535 U.S. 613 (2002), 01-298, Lapides v. Board of Regents of Univ. System of Ga.

Docket Nº:No. 01-298.
Citation:535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806, 70 U.S.L.W. 4425
Case Date:May 13, 2002
Court:United States Supreme Court

Page 613

535 U.S. 613 (2002)

122 S.Ct. 1640, 152 L.Ed.2d 806, 70 U.S.L.W. 4425




No. 01-298.

United States Supreme Court

May 13, 2002

Argued February 25, 2002



Petitioner, a professor in the Georgia state university system, filed a state-court suit against respondents—the system’s board of regents (herein-after 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.


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

Page 614

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 removal— not 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

Page 615

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 Tennessee,

Page 616

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.


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.

Page 617

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 States attorney general possessed the...

To continue reading