Green v. Graham
| Decision Date | 12 October 2018 |
| Docket Number | No. 17-14704,17-14704 |
| Citation | 906 F.3d 955 |
| Parties | Anthony L. GREEN, Brooke M. Walker, Earl E. Howton Jr., Plaintiffs-Appellees, v. Jackie GRAHAM, in her official capacity as Director of the State of Alabama Personnel Department, Hal Taylor, in his official capacity as Secretary of Law Enforcement for the Alabama Law Enforcement Agency, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
James Flynn Mozingo, Benjamin J. Espy, Melton Espy & Williams, PC, MONTGOMERY, AL, for Plaintiff-Appellees.
Barbara J. Wells, Patricia R. Osuch, Capell & Howard, PC, Alice A. Byrne, Tara Smelley Hetzel, State of Alabama Personnel Department, MONTGOMERY, AL, for Defendant-Appellant JACKIE GRAHAM.
Frank Tim McCollum, Alabama Department of Public Safety, J. Jason Swann, Alabama Law Enforcement Agency, MONTGOMERY, AL, for Defendant-Appellant HAL TAYLOR.
Before WILLIAM PRYOR, MARTIN, and BALDOCK,* Circuit Judges.
This interlocutory appeal presents questions about state sovereign immunity and related principles of federal jurisdiction. Anthony Green, Brooke Walker, and Earl Howton Jr. petitioned a state court for injunctive and declaratory relief entitling them to an enhanced status in the retirement system for Alabama state employees. The state officials named as defendants removed the action to federal court, which waived their immunity from suit in a federal forum, see Lapides v. Bd. of Regents of Univ. Sys. of Ga. , 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), but did not necessarily waive all sovereign-immunity-based defenses, see Stroud v. McIntosh , 722 F.3d 1294 (11th Cir. 2013). The district court ruled that the doctrine of Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), made sovereign immunity inapplicable. We hold that the officials have either waived or forfeited any immunity from suit and that we lack jurisdiction to consider their immunity from liability on interlocutory appeal.
Green, Walker, and Howton are employees of the Alabama Law Enforcement Agency and participants in the Employees' Retirement System of Alabama. The Retirement System administers different retirement plans for different groups of state employees. The most generous retirement status, "state policeman," applies to employees "approved by the State Personnel Board to perform the duties of highway patrolman or a beverage control agent or a crime investigator." Ala. Code § 36-27-1(23). The next most generous status, "law enforcement," applies to correctional officers, firefighters, and law-enforcement officers not eligible for state-policeman status. See id. § 36-27-59. All other employees in the Retirement System fall in the residual "state employee" category.
Although the plaintiffs' retirement status is law enforcement, they allege they are entitled to participate in the state-policeman plan based on the statutory definition, and they allege that they were hired with the understanding that they would enjoy state-policeman retirement status. They have unsuccessfully sought a state-policeman upgrade for years.
In September 2015, the plaintiffs filed a complaint in the Circuit Court of Montgomery County against Spencer Collier, then secretary of the Agency, and Dr. David Bronner, chief executive officer of the Retirement Systems of Alabama, both in their official capacity. The complaint alleged that the plaintiffs' job duties qualified them as "state policemen" because they "perform[ed] the duties of ... a crime investigator." Id. § 36-27-1(23). They asserted a federal equal-protection claim for declaratory and injunctive relief, 42 U.S.C. § 1983, and a parallel state-law claim. With Bronner's consent, Collier removed the case to the district court. The plaintiffs then voluntarily dismissed their claims against Bronner based on assurances that the Retirement System would honor any court order in their favor.
The plaintiffs later amended their complaint. The amended complaint joined Jackie Graham, head of the State Personnel Department, as a defendant. It also added federal and state due-process claims to the earlier-stated equal-protection claims. The district court later substituted Collier with Stan Stabler, Collier's successor as secretary of the Agency.
Graham and Stabler moved for summary judgment. Among other defenses, they argued that state sovereign immunity barred the plaintiffs' claims against them. Before the district court ruled on the motion, it substituted Stabler with Hal Taylor, Stabler's successor as secretary of the Agency.
The district court denied Graham and Taylor's motion for summary judgment. It concluded that plaintiffs' claims fall within the Ex parte Young exception to state sovereign immunity for prospective relief to redress ongoing violations of constitutional rights. Although the district court discussed the effect of removal of an action on state sovereign immunity, it did not base its ruling on that ground. Nor did the district court address the officials' argument that Ex parte Young cannot dispel immunity from the plaintiffs' state-law claims, see Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).
Although we ordinarily have jurisdiction to review only "final decisions of the district courts," 28 U.S.C. § 1291, the denial of state sovereign immunity by a district court is immediately appealable under the collateral-order doctrine. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 144–45, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). We review a ruling on state sovereign immunity de novo . See Stanley v. Israel , 843 F.3d 920, 923 (11th Cir. 2016). We also review a ruling on a motion for summary judgment de novo , Id. (citation and internal quotation marks omitted).
We divide our discussion in four parts. First, we explain that we have jurisdiction to consider only Graham and Taylor's alleged immunity from suit, not their immunity from liability. Second, we explain that both Graham and Taylor have waived their immunity from suit in a federal forum. Third, we explain why we decline to consider Graham and Taylor's contention—raised for the first time at oral argument—that they retain immunity from suit under the Alabama Constitution despite their waiver of federal-forum immunity. Fourth, we explain that we lack jurisdiction to consider any other issues.
Graham and Taylor argue that we should reverse based on their immunity from liability, but our jurisdiction in this interlocutory appeal is limited to Graham and Taylor's potential immunity from suit. This conclusion follows from the principles of the collateral-order doctrine. It also comports with our and our sister circuits' consistent practice.
In Stroud , we explained that "sovereign immunity is a divisible concept," and we particularly distinguished a state's "immunity from suit in federal courts" from its sovereign "immunity from liability." 722 F.3d at 1301. Because "states can independently relinquish" parts of their sovereign immunity "without affecting others," id. , we concluded that "a state can waive its forum immunity but retain other aspects of sovereign immunity, including immunity from liability," id. at 1303. Accordingly, we held that the removal of a suit against the State of Alabama to federal court waived immunity from suit in a federal forum but did not waive immunity from liability. See id. at 1302–03.
Because Stroud was not an interlocutory appeal, we did not ask whether a denial of any one of the "multiple aspects" of state sovereign immunity, id. at 1301, is always immediately appealable, but the basic principles of the collateral-order doctrine make the answer to that question straightforward. As the Supreme Court has explained, denials of sovereign immunity are immediately appealable only because sovereign immunity includes "an immunity from suit," the "value" of which "is for the most part lost as litigation proceeds past motion practice." P.R.Aqueduct , 506 U.S. at 144, 145, 113 S.Ct. 684. It follows that interlocutory review of a denial of immunity from liability alone is not available.
Even before Stroud expressly acknowledged the divisibility of state sovereign immunity, we recognized that an immediate appeal from a denial of an immunity under state law is available only if the immunity "is an immunity from suit rather than simply a defense to substantive liability." Griesel v. Hamlin , 963 F.2d 338, 340 (11th Cir. 1992). For example, we have held that the denial of a sovereign-immunity defense that arises under Georgia or Alabama law is immediately appealable because those states provide for immunity from suit as a matter of state law. See id. (Georgia); Tinney v. Shores , 77 F.3d 378, 383 (11th Cir. 1996) (Alabama). But we have held that we cannot consider an immediate appeal from the denial of a sovereign-immunity defense under Florida law, because Florida sovereign immunity is an immunity only from liability. CSX Transp., Inc. v. Kissimmee Util. Auth. , 153 F.3d 1283, 1286 (11th Cir. 1998) ; see also Parker v. Am. Traffic Solutions, Inc. , 835 F.3d 1363, 1368–70 (11th Cir. 2016) (reaffirming CSX Transportation ). In considering state-law immunities of all kinds, our sister circuits have also consistently held "that the availability of an [immediate] appeal depends on whether, under state law, the immunity functions as an immunity from suit or only as a defense to liability." Liberal v. Estrada , 632 F.3d 1064, 1074 (9th Cir. 2011) (emphasis omitted) (collecting cases).
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