WISCONSIN DEPARTMENT OF CORRECTIONS v. SCHACHT

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Argument of Richard Briles Moriarty

Chief Justice Rehnquist: We'll hear argument next in Number 97-461, Wisconsin Department of Corrections v. Schacht.

Mr. Moriarty.

Mr. Moriarty: Mr. Chief Justice, and may it please the Court:

In this action substantial Federal questions were presented by the individual capacity claims respondent chose to make against Warden Catherine Farrey and the other Wisconsin employees who are defendants in this action.

He sued them personally under a Federal statute, section 1983, alleging violations of the Federal constitution.

Substantial Federal questions were presented.

Had this action proceeded in district court on an initial complaint, the district court would unquestionably have had original jurisdiction because substantial Federal questions were presented.

The potential, had this commenced in district court, the potential that those claims could have been barred by a sovereign immunity defense or any of those claims could have been barred by a sovereign immunity defense would not have affected original jurisdiction of the court.

This case instead was removed.

It arrived by removal rather than an initial complaint.

The analysis--

Unknown Speaker: It was removed, in effect, by the State.

Mr. Moriarty: --It was removed by the State and the employees of the State sued both personally and officially.

Unknown Speaker: Right.

Now, if you're right that the official capacity claims and the claims against the State involve defendants who aren't persons under section 1983, why didn't the State just waive its Eleventh Amendment immunity?

I mean, you're perfectly safe.

Claims weren't going to go forward under 1983.

Did the State consider waiving the Eleventh Amendment immunity?

Mr. Moriarty: Your Honor, there are--

Unknown Speaker: I mean, if you're right, I just don't see why the State didn't do it.

I don't... it doesn't make sense to me.

Mr. Moriarty: --We return back to the decision on whether to remove.

The claims as to which sovereign immunity applied were really irrelevant because, whether this case was prosecuted in Federal court or State court, they would have been barred.

Unknown Speaker: Well, would you answer my question?

Mr. Moriarty: I'm--

Unknown Speaker: Did the State waive its immunity?

Mr. Moriarty: --It did not waive its immunity.

Unknown Speaker: But your position is those claims against... the official capacity claims and the claims against the State cannot proceed under 1983 because the State isn't a person.

Mr. Moriarty: That's correct.

Unknown Speaker: Okay.

So why not waive it?

Why not end this thing?

I just... it's the strangest posture.

Mr. Moriarty: We are now looking back, Your Honor, at... from the perspective of the Seventh Circuit decision at the initial removal decision.

At the time of removal, the claims made against the State were clearly barred either under Will... in both State and Federal court either under Will, because it wasn't within the definition of a person, or based on Eleventh Amendment immunity, or sovereign immunity in State court.

The real crux of the case was the individual capacity claims made against the individual.

Unknown Speaker: And as to that you wanted it tried in Federal court, not State court.

Mr. Moriarty: That's--

Unknown Speaker: So why not waive the Eleventh Amendment immunity?

Mr. Moriarty: --Because that's not a price of admission to the Federal court, Your Honor.

Unknown Speaker: Well, maybe it should be.

If we could start all over, it would seem to me to make some sense that if the State removes, that is a waiver of the Eleventh Amendment.

It seems rather odd that you want to go to a court and then say I don't want to be in the court.

Mr. Moriarty: By joining with the officials sued personally in removing, which is required by the removal statutes, the State is not saying we want to be in... we don't want to be in court.

Obviously, they're in court.

The question is--

Unknown Speaker: Well, you have to consent, as you indicate.

You have to consent to the removal.

You had the option to keep it in State court, but you consented to be removed to a Federal court.

He removed it.

Mr. Moriarty: --Certainly it was a litigation decision by all of the defendants joining together, but the sovereign... the Eleventh Amendment is a defense.

It is not part of the initial threshold jurisdictional question.

Is there a substantial Federal question?

Of course there is.

Unknown Speaker: Mr. Moriarty, I remember asking the counsel in the Chicago case that we heard, one thinks of Federal courts as being a place where you can get away from local prejudice and that sort of thing, but one would think that the State of Wisconsin would be perfectly happy to be in the State court.

I gather that isn't always the case.

Mr. Moriarty: It isn't always the case in individual cases.

For example, we have strictly Federal constitutional claims here.

A body of Federal constitutional law that has developed, particularly in the Seventh Circuit, where there's binding precedent on the district courts.

There would not be that binding precedent on the State courts.

If, as a litigator--

Unknown Speaker: What difference does it make, so long as you're going to stand on the Eleventh Amendment?

All this knowledge that the Federal courts have about Federal law as far as the State is concerned is irrelevant, and as to that, the last piece of this... I mean, you say we have a right to remand because the Eleventh Amendment is in the nature of a defense.

It's not like the existence of Federal question, jurisdiction or diversity.

The end of the road as far as the State is concerned, as distinguished from the individuals, you... do you concede that the Federal court entertaining your Eleventh Amendment plea should remand rather than dismiss?

Mr. Moriarty: --Answering the second question first, I do not concede that.

The Federal court had Federal question jurisdiction.

It had it... it would have had it had an initial complaint been filed.

It had it on removal.

It is inappropriate for the court to remand claims that are properly before it and that were properly dismissed by the district court through that... through the full litigation that occurred.

Unknown Speaker: But then I don't understand, because what you're saying by your Eleventh Amendment plea, the Eleventh Amendment not applying in the State court whatever State immunity applies, that you cannot be sued any place, that you are just totally immune, because you do this, you go over to the Federal court and say, Federal court, you can't touch it because of the Eleventh Amendment and dismiss the case, and then no one can touch it.

Mr. Moriarty: Right.

The... when the Eleventh Amendment applies, generally it's dismissal without prejudice, such that if it--

Unknown Speaker: But then you do this over and over again.

It's without prejudice.

Yes.

Then you begin again in the State court, and then you remove it, and you could do that over and over again.

Mr. Moriarty: --We had here, however, claims under section 1983 that were barred in any court regardless.

The State court, the Federal court would have barred--

Unknown Speaker: But that's a different issue.

You don't want... you're saying, we're the State, you can't touch us, so we don't get to the question of whether you're a person under 1983, whether you're barred.

That's... I could understand your argument better if you said, what we were really trying to do was to get those officers, with their individual capacity complaints, over into the Federal court.

Of course we're not going to say we can manipulate the process by immunizing the State from having any court--

Mr. Moriarty: --That's precisely what we were trying to do, Your Honor.

The claims as to the State, the official capacity claims and the claims against the State agency, were irrelevant to the removal decision.

The point was, we were going to have litigation on the individual capacity claims.

Those are the ones that the district court spent time on.

The district court spent a paragraph on the official capacity claims.

So did we in our briefs, essentially.

Unknown Speaker: --So what... I'm not certain.

Please correct me if I--

Mr. Moriarty: Yes.

Unknown Speaker: --don't understand the posture of this, but I thought that these... that the plaintiff has sued the State, i.e. the official capacity ones, and also a number of individuals, and then the whole case is removed to Federal court.

Mr. Moriarty: Correct.

Unknown Speaker: And everybody wins, the defendants won.

Mr. Moriarty: Correct.

Unknown Speaker: All right.

Now, the Seventh Circuit sent the whole case back to the State court, and that was the problem.

Why should it send back the part against the individuals?

Isn't that what was bothering everybody?

I mean, the part about the State, I would think of course they should send back that claim.

I mean, that claim, you've asserted the Eleventh Amendment, has no business in Federal court, it's pendant to the others, or it's one claim out of many, and you go back to State court and try it out in the State court.

Am I right?

Mr. Moriarty: It could be tried, certainly, in the State court.

However, Your Honor--

Unknown Speaker: I'm trying to find out what the issue is here.

I mean, is anyone saying... I thought there is a pretty clear mistake.

The clear mistake was in sending all these other claims, the ones not involving the State, back to the State court.

Am I right about that?

Mr. Moriarty: --I don't believe you're right.

Unknown Speaker: Good.

All right.

Then explain what I'm missing.

Mr. Moriarty: The issue that I see is the broader issue of what kind of a system are we going to have that is simple and effective for removal, that is simple and effective for determining jurisdictional questions, that is simple and effective for determining Eleventh Amendment immunity.

What happens in this individual case is actually irrelevant--

Unknown Speaker: Maybe there's no way of straightening me out.

I'm trying to figure out what happened in the individual case.

Mr. Moriarty: --Fine.

Unknown Speaker: I thought there are actions against the State and there are actions against people that aren't the State, and I thought the Seventh Circuit sent the whole kit and caboodle back to State court.

Mr. Moriarty: It did.

Unknown Speaker: Now, that's wrong, isn't it?

Mr. Moriarty: It was wrong in doing that.

Unknown Speaker: All right.

But is there anything wrong about their sending back the action against the State to State court?

Mr. Moriarty: As a matter of jurisdiction, yes.

Unknown Speaker: Why?

Mr. Moriarty: As a matter of discretion, it may not have been.

Unknown Speaker: Ah.

Mr. Moriarty: They turned on jurisdiction and said, there was not removal jurisdiction at the threshold of this case.

Unknown Speaker: Right, so they should have used a different reason.

The normal way to do it would be to say, well, we decide all the other claims, but the one about the State itself on official capacity, that's barred by the Eleventh Amendment, so we send that one back like a pendant claim.

That's your view of how it should have worked.

Mr. Moriarty: Yes.

If, in fact, there is authority to do that--

Unknown Speaker: So you're going to end up--

Mr. Moriarty: --as a matter of discretion.

Unknown Speaker: --Yes, and so you're going to end up in the State court anyway.

Mr. Moriarty: We might.

The result might be the same, but as a matter of discretion, leaving intact the vital differences between jurisdictional analysis, discretionary analysis, Eleventh Amendment immunity analysis.

Unknown Speaker: Then you're changing the answer to the question.

Originally you said, no, no, we're saying Federal court.

The only thing you can do with the State is dismiss it, not remand, and now I think in response to Justice Breyer's question, you're kind of saying, well, maybe not.

Maybe there's discretion to remand.

But you have no discretion unless you have authority in the first place.

Mr. Moriarty: That's correct, Justice Ginsburg, and it is precisely the point, and I thank you for tightening that.

On the issue of jurisdiction, do we... did the district court have jurisdiction?

Must the appellate court remand one or more of these claims as a matter of jurisdiction?

Must they?

No.

Unknown Speaker: Well, may I interrupt you on that point?

Mr. Moriarty: Yes.

Unknown Speaker: It may be that there are two different jurisdictional issues involved here.

1441 talks, I think quite plainly, about constitutional subject matter jurisdiction.

That's what you're assuming and I agree with you.

But 1447(c) talks simply about subject matter jurisdiction, not original jurisdiction but subject matter jurisdiction, and it may well be that, given the way this Court has construed the Eleventh Amendment, that there was Federal question jurisdiction for 1441 purposes so that the case was properly removed, but once the Eleventh Amendment defense was raised, the court no longer had subject matter jurisdiction within the meaning of 1447(c), and therefore was obligated to remand for that purpose.

Would that be a possibility?

Mr. Moriarty: I don't believe it would fall within the 1447 issue because I do believe subject matter jurisdiction in 1447(c) goes to subject matter jurisdiction over the action, not over a particular claim.

Here, unquestionably throughout the case--

Unknown Speaker: Well, is the... but isn't that a matter of semantics?

I mean, it's an action insofar as it's against the State, and insofar as it's against State officers in official capacity.

That's the case against them, and so far as the case against them is concerned, isn't subject matter jurisdiction lost once the Eleventh Amendment defense is raised?

Mr. Moriarty: --I don't believe so, Your Honor, because claims within an action are not parceled out in that fashion.

I believe the--

Unknown Speaker: Well, you just agreed... I thought you just agreed with Justice Breyer that they could be parceled out in that fashion, because we can split the claims against the individuals, the individual responsibility claims from the Government claims, so you're parceling them out.

Mr. Moriarty: --When we get to the discretionary issue, far from the jurisdictional issue.

In other words, when we're looking at jurisdiction to begin with--

Unknown Speaker: Why can it be parceled when the court is acting on the discretionary power but not be parceled when the court is considering whether it has a mandate?

Mr. Moriarty: --Based on this Court's decisions that, for example, in City of Chicago the court had original... had Federal question jurisdiction over the entire action, over all the claims in the action because of the Federal claims.

Unknown Speaker: But surely it's not your position, Mr. Moriarty, that the Eleventh Amendment is a bar to the claims against the individual defendants.

Mr. Moriarty: Certainly not.

Unknown Speaker: And those, then, would be litigated in the district court under a correct ruling?

Mr. Moriarty: The... those claims... the district court had Federal question jurisdiction on removal.

Therefore, it could dispose of the Eleventh Amendment barred claims on... it could dispose... the claims against the State, either based on the definition in 1983 or based on the Eleventh Amendment immunity.

Unknown Speaker: But now, let's put the... the Eleventh Amendment immunity that you pleaded in your view requires dismissal of the action as against the State and the official capacity defendant.

Mr. Moriarty: Correct.

Unknown Speaker: But it does not require dismissal as to the individual defendants.

Mr. Moriarty: Correct.

Unknown Speaker: So the district court could properly adjudicate those claims.

Mr. Moriarty: The... certainly the individual capacity claims, yes.

The--

Unknown Speaker: May I ask this: under Wisconsin law, can the Attorney General, by his or her own determination, waive the Eleventh Amendment in Federal court?

Mr. Moriarty: --No.

That's been... it's in the statutes and it's also been litigated.

The Attorney General does not have authority to waive Eleventh... sovereign immunity.

Under the Wisconsin constitution only the legislature has the authority to--

Unknown Speaker: So only the legislature can waive the Eleventh Amendment by special statute?

Mr. Moriarty: --Right, either waive the Eleventh Amendment or sovereign immunity, correct.

Unknown Speaker: Who do you--

--May I ask why 1441(c) is relevant at all?

I mean, it seems to me 1441(c) didn't envision the reason for non-Federal jurisdiction, which we have here?

Mr. Moriarty: I'm sorry if I misspoke.

I meant 1447(c).

I think that's what we're referring to.

Unknown Speaker: Ah, okay.

No, I thought there was some discussion about remanding the portions of the cause of action which do not consist of Federal claims to the State court.

Mr. Moriarty: Correct.

1441(c) I did not see as relevant either and did not put in my brief.

Pages 5 and 6 cite the portions of 1441(a) and (b) and 1447(c), which I believe to be relevant.

Unknown Speaker: Well, isn't (c) relevant to the extent that it establishes the fact that the district judge could have sent back... could have remanded the claims against the State, the official capacity claims?

Mr. Moriarty: I believe that the 1441(c) addresses an entirely different situation, and involves when there's a separable controversy, when there's not, that type of thing, whereas in this case it's clear we have one single controversy, the firing of the respondent.

Unknown Speaker: Yes, but we have a case, the Coville case which says that the statute does not preclude a remand that isn't covered by the precise... that these... the statute covers must remands.

It doesn't necessarily cover may remands.

Mr. Moriarty: That's the central point I'm trying to make, that the... this decision by the Seventh Circuit was wrong because it looked at what must occur as a matter of threshold jurisdiction, mixed together the discretionary issues, mixed together the Eleventh Amendment immunity jurisdictional issues, and--

Unknown Speaker: But may I just clarify one thing in your position?

Do you agree the district court could have remanded and should have remanded the claims against the State that are barred by the Eleventh Amendment in Federal court?

Mr. Moriarty: --I do not believe they should have remanded it.

I think what they should have done, if they had jurisdictional questions, which they surely did, looked at the issue, looked immediately at the 1983 definition and said, we don't have anything here against the State, and moved to the merits of the appeal.

If they wanted to look at Eleventh Amendment immunity, then they could have said, well, that's fine, but that comes later in the jurisdictional analysis.

Unknown Speaker: Who do you represent?

Mr. Moriarty: We represent the Wisconsin agency, the officials in their official capacity, but the primary motivation on removal was the officials in their individual capacity.

Unknown Speaker: All right.

You represent them, too.

Mr. Moriarty: Absolutely.

Unknown Speaker: Fine.

Then I took from your cert position your basic point... maybe you're being too subtle about it here, but I took your basic point to be from the cert petition that at least the Seventh Amendment was mistaken in ordering the personal claims sent back, that they shouldn't... even if they're right about having the Eleventh Amendment claims sent back, that's just one claim, or one set of claims--

Mr. Moriarty: Right.

Unknown Speaker: --in a multiclaim suit, and they can't say you have to send them all back.

Wasn't that your basic claim before you even get into this?

Mr. Moriarty: That is absolutely fundamental ground floor--

Unknown Speaker: Okay.

Now, once you'd say we win on that we have a separate argument, and the separate argument is, they shouldn't have even sent back the State claim, and the reason for that is, if they'd looked at it for 3 minutes they would have seen that the Eleventh Amendment part is irrelevant, because you can't assert the Eleventh Amendment in defense to a claim that doesn't exist, and the claim doesn't exist because of your interpretation of 1983.

Now, is that your argument?

Mr. Moriarty: --With this variation.

Unknown Speaker: Yes.

Mr. Moriarty: Eleventh Amendment can bar those claims.

It's simply unnecessary.

Unknown Speaker: It's unnecessary.

There's an alternative ground.

Mr. Moriarty: Exactly.

Unknown Speaker: All right.

Mr. Moriarty: And the point is--

Unknown Speaker: But your first argument is the main argument, and your second... I mean, and don't tell me I'm right if I'm not.

I want to be certain I'm understanding this.

Is that... have I now stated what your argument is, basically?

Mr. Moriarty: --I--

Unknown Speaker: The first part is, they shouldn't have sent the whole thing back.

Mr. Moriarty: --Yes.

Unknown Speaker: The second part is, if we win on that one, they shouldn't have even sent the State part back.

Mr. Moriarty: Correct.

Unknown Speaker: Okay.

Well, but now, if you have two grounds, one is the Eleventh Amendment and another is a ground of statutory construction, one is, we've said, quasi-jurisdictional and the other is simply an argument on the law.

I would think that the Eleventh Amendment argument would prevail over the statutory construction argument.

Mr. Moriarty: That would be the case except for this Court's decisions in Ngirainga v. Sanchez, in which it took up that definitional issue first, over the strenuous objections of the dissent, and that wanted the immunity issues addressed first in Ngiraingas.

Unknown Speaker: Was this post-Steel Co., not--

Mr. Moriarty: It was not post-Steel--

[Laughter]

Last month.

Unknown Speaker: --Yes.

Well, I thought Steel Co. was our last word.

Mr. Moriarty: Indeed.

Unknown Speaker: And I thought we said you address, unsurprisingly, jurisdictional issues first.

Mr. Moriarty: Correct.

Unknown Speaker: And in this one, if you take the words of the Constitution it says the judicial power of the United States shall not extend to any suit, so that sounds... there is no power over such a suit.

How you would get to the 1983 person question if there is no power to do anything is a bit of a mystery.

Mr. Moriarty: Which--

Unknown Speaker: Well, it's the same question.

Mr. Moriarty: --Okay.

Unknown Speaker: You can answer... look at either one of us.

I don't care.

[Laughter]

Mr. Moriarty: In the Idaho case the Court looked at the words, in particular the word extends in Article III and looked at the word extends in the Eleventh Amendment and said, they seem similar, yes, it must be the same thing.

It's not.

The Eleventh Amendment immunity has never been held to be a bar to jurisdiction over an action at the threshold, and that's what we're dealing with here.

Unknown Speaker: Yes, because you could waive it.

Mr. Moriarty: We could waive it.

Unknown Speaker: We don't know whether it's that kind of bar until the State doesn't waive it, correct?

Mr. Moriarty: And also it is a defense.

It's... it can be waived.

Very difficult to waive it.

It can be waived, and also it is a defense, and in the removal setting particularly, as just noted in Rivet, a defense, removal jurisdiction is not determined based on a defense.

It's based on--

Unknown Speaker: By failing to raise the Eleventh Amendment as a defense, the... it may not be the same thing as a waiver, where you expressly renounce reliance on it, but by, if you fail to raise the defense at any time during the proceedings, the proceedings stand.

Mr. Moriarty: --That's--

Unknown Speaker: It's not like a case where there simply was no subject matter jurisdiction.

Mr. Moriarty: --Absolutely correct, Chief Justice, and--

Unknown Speaker: Here you did raise it.

Mr. Moriarty: --We did raise it.

We raised it again throughout, as is the case in most Eleventh Amendment cases where the court has addressed the issues.

Unknown Speaker: One part of this before you finish that I don't quite understand.

Since you're so clear on the 1983, not a person argument, why didn't you, over in the Wisconsin State court, say, Wisconsin State court, get the State out of it, we're not a 1983 person?

Then you'd have a clean suit that the individuals... that the defendants being sued in their individual capacity could remove.

Mr. Moriarty: Because the removal decision must be made very promptly.

The statute requires that it be made within, I believe it's 20 or 30 days after you first learn of the lawsuit.

You don't have time to litigate in front of the State court, get rid of claims.

Unknown Speaker: So you say... are you saying that the individuals would have been untimely if they didn't petition to remove until after the State was dismissed?

Mr. Moriarty: Yes.

If the case was not removable at the time, then it might have been deferred, but to risk the fact that it was "not removable" by failing to remove at that time would have been a poor litigation decision.

Unknown Speaker: You made the right litigation decision, we'll assume.

You removed... now the Eleventh Amendment defense is raised, why... tell me... explain at that point why the court is not bound to remand.

Mr. Moriarty: Because the court had Federal question jurisdiction over all of the claims under--

Unknown Speaker: But it no longer has... if the Eleventh Amendment issue is correct, it no longer would have subject matter jurisdiction.

Mr. Moriarty: --Over one or two of the claims made in the case, but certainly--

Unknown Speaker: Oh, look, over the State and the official capacity defendants.

It would no longer have subject matter jurisdiction over them, would it?

Mr. Moriarty: --We... it would have... no longer have subject matter jurisdiction over the claims made against the State.

However, that's because of a defense that's been interposed.

The issue of original jurisdiction, the issue of removal jurisdiction goes to the entire action.

That's what City of Chicago was talking about.

The State law claims certainly weren't within the original jurisdiction.

It was only when we had the--

Unknown Speaker: Yes, but these--

--But the point is... the point is, removal was allowable, initially.

Mr. Moriarty: --Mm-hmm.

Unknown Speaker: And once the State in Federal court says, wait a minute, Eleventh Amendment as to State claims, then those claims could be remanded to the State court and you can go deal with it back in State court, leave the individual capacity claims in the Federal court.

Mr. Moriarty: Certainly--

Unknown Speaker: Isn't that adequate?

I mean, doesn't that take care of everything?

Mr. Moriarty: --In this particular case, it's not going to make much difference.

We can do it.

We can go back to court.

We can handle that, but--

Unknown Speaker: You can go back to State court and make your pitch on person.

Mr. Moriarty: --And we'll prevail.

Unknown Speaker: And why shouldn't that be done?

Mr. Moriarty: I know we'll--

Unknown Speaker: In other words, why shouldn't it be done?

Mr. Moriarty: --Why shouldn't it be done?

Because it mixes together the essential issues of jurisdiction removal and Eleventh Amendment immunity.

If, in fact, the Eleventh Amendment immunity--

Unknown Speaker: Stand back from it--

--Yes.

Yes.

--and our colloquy before.

You are saying, because of the Eleventh Amendment, no court can deal with a 1983 person.

We just get out.

We just get out at the threshold.

We take it out of the State court, put it into the Federal court, and then say, Federal court, you dismiss, and then we're not subject to having that question decided by any court, ever, and that's a very hard argument to make.

Mr. Moriarty: --I don't believe that's the result.

We are asking that a Federal court look at those issues and resolve them.

If, in fact, it's a dismissal without prejudice--

Unknown Speaker: But you're asking for Eleventh Amendment immunity, and as Justice Scalia has pointed out, at least after his recent decision that would come first, before you deal with the merits.

Mr. Moriarty: --And if Eleventh Amendment immunity went to the jurisdiction of the court over an action, under Steel Company it would always have to be addressed first, always.

The court would never--

Unknown Speaker: Would you say it's not jurisdiction, since it could be waived?

You say it's not jurisdictional.

Is that what you're saying?

Mr. Moriarty: --I'm not... it is a jurisdictional issue.

Jurisdictional is a word of many, too many meanings.

Unknown Speaker: Mm-hmm.

But it's not subject matter jurisdiction, then.

Mr. Moriarty: It doesn't go to jurisdiction over the action.

It goes to jurisdiction over the--

Unknown Speaker: Over the person.

Mr. Moriarty: --particular claim.

Unknown Speaker: No, but you're back... I mean, your argument now is back to saying, you cannot split them up.

You're back to saying you cannot deal with the official action differently from the way you deal with the individual action.

That's the premise of your answer that you just gave, isn't it?

Mr. Moriarty: The... I don't believe it is, Your Honor.

Unknown Speaker: Then I don't understand.

Mr. Moriarty: Jurisdiction over the action is the first question.

Is this properly within the courthouse door?

Second question.

Let's look at the claims we have and the defenses and see what happens to those claims.

In City of Chicago we have Federal claims.

Therefore, we have the case properly within the courthouse door.

Next question.

What do we have there?

We have some State law claims as well.

Well, as long as we've got Federal question jurisdiction, we can look at those State law claims under pendant and ancillary jurisdiction.

We couldn't have if there weren't any Federal questions.

Unknown Speaker: Right, and this is unlike City of Chicago because once the Eleventh Amendment issue is raised, you don't have... the Federal court does not have jurisdiction to adjudicate the State and the official capacity claims, so Chicago doesn't cover this.

Mr. Moriarty: It does not.

Unknown Speaker: And you're saying, if I understand you, that with respect to the State and the official capacity claims, it was error to remand.

Why was it error to remand?

Mr. Moriarty: It was error to remand because the Seventh Circuit did it on a basis of lack of original jurisdiction, lack of removal jurisdiction.

Unknown Speaker: All right.

Should they not have done the same thing on the basis of lack of subject matter jurisdiction, not Article III jurisdiction, maybe, but at least subject matter jurisdiction?

Mr. Moriarty: Under 1447(c)?

Unknown Speaker: Yes.

Mr. Moriarty: That replies again, as I read the cases, to jurisdiction over the action.

You've lost jurisdiction over the entire action before the case is completed.

Unknown Speaker: Thank you, Mr. Moriarty.

Mr. Lasker, we'll hear from you.

Argument of David E. Lasker

Mr. Lasker: Mr. Chief Justice, and may it please the Court:

Justice Souter, I would like to begin by addressing your concern, because I do believe that this case clearly was handled correctly by the Seventh Circuit, because once removed to Federal court the State did immediately assert its Eleventh Amendment immunity, and there certainly the court lacked subject matter jurisdiction.

Unknown Speaker: Well, why couldn't the Federal court retain the action and decide the individual capacity claims, remand the claims against the State, and there you are?

Mr. Lasker: I don't think--

Unknown Speaker: What's the matter with that?

Mr. Lasker: --I think the problem with that, Justice O'Connor, is that it doesn't pay respect to the statutes enacted by Congress that govern this matter.

Unknown Speaker: Well, I think it does entirely, and the case was removable in the first instance, but once the Eleventh Amendment defense is asserted, then the Federal court can remand so much of the case as deals with the Eleventh Amendment claims and keep the rest.

Mr. Lasker: Your Honor, I--

Unknown Speaker: I thought that was where the Seventh Circuit's decision appears questionable.

Mr. Lasker: --Well, Your Honor, I do not agree that the case was properly removed to begin with.

I think that the Court lacked original jurisdiction under 1441(a).

I think we have a very unique circumstance here which, as Justice Scalia pointed out, really hasn't been contemplated by the explicit language of any one of these statutory provisions.

This is a situation--

Unknown Speaker: Well, I think it fits.

I mean, as long as... if we don't know if the State is going to assert an Eleventh Amendment defense, and certainly the suit originally filed included section 1983 claims against individuals in their individual capacity, so the whole thing could have been filed in Federal district court as an original proposition.

Mr. Lasker: --I believe that it could have been filed there only to give the Federal court jurisdiction to determine that it lacked jurisdiction because of the Eleventh Amendment problem extant in the case as originally filed.

Of course, the case was not filed in Federal court, and that's essential to the case at bar, but had the case been filed in Federal court, I believe the Federal court's jurisdiction would have only been to the extent of determining under Steel Company that it didn't have jurisdiction.

Unknown Speaker: Well, that's where I disagree.

It certainly had jurisdiction over the claims against the individuals in their individual capacity.

Mr. Lasker: Well, Your Honor, I would say that Justice Ginsburg was correct in saying that what the State should have done in this situation, or which would have been the simple way out of the woods for this difficult problem that's presented here, would have been for them to move to dismiss the claims that were supposedly improper claims which were the only claims that presented the Eleventh Amendment problem.

Then they would have been able to remove under 144--

Unknown Speaker: Yes, but I think Mr. Moriarty pointed out that the individuals might have been told you're too late to remove, because the case was removable earlier.

Mr. Lasker: --Perhaps that would be true, Justice Ginsburg, prior to the decision in this case, but this Court will now reach a decision which will speak to all lawyers and judges and clarify this difficult situation where we have Federal claims that are Eleventh Amendment-barred.

Unknown Speaker: Is it your position that the State could have moved, or the Circuit Court of Dane County, they could have moved in that court to dismiss claims that would have been barred by the Eleventh Amendment in Federal court?

Mr. Lasker: Yes, Your Honor.

Unknown Speaker: Certainly not on the grounds of the Eleventh Amendment.

Mr. Lasker: No, on--

Unknown Speaker: That's not binding on the State--

Mr. Lasker: --On the grounds of their argument that we failed to state a claim under section 1983, but once they had established that we'd failed to state a claim against the State, or the State defendants in their official capacities, they could have removed.

Unknown Speaker: --But that's saying that you have to do what litigating you can in the State court.

I don't know if that's faithful to the removal statute.

Mr. Lasker: I believe it's exactly what Congress intended, Your Honor.

I think that Congress clearly intended that the sorting out of these matters be done in State court.

Unknown Speaker: It couldn't have been so clear, because you missed it.

You never... you didn't resist the remand.

Nobody ever thought of it till it got to the Seventh Circuit, right?

Mr. Lasker: That's true, Your Honor, and I'm quite an expert on the Eleventh Amendment since the cert petition was granted, but I can't say that I was beforehand.

Unknown Speaker: I don't understand.

I mean, I must be maybe missing something obvious.

Forget State court.

Suppose I, a plaintiff, feel my civil rights were infringed, and I want to sue a lot of people, so I march into the door of the Federal district court and I sue four policemen and the municipality, and I throw in a State official, and I add, in his official capacity, so I have seven suits, seven claims in this suit.

Mr. Lasker: Yes.

Unknown Speaker: I would have thought... is there any law, any case, anything that says that I can't bring that lawsuit in a Federal district court?

I thought that's garden variety.

I thought it happens every day of the week that people bring suits like that in the Federal district court and then, if the State happens to assert Eleventh Amendment as to its claim, at that point, maybe we dismiss that claim, but am I wrong about my garden variety, and way this civil rights law works, because you do know a lot about that.

Mr. Lasker: Well, now that I've become an expert on that Eleventh Amendment, I do--

Unknown Speaker: Forgetting... yes.

Go ahead.

Mr. Lasker: --I do believe that the case you cite should not be accepted in the Federal court.

Unknown Speaker: Now, is there any precedent anywhere where a judge didn't accept such a case?

Mr. Lasker: I think this would have to become the case, Your Honor.

Unknown Speaker: So as far as we know, no; this would be historical to say that they can't have cases like that in Federal district court, and your reason for saying that is?

Mr. Lasker: My reason for saying that is that the Eleventh Amendment, Your Honor, is in the Constitution at all times, and it is in the nature of a jurisdiction bar, as this Court said in--

Unknown Speaker: But Mr. Lasker, what about the Federal Rules of Civil Procedure, which says that you can add and drop parties any time, so you were wrong about naming a State or a State officer.

You just drop that party.

That--

Mr. Lasker: --If that party is dropped out, then the bar to Federal jurisdiction would be gone, and then under 1446(b) it could be removed to Federal court.

If removal to Federal court--

Unknown Speaker: --Well, Mr. Lasker, I thought City of Chicago was relevant in one respect in this case.

It made clear that the existence of some properly stated Federal claims suffices to make actions, civil actions within the original jurisdiction of the district courts for purposes of removal.

Some Federal claims.

I thought City of Chicago spoke to that, and so your argument rings hollow to my ear--

Mr. Lasker: --Thank you--

Unknown Speaker: --on that point.

Mr. Lasker: --Thank you, because I really think that it's important to underscore that City of Chicago involved State claims that were attached under the Court's pendant or supplemental jurisdiction.

Unknown Speaker: It did not involve claims which would be potentially subject to an Eleventh Amendment immunity defense.

Mr. Lasker: Correct.

Unknown Speaker: It did not.

But in principle it's the same because unless and until the Eleventh Amendment is raised, it's okay.

Mr. Lasker: Well, Your Honor, the difference between State claims, State law claims and Federal claims that may be barred under the Eleventh Amendment is a distinction that I think is important here, and... but certainly--

Unknown Speaker: But you deal with it by remanding the claims in which the Eleventh Amendment would cover it and go on with what's left.

Mr. Lasker: --That does not pay homage, Your Honor, to the language of 1447(c), which says that when the court lacks subject matter jurisdiction the case shall be remanded.

There's not authority to remand individual claims, and--

Unknown Speaker: That's... on reading that... that that's all.

I... shall be remanded says, when you fit this, then it must be remanded.

It doesn't say that nothing else can be remanded, and the notion that somehow this case is... doesn't belong in Federal court, even though City of Chicago does, is staggering, because here there's nothing but Federal law, is all.

There's no claim made under any law other than Federal law, as I understand this complaint.

Mr. Lasker: --But this contains claims of Federal law, Justice Ginsburg, some of which may not be brought in Federal court but all of which may be brought in State court, and--

Unknown Speaker: Yes, but there's no exclusive venue.

I mean, if you... you can say yes, sometimes Congress lets people sue in State court if they want to, like the FELA.

There's nothing like that here.

Mr. Lasker: --The... I guess I--

Unknown Speaker: You can bring a 1983 action in State court, can you not?

Mr. Lasker: --Of course, yes, and this entire action was properly brought in State court.

Unknown Speaker: Yes, but defendants in 1983 actions can remove them to Federal court, as defendants in FELA cases could not, because there Congress says, not only can you bring it in State court, but it can't be removed if you bring it there.

Mr. Lasker: Your Honor, I think what I'm recommending to this Court is that you announce a doctrine in handling this case that is true to the unambiguous language of the statutes, that is... that honors the principles of Federalism under the Eleventh Amendment and Article III, and that applies a doctrine that is efficient and simple to understand for lawyers and judges, and that, I submit to you, is exactly what the Seventh Circuit did in this case.

Unknown Speaker: And I take it that as part of this clarification you are going to stick with your answer that you gave to Justice Breyer.

He said, forget State court, you go into Federal court with all of these claims, one of them, which is barred by the Eleventh Amendment, six of which are good Federal claims.

As I understood your answer to the question you said the entire case must be dismissed, and then Justice Ginsburg said, well, what about the Federal Rules of Civil Procedure, and you said, well, what the State court does is to sort things out, but that was avoiding the hypothetical.

The hypothetical was, just the Federal court, so it seemed to me that you didn't answer correctly when you responded to Justice Ginsburg's suggestion, and I want to know if as part of this overall clarification you're suggesting that we say, if there's one cause of action over which the Federal court... forget the State court.

This is, initially you file it in the United States district court.

If there's one cause of action over which there's an Eleventh Amendment jurisdictional problem, Eleventh Amendment jurisdictional bar, the entire case must be dismissed.

Mr. Lasker: Well, I think--

Unknown Speaker: That is... you have absolutely no authority for that proposition.

Mr. Lasker: --I don't have a case to cite for that proposition, and this case does not raise those facts, of course, but--

Unknown Speaker: And the Federal Rules of Civil Procedure are against you.

Mr. Lasker: --Your Honor, the fact is that we're dealing here with a hybrid type of case that is not... has not been addressed foursquare before in any situation that I'm aware of, and that is a case where you have Federal claims that are not barred by the Eleventh Amendment coupled with Federal claims that are barred by the--

Unknown Speaker: Well, but these cases happen all the time... all the time.

It's just because of the rather unusual step taken by the Seventh Circuit that we have it here.

Mr. Lasker: --Your Honor, I believe that on behalf of my client I had a right as the plaintiff's counsel to file this case in State court, which is how this question comes here from the Seventh Circuit, and--

Unknown Speaker: I can understand that part of it, and that's what this case is.

This is a removal case.

But the case that I put to you, and Justice Kennedy just recalled, of an initial proceeding in Federal court with some defendants, why would it be any different than if you filed a diversity suit and you had one nondiverse defendant, and there was a motion to dismiss for lack of subject matter jurisdiction?

You'd say, fine, I drop the nondiverse defendant.

Why is this any different as an initial matter?

Mr. Lasker: --Because I don't think that Congress intended to bifurcate the litigation in that fashion.

I think that piecemeal removal--

Unknown Speaker: Forget removal.

Mr. Lasker: --All right.

Unknown Speaker: We're in Federal court with a complaint that includes the State and individuals.

Mr. Lasker: Yes.

Unknown Speaker: And there is a motion to dismiss the State on Eleventh Amendment grounds.

Isn't that all that would be dismissed?

If in other words, you have this case originally in Federal court.

The State gets out when it moves to dismiss on Eleventh Amendment grounds.

The other defendants don't.

Mr. Lasker: I suppose the answer to that question would be yes, and that does--

Unknown Speaker: Yes.

Mr. Lasker: --then draw the importance of the fact that this case arises out of my choice to sue in State court and then the defendant's procedural maneuver that was disapproved of in this case and that was of concern to the Seventh Circuit in Frances J., that the defendants remove a case of that sort from State court to Federal court really for the purpose of separating the prospective relief claims from the--

Unknown Speaker: Well then, your argument should address why it should be different on removal than it would have been if the case were originally filed in Federal court, and--

Mr. Lasker: --Okay.

Unknown Speaker: --perhaps pointing to some statutory language.

Mr. Lasker: Well--

Unknown Speaker: Some statutory language that somehow overrules the extant statutory language that says that any civil action brought in a State court of which the district courts of the United States have original jurisdiction may be removed, so we need a statute that somehow undoes that, but you've conceded it could have been brought in the United States district court.

Mr. Lasker: --Well, the statute that disposes of this case is 1447(c).

Unknown Speaker: It's critical to your position, as I understand it, that if there is an Eleventh Amendment defense potentially available to one of the defendants, that the court lacks subject matter jurisdiction.

Mr. Lasker: That's my position, Justice Stevens.

Unknown Speaker: And that we have not yet held.

Mr. Lasker: That's correct.

Unknown Speaker: And that would be true in an original filing under Federal... in Federal court, surely, just as true as if the action were removed from State court.

Mr. Lasker: I believe it would, but I think that that would deal with the kind of case that we've got here in the most efficient way--

Unknown Speaker: You're changing your answer, then.

I mean, I think if you give away that... the answer to Justice Ginsburg's and Justice Breyer's question of what would have happened had this suit been originally brought in district court, I think your case is gone.

You have to defend the position that this action would not have been originally bringable in a Federal court.

Mr. Lasker: --I do assert that it should not have been accepted under the court's original jurisdiction, and I say that whether I'm right about that or not, Justice Scalia, certainly when the State asserted its Eleventh Amendment defenses in Federal court, then clearly under 1447(c) the Federal court lacked subject matter jurisdiction and was right to send the entire case back, not just the--

Unknown Speaker: All right, can I say... I'm trying to find some authority for you.

I mean, here you got another shot at this from the Seventh Circuit, so I don't blame you at all for defending this, but I'm trying to think of the authority that might support you.

Is there any authority in the following proposition?

I now go to the Federal district court and I file my claim, which I have my four defendants, lots of Federal law, and one of my 19 claims... one of them... there is no subject matter jurisdiction over, for whatever set of reasons.

Forget the Eleventh Amendment.

Is there any authority, when that situation arises... I would have thought all that happens is, they dismiss that claim and proceed with the rest.

But is there any authority for the proposition that you have to dismiss the whole thing?

Mr. Lasker: --No, not that I'm aware of, Your Honor.

Unknown Speaker: All right.

Now, to take them... is there any authority for the proposition that when you remove such a case from the State court to the Federal court you have to dismiss the whole thing, i.e., you couldn't remove it?

Mr. Lasker: No, there isn't, but--

Unknown Speaker: Then I think you're on a tough ground.

Mr. Lasker: --That's... my answer to you is correct, but I again have to ask you not to hang me on my answer to that question--

Unknown Speaker: No, no, I wouldn't because I mean, you say, well, this will be quite simple.

I'm not sure it would be simple.

There are a lot of cases, you know, where you don't quite know whether this is a State official, not a State official, official capacity, not official capacity, everybody gets mixed up and they have huge arguments, and the whole case would have to be sent back to another court.

That's worrying me.

I suppose one of the things that's wrong is that the State, by quite a sensible rule, it seems to me, should be deemed to have waived its Eleventh Amendment immunity the minute it consents to the removal, but that's not our law, either.

Mr. Lasker: --No, it doesn't seem to be, Your Honor, so that's the situation we're stuck with.

Unknown Speaker: Mr. Lasker, you have a statement in your brief that the State was not immune from suit in State court.

Isn't there a sovereign immunity doctrine that's applicable in the State court?

I mean--

Mr. Lasker: Well, it... there is a sovereign immunity statute in the State court for State claims.

I'm not sure exactly where in my brief you're referring, but--

Unknown Speaker: --On the top of page 9 you say that the Seventh Circuit held the district court lacked original jurisdiction because petitioners were immune from suit in the Federal court, and then you add, although they were not immune from suit in the State court.

Of course, they don't have Eleventh Amendment immunity, but--

Mr. Lasker: --That's what I was referring to.

Unknown Speaker: --most States have their own sovereign immunity doctrine, don't they?

Mr. Lasker: They do, but I was... but the State immunity is, I believe, abrogated by section 1983, although a State is not a person under section 1983 since Will.

What I was talking about, however, is that the action as it was brought would have been within the jurisdiction of the State court and was not within the jurisdiction of the Federal court for the reason of the existence of the Eleventh Amendment.

Unknown Speaker: There isn't something like a Wisconsin tort claims act that would allow a wrongful discharge case to be brought against the State?

Mr. Lasker: I do have a theory, Your Honor, that I seek to assert in the State court upon remand, that we do have a claim under the Wisconsin constitution that would not be barred by the State doctrine of sovereign immunity.

Unknown Speaker: Is your... are the circuit courts in Wisconsin courts of general jurisdiction?

Mr. Lasker: Yes, sir.

Unknown Speaker: Where you don't have limitations of subject matter the way you do in the Federal court?

Mr. Lasker: That's correct.

Unknown Speaker: Mr. Lasker, what prevents us from holding that when a State removes or consents to removal of a case into Federal court it waives its Eleventh Amendment objection?

Mr. Lasker: I just... I don't know that anything stands in the way of that except stare decisis.

I think that the Finney case and other cases that are cited in the brief do stand for the proposition that the waiver has to be an explicit act of the sovereign State and not just something that happens because of the strategic decision by an Assistant Attorney General, for example.

Unknown Speaker: Well, I mean, isn't it clear that when you say, I want to be in Federal court, you mean I want to be in Federal court?

Mr. Lasker: Well, it would seem clear to me, Your Honor, but I don't think that that's ever been considered to be a proper waiver of the State's Eleventh Amendment immunity.

Unknown Speaker: We wouldn't have any of these troubles if that were the rule.

Mr. Lasker: Perhaps not.

Unknown Speaker: If it were, then maybe Mr. Moriarty could not have removed the case, because he said that under State law they have no authority, the State AG has no authority to waive the Eleventh Amendment.

Mr. Lasker: I'm not an authority on that.

I--

Unknown Speaker: It follows from that, doesn't it, that if that's true, then it was clear even before the removal, because of the State law situation, that there would never have been jurisdiction in the Federal court over part of the case, because the... because it's foreordained that it's not optional, as your opponent suggests, that they may or may not waive it.

The law of Wisconsin required him to assist... assert his Eleventh Amendment jurisdiction and, therefore, following the reasoning of the Seventh Circuit, they had to send the whole case back.

They could not accept the removal because there was a jurisdictional bar.

Mr. Lasker: --I'd say that--

Unknown Speaker: You don't know which side I'm on here.

Mr. Lasker: --Well, I do say that--

Unknown Speaker: It seems to--

Mr. Lasker: --that the case should not have been accepted into Federal court until the State court--

Unknown Speaker: --Yes.

Mr. Lasker: --had sorted out the claims--

Unknown Speaker: Because as a matter of Wisconsin law, it's clear that the Federal court never had... could have taken jurisdiction of the claim against the State, as a matter of Wisconsin law, which they would have to honor, that they could not waive the Eleventh Amendment defense.

Mr. Lasker: --Well, I don't know that Wisconsin law is as Mr. Moriarty asserts.

I'm going to accept his word on that, but I don't think it would be difficult for the State to waive and get a statute enacted by the legislature.

Unknown Speaker: Of course, the Federal court would have had jurisdiction if the State had simply processed its removal and made no objection on Eleventh Amendment grounds.

It doesn't have to waive in the sense of affirmatively renouncing.

It can simply do nothing and the Eleventh Amendment defense is waived.

Mr. Lasker: I think that's at least clear in determining the application of 1447(c) to the facts in this case.

However, I am arguing that I think the problem exists in the case of whether the court has original jurisdiction under 1441(a), and that the best rule would be to require that the State court dismiss any claims that would otherwise be barred in the Eleventh Amendment before removal could occur.

If there are no further questions, then I'll sit down.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mr. Lasker.

The case is submitted.