F I L E D
United States Court of Appeals
Tenth Circuit
JUN 26 2000
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JOHN P. MCLAUGHLIN,
Plaintiff-Appellant,
v.
No. 99-1149
BOARD OF TRUSTEES OF STATE
COLLEGES OF COLORADO,
Defendant-Appellee,
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-WM-2238)
James Craft Fattor, of Burns, Wall, Smith and Mueller, P.C., Denver, Colorado,
appearing for Plaintiff-Appellant.
Andrew D. Ringel (Thomas J. Lyons, with him on the brief), of Hall & Evans,
L.L.C., Denver, Colorado, appearing for Defendant-Appellee.
Before SEYMOUR, Chief Judge, TACHA and KELLY, Circuit Judges.
SEYMOUR, Chief Judge.
John P. McLaughlin brought this action in state court against the Board of
Trustees of State Colleges of Colorado challenging the termination of his faculty
appointment and his failure to receive a tenured position at the Metropolitan State
College of Denver. After the Board removed the case to federal court, the district
court granted its motion to dismiss on the basis of Eleventh Amendment
immunity. Mr. McLaughlin appeals and we affirm, albeit on other grounds.
I
Mr. McLaughlin asserted claims against the Board under 42 U.S.C. § 1983
for the denial of his constitutional rights to due process and equal protection, as
well as state claims based on breach of contract and promissory estoppel. He
sought damages and injunctive relief. In its motion to dismiss, the Board
contended the district court lacked subject matter jurisdiction over Mr.
McLaughlin’s federal claims because of the Board’s Eleventh Amendment
immunity as an arm of the state. Alternatively, the Board maintained that Mr.
McLaughlin failed to state a claim against it under section 1983 because the
Board is not a person within the meaning of that statute, citing Will v. Michigan
Dep’t of State Police, 491 U.S. 58 (1989).
The district court concluded that the Board is an arm of the state for
Eleventh Amendment purposes and that it had not waived its immunity by
-2-
removing the action to federal court. The court therefore held that Mr.
McLaughlin’s claim for monetary damages was barred. The court further
concluded that Mr. McLaughlin’s claim for injunctive relief did not fall within
the Ex parte Young exception to Eleventh Amendment immunity, see 209 U.S.
123 (1908), because it was not prospective in nature and therefore not the type of
claim permitted by that exception. The court accordingly dismissed the federal
claims for lack of jurisdiction and remanded the state law claims to state court. 1
On appeal, Mr. McLaughlin contends the Board waived its rights under the
Eleventh Amendment by removing the case to federal court.
II
Under the Eleventh Amendment, “an unconsenting State is immune from
suits brought in federal courts by her own citizens as well as by citizens of
another State.” Edelman v. Jordan, 415 U.S. 651, 663 (1974). An arm of the
state may also “assert the Eleventh Amendment as a defense in federal court
unless it has waived the defense and consented to suit in federal court.” Sutton v.
Utah State Sch. for the Deaf and Blind, 173 F.3d 1226, 1233 (10th Cir. 1999).
The Board was subsequently granted summary judgment in state court on
1
Mr. McLaughlin’s breach of contract and promissory estoppel claims.
-3-
On appeal, Mr. McLaughlin does not challenge the district court’s
conclusion that the Board is an arm of the state for Eleventh Amendment
purposes. He argues instead that the Board waived its immunity by removing the
action to federal court. We considered this issue in Sutton. See id. at 1233-34.
We recognized that the test for determining a waiver of immunity is strict and that
“there must be an ‘unequivocal intent’ to waive the immunity.” Id. at 1234
(quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)).
Nonetheless, we observed that “an unequivocal intent to waive immunity seems
clear when a state, facing suit in its own courts, purposefully seeks a federal
forum.” Id. (citing Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381,
393-98 (1998) (Kennedy, J., concurring)). We concluded that the removal in
Sutton effected a waiver even though the state official who removed the case did
not have an express grant of authority to do so. See id. at 1235. We held that
when “the invocation of federal court jurisdiction [is] brought about by
defendants’ own counsel,” the case presents circumstances showing “an
‘extraordinarily effective waiver.’” Id. (quoting Richins v. Industrial Constr.,
Inc., 502 F.2d 1051, 1056 (10th Cir. 1974)).
In ruling to the contrary here, the district court did not have the benefit of
our opinion in Sutton. The Board contends Sutton is not controlling for several
reasons. It first claims the present circumstances amount at most to constructive
-4-
waiver, which the Supreme Court held in College Sav. Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-81 (1999), has no place in
sovereign immunity jurisprudence.
We do not agree that the viability of Sutton was undercut by the Court’s
ruling in College Savings Bank. There the Court addressed an argument that
implied or constructive waiver arises when federal legislation unambiguously
provides that a state will be subject to suit if it engages in specified activity, and
the state then voluntarily elects to undertake that activity. See id. at 679.
Although the Court held that constructive waiver does not exist in that situation,
it expressly distinguished cases in which a state affirmatively invokes the
jurisdiction of a federal court or makes a clear declaration of its intent to submit
itself to a federal court’s jurisdiction. See id. at 676, 681 n.3 (citing Gardner v.
New Jersey, 329 U.S. 565 (1947), “for the unremarkable proposition that a State
waives its sovereign immunity by voluntarily invoking the jurisdiction of the
federal courts.”).
The Board also asserts Sutton is factually distinguishable, pointing out that
the defendants there not only removed the case to federal court, they thereafter
litigated the merits and did not raise their entitlement to Eleventh Amendment
immunity until oral argument on appeal. Our review of the record here, however,
reveals no significant differences between these proceedings and those in Sutton,
-5-
particularly in light of Justice Kennedy’s concurrence in Schacht, 524 U.S. at 393,
on which we relied in Sutton. Although the Board did raise the issue of its
immunity in the district court, it also asserted that Mr. McLaughlin failed to state
a section 1983 claim in light of Will, 491 U.S. 58. By relying on Will, the Board
was contesting the merits of Mr. McLaughlin’s constitutional claim. See Schacht,
524 U.S. at 390; Sutton, 173 F.3d at 1237. Indeed, the Board conceded at oral
argument that its primary reason for removing this action was its desire to pursue
the Will defense in federal rather than state court. Under these circumstances, we
are persuaded the Board affirmatively invoked the jurisdiction of the federal
court.
Finally, the Board contends the Colorado Attorney General did not possess
authority to waive the state’s Eleventh Amendment immunity by removing the
case to federal court. In response, Mr. McLaughlin points out that state law
authorizes the Attorney General to appear and represent the state in all legal
proceedings, see C OLO . R EV . S TAT . § 24-31-101(1)(a) (1999). Mr. McLaughlin
also observes that under state law, “absent an express statutory mandate to the
contrary, government agencies are to be treated as would [be] any other litigant
while before the court,” Biella v. State Dep’t of Highways, 652 P.2d 1100, 1102
(Colo. Ct. App. 1982) (internal quotation omitted), aff’d, 672 P.2d 529 (Colo.
1983), and that the “[a]uthority of an attorney to appear for another is presumed,”
-6-
Traxler v. Board of Trustees of the Firemen’s Pension Fund, 701 P.2d 607, 608
(Colo. Ct. App. 1984). Moreover, in Sutton we held that removing the case to
federal court and litigating the merits constituted an effective waiver despite
statutory language precluding the Attorney General from waiving Eleventh
Amendment immunity by entering an appearance and litigating the case. The case
for waiver is even more compelling here where such preclusive state legislation is
not present.
Our conclusion is supported by Justice Kennedy’s concurring opinion in
Schacht. While recognizing that the issue was not before the Court, Justice
Kennedy nonetheless discussed at length the argument that a state waives its
Eleventh Amendment immunity by expressly consenting to removal of a case from
state court. The state there had “consented to removal but then registered a
prompt objection to the jurisdiction of the United States District Court over the
claim against it.” Schacht, 524 U.S. at 393 (Kennedy, J., concurring). Justice
Kennedy pointed out that
[s]ince a State which is made a defendant to a state court action is
under no compulsion to appear in federal court and, like any other
defendant, has the unilateral right to block removal of the case, any
appearance the State makes in federal court may well be regarded as
voluntary in the same manner as the appearances which gave rise to
the waivers in Clark [v. Barnard, 108 U.S. 436, 447-48 (1883),] and
Gardner [v. New Jersey, 329 U.S. 565, 574 (1947)].
Id. at 395-96.
-7-
Justice Kennedy also addressed whether a waiver can be found in the
absence of state law authorizing the attorney representing the state to waive the
Eleventh Amendment on its behalf. He opined that
the absence of specific authorization . . . is not an insuperable
obstacle to adopting a rule of waiver in every case where the State,
through its attorneys, consents to removal from the state court to the
federal court. If the States know or have reason to expect that
removal will constitute a waiver, then it is easy enough to presume
that an attorney authorized to represent the State can bind it the the
jurisdiction of the federal court (for Eleventh Amendment purposes)
by the consent to removal.
Id. at 397. Finally, while recognizing that the Court’s recent cases disfavor
constructive waiver and require that consent to suit be unequivocal, Justice
Kennedy stated that removal is conduct far less equivocal than the conduct at
issue in the other cases, observing that it is “an act considerably more specific
than the general participation in a federal program found insufficient” in those
cases. Id. at 397.
In sum, we conclude the Board waived its Eleventh Amendment immunity
in this case. We need not remand for further consideration of Mr. McLaughlin’s
claim, however, because we may affirm the district court on any ground supported
by the record. See Harris v. Champion, 51 F.3d 901, 905 (10th Cir. 1995);
Swoboda v. Dubach, 992 F.2d 286, 291 (10th Cir. 1993). As we discuss below,
Mr. McLaughlin has failed to state a claim for relief under section 1983.
-8-
III
A cause of action under section 1983 requires the deprivation of a civil
right by a “person” acting under color of state law. 42 U.S.C. § 1983; Sutton, 173
F.3d at 1237. Mr. McLaughlin named as the sole defendant in this action the
Board of Trustees, an entity he concedes is an arm of the state. The Supreme
Court held in Will that “neither a State nor its officials acting in their official
capacities are ‘persons’ under § 1983.” Will, 491 U.S. at 71. As we explained in
Harris, “a governmental entity that is an arm of the state for Eleventh Amend-
ment purposes” is not a “person” for section 1983 purposes. Harris, 51 F.3d at
905-06. Having sued only the Board rather than the individual trustees, Mr.
McLaughlin has failed to state a claim against a person covered by section 1983. 2
The judgment of the district court dismissing the action is AFFIRMED.
2
If Mr. McLaughlin had sued a state official instead of the Board, he could
have argued the viability of his claim for prospective injunctive relief because
a state official in his or her official capacity, when sued
for injunctive relief, would be a person under § 1983
because “official-capacity actions for prospective relief
are not treated as actions against the State.”
Will, 491 U.S. at 71 n.10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14
(1985)). Having failed to do so, however, Mr. McLaughlin is left without a
federal claim.
-9-