LAPIDES v. BOARD OF REGENTS OF UNIVERSITY SYSTEM OF GEORGIA

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Argument of David Jeremy Bederman

Chief Justice Rehnquist: Spectators are admonished, do not talk until you get outside the courtroom.

The court remains in session.

Mr. Bederman.

Mr. Bederman: Mr. Chief Justice, and may it please the Court: When a State affirmatively invokes the jurisdiction of the Federal court by removing a case, that acts as a waiver of the State's forum immunity to Federal jurisdiction under the Eleventh Amendment.

This principle has been confirmed as recently as this Court's decision in the College Savings Bank case where it was indicated that a State may waive Eleventh Amendment immunity by invoking Federal court jurisdiction.

This rule also finds support in a long line of decisions holding that where a State enters a Federal proceeding as an actor in any role, that effectively relinquishes any objections to Federal jurisdiction a State may have under the Eleventh Amendment.

Justice Scalia: When you say as an actor in any role, does it ever intervene as a defendant?

Mr. Bederman: Yes, Justice Scalia.

This Court's precedents seem to indicate that wherever the State is cast in the role of plaintiff, defendant, intervenor, or claimant, that the entry into the Federal proceeding submits the State to the jurisdiction of the Federal court.

Chief Justice Rehnquist: How about the Ford Motor Company case?

Mr. Bederman: Well, of course, the authorization requirement in Ford Motor... and that's the particular holding in Ford Motor that I think is of concern to this Court... need not be reached here because, of course, Ford Motor did not involve a case where a State was actually invoking Federal court jurisdiction.

So--

Chief Justice Rehnquist: So, you think a line can be drawn between the State defendant being drawn in as a respondent or involuntarily as opposed to removing and thereby invoking Federal jurisdiction.

Mr. Bederman: --Yes, Chief Justice.

I think the key element here is precisely the invocation of Federal court jurisdiction.

And again, this... that's consistent with this Court's rulings in... in Gardner and in... and in Gunter and Clark where it's made clear that where the State actually is invoking Federal court jurisdiction, the proper inquiry is not the authority of the State officer or attorney to waive Eleventh Amendment immunity.

The proper inquiry is whether the State officer or attorney had the power to engage in the litigation conduct leading to the invocation of Federal court jurisdiction.

Justice Breyer: In all... in all those cases, they were cases in which a State really consented to have litigated against it a Federal claim in a Federal court.

And it's hardly surprising, once you agree to that, that you also are agreeing to have related things litigated against you.

But this isn't that.

This is a case where the only reason that the State went into the Federal court was so that the individual defendants would be able to invoke their right to have the matter heard in a Federal court.

So, why isn't the obvious solution here... there are only State claims left against the State which doesn't want these heard in the Federal court.

They haven't agreed to have anything heard there against them.

So, judge, send it back to the State court.

What's it doing here?

They don't want it here.

Call that pendent jurisdiction, pendent claims, but it's an abuse of discretion, at least, not to send it back.

Mr. Bederman: If I may make a number of responses to your question, Justice Breyer.

First of all, I believe this Court's holdings particularly in... in Richardson, in Gunter do present a situation where... where a State is entering the proceeding and... in the role of a defendant and later decides to regret that... that casting and tries to extricate itself from the proceeding.

So, I think there is authority in this Court's precedents to that extent.

To your more general observation in terms of the harm here, in essence, weighing the plaintiff's interest in a single and unitary proceeding in State court, a result which has been the... this Court's jurisprudence construing 28 U.S.C. 1441(c) for almost a century that... that the removal statute does not entitle defendants to remove and then split up claims--

Justice Breyer: All right.

Well, that's exactly... what if it's that?

The interest of the plaintiff in having the action against the individuals in the State tried in one place, on the one hand, against the interest of the State having a State matter tried in State court where the State has refused to waive its immunity from Federal jurisdiction.

That for me is easy.

One is a constitutional right; the other happens to be a right of a plaintiff that he wouldn't have anyway if he had brought his suit in Federal court, which is what removal jurisdiction is about.

So, why doesn't the State clearly prevail on that one?

Mr. Bederman: --Well, Justice Breyer, again with respect I think the... the proper analysis I think closely analyzing the State's professed interests in removing and claiming immunity was, first of all, to engage the expertise of Federal tribunals on questions arising under section 1983 and qualified immunity.

Justice Ginsburg: May I stop you there?

Because you mentioned section 1983, and that makes this case terribly puzzling because I thought States were not persons.

So, if you're not subject to suit under 1983--

Mr. Bederman: That... that's--

Justice Ginsburg: --That's the basis of... you're suing the State and the State is not a person within 1983.

So, even if you prevailed 100 percent on your Eleventh Amendment claim that you could remove despite that sovereign immunity claim--

Mr. Bederman: --Justice Ginsburg, I... I would remind the Court that, of course, there was relief pled for declaratory relief in the complaint, and under this Court's jurisprudence following from Will, a declaratory relief claim is properly pled in this kind of proceeding.

Of course, Will says--

Justice Ginsburg: --Against the State?

I thought a State was not a person, period, under 1983.

A municipality is, a county is, but a State is not.

It doesn't matter whether it's declaratory, injunctive, whatever.

They're not subject to suit under 1983.

Isn't that right?

Mr. Bederman: --No, Justice Ginsburg.

Under I believe the footnote in... in Will and also in the following case, Arizona's Official English case, it made clear that that interpretation of section 1983 of a person for purposes of suit was for money damages and that declaratory and injunctive relief, in order to keep the symmetry, presumably with Ex parte Young, as I believe this Court indicated, was... was a permissible pleading--

Justice Ginsburg: Well, Ex parte Young is something different.

You're suing the officer, not the entity.

Mr. Bederman: --That's right, but recall that not only are the regions being sued here but also individuals in their official capacity and as well as in... in their individual capacity.

Justice Breyer: No.

But Justice Ginsburg I think has said the individuals are out of it.

Qualified immunity.

We're left with the State.

She wrote for the Court in Arizona Official English... she says, the barrier was not, as the Ninth Circuit supposed, Eleventh Amendment immunity which the State could waive.

The stopper was that 1983 creates no remedy against a State.

Now, that's what the Court held.

So, 1983 creates no remedy against a State.

So, you have no Federal claim against the State, and your other Federal claims are disposed of.

So, we're left with a purely State matter in the State court... in the Federal court, and the State says, remand this, send it back.

Now, why shouldn't they?

Mr. Bederman: Well, again, my response to that would be plaintiffs do have an interest in seeing... in filing a single, unitary action in State court, as was properly done here.

And what the State of Georgia has attempted to accomplish via its removal and claiming immunity tactic is... is to break the... break the plaintiff's claim into discrete parts and dispose of them.

Justice Ginsburg: I don't understand that either.

What's very puzzling here is you wanted the case to be in State court, and then it was removed.

You moved to remand, didn't you?

Mr. Bederman: That's correct.

Justice Ginsburg: And now you're getting just what you want.

You're getting the remand and you don't want it.

Mr. Bederman: Well, it's... it's the remand apparently with the... the other consequences of the Federal court decisions to date.

That's, of course, unfortunately one of the consequences of litigating Eleventh Amendment immunity is that this was taken as an interlocutory appeal, and other proceedings of course have occurred since then.

Justice Ginsburg: But there's been no kind of adjudication on the merits against the State... against the State entity in any way, shape, or form.

Mr. Bederman: No.

You are correct, Justice Ginsburg.

To date, there have only been rulings by the district court as affirmed by the court of appeals on the qualified immunity defense as against the... the private--

Justice Scalia: May I ask why it proceeded... let me read you something else from one... a fairly recent opinion.

We have routinely addressed, before the question whether the Eleventh Amendment forbids a particular statutory cause of action to be asserted against States, the question whether the statute itself permits the cause of action it creates to be asserted against States.

Why didn't the lower courts follow that procedure and... and decide the 1983 substantive issue of whether the State is liable first?

Mr. Bederman: --I... I do not know, Justice Scalia.

In terms of... in terms of what I understand is the briefing and argument, the State of Georgia did raise the Will defense in its papers.

The district court chose to proceed with the case on another ground, dismissing the section 1983 claims against the private parties in their individual capacities on qualified immunity.

Maybe there was some concern about the status of the Board of Regents, but... but I'm as mystified, frankly, as you are about that disposition.

Again, if I may repeat, the concern that petitioner ultimately has about the use of removal and claims of immunity in this context is it splits claims which seems to be a result that's specifically prohibited by the removal statute and this Court--

Justice Ginsburg: But that seems to be a purely academic question not in this case because the qualified immunity question, as I understand it, was decided against the individual officers.

So, what Federal question... this goes back to what Justice Breyer asked.

I don't see any Federal question left in this entire case.

Mr. Bederman: --If... if you're not taking well my point about the availability of declaratory relief--

Justice Ginsburg: Well, at least the footnote that was read didn't make any distinction based on declaratory judgment.

It said a State is not a person for 1983 purposes.

Period.

That's what that footnote said.

You're telling me now that I was wrong.

Mr. Bederman: --I would never presume such, Justice Ginsburg.

[Laughter]

I... I think maybe the safest result... of course, this has not been briefed... is whether this Court's judgment in Will and subsequently in Arizonans for an Official English reaches this precise issue that I'm speaking to.

No lower court has addressed Professor Lapides' request for declaratory relief.

No briefing has been accomplished on that, and there's been no--

Justice Ginsburg: But if you're not right about 1983, assume now that a State is not a person for purposes of 1983.

Mr. Bederman: --Yes.

Justice Ginsburg: Then what Federal element... what Federal question is left in the case?

Mr. Bederman: There would be none left.

Justice Ginsburg: And then with all the Eleventh Amendment jurisprudence in the world, it would make sense for any district judge to hang onto a case that at the threshold had all the Federal elements taken out of it and has nothing but State claims left.

Mr. Bederman: Certainly after these proceedings, that might be the result that a district court judge in the exercise of... of its discretion may wish to... to achieve.

Our concern is precisely the one that when Georgia invoked the jurisdiction of the Federal courts for removal, it should have been with the understanding that all claims would move to Federal court, that the State could raise whatever defenses it wished to, in other words, the defenses travel to Federal court.

But what is not a permissible result is, in essence, the... the splitting of claims, the disposition to Federal court and then--

Justice Ginsburg: I don't see how that... how your client is in any way harmed by any of this because he ends up with what he wanted is his suit in State court.

Mr. Bederman: --Well, if I may make a broader point.

The Eleventh Circuit's judgment, from which appeal is sought here, is not entirely clear about this distinction between barred and non-barred claims.

That was not, of course, settled in any further proceedings in the district court as to whether now the State claims would proceed by remand back to State court.

Of course, the State of Georgia sought the dismissal of the entirety of Professor Lapides' case under rule 12(b)(6) when it removed the case.

So, it's... it's now... not entirely clear at the outset what Georgia's intentions were in removing the case and then seeking immunity.

Our proposition is simply that, as a matter of not only judicial efficiency but also the integrity of the removal statute and the fair meaning and understanding of this Court's Eleventh Amendment jurisprudence, is that when a State invokes Federal court jurisdiction under the Eleventh Amendment, the entire case then moves to Federal court and that the State cannot, thereafter, claim immunity from the jurisdiction of the Federal courts in those circumstances.

If the State does not have the authority... and this was an earlier question... under Ford Motor Company to waive the State's Eleventh Amendment immunity via removal, the proper course should have been in this case simply for... to find the removal was void ab initio and have the entire matter remanded--

Justice Ginsburg: But that's the end result you're getting.

You're getting a remand and you want to have a different label put on it.

But the bottom line is you wanted a suit in State court.

That was removed.

There... there's no Federal element left.

I can't imagine a district judge who would hang onto such a case.

Mr. Bederman: --Well, again, I would not presume to anticipate the future proceedings and that may--

Chief Justice Rehnquist: Well, your legal position is basically that a State should not be able to talk out of both sides of its mouth I guess.

It should not be able to remove and then when it gets to Federal court claim Eleventh Amendment immunity.

Now, how much of that argument is still valid after what's happened in this case I'm not sure.

Mr. Bederman: --Well, I think even though petitioner is, understandably, reluctant to introduce an idiom of judicial estoppel into these proceedings with... with obviously the clear indication that rules of estoppel tend not to run against the sovereign, but again that is precisely our concern.

In the matter of... of the... the symmetry and parity that occurs that when a State enters a Federal proceeding, it submits the entire case to the... to the jurisdiction of the Federal courts.

Justice Stevens: May I ask you, Mr. Bederman?

In the brief in opposition to the certiorari petition, did anyone point out the fact that maybe the State was not a person within the meaning of 1983 and that that was the reason not to take the case?

Mr. Bederman: Well, if I may review quickly.

Yes.

And I do recall that the State did raise in its op cert at page 10 the argument under Will.

I... yes.

They do opine that Will would... would act against the... the claims raised for monetary relief by petitioners here.

Justice Stevens: They're only after monetary relief.

Mr. Bederman: I would not want to put that gloss on... on the States.

I'm reading just an isolated passage on page 10 of their op cert. That... that is, in essence, the... the open question.

If I could return, Chief Justice Rehnquist, to your... to your observation.

Again, while we don't think it's necessary for the Court to rule on any judicial estoppel principles, clearly this is an appropriate case to draw a bright line rule in terms of States invoking Federal court jurisdiction.

Either they have the authority to do so and waive Eleventh Amendment immunity and the entire case proceeds to Federal court or the State officials or lawyers do not have that authority and the proper disposition is remand.

If I may reserve the balance of my time.

Argument of Irving L. Gornstein

Chief Justice Rehnquist: Very well, Mr. Bederman.

Mr. Gornstein, we'll hear from you.

Mr. Gornstein: Mr. Chief Justice, and may it please the Court: For four reasons, a State's removal of a case to Federal court waives its forum immunity, permitting adjudication of the claims against the State in Federal--

Justice O'Connor: Explain to me whether we've ever bifurcated forum immunity from immunity for suit... from suit?

I just... do we treat the two differently?

Mr. Gornstein: --They are both protections that are afforded by the Eleventh Amendment.

Certainly a State has both of those rights under the Eleventh Amendment.

But the question is the State can waive one without waiving the other, and that's what it did here, by selecting a forum, Federal forum, for the adjudication of the claim.

But in doing that, it did not give up the defenses that it had in State court.

And one of the defenses that it had in State court, and it would also have in Federal court, is a right not to be sued at all on constitutional claims.

But what it did give up is the right to proceed in State court, rather than Federal court, on the claims that it already has waived in State court.

Now, the principle that justifies... the... the State's invocation of Federal court jurisdiction through removal is a particularly clear example of a State voluntarily invoking Federal court jurisdiction.

Justice Ginsburg: Mr. Gornstein, may I deflect you?

Because I got from your brief the notion that this case is academic, and let me read you from page 23, note 8.

The question whether a State that removes a case waives its immunity to constitutional claims is largely academic.

Section 1983 does not authorize a suit against a State in either State or Federal court.

It seems to me that you were telling us in that footnote that whatever is said about the removal, this case goes because the State is not subject to 1983.

Mr. Gornstein: To the extent that there are constitutional claims against a State, that's correct.

To the extent that there are State law claims against the State, that is not correct because the State has waived its forum immunity with respect to the State law claims--

Justice Ginsburg: Would a district judge be acting reasonably to hold onto a case that has no Federal claim that involves the State tort claims act, that those are... the State claims are under the State's own tort claims act, like the Federal Tort Claims Act.

Can you... could a Federal judge justify sitting to adjudicate a case against a State under the State's tort claims act?

Mr. Gornstein: --Justice Ginsburg, that would be a question for the exercise of the district court's discretion under the supplemental jurisdiction grounds.

That... certainly if the Federal... all the Federal claims were out of the case, one ground for remanding the rest of the cases under the supplemental jurisdiction statute would be present.

It would be a matter, though, for the exercise of the district court's discretion.

Justice Ginsburg: It was always my understanding that the district court would take into account how far have we gotten into the case--

Mr. Gornstein: Correct.

Justice Ginsburg: --from the Federal--

Mr. Gornstein: Right.

Justice Ginsburg: --If you drop here, the Federal issue drops out at the very threshold.

Mr. Gornstein: Correct, and that would argue more strongly in favor of the district court exercising its discretion in that direction, assuming there's no other Federal claim in the case.

And let me just address that briefly because it is our understanding that a suit against a State official in his official capacity for injunctive or declaratory relief is not a suit against the State and it is a suit against the person under... under section 1983.

So, if there is a claim... and I'm unsure of whether the complaint should be read that way, but if there is a claim against the individual defendants in their official capacities for declaratory or injunctive relief--

Justice Ginsburg: I thought the... the motion to dismiss as to the individuals was granted on the grounds of qualified immunity.

Mr. Gornstein: --Only as to the claims against them in their personal capacities, not as... with respect to the claims against them in their official capacities.

So, that claim, if it's... if it was there to start with, it's still there.

Justice Ginsburg: I don't understand the difference between a claim against the State itself and the claim against the State officer in his or her official capacity.

Mr. Gornstein: The distinction that the court drew was... is this... traces its origins to Ex parte Young, that that is a suit against the officer in his official capacity.

There's no allegation that he's done anything in violation of State law, and you're not trying to--

Justice Ginsburg: What Mr. Lapides wants... Mr. Lapides, as I understand it, wants a money judgment.

Mr. Gornstein: --I think it's... it's largely true that he wants a money judgment, but there is one allegation in his complaint upon which he relies in saying that he's also seeking declaratory relief against an individual... an individual officer in his official capacity.

Justice Breyer: So, that's like suing the State.

In... in other words, there is a claim.

Under... under 1983.

A State is a person when you ask... say I want an injunction.

The State is a person.

Mr. Gornstein: I would say... I don't want to quibble too much with the semantics, but I would just... I would put it this way.

The official is not the State for purposes of--

Justice Breyer: All right.

Then that's a different matter.

So, what you're saying is there is an action against the official.

All right.

That's not the issue because they dismissed all the claims against the officials.

Mr. Gornstein: --No, they did not--

Justice Breyer: Oh.

So, there's still an action left against the officials.

Fine.

Mr. Gornstein: --If it was ever there, Justice Breyer--

Justice Breyer: Fine.

Okay, I got it.

Mr. Gornstein: --it's still there.

Justice Breyer: Now, if that's so, how could it not be an abuse of discretion?

Assuming if that's even there, how could it not be an abuse of discretion to refuse to send this back to the State?

Mr. Gornstein: Again--

Justice Breyer: A purely State matter.

And... and I'm not, you know, overwhelmingly far out I think in this area, but I don't really see why... why the State here wouldn't have a right to have it sent back on the ground it would--

Mr. Gornstein: --Well--

Justice Breyer: --be an abuse of discretion not to.

Mr. Gornstein: --It... it wouldn't have a right to have the case sent back.

Justice Breyer: Why not?

Mr. Gornstein: It would never... because it's a matter for the district court--

Justice Breyer: There is an abuse of discretion under certain circumstances.

Mr. Gornstein: --And what I would say--

Justice Breyer: Yes.

Mr. Gornstein: --That would be the question whether there is an abuse of discretion.

Justice Breyer: And why not?

Mr. Gornstein: And the... I don't want to argue that part of the case too much, but the reason would be if there are still Federal law claims against... 1983 games against the... individuals and they arise out of a common nucleus of operative facts with the claims against the State, then it would still be fair to try those claims in Federal court because the State made a voluntary choice to bring this case into Federal court.

It had an option to leave the entire suit in State court if it wanted to.

It exercised the option to bring the case into Federal court.

Now, once it did that, under Federal law, the Federal consequence of that is that a Federal court has authority to adjudicate the very claims that the State has brought there.

And the principle that--

Chief Justice Rehnquist: Are you saying that it's a different case because the State removed it than it would have been if the same factual circumstance had occurred in the case originally brought in the district court?

Mr. Gornstein: --I am, Mr. Chief Justice, because under this Court's decision in Pennhurst, if a plaintiff files a suit in Federal court that includes both Federal law claims and State law claims, the State law claims against the State are... have to be dismissed under Pennhurst.

But the situation is different.

This plaintiff did just what the Pennhurst opinion suggested that he should do, which is to file his claims against the State under State law in State court.

And... and with that, he added his Federal law claims so that he could have a single lawsuit filed in a single forum.

Now, what the removal statute says is that there's only can be removal if there... you get the consent of all the parties to the removal of the entire case.

The removal statute does not allow for State court defendants to divide up a single case or controversy into two different cases in two different forums.

And the State is effectively seeking to accomplish that goal.

Now, it says it needs to do that because it wants to get the benefit of a Federal forum for its State employees.

But the... just because the State has a difficult choice to make about whether to remove a case to Federal court or not doesn't mean its decision to bring the case to Federal court isn't voluntary.

It's still a voluntary decision to bring the case to Federal court.

It's also a little surprising to hear the State say that it needs to have a Federal forum for its State officials on Federal law issues when the State has repeatedly and successfully argued to this Court that State courts are fully competent and just as competent as Federal courts to adjudicate Federal law issues.

And it's... it's particularly surprising that the State thinks it's in the State's interest for its employees to get an interlocutory appeal in Federal court when the State's own policy is that they aren't entitled to an interlocutory appeal.

Chief Justice Rehnquist: Well, the State is certainly entitled to make a tactical judgment--

Mr. Gornstein: It certainly is.

Chief Justice Rehnquist: --that it's better off in Federal court than it is in State court.

Mr. Gornstein: It absolutely is, Mr. Chief Justice, and all we are saying is once it does that, then it has to accept the consequences of that choice, which is the Federal court then has authority to adjudicate the entire case that has been brought before them... before it.

I wanted to say a word about the... the Ford Motor Company case because in the Ford Motor Company case, the Court did deem State law authority to consent to be the critical issue.

But all other decisions in which the Court has addressed the invocation issue, the Court has held that an individual when... I mean, when a State invokes Federal court jurisdiction, it waives immunity as a matter of Federal law.

Argument of Devon Orland

Chief Justice Rehnquist: Thank you, Mr. Gornstein.

Ms. Orland, we'll hear from you.

Mr. Orland: Mr. Chief Justice, and may it please the Court: The State, along with its employees, removed this case to Federal court so that its employees could take advantage of a... in a Federal forum.

This does not amount to a waiver for two reasons.

First, it is not a clear and unequivocal expression of the State's desire to waive its immunity, and second, the attorney--

Justice O'Connor: Is it a waiver of forum immunity as opposed to immunity from suit?

Is there such a distinction?

Mr. Orland: --Your Honor, this Court has never made such a distinction, and the first I've ever heard of the concept of forum immunity being parceled out from the rest of the immunity was in this case.

Apparently there was a recognition at some point by the petitioner in this case that the Federal claims would be barred even in State court, and then they've come up with this forum immunity concept.

Justice Scalia: It's not... it's... I mean, the concept has been around.

I mean, we've... we've held that a State does not... just because a State is willing to be sued in its own courts does not automatically mean that it can therefore be sued in Federal court.

Isn't that right?

Mr. Orland: Your Honor, the concept of what--

Justice Scalia: Which... which means that... that you can be immune in one forum and not immune in another forum, although you're not immune from the suit entirely.

Mr. Orland: --Your Honor, that is exactly what the Court found in Pennhurst, but I would suggest that the Court has also found in Pennhurst that the absence of that choice, that concrete choice, would emasculate the Eleventh Amendment.

So, what is being argued is by the exercise of procedural device for the benefit of our employees would cause a State to sacrifice a part of the immunity which the absence of would emasculate--

Justice Scalia: Well, that's... you know, that's too bad, isn't it?

Mr. Orland: --Well, Your Honor--

Justice Scalia: The cost of getting the advantage of Federal courts is that you... you come into Federal court.

It seems to me self-evident.

Now, you say I have a good reason for wanting to be in Federal court.

Well, you may indeed.

But there you are.

Mr. Orland: --Your Honor, first of all, I'd like to point out that that cost is just too high.

As the zealous advocate on behalf of all of my clients, I have to choose between the individual's right to deal with the law as it is in the State of Georgia, whether that's the State of Georgia's choice or not, but the law in the State of Georgia at the present time is that there is no right to direct appeal.

So, as a zealous advocate on behalf of the individual employees, we have a desire to protect the individual employees from the right--

Justice Stevens: But that's a right of the State of Georgia to protect the individual employees, and the State of Georgia has said the right to an interlocutory appeal is not all that important.

You have the substantive defense that you just can't because Georgia has its own choice of whether it's better to have this decided after the whole case or in the middle.

They think it's better to wait till the case is over.

Now, why can't Georgia make that decision?

Mr. Orland: --Georgia absolutely can make that decision, Your Honor, through its legislative process, and that's part of the point.

Justice Stevens: Well, why shouldn't that decision also influence the tactical decisions of the attorney general when he's litigating?

Mr. Orland: Because the attorney general represents more than just the State in a lawsuit such as this.

The individuals are also being represented by the attorney general, and the State should not be required to sacrifice all or part of its Eleventh Amendment immunity so that the attorney general can zealously advocate--

Justice Stevens: But it's the State of Georgia's legislature who have made the decision that's troubling for the State of Georgia's employees.

Mr. Orland: --Your Honor, but the employees have to take the law as it is.

Chief Justice Rehnquist: Well, and the legislature didn't say that no Georgia employee shall ever have an interlocutory appeal in any court.

It had just said they don't happen in Georgia courts.

Mr. Orland: That's correct, and Congress has seen fit to allow for a procedural device for State defendants or any other defendants to take advantage of the procedures available to them.

But nowhere did Congress--

Justice Ginsburg: But you're missing one very key thing here.

Congress said in order to remove, all defendants must remove.

Those officers could not have been... could not have removed on their own.

They had to have the State's consent.

And for the State, after consenting, to say, oh, we're going to accommodate you, we'll join in the removal, but as soon as we get there, we're going to come out, it seems to me that is just the clearest end run around Congress' direction that all defendants have to join in the removal petition.

It would be a sham removal if someone were to say, okay, I agree to remove and be in the Federal court, but the minute I get to Federal court, I'm going to say, Federal court, you can't get me.

Mr. Orland: --First of all, Your Honor, Congress did not expressly state that all defendants needed to agree.

That is a court-created doctrine, and I'm not going to challenge the... that doctrine.

Justice Ginsburg: It's a court interpretation of the removal statute.

Mr. Orland: Yes, Your Honor.

Justice Ginsburg: And... and you're not going to challenge that.

So, it's as good as if it were in the statute, just as the sovereign immunity doctrine, although it's not in the Eleventh Amendment, is there.

Mr. Orland: Your Honor, all that is true.

But Congress also contemplated the remand of certain claims.

And the only thing the State is asking in this case is for the case to be treated as if it were originally filed in Federal court, which it is our belief is the true intent of the congressional removal statute.

They didn't allow partial claims to be brought up, and the reason they didn't allow for it is because of the court's potential exercise of supplemental jurisdiction.

But in this case, there can be no exercise of supplemental jurisdiction simply because the legislature for the State of Georgia has not waived its sovereign immunity as to the Georgia Tort Claims Act for actions within the courts of the United States.

So, in this case, by the exercise of a procedural device, the attorney general would not be only overriding the very principles established in the concepts of federalism, but would also be overriding the... the decisions of the State legislature and the Georgia constitution.

Justice Ginsburg: Ms. Orland, then it seems to me the obvious thing that the zealous representative of the State would say is, sorry, we can't join in the removal petition.

This case belongs in State court and we're not going to engage in any subterfuge.

We... it's just as though it were brought originally.

It would be no good.

So, we are not going to go through the sham of signing our name onto a removal petition only to say that this case can't be brought in Federal court.

If the State were zealous in its position that only the State court can adjudicate this, it had no business signing on to any removal petition.

Mr. Orland: Your Honor, I understand the concerns of the Court regarding the concept of saying we're going to Federal court, but no, we're not.

The... but the reality of the removal statute is, is it doesn't allow for the removal of some claims, and that's a procedural device available.

If there's a remedy to be had, the remedy to be had is with Congress.

If there's a problem with the removal statute not allowing certain claims to be brought in Federal court and therefore the whole case can't be removed--

Justice Ginsburg: There's nothing wrong with the statute.

It says all defendants have to join in the removal, and the removal has to be... it seems to me that the State of Georgia really is playing rather fast and loose with the... with the Federal court when it says, aha, we're going to bring this to accommodate... to accommodate two people who couldn't do it on their own.

Mr. Orland: --Your Honor--

Justice Ginsburg: It seems to me that the case on Georgia's own theory is non-removable from day one, and that's the position that Georgia should have taken.

This is not a case for a Federal court.

Mr. Orland: --Then by very virtue of a sham joinder of the State in a case, which in this case arguably was done by suing the case... State under 1983 and further by attempting to sue the State, for which there has been no waiver of sovereign immunity as to defamation of liable, a plaintiff can shamly decide that individuals won't be entitled to--

Justice Ginsburg: The plaintiff in this case wanted to be in the State court.

It's the State that said Federal court.

So, you can't... this... that's why this case is so puzzling because it's the plaintiff who wants to be in the Federal court... in the State court.

And... and the State wants to take it into the Federal court.

It really is something that only a lawyer could conceive.

[Laughter]

Mr. Orland: --Your Honor, I think that the problem here is, is that by virtue of 1983 litigation, individual employees get sued.

And it does create sort of a quandary of issues because the individuals have a desire, quite understandably I'm sure, to get the case resolved, to--

Justice Scalia: But... but you're asking for a broader principle, which it may well be that in... in its application to your case there's some... you can understand why the... why the State wanted to go into Federal court.

But what you're asking for is the general principle that by coming into Federal court, you do not waive State sovereign immunity, and that general principle would have applied even if you had been the only defendant in the State court.

And you removed to Federal court, and then having gotten into Federal court, you moved to dismiss on grounds of sovereign immunity, which is absurd.

Mr. Orland: --Your Honor, I would agree it's absurd, and that type of behavior could be sanctioned by the court.

If a lawyer is going to play those kinds of games, it is certainly within the court... district court's province to sanction ill-behavior.

And that's what is being alleged that we did.

But what I would point out is that every--

Justice Kennedy: On what... on what grounds would you sanction the behavior if you're saying that it's lawful.

I don't understand that.

Mr. Orland: --Your Honor, if it--

Justice Kennedy: You're saying, counsel, you have exercised every right that we can give you under the law.

We're now sanctioning you for doing that.

That... I don't understand that.

Mr. Orland: --I'm sorry if I misspoke.

If a lawyer is going to remove a case and do it for the purposes of delay or some other misconceived purpose--

Chief Justice Rehnquist: Lawyers do all sorts of things for the purposes of delay.

[Laughter]

Mr. Orland: --And it's improper.

Chief Justice Rehnquist: I'm not... I'm not sure it is.

I think in many cases an attorney will look at two different choices, particularly if you're a defendant, and you'll choose the thing that will delay the case's final resolution.

And nothing improper about that.

Mr. Orland: There's nothing improper about that, but in the scenario that if it is improper, if it is determined that there is some attempt to elongate litigation for an improper purpose, the court has the discretion to sanction that behavior.

Moreover, Congress has the ability to change--

Justice Stevens: Yes, but you're not... they're not elongating the case.

They're trying to terminate it in a hurry in this particular--

Unknown Speaker: [Laughter]

Justice Stevens: And I just don't understand how that could possibly be sanctionable conduct if we say it's a proper usage of the removal statute and it doesn't waive sovereign immunity.

They'll do it all the time.

Mr. Orland: --Your Honor, I'm not saying we did anything improper.

I'm saying that in the event that somebody did do something improper, that's sanctionable.

Justice Stevens: Yes, but the question is whether this particular maneuver is... is authorized by law or not.

And if it's authorized by law, it surely isn't improper.

Justice Scalia: Indeed, it would be improper not to take advantage of it.

Justice Stevens: Sure.

Justice Scalia: You should be sanctioned as incompetent counsel.

[Laughter]

Mr. Orland: Hence, the quandary of being a State litigator, Your Honor.

And that's exactly the point.

We have several clients here.

The... the attorney general's office represents the individuals as well as the State entity on both State and Federal claims.

You're right.

All of the Federal claims are gone.

Even if you read at joint appendix 17 the plaintiff's assertion that he is seeking declaratory relief, which I would suggest is not a clear statement of declaratory relief... it is a request for declaratory relief under State law.

So, if the Court--

Justice Stevens: It just occurred to me that maybe there is sanctionable conduct here because you have a conflict of interest.

Your interest in the employees is definitely directly opposed to your interest representing the State.

So, maybe you should have gotten separate counsel.

Mr. Orland: --Well, Your Honor, in fact at some point in this litigation we did.

But at the initial point of the removal, there was no reason to.

And I think this goes to Justice Kennedy's concurrence in Wisconsin, which is if the State is going to be placed in some tactical disadvantage, this rule should not be adopted.

The tactical disadvantage in this case is quite simple.

The State would be at odds with its employees.

The State would not be in a position where there is no Eleventh Amendment protection as to some claims perhaps... or it hasn't been decided yet for ADA Title II claims... to have a Federal court be the first to adjudicate those types of issues and have the fastest course to this Court for a determination--

Chief Justice Rehnquist: The State would be at odds with its employees because the employees want an interlocutory appeal and they can't get it in the State court?

Mr. Orland: --Yes, Your Honor.

Chief Justice Rehnquist: That... that sort of thing arises frequently.

Do you move for a change of venue or not in a particular case where you've got multiple defendants?

And as Justice Stevens said, perhaps a lawyer ought not to have multiple defendants if they're going to have different... different approaches to the thing.

Mr. Orland: Well, Your Honor, I think that's... that's exactly the point here is... and also the point as to why the attorney general, as the litigator on behalf of the State and its employees, should not be in a position to make a decision as to waiver.

That's why it goes to the legislature.

Justice Stevens: May I interrupt once more?

I hate to... I'm sorry--

Mr. Orland: I'm sorry, Your Honor.

Justice Stevens: --I'm interrupting so many times.

But is it your position that the general rule should be that removal waives the State's sovereign immunity, but there should be an exception when there's a good reason because of a conflict of interest?

Or is your... your position is that it will never waive sovereign immunity?

Mr. Orland: Your Honor, the only time that it could waive sovereign immunity is if the State legislature says I authorize the attorney general--

Justice Stevens: No.

Absent a State legislature... you're arguing for a general rule, not just for a rule that will protect you in this particular case.

Mr. Orland: --That is correct.

Justice Breyer: Well, a general rule.

My goodness.

Suppose the State comes in and they have four claims and they... they wanted... they say, oh, I have a great idea.

I'm going to get this claim litigated over here in the Federal court and there are three related claims.

It's a bankruptcy matter, for example, and they just pick and choose.

I mean, normally when... when you have waiver in constitutional law, say the Fifth Amendment, you... you start waiving answers to one question and related questions are going to be waived too.

Mr. Orland: Well, Your Honor, and that's exactly the point, is there is no clear statement of waiver here by Congress or the State legislature.

I don't think you can just pick and choose a waiver.

Justice Breyer: All right.

Well, I mean, but Justice Stevens' question is that you're arguing for a general principle that... that they don't waive anything.

Is that right?

They... they come into Federal court.

Why did they do it?

They came into Federal court in all these others because there was a claim they wanted litigated either for them or against the State.

So, I would have thought they would at least have waived all related matters.

Mr. Orland: Your Honor, in all the cases relied upon by the petitioner where the State has come into Federal court, the court's first inquiry was whether the Eleventh Amendment applied.

In all of those cases, the court first found that the Eleventh Amendment simply was inapplicable.

When the State is acting as a plaintiff or in any form or fashion or entering in as a party, it's not a suit commenced or prosecuted against the State.

The petitioner in this case conceded that the act of removal does not translate the State from a defendant to a plaintiff.

Yet, they are asserting that the cases where the State has entered in as a plaintiff somehow are applicable, and they are not applicable.

Justice Scalia: But on your theory, even if the State had come in as a plaintiff in the first place, you would have sovereign immunity, wouldn't you?

Because the legislature hasn't waived it.

Mr. Orland: Your Honor, the Eleventh Amendment would just simply be inapplicable if the State entered as... as a plaintiff.

Justice Breyer: I thought you were claiming sovereign immunity.

I mean, it... I mean, sovereign immunity today is something broader than the strict terms of the Eleventh Amendment, and I thought you were making the... the full claim.

Mr. Orland: Your Honor, I'm sorry.

I'm baffled.

But I think that sovereign immunity--

Justice Breyer: Well, I have had that problem too in some of the prior cases.

Unknown Speaker: [Laughter]

Justice Breyer: But I... I haven't agreed with them, but I... I have to accept what they are.

And... and the... the principle of sovereign immunity is a principle today that is not limited by the... by the strict terms of the Eleventh Amendment.

Mr. Orland: --As was pointed out I guess in Alden is the Eleventh Amendment has stood for the greater principles of sovereign immunity, and I think that that's what we're talking about here.

And I think it's also been concretely held that the Eleventh Amendment in its broader principles perhaps doesn't apply to the State when it enters into an action as a plaintiff.

And I think that that's an entirely different... I'm sorry.

Justice Breyer: No.

I... I want to ask you a... a kind of question which is subsumed... a narrower question which is subsumed within the broader one, and that is let's... let's put this situation aside and assume that we have the... the conflict-free situation in which the employees have their own counsel and the... the State is... is represented simply by... by separate counsel.

The employees want to remove and the State, as... as a defendant separately represented, agrees to the removal.

On your theory, as I understand it, the State would still be able at a later time to claim its immunity because the legislature had not authorized that removal.

Is that correct?

Mr. Orland: It's not that the legislature hasn't authorized the removal.

It's that the legislature hasn't authorized a waiver of the State's immunity.

Justice Breyer: All right.

And... and so, in... in that particular case that I... I posed to you in which we have separately represented defendants, the State consents to the removal.

The State still would not have lost its immunity by consenting to the removal.

Mr. Orland: No, it would not, Your Honor, and I think--

Justice Breyer: All right.

Now, in that situation then, how do you answer the argument that came up in the briefs that that would give the... the State the opportunity to sit back and see how things go?

And if the... if the case turns out well for them, they can claim the... the judgment.

If the State doesn't go well for them, they can simply raise the question of immunity not only to escape the judgment, but to escape any estoppel later on.

I mean, is... is there any answer to that, or do you simply say, yup, that's a great position to be in and that's our position?

Mr. Orland: --Well, Your Honor, first of all, I would say that that is a different situation.

Obviously the Court knows that.

But this Court's jurisprudence is consistent with the State being able to assert its Eleventh Amendment immunity at any time.

The Court has not differed from that jurisprudence.

But what I would point out in this case is the State was very up-front from the beginning.

This wasn't--

Justice Breyer: No, I'm not talking about this situation.

I'm talking about where your position leads us.

And I take it that your position does lead us to the... to the sort of the options that... that I've just described.

Mr. Orland: --Your Honor, it does but... and I think that that would be consistent with this Court's jurisprudence.

But at the same time, I would suggest that the State has a vested interest in not going to trial at all.

So, I would suggest that since Ford, there probably haven't been a lot of situations where the State has been in a position of litigating a case to the end, and it hasn't come up since Ford.

So, I think that that's fairly significant.

Justice Scalia: Ms. Orland, what if... what if your... your State attorney general brings suit in Federal court?

Mr. Orland: Then the Eleventh Amendment simply doesn't apply.

Justice Scalia: Why?

He has no authority to waive sovereign immunity you say.

Mr. Orland: There's no waiver of sovereign immunity--

Chief Justice Rehnquist: What about a counterclaim by the defendant?

Mr. Orland: --There's no dipping into the State's pocket.

The counterclaim can go as far as the defense.

This Court has repeatedly found that an entry into a forum or the beginning of suit allows the party being sued to defend against the claim.

But that's not the same as dipping into the State's pocket.

What the petitioner is alleging is that somehow the bifurcation of cases is an unheard of result and that it should be exchanged from the State's... thank you.

Argument of Julie C. Parsley

Chief Justice Rehnquist: Thank you, Ms. Orland.

Ms. Parsley, we'll hear from you.

Mr. Parsley: Thank you, Mr. Chief Justice, and may it please the Court: The decision to waive sovereign immunity and consent to suit traditionally rests with the State's legislature, a body uniquely able to both balance challenges to the public fisc and determine when such a waiver is both in the citizens' will and the public good.

Justice Scalia: Have we inquired, when States bring a suit in Federal court, whether the State attorney general has authority to appear?

Because, you know, when you come in Federal court and you're subject to a counterclaim.

Have we... have we asked district judges to inquire whether the State attorney general has authority to waive sovereign immunity?

Mr. Parsley: No, Your Honor, the Court has not.

Justice Scalia: We have not.

And... and is it your position that as soon as a counterclaim is filed, what?

The whole suit has to be dismissed or... or what... what happens then?

Mr. Parsley: No, Your Honor.

Our position would be that as to the... the specific compulsory counterclaim that may be litigated against the State as a plaintiff, that is permissible to the extent of the res.

In other words, when the State comes in as a plaintiff--

Justice Stevens: Excuse me.

To the extent... I didn't hear the word.

Mr. Parsley: --The res, the subject matter of the litigation.

Justice Scalia: So, you say the attorney general, even though he has no power to waive State sovereign immunity, can achieve a waiver of State sovereign immunity by bringing suit which is subject to a compulsory counterclaim.

Mr. Parsley: He does have the authority to represent the State, and presumably he has the authority also by the legislature to bring the cause of action that he is asserting with the State as a plaintiff.

Justice Scalia: So, the same here when... when he doesn't have authority to waive sovereign immunity, but he has authority to remove to Federal court.

And if that results in a waiver of sovereign immunity, so be it.

Mr. Parsley: But the two are specifically different because, as a defendant, you're looking at this... it would be an implied waiver as opposed to an express waiver.

As a plaintiff, even the United States, it has been admitted, they are not... they are also subject to waiver for compulsory counterclaims to the extent of the res.

It has been--

Chief Justice Rehnquist: Why isn't that an implied waiver too?

Brings suit... the... the State brings suit in Federal court is subject to a counterclaim.

And you're saying that the State is... is subject to adjudication of that counterclaim.

Now, there's no express waiver there.

It's just an implied waiver from bringing the action in Federal court.

Why isn't removal the same?

Mr. Parsley: --Well, that is the situation that occurred in Gardner, Your Honor, for the... for the proof of claim instance with bankruptcy litigation.

And that is... so, it is not... and it's not been seen as an implied waiver because the State has put in issue the res and the subject matter of the litigation.

But in this case--

Chief Justice Rehnquist: Well, you speak of the res of the litigation.

Supposing the State simply wants to collect a bad debt from somebody.

There's no res.

Maybe he doesn't have anything at all.

But it simply wants a money judgment against him for $100,000.

Mr. Parsley: --Yes, Your Honor.

That would be... then the State would be able--

Chief Justice Rehnquist: There's no... there's no res there.

Mr. Parsley: --But it is the subject matter of the litigation; that is, his... that would be what the State would be adjudicating.

In this instant, what distinguishes it is that the State is not transformed from a defendant to a plaintiff when it removes to Federal court, and the literal text of the Eleventh Amendment proscribes cases prosecuted against a State.

Justice Breyer: What happens under State law, say, in Texas if... it's a tort action.

It's against the State.

Everybody in your office thinks that there is no sovereign immunity, but just before the jury is about to come in, somebody dredges up a statute and says, oh, my God, we had sovereign immunity.

We forgot to make the defense.

Mr. Parsley: The Texas Supreme Court has held that sovereign immunity is subject matter jurisdiction.

Justice Breyer: So, in other words, you can come in in Texas, a jury is about to come in, you're just about to lose the case, the last minute you discover this defense, and just they'll... they'll dismiss the case?

Mr. Parsley: That actually, to my knowledge, has not happened yet.

That case was decided only a couple of years ago.

Justice Breyer: They wouldn't say you had waived it.

Mr. Parsley: No.

We... we would not assert that we have waived--

Justice Breyer: I know you wouldn't assert that.

I just wonder what the judge in Texas--

Mr. Parsley: --We would hope the judge would agree with us.

But that... and that is.

You put your finger on the point that some... that people dislike about sovereign immunity.

It does give the State superior rights in some instances to other litigants, but that is because the State is a sovereign, just like the U.S. is a sovereign.

The immunity--

Justice Scalia: --I don't... I don't object to that.

I object to... to a dog in the manger, I mean, to say one thing and then say another thing.

And here's the State saying I want to be in Federal court and... and gets there and the State says, I don't want to be in Federal court.

I mean, that... that's what I object to.

Mr. Parsley: --Well--

Justice Scalia: You can have all the sovereign immunity you want.

Just... you know, just decide whether you want it or don't want it.

Mr. Parsley: --And all... all we are really asking for, Justice Scalia, is to have the same defenses that would be available to us if the plaintiff had chosen to file the lawsuit in Federal court.

We are just employing a procedural device to bring us into Federal court so that we can adjudicate the claims of our employees and that, if we have defenses, they can be heard.

Justice O'Connor: Well, they could be adjudicated in State court, couldn't they?

The Federal issues?

Mr. Parsley: They could be.

They... they could be adjudicated in State court.

Justice O'Connor: What they don't like here is no interlocutory appeal I gather.

Mr. Parsley: Yes, that is... that's true.

Justice O'Connor: Well, that's the State's own fault.

I mean, the State could have an interlocutory appeal if it chose to do so, couldn't it?

Mr. Parsley: They could, but in the Johnson case, of course, this Court stated that the State courts do not have to have a parallel system similar to the Federal courts.

Justice Kennedy: I take it the State of Texas is not asserting that its courts are less capable of interpreting Federal law than Federal courts are?

Mr. Parsley: Not... not at all, Justice Kennedy.

Not at all.

And we don't mean any disrespect in that regard.

Justice Scalia: In fact, you prefer your interpretation of Federal law, don't you?

[Laughter]

Justice Ginsburg: It seems to me everything that you've said leads to the conclusion that this was a non-removable case from day one and that the State should not have... should not have joined that removal petition.

Mr. Parsley: Actually that... we do not agree with that because there's no clear statement in the removal statute indicating that the State would have waived its immunity had it removed.

Also, there's no section 5 power on behalf of Congress to actually abrogate the State's immunity.

So--

Justice Ginsburg: I don't get... I don't get it all.

If the State is immune from suit in the Federal court, then it seems to me it follows it has no authority to remove the case to the Federal court.

It can't initiate action.

It can't say, Federal court, hear this case, and then say, Federal court, you don't have power to hear it.

It seems the two go together.

If the Federal... if the State is not amenable to suit in Federal court, the State is not positioned to remove the case to Federal court.

Mr. Parsley: --But that would be similar to the... to the argument they made in Schacht in that you cannot remove a case with barred claims.

The removal statute does not prohibit the State... States from removing--

Justice Ginsburg: Not barred... the statute of limitations is a defense.

You're saying that the... the State has not consented to suit.

As long as it doesn't consent to suit in Federal court, it seems to me it's in a non-removable position in the State court because either it's going to consent or it's not going to consent.

If it doesn't consent, it... it doesn't have any authority to remove.

Mr. Parsley: --Well, it may be a fine distinction, but consenting to the removal, we would argue and is argued in the briefs, is not the same thing as consenting to waive our Eleventh Amendment immunity.

The only way we could actually waive our Eleventh Amendment immunity is if we were vested with that power by the legislature.

And Texas is not, Georgia is not.

And under Ford Motor Company, that's the appropriate analysis that the court would engage in, whether we were--

Justice Ginsburg: What... what do you think is at stake now?

On the... I think that you did... you did bring up the question of 1983 liability, that there... that this was not a Federal case to begin with.

Is that... is that right?

Mr. Parsley: --I believe that... that Georgia, when they moved... when they answered, they both raised Will and the Eleventh Amendment in their answer.

That is correct.

Justice Ginsburg: So, it seems to me that we are arguing over an academic question because no matter what, this case is going to return to the Georgia State court.

Mr. Parsley: It's not academic on this... for this point.

This is really a reinvigoration of the implied waiver doctrine that the Court fully rejected in College Savings Bank.

This is... the analogy is parallel to the market participation theory.

In the market... market participation theory, the State was held as having waived its immunity because it voluntarily engaged in an activity--

Justice Ginsburg: Yes, but all those could be very interesting questions.

The bottom line, no matter how you look at this case, is it goes back to the State court.

So, if... you... you had said initially no 1983 liability.

Right?

And that the Federal court should--

Mr. Parsley: --Yes, Your Honor.

Justice Ginsburg: --And I had thought that in the recent case we had said if you have that picture, the Federal court is supposed to deal with the 1983.

Wasn't it Vermont Agency?

Mr. Parsley: Yes, Vermont Agency.

The statutory question.

Justice Ginsburg: Yes, right.

Mr. Parsley: That it could be dealt with first, yes.

Justice Ginsburg: Right.

Mr. Parsley: That is entirely possible, and the district court... it would have been well advised to have done that, but the district court did not choose to do that.

Instead, it ruled on the Eleventh Amendment.

Justice Ginsburg: But in any... any way you look at this, the case ends up in... in the State court.

So, it seems to me that you really are arguing an academic question.

Mr. Parsley: Well, to the extent that the petitioner is challenging the Eleventh Circuit's judgment, they do want to remain in Federal court.

And so, therefore, they are actually challenging the judgment and not just the opinion.

So, there is a justiciable question on appeal.

I did want to say quickly that in relation to the implied waiver doctrine, that a State shouldn't have to choose between what is an otherwise legal activity, which is removal, and the forfeiture of its immunity.

Rebuttal of David Jeremy Bederman

Chief Justice Rehnquist: Thank you, Ms. Parsley.

Mr. Bederman, you have 4 minutes left.

Mr. Bederman: If I may, Justice Ginsburg, I was not entirely as helpful as I could have been in response to your earlier lines of questioning.

If I can be of assistance to the Court.

Professor Lapides, in his complaint, alleged declaratory grounds and declaratory relief at... at pages... joint appendix pages 17 and 19.

And a review of the district court's first order at petition appendix 27a, while admittedly the... the holding is not entirely crystal clear, in terms of reserving the claims against individuals in their personal capacity, although no mention is made of the nature of the relief, the cases cited by the district court maybe are indicative that in the district court's mind was the open question of the availability of declaratory relief.

Justice Scalia: Are you talking about paragraph 26 of the complaint?

Mr. Bederman: Yes, sir, I am.

Justice Scalia: Well, that just says, I want a judicial finding that what Kansas did amounts to defamation.

I take it that's a defamation claim under State law.

What has that got to do with it?

Mr. Bederman: Well, I think, of course, all paragraphs in a complaint need to be read together in view of the earlier allegations, in view of this course of conduct interfering with Professor Lapides' constitutionally granted due process rights at both paragraphs 1 and at paragraph 8 of the complaint.

I think when read together, paragraph 26 fairly raises in terms of--

Justice Breyer: Read them together.

I just read it.

What he says is I want a judicial finding that Kansas State action gives rise to a new... is defamatory, thereby giving rise to a new cause of action every time the information is published.

Okay?

Read it together so it states a Federal claim.

I'm not saying you can't.

I just want to hear it.

Mr. Bederman: --No.

I'm not sure on the bare terms of paragraph 26 that the request for declaratory relief is particularly tied to a Federal cause of action.

All I can point the Court to is both paragraphs 1 and 8 of the complaint which frame the Federal question.

If I may, in terms of... of a second point, about the concern for tactical disadvantage that the State may be put in, if the Court rules either that removal constitutes waiver, that the Georgia Supreme Court in a 1994 decision made clear that denials of qualified immunity defenses are subject to immediate certification for appeal by trial court judges.

So, I think it's extravagant to suggest that under Georgia law currently that there is no effective mechanism for the review, immediate review, of... of denials of qualified immunity defenses.

And this is more fully explained at reply brief page 11 filed by the petitioner.

If I may make one last point, and that is by no means is petitioner asserting that by virtue of removal, plaintiffs become defendants and defendants become plaintiffs.

Instead, our submission is simply that removal is a forum selection, that when the State engages in that forum selection, it is waiving, for purposes of the case and the authority of the Federal courts to adjudicate, the State's forum immunity under the Eleventh Amendment.

If there are no other--

Justice Breyer: Well, I don't mean to pursue a red horse.

I just don't want to miss something if it's there.

Where in paragraph 1 or 8 does it ask for a declaration?

Mr. Bederman: --It does... neither paragraph 1 nor 8 specifically refers to declaratory relief.

If you... if you flip to the prayer for relief at pages 18 and 19, of course, most of it is for... for monetary damages.

But, of course, the last prayer is for all relief that the court may deem just and proper.

Chief Justice Rehnquist: Thank you.

Thank you, Mr. Bederman.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the court in No. 01-298, Lapides versus the Board of Regents of the University System of Georgia will be announced by Justice Breyer.

Argument of Justice Breyer

Mr. Breyer: The Eleventh Amendment as it has been interpreted provides a State with Immunity against suits in the Federal Court brought against the State by a citizen of that State or of another State.

But that state can waive that immunity, it can consent to sue.

There is a long line of cases that indicate that the State does consented, does waived that immunity when it appears in the Federal Court and that appearance is voluntary.

This case focuses upon a citizen who initially sued a State in the State Court on a State Law claim, in respect to which the State had waived immunity from suit in the State Court but it had not waived immunity from suit in the Federal Court.

Subsequently, the State defendant which was the State, it was a defendant in the State Court, had found -- and I am not going to go how it found the special reasons which are really irrelevant -- found that it could remove the case voluntarily into the Federal Court, and it did so.

The question before us is has the state in voluntarily removing the case consented to the suit in the Federal Court, thereby waiving its Eleventh Amendment immunity.

The Court of Appeals concluded that it did not waive the immunity but we conclude to the contrary that it did waive the immunity.

Our basic reasons are: first, taht we create an anomaly where the State permitted to invoke Federal Court jurisdiction to removal while denying that the federal judicial power can extend to the case by asserting sovereign immunity.

Moreover that isn't just theoretical but all kinds of unfair results could take place if that were permitted.

Then we considered the basic reasons of the Court of Appeals held to the contrary.

It found that State Law did not permit the State Attorney General to waive the immunity by removal or otherwise, but in our view, the matter is one of Federal Law not State Law, and we conclude that Federal Law does find waiver in these circumstances.

We note that it is possible to read an earlier case in this court Ford Motor Company versus Department of the Treasury of Indiana as suggesting that the lower court was right but we overruled that case in so far as it does so.

We reverse the Court of Appeals.

The decision is unanimous.