USCA4 Appeal: 23-1849 Doc: 36 Filed: 06/05/2024 Pg: 1 of 13

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1849

In re: SOUTH CAROLINA DEPARTMENT OF PARKS, RECREATION AND TOURISM.

In re: GOOGLE DIGITAL ADVERTISING ANTITRUST LITIGATION, 1:21-md- 3010-PKC; and STATE OF TEXAS, et al. v. GOOGLE LLC, 1:21-cv-6841-PKC.

_____________________________________________

SOUTH CAROLINA DEPARTMENT OF PARKS, RECREATION AND TOURISM,

Movant – Appellant,

v.

GOOGLE LLC,

Respondent – Appellee.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:23-cv-02100-JFA)

Argued: May 8, 2024 Decided: June 5, 2024

Before AGEE and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Judge Agee wrote the opinion in which Judge Thacker and Senior Judge Traxler joined. USCA4 Appeal: 23-1849 Doc: 36 Filed: 06/05/2024 Pg: 2 of 13

ARGUED: Robert W. Humphrey, II, WILLOUGHBY HUMPHREY & D’ANTONI P.A., Charleston, South Carolina, for Appellant. Jason R. LaFond, YETTER COLEMAN LLP, Houston, Texas, for Appellee. ON BRIEF: Mitchell Willoughby, Margaret M. O’Shields, Hunter R. Pope, WILLOUGHBY HUMPHREY & D’ANTONI, P.A., Columbia, South Carolina, for Appellant. Jamie Alan Aycock, Ayla S. Syed, YETTER COLEMAN LLP, Houston, Texas, for Appellee.

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AGEE, Circuit Judge:

Along with several other states, the State of South Carolina (“South Carolina” or

the “State”) sued Google LLC in federal court for violations of federal and state antitrust

laws. With South Carolina’s express approval, Google subpoenaed the South Carolina

Department of Parks, Recreation and Tourism (“SCPRT”) for discovery pertinent to its

defense. But SCPRT refused to comply. Asserting Eleventh Amendment immunity, SCPRT

moved to quash the subpoena. The district court below denied the motion, holding that any

Eleventh Amendment immunity that SCPRT may have otherwise been entitled to assert

was waived when the State, through its attorney general, voluntarily joined the federal

lawsuit against Google. SCPRT now appeals. We affirm.

I.

Several states led by Texas sued Google in the U.S. District Court for the Eastern

District of Texas for violating federal and state antitrust laws through its online display

advertising business. The particulars of Google’s alleged anticompetitive conduct are not

relevant for purposes of this appeal. Rather, we are concerned with the undisputed conduct

of a particular plaintiff: South Carolina.

After Texas and the other states filed suit, South Carolina, through its attorney

general, intervened “as a plaintiff state, in the public interest and on behalf of the people of

South Carolina.” J.A. 480. Thereafter, the state plaintiffs filed an amended complaint

naming South Carolina as a plaintiff. According to the operative complaint, all the state

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plaintiffs, including South Carolina, “bring this action in their respective sovereign

capacities and as parens patriae on behalf of the citizens, general welfare, and economy of

their respective states.” J.A. 232. And in doing so, the state plaintiffs expressly invoke

federal jurisdiction. See J.A. 233 (“The Court has jurisdiction over this action under

Sections 1, 2, and 4 of the Sherman Act,

& 4; Section[] 16 of the Clayton

Act,

; and under

, 1337, and 1407.”).

Discovery commenced, and Google served document requests on the state plaintiffs

through their respective attorneys general. The state plaintiffs objected to these requests,

asserting that the attorneys general “do not have the authority to search for documents that

are held by other state agencies or other governmental entities.” J.A. 94. Google therefore

served subpoenas duces tecum directly on the relevant state agencies, SCPRT among them,

to obtain the requested documents. The state plaintiffs, including South Carolina, explicitly

endorsed this course of action as the appropriate method of obtaining the discovery Google

sought. In a joint letter to Google, South Carolina and the other state plaintiffs wrote:

“Google issued Federal Rule 45 subpoenas to numerous state agencies, and State Plaintiffs

believe that these subpoenas are the proper channels for Google to seek documents that are

in the possession, custody, or control of those agencies.” J.A. 94–95; see also J.A. 94 (the

state plaintiffs averring that “[m]ost of Google’s [discovery requests] target documents that

are not within the possession, custody or control of State Plaintiffs and can be more easily

obtained from sources that are more convenient, less burdensome, or less expensive than

obtaining that information from State Attorneys General”).

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Despite South Carolina’s communicated position that Rule 45 subpoenas were the

“proper channels” for Google to seek documents in the possession of state agencies

separate from the attorney general’s office, SCPRT took a different view. When it received

one of these subpoenas, SCPRT filed a motion to quash in the U.S. District Court for the

District of South Carolina—the district where compliance with the subpoena is required

and thus where related challenges must be brought, see Fed. R. Civ. P. 45(d)(3)(A)—

arguing that Eleventh Amendment immunity shielded it from any obligation to comply.

Although it acknowledged that the State’s attorney general “may have waived a limited

portion of South Carolina’s sovereign immunity” by joining the federal suit against Google,

SCPRT maintained that the attorney general did not and could not “waive the subpoena

sovereign immunity of an agency he does not represent and over whose records he does

not have custody or control.” J.A. 27.

Following a hearing, the district court issued a written opinion denying SCPRT’s

motion. The court began by noting that it’s an open question in this circuit “whether a

subpoena can be considered a ‘suit’ for the purposes of Eleventh Amendment immunity”—

that is, whether Rule 45 subpoenas trigger a state’s Eleventh Amendment immunity or

whether they fall outside that immunity. J.A. 162. But the court ultimately found that it was

“unnecessary” to decide that issue for purposes of resolving the motion to quash. J.A. 163.

Instead, the court “[a]ssum[ed] without deciding that SCPRT is entitled to Eleventh

Amendment immunity” from a subpoena and held that “such immunity would have been

waived by South Carolina’s voluntary involvement in the underlying action pending in the

Eastern District of Texas.” J.A. 163. Elaborating, the court stated: “SCPRT’s immunity is

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derivative in nature. It only exists due to the immunity afforded to South Carolina and its

relationship to South Carolina as a state agency. Thus, it makes little sense[] to find a state’s

immunity can be imputed to its agencies but not its waiver of such immunity.” J.A. 164.

The district court further emphasized that Google had “initially requested the subject

documents and information from South Carolina through discovery” but was told by the

State (and the other state plaintiffs) that “Federal Rule 45 subpoenas are the proper channels

for Google to seek documents that are in the possession, custody, or control of those

agencies.” J.A. 164 (cleaned up). In the court’s view, “it would be fundamentally unfair to

punish Google for simply following South Carolina’s instruction to subpoena the requested

documents because South Carolina allegedly lacks custody, control, and possession over

documents within SCPRT.” J.A. 164–65.

SCPRT noted a timely appeal, over which we have jurisdiction under the collateral

order doctrine. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

(1993) (“States and state entities that claim to be ‘arms of the State’ may take advantage

of the collateral order doctrine to appeal a district court order denying a claim of Eleventh

Amendment immunity.”).

II.

We review a district court’s order concerning “the applicability of Eleventh

Amendment immunity de novo.” Harter v. Vernon,

, 336–37 (4th Cir. 1996).

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III.

This case presents two questions: (1) whether Eleventh Amendment immunity

applies to Rule 45 subpoenas; and (2) assuming that it does, whether the State, by joining

the federal action against Google, waived any such immunity SCPRT would have

otherwise been able to assert with respect to Google’s subpoena. Like the district court, we

find it unnecessary to address the first question because the second question is dispositive.

By joining the lawsuit against Google, the State voluntarily invoked the jurisdiction of a

federal court, thereby effecting a waiver of its Eleventh Amendment immunity as to all

matters arising in that suit. And because SCPRT’s immunity derives solely from that of the

State, South Carolina’s waiver of Eleventh Amendment immunity equally effected a waiver

of SCPRT’s immunity. The district court therefore properly denied SCPRT’s motion to

quash.

A.

The Eleventh Amendment provides that “[t]he 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 State.” U.S. Const. amend. XI. As construed by the Supreme Court, this

Amendment “confirmed . . . state sovereign immunity as a constitutional principle.” Alden

v. Maine,

, 728–29 (1999). Under that principle, “an unconsenting State is

immune from suits brought in federal courts by her own citizens as well as by citizens of

another State.” Port Auth. Trans-Hudson Corp. v. Feeney,

(1990). And

this immunity extends not just to the state, but also “to state agencies and other government

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entities properly characterized as arms of the State.” Gray v. Laws,

(4th

Cir. 1995) (cleaned up).

Importantly, however, “[t]he Eleventh Amendment bar to suit is not absolute.”

Feeney,

. Relevant here, a state waives its Eleventh Amendment immunity

when it “voluntarily invoke[s] the jurisdiction of [a] federal court.” Lapides v. Bd. of

Regents of Univ. Sys. of Ga.,

(2002) (emphasis omitted). And such a

waiver, long-standing Supreme Court precedent holds, is irrevocable: “[W]here a state

voluntarily become[s] a party to a cause, and submits its rights for judicial determination,

it will be bound thereby, and cannot escape the result of its own voluntary act by invoking

the prohibitions of the 11th Amendment.” Gunter v. Atl. Coast Line R.R. Co.,

(1906); accord Porto Rico v. Ramos,

(1914) (“[T]he immunity of

sovereignty from suit without its consent cannot be carried so far as to permit it to reverse

the action invoked by it, and to come in and go out of court at its will, the other party having

no right of resistance to either step.”).

With these principles in mind, we consider the case at bar.

B.

There is no dispute that SCPRT is an arm of the State and is thus ordinarily entitled

to share in South Carolina’s Eleventh Amendment immunity. But the parties disagree as to

the impact of the attorney general’s litigation conduct in adding the State as a plaintiff to

the federal lawsuit against Google.

According to SCPRT, because the attorney general “does not represent SCPRT or

have custody, possession, or control over its records,” and because he “did not bring his

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claims against Google in a sovereign capacity,” his joining the State to the litigation against

Google could not have waived the Eleventh Amendment immunity of SCPRT, which is a

“statutorily and constitutionally separate” state agency. Opening Br. 20, 33.

Google responds that by exercising his litigation control over the State, the attorney

general caused South Carolina to make a “general appearance in litigation in a federal

court,” resulting in a waiver of the State’s Eleventh Amendment immunity for purposes of

that litigation. Response Br. 8 (cleaned up). And because of that waiver, Google continues,

no immunity “is left for [the State’s] arms,” including SCPRT. Response Br. 10.

We agree with Google.

In Lapides, the Supreme Court made clear that a state waives its Eleventh

Amendment immunity “when [its] attorney general, authorized . . . to bring a case in

federal court, has voluntarily invoked that court’s jurisdiction.”

. That is

precisely what happened here. South Carolina’s attorney general, who is indisputably

authorized to bring a case on behalf of the State in federal court, invoked the jurisdiction

of a federal court by intervening in the antitrust action against Google. That act, Lapides

teaches, effected a waiver of the State’s Eleventh Amendment immunity.

So what does this mean for SCPRT? We think Google summarized it well: “As

South Carolina goes, so goes [SCPRT].” Response Br. 9. As an arm of the State, SCPRT

enjoys no independent immunity. Rather, its immunity derives solely from the State, the

sovereign to whom the immunity belongs. See Cash v. Granville Cnty. Bd. of Educ.,

, 223 (4th Cir. 2001) (stating that “state agents and state instrumentalities . . .

partake of the State’s Eleventh Amendment immunity” (emphasis added)); see also Va. Off.

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for Prot. & Advocacy v. Stewart,

, 253 (2011) (“Our cases hold that the States

have retained their traditional immunity from suit[.]” (emphasis added)). And if an arm of

a state enjoys Eleventh Amendment immunity only by virtue of its relation to the state, it

necessarily follows that when the state waives its immunity, then there no longer remains

any immunity that the arm may assert. Put simply, the arm is the state, and the state is the

arm. Cf. Hutto v. S.C. Ret. Sys.,

(4th Cir. 2014) (“The Eleventh

Amendment shields a state entity from suit in federal court if, in the entity’s operations, the

state is the real party in interest, in the sense that the named party is the alter ego of the

state.” (cleaned up)); Ristow v. S.C. Ports Auth.,

, 1053, 1055 (4th Cir. 1995)

(“[T]he Ports Authority, from an Eleventh Amendment perspective, is the alter ego of the

State of South Carolina” and thus “is entitled to Eleventh Amendment immunity from

suit.”). Accordingly, when the State waived its immunity by voluntarily joining the suit

against Google, it “nullified” any immunity defense that any of its arms, including SCPRT,

could have otherwise asserted. Owen v. City of Independence,

, 645–46 (1980)

(stating that “the principle of sovereign immunity . . . is necessarily nullified when the State

expressly or impliedly allows itself, or its creation, to be sued”).

South Carolina’s own litigation conduct in this case reflects a recognition of that

fact. After Google’s unsuccessful attempts to obtain discovery from the State’s attorney

general, South Carolina expressly endorsed Google’s alternative course of serving Rule 45

subpoenas directly on the state agencies in possession of the relevant documents, including

SCPRT: “Google issued Federal Rule 45 subpoenas to numerous state agencies, and State

Plaintiffs believe that these subpoenas are the proper channels for Google to seek

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documents that are in the possession, custody, or control of those agencies.” J.A. 94–95

(emphasis added); see also J.A. 94 (“Most of Google’s [discovery requests] target

documents that are not within the possession, custody or control of State Plaintiffs and can

be more easily obtained from sources that are more convenient, less burdensome, or less

expensive than obtaining that information from State Attorneys General.”). 1 As the district

court recognized, it would be “fundamentally unfair” to Google, J.A. 164, to permit SCPRT

to invoke Eleventh Amendment immunity in response to a subpoena that the State itself

told Google was “the proper channel[]” for seeking documents pertinent to the company’s

defense, J.A. 95—a defense Google is forced to mount because of claims that South

Carolina brought against it in federal court. See Lapides,

(observing “the

[Eleventh] Amendment’s presumed recognition of the judicial need to avoid inconsistency,

anomaly, and unfairness,” which might include a state’s “selective use of ‘immunity’ to

achieve litigation advantages” (emphasis added)); Ramos,

(stating that “the

immunity of sovereignty from suit without its consent cannot be carried so far as to permit

it to reverse the action invoked by it, and to come in and go out of court at its will, the other

party having no right of resistance to either step” (emphasis added)); cf. In re Creative

Goldsmiths of Wash., D.C., Inc.,

(4th Cir. 1997) (“[I]t would violate

the fundamental fairness of judicial process to allow a state to proceed in federal court and

1 Notably, one other South Carolina agency—the South Carolina Department of Social Services—was subpoenaed, and unlike SCPRT, it voluntarily complied by producing the responsive documents. 11 USCA4 Appeal: 23-1849 Doc: 36 Filed: 06/05/2024 Pg: 12 of 13

at the same time strip the defendant of valid defenses because they might be construed to

be affirmative claims against the state.” (emphasis added)). 2

SCPRT’s arguments urging a different result are unavailing. SCPRT stresses that

under South Carolina state law, the attorney general “does not represent” SCPRT—a

distinct state agency—or have custody or control of its records. Opening Br. 24. That being

so, SCPRT contends, the attorney general “cannot waive [SCPRT’s] sovereign immunity

from being compelled to produce records in federal court.” Opening Br. 24. But that claim

rests on a false premise. Under Lapides, “whether a particular [state action] amounts to a

waiver of the State’s Eleventh Amendment immunity is a question of federal law,” not state

law.

(emphasis added). On that score, Lapides set forth a bright-line rule:

a state waives its Eleventh Amendment immunity “when [its] attorney general, authorized

(as here) to bring a case in federal court, has voluntarily invoked that court’s jurisdiction.”

. 3 Thus, it does not matter whether the attorney general “represents” SCPRT or

2 We should emphasize, however, that our conclusion would remain the same even if the state plaintiffs had not explicitly endorsed directing subpoenas to individual state agencies. As we have explained, South Carolina’s decision to intervene as a plaintiff in the federal lawsuit against Google was sufficient, in and of itself, to waive the state’s Eleventh Amendment immunity. 3 In its reply brief and at oral argument, SCPRT argued that Lapides’ holding is limited to its facts—that is, when a state invokes federal jurisdiction by removing a case against it from state court to federal court. See 535 U.S. at 616–17. We disagree. The Court’s opinion in that case clearly stated that its decision was an application of the “general principle” that a state’s invocation of federal jurisdiction constitutes a waiver of Eleventh Amendment immunity, regardless of the form that invocation might take.

; see also

(stating that “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” (emphasis added)).

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has custody of its records. He represents the State. And in that capacity, he caused the State

to become a party to the action against Google, thereby invoking a federal court’s

jurisdiction and waiving the State’s sovereign immunity. 4 As a result of that unconditional

waiver, there is no immunity left for SCPRT to assert.

The district court therefore properly denied SCPRT’s motion to quash.

IV.

Our holding today reflects a straightforward application of basic Eleventh

Amendment principles. When South Carolina, through its attorney general, joined the

action against Google, it voluntarily invoked federal jurisdiction. That invocation, Supreme

Court precedent plainly instructs, resulted in a complete and irrevocable waiver of the

State’s Eleventh Amendment immunity as to all matters arising in that lawsuit, including

the State-endorsed Rule 45 subpoena issued to SCPRT.

The district court’s order is

AFFIRMED.

4 Despite SCPRT’s assertions, we think it immaterial whether the attorney general brought the claims “in a sovereign capacity” or “in his non-sovereign parens patriae role.” Opening Br. 20, 30. Lapides drew no such distinction, and we see no basis to do so here. Nor do we accept SCPRT’s related claim that the attorney general waived only some of the State’s immunity and specifically not the portion that purportedly belongs exclusively to SCPRT. See Opening Br. 31–32 (stating that “[e]ach state agency may choose whether to remove the cloak of Eleventh Amendment immunity” and that one state agency’s ability “to waive the Eleventh Amendment immunity of another” is “strictly circumscribe[d]” (cleaned up)). SCPRT provides no persuasive, let alone binding, authority supporting that kind of piecemeal approach to a state’s Eleventh Amendment immunity. To the contrary, as historically understood, Eleventh Amendment immunity is an all-or-nothing affair. Cf. Lapides, 535 U.S. at 620–23; Ramos,

; Gunter,

. 13