Ku v. State of Tennessee

• Decision Date: 12 March 2003
• Docket Number: No. 01-5886.,No. 01-6150.,01-5886.,01-6150.
• Citation: 322 F.3d 431
• Parties: Tze-Pong "Raymond" KU, Plaintiff-Appellee, v. STATE OF TENNESSEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

322 F.3d 431

Tze-Pong "Raymond" KU, Plaintiff-Appellee, v. STATE OF TENNESSEE, Defendant-Appellant.

No. 01-5886.

No. 01-6150.

United States Court of Appeals, Sixth Circuit.

Argued January 31, 2003.

Decided March 12, 2003.

Arthur F. Knight, III (briefed), Samuel W. Brown (argued), Becker, Brown & Knight, Knoxville, TN, for Plaintiff-Appellee.

Brandy M. Gagliano (argued), Office of the Attorney General, Nashville, TN, Donald R. Ungurait (briefed), Tennessee Attorney General & Reporter, Nashville, TN, for Defendant-Appellant.

Before: MARTIN, Chief Circuit Judge; MERRITT and LAY, Circuit Judges.^*

OPINION

MERRITT, Circuit Judge.

In this § 1983 action, plaintiff Tze-Pong "Raymond" Ku claims that the State of Tennessee deprived him of his right to procedural due process when it placed him on leave of absence from his third year of studies at East Tennessee State University's James H. Quillen College of Medicine. The district court denied Tennessee's motion for summary judgment and instead granted summary judgment to the plaintiff. As remedy, the district court ordered Tennessee to readmit the plaintiff and permit him to resume his third-year rotations at the University and take the United States Medical License Examination Step 1 when he feels ready, as long as he passes it before beginning his fourth year. Tennessee appeals the district court's order on the merits and also on the ground that the state is protected by sovereign immunity under the Eleventh Amendment, even though the state did not raise the issue until the district court decided the case on the merits. We agree with the District Court on the Eleventh Amendment question, but we conclude that the College afforded Ku with more than adequate process in rendering its decision regarding his academic status and therefore reverse.

I.

Tennessee raised the defense of Eleventh Amendment immunity for the first time before the district court in its motion for a stay pending appeal of the district court's order. Before that time, Tennessee appeared without objection to the district court's jurisdiction over this federal question and defended the suit on the merits, engaging in substantial discovery and filing a motion for summary judgment. It was only after a final adverse ruling by the district court that Tennessee raised the Eleventh Amendment immunity defense. In considering the motion for stay, the district court ruled that Tennessee had waived its Eleventh Amendment immunity by appearing and defending the case on the merits.

The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." By its decisions in two recent cases, one in 1998 and the other in 2002, it appears that the Supreme Court is moving in the direction of concluding that, in cases where the district court otherwise has original jurisdiction over the matter, the Eleventh Amendment immunity defense should be treated in the same way courts have traditionally treated personal jurisdiction rather than as a matter of subject matter jurisdiction.

In Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 118 S.Ct 2047, 141 L.Ed.2d 364 (1998), the Court addressed the question whether the presence of one federal claim barred by the Eleventh Amendment in an otherwise removable case destroys removal jurisdiction over the entire case. In holding that removal jurisdiction over the remaining claims is not destroyed, the Court distinguished between Eleventh Amendment immunity as a defense and the absence of original jurisdiction as a defense. Id. at 388-89, 118 S.Ct. 2047. A federal court's original jurisdiction is created by statute enacted under Article III, which functions as a fundamental limit on federal power. Because it is a fundamental "subject matter" limitation on federal judicial power, a defect in a federal court's original jurisdiction need not be asserted by any party, cannot be waived by any party, and must be raised by a Court sua sponte when noticed. Id. In stark contrast to this concept of subject matter jurisdiction, "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. Nor need a court raise the defect on its own. Unless the State raises the matter, a court can ignore it." Id. (citations omitted).

In a concurring opinion, Justice Kennedy "observe[d] that 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." Id. at 393, 118 S.Ct. 2047 (Kennedy, J., concurring). Justice Kennedy recommended that the question be considered in a later case and proceeded to lay out his rationale for finding waiver by removal. He first described the Court's inconsistent Eleventh Amendment jurisprudence regarding waiver as a "departure from the usual rules of waiver stem[ming] from the hybrid nature of the jurisdictional bar erected by the Eleventh Amendment." Id. at 394, 118 S.Ct. 2047 (Kennedy, J., concurring). On the one hand, "permitting the immunity to be raised at any stage of the proceedings ... is more consistent with regarding the Eleventh Amendment as a limit on the federal court's subject matter jurisdiction." Id. (Kennedy J., concurring). On the other, "the immunity bears substantial similarity to personal jurisdiction requirements, since it can be waived and courts need not raise the issue sua sponte." See Id. (Kennedy, J., concurring). The unfair result of the "hybrid nature" of the waiver rule, Justice Kennedy noted, is that "[i]n permitting the belated assertion of the Eleventh Amendment bar, we allow States to proceed to judgment without facing any real risk of adverse consequences." Id. at 394, 118 S.Ct. 2047 (Kennedy, J., concurring). Justice Kennedy offered a broad suggestion to eliminate this unfairness and inconsistency in the future:

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.

Id. at 395, 118 S.Ct. 2047 (Kennedy, J., concurring). Recognizing that such a rule would constitute a "substantial revision" of the Court's waiver jurisprudence in order to find waiver by removal, Justice Kennedy offered the narrower rule that removal is a form of voluntary invocation of a federal court's jurisdiction sufficient to waive the defense under the principle established by the Supreme Court in Clark v. Barnard, 108 U.S. 436, 447-48, 2 S.Ct. 878, 27 L.Ed. 780 (1883) (holding that when a State voluntarily intervenes in a federal court action to assert its own claim, its actions constitute a waiver of the Eleventh Amendment immunity); Gunter v. Atlantic Coast Line Railroad Co., 200 U.S. 273, 284, 26 S.Ct. 252, 50 L.Ed. 477 (1906) ("[W] here 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."); and Gardner v. New Jersey, 329 U.S. 565, 574, 67 S.Ct. 467, 91 L.Ed. 504 (1947) (finding waiver of the Eleventh Amendment when a State voluntarily appeared in bankruptcy court to file a claim against a common fund). Schacht, 524 U.S. at 395-96, 118 S.Ct. 2047 (Kennedy, J. concurring).

Two years later in Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), the Supreme Court adopted Justice Kennedy's reasoning regarding removal and held that a State that was initially brought involuntarily into a case as a defendant in state court on both state and federal claims, but then voluntarily removed the case to federal court, may not turn around and invoke the Eleventh Amendment as a defense to suit in federal court. The Court explained that

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.

Id. at 1644. Thus, the search for a "clear indication" of a State's intent to waive in the litigation context "must focus on the litigation act the State takes that creates the waiver." Id. By taking the litigation act of voluntarily agreeing to remove the case to federal court, "[the State] voluntarily invoked the federal court's jurisdiction." Id. Nor could the State, through its attorney general, invoke the federal court's jurisdiction and then turn around and claim that the attorney general lacked statutory authority to waive the State's immunity in federal court, as the Court had held permissible in Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 469, 65 S.Ct. 347, 89 L.Ed. 389 (1945) (permitting a State to regain Eleventh Amendment immunity by showing the attorney general's lack of authority to waive even after it had litigated a case brought against it in federal court). Citing the problems of "inconsistency and unfairness that a contrary rule of law would create," the Court overruled Ford insofar as it might otherwise apply to the affirmative litigation action of voluntary removal. In sum, "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." Lapides, 122 S.Ct. at 1646.

Although it is clear that the Court...