Metropolitan News-Enterprise


Wednesday, March 17, 2004


Page 1


University’s Removal of Case to Federal Court Waives Sovereign Immunity, Ninth Circuit Rules


By a MetNews Staff Writer


A state’s removal of a civil action to federal court waives the sovereign immunity conferred by the Eleventh Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

“Allowing a State to waive immunity to remove a case to federal court, then ‘unwaive’ it to assert that the federal court could not act, would create a new definition of chutzpah,” Judge Andrew Kleinfeld wrote for the court.

  Chutzpah “is that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan,” the judge explained in a footnote, citing Leo Rosten’s “The Joys of Yiddish.”

The ruling came as the court rejected the University of California’s appeal from an order denying its motion to dismiss a suit by Dr. Stephen Embury. The physician, who was fired by the university, claims his discharge violated the state and federal due process clauses and state labor law.

The UC removed the suit to federal court in April 2001, then moved to dismiss for failure to state a claim. The motion was granted, but with leave to amend.

Embury amended his complaint, and the UC then moved to dismiss, arguing Eleventh Amendment immunity for the first time.

At the hearing on the second motion, U.S. District Judge Claudia Wilken of the Northern District of California inquired as to whether the state was raising immunity as to the entire case, or only as to some of the claims. Defense counsel expressed uncertainty and asked for time to confer with his client.

A month later, the university’s counsel notified the court that UC was claiming immunity as to all claims. Wilken denied the motion, citing earlier cases condemning “improper manipulation of the judicial process” and ruling that the state waived any immunity by removing the case.

Agreeing with the district judge, Kleinfeld cited Lapides v. Board of Regents of University System of Georgia (2002) 535 U.S. 613. The high court in that case held unanimously that the state had waived Eleventh Amendment immunity, at least as to state law claims, by removing the case.

The court rejected the plaintiff’s federal claims for other reasons, leaving unresolved the issue as to whether the waiver of immunity applied to those claims as well.

In Embury’s case, the university conceded that Lapides, which was decided while its appeal from Wilken’s ruling was pending, foreclosed its claim of immunity on the state law causes of action. But it argued that it was still entitled to immunity from the federal claims, and in particular from a claim for damages.

The only federal claim in the original complaint was for declaratory and injunctive relief. 

But Kleinfeld said the waiver necessarily applies to the entire suit, including claims made by amendment after the action is removed.  He cited the Eleventh Amendment’s injunction that federal judicial power does not “extend to any suit in law or equity” against a state.

The “any suit,” language is significant, the judge said. Like the removal statute, he explained, the constitutional provision refers to actions rather than claims.

When a state removes an action to federal court,  he elaborated, it invokes federal judicial power “over the ‘suit,’ not just the claims that had already been made.”

Kleinfeld cited a1992 case in which the UC waived Eleventh Amendment immunity while the action was pending before the Ninth Circuit, but attempted to withdraw the waiver after the action was consolidated and became part of multidistrict litigation.

The Federal Circuit held that the waiver could not be withdrawn. “Upon entering the litigation area the Regents, like all litigants, became subject to the Federal Rules [and] accpted the authority of the court.”

The case is Embury v. King, 02-15030.


Copyright 2004, Metropolitan News Company