Removal Plus Timely Assertion: A Better Rule for the Intersection of Removal and State Sovereign Immunity

Transcription

1 Removal Plus Timely Assertion: A Better Rule for the Intersection of Removal and State Sovereign Immunity DAVID KANTER* TABLE OF CONTENTS INTRODUCTION I. STATE SOVEREIGN IMMUNITY AND WAIVER BACKGROUND A. STATE SOVEREIGN IMMUNITY S HISTORICAL DEVELOPMENT B. EXCEPTIONS TO THE DOCTRINE OF STATE SOVEREIGN IMMUNITY II. LAPIDES V.BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA III. LAPIDES S INADEQUATE RATIONALES A. CRITIQUE OF LAPIDES S VOLUNTARY INVOCATION RATIONALE B. CRITIQUE OF LAPIDES S UNFAIRNESS AVOIDANCE RATIONALE IV. REMOVAL PLUS TIMELY ASSERTION A. STATE INTERESTS B. PLAINTIFF INTERESTS C. JUDICIAL INTERESTS CONCLUSION INTRODUCTION Stated most simply, the doctrine of sovereign immunity means that a sovereign is immune from suit. That is, a sovereign can violate law and cause injury and not be subject to the normal judicial process that mandates the payment of compensation to remedy the injury. In the American scheme of constitutional law and justice, the states are considered sovereigns that qualify for sovereign * Georgetown Law, J.D. 2016; University of Pennsylvania, B.A , David Kanter. The author thanks the late Judge Francis Allegra for introducing him to the topic of sovereign immunity. The author also thanks the editors and staff of The Georgetown Law Journal for their guidance and feedback throughout the publication process. And the author especially thanks his family and friends for their unwavering support. 531

2 532 THE GEORGETOWN LAW JOURNAL [Vol. 105:531 immunity. This variation of sovereign immunity, unsurprisingly, is called state sovereign immunity. The ever-evolving story of the doctrine of state sovereign immunity in our legal system is messy, divisive, and, at times, inconsistent. Accordingly, there are many contested and interconnected issues in this doctrine, and many pieces in the extant scholarship grapple with these diverse issues. This Note, however, takes a narrow focus while thinking broadly about what the doctrine of state sovereign immunity implies. The goal of this Note is to critique the Supreme Court s state sovereign immunity analysis in a relatively recent case, Lapides v. Board of Regents of the University System of Georgia, 1 and to offer an alternative to the rule that emerged from Lapides that is more consistent with the Court s own state sovereign immunity precedent and that better balances the competing interests of the states, plaintiffs, and the judiciary. The broader, subtler, and subsidiary goal of this Note is to offer a reminder that, at least in substantial part, the baseline assumptions undergirding the doctrine of sovereign immunity involve what many contemporary observers would consider deep unfairness. In Lapides, the Supreme Court held that if a state has statutorily waived its sovereign immunity with regard to a particular claim brought in state court, removal to federal court of an action involving that claim is affirmative litigation conduct sufficient to constitute waiver of immunity in the federal forum. 2 Thus, a state cannot use removal to regain immunity in federal court that it statutorily waived in state court. The Court did not resolve whether removal also constitutes waiver even when immunity has not been statutorily waived as to any claim brought in the state forum. 3 The circuits have split in answering that question. Two of the circuits that have addressed it have opted for a complete waiver approach: any removal of an action from state to federal court even one not involving a claim for which immunity had been waived in the state forum constitutes affirmative litigation conduct sufficient for complete waiver of immunity. 4 Three other circuits have taken a narrow approach by holding that removal constitutes waiver only when the removed action involves a claim for which immunity had been waived in the state forum. 5 The remaining circuits that have addressed this question have opted for a hybrid approach: removal of a claim for which immunity had not been statutorily waived in state court constitutes waiver of immunity from suit but not waiver of U.S. 613 (2002). 2. Id. at Id. at See Bd. of Regents of the Univ. of Wis. Sys. v. Phoenix Int l Software, Inc., 653 F.3d 448, 461 (7th Cir. 2011); Embury v. King, 361 F.3d 562, 564 (9th Cir. 2004). 5. See Beaulieu v. Vermont, 807 F.3d 478, 490 (2d Cir. 2015); Bergemann v. R.I. Dep t of Envtl. Mgmt., 665 F.3d 336, 342 (1st Cir. 2011); Stewart v. North Carolina, 393 F.3d 484, 490 (4th Cir. 2005).

3 2017] REMOVAL PLUS TIMELY ASSERTION 533 immunity from liability. 6 Each commentator that has addressed this circuit split advocates one of these approaches as the preferred approach without questioning the rationales on which Lapides is based. 7 Thus each takes Lapides as a given without scrutinizing its precedential and policy underpinnings. This Note takes a different approach. It argues that the Supreme Court s decision in Lapides misunderstood and consequently misapplied its own state sovereign immunity waiver precedent. The Court should have held that removal of an action from state to federal court even if the action includes a claim for which immunity would have been waived if brought in state court does not constitute waiver of immunity so long as the state asserts its immunity in the federal forum immediately after removal. Although this understanding of the intersection between removal and waiver of immunity permits a state to regain immunity it waived in the state forum what the Court has disparaged as the selective use of immunity 8 this Note will explain why such selective use is consistent with other core state sovereign immunity concepts that have received the Court s implicit blessing. This reconfigured understanding of the interplay between removal and waiver of immunity better reflects the Court s precedent and strikes the best balance between competing interests. Part I provides the state sovereign immunity doctrinal background necessary to understand the Court s reasoning in, as well as this Note s critique of and proposed alternative to, Lapides. Part II examines the Court s twopronged reasoning in Lapides. It explains that the Court justified its holding in Lapides in two ways: First, by asserting that three of its prior cases Clark v. Barnard, 9 Gardner v. New Jersey, 10 and Gunter v. Atlantic Coast Line 6. See Trant v. Oklahoma, 754 F.3d 1158, 1173 (10th Cir. 2014); Stroud v. McIntosh, 722 F.3d 1294, 1301 (11th Cir. 2013); Lombardo v. Pa. Dep t of Pub. Welfare, 540 F.3d 190, 197 (3d Cir. 2008); Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 255 (5th Cir. 2005). 7. See, e.g., Peter R. Dubrowski, Note, Lapides v. Board of Regents of the University of Georgia, State Sovereign Immunity, and the Proper Scope of Waiver-by-Removal, 17 N.Y.U. J. LEGIS. & PUB. POL Y 763, 767 (2014) (arguing that Lapides necessarily created a blanket waiver-by-removal rule); Matthew McDermott, Note, The Better Course in the Post-Lapides Circuit Split: Eschewing the Waiver-by-Removal Rule in State Sovereignty Jurisprudence, 64 WASH. & LEE L. REV. 753, 757 (2007) (recommending adoption of the Fourth Circuit s rule); Hien Ngoc Nguyen, Comment, Under Construction: Fairness, Waiver, and Hypothetical Eleventh Amendment Jurisdiction, 93CALIF. L. REV. 587, 621 (2005) (recommending that the circuit courts follow Lapides s lead in devising a fairer sovereign immunity waiver doctrine); Eric Porterfield, Note, Eleventh Amendment Immunity After Lapides v. Board of Regents of the University System of Georgia: Keeping States Out of Federal Court, 55 BAYLOR L. REV. 1243, 1246 (2003) (arguing that courts should find that removal results in waiver as to all claims); Stephen Shorey, Comment, Don t Buck the Trend: Misinterpreting Lapides in Order to Minimize State Employees Remedies under the FLSA in Bergemann v. Rhode Island Department of Environmental Management, 48 NEW ENG. L. REV. 637, (2014) (arguing that the First Circuit erroneously failed to adopt a blanket waiver-by-removal rule); Jessica Wagner, Note, Waiver by Removal? An Analysis of State Sovereign Immunity, 102 VA. L. REV. 549, 551 (2016) (asserting that the hybrid approach is superior). 8. Lapides, 535 U.S. at U.S. 436 (1883) U.S. 565 (1947).

4 534 THE GEORGETOWN LAW JOURNAL [Vol. 105:531 Railroad Co. 11 provide a general principle that the voluntary invocation of federal jurisdiction is affirmative litigation conduct sufficient to constitute waiver of immunity and, second, by reasoning that to not find waiver when a state removes a claim for which immunity had been waived in the state forum would be too unfair. Part III explains why neither of these rationales adequately supports the outcome in Lapides. It asserts that Clark, Gardner, and Gunter were primarily concerned with the timely assertion of sovereign immunity, not a state s voluntary invocation of a federal forum. It further asserts that an unfairness avoidance rationale is also inadequate because any unfairness involved in Lapides is consistent with equally unfair practices in the state sovereign immunity context that the Court has explicitly or implicitly blessed. Part IV offers an alternative rule. It argues that a removal plus timely assertion rule which would permit states to regain immunity that had been statutorily waived in state courts is consistent with the Court s precedent and better balances the interests of the states, plaintiffs, and the judiciary. I. STATE SOVEREIGN IMMUNITY AND WAIVER BACKGROUND The development of the doctrine of state sovereign immunity in our legal system can fairly be described as a complicated, frequently inconsistent, sometimes divisive, and still ongoing process that has been with us always with those many features since the Framers foundational debates concerning the meaning of the Constitution. 12 This Part provides a survey of the key state sovereign immunity doctrinal developments from the Founding Era to the present, with an eye toward providing the doctrinal coherence necessary to understanding both the critique of and solution to the removal-related state sovereign immunity waiver issue presented in the analytical heart of this Note. 13 Section I.A examines the Founding Era debate concerning state sovereign immunity, the Supreme Court s holding in Chisholm v. Georgia, 14 the swift reaction to that decision, and subsequent jurisprudence that strongly favors the states. Section I.B pivots to a brief examination of the historical development and continuing salience of the three primary exceptions to the doctrine of state sovereign immunity: suits against state actors for prospective relief, congressional abrogation, and, most importantly for this Note s purposes, waiver U.S. 273 (1906). 12. See Martha A. Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. PA.L.REV. 515, (1977). 13. See infra Parts II IV U.S. (2 Dall.) 419 (1793).

5 2017] REMOVAL PLUS TIMELY ASSERTION 535 A. STATE SOVEREIGN IMMUNITY S HISTORICAL DEVELOPMENT Though the doctrine of sovereign immunity has its origins in ancient Roman law, 15 the Framers knowledge of the doctrine likely stemmed from their familiarity with the British monarch s personal immunity from suit, aptly summed up with the expression that the King can do no wrong. 16 The Constitution presented to the states for ratification did not seem to preserve the related notion that the states can do no wrong, as the plain language of Article III seemed to suggest an abrogation of any background concept of state sovereign immunity. 17 Nevertheless, a highly influential triumvirate of James Madison, Alexander Hamilton, and John Marshall believed or at least publicly professed the belief that the new Constitution s Article III did not mean that states would be subject to suits brought by private citizens without the state s consent. 18 Addressing the Virginia ratifying convention, Madison explained: It is not in the power of individuals to call any state into court. The only operation [Article III] can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court.... It appears to me that this can have no operation but this to give a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it. 19 Marshall expressed essentially the same sentiment on the same day, in the midst of the same Virginia ratifying convention debate, 20 and Hamilton joined the chorus, memorably writing in The Federalist, It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. 21 Certain commentators have concluded that this historical evidence suggests that the Framers believed the doctrine of state sovereign immunity was 15. William T. Barrante, Common-Law Sovereign Immunity: Why Connecticut Never Really Had It, 79 CONN. B.J. 265, (2005) (explaining that Justice Holmes used French and Roman law to justify sovereign immunity). 16. See Erwin Chemerinsky, Against Sovereign Immunity,53STAN.L.REV. 1201, (2001). 17. See U.S. CONST. art. III, 2, cl. 1 ( The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made,... to all Cases affecting Ambassadors, other public Ministers and Consuls;... to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. ). 18. Field, supra note 12, at THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 533 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter STATE CONVENTION DEBATES]. 20. Id. at 555 ( I hope that no gentleman will think that a state will be called at the bar of the federal court...itisnotrational to suppose that the sovereign power should be dragged before a court. ). 21. THE FEDERALIST NO. 81, at 411 (Alexander Hamilton) (Ian Shapiro ed., 2009).

6 536 THE GEORGETOWN LAW JOURNAL [Vol. 105:531 inherently part of Article III. 22 Nevertheless, certain other Framers including James Wilson, Edmund Randolph, and Patrick Henry thought the language of Article III clearly abrogated the states sovereign immunity. 23 Wilson, importantly, had been a member of the Committee of Detail, the committee at the Constitutional Convention tasked with, among other issues, defining the bounds of the federal judiciary. 24 The influential Anti-Federalist Brutus writing in direct response to Hamilton, Madison, and other proponents of ratification also thought it obvious that Article III abrogated state sovereign immunity. 25 With regard to Founding Era opinion concerning the post-ratification vitality of state sovereign immunity, it is fair to conclude, as one commentator has, that [n]o consensus concerning this issue is apparent. 26 Soon after ratification, however, the Supreme Court had occasion to decide whether Article III had abrogated state sovereign immunity. In Chisholm v. Georgia, the Court held, with only one Justice in dissent, 27 that state sovereign immunity had not survived ratification of the Constitution. 28 Justice James Wilson the same James Wilson that had served on the Committee of Detail authored one of the majority opinions, forcefully explaining that the ratification of the Constitution signified the throwing off of the yoke of monarchy and, consequently, the realization of sovereignty in the people. 29 A short two years later, however, the holding in Chisholm was summarily overruled by adoption of the Eleventh Amendment, 30 which either righted the Chisholm Court s wrong by making clear that state sovereign immunity really was inherent in Article III all along or, despite the Chisholm Court s accurate rendering of Article III, added a new provision to the Constitution to incorporate the doctrine of state 22. See, e.g., Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559, (2002). 23. Patrick Henry perhaps put it most tersely: [Madison] says that the state may be plaintiff only. If gentlemen pervert the most clear expressions, and the usual meaning of the language of the people, there is an end of all argument. What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant. STATE CONVENTION DEBATES, supra note 19, at Field, supra note 12, at Brutus, Essays of Brutus, in 2THE COMPLETE ANTI-FEDERALIST 358, 429 (Herbert J. Storing ed., 1981) ( I conceive the clause which extends the power of the judicial to controversies arising between a state and citizens of another state, improper in itself... Itisimproper[] because it subjects a state to answer in a court of law, to the suit of an individual. ). 26. Field, supra note 12, at Randy E. Barnett, The People or The State?: Chisholm v. Georgia and Popular Sovereignty, 93 VA.L.REV. 1729, 1735 (2007) U.S. (2 Dall.) 419, 428 (1793). 29. See id. at U.S. CONST. amend. XI ( 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. ).

7 2017] REMOVAL PLUS TIMELY ASSERTION 537 sovereign immunity. 31 The swift, decisive reaction to the Chisholm Court s hostile treatment of state sovereign immunity the resuscitation of the doctrine from Chisholm s death grip presaged a robust jurisprudence that strengthened and expanded the state sovereign immunity doctrine beyond what might be implied by the plain language of the Eleventh Amendment. The apogee of this turn is likely Hans v. Louisiana, where the Court announced that the Eleventh Amendment extends immunity to a given state with regard to a suit brought by a citizen of that state, a so-called citizen suit, 32 even though the plain language of the Eleventh Amendment grants immunity to a given state only with regard to a suit brought by Citizens of another State. 33 Further, the Eleventh Amendment has been read to bar suits against the states not only when those suits are brought by citizens, but also when they are brought by federally chartered corporations, by Indian tribes, and by foreign states, 34 and the Court has suggested more than once that state sovereign immunity is a background constitutional concept independent of the somewhat narrow terms of the Eleventh Amendment. 35 Thus, despite a vibrant, albeit indeterminate, Founding Era debate regarding whether state sovereign immunity would survive ratification, the Eleventh Amendment ensured that state sovereign immunity, either by that Amendment s own terms or by restoring the original proper understanding of Article III, was part of our constitutional order, and the Supreme Court s subsequent jurisprudence has established a muscular, far-reaching doctrine of state sovereign immunity. 36 B. EXCEPTIONS TO THE DOCTRINE OF STATE SOVEREIGN IMMUNITY Despite the broad protections for states that the Court s rendering of the Eleventh Amendment s state sovereign immunity promise has wrought, there are three primary means to overcome the general rule that a suit against a state is barred from proceeding to the merits: the state-actor exception, congressional abrogation, and, most importantly for this Note s purposes, waiver. 31. See Barnett, supra note 27, at U.S. 1, (1890). 33. U.S. CONST. amend. XI. 34. Jonathan R. Siegel, Waivers of State Sovereign Immunity and the Ideology of the Eleventh Amendment,52DUKE L.J. 1167, (2003). 35. See Alden v. Maine, 527 U.S. 706, 713 (1999) ( [T]he sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment....[T]he States immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution... ); Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991) ( Despite the narrowness of its terms, since Hans v. Louisiana we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty,... (internal citations omitted)). 36. Siegel, supra note 34, at 1178 (describing state sovereign immunity doctrine as expansive ).

8 538 THE GEORGETOWN LAW JOURNAL [Vol. 105:531 The first exception to the general sovereign immunity rule derives from the case Ex parte Young 37 and is alternately labeled the Ex parte Young principle 38 or, more descriptively, the state-actor exception. 39 The state-actor exception permits suits against state officers who enforce unconstitutional acts or acts otherwise illegal under federal law. 40 Though Ex parte Young provides an important exception to the general bar of state sovereign immunity, it only provides immunity when the injured party seeks equitable, prospective relief. 41 Thus the state-actor exception does not provide relief when an injured party seeks monetary damages from the state, even when the claim is properly pleaded against individual state officers as opposed to against the state itself. The second primary exception to the general state sovereign immunity rule is Congress s power to abrogate state sovereign immunity through its Fourteenth Amendment enforcement power. 42 Until relatively recently, Congress s power to abrogate could be exercised through its power to regulate interstate commerce. 43 In Parden v. Terminal Railway of the Alabama State Docks Department, the Court considered a federal statute subjecting interstate common carriers to suit for injuries sustained by their employees. 44 Merging waiver and abrogation concepts to form a doctrine that came to be known as constructive consent, the Court held that when a state operated a railroad in interstate commerce, it effectively consented to suit. 45 The Court extended Congress s Commerce Clause abrogation power when it held that, in addition to constructive consent, Congress could expressly abrogate a state s sovereign immunity when it regulated interstate commerce. 46 But, in a sharp turn in state sovereign immunity jurisprudence, the Court subsequently overruled both Parden s constructive waiver 47 and Congress s express power to abrogate state sovereign U.S. 123 (1908). 38. See, e.g., Siegel, supra note 34, at See, e.g., McDermott, supra note 7, at Ex parte Young, 209 U.S. at 130. The Ex parte Young Court reasoned that, as a matter of legal fiction, when a state officer does that which is unconstitutional and thereby causes injury to a private citizen he acts ultra vires and thus no longer is acting on behalf of the state. Id. at 159. Because the state is no longer the relevant defendant in a subsequent suit, the officer is no longer entitled to the protection of the state s sovereign immunity. Id. at See Edelman v. Jordan, 415 U.S. 651, 677 (1974). 42. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) ( [W]e think that the Eleventh Amendment, and the principle of state sovereignty which it embodies are necessarily limited by the enforcement provisions of 5oftheFourteenth Amendment. (citation omitted)). 43. See U.S. CONST. art I, 8, cl U.S. 184, (1964). 45. See id. at Pennsylvania v. Union Gas Co., 491 U.S. 1, 14 (1989) ( Although it is true that we have referred to Parden as a case involving a waiver of immunity, the statements [from Parden] quoted above lay a firm foundation for the argument that Congress authority to regulate commerce includes the authority directly to abrogate States immunity from suit. (citation omitted)). 47. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680 (1999) ( We think that the constructive-waiver experiment of Parden was ill conceived, and see no merit in attempting to salvage any remnant of it. ).

9 2017] REMOVAL PLUS TIMELY ASSERTION 539 immunity via the Commerce Clause. 48 Consequently, congressional abrogation is narrowly limited to legislation passed pursuant to Congress s power to enforce the Fourteenth Amendment. 49 The third primary exception to the general state sovereign immunity rule is when a state waives its immunity from suit. A state waives its immunity when it expressly indicates that it has waived its immunity, by statute or otherwise, 50 or when it engages in affirmative litigation conduct sufficient to amount to waiver. 51 The Court has, on occasion, reduced such affirmative litigation conduct amounting to waiver to the voluntary invocation of federal jurisdiction. 52 The decision in Lapides, in large part, relies on this voluntary invocation waiver rationale. 53 II. LAPIDES V.BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA The Supreme Court in Lapides v. Board of Regents of the University System of Georgia added an important wrinkle to its state sovereign immunity waiver jurisprudence. In Lapides, the Court held that a state that has statutorily waived its immunity from suit with regard to a particular claim if that claim is brought in a state court action has also effectively waived its immunity in a federal forum if the state removes the action to a federal forum. 54 In Lapides, the plaintiff Paul Lapides, a state university employee, brought a federal 55 and a state claim 56 against Georgia and various state actors, alleging that university officials placed allegations of sexual harassment in his personnel files. 57 The Court narrowed its inquiry in the case to only the state law claim, as it held that the federal claim could not be made against a state, 58 and, in an exercise of judicial minimalism, it refused to address the effect of removal on immunity when a state has not statutorily waived its immunity with regard to a claim brought in state court. 59 Tackling the remaining issue, the Court concluded that removal of a claim for which immunity had been waived in state court effec- 48. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66 (1996) ( We feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled. ). 49. Coll. Sav. Bank, 527 U.S. at 671 ( Congress can abrogate state sovereign immunity only when it legislates to enforce the Fourteenth Amendment. ). 50. Id. at ( [W]e will find a waiver... if the State makes a clear declaration that it intends to submit itself to our jurisdiction. (quoting Great N. Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944))); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984) ( We have insisted... that the State s consent be unequivocally expressed. ). 51. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620 (explaining that College Savings Bank distinguished the kind of constructive waivers repudiated there from waivers effected by litigation conduct ). 52. See, e.g., Coll. Sav. Bank, 527 U.S. at See infra Part III. 54. Lapides, 535 U.S. at Id. at 616 (citing Civil Rights Act of 1871, 42 U.S.C (1994 ed., Supp. V)). 56. Id. (citing Georgia Tort Claims Act, GA.CODE ANN (1994)). 57. Id. 58. Id. at Id. at In answering this open question, the circuit courts have split. See supra notes 4 6 and accompanying text.

10 540 THE GEORGETOWN LAW JOURNAL [Vol. 105:531 tively constitutes waiver in the federal forum. The Court articulated two primary rationales for this holding: a voluntary invocation rationale and an unfairness avoidance rationale. The first rationale that the Court offered was that Georgia, when it removed the action against it from state to federal court, had voluntarily invoked the federal forum, thereby waiving its immunity from suit. 60 The Court contended that a triumvirate of cases Gunter, 61 Gardner, 62 and Clark 63 stood for the general principle that when a state voluntarily invokes the federal court s jurisdiction, waiver ought to apply. 64 The Court reasoned that it would seem anomalous or inconsistent for a state to invoke federal jurisdiction but then, immediately thereafter, assert Eleventh Amendment immunity by denying that the Judicial power of the United States applies to the case removed to the federal forum. 65 Because Clark and Gardner involved state parties that made affirmative claims in federal court, 66 the Court found dicta in Gunter where the state, like Georgia in Lapides, was an original defendant particularly convincing: [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. 67 The Lapides Court also put forth an unfairness avoidance rationale for its holding. At times, the Court connected its voluntary invocation rationale with its concern for avoidance of inconsistency and unfairness, reasoning that a rule that finds immunity waived when an action is removed to federal court avoids the problems of inconsistency and unfairness that a contrary rule of law would create. 68 But the Court also seemed to have additional unfairness concerns in mind. Relying heavily on Justice Kennedy s concurring opinion in Wisconsin Department of Corrections v. Schacht, 69 the Court reasoned that permitting a state that had waived its immunity in the state forum to subsequently regain its immunity upon removing to the federal forum would constitute selective use of immunity to achieve litigation advantages. 70 The Court minced no words in labeling those litigation advantages unfair. 71 The Court further reasoned that neither those who wrote the Eleventh Amendment nor the States themselves 60. Lapides, 535 U.S. at Gunter v. Atl. Coast Line R.R., 200 U.S. 273 (1906). 62. Gardner v. New Jersey, 329 U.S. 565 (1947). 63. Clark v. Barnard, 108 U.S. 436 (1883). 64. Lapides, 535 U.S. at Id. at See id. 67. Id. (emphasis added) (quoting Gunter v. Atl. Coast Line R.R., 200 U.S. 273, 284 (1906)). 68. Id. at See 524 U.S. 381, (1998) (Kennedy, J., concurring). 70. Lapides, 535 U.S. at See id. at 621 ( To adopt the State s Eleventh Amendment position would permit States to achieve unfair tactical advantages, if not in this case, in others. ).

11 2017] REMOVAL PLUS TIMELY ASSERTION 541 (insofar as they authorize litigation in federal courts) would intend to create that unfairness. 72 III. LAPIDES S INADEQUATE RATIONALES As explained above, the Court relied on two rationales voluntariness and avoidance of inconsistency, anomaly, and unfairness for its holding in Lapides that removal of an action involving a state law claim for which immunity had been statutorily waived in the state forum is affirmative litigation conduct sufficient to constitute waiver in the federal forum. 73 This Part explains how neither of the Court s rationales in Lapides provides a convincing rationale for the Court s holding in that case. Section III.A challenges the Court s voluntary federal forum invocation rationale by explaining how the three voluntary invocation cases on which the Court relied Clark, Gardner, and Gunter insufficiently support a holding that removal constitutes waiver. That line of cases is better understood as supporting a general principle that a state may maintain its immunity in a federal forum, even if the state voluntarily invoked that federal forum, so long as its assertion of immunity is timely. Section III.B challenges the unfairness avoidance rationale. The unfairness that the Court had previously been concerned with in Clark, Gardner, and Gunter referred to a state s attempt to preserve sovereign immunity as a trump card to be played in the event that the result of litigation was adverse to its interests a concern that was not implicated by Georgia s timely assertion of immunity in Lapides. Further, equitable concerns about the unfairness of this selective use of immunity are inconsistent with numerous cases in which the Court has implicitly or explicitly approved of equally selective uses of immunity that have permitted states to achieve immunity-based litigation advantages. A. CRITIQUE OF LAPIDES S VOLUNTARY INVOCATION RATIONALE In Lapides, the Court reasoned that a general principle emerged from its decisions in Clark, Gardner, and Gunter that when a state voluntarily invokes the jurisdiction of a federal court, such voluntary invocation amounts to a waiver of state sovereign immunity. 74 However, no such general principle of voluntary invocation automatically resulting in immunity waiver actually emerges from Clark, Gardner, and Gunter. The Lapides Court could have taken a general principle from Clark, Gardner, and Gunter, but the general principle that it derived was the wrong one. The general principle that this line of cases most squarely supports is that, so long as assertion of state immunity is done in a timely fashion prior to proceeding to the merits such immunity is upheld and not waived, regardless of whether the state voluntarily invoked the federal 72. Id. at See supra Part II. 74. Lapides, 535 U.S. at 619.

12 542 THE GEORGETOWN LAW JOURNAL [Vol. 105:531 forum. Timeliness, not voluntariness, has always been the Court s primary concern in this context. In Clark, Rhode Island voluntarily intervened in a bankruptcy proceeding in federal district court, making an affirmative claim to a fund that was in that court s possession, 75 in addition to serving as a defendant in the action. 76 The underlying rationale for the Court s holding that Rhode Island waived its immunity was that the Court was unwilling to let Rhode Island file an affirmative proof of claim in the bankruptcy proceeding but then erect an immunity barrier in the event that the district court s ruling was adverse to the state s interests. 77 The Clark Court made clear that its holding was not founded on voluntary invocation grounds when the Court expressly distinguished its finding of waiver from Georgia v. Jesup, in which it did not find immunity waiver. 78 In Jesup, the State of Georgia did voluntarily invoke the federal forum, but it appeared only to protest against the exercise of jurisdiction by the court. 79 Said differently, in both Jesup and Clark the states voluntarily invoked the federal forum, but in Jesup Georgia immediately asserted its immunity after invoking the federal forum, whereas in Clark Rhode Island invoked the federal forum but only planned on asserting immunity after merits litigation in the event of a ruling adverse to its interests. Thus, Rhode Island waived its immunity in Clark not because it voluntarily invoked a federal forum, as the Lapides Court would have it, 80 but because its assertion of immunity after litigation on the merits would have been untimely. In the factually similar Gardner case, New Jersey, like Rhode Island in Clark, filed a proof of claim against a debtor in federal court and then erected an immunity defense. 81 The Court held that New Jersey had waived its immunity, reasoning that when a state becomes the actor and files a claim against the fund, it waives any immunity which it otherwise might have had respecting the adjudication of the claim. 82 In other words, the Gardner Court, like the Clark Court, was willing to find immunity waived not because of the mere invocation of the federal forum, but because it would not permit a state to make an affirmative claim and then decide to assert immunity if the outcome on the merits was adverse to the state s interests. Again, the timeliness of the assertion 75. Clark v. Barnard, 108 U.S. 436, (1883) ( [T]he state of Rhode Island was an intervenor and claimant of the fund in court... ). 76. Id. at 446; Siegel, supra note 34, at See Clark, 108 U.S. at Id. at 448 (citing Georgia v. Jesup, 106 U.S. 458 (1882)). 79. Id.; see also Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 760 (9th Cir. 1999) (explaining that in Jesup the state preserved its claim to Eleventh Amendment immunity when it timely avowed its unwillingness to submit its rights... to the adjudication of any court of the United States (quoting Jesup, 106 U.S. at )). 80. See Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 619 (2002). 81. Gardner v. New Jersey, 329 U.S. 565, (1947); Shorey, supra note 7, at Gardner, 329 U.S. at 574.

13 2017] REMOVAL PLUS TIMELY ASSERTION 543 of immunity, not voluntary invocation, was the touchstone for holding that immunity had been waived. Nevertheless, notwithstanding the true rationale undergirding the Court s holding of waiver in these cases, the Lapides Court latched on to dicta in Clark suggesting that a state s voluntary invocation of a federal court automatically waives that state s sovereign immunity, 83 ignoring the distinction from Jesup and whittling Clark down to the proposition that a [s]tate s voluntary appearance in federal court amounted to a waiver of its Eleventh Amendment immunity. 84 The Lapides Court asserted that Gardner stands for the same voluntary federal forum invocation waiver proposition that it found in Clark, 85 even though one commentator though convinced by the voluntariness dicta in Clark has accurately explained that Gardner established nothing more than the principle that when a state affirmatively invokes the jurisdiction of a federal court, it necessarily consents to the court s determination of the claim that the state has brought to it.... Even if the ruling goes against the state. 86 The Lapides Court thus failed to acknowledge that the findings of state sovereign immunity waiver in Clark and Gardner were premised not so much on voluntary invocation of a federal forum, but on a concern that states who had in fact voluntarily invoked a federal forum would litigate on the merits and then only assert immunity if the outcome was adverse to their interests. Of the triumvirate of voluntary invocation cases, the Lapides Court relied most heavily on Gunter, as that case, like Lapides, involved an original state defendant rather than a state making an affirmative claim in the federal forum. 87 In Gunter, South Carolina passed a tax law that resulted in the collection of taxes from a railroad that had previously been exempt from tax. 88 The railroad filed suit against the state in order to enforce its contractual exemption from tax. 89 Importantly, the state never asserted its immunity in this litigation and the matter was resolved on the merits in favor of the railroad. 90 When the state s subsequent attempt to tax the railroad twenty-five years later led to another round of litigation, the Court held that South Carolina had been a party to and 83. See Clark, 108 U.S. at 447 ( The immunity from suit belonging to a state, which is respected and protected by the constitution within the limits of the judicial power of the United States, is a personal privilege which it may waive at pleasure; so that in a suit, otherwise well brought, in which a state had sufficient interest to entitle it to become a party defendant, its appearance in a court of the United States would be a voluntary submission to its jurisdiction... ). 84. Lapides, 535 U.S. at Id. 86. Siegel, supra note 34, at 1191 (citing Gardner, 329 U.S. at ). 87. Lapides, 535 U.S. at 619 ( And the Court has made clear in general that 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. ). 88. Gunter v. Atl. Coast Line R.R., 200 U.S. 273, 277 (1906). 89. Id. at 278; Siegel, supra note 34, at Siegel, supra note 34, at 1192 (citing Humphrey v. Pegues, 83 U.S. (16 Wall.) 244, 249 (1872)).

14 544 THE GEORGETOWN LAW JOURNAL [Vol. 105:531 was thus bound by the prior ruling. 91 Although the Gunter Court cited to Clark for the voluntary invocation dicta 92 eventually latched on to by the Lapides Court, the real rationale for its holding that South Carolina had waived its immunity in the subsequent litigation was that the later litigation was res judicata with the earlier litigation, 93 and in that earlier litigation the state had failed to assert its immunity. 94 The Gunter Court thus based its finding that South Carolina had waived its immunity not on the State s voluntary appearance in a federal court, but on the fact that South Carolina proceeded to judgment in an action and then attempted to assert immunity late twenty-five years late in litigation that was essentially a continuation of earlier litigation. 95 Thus, as in Gardner and Clark, it was the state s untimely assertion of immunity, not voluntary invocation of a federal forum, that resulted in the Court s finding that state sovereign immunity had been waived. 96 Thus, although there is a general principle that emerges from Clark, Gardner, and Gunter, the Lapides Court identified the wrong one. It is not that mere invocation of the federal forum automatically constitutes state sovereign immunity waiver. Rather, a state s failure to timely assert its immunity once it has voluntarily invoked the federal forum results in waiver of its sovereign immunity. B. CRITIQUE OF LAPIDES S UNFAIRNESS AVOIDANCE RATIONALE The Lapides Court further reasoned that the voluntary invocation of federal jurisdiction should automatically amount to waiver of state sovereign immunity in order to avoid the problems of inconsistency and unfairness that a contrary rule of law would create. 97 But, as should be clear at this point, the unfairness and inconsistency the Court found problematic in Clark, Gardner, and Gunter 91. Gunter, 200 U.S. at 289; Siegel, supra note 34, at Gunter, 200 U.S. at Id. at Id. at 288; Siegel, supra note 34, at See Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 760 (9th Cir. 1999) (relying on Gunter for the proposition that it is generally acknowledged that a state waives its Eleventh Amendment immunity by litigating a case on the merits without timely objecting to the federal court s assertion of jurisdiction (emphasis added)). 96. Siegel, supra note 34, at Professor Siegel s analysis is helpful on this point, though he somewhat inconsistently says that South Carolina waived its immunity by failing to assert it in the initial litigation while maintaining that Gunter extended the rule of Clark by holding that the state s voluntary appearance would constitute a waiver of its immunity. Id. Gunter actually seems to stand more for the former than the latter: South Carolina s failure to timely assert immunity, not its voluntary invocation, resulted in waiver. As Siegel nicely puts it, Gunter applied a broad rule that states waive their immunity by simply failing to assert it. Id. After all, what was voluntary about what South Carolina did other than not immediately asserting immunity at the beginning of the litigation? Its only invocation of the federal forum was proceeding to merits litigation and then trying to assert immunity once the result was adverse to its interests. Again, this suggests that the general principle from Clark, Gardner, and Gunter is one concerning timeliness of immunity assertion, not one concerning voluntary invocation. 97. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 622 (2002) (citing Gunter, 200 U.S. at 284).

15 2017] REMOVAL PLUS TIMELY ASSERTION 545 had to do with a state wanting to have it both ways. The Court in each of those cases found immunity waived because the state wanted to litigate in a federal forum but then preserve sovereign immunity as a trump card to be played in the event of an adverse ruling. 98 But those could not have been the unfairness and inconsistency concerns at play in Lapides: the procedural posture of the case makes clear that Georgia had immediately asserted its immunity as soon as it arrived in the federal forum after removal. 99 Unlike the states in Clark, Gardner, and Gunter, Georgia in Lapides did not try to litigate on the merits in the federal forum while preserving its immunity trump card; instead, it played that trump card as soon as it arrived in the federal forum. Thus, if there were unfairness in Lapides justifying the rule that removal amounts to waiver of state sovereign immunity, it had to have been a different sort of unfairness than that with which the Court had earlier been concerned in Clark, Gardner, and Gunter. To that end, the Lapides Court suggested that there was something fundamentally unfair about permitting a state to regain immunity in the federal forum that it had given up in the state forum. The Court reasoned that such selective use of immunity would permit States to achieve unfair tactical advantages, 100 and asserted that its approach was grounded in a belief that neither those who wrote the Eleventh Amendment nor the States themselves (insofar as they authorize litigation in federal courts) would intend to create that unfairness. 101 Certain circuits, in finding that removal absent statutory waiver at the state level for claims removed to federal court does not amount to waiver of immunity in the federal forum, have distinguished Lapides on precisely the grounds that Lapides was really concerned with the unfairness of a state s regaining immunity that had been waived in the state forum once in the federal forum. 102 Thus the Lapides Court found waiver in large part because removal had the effect of changing the level of the playing field. 103 It would have been unfair to permit Georgia to regain immunity in federal court that had been waived in state court. 98. Bergemann v. R.I. Dep t of Envtl. Mgmt., 665 F.3d 336, (1st Cir. 2011) (explaining that [p]ut in colloquial terms, the state must take the bitter with the sweet and that not finding immunity waiver in Clark and Gardner would have worked great unfairness ). 99. Lapides, 535 U.S. at 616 ( All defendants joined in removing the case to Federal District Court, where they sought dismissal...byvirtue of the Eleventh Amendment... (citation omitted)) Id. at (citing Wis. Dep t of Corr. v. Schacht, 524 U.S. 381, (1998) (Kennedy, J., concurring)) Id. at Bergemann, 665 F.3d at 341 ( In Lapides, removal operated in effect as an end-run around Georgia s state-court waiver of immunity. Here, by contrast, Rhode Island is immune from FLSA claims in both state and federal court. Thus, removal conferred no special advantage on the state: it would have enjoyed exactly the same immunity had it continued to litigate the claim in the state court. We believe that this is a crucial distinction. ); Stewart v. North Carolina, 393 F.3d 484, 490 (4th Cir. 2005) ( With respect to the risk of inconsistency and unfair tactical advantage, this case is very different from Lapides. Unlike Georgia in Lapides, North Carolina had not consented to suit in its own courts for the relevant claims asserted by Stewart. ) Bergemann, 665 F.3d at 342.

16 546 THE GEORGETOWN LAW JOURNAL [Vol. 105:531 But this unfairness concern cannot withstand scrutiny: it is inconsistent with core state sovereign immunity concepts that the Court has either implicitly or explicitly approved. The understanding of the contemporary Court is that modern state sovereign immunity remains identical to the form of state sovereign immunity that the States possessed before entering the Union. 104 According to the Court, this has been its understanding of state sovereign immunity since the landmark case of Hans v. Louisiana. 105 Thus it is uncontroversial to assert that the Lapides Court would agree that the state sovereign immunity baseline is quite robust: the analysis starts with the proposition that the state is entirely immune from suits brought by private citizens; any dent in that armor is due only to the affirmative consent of the state or the narrow grounds on which Congress may abrogate state immunity under the Fourteenth Amendment. 106 With regard to the state s affirmative consent to suit, all would further agree that the state has every right to revoke its statutory consent to suit. In Lapides, for example, the relevant waiver statute was the Georgia Tort Claims Act. 107 Imagine that the Georgia state legislature was on notice that Professor Lapides had a strong claim against the state and that the resulting damages were likely to be enormous. The legislature, strategically seeking to avoid such an outcome, could regain immunity by voting to revoke the Georgia Tort Claims Act or, in a less extreme move, by adding a provision that explicitly barred immunity for the particular claim that Lapides could bring. 108 Though such an act might be politically untenable, immoral, or unethical in short, it would smack deeply of the unfairness that bothered the Lapides Court no one would say that the state could not engage in such a maneuver. If a state can amend its statutory waivers in order to strategically regain immunity precisely to achieve litigation advantages 109 it is not at all clear why a state cannot use removal, like in Lapides, to achieve the same result. Additionally, the robust list of exceptions and limitations that attends almost every waiver statute the Georgia Tort Claims Act is no exception to this general trend 110 demonstrates another instance where the Court has implicitly approved of a state s being selective with its grant of immunity so as to achieve litigation advantages. For example, in Lapides, Professor Lapides brought a suit in tort on grounds that state university officials placed allegations of 104. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669 (1999) Id. at (internal citations omitted) Id. at GA. CODE ANN (b) (1994) ( The state waives its sovereign immunity only to the extent and in the manner provided in this article and only with respect to actions brought in the courts of the State of Georgia. The state does not waive any immunity with respect to actions brought in the courts of the United States. ) Id (providing an express list of claims for which the state has not waived its immunity in tort) Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620 (2002) See, e.g., (providing an express list of claims for which the state has not waived its immunity in tort).