must resort to the general policy of the state as expressed in its
Constitution, statutes and decisions. Article 4, § 24 of the
Indiana Constitution provides:
"'Provision may be made, by general law, for bringing suit
against the State, as to all liabilities originating after the
adoption of this Constitution; but no special act authorizing such
suit to be brought, or making compensation to any person claiming
damages against the State, shall ever be passed.'
"We interpret this provision as indicating a policy prohibiting
state consent to suit in one particular case in
397
the absence of a general consent to suit in all similar causes
of action. Since the state legislature may waive state immunity
only by general law, it is not to be presumed in the absence of
clear language to the contrary, that they conferred on
administrative or executive officers discretionary power to grant
or withhold consent in individual cases .... It would seem,
therefore, that no properly authorized executive or administrative
officer of the state has waived the state's immunity to suit in the
federal courts." 323 U. S., at 467-469 (footnotes omitted).
See also
Sosna v.
Iowa, 419 U. S. 393, 396, n. 2
(1975).
Notwithstanding the quoted language from
Ford Motor Co.,
the absence of specific authorization, it seems to me, is not an
insuperable obstacle to adopting a rule of waiver in every case
where the State, through its attorneys, consents to removal from
the state court to the federal court. If 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.
It is true as well that the Court's recent cases have disfavored
constructive waivers of the Eleventh Amendment and have required
the State's consent to suit be unequivocal.
Atascadero State
Hospital v.
Scanlon, 473 U. S. 234, 246-247
(1985); Edelman v.
Jordan, 415 U. S., at 673. The
conduct which may give rise to the waiver in the instance of
removal is far less equivocal than the conduct at issue in those
cases, however. Here the State's consent amounted to a direct
invocation of the jurisdiction of the federal courts, an act
considerably more specific than the general participation in a
federal program found insufficient in
Atascadero and
Edelman.
These questions should be explored. If it were demonstrated that
a federal rule finding waiver of the Eleventh
398
Amendment when the State consents to removal would put States at
some unfair tactical disadvantage, perhaps the waiver rule ought
not to be embraced. I tend to doubt such consequences, however.
Since the issue was not addressed either by the parties or the
Court of Appeals, the proper course is for us to defer addressing
the question until it is presented for our consideration, supported
by full briefing and argument, in some later case.
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