Lapides v. Board of Regents of the Univ. System of Georgia

• Decision Date: 24 May 2001
• Docket Number: No. 00-14984,00-14984
• Citation: 251 F.3d 1372
• Parties: (11th Cir. 2001) PAUL D. LAPIDES, Plaintiff-Appellee, v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, EDWIN A. RUGG, Personally and in his capacity as Vice-President of Academic Affairs at Kennesaw State University, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1372

251 F.3d 1372 (11th Cir. 2001)

PAUL D. LAPIDES, Plaintiff-Appellee, v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, EDWIN A. RUGG, Personally and in his capacity as Vice-President of Academic Affairs at Kennesaw State University, et al., Defendants-Appellants.

No. 00-14984.

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

May 24, 2001.

Appeal from the United States District Court for the Northern District of Georgia. D. C. Docket No. 00-00953-CV-TWT-1

Before WILSON and COX, Circuit Judges, and RYSKAMP^*, District Judge.

WILSON, Circuit Judge:

The issue is whether a state's removal of a case to federal court constitutes a waiver of Eleventh Amendment immunity. We decide that it does not.

BACKGROUND

In August 1997, Kennesaw State University began an investigation of one of its professors, Paul Lapides, after a student accused him of sexual harassment. The university investigation produced no corroborating evidence to support the allegation and no action was taken against Lapides. Lapides alleges that as a result of the incident he became aware of letters fabricated by fellow faculty members containing defamatory statements about him and the sexual harassment accusations. He contends that those letters, which were disseminated to others on the faculty, are now part of his personnel file and they have interfered with his eligibility for various faculty positions and promotional opportunities.

Lapides sued the Board and the individual defendants under 42 U.S.C. § 1983 and the Georgia Tort Claims Act, O.C.G.A. § 50-21-23, in the Superior Court of Cobb County, Georgia, alleging that the actions of University officials deprived him of his right to due process of law as well as his liberty and property interests in practicing his profession which are guaranteed to him by the Fourteenth Amendment to the United States Constitution. The Georgia Attorney General filed a notice of removal to the Northern District of Georgia based on the court's original jurisdiction over the federal questions presented by the section 1983 claims. At the same time, he also filed a motion to dismiss the section 1983 claims under Federal Rule of Civil Procedure 12(b)(6) stating, among other reasons, the Board's Eleventh Amendment immunity from suit.

The district court denied the motion and held that the State, through its Attorney General, waived its Eleventh Amendment immunity by removing the case to federal court and invoking the jurisdiction of that court.

DISCUSSION

The Eleventh Amendment to the United States Constitution 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." U.S. Const. amend XI. It is well established, though not expressly stated in the Constitution, that the Eleventh Amendment also prohibits a state from being sued by its own citizens. Hans v. Louisiana, 134 U.S. 1, 20-21 (1890).

Although the Eleventh Amendment bars such suits, the Supreme Court has carved out exceptions. "First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment -- an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance." Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). Second, a state may consent to suit, but the test for determining whether a state has waived its Eleventh Amendment immunity is a stringent one. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40 (1985). The United States Supreme Court stated that "a State will be deemed to have waived its immunity 'only where stated "by the most express language or by such an overwhelming implication from the text as [will] leave no room for any other reasonable construction.'"" Id. (quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909))) (alteration in original). In fact, in College Savings Bank, the Court overruled the constructive waiver doctrine of Parden v. Terminal Railway of the Alabama State Docks Department, 377 U.S. 184 (1964). 526 U.S. at 680.¹

The test to determine whether a state official is authorized to waive the State's Eleventh Amendment immunity is equally stringent. "[A] waiver of Eleventh Amendment immunity by state officials must be explicitly authorized by the state 'in its Constitution, statutes and decisions.'" Silver v. Baggiano, 804 F.2d 1211, 1214 (11th Cir. 1986) (quoting Ford Motor Co. v. Dept. of Treas. of Ind., 323 U.S. 459, 467 (1945)). In addition, the Supreme Court, in Ford Motor Co., stated that such authority "is not to be presumed in the absence of clear language to the contrary." 323 U.S. at 468.

Several circuits have addressed the issue of the authority of a state's Attorney General to waive the State's immunity. E.g. Santee Sioux Tribe of Neb. v. Nebraska, 121 F.3d 427, 431-32 (8th Cir. 1997) (holding that there was no showing that waiver was within the authority of Nebraska's Attorney General); Dagnall v. Gegenheimer, 645 F.2d 2, 3 (5th Cir. 1981) (holding that the Attorney General of the state of Louisiana had no authority to waive the State's immunity). But cf. McLaughlin v. Bd. of Trustees of State Colls. of Colo., 215 F.3d 1168, 1171 (10th Cir. 2000) (holding that the state Attorney General waived the State's immunity). However, we have never considered whether the Attorney General of Georgia has the authority to waive the State's immunity.

Turning to the text of Georgia's constitution and statutes, we find the following references enlightening as to when immunity is waived. The Georgia Constitution provides:

The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

No waiver of sovereign immunity under this Paragraph shall be construed as a waiver of any immunity provided to the state or its departments, agencies, officers, or employees by the United States Constitution.

Ga. Const. Art. I, § II, ¶ IX (e)-(f).² Therefore, immunity in Georgia may be waived only through statute.

Section 45-15-3 of the Georgia Code sets forth the duties of the Attorney General. It provides that the Attorney General must "represent the state in all civil actions tried in any court." O.C.G.A. § 45-15-3(6). This is the only section which conceivably could be seen as a grant of authority to the Attorney General to waive immunity. However, it is not an unequivocal expression of authority. In fact, in light of Ford Motor Company, the grant of power to the Attorney General to defend suits on behalf of the State is not an express grant of authority to the Attorney General to proceed with the case in any way he deems appropriate; something more is required to constitute a grant of authority to waive immunity, particularly when the State strictly construes the powers of the official. 323 U.S. at 468-69; see also Walker v. Ga. Ry. & Power Co., 92 S.E. 57, 58 (Ga. 1917) (stating that "[t]he duties and powers of the attorney-general of this State are limited by the provisions of the Constitution and statutes . . . ."); Bryant v. State, 296 S.E.2d 792, 794 (Ga. Ct. App. 1982) (stating that a state official cannot perform acts not "within the scope of . . . statutory and constitutional provisions."). Thus, the Attorney General of the State of Georgia lacked the statutory authority to waive the State's Eleventh Amendment immunity and the legislature has not authorized a waiver of immunity specifically in this context.

Nonetheless, our inquiry does not end there. We have held that an unequivocal expression in the Constitution, statutes, or decisions of the state is not the only way a state can waive its Eleventh Amendment immunity. In In re Burke, we stated, "in the absence of explicit consent by state statute or constitutional provision, a state may consent to a federal court's jurisdiction through its affirmative conduct." In re Burke, 146 F.3d 1313, 1318 (11th Cir. 1998). Yet, this decision was necessarily a narrow one.

In re Burke involved the consideration of two cases in which the Department of Revenue of Georgia filed a proof of claim against debtors. Id. at 1315. Subsequently, the debtors filed an adversary action against Georgia. Id. In bankruptcy proceedings such as this, it is well established that he who invokes the jurisdiction of the bankruptcy court must abide by the consequences of that action. Id. at 1319. In fact, the Supreme Court has held that invoking the jurisdiction of a bankruptcy court can be deemed a waiver of immunity as can the intervention in a proceeding in which the government is not a party. Gardner v. New Jersey, 329 U.S. 565, 573-74 (1947) (holding that the state, when it invokes the jurisdiction of the bankruptcy court, must abide by the consequences of that decision and therefore waives its immunity); Gunter v. A. Coast Line R. Co., 200 U.S. 273, 284 (1906) (holding that when a state voluntarily becomes a party to a cause, it cannot assert Eleventh Amendment immunity); Clark v. Barnard, 108 U.S. 436, 447 (1883) (holding that voluntary intervention constitutes a waiver of immunity).

In our discussion, we indicated the limited application of our holding in In re Burke, when we said, "We emphasize that our holding regarding the State's waiver of Eleventh Amendment immunity is quite narrow because the debtors seriously seek to recover only the costs and attorneys' fees incurred in enforcing the bankruptcy court's automatic stay and discharge injunction." 146 F.3d at 1319. Thus, we provided a holding circumscribed by the context of bankruptcy proceedings, in which the State waived its Eleventh Amendment immunity by filing a proof of claim...