The Federalism Project

American Enterprise Institute

Supreme Court

Does a State Waive Sovereign Immunity when it Removes a Case from State to Federal Court? 

Lapides v. Board of Regents of Georgia No. 01-298 

A professor sued his employer, Kennesaw State University, claiming violation of both Georgia common law (of slander and libel) and his federal rights under the 14th Amendment.  The Georgia Attorney General (on behalf of the University) responded by removing the case to federal court, negating the state common law claims. He then argued that Georgia can't be sued in federal court because this violates its sovereign immunity.  The Georgia AG isn't the first to perform this maneuver; many AG's remove cases from state to federal court to benefit the state (by way of 11th Amendment immunity) and state officials (by way of interlocutory appeal provisions available in federal court).

Breyer, writing for an unanimous court, dumped some rain on this parade by announcing a clear rule: when a AG voluntarily removes a case from state to federal court, it amounts to a waiver of state immunity. The waiver is valid, furthermore, whether or not the AG has express state authority to consent to suit. As Breyer explains, "it would seem anomalous or inconsistent for a state both (1) to invoke federal jurisdiction...and (2) to claim 11th Amendment immunity...a Constitution that permitted States to follow their litigation interests by freely asserting both claims in the same case could generate seriously unfair results."


Lapides v. Board of Regents (PDF)

Solicitor General's successful amicus brief urging new rule (PDF)

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