Anthony L. Green v. Jackie Graham
Opinion of the Court
This interlocutory appeal presents questions about state sovereign immunity and related principles of federal jurisdiction. Anthony Green, Brooke Walker, and Earl Howton Jr. petitioned a state court for injunctive and declaratory relief entitling them to an enhanced status in the retirement system for Alabama state employees. The state officials named as defendants removed the action to federal court, which waived their immunity from suit in a federal forum, see Lapides v. Bd. of Regents of Univ. Sys. of Ga. ,
I. BACKGROUND
Green, Walker, and Howton are employees of the Alabama Law Enforcement Agency and participants in the Employees' Retirement System of Alabama. The Retirement System administers different retirement plans for different groups of state employees. The most generous retirement status, "state policeman," applies to employees "approved by the State Personnel Board to perform the duties of highway patrolman or a beverage control agent or a crime investigator."
Although the plaintiffs' retirement status is law enforcement, they allege they *959are entitled to participate in the state-policeman plan based on the statutory definition, and they allege that they were hired with the understanding that they would enjoy state-policeman retirement status. They have unsuccessfully sought a state-policeman upgrade for years.
In September 2015, the plaintiffs filed a complaint in the Circuit Court of Montgomery County against Spencer Collier, then secretary of the Agency, and Dr. David Bronner, chief executive officer of the Retirement Systems of Alabama, both in their official capacity. The complaint alleged that the plaintiffs' job duties qualified them as "state policemen" because they "perform[ed] the duties of ... a crime investigator."
The plaintiffs later amended their complaint. The amended complaint joined Jackie Graham, head of the State Personnel Department, as a defendant. It also added federal and state due-process claims to the earlier-stated equal-protection claims. The district court later substituted Collier with Stan Stabler, Collier's successor as secretary of the Agency.
Graham and Stabler moved for summary judgment. Among other defenses, they argued that state sovereign immunity barred the plaintiffs' claims against them. Before the district court ruled on the motion, it substituted Stabler with Hal Taylor, Stabler's successor as secretary of the Agency.
The district court denied Graham and Taylor's motion for summary judgment. It concluded that plaintiffs' claims fall within the Ex parte Young exception to state sovereign immunity for prospective relief to redress ongoing violations of constitutional rights. Although the district court discussed the effect of removal of an action on state sovereign immunity, it did not base its ruling on that ground. Nor did the district court address the officials' argument that Ex parte Young cannot dispel immunity from the plaintiffs' state-law claims, see Pennhurst State Sch. & Hosp. v. Halderman ,
II. JURISDICTION AND STANDARD OF REVIEW
Although we ordinarily have jurisdiction to review only "final decisions of the district courts,"
III. DISCUSSION
We divide our discussion in four parts. First, we explain that we have jurisdiction to consider only Graham and Taylor's alleged immunity from suit, not their immunity from liability. Second, we explain that both Graham and Taylor have waived their *960immunity from suit in a federal forum. Third, we explain why we decline to consider Graham and Taylor's contention-raised for the first time at oral argument-that they retain immunity from suit under the Alabama Constitution despite their waiver of federal-forum immunity. Fourth, we explain that we lack jurisdiction to consider any other issues.
A. We Lack Jurisdiction to Consider Graham and Taylor's Immunity from Liability.
Graham and Taylor argue that we should reverse based on their immunity from liability, but our jurisdiction in this interlocutory appeal is limited to Graham and Taylor's potential immunity from suit. This conclusion follows from the principles of the collateral-order doctrine. It also comports with our and our sister circuits' consistent practice.
In Stroud , we explained that "sovereign immunity is a divisible concept," and we particularly distinguished a state's "immunity from suit in federal courts" from its sovereign "immunity from liability."
Because Stroud was not an interlocutory appeal, we did not ask whether a denial of any one of the "multiple aspects" of state sovereign immunity,
Even before Stroud expressly acknowledged the divisibility of state sovereign immunity, we recognized that an immediate appeal from a denial of an immunity under state law is available only if the immunity "is an immunity from suit rather than simply a defense to substantive liability." Griesel v. Hamlin ,
*961B. Graham and Taylor Have Waived Their Immunity from Suit in a Federal Forum.
We now consider whether Graham and Taylor can assert any immunity from suit. In Stroud , extending the reasoning of Lapides , we held that a defendant entitled to state sovereign immunity-that is, a state, an arm of the state, or a state official-waives its immunity from suit in a federal forum whenever it invokes federal jurisdiction by removing a suit against it to federal court.
We have never addressed the question whether removal of an action waives the forum immunity of a later-joined state official. "Longstanding principles of federal law oblige us to inquire sua sponte whenever a doubt arises as to the existence of federal jurisdiction," Vermeulen v. Renault, U.S.A., Inc. ,
The question concerns the structure of state sovereign immunity. When multiple state entities are joined as defendants in an action, does each of them possess an independent quantum of the state's overall sovereign immunity, so that one state defendant can waive its immunity without affecting the immunity of the others? See Nat'l R.R. Passenger Corp. v. Rountree Transp. & Rigging, Inc. ,
We conclude that the removal of the action waived Graham's forum immunity because her forum immunity is none other than that of the State of Alabama. The principles of state sovereign immunity prohibit "not only actions in which a State is actually named as a defendant, but also certain actions against state agents and state instrumentalities." Regents of the Univ. of Cal. v. Doe ,
The Supreme Court has consistently recognized that sovereign immunity belongs *962to the state, and only derivatively to state entities and state officials. See, e.g. , Va. Office for Prot. & Advocacy v. Stewart ,
In Stroud , we explained that removal waives a state's forum immunity from claims first joined after removal, see
In this appeal, were Graham to contest that she is subject to suit in a federal forum, it would be one and the same party in interest-the State of Alabama-that both waived and asserted forum immunity in one and the same case. We reject that contradiction. The removal of the action by the state through Collier and Bronner waived Graham's forum immunity.
In the alternative, Graham unambiguously waived her federal-forum immunity through counsel at oral argument. Oral Argument at 8:00-12. And Taylor's forum immunity was waived when his predecessor in office removed the action to federal court. Suits against state officials in their official capacity are "only another way of pleading an action against an entity of which an officer is an agent." Hafer v. Melo ,
C. Graham and Taylor's New Argument for State-Law Immunity from Suit Is Forfeited.
Because our jurisdiction is limited to immunity from suit and Graham and Taylor have waived their immunity from suit in a federal forum, we must consider whether we have jurisdiction over any remaining issue of immunity from suit. If state sovereign immunity comprises only two elements-immunity from suit in a federal forum and immunity from liability-then the waiver of Graham and Taylor's forum immunity means that our jurisdiction is exhausted. But, at *963oral argument, Graham and Taylor proposed for the first time a theory of sovereign immunity that would enable them to maintain, and us to hold, that they are immune from suit despite the waiver of their federal-forum immunity.
Under Graham and Taylor's belated theory, sovereign immunity comprises not two but three distinct elements. First, there is the limit on the federal judicial power that the Eleventh Amendment "recognizes" but does not create: "that states ordinarily enjoy sovereign immunity from suits in federal court." Seminole Tribe of Fla. v. Fla. Dep't of Revenue ,
The Fifth Circuit rejected the theory of a distinct immunity from suit under state law in Meyers ex rel. Benzing v. Texas ,
True, "the Eleventh Amendment ... can be raised at any stage of the proceedings." Calderon v. Ashmus ,
We deem Graham and Taylor's new argument forfeited. If a separate state-law immunity from suit were to exist, it would not be jurisdictional. A defense rooted in state law cannot define the jurisdiction of the federal courts, which derives from the Constitution and acts of Congress. See U.S. Const. Art III, §§ 1 -2 (vesting "[t]he judicial Power of the United States" in "one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish," and providing that "[t]he judicial Power shall extend" to specified "Cases" and "Controversies"); Sheldon v. Sill ,
D. We Have No Jurisdiction to Consider Graham and Taylor's Other Arguments.
Because Graham and Taylor have either waived or forfeited any immunities from suit, we lack interlocutory jurisdiction to consider their other arguments. They contend that removal of the action did not waive their immunity from liability, but we have explained why we cannot consider that argument on interlocutory appeal.
Graham and Taylor also argue that the district court erred in three ways when it held that Ex parte Young applied to the plaintiffs' claims. First, they argue that the plaintiffs' claims do not fit within the Ex parte Young exception because the relief they seek is retrospective, not prospective. Second, they argue that the Ex parte Young exception cannot apply because Graham and Taylor lack the authority to classify the plaintiffs as state-policeman employees. Based on the text of the statute that defines a "state policeman,"
Because no immunity from suit is at stake, we lack jurisdiction to adjudicate these arguments. The plaintiffs-both in their appellate brief and at oral argument-have unambiguously disclaimed any relief that is not prospective, and we trust that the district court will hold them to that express waiver as this case proceeds. We also trust that the district court will manage the case to ensure that all parties necessary to effectuate prospective relief are joined to the action and will carefully respect the limits of the Ex parte Young exception.
IV. CONCLUSION
We AFFIRM the denial of immunity from suit to Graham and Taylor.
Concurring Opinion
*965This case presents technical questions about sovereign immunity. I join the majority opinion because I agree we have jurisdiction to review the denial of what the majority calls "immunity from suit" but lack jurisdiction to consider "immunity from liability." Maj. Op. at 958. Because I've noticed that those terms get used differently in different contexts, I write separately to explain my understanding of the way we use them here.
As I understand it, "immunity from suit" means the same thing as "forum immunity." Indeed, I read the majority opinion to use these terms interchangeably here. Maj. Op. at 960, 961; see also Stroud v. McIntosh,
Next, I understand what the majority calls "immunity from liability" to be in the nature of an affirmative defense. See Meyers ex rel. Benzing v. Texas,
I concur in the majority opinion.
Reference
- Full Case Name
- Anthony L. GREEN, Brooke M. Walker, Earl E. Howton Jr., Plaintiffs-Appellees, v. Jackie GRAHAM, in Her Official Capacity as Director of the State of Alabama Personnel Department, Hal Taylor, in His Official Capacity as Secretary of Law Enforcement for the Alabama Law Enforcement Agency, Defendants-Appellants.
- Cited By
- 23 cases
- Status
- Published