United States District Court, M.D. Alabama, Northern Division
ANTHONY L. GREEN, ., Plaintiffs,
HAL TAYLOR, in his official capacity as Acting Secretary of Law Enforcement for the Alabama Law Enforcement Agency, ., Defendants.
SUPPLEMENTAL MEMORANDUM OPINION AND ORDER
A. BAKER UNITED STATES MAGISTRATE JUDGE
matter is before the court following the status conference
conducted September 21, 2017, at which the court advised the
parties of its intention to enter an order on the issue of
Eleventh Amendment Immunity. The intent of this Order is to
supplement the court's Memorandum Opinion and Order
issued September 20, 2017, which implicitly rejected the
Defendants' arguments that immunity bars Plaintiffs'
claims against them. This Supplemental Memorandum Opinion and
Order will serve to explicitly address the court's ruling
on Defendants' claim of immunity.
court will not repeat the background and case facts here, but
rather refers the parties and any reviewing court to the
September 20, 2017, Memorandum Opinion and Order. (Doc. 67).
their brief, Graham and the Secretary argue Eleventh
Amendment Immunity is an absolute bar to a suit against them
in their official capacities. (Doc. 38 at
26-27). The Eleventh Amendment provides immunity
by restricting federal courts' judicial power:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign
U.S. Const., Amend. XI. Defendants bear the burden of
establishing they are entitled to Eleventh Amendment Immunity
from suit. See Misener Marine Const., Inc. v. Georgia
Ports Auth., 199 F. App'x 899, 900 (11th Cir. 2006)
(per curiam) (affirming denial of defendant's motion to
dismiss where it “failed to satisfy its burden of
establishing Eleventh Amendment Immunity at this procedural
well-settled that Eleventh Amendment immunity bars suits
brought in federal court when the State itself is sued and
when an “arm of the State” is sued. See Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 280 (1977). To receive Eleventh Amendment immunity, a
defendant need not be labeled a “state officer”
or “state official, ” but instead need only be
acting as an “arm of the State, ” which includes
agents and instrumentalities of the State. See Regents of
the Univ. of Cal. v. Doe, 519 U.S. 425, 429-30
(1997). Thus, because a suit against a government official in
her official capacity is effectively a suit against the
government entity, the official may invoke those immunities
the entity itself possesses. Hafer v. Melo, 502 U.S.
21, 25 (1991). The bar of the Eleventh Amendment to suit in
federal courts extends to States and state officials in
appropriate circumstances, but does not extend to counties
and similar municipal corporations. Mt. Healthy City Sch.
Dist. Bd. of Educ., 429 U.S. at 280 (internal citations
Eleventh Amendment bar to suit is not absolute.”
Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S.
299, 304 (1990). A State may consent to suit in federal court
or Congress may abrogate the States' sovereign immunity.
Id. (internal citations omitted).
has been found in circumstances in which a State has invoked
the federal forum by removal. See Lapides v. Bd. of
Regents of Univ. Sys. of Ga., 535 U.S. 613, 624 (2002)
(“removal is a form of voluntary invocation of a
federal court's jurisdiction sufficient to waive the
State's otherwise valid objection to litigation of a
matter … in a federal forum”); see also,
McLaughlin v. Bd. of Trs. of State Colls. of Colo., 215
F.3d 1168, 1170 (10th Cir. 2000) (holding that “an
unequivocal intent to waive immunity seems clear when a
state, facing suit in its own courts, purposefully seeks a
federal forum.”). As the Court in Lapides
explained, “It would seem anomalous or inconsistent for
a State both (1) to invoke federal jurisdiction, thereby
contending that the ‘Judicial power of the United
States' extends to the case at hand, and (2) to claim
Eleventh Amendment immunity, thereby denying that the
‘Judicial power of the United States' extends to
the case at hand.” Lapides, 535 U.S. at 619.
Although the Lapides Court expressly limited its
holding to state-law claims because the only federal claim in
that case had been dismissed, the Court discussed waiver and
removal in broad language, referencing the “general
principle” that immunity is waived where a State
voluntarily invokes a federal court's jurisdiction.
Id. at 620.
following Lapides have similarly applied waiver of
immunity from suit in a federal forum in the removal context.
See, e.g., Meyers ex rel. Benzing v. Texas, 410 F.3d
236, 241 (5th Cir. 2005) (“Court will find a waiver
either if (1) the state voluntarily invokes federal court
jurisdiction, or (2) the state makes a ‘clear
declaration' that it intends to submit itself to federal
court jurisdiction.”); Lombardo v. Pennsylvania,
Dep't of Pub. Welfare, 540 F.3d 190, 197 (3d Cir.
2008) (“When a State, facing suit in its own courts,
purposefully requests a federal forum, it expresses a clear
intent to waive immunity from suit.”). And
“[m]ost circuit courts seem to agree that the
Lapides Court's reasoning should apply in cases
involving federal law claims as well as those involving state
law claims.” Stroud v. McIntosh, 722 F.3d
1294, 1300 (11th Cir. 2013) (collecting cases).
Stroud, the Eleventh Circuit discussed the split
among the circuits regarding the import of
Lapides' holding as it relates to a State's
immunity from liability as distinguished from its immunity
from suit. Id. at 1300-01. Discussing sovereign
immunity as a divisible concept, the Stroud court
held that “a state, if it chooses, can retain immunity
from liability for a particular claim even if it waives its
immunity from suit in federal courts.” Id. at
1301. As pointed out in Stroud, however, other
circuits interpret Lapides “to establish the
general rule that a state's removal to federal court
constitutes a waiver of immunity, regardless of what a state
waived in its own courts.” Id. at 1300 (citing
Bd. of Regents of the Univ. of Wis. Sys. v. Phoenix
Int'l Software, Inc., 653 F.3d 448, 461 (7th Cir.
2011); Embury v. King, 361 F.3d 562, 564-65 (9th
Cir. 2004); Estes v. Wyo. Dep't of Transp., 302
F.3d 1200, 1204-06 (10th Cir. 2002)).
minimum, the Secretary waived his immunity from suit by
removing the case to federal court. The court need not decide
whether the removal also waived his liability as application
of the recognized exception to the Eleventh Amendment bar to
suits against States, as enunciated in Ex parte
Young, 209 U.S. 123 (1908), necessitates denial of
summary judgment on behalf of both Defendants here.
Under the doctrine of Ex parte Young, there is a
long and well-recognized exception to this rule for suits
against state officers seeking prospective equitable relief
to end continuing violations of federal law. … The
availability of this doctrine turns, in the first place, on
whether the plaintiff seeks retrospective or prospective
Ex parte Young has been applied in cases where a
violation of federal law by a state official is ongoing as
opposed to cases in which federal law has been violated at
one time or over a period of time in the past. Thus, Ex
parte Young applies to cases in which the relief against
the state official directly ends the violation of federal
law, as opposed to cases in which that relief is intended
indirectly to encourage compliance with federal law through
deterrence or simply to compensate the victim. Remedies
designed to end a continuing violation of federal law are
necessary to vindicate the federal interest in ...