Meyers v. State of Texas

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit May 19, 2005

Charles R. Fulbruge III
Clerk
No. 02-50452

MARJORIE MEYERS, by Next Friend Edgar C. Benning, on behalf of
herself and all others similarly situated; HELEN ELKIN, on behalf
of herself and all others similarly situated; RUTH H. DAVIS, on
behalf of herself and all others similarly situated; PHILLIP
GREENBERG, on behalf of himself and all others similarly
situated,

Plaintiffs-Appellants,

VERSUS

STATE OF TEXAS; TEXAS DEPARTMENT OF TRANSPORTATION; WILLIAM G.
BURNETT, Executive Director of the Texas Department of
Transportation,

Defendants-Appellees.

Appeal from the United States District Court
For the Western District of Texas, Austin Division

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:

The named plaintiffs1 originally brought this civil rights

1
Marjorie Meyers, Helen Elkin, Ruth Davis, and Phillip
Greenberg (“plaintiffs”).

1
class action in Texas state court under Title II of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et. seq., against

defendants, the State of Texas, the Texas Department of

Transportation, and William Burnett (“defendants” or “Texas”).

Texas removed the case to federal district court. The federal

district court remanded the case to the Texas district court.

Texas filed a motion in the state district court to dismiss on

grounds of state sovereign immunity. That motion was denied by the

state district court, and Texas appealed the ruling to the state

court of appeals. While that appeal was pending, Texas again

removed the case to the federal district court and again moved to

dismiss on grounds of state sovereign immunity from suit. The

district court dismissed plaintiffs’ claims seeking retrospective

money damages and prospective injunctive relief for lack of subject

matter jurisdiction on grounds that Texas enjoyed immunity from

suit under the Eleventh Amendment. The plaintiffs appealed. The

predominant issue is whether, in light of Lapides v. Bd. of

Regents, 535 U.S. 613 (2002), Texas waived its state sovereign

immunity from suit by individuals when it removed this case from

state court to federal district court.

I. Background

Congress enacted the ADA in 1990 to establish a “comprehensive

national mandate for the elimination of discrimination against

individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The

2
ADA’s broad prohibitions of discrimination in public services and

accommodations require accessible parking for the sight, mobility

and otherwise handicapped. Texas responded to this requirement by

providing persons with disabilities two means to obtain the right

to use accessible parking spaces: special license plates and

parking placards. TEX. TRANSP. CODE ANN. §§ 502.253, 681.002. The

special license plates cost no more than regular license plates.

Id. § 502.253(d). The portable placards, which afford parking

access to disabled persons without specialized license plates, cost

five dollars, however, and must be renewed every four years. Id.

§§ 681.003, 681.004. The five dollar fee is used to defray the

costs of providing the placards. Id. § 681.005(1).

Plaintiffs filed this class action suit on August 11, 1997, in

the state district court for Travis County, Texas alleging that the

fee collected to pay for the placard program violates regulations

promulgated under Title II of the ADA as well as the ADA. ADA §

12132 states that “no qualified individual with a disability shall,

by reason of such disability, be excluded from participation in or

be denied the benefits of the services, programs or activities of

a public entity, or be subjected to discrimination by any such

entity.” 42 U.S.C. § 12132. Pursuant to congressionally granted

power to promulgate regulations implementing this section, id. §

12134(a), the Attorney General formulated a “surcharge regulation”:

A public entity may not place a surcharge on a particular
individual with a disability or any group of individuals

3
 with disabilities to cover the costs of measures, such as
the provision of auxiliary aids or program accessibility,
that are required to provide that individual or group
with nondiscriminatory treatment required by the Act or
this part.

28 C.F.R. § 35.130(f). Plaintiffs alleged that by collecting a fee

to pay for the placard program, Texas violated both the ADA and the

surcharge regulation.

In September 1997, Texas removed the case to the federal

district court for the Western District of Texas, which remanded

the case sua sponte on the grounds that the Tax Injunction Act

barred federal jurisdiction over plaintiffs’ suit. The Texas

state district court granted plaintiffs’ motion for class

certification and denied Texas’s motion to dismiss because of the

state’s sovereign immunity. Texas appealed from that ruling to the

Texas state court of appeals. While that appeal was pending, we

decided in a separate case, Neinast v. State of Texas, 217 F.3d 275

(5th Cir. 2000), that the placard charges were fees, not taxes, and

that “the district court erred in holding that the placard funds

were a tax and thus within the scope of the Tax Injunction Act.”

Id. at 279.

Upon learning of our Neinast ruling, Texas removed this case

from the Texas court of appeals to federal district court on July

17, 2000. Two days later, Texas moved to dismiss plaintiffs’

claims for lack of subject matter jurisdiction under Federal Rule

of Civil Procedure 12(b)(1) on the grounds of Texas’s Eleventh

4
Amendment immunity. The district court granted the motion to

dismiss, holding, inter alia, that because there was “no clear

guidance from the [Supreme] Court on whether removal alone

constitutes waiver of Eleventh Amendment immunity,” “under [then]

current Eleventh Amendment jurisprudence” the state “could avail

itself of federal court jurisdiction, and then seek a dismissal on

Eleventh Amendment grounds.” Dist. Ct. Op. of April 16, 2001 at 6.

Plaintiffs timely appealed.

II. Analysis

We review de novo a district court’s grant of a Rule 12(b)(1)

motion to dismiss for lack of subject matter jurisdiction because

of state sovereign immunity. United States v. Texas Tech

University, 171 F.3d 279, 288 (5th Cir. 1999).

A. Waiver of State Sovereign Immunity From Private Suit

State sovereign immunity is a fundamental aspect of the

sovereignty that the states enjoyed before the ratification of the

Constitution and the Eleventh Amendment, and it was preserved

intact by the Constitution. Alden v. Maine, 527 U.S. 706, 713

(1999). The presupposition or concept of state sovereign immunity

“has two parts: first, that each State is a sovereign entity in our

federal system; and second, that it is inherent in the nature of

sovereignty not to be amenable to the suit of an individual without

its consent.” Florida Prepaid Postsecondary Educ. Expense Bd. v.

5
College Savings Bank, 527 U.S. 627, 634 (1999)(quoting Hans v.

Louisiana 134 U.S. 1, 13 (1890)). The term “state sovereign

immunity” is used imprecisely by the courts to refer to both parts,

i.e., the immunity from suit, and the entity itself, including all

of its powers, rights and privileges. See Alden, 527 U.S. at 712-

13. Because the Eleventh Amendment recognizes a State’s sovereign

immunity from suits brought by individuals in federal court, the

Supreme Court has often referred to this as “Eleventh Amendment

immunity.”2 Id. “Eleventh Amendment immunity” is a misnomer,

however, because that immunity is really an aspect of the Supreme

Court’s concept of state sovereign immunity and is neither derived

from nor limited by the Eleventh Amendment. Id. Nevertheless, the

term “Eleventh Amendment immunity” has been used loosely and

interchangeably with “state sovereign immunity” to refer to a

state’s immunity from suit without its consent in federal courts.

See, e.g., College Savings Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666 (1999)(using both terms), Idaho v.

Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997)(same). The

concept of state sovereign immunity in all of its aspects has been

developed by the Supreme Court through its authoritative

interpretations of the Constitution based on history,

2
The Eleventh Amendment provides:
The Judicial power of the United States shall not be
construed to extend in any suit in law or equity,
commenced or prosecuted against one of the United States
by Citizens or Subjects of any Foreign State.
U.S. CONST. AMDT. XI.
6
constitutional structure, and jurisprudence. Alden, 527 U.S. at

712-13.

A state’s immunity from suit is not absolute. College

Savings, 527 U.S. at 670. The Supreme Court has recognized only

two circumstances in which an individual may sue a State. “First,

Congress may abrogate the states’ immunity by authorizing 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.” Id.

(citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)). “Second, a

State may at its pleasure waive its sovereign immunity by

consenting to suit.” Id. (citing Clark v. Barnard, 108 U.S. 436

(1883)). But the decision to waive that immunity must be voluntary

on the part of the sovereign. Generally, the Court will find a

waiver either if (1) the state voluntarily invokes federal court

jurisdiction, or (2) the state makes a “clear declaration” that it

intends to submit itself to federal court jurisdiction. See

College Savings 527 U.S. at 675-676 (citing Gunter v. Atlantic

Coast Line R. Co., 200 U.S. 273, 284 (1906); Great Northern Life

Ins. v. Read, 322 U.S. 47, 54 (1944)).

Plaintiffs contend that Texas, by removing this case from

state court to federal court, voluntarily invoked federal court

jurisdiction and waived its state sovereign immunity from private

suit. They rely upon the Supreme Court’s recognition in Lapides,

that “removal is a form of voluntary invocation of a federal

7
court’s jurisdiction” that constitutes “a waiver of Eleventh

Amendment immunity.” 535 U.S. at 624. On the other hand, Texas

contends that the waiver-by-removal rule recognized by Lapides with

respect to certain suits based on state-law claims does not apply

to the plaintiffs’ suit based on federal-law claims. According to

Texas, that is so because: first, Lapides limits the effect of its

decision to suits based on state-law claims in respect to which the

state has waived its immunity in its own courts; and, second, the

nature of state sovereign immunity, as implied by the Supreme Court

in Alden v. Maine, 527 U.S. 706 (1999), and Pennhurst State School

and Hospital v. Halderman, 465 U.S. 89, 98-99 (1984), allows Texas

to assert its “underlying sovereign immunity from suit in any

court,” even after it has waived its “Eleventh Amendment immunity

from suit in federal court.”

In Lapides, the plaintiff, a professor in the Georgia

university system, brought suit against the university board and

its officials claiming damages for defamation under state law and

for deprivation of his Fourteenth Amendment right to due process

under the federal civil rights act, 42 U.S.C. § 1983. 535 U.S. at

616. It was undisputed that the university board was an arm of the

state and that Georgia by statute had waived its immunity from

suits based on the state-law claims in state court. Id. at 617.

The board and its officials joined in removing the case to

federal district court and sought dismissal. Id. at 616. The

district court held that the doctrine of qualified immunity barred

8
Lapides’s federal-law claims against the university officials but

that the board had waived its Eleventh Amendment immunity by

removing the case from state to federal court. Id. at 617. The

board appealed the district court’s Eleventh Amendment immunity

ruling, and the Court of Appeals for the Eleventh Circuit

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

The Supreme Court granted certiorari and reversed, concluding

that the State’s action of voluntarily agreeing to remove the case

to federal court constituted a form of voluntary invocation of the

federal court’s jurisdiction and a waiver of its Eleventh Amendment

immunity.4 Lapides, 535 U.S. at 620, 624. The Court added,

however, that because Lapides had not stated a valid federal claim

against the state,5 its decision did not address whether or how

3
In the appellate court’s view, as it was unclear that the
state attorney general had the legal authority to waive state
sovereign immunity, the board retained the legal right to assert
its sovereign immunity from suit by individuals even after removal.
Lapides, 251 F.3d at 1375.
4
535 U.S. at 620. The Court pointed out that removal
requires the unanimous consent of all defendants. Id. (citing 28
U.S.C. § 1446(a); Chicago, R.I. & P.R. Co. v. Martin, 178 U.S. 245,
248 (1900)).

5
As the Court explained, Lapides did not state a valid
federal claim “because Lapides’s only federal claim against the
State arises under 42 U.S.C. § 1983, that claim seeks only monetary
damages, and we have held that a State is not a ‘person’ against
whom a § 1983 claim for money damages might be asserted.” 535 U.S.
at 617 (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58,
9
removal would affect federal-law claims or claims in respect to

which the state’s underlying sovereign immunity had not been waived

or abrogated in state court. Id. at 617. Nonetheless, the Court

concluded that the question that prompted it to grant certiorari,

“whether a state waives its Eleventh Amendment immunity by its

affirmative litigation conduct when it removes a case to federal

court,” was not moot, because Lapides’s state-law tort claims

remained pending in federal district court. Id. In view of the

differences of opinion among the circuit courts on the certiorari

issue, the Court decided to answer the question. Id.

1.

Although the Supreme Court in Lapides circumspectly did not

address any issue unnecessary to its decision, we believe that

Lapides’s interpretation of the voluntary invocation principle, as

including the waiver-by-removal rule, applies generally to any

private suit which a state removes to federal court. There is no

evident basis in law or judicial administration for severely

limiting those general principles, or Lapides’s substantial

overruling of Ford Motor Co. v. Dep’t of Treasury of State of

Indiana, 323 U.S. 459 (1945), to a small sub-set of federal cases

including only state-law claims in respect to which a state has

66 (1989)).
10
waived immunity therefrom in state court.6 Moreover, there are

many reasons to apply those principles generally.

First, in reaching its conclusion, the Court in Lapides

applied a generally applicable principle of federal law based upon

a comprehensive consideration of problems associated with states’

assertions of sovereign immunity after voluntarily invoking federal

jurisdiction. Id. at 619-24. The Court in Lapides observed

generally that it is anomalous or inconsistent for a state to both

invoke federal jurisdiction and claim immunity from federal suit in

the same case. Id. at 619. Because permitting states to do so can

generate seriously unfair results, the Court noted that over a

century ago it had begun to develop the principle that a state’s

voluntary appearance in federal court amounted to a waiver of its

immunity from suit. Id. Subsequently, the Court noted, it had

recognized that the principle applied to states’ interventions,

6
This classification excludes “[t]he core of modern federal
court jurisdiction[,]cases arising under the Constitution and laws
of the United States[,]compris[ing] the largest component of the
federal courts’ docket and...widely viewed as the most important
component of the federal courts’ workload.” Erwin Chemerinsky,
FEDERAL JURISDICTION, § 5.2.1, p. 265 (4th ed. 2003); see Jonathan R.
Siegel, Waivers of State Sovereign Immunity and the Ideology of the
Eleventh Amendment, 52 DUKE L.J. 1167, 1229 (2003) (“Although the
particular circumstances of the case may be limited, the reasoning
of the case endorses the crucial values underpinning the
traditional rule that sovereign immunity is waived if not timely
asserted.”)(citing Lapides, 535 U.S. 613).

11
bankruptcy claims, and voluntarily becoming a party in federal

court. Id. (citing Clark, 108 U.S. at 447; Gardner v. New Jersey,

329 U.S. 565, 574 (1947); and Gunter, 200 U.S. at 284). In

Lapides, the Court decided, the state, by voluntarily agreeing to

remove the case, had voluntarily invoked the federal court’s

jurisdiction. Id. at 620. Considering the judicial need to avoid

inconsistency, anomaly, and unfairness, and Georgia’s failure to

point to any special feature of removal or of the Lapides case that

would justify taking the case out from under the general rule, the

Court found no reason to abandon the general principle. Id. at

620-21. Consequently, the Court concluded that removal is a form

of voluntary invocation of federal jurisdiction that constitutes

the waiver of a state’s immunity from suit. Id. at 624.

In explaining why the voluntary invocation principle could not

be narrowed to exclude even the special situation in Lapides, the

Court gave reasons that argue powerfully for general application of

the principle and the waiver by removal rule. Cases in which the

state’s motive for removal is benign cannot be excepted because

“motives are difficult to evaluate, while jurisdictional rules

should be clear” and making such an exception “would permit States

to achieve unfair tactical advantages, if not in this case, in

others.” Id. at 621. Cases involving “suits for money damages

against the State——the heart of the Eleventh Amendment’s concern”——
12
must be included because the principle enunciated in Gunter,

Gardner and Clark “did not turn upon the nature of the relief

sought...[a]nd that principle remains sound as applied to suits for

money damages.” Id. at 620. Finally, the Court’s more recent

cases requiring “a ‘clear’ indication of the State’s intent to

waive its immunity,” such as College Savings, do not undermine the

voluntary invocation principle. To the contrary, College Savings

“distinguished the kind of constructive waivers repudiated there

from waivers effected by litigation conduct.” Id. Although the

state’s intent to waive its immunity must be clearly indicated,

“finding waiver in the litigation context” rests upon 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. Regarding waivers by removal, “[t]he relevant

‘clarity’ here must focus on the litigation act the State takes

that creates the waiver. And that act——removal——is clear.”7 Id.

7
Texas argues that the present case is controlled by Neinast
v. Texas, 217 F.3d 275 (2000), in which this court held that the
state, which had been sued in federal court, did not waive its
immunity by filing a 12(b)(6) motion because it did not proceed
past the motion and answer stage to the merits while holding back
an immunity defense. Id. at 279-280. Neinast is distinguishable
and inapposite. In Neinast the state did not remove the case to
federal court because it was filed in federal court originally.
Thus, Neinast did not fall under the waiver by removal rule. In
the present case, however, Texas’s removal waived its immunity
13
Emphasizing that point, the Court stated:

“[T]he rule is a clear one,... it says that 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.
Id. at 623-624.8

The Court expressly limited its answer in response to the

certiorari question to the context of “state law claims, in respect

to which the State had waived immunity in its own courts.” Id. at

617. However, in formulating its rationale, the Court did not

restrict itself to facts, rules, or reasons peculiar to the Lapides

case. Rather, throughout its opinion, the Court’s reasoning, rule-

making, and choice of precepts were derived from generally

applicable principles serving “the judicial need to avoid

inconsistency, anomaly, and unfairness” in states’ claims of

immunity in all types of federal litigation. 535 U.S. at 620.

under the waiver by removal rule and voluntary invocation principle
explained in Lapides. Texas’s assertion at the time of removal
that it did not intend to defend and removed for the sole purpose
of asserting sovereign immunity did not prevent waiver of that
immunity by removal. The act of removal without more is sufficient
to waive the state’s immunity. The state’s “actual preference or
desire” and “benign motive” are not relevant to a waiver by
removal. Lapides, 535 U.S. at 620-621.
8
See Gil Seinfeld, Waiver-in-Litigation: Eleventh Amendment
Immunity and the Voluntariness Question, 63 OHIO ST. L.J. 871, 875-
890 (2002)(explaining the history and development of the Supreme
Court’s cases finding waiver of state sovereign immunity by
litigation conduct).
14
Further, a reading of Lapides within the context of the Court’s

previous development and application of the voluntary invocation

principle convinces us that, just as the Court concluded about the

Lapides case, there is nothing special about the present case or

its removal, that would justify our taking it out from under the

general legal principle requiring waiver.

Second, the general applicability of the voluntary invocation

principle and the waiver-by-removal rule is demonstrated by their

history. As the Lapides opinion observes, “more than a century ago

this Court indicated that a State’s voluntary appearance in federal

court amounted to a waiver of its Eleventh Amendment immunity.”

Id. at 619, (citing and quoting Clark, 108 U.S. at 447 (“State’s

‘voluntary appearance in federal court as an intervenor avoids

Eleventh Amendment inquiry”); Gardner, 329 U.S. at 574 (“[A] State

‘waives any immunity ... respecting the adjudication of’ a

[bankruptcy] ‘claim’ that it voluntarily files in federal court.”);

Gunter, 200 U.S. at 284 (“[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.”)). “The Court has long accepted this statement of the

law as valid, often citing with approval the cases embodying that

principle.” Lapides, 535 U.S. at 619 (citing College Savings, 527
15
U.S. at 681, n. 3 (1999) (citing Gardner); Employees of Dept. of

Public Health and Welfare of Mo. v. Dep’t of Public Health and

Welfare of Mo., 411 U.S. 279, 294, and n. 10 (1973) (Marshall, J.,

concurring in result) (citing Clark); Petty v. Tennessee-Missouri

Bridge Comm'n, 359 U.S. 275, 276 (1959) (citing Clark)).

Until Ford, the Supreme Court fairly consistently applied the

“voluntary invocation” principle, concluding that a state submits

itself to federal court jurisdiction when it voluntarily appears,

intervenes, files a claim, or becomes a party to a cause in federal

court.9 Gunter, 200 U.S. at 284. In Ford, however, the Court

confused the principle by holding that a state which had

voluntarily participated in litigation could, nevertheless,

successfully assert its sovereign immunity objection even after the

case had reached the Supreme Court. 323 U.S. at 467.

But the Supreme Court began to clarify and restore the

voluntary invocation principle in Wisconsin Dep’t Of Corrections v.

Schacht, 524 U.S. 381 (1998). The Court unanimously held that the

9
See Siegel, Waivers of State Sovereign Immunity, 52 DUKE L.J.
at 1167-1168 (“[P]rior to 1945, the Supreme Court—even as it
enforced a broad, substantive rule of state sovereign
immunity–applied a sensible doctrine of waiver that balanced the
interests of states with those of private parties and the federal
judicial system.... Beginning in 1945 ... new rules of waiver
permitted states to abuse their immunity and waste federal judicial
resources by litigating the merits of a case while holding an
immunity defense in reserve.”); Seinfeld, Waiver-in-Litigation, 63
OHIO ST. L.J. at 875-890.
16
Eleventh Amendment does not automatically destroy a federal court’s

jurisdiction over a claim; rather, it grants the state a legal

power to assert a sovereign immunity defense, which it may raise or

waive. Id. at 389 (citing Clark, 108 U.S. 436; Atascadero State

Hospital v. Scanlon, 473 U.S. 234, 241 (1985)). The Court added

that unless the state raises its sovereignty objection or defense,

the court can ignore it; it need not raise the defect on its own.

524 U.S. at 389 (citing Patsy v. Board of Regents of Fla., 457 U.S.

496, 515, n. 19 (1982)).

Justice Kennedy, concurring in Schacht, stated that, because

no party raised it, the court had not reached or considered the

argument that, by giving its express consent to removal of the

case, Wisconsin had waived its Eleventh Amendment immunity. See

524 U.S. at 393 (Kennedy, J., concurring). He urged consideration

of the question in some later case, however, because of the

difficult problem created when the state consented to removal but

then immediately raised its objection to the district court’s

jurisdiction based on its sovereign immunity. Id. He expressed

doubts about the rule of Ford, and other cases, which had said the

Eleventh Amendment bar may be asserted for the first time on

appeal, so that a state sued in federal court does not waive its

immunity objection simply by appearing and defending on the merits.

Id. at 394. He pointed out that:
17
 In permitting the belated assertion of the Eleventh
Amendment bar, we allow States to proceed to judgment
without facing any real risk of adverse consequences.
Should the State prevail, the plaintiff would be bound by
principles of res judicata. If the State were to lose,
however, it could void the entire judgment simply by
asserting its immunity on appeal.

Id. Noticing that the Ford rule was a departure from the usual

rules of waiver, Justice Kennedy maintained that by making the rule

more consistent with the practice regarding personal jurisdiction

the Court could prevent states from “gaining an unfair advantage.”

Id. at 395. Justice Kennedy suggested that the better rule had

been expressed in Clark and Gardner, in which the Court adopted and

applied the voluntary invocation principle.10 Id.

One year later, the Court reaffirmed the principle that a

state waives its sovereign immunity by voluntarily invoking the

jurisdiction of the federal courts. Justice Scalia, writing for

the majority in College Savings, recognized that valid waivers of

sovereign immunity may occur pursuant to the “voluntary invocation”

principle. 527 U.S. 666, 682 n. 3 (citing Gardner as “stand[ing]

for the unremarkable proposition that a State waives its sovereign

immunity by voluntarily invoking the jurisdiction of the federal

10
Justice Kennedy also recommended overruling Ford’s
requirement that the state attorney who consented to the removal be
authorized under state law to waive the Eleventh Amendment on
behalf of the state. “[T]he state’s consent [to removal] amounted
to a direct invocation of the jurisdiction of the federal courts.”
Id. at 397.
18
courts”).

During the long history of the voluntary invocation principle

prior to Lapides, the Supreme Court gave no indication that the

principle applied only to state-law claims or that it mattered

whether the state had waived its immunity from suit in its own

courts. Indeed, the problems caused by the removal of federal

claims in Schacht prompted Justice Kennedy’s influential concurring

opinion that led to the Court’s decision in Lapides. See Schact,

524 U.S. at 393-98 (Kennedy, J., concurring). Moreover, neither

Justice Kennedy nor the unanimous court in Schacht expressed any

interest in whether the state had waived its immunity from federal-

law claims in state court. See generally, 524 U.S. 381-398.

Similarly, in College Savings, the Court reaffirmed its approval of

the voluntary invocation principle in its discussion of whether a

state had waived its immunity from suit based on a federal-law

claim. 527 U.S. 666. As in Schacht, the Court in College Savings

did not advert to whether the state had waived immunity as to the

claim in state court.

Third, in order to remove an impediment to its reaffirmation

of the voluntary invocation principle, the Court substantially

overruled its previous decision in Ford. Lapides, 535 U.S. at 614-

15. In that case, the Court had held that a state could assert its

immunity for the first time in the Supreme Court, although its
19
attorney general had actively participated on behalf of the state

in the litigation below, because that particular state’s law did

not authorize its attorney general to waive the state’s immunity.

Ford, 323 U.S. at 459. The Court in Lapides recognized that the

Ford rule conflicted with the goal of the voluntary invocation

principle to eliminate problems of inconsistency in state claims of

immunity after removing cases to federal court. 535 U.S. at 622-

23. Further, the Court determined that the question of whether a

particular form of state action amounts to waiver is a federal

question that should be decided under a federal rule. Id. at 623.

Accordingly, the Court concluded that a rule of federal law that

finds waiver through invocation of federal court jurisdiction by an

attorney authorized to represent the state in the pertinent

litigation would avoid inconsistency and unfairness. Id. at 622-

24. Because Ford was inconsistent with the basic rationale of the

voluntary invocation principle, the Court overruled Ford insofar as

it otherwise would apply. Id. at 623. This holding by the Supreme

Court——that the voluntary invocation principle should be applied

uniformly and consistently——lends further support for our

conclusion that the principle should apply equally to state and

federal claims.

Further, the Court granted certiorari in Lapides to consider

the general problem caused by state removals and assertions of
20
immunity in both state and federal-law claim cases. Accordingly,

the Court agreed to consider the general question of whether “a

state waive[s] its Eleventh Amendment immunity by its affirmative

litigation conduct when it removes a case to federal court....”

535 U.S. at 617. The Court described the division of opinions

among circuits giving rise to its review by citing cases dealing

with both federal and state-law claims:

Compare McLaughlin v. Board of Trustees of State Colleges
of Colo., 215 F.3d 1168, 1171 (10th Cir. 2000) (removal
waives immunity regardless of attorney general's
state-law waiver authority)[emphasis added]; and Newfield
House, Inc. v. Massachusetts Dept. of Public Welfare, 651
F.2d 32, 36, n. 3 (1st Cir. 1981) (similar); with Estate
of Porter ex rel. Nelson v. Illinois, 36 F.3d 684,
690-691 (7th Cir. 1994) (removal does not waive
immunity)[emphasis added]; Silver v. Baggiano, 804 F.2d
1211, 1214 (11th Cir. 1986) (similar); and Gwinn Area
Community Schools v. Michigan, 741 F.2d 840, 846- 847
(6th Cir. 1984) (similar).

Id. at 618. Of those five cases, two involved questions of waiver

of immunity only as to federal-law claims,11 two involved waivers

only as to state-law claims,12 and one involved waivers as to both

federal and state-law claims.13

Finally, in cases subsequent to Lapides, the preponderant view

11
See McLaughlin, 215 F.3d 1168; Estate of Porter, 36 F.3d
684.
12
See Gwinn Area Community Schools, 741 F.2d 840; Newfield
House, 651 F.2d 32.
13
See Silver, 804 F.2d 1211.
21
of the federal courts of appeals appears to be that Lapides’s

interpretation of the voluntary invocation principle and its

waiver-by-removal rule are fully applicable to suits based on

federal-law claims.

Two federal courts of appeals squarely addressed the issue and

decided that a state waives its immunity from suit based on a

federal-law claim by removing the case from state to federal court.

See Embury v. King, 361 F.3d 562, 564 (9th Cir. 2004) (“We conclude

that the rule in Lapides applies to federal claims as well as to

state claims.... Nothing in the reasoning of Lapides supports

limiting the waiver to the claims asserted in the original

complaint, or to state law claims only.”); Estes v. Wyoming Dept.

Of Transp., 302 F.3d 1200, 1206 (10th Cir. 2002) (explaining that

by removing an ADA claim to federal court the state waived its

sovereign immunity even if it removed the case solely “to challenge

the jurisdiction of the federal forum.”).

Other federal appellate courts demonstrated the same view in

their discussions of Lapides and the voluntary invocation

principle.14 See, e.g., Skelton v. Henry, 390 F.3d 614, 618 (8th

14
Contrary to Texas’ argument, Watters v. Washington
Metropolitan Area Transit Authority, 295 F.3d 36 (D.C. Cir. 2002)
is not apposite to the case. It involves whether an interstate
compact contained a “clear statement” waiving state sovereign
immunity from suits on attorneys’ liens through a general “sue or
be sued” clause in its charter. The court’s remarks about waiver
22
Cir. 2004) (explaining, in the context of a federal claim, that

“waiver in litigation prevents states from selectively invoking

immunity to achieve litigation advantages” and the court therefore

should focus on the state’s “action in litigation ... [rather than]

on the intention of the state to waive immunity”); Union Electric

Company v. Missouri Dept. of Conservation, 366 F.3d 655, 659 (8th

Cir. 2004) (explaining, when faced with a federal claim, that the

“general rule regarding waiver” is that “when a state voluntarily

invokes federal jurisdiction...[it] cannot escape the result of its

own voluntary act by invoking the prohibitions of the Eleventh

Amendment”); New Hampshire v. Ramsey, 366 F.3d 1, 16-17 (1st Cir.

2004)(analyzing a federal claim and describing the Supreme Court’s

“core concern” in Lapides as being that “a state cannot selectively

invoke its Eleventh Amendment immunity to gain litigation

advantage”); In re: Charter Oak Associates, 361 F.3d 760, 769 (2d

Cir. 2004) (explaining, in a bankruptcy case, that the “waiver-by-

litigation doctrine” is driven by “fairness and consistency

concerns” that override a “State’s actual preference or desire”);

Ku v. State of Tennessee, 322 F.3d 431, 431-35 (6th Cir. 2003)

(explaining, when faced with a federal claim, that “removal is a

form of voluntary invocation of a federal courts’ jurisdiction

by removal were not relevant to its decision. Id. at 42 n. 13.
23
sufficient to waive the State’s ... objection to litigation of a

matter ... in a federal forum”); Rhode Island Department of

Environmental Management v. United States, 304 F.3d 31, 50, 50 n.

7 (1st Cir. 2002)15 (describing “waiver occasioned by the state’s

litigating conduct” as a “well established” principle in the

Circuit, and citing, inter alia, Newfield House, 651 F.2d 32, 36 n.

2 (finding waiver by removal)). Because of their reliance on

Lapides’s language and principles, we infer that in a proper case

these courts would apply the voluntary invocation principle as

interpreted by Lapides and hold that a state waives immunity from

private suits based on federal law claims by removing the case to

federal court.

In two state-law claim cases, a situation identical to

Lapides’s was presented; that is, the removed suits involved state-

law claims in respect to which the state had waived immunity in its

15
Contrary to Texas’s argument, Rhode Island Department of
Environmental Management (“RIDEM”), 304 F.3d 31, supports the
conclusion that the First Circuit will apply waiver by removal to
federal-law claims when it is appropriate. RIDEM, a state’s arm,
did not remove or voluntarily invoke federal court jurisdiction.
RIDEM was forced to seek injunctive relief from federal
administrative ALJ’s denial of its sovereign immunity claim. Id.
at 50. Second, a state or other alternate forum was not available
to RIDEM. Id. Finally, RIDEM’s opponent forfeited its waiver
argument by failing to raise it in district court. Id.

24
own court. Omosegbon v. Wells, 335 F.3d 668 (7th Cir. 2003); Bank

of Lake Tahoe v. Bank of America, 318 F.3d 914 (9th Cir. 2003).

Predictably, in accord with Lapides, those courts concluded that

the states waived immunity from suit when they removed the cases to

federal court. Significantly, however, neither court indicated

that it would reach a different result if the state had not waived

immunity in state courts or if the case had also involved federal-

law claims.

One federal court of appeals, Stewart v. North Carolina, 393

F.3d 484 (4th Cir. 2005), considered the removal of a state-law

claim in a situation that did not fit the Lapides pattern.16 North

Carolina had not waived immunity from suit on the claim in its own

courts. The Fourth Circuit found it improper to rely “exclusively”

on Lapides because the Court in Lapides reserved judgment as to

whether removal constituted waiver outside its exact situation.

Id. at 490. “Nevertheless,” the Fourth Circuit stated, “the

principles animating Lapides shed light on the issue we resolve

today.” Id.

Accordingly, the court in Stewart recognized the general

voluntary invocation principle established in Gardner, Gunter, and

16
Initially, the plaintiffs asserted a federal claim. On
appeal, however, appellants challenged the district court decision
only with respect to state-law tort claims. Stewart, 393 F.3d at
487.
25
Clark, and proceeded to explain why Lapides fell under the

principle but Stewart did not. In essence, the court found that

Georgia’s conduct in Lapides fell under the general rule requiring

waiver because Georgia sought to achieve an unfair tactical

advantage by regaining through removal the immunity it had

abandoned previously; whereas, North Carolina in Stewart merely

sought to “employ removal in the same manner as any other defendant

facing federal claims.” Id.

Although Stewart does not bind us or directly bear on removal

of federal law claims, we conclude that it is not persuasive

because its rationale misconstrues important principles animating

Lapides. First, a state is not “like any other defendant” as

Stewart maintains. A state possesses sovereign immunity that can

be used “to achieve unfair tactical advantages, if not in this

case, in others.” Lapides, 535 U.S. at 614. Stewart thus

misunderstands that the voluntary invocation principle as explained

by Lapides rests on a concern for preventing the potential for

unfair tactics, not just upon the need to sanction the actual

achievement of an unfair tactical advantage. Permitting states to

“follow their litigation interests by freely asserting both claims

[i.e., both invoking federal jurisdiction and claiming immunity] in

the same case could generate seriously unfair results.” Id. at

619. Second, the Supreme Court in Lapides envisions the voluntary
26
invocation principle and waiver-by-removal rule as applying to all

sovereigns regardless of their motives. “A benign motive ...

cannot make the critical difference.... Motives are difficult to

evaluate, while jurisdictional rules should be clear.” Id. at 621.

And finally, the waiver by litigation conduct principles are based

on 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 620.

In other words, the voluntary invocation principle applies

generally in all cases for the sake of consistency, in order to

prevent and ward off all actual and potential unfairness, whether

egregious or seemingly innocuous. Thus, it is a mistake to read

the general principle or the waiver-by-removal rule as focused only

on specific or comparative abuses such as attempting to “regain” an

“abandoned” immunity. North Carolina in Stewart, and Texas in the

present case, acted inconsistently by both invoking federal

jurisdiction and claiming immunity in the same case.17 Whether

Texas’s conduct, in removing this case to federal court from the

17
Lapides, 535 U.S. at 619 (“It would seem anomalous or
inconsistent for a State both (1) to invoke federal jurisdiction,
thereby contending that the ‘Judicial power of the United States’
extends to the case at hand, and (2) to claim Eleventh Amendment
immunity, thereby denying that the ‘Judicial power of the United
States’ extends to the case at hand.”).
27
state appellate court to “regain” an immunity that its own courts

had found unwarranted, is more or less unfair than Georgia’s

removal and reclaiming of its immunity in Lapides is not relevant.

The voluntary invocation principle and the waiver-by-removal rule

as explained by Lapides evolved not merely to quantify and compare

actual unfair advantages but to eliminate the potential of

unfairness by the enforcement of clear jurisdictional rules having

genuine preventive effect.18

For all of these reasons, we are not persuaded by Texas’s

argument that Lapides must be read as limiting the ambit of the

voluntary invocation principle to cases involving state-law claims

with respect to which the state has waived immunity in its own

courts. Of course, the Court in Lapides prudently did not address

issues beyond this compass. But, as the Fourth Circuit correctly

recognized in Stewart, we cannot shut our eyes when “the principles

animating Lapides shed light on the issue we resolve today.” 393

F.3d at 489. We conclude that the principles of voluntary

invocation and waiver by removal as explained in Lapides and as

facilitated by its overruling of Ford apply to the present case.

2.

18
535 U.S. at 619 (“[A] Constitution that permitted States to
follow their litigation interests by freely asserting both claims
in the same case could generate seriously unfair results.”).
28
 Texas’s second argument is based on a novel theory of the

structure of state sovereign immunity. In essence, Texas’s theory

is that a state has two kinds of immunity against private suit that

it may assert: (1) its basic or inherent immunity from private suit

which it may assert in any court; and (2) its Eleventh Amendment

forum immunity from suit in federal court. As the names imply,

Texas apparently considers the first immunity to be inherent in the

state’s sovereignty, and the second immunity to have been confirmed

by the Eleventh Amendment.19

Further, Texas contends, after a state waives its Eleventh

Amendment forum immunity by removing a case to federal court, the

state may still assert its basic or inherent immunity in the same

case to have the plaintiffs’ suit dismissed, if the state has not

waived its immunity from suit for such a claim in state court.

Therefore, under its theory, Texas contends that if a state, which

has not waived its immunity as to a claim in state court, removes

a suit on such a claim to federal court, even though the state

thereby waived its Eleventh Amendment forum immunity by the

removal, that state may still assert its inherent or basic immunity

19
Texas uses the term “confirm” instead of “create.” No
matter how Texas contends the Eleventh Amendment is responsible for
bringing about the second separate “Eleventh Amendment forum
immunity,” however, the effect is the same: Texas’s argument is
based on a state having two separate immunities from suit, one
inherent, and one attributable to the Eleventh Amendment.
29
from suit and have the plaintiffs’ suit dismissed.

Texas claims that its theory of state immunity structure is

supported by two Supreme Court cases, Alden v. Maine, 527 U.S. 706

(1999), and Pennhurst State School v. Halderman, 465 U.S. 89

(1984). But Texas does not explain how or why; Texas merely states

its conclusions about the structure of sovereign immunity and

points to the pages in the two opinions that it claims as authority

and gives no further explanation. Thus, there are large gaps in

Texas’s analysis. For example, there is no explanation of how

Texas’s theory of duplicative immunities from suit can be derived

from Alden and Pennhurst; and no effort is made to explain

historically or otherwise how the Eleventh Amendment could have

augmented the sovereignty of the states that antedated the

Constitution and remained intact after ratification. We are left

to bridge these gaps on our own, and we conclude that it cannot be

done. There is no support for Texas’s theory on the pages it cites

or anywhere in the Supreme Court’s opinions.

Moreover, there is an irreconcilable conflict between Texas’s

theory and the Supreme Court’s rationale in Alden. Texas’s theory

is based on the idea that a state has two different immunities from

suit, an inherent immunity assertable in any court, and an Eleventh

Amendment immunity assertable in federal court. To the contrary,

Alden’s rationale is that the states’ sovereign immunity from suit
30
by individuals is the same immunity they enjoyed prior to the

Constitution and that the states’ immunity from suit was not

changed, limited or added to by the Eleventh Amendment.20 527 U.S.

at 712-14. The Court in Alden held that the States retain sovereign

immunity from private suit in their own courts——an immunity beyond

the congressional power to abrogate by Article I

legislation——because it was preserved intact by the Constitution

since its ratification, and was not created or limited by the

Eleventh Amendment. Id. Thus, in Alden, the Supreme Court rejected

the notion that a separate form of sovereign immunity from suit was

created for the states by the Eleventh Amendment.21 Id. at 728.

Indeed, the Court maintained that the term “Eleventh Amendment

20
The Court maintained that:
[T]he States’ immunity from suit is a fundamental aspect
of the sovereignty which the States enjoyed before the
ratification of the Constitution, and which they retain
today (either literally or by virtue of their admission
into the Union upon an equal footing with the other
States) except as altered by the plan of the Convention
or certain constitutional Amendments.
Id. at 713.

21
The Court explained that “sovereign immunity derives not
from the Eleventh Amendment but from the structure of the original
Constitution itself.” Id. at 728 (citing Idaho v. Coeur d’Alene
Tribe of Idaho, 521 U.S. 261, 267-268 (1997) (acknowledging “the
broader concept of immunity, implicit in the Constitution, which we
have regarded the Eleventh Amendment as [only] evidencing and
exemplifying”); Seminole Tribe [of Florida v. Florida, 517 U.S.
44,] 55-56; Pennhurst, 465 U.S. at 98-99; Ex parte New York, 256
U.S. 490, 497 (1921)).
31
immunity” is a misnomer because the states have no other sovereign

immunity from suit than that which they brought intact into the

union. Id. at 713.

In sum, the Court made clear in Alden that there is no such

thing as an Eleventh Amendment immunity separate and apart from

state sovereign immunity, that a state’s sovereign immunity from

suit is now and always has been inherent within its sovereignty, and

that the Eleventh Amendment did not create any new immunity but

merely overruled the Supreme Court’s erroneous decision in Chisolm

v. Georgia. Id. at 713-727. Consequently, Texas’s argument and

theory, which depend totally upon there being an “Eleventh Amendment

forum immunity” separate from each state’s sovereign immunity from

suit, find no basis in Alden or the current view of the Supreme

Court’s majority.

Texas also represents that Pennhurst validates its conception

and analysis of sovereign immunity by “requiring [the] State’s

express consent to suit in federal forum regarding claims for which

underlying sovereign immunity is waived in state court.” Tex. Br.

at 11. This description of Pennhurst (in Texas’s words, not the

Court’s) is so incomplete, inaccurate, and ambiguous that it

obscures and misconstrues the issue decided in that case and

attempts to leave the false impression that Pennhurst’s ruling on

a “State’s express consent to suit” should apply by analogy to
32
Lapides and this case.

Accurately presented, however, Pennhurst differs from Lapides

and this case so significantly that its interjection here is plainly

inappropriate and somewhat questionable. Contrary to Texas’s

representation, Pennhurst does not say anything about “claims for

which underlying sovereign immunity is waived in state court.” In

Pennhurst plaintiffs sued Pennsylvania state and county officials

in federal court for Eighth Amendment violations because of

conditions of a residence and school for retarded persons. 465

U.S. at 92-93. Pennhurst was not removed to federal court like

Lapides and this case, for it was never in state court. Most

important, Pennhurst did not present an issue of waiver of immunity

by removal as Lapides and this case do. The issue in Pennhurst was

whether a state statute amounted to a “clear declaration” that

Pennsylvania intended to submit itself to federal court

jurisdiction. Id. at 99 n. 9. The Court held that the statute did

not submit the state to federal jurisdiction because it did not

specifically and expressly say that Pennsylvania consented to suit

in federal court. Id. at 99. Lapides and the present case are

quite different. They hold that a state’s removal of a case into

federal court, without more, clearly demonstrates the state’s

consent to invoke and submit to federal jurisdiction so that the

general legal principle of voluntary invocation requiring waiver of
33
immunity ought to apply. Pennhurst is devoid of any feature that

is analogous to this case or that would lend any support to Texas’s

theory of sovereign immunity structure. Hence, it is inapposite,

irrelevant and does not support Texas’s arguments in any respect.

For these reasons, neither Alden nor Pennhurst or any of the

Supreme Court’s authoritative interpretations of the Constitution

provide any basis of support for Texas’s constitutional theory or

arguments. Instead, Texas’s arguments are in conflict with the

Supreme Court’s decisions. Accordingly, we conclude that Texas has

failed to set forth any valid reason that we should not apply the

principles explained by Lapides to the present case.

B. The Constitution Does Not Create State Sovereign Immunity or
Prescribe its Scope; The Law of Each State Determines the Nature of
its Immunities; Thus, it is Possible that a State May Retain a
Separate Immunity from Liability after Waiver of its Immunity from
Suit.

Although we find no support for Texas’s theory that state

sovereign immunity is composed of two separate immunities from suit,

further analysis convinces us that the Supreme Court’s cases support

a different interpretation and conclusion, viz., that a sovereign

enjoys two kinds of immunity that it may choose to waive or retain

separately——immunity from suit and immunity from liability. This

concept is different from Texas’s theory in several important
34
respects: (1) it is consistent with the Court’s view in Alden that

the Constitution protects but does not create the states’ sovereign

immunity, and that the Eleventh Amendment did not create, change or

add to that immunity; (2) it is consistent with Lapides in that it

would not allow a state to assert its immunity from suit twice in

the same case; and (3) consistently with the Court’s cases, it would

allow a state, if its law authorizes, to waive its immunity from

suit without waiving its immunity from liability.

Texas’s theory that the Constitution prescribes a specific

rigid structure for each state’s sovereign immunity conflicts with

the first principles of our federation. Because each state was

considered to have retained the individual sovereignty it enjoyed

before the union, the structure of the Constitution allows for

variation between the nature and structure of each state’s

immunities from suit and liability. This is consistent with the

Supreme Court’s long held view that sovereign immunity is a

privilege that each state may waive at its pleasure. See College

Savings, 527 U.S. at 675. As a result, the patterns of sovereign

immunities maintained by the states vary considerably.22

22
See, e.g., Matthew J. Whitten, Fiction Becomes Reality: When
will Texas Abrogate the “Catch-22" of Sovereign Immunity When it
Comes to Contracts? 37 TEX. TECH L. R. 243, 247, 260 (2004)
(explaining that Arizona has waived its sovereign immunity from
both suit and liability for contracts disputes, but Texas has
waived its immunity from liability but not its immunity from suit
35
 Rather than require that the states adhere to a prescribed

plan, the Court’s decisions envision a Constitution that affords the

states discretion to waive or vary the nature and elements of their

sovereign immunity. Id. Consequently, courts must look to the law

of the particular state in determining whether it has established

a separate immunity against liability for purposes of waiver.23

Unlike a state’s waiver of its immunity from suit in federal court,

the state’s waiver or retention of a separate immunity from

liability is not a matter in which there is an overriding federal

interest justifying the application of a federal rule.24 For these

reasons, we conclude that the Constitution permits a state whose law

provides that it possesses an immunity from liability separate from

in such matters). As another example, the Eleventh Circuit has
explained that the Florida sovereign immunity provides immunity
only from liability and not suit. CSX Transp. Inc. v. Kissimme
Utility Authority, 153 F.3d. 1283, 1286 (11th Cir. 1998).
23
In general, “the substantive law to be applied by the
federal courts in any case is state law, except when the matter
before the court is governed by the United States Constitution, an
act of congress, a treaty, international law, the domestic law of
another country, or, in special circumstances, federal common law.”
19 Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE: JURISDICTION
§ 4501, at 2 (2d ed. 1996)(discussing the Federal Rules of Decision
Act, 28 U.S.C. § 1652 and constitutional considerations)); see
Siegel, Waivers of State Sovereign Immunity, 52 DUKE L.J. at 1224-
1225.
24
See Lapides, 535 U.S. at 622-623; Byrd v. Blue Ridge Rural
Electric Cooperative, Inc., 356 U.S. 525 (1958); 19 Charles Alan
Wright e.t. al., FEDERAL PRACTICE AND PROCEDURE § 4520 (2d ed. 1996).
36
its immunity from suit to show that its waiver of one does not

affect its enjoyment of the other.

The foregoing principles are reflected in the Supreme Court’s

frequent references to sovereign immunity as affording both immunity

from liability and immunity from private suits. The Court has often

indicated that the purpose of state sovereign immunity is to protect

the state from being held liable by its creditors as well as to

safeguard it from private suits filed without its consent.

In Lapides the Court stated that “suits for money damages

against the State [are] the heart of the Eleventh Amendment's

concern.” id. 620 More recently, the Court explained: “Sovereign

immunity does not merely constitute a defense to monetary liability

or even to all types of liability. Rather it provides an immunity

from suit.” Fed. Mar. Comm’n v. South Carolina State Ports

Authority, 535 U.S. 743, 766 (2002); see Puerto Rico Aqueduct and

Sewer Authority v. Metcalf & Eddy Inc., 506 U.S. 139, 145-46

(1993)(rejecting state’s argument that sovereign immunity is only

a defense to liability and explaining that it is also an immunity

from suit); Edelman v. Jordan, 415 U.S. 651, 662-64 (1974)

(describing state sovereign immunity as protecting states against

both “suits” and “liability”). Historically, the “[a]doption of the

[Eleventh] Amendment responded most immediately to the States’ fears

that ‘federal courts would force them to pay their Revolutionary War
37
debts, leading to their financial ruin.’” Hess v. Port Authority

Trans-Hudson Corp., 513 U.S. 30, 39, 39 n. 9 (1994) (quoting

Pennhurst, 465 U.S. at 151 (Stevens, J., dissenting); and citing

Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 276, n. 1

(1959); Missouri v. Fiske, 290 U.S. 18, 27 (1933)); see also Lake

Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S.

391, 401 (1979) (explaining that a goal of sovereign immunity is to

protect the state’s treasury).

Corroborating that sovereigns may provide for waiver of

immunity from liability separately from suit immunity, one federal

court of appeals has stated, in dictum, that “[c]ertainly, a state

may waive its immunity from substantive liability without waiving

its immunity from suit in a federal forum.” New Hampshire v.

Ramsey, 366 F.3d 1, 15 (1st Cir. 2004)(citing College Savings, 527

U.S. at 676; Atascadero, 473 U.S. at 241). Two other federal courts

of appeals have held that the federal government’s sovereign

immunity, unlike that of the states, is a defense to liability but

not an immunity from suit. See Alaska v. United States, 64 F.3d

1352 (9th Cir. 1995)(explaining, when comparing federal and state

sovereign immunity, that while state sovereign immunity entitles the

state to avoid litigation in a federal court, federal sovereign

immunity is only a defense to liability); Pullman Construction

Industries v. United States, 23 F.3d 1166 (7th Cir. 1994)(same); cf.
38
CSX Transp., 153 F.3d. at 1286 (explaining that sovereign immunity

under Florida law provides immunity only from liability and not

suit).

Concurrently, there is a growing body of impressive scholarly

thought favoring the view that the Supreme Court has implicitly

recognized that state sovereign immunity consists of two separate

and different kinds of immunity, immunity from suit and immunity

from liability.25 We come to substantially the same conclusion. The

commentators’ reading of the cases is reasonable and tends to be

persuasive. We conclude, however, that it is more appropriate to

say that the Court’s cases accommodate the view that the

Constitution guarantees a state’s prerogative, by its own law, to

treat its immunity from liability as separate from its immunity from

25
See Siegel, Waivers of State Sovereign Immunity, 52 DUKE L.
J. at 1234 (“[S]tate sovereign immunity has two independent
aspects: it is partly an immunity from suit in a particular forum
(federal court) and partly a substantive immunity from
liability.... [A state] may waive its forum immunity without
waiving its underlying immunity from liability. Moreover, removal
should be understood to waive only forum immunity.”); cf., Carlos
Manuel Vazquez, Sovereign Immunity, Due Process, and The Alden
Trilogy, 109 YALE L.J. 1927, 1930 (2000)(Arguing that in Alden and
College Savings the Supreme Court “rejected the ‘forum-allocation’
interpretation of the Eleventh Amendment, and implicitly adopted
what I have called the ‘immunity-from-liability’ interpretation,
under which the states are immune from being subjected to damage
liability to individuals.”)(citing Carlos Manuel Vazquez, What is
Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1700-08
(1997)(“describing the ‘forum-allocation’ and ‘immunity-from-
liability’ interpretations.”).
39
suit for purposes of waiver or relinquishment. For these reasons,

we conclude that the Constitution permits and protects a state’s

right to relinquish its immunity from suit while retaining its

immunity from liability, or vice versa, but that it does not require

a state to do so.26

In sum, under the principles of federal law we have discussed,

when Texas removed this case to federal court it voluntarily invoked

the jurisdiction of the federal courts and waived its immunity from

suit in federal court. See Lapides, 535 U.S. 613. Whether Texas

has retained a separate immunity from liability is an issue that

must be decided according to that state’s law.

C. Remaining Arguments

The only matter before us is plaintiffs’ appeal from the

district court’s ruling granting Texas’s 12(b)(1) motion to dismiss

for lack of subject matter jurisdiction based on Texas’s sovereign

immunity from suit. In the district court’s rulings complained of

on appeal, the court held that plaintiffs failed to establish

subject matter jurisdiction by showing that Texas’s sovereign

immunity from suit had been either waived or abrogated.

Specifically, the court ruled that (1) Texas had not waived its

26
See supra note 22.
40
immunity from suit by removing the case to federal court and (2)

Congress had not validly abrogated Texas’s immunity from suit by its

enactment of ADA Title II. We conclude, in the light of Lapides,

that Texas waived its immunity from suit in federal court when it

removed the case to federal court. Consequently, the district

court’s judgment, which was rendered prior to Lapides, is in error

in its conclusion that plaintiffs had not established subject matter

jurisdiction based on waiver by removal. Because Texas waived its

immunity from suit by removal of this case to federal court, we will

reverse and remand on this ground. Thus, we need not reach or

decide whether the district court erred in finding that Congress did

not validly abrogate Texas’s immunity from suit by ADA Title II.27

Furthermore, it is not necessary to address Texas’s arguments

in opposition to plaintiffs’ Ex parte Young suit. The purpose of

the doctrine of Ex parte Young is to allow plaintiffs asserting

27
Moreover, our holding in Neinast v. Texas, 217 F.3d 275 (5th
Cir. 2000), that the ADA regulation did not validly abrogate the
state’s Eleventh Amendment immunity from suit does not foreclose
the establishment of subject matter jurisdiction in accord with
Lapides in the present case based on Texas’s waiver of immunity by
removal. Because there was no removal in Neinast, and there was no
abrogation issue in Lapides, Neinast does not conflict with Lapides
or our holding in the present case.
Texas’s other arguments based on Neinast were not raised below
and are either (1) irrelevant because they pertain to the moot Ex
parte Young question or (2) improper premature attempts to present
Texas’s defenses on the merits of the case, viz., Texas’s Commerce
Clause challenge to the ADA; and its Chevron challenge to the
validity of the ADA regulation.
41
federal law claims to circumvent the state’s sovereign immunity from

suit by suing state officers instead. Home Telephone & Telegraph

Co. v. City of Los Angeles, 227 U.S. 278 (1913); Ex parte Young, 209

U.S. 123 (1908). Because Texas has waived its immunity from suit in

federal court in this case it is not necessary for the plaintiffs to

invoke the Ex parte Young doctrine in order to prosecute their

action against the defendants. Accordingly, there is no need for us

to decide whether the doctrine would have been appropriate if Texas

had not waived its immunity from suit.28

Thus, having decided the determinative issue of this

appeal——that the federal district court has subject matter

jurisdiction because Texas waived its immunity from suit by removal

of this case to federal court——we will not address Texas’s remaining

arguments, which pertain to its defenses on the merits of the case,

not raised below and prematurely presented here, viz., that the five

dollar fee does not violate the statute or the regulation; that the

regulation is invalid under Chevron; and that ADA Title II and the

regulation are not authorized by the Commerce Clause, as limited by

the Tenth Amendment. These matters may or may not contribute

28
See Pederson v. Louisiana State University, 213 F.3d 858,
875, n. 15 (5th Cir. 2000) (“Because we determine that LSU waived
its Eleventh Amendment sovereign immunity, we will not address the
two alternative arguments regarding abrogation of sovereign
immunity, and the doctrine of Ex Parte Young.”).
42
relevantly to Texas’s defenses on the merits of the case, but they

can have no bearing or effect on our determination that the federal

district court has subject matter jurisdiction over this case.

For these reasons, the judgment of the district court is

reversed, and the case is remanded for further proceedings

consistent with this opinion. We do not determine and the state is

not precluded from pursuing a claim that it is immune from liability

under principles of Texas sovereign immunity law, separate and apart

from its waiver of its immunity from suit in federal court in this

case.

IT IS SO ORDERED.

43