State's voluntary removal of case to federal court waives 11th Amendment immunity

Law Reporter, Oct 2002

Lapides v. Board of Regents, 122 S. Ct. 1640 (2002).

The U.S. Supreme Court held that a state's voluntary removal of a case to federal court acts as a waiver of its Eleventh Amendment immunity.

Here, Lapides, a professor, sued a university, alleging its officials placed allegations of sexual harassment in his personnel file. Defendant had the case removed to federal court, then moved to dismiss, arguing it was immune from suit in federal court under the Eleventh Amendment. The trial court denied the motion, finding that defendant had waived its Eleventh Amendment immunity by removing the case to federal court. The Eleventh Circuit Court of Appeals reversed.

Reversing the appeals court, the Supreme Court noted that it would be inconsistent for a state to invoke federal jurisdiction, thereby agreeing that the judicial power of the United States extends to a case, while at the same time claiming Eleventh Amendment immunity, which would deny that it extends to the same case. Citing its own case law, the Court found that a state's voluntary appearance in federal court amounted to a waiver of Eleventh Amendment immunity. In addition, the Court explained, a state that voluntarily becomes a party to a case cannot avoid the results of its voluntary act by invoking the Eleventh Amendment.

Applying this reasoning here, the Court found that defendant was brought into the case involuntarily in the origfinal state court proceeding. However, defendant then voluntarily agreed to remove the case to federal court, thereby invoking federal court jurisdiction. The Court explained that adopting defendant's Eleventh Amendment argument would allow states to gain unfair tactical advantages. Thus, the reason for applying a general voluntary invocation rule is strong, the Court concluded.

Plaintiffs Counsel

David J. Bederman, Atlanta, Ga.

Amicus Curiae Counsel

Irving L. Gornstein, Washington, D.C.