×
You have 2 more free articles available this month. Subscribe today.
Pro Se Tips and Tactics
The Supreme Court recently decided a case that may affect where you want to file a lawsuit against state defendants. There are some circumstances in which you may want to file your claims, including your federal claims, in state court.
1. The Lapides Case
The recent case is Lapides v. Board of Regents , 122 S.Ct. 1640 (2002). Lapides sued the State of Georgia and some of its officials in state court, and made claims under both state law and also made "§1983" claims of violation of federal law. But he could also have filed this suit in federal court; he had a choice.
If a lawsuit raises only state law claims, it cannot be brought in federal court (except in cases where the plaintiffs and defendants reside in different states, which is beyond the scope of this column). But if you raise federal "§1983" claims, or both state and federal claims, you can file in either state or federal court. You can file some purely federal law cases in state court because, as you probably know, in most states you can sue under 42 U.S.C. § 1983 in state court, you are not required to go to federal court. (You can do this in states in which there is a court of general jurisdiction and where the state has consented to be sued in its own courts). And since you could state claims alone in state court or federal claims alone in state court, it follows that you can file a case with both state law claims and § 1983 claims in state court
You can also file a case with both state and federal claims in federal court, although the federal court may decide not to hear your state law claims. See 28 U.S.C. §1367 (stating when federal courts may hear state law claims that are connected to federal claims and when they may decide to send state law claims to state court).
Lapides had both state and federal claims. So, he had a choice and chose to file in state court. But Georgia then decided to invoke its right to "remove" a case involving federal claims to federal court. 28 U.S.C. § 1441. Then once the case was in federal court, Georgia tried to get Lapides' suit dismissed by claiming immunity from suit under the 11 th Amendment to the U.S. Constitution, which has been interpreted to forbid damage suits against states in federal court.
The Supreme Court rejected the state's argument, and unanimously held that Georgia's litigation decision to remove the case to federal court meant that the state could not claim 11 th Amendment immunity. As Justice Breyer neatly put it in the opinion of the Court, it would be totally unfair: "&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 11 th Amendment immunity, thereby denying that the "Judicial power of the United States" extends to the case at hand." 122 S.Ct. at 1643.
The Supreme Court had in earlier cases applied this principle when a state voluntarily started or joined in federal court litigation, such as a state intervening in an ongoing federal court case and then claiming 11 th Amendment immunity. Lapides went further by making clear that this fairness principle applies to the decision of a state attorney general to seek removal even after the state has involuntarily been brought into court as a defendant in state court. An old case, Ford Motor Co. v. Department of Treasury of Ind. , 323 U.S. 459 (1945), had suggested that a state AG's litigation decision such as removal would not count as a waiver of the 11 th Amendment, but Lapides said that removal does waive 11 th Amendment immunity and overruled Ford on this point.
Two cautions: One, the Lapides ruling relates only to the state as a defendant. The people Lapides sued for damages as did not claim 11 th Amendment immunity because they are not the state.
Two, in Lapides , the Supreme Court was ruling directly only on whether the state could claim 11 th Amendment immunity in federal court on Lapides' state law claims. This is because Lapides sued for damages, and under §1983 claims for damages cannot be brought directly against the state, or against state officers in their "official capacity." Will v. Michigan Dept. of State Police , 491 U.S. 58 (1989). (As Will discusses, claims for injunctive relief are different, and can be brought against state officials in their official capacities under §1983.) The Supreme Court found Lapides raised no valid federal claim against the state, and so there was no 11 th Amendment question presented regarding federal claims. But the state law claims were valid, and so the Court held that the state could not get the state law damage claims dismissed under the 11 th Amendment.
However, Lapides was a 9-0 decision and it is hard to see any reason why the result would be different if there were a valid federal claim against the state _ the unfairness of a state removing a case and then claiming 11 th Amendment immunity would be the same. Thus, the odds are that the Court would hold that a state could not gain removal to federal court and then claim 11 th Amendment immunity on a federal law claim.
2. Implications for filing decisions
Lapides highlights again that if you have a valid claim against the state, you have a choice about whether to file in state or federal court, and suggests that in some cases it may be advantageous to file in state court. The state cannot claim 11 th Amendment immunity in state court, because that Amendment speaks to suits in federal court. The state could claim its own sovereign immunity in state court, except that most states, like Georgia in Lapides , have a statute that broadly waives state sovereign immunity and allows the state to be sued in state court for any wrong the state has committed. And, given Lapides ' holding that, once a case has been started in state court, the state cannot remove the case to federal court and then claim 11 th Amendment immunity there, either.
Contrast this with a damages case initially filed in federal court. The state could claim 11 th Amendment immunity from all the claims (because the state is being sued in federal court), and have the claims against it dismissed. You would then have to refile in state court, and could risk problems with statutes of limitations because of the passage of time, or other problems of trying to refile the same claims.
I am not suggesting that every damages case that includes federal law claims should be filed in state court. But neither should every federal claim automatically be filed in federal court, just because federal courts are historically associated with prisoner cases. You should think carefully about where to file a given case.
There are many factors that should go into the decision about where to file. These factors include, among others:
l How easy or hard it is for a pro se to litigate in state court _ many federal courts are relatively accessible to pro se's, and some state courts are, but many state courts are not;
l How open to prisoner claims are the various state and federal courts you might be in _ the local federal court might have a track record of being unfavorable to prisoner claims, state courts could be better; or, local state courts could have no experience at all with prisoner claims, or could have a history of not being open to them;
l What the rules of practice and discovery are in state court _ for example, the federal rules provide for a lot of discovery, and many state courts do, too, but you should check.
Lapides simply adds another factor that you may want to consider. For example, if I were in prison in a city in which there is a local state court that has been willing to look carefully at valid and well-supported prisoner claims, and if state rules made it possible for me to conduct the case pro se, I would seriously consider filing in state court. And due to Lapides I could be sure that the state could not remove to federal court and then claim an immunity that it would not have had in state court.
Please carefully note that Lapides does not allow you to make federal damage claims against the state under §1983. Under Will , that just can't be done _ you can sue individuals for federal law damages, but not the state.
But Lapides does mean that where you are permitted to sue the state for damages for state law violations, the state cannot avoid these claims by removing the case to federal court. The state law claims will either be heard in federal court or in state court (if the federal court decides to send the state law claims back to state court, as it can under the law of removal). If you have a valid legal claim that you can prove, you should consider this when you are deciding whether to file in federal or state court.
As always, this column deals with general legal principles is not legal advice for your case. You should do legal research and reach your own conclusions about any litigation decisions you make.
John Midgley is an attorney for Columbia Legal Services in Seattle.
1. The Lapides Case
The recent case is Lapides v. Board of Regents , 122 S.Ct. 1640 (2002). Lapides sued the State of Georgia and some of its officials in state court, and made claims under both state law and also made "§1983" claims of violation of federal law. But he could also have filed this suit in federal court; he had a choice.
If a lawsuit raises only state law claims, it cannot be brought in federal court (except in cases where the plaintiffs and defendants reside in different states, which is beyond the scope of this column). But if you raise federal "§1983" claims, or both state and federal claims, you can file in either state or federal court. You can file some purely federal law cases in state court because, as you probably know, in most states you can sue under 42 U.S.C. § 1983 in state court, you are not required to go to federal court. (You can do this in states in which there is a court of general jurisdiction and where the state has consented to be sued in its own courts). And since you could state claims alone in state court or federal claims alone in state court, it follows that you can file a case with both state law claims and § 1983 claims in state court
You can also file a case with both state and federal claims in federal court, although the federal court may decide not to hear your state law claims. See 28 U.S.C. §1367 (stating when federal courts may hear state law claims that are connected to federal claims and when they may decide to send state law claims to state court).
Lapides had both state and federal claims. So, he had a choice and chose to file in state court. But Georgia then decided to invoke its right to "remove" a case involving federal claims to federal court. 28 U.S.C. § 1441. Then once the case was in federal court, Georgia tried to get Lapides' suit dismissed by claiming immunity from suit under the 11 th Amendment to the U.S. Constitution, which has been interpreted to forbid damage suits against states in federal court.
The Supreme Court rejected the state's argument, and unanimously held that Georgia's litigation decision to remove the case to federal court meant that the state could not claim 11 th Amendment immunity. As Justice Breyer neatly put it in the opinion of the Court, it would be totally unfair: "&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 11 th Amendment immunity, thereby denying that the "Judicial power of the United States" extends to the case at hand." 122 S.Ct. at 1643.
The Supreme Court had in earlier cases applied this principle when a state voluntarily started or joined in federal court litigation, such as a state intervening in an ongoing federal court case and then claiming 11 th Amendment immunity. Lapides went further by making clear that this fairness principle applies to the decision of a state attorney general to seek removal even after the state has involuntarily been brought into court as a defendant in state court. An old case, Ford Motor Co. v. Department of Treasury of Ind. , 323 U.S. 459 (1945), had suggested that a state AG's litigation decision such as removal would not count as a waiver of the 11 th Amendment, but Lapides said that removal does waive 11 th Amendment immunity and overruled Ford on this point.
Two cautions: One, the Lapides ruling relates only to the state as a defendant. The people Lapides sued for damages as did not claim 11 th Amendment immunity because they are not the state.
Two, in Lapides , the Supreme Court was ruling directly only on whether the state could claim 11 th Amendment immunity in federal court on Lapides' state law claims. This is because Lapides sued for damages, and under §1983 claims for damages cannot be brought directly against the state, or against state officers in their "official capacity." Will v. Michigan Dept. of State Police , 491 U.S. 58 (1989). (As Will discusses, claims for injunctive relief are different, and can be brought against state officials in their official capacities under §1983.) The Supreme Court found Lapides raised no valid federal claim against the state, and so there was no 11 th Amendment question presented regarding federal claims. But the state law claims were valid, and so the Court held that the state could not get the state law damage claims dismissed under the 11 th Amendment.
However, Lapides was a 9-0 decision and it is hard to see any reason why the result would be different if there were a valid federal claim against the state _ the unfairness of a state removing a case and then claiming 11 th Amendment immunity would be the same. Thus, the odds are that the Court would hold that a state could not gain removal to federal court and then claim 11 th Amendment immunity on a federal law claim.
2. Implications for filing decisions
Lapides highlights again that if you have a valid claim against the state, you have a choice about whether to file in state or federal court, and suggests that in some cases it may be advantageous to file in state court. The state cannot claim 11 th Amendment immunity in state court, because that Amendment speaks to suits in federal court. The state could claim its own sovereign immunity in state court, except that most states, like Georgia in Lapides , have a statute that broadly waives state sovereign immunity and allows the state to be sued in state court for any wrong the state has committed. And, given Lapides ' holding that, once a case has been started in state court, the state cannot remove the case to federal court and then claim 11 th Amendment immunity there, either.
Contrast this with a damages case initially filed in federal court. The state could claim 11 th Amendment immunity from all the claims (because the state is being sued in federal court), and have the claims against it dismissed. You would then have to refile in state court, and could risk problems with statutes of limitations because of the passage of time, or other problems of trying to refile the same claims.
I am not suggesting that every damages case that includes federal law claims should be filed in state court. But neither should every federal claim automatically be filed in federal court, just because federal courts are historically associated with prisoner cases. You should think carefully about where to file a given case.
There are many factors that should go into the decision about where to file. These factors include, among others:
l How easy or hard it is for a pro se to litigate in state court _ many federal courts are relatively accessible to pro se's, and some state courts are, but many state courts are not;
l How open to prisoner claims are the various state and federal courts you might be in _ the local federal court might have a track record of being unfavorable to prisoner claims, state courts could be better; or, local state courts could have no experience at all with prisoner claims, or could have a history of not being open to them;
l What the rules of practice and discovery are in state court _ for example, the federal rules provide for a lot of discovery, and many state courts do, too, but you should check.
Lapides simply adds another factor that you may want to consider. For example, if I were in prison in a city in which there is a local state court that has been willing to look carefully at valid and well-supported prisoner claims, and if state rules made it possible for me to conduct the case pro se, I would seriously consider filing in state court. And due to Lapides I could be sure that the state could not remove to federal court and then claim an immunity that it would not have had in state court.
Please carefully note that Lapides does not allow you to make federal damage claims against the state under §1983. Under Will , that just can't be done _ you can sue individuals for federal law damages, but not the state.
But Lapides does mean that where you are permitted to sue the state for damages for state law violations, the state cannot avoid these claims by removing the case to federal court. The state law claims will either be heard in federal court or in state court (if the federal court decides to send the state law claims back to state court, as it can under the law of removal). If you have a valid legal claim that you can prove, you should consider this when you are deciding whether to file in federal or state court.
As always, this column deals with general legal principles is not legal advice for your case. You should do legal research and reach your own conclusions about any litigation decisions you make.
John Midgley is an attorney for Columbia Legal Services in Seattle.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Lapides v. Board of Regents
| Year | 2002 |
|---|---|
| Cite | 122 S.Ct. 1640 (2002) |
| Level | Supreme Court |
Lapides v. Board of Regents of the University System of Georgia, 122 S.Ct. 1640, 152 L.Ed.2d 806 (U.S. 05/13/2002)
[1] United States Supreme Court
[2] No. 01-298
[3] 122 S.Ct. 1640, 152 L.Ed.2d 806, 2002.SCT, 70 USLW 4425, 82 Empl. Prac. Dec. P 41,001
[4] May 13, 2002
[5] PAUL D. LAPIDES, PETITIONER
v.
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA ET AL.
[6] SYLLABUS BY THE COURT
[7] Argued February 25, 2002
[8] Decided May 13, 2002
[9] Petitioner, a professor in the Georgia state university system, filed a state-court suit against respondents -- the system's board of regents (hereinafter Georgia or State) and university officials in their personal capacities and as state agents -- alleging that the officials had violated state tort law and 42 U. S. C. §1983 when they placed sexual harassment allegations in his personnel files. The defendants removed the case to Federal District Court and then sought dismissal. Conceding that a state statute had waived Georgia's sovereign immunity from state-law suits in state court, the State claimed Eleventh Amendment immunity from suit in the federal court. The District Court held that Georgia had waived such immunity when it removed the case to federal court. In reversing, the Eleventh Circuit found that, because state law was unclear as to whether the state attorney general had the legal authority to waive Georgia's Eleventh Amendment immunity, the State retained the legal right to assert immunity, even after removal.
[10] Held: A State waives its Eleventh Amendment immunity when it removes a case from state court to federal court. Pp. 2-10.
[11] (a) Because this case does not present a valid federal claim against Georgia, see Will v. Michigan Dept. of State Police, 491 U. S. 58, 66, the answer to the question presented is limited to the context of state-law claims where the State has waived immunity from state-court proceedings. Although absent a federal claim, the Federal District Court might remand the state claims against the State to state court, those claims remain pending in the federal court, which has the discretion to decide the remand question in the first instance. Thus, the question presented is not moot. Pp. 2-3.
[12] (b) This Court has established the general principle that a State's voluntary appearance in federal court amounts to a waiver of its Eleventh Amendment immunity, Clark v. Barnard, 108 U. S. 436, 477; Gardner v. New Jersey, 329 U. S. 565, 574; Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 284, and has often cited with approval the cases embodying that principle, see, e.g., College Savings Bank v. Florida Prepaid Post-secondary Ed. Expense Bd., 527 U. S. 666, 681, n. 3. Here, Georgia was brought involuntarily into the case as a defendant in state court, but it then voluntarily removed the case to federal court, thus voluntarily invoking that court's jurisdiction. Unless this Court is to abandon the general principle requiring waiver or there is something special about removal in this case, the general principle should apply. Pp. 4-5.
[13] (c) Contrary to respondents' arguments, there is no reason to abandon the general principle. The principle enunciated in Gunter, Gardner, and Clark did not turn on the nature of the relief and is sound as applied to money damages cases such as this. And more recent cases requiring a clear indication of a State's intent to waive its immunity, e.g., College Savings Bank, 527 U. S., at 675-681, distinguished the kind of constructive waivers repudiated there from waivers effected by litigation conduct, id., at 681, n. 3. Nor have respondents pointed to a special feature of removal or of this case that would justify taking the case out from the general rule. That Georgia claims a benign motive for removal -- not to obtain litigating advantages for itself but to provide the officials sued in their personal capacities with the interlocutory appeal provisions available in federal court -- cannot make a critical difference. Motives are difficult to evaluate, while jurisdictional rules should be clear. Because adopting respondents' position would permit States to achieve unfair tactical advantages, if not in this case, then in others, see Wisconsin Dept. of Corrections v. Schacht, 524 U. S. 381, 393-394, the rationale for applying the general principle is as strong here as elsewhere. Respondents also argue that Georgia is entitled to immunity because state law does not authorize its attorney general to waive Eleventh Amendment immunity and because, in Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459, a State regained immunity by showing such lack of authority -- even after the State had litigated and lost the case against it. Here, however, Georgia voluntarily invoked the federal court's jurisdiction, while the State in Ford had involuntarily been made a federal-court defendant. This Court has consistently found waiver when a state attorney general, authorized to bring a case in federal court, has voluntarily invoked that court's jurisdiction. More importantly, in large part the rule governing voluntary invocations of federal jurisdiction has rested upon the inconsistency and unfairness that a contrary rule would create. A rule that finds waiver through a state attorney general's invocation of federal-court jurisdiction avoids inconsistency and unfairness, but a rule that, as in Ford, denies waiver despite the attorney general's state-authorized litigating decision does the opposite. For these reasons, Clark, Gunter, and Gardner represent the sounder line of authority, and Ford, which is inconsistent with the basic rationale of those cases, is overruled insofar as it would otherwise apply. Respondents' remaining arguments are unconvincing. Pp. 5-10.
[14] 251 F. 3d 1372, reversed.
[15] Breyer, J., delivered the opinion for a unanimous Court.
[16] Court Below: 251 F. 3d 1372
[17] David J. Bederman argued the cause for petitioner. With him on the briefs were Michael J. Bowers and Patrick W. McKee.
[18] Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Clement, Mark B. Stern, and Alisa B. Klein.
[19] Devon Orland, Assistant Attorney General of Georgia, argued the cause for respondents. With her on the brief were Thurbert E. Baker, Attorney General, Kathleen Pacious, Deputy Attorney General, and John C. Jones and Patricia Downing, Senior Assistant Attorneys General.
[20] Julie Caruthers Parsley, Solicitor General of Texas, argued the cause for the State of Texas et al. as amici curiae urging affirmance. With her on the brief were John Cornyn, Attorney General, Jeffrey S. Boyd, Deputy Attorney General, and Lisa R. Eskow, Assistant Solicitor General, and the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Steve Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, David Samson of New Jersey, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, and Jerry W. Kilgore of Virginia.
[21] John Townsend Rich filed a brief for Ceres Marine Terminals, Inc., as amicus curiae urging reversal.
[22] The opinion of the court was delivered by: Justice Breyer
[23] 535 U. S. ____ (2002)
[24] On Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit
[25] The Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States, U. S. Const., Amdt. 11, and by its own citizens as well, Hans v. Louisiana, 134 U. S. 1 (1890). The question before us is whether the State's act of removing a lawsuit from state court to federal court waives this immunity. We hold that it does.
[26] I.
[27] Paul Lapides, a professor employed by the Georgia state university system, brought this lawsuit in a Georgia state court. He sued respondents, the Board of Regents of the University System of Georgia (hereinafter Georgia or State) and university officials acting in both their personal capacities and as agents of the State. Lapides' lawsuit alleged that university officials placed allegations of sexual harassment in his personnel files. And Lapides claimed that their doing so violated both Georgia law, see Georgia Tort Claims Act, Ga. Code Ann. §50-21-23 (1994) and federal law, see Civil Rights Act of 1871, Rev. Stat. §1979, 42 U. S. C. §1983 (1994 ed., Supp. V).
[28] All defendants joined in removing the case to Federal District Court, 28 U. S. C. §1441 (1994 ed.), where they sought dismissal. Those individuals whom Lapides had sued in their personal capacities argued that the doctrine of "qualified immunity" barred Lapides' federal-law claims against them. And the District Court agreed. The State, while conceding that a state statute had waived sovereign immunity from state-law suits in state court, argued that, by virtue of the Eleventh Amendment, it remained immune from suit in federal court. See U. S. Const., Amdt. 11 (limiting scope of "judicial power of the United States" (emphasis added)). But the District Court did not agree. Rather, in its view, by removing the case from state to federal court, the State had waived its Eleventh Amendment immunity. See Atascadero State Hospital v. Scanlon, 473 U. S. 234, 238 (1985) (State may waive Eleventh Amendment immunity).
[29] The State appealed the District Court's Eleventh Amendment ruling. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144-145 (1993) (allowing interlocutory appeal). And the Court of Appeals for the Eleventh Circuit reversed. 251 F. 3d 1372 (2001). In its view, state law was, at the least, unclear as to whether the State's attorney general possessed the legal authority to waive the State's Eleventh Amendment immunity. And, that being so, the State retained the legal right to assert its immunity, even after removal. See Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459 (1945).
[30] Lapides sought certiorari. We agreed to decide whether "a state waive[s] its Eleventh Amendment immunity by its affirmative litigation conduct when it removes a case to federal court ... ." Pet. for Cert. (i).
[31] It has become clear that we must limit our answer to the context of state-law claims, in respect to which the State has explicitly waived immunity from state-court proceedings. That is because Lapides' only federal claim against the State arises under 42 U. S. C. §1983, that claim seeks only monetary damages, and we have held that a State is not a "person" against whom a §1983 claim for money damages might be asserted. Will v. Michigan Dept. of State Police, 491 U. S. 58, 66 (1989). Compare Tr. of Oral Arg. 57-58 (asserting that complaint also sought declaratory judgment on the federal claim), with complaint, App. 9-19 (failing, implicitly or explicitly, to seek any such relief). Hence this case does not present a valid federal claim against the State. Nor need we address the scope of waiver by removal in a situation where the State's underlying sovereign immunity from suit has not been waived or abrogated in state court.
[32] It has also become clear that, in the absence of any viable federal claim, the Federal District Court might well remand Lapides' state-law tort claims against the State to state court. 28 U. S. C. §1367(c)(3) (1994 ed.). Nonetheless, Lapides' state-law tort claims against the State remain pending in Federal District Court, §1367(a), and the law commits the remand question, ordinarily a matter of discretion, to the Federal District Court for decision in the first instance. Moor v. County of Alameda, 411 U. S. 693, 712 (1973). Hence, the question presented is not moot. We possess the legal power here to answer that question as limited to the state-law context just described. And, in light of differences of view among the lower courts, we shall do so. Compare McLaughlin v. Board of Trustees of State Colleges of Colo., 215 F. 3d 1168, 1171 (CA10 2000) (removal waives immunity regardless of attorney general's state-law waiver authority); and Newfield House, Inc. v. Massachusetts Dept. of Public Welfare, 651 F. 2d 32, 36, n. 3 (CA1 1981) (similar); with Estate of Porter ex rel. Nelson v. Illinois, 36 F. 3d 684, 690-691 (CA7 1994) (removal does not waive immunity); Silver v. Baggiano, 804 F. 2d 1211, 1214 (CA11 1986) (similar); and Gwinn Area Community Schools v. Michigan, 741 F. 2d 840, 846-847 (CA6 1984) (similar).
[33] II.
[34] The Eleventh Amendment provides that the "Judicial power of the United States shall not be construed to extend to any suit ... commenced or prosecuted against one of the ... States" by citizens of another State, U. S. Const., Amdt. 11, and (as interpreted) by its own citizens. Hans v. Louisiana, 134 U. S. 1 (1890). A State remains free to waive its Eleventh Amendment immunity from suit in a federal court. See, e.g., Atascadero, supra, at 238. And the question before us now is whether a State waives that immunity when it removes a case from state court to federal court.
[35] 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. And a Constitution that permitted States to follow their litigation interests by freely asserting both claims in the same case could generate seriously unfair results. Thus, it is not surprising that more than a century ago this Court indicated that a State's voluntary appearance in federal court amounted to a waiver of its Eleventh Amendment immunity. Clark v. Barnard, 108 U. S. 436, 447 (1883) (State's "voluntary appearance" in federal court as an intervenor avoids Eleventh Amendment inquiry). The Court subsequently held, in the context of a bankruptcy claim, that a State "waives any immunity . . . respecting the adjudication of" a "claim" that it voluntarily files in federal court. Gardner v. New Jersey, 329 U. S. 565, 574 (1947). And the Court has made clear in general that "where a State voluntarily becomes 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 Eleventh Amendment." Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 284 (1906) (emphasis added). The Court has long accepted this statement of the law as valid, often citing with approval the cases embodying that principle. See, e.g., College Savings Bank v. Florida Prepaid Post-secondary Ed. Expense Bd., 527 U. S. 666, 681, n. 3 (1999) (citing Gardner); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 294, and n. 10 (1973) (Marshall, J., concurring in result) (citing Clark); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U. S. 275, 276 (1959) (citing Clark).
[36] In this case, the State was brought involuntarily into the case as a defendant in the original state-court proceedings. But the State then voluntarily agreed to remove the case to federal court. See 28 U. S. C. §1446(a); Chicago, R. I. & P. R. Co. v. Martin, 178 U. S. 245, 248 (1900) (removal requires the consent of all defendants). In doing so, it voluntarily invoked the federal court's jurisdiction. And unless we are to abandon the general principle just stated, or unless there is something special about removal or about this case, the general legal principle requiring waiver ought to apply.
[37] We see no reason to abandon the general principle. Georgia points out that the cases that stand for the principle, Gunter, Gardner, and Clark, did not involve suits for money damages against the State -- the heart of the Eleventh Amendment's concern. But the principle enunciated in those cases did not turn upon the nature of the relief sought. And that principle remains sound as applied to suits for money damages.
[38] Georgia adds that this Court decided Gunter, Gardner, and Clark, before it decided more recent cases, which have required a "clear" indication of the State's intent to waive its immunity. College Savings Bank, 527 U. S., at 675-681. But College Savings Bank distinguished the kind of constructive waivers repudiated there from waivers effected by litigation conduct. Id., at 681, n. 3. And this makes sense because an interpretation of the Eleventh Amendment that finds waiver in the litigation context rests upon the Amendment's presumed recognition of the judicial need to avoid inconsistency, anomaly, and unfairness, and not upon a State's actual preference or desire, which might, after all, favor selective use of "immunity" to achieve litigation advantages. See Wisconsin Dept. of Corrections v. Schacht, 524 U. S. 381, 393 (1998) (Kennedy, J., concurring). The relevant "clarity" here must focus on the litigation act the State takes that creates the waiver. And that act -- removal -- is clear.
[39] Nor has Georgia pointed to any special feature, either of removal or of this case, that would justify taking the case out from under the general rule. Georgia argues that its motive for removal was benign. It agreed to remove, not in order to obtain litigating advantages for itself, but to provide its co-defendants, the officials sued in their personal capacities, with the generous interlocutory appeal provisions available in federal, but not in state, court. Compare Mitchell v. Forsyth, 472 U. S. 511, 524-530 (1985) (authorizing interlocutory appeal of adverse qualified immunity determination), with Turner v. Giles, 264 Ga. 812, 813, 450 S. E. 2d 421, 424 (1994) (limiting interlocutory appeals to those certified by trial court). And it intended, from the beginning, to return to state court, when and if its co-defendants had achieved their own legal victory.
[40] A benign motive, however, cannot make the critical difference for which Georgia hopes. Motives are difficult to evaluate, while jurisdictional rules should be clear. See Hanover Star Milling Co. v. Metcalf, 240 U. S. 403, 426 (1916) (Holmes, J., concurring). To adopt the State's Eleventh Amendment position would permit States to achieve "unfair tactical advantage[s,]" if not in this case, in others. See Schacht, supra, 393-394, 398 (Kennedy, J., concurring); cf. ALI, Study of the Division of Jurisdiction Between State and Federal Courts 366-367 (1968) (discussing the unfairness of allowing one who has invoked federal jurisdiction subsequently to challenge that jurisdiction). And that being so, the rationale for applying the general "voluntary invocation" principle is as strong here, in the context of removal, as elsewhere.
[41] More importantly, Georgia argues that state law, while authorizing its attorney general "[t]o represent the state in all civil actions tried in any court," Ga. Code Ann. §45-15-3(6) (1990); see Ga. Const., Art. 5, §3, ¶ ;4, does not authorize the attorney general to waive the State's Eleventh Amendment immunity, Ga. Const., Art. I, §2, ¶ ;4, IV(e), (f), reprinted in 2 Ga. Code Ann. (Supp. 1996). Georgia adds that in Ford, 323 U. S. 459, this Court unanimously interpreted roughly similar state laws similarly, that the Court held that "no properly authorized executive or administrative officer of the state has waived the state's immunity," 328 U. S., at 469, and that it sustained an Eleventh Amendment defense raised for the first time after a State had litigated a claim brought against it in federal court and lost. That is to say, in Ford a State regained immunity by showing the attorney general's lack of statutory authority to waive -- even after the State litigated and lost a case brought against it in federal court. Why, then, asks Georgia, can it not regain immunity in the same way, even after it removed its case to federal court?
[42] The short answer to this question is that this case involves a State that voluntarily invoked the jurisdiction of the federal court, while Ford involved a State that a private plaintiff had involuntarily made a defendant in federal court. This Court consistently has found a waiver when a State's attorney general, authorized (as here) to bring a case in federal court, has voluntarily invoked that court's jurisdiction. See Gardner, 329 U. S., at 574-575; Gunter, 200 U. S., at 285-289, 292; cf. Clark, 108 U. S., at 447-448 (not inquiring into attorney general's authority). And the Eleventh Amendment waiver rules are different when a State's federal court participation is involuntary. See Hans v. Louisiana, 134 U. S. 1 (1890); cf. U. S. Const., Amdt. 11 (discussing suits "commenced or prosecuted against" a State).
[43] But there is a more important answer. In large part the rule governing voluntary invocations of federal jurisdiction has rested upon the problems of inconsistency and unfairness that a contrary rule of law would create. Gunter, supra, at 284. And that determination reflects a belief that neither those who wrote the Eleventh Amendment nor the States themselves (insofar as they authorize litigation in federal courts) would intend to create that unfairness. As in analogous contexts, in which such matters are questions of federal law, cf., e.g., Regents of Univ. of Cal. v. Doe, 519 U. S. 425, 429, n. 5 (1997), whether a particular set of state laws, rules, or activities amounts to a waiver of the State's Eleventh Amendment immunity is a question of federal law. A rule of federal law that finds waiver through a state attorney general's invocation of federal-court jurisdiction avoids inconsistency and unfairness. A rule of federal law that, as in Ford, denies waiver despite the state attorney general's state-authorized litigating decision, does the opposite. For these reasons one Member of this Court has called for Ford's reexamination. Schacht, supra, at 394, 397 (Kennedy, J., concurring). And for these same reasons, we conclude that Clark, Gunter, and Gardner represent the sounder line of authority. Finding Ford inconsistent with the basic rationale of that line of cases, we consequently overrule Ford insofar as it would otherwise apply.
[44] The State makes several other arguments, none of which we find convincing. It points to cases in which this Court has permitted the United States to enter into a case voluntarily without giving up immunity or to assert immunity despite a previous effort to waive. See United States v. United States Fidelity & Guaranty Co., 309 U. S. 506 (1940); United States v. Shaw, 309 U. S. 495 (1940); see also Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla., 498 U. S. 505 (1991). Those cases, however, do not involve the Eleventh Amendment -- a specific text with a history that focuses upon the State's sovereignty vis-à-vis the Federal Government. And each case involves special circumstances not at issue here, for example, an effort by a sovereign (i.e., the United States) to seek the protection of its own courts (i.e., the federal courts), or an effort to protect an Indian tribe.
[45] Finally, Georgia says that our conclusion will prove confusing, for States will have to guess what conduct might be deemed a waiver in order to avoid accidental waivers. But we believe the rule is a clear one, easily applied by both federal courts and the States themselves. It says 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 (here of state law) in a federal forum. As Justice Kennedy has pointed out, once "the States know or have reason to expect that removal will constitute a waiver, then it is easy enough to presume that an attorney authorized to represent the State can bind it to the jurisdiction of the federal court (for Eleventh Amendment purposes) by the consent to removal." See Schacht, 524 U. S., at 397 (concurring opinion).
[46] We conclude that the State's action joining the removing of this case to federal court waived its Eleventh Amendment immunity -- though, as we have said, the District Court may well find that this case, now raising only state-law issues, should nonetheless be remanded to the state courts for determination. 28 U. S. C. §1367(c)(3).
[47] For these reasons, the judgment of the Court of Appeals is reversed.
[48] It is so ordered.
[1] United States Supreme Court
[2] No. 01-298
[3] 122 S.Ct. 1640, 152 L.Ed.2d 806, 2002.SCT, 70 USLW 4425, 82 Empl. Prac. Dec. P 41,001
[4] May 13, 2002
[5] PAUL D. LAPIDES, PETITIONER
v.
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA ET AL.
[6] SYLLABUS BY THE COURT
[7] Argued February 25, 2002
[8] Decided May 13, 2002
[9] Petitioner, a professor in the Georgia state university system, filed a state-court suit against respondents -- the system's board of regents (hereinafter Georgia or State) and university officials in their personal capacities and as state agents -- alleging that the officials had violated state tort law and 42 U. S. C. §1983 when they placed sexual harassment allegations in his personnel files. The defendants removed the case to Federal District Court and then sought dismissal. Conceding that a state statute had waived Georgia's sovereign immunity from state-law suits in state court, the State claimed Eleventh Amendment immunity from suit in the federal court. The District Court held that Georgia had waived such immunity when it removed the case to federal court. In reversing, the Eleventh Circuit found that, because state law was unclear as to whether the state attorney general had the legal authority to waive Georgia's Eleventh Amendment immunity, the State retained the legal right to assert immunity, even after removal.
[10] Held: A State waives its Eleventh Amendment immunity when it removes a case from state court to federal court. Pp. 2-10.
[11] (a) Because this case does not present a valid federal claim against Georgia, see Will v. Michigan Dept. of State Police, 491 U. S. 58, 66, the answer to the question presented is limited to the context of state-law claims where the State has waived immunity from state-court proceedings. Although absent a federal claim, the Federal District Court might remand the state claims against the State to state court, those claims remain pending in the federal court, which has the discretion to decide the remand question in the first instance. Thus, the question presented is not moot. Pp. 2-3.
[12] (b) This Court has established the general principle that a State's voluntary appearance in federal court amounts to a waiver of its Eleventh Amendment immunity, Clark v. Barnard, 108 U. S. 436, 477; Gardner v. New Jersey, 329 U. S. 565, 574; Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 284, and has often cited with approval the cases embodying that principle, see, e.g., College Savings Bank v. Florida Prepaid Post-secondary Ed. Expense Bd., 527 U. S. 666, 681, n. 3. Here, Georgia was brought involuntarily into the case as a defendant in state court, but it then voluntarily removed the case to federal court, thus voluntarily invoking that court's jurisdiction. Unless this Court is to abandon the general principle requiring waiver or there is something special about removal in this case, the general principle should apply. Pp. 4-5.
[13] (c) Contrary to respondents' arguments, there is no reason to abandon the general principle. The principle enunciated in Gunter, Gardner, and Clark did not turn on the nature of the relief and is sound as applied to money damages cases such as this. And more recent cases requiring a clear indication of a State's intent to waive its immunity, e.g., College Savings Bank, 527 U. S., at 675-681, distinguished the kind of constructive waivers repudiated there from waivers effected by litigation conduct, id., at 681, n. 3. Nor have respondents pointed to a special feature of removal or of this case that would justify taking the case out from the general rule. That Georgia claims a benign motive for removal -- not to obtain litigating advantages for itself but to provide the officials sued in their personal capacities with the interlocutory appeal provisions available in federal court -- cannot make a critical difference. Motives are difficult to evaluate, while jurisdictional rules should be clear. Because adopting respondents' position would permit States to achieve unfair tactical advantages, if not in this case, then in others, see Wisconsin Dept. of Corrections v. Schacht, 524 U. S. 381, 393-394, the rationale for applying the general principle is as strong here as elsewhere. Respondents also argue that Georgia is entitled to immunity because state law does not authorize its attorney general to waive Eleventh Amendment immunity and because, in Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459, a State regained immunity by showing such lack of authority -- even after the State had litigated and lost the case against it. Here, however, Georgia voluntarily invoked the federal court's jurisdiction, while the State in Ford had involuntarily been made a federal-court defendant. This Court has consistently found waiver when a state attorney general, authorized to bring a case in federal court, has voluntarily invoked that court's jurisdiction. More importantly, in large part the rule governing voluntary invocations of federal jurisdiction has rested upon the inconsistency and unfairness that a contrary rule would create. A rule that finds waiver through a state attorney general's invocation of federal-court jurisdiction avoids inconsistency and unfairness, but a rule that, as in Ford, denies waiver despite the attorney general's state-authorized litigating decision does the opposite. For these reasons, Clark, Gunter, and Gardner represent the sounder line of authority, and Ford, which is inconsistent with the basic rationale of those cases, is overruled insofar as it would otherwise apply. Respondents' remaining arguments are unconvincing. Pp. 5-10.
[14] 251 F. 3d 1372, reversed.
[15] Breyer, J., delivered the opinion for a unanimous Court.
[16] Court Below: 251 F. 3d 1372
[17] David J. Bederman argued the cause for petitioner. With him on the briefs were Michael J. Bowers and Patrick W. McKee.
[18] Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Clement, Mark B. Stern, and Alisa B. Klein.
[19] Devon Orland, Assistant Attorney General of Georgia, argued the cause for respondents. With her on the brief were Thurbert E. Baker, Attorney General, Kathleen Pacious, Deputy Attorney General, and John C. Jones and Patricia Downing, Senior Assistant Attorneys General.
[20] Julie Caruthers Parsley, Solicitor General of Texas, argued the cause for the State of Texas et al. as amici curiae urging affirmance. With her on the brief were John Cornyn, Attorney General, Jeffrey S. Boyd, Deputy Attorney General, and Lisa R. Eskow, Assistant Solicitor General, and the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Steve Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, David Samson of New Jersey, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, and Jerry W. Kilgore of Virginia.
[21] John Townsend Rich filed a brief for Ceres Marine Terminals, Inc., as amicus curiae urging reversal.
[22] The opinion of the court was delivered by: Justice Breyer
[23] 535 U. S. ____ (2002)
[24] On Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit
[25] The Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States, U. S. Const., Amdt. 11, and by its own citizens as well, Hans v. Louisiana, 134 U. S. 1 (1890). The question before us is whether the State's act of removing a lawsuit from state court to federal court waives this immunity. We hold that it does.
[26] I.
[27] Paul Lapides, a professor employed by the Georgia state university system, brought this lawsuit in a Georgia state court. He sued respondents, the Board of Regents of the University System of Georgia (hereinafter Georgia or State) and university officials acting in both their personal capacities and as agents of the State. Lapides' lawsuit alleged that university officials placed allegations of sexual harassment in his personnel files. And Lapides claimed that their doing so violated both Georgia law, see Georgia Tort Claims Act, Ga. Code Ann. §50-21-23 (1994) and federal law, see Civil Rights Act of 1871, Rev. Stat. §1979, 42 U. S. C. §1983 (1994 ed., Supp. V).
[28] All defendants joined in removing the case to Federal District Court, 28 U. S. C. §1441 (1994 ed.), where they sought dismissal. Those individuals whom Lapides had sued in their personal capacities argued that the doctrine of "qualified immunity" barred Lapides' federal-law claims against them. And the District Court agreed. The State, while conceding that a state statute had waived sovereign immunity from state-law suits in state court, argued that, by virtue of the Eleventh Amendment, it remained immune from suit in federal court. See U. S. Const., Amdt. 11 (limiting scope of "judicial power of the United States" (emphasis added)). But the District Court did not agree. Rather, in its view, by removing the case from state to federal court, the State had waived its Eleventh Amendment immunity. See Atascadero State Hospital v. Scanlon, 473 U. S. 234, 238 (1985) (State may waive Eleventh Amendment immunity).
[29] The State appealed the District Court's Eleventh Amendment ruling. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144-145 (1993) (allowing interlocutory appeal). And the Court of Appeals for the Eleventh Circuit reversed. 251 F. 3d 1372 (2001). In its view, state law was, at the least, unclear as to whether the State's attorney general possessed the legal authority to waive the State's Eleventh Amendment immunity. And, that being so, the State retained the legal right to assert its immunity, even after removal. See Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459 (1945).
[30] Lapides sought certiorari. We agreed to decide whether "a state waive[s] its Eleventh Amendment immunity by its affirmative litigation conduct when it removes a case to federal court ... ." Pet. for Cert. (i).
[31] It has become clear that we must limit our answer to the context of state-law claims, in respect to which the State has explicitly waived immunity from state-court proceedings. That is because Lapides' only federal claim against the State arises under 42 U. S. C. §1983, that claim seeks only monetary damages, and we have held that a State is not a "person" against whom a §1983 claim for money damages might be asserted. Will v. Michigan Dept. of State Police, 491 U. S. 58, 66 (1989). Compare Tr. of Oral Arg. 57-58 (asserting that complaint also sought declaratory judgment on the federal claim), with complaint, App. 9-19 (failing, implicitly or explicitly, to seek any such relief). Hence this case does not present a valid federal claim against the State. Nor need we address the scope of waiver by removal in a situation where the State's underlying sovereign immunity from suit has not been waived or abrogated in state court.
[32] It has also become clear that, in the absence of any viable federal claim, the Federal District Court might well remand Lapides' state-law tort claims against the State to state court. 28 U. S. C. §1367(c)(3) (1994 ed.). Nonetheless, Lapides' state-law tort claims against the State remain pending in Federal District Court, §1367(a), and the law commits the remand question, ordinarily a matter of discretion, to the Federal District Court for decision in the first instance. Moor v. County of Alameda, 411 U. S. 693, 712 (1973). Hence, the question presented is not moot. We possess the legal power here to answer that question as limited to the state-law context just described. And, in light of differences of view among the lower courts, we shall do so. Compare McLaughlin v. Board of Trustees of State Colleges of Colo., 215 F. 3d 1168, 1171 (CA10 2000) (removal waives immunity regardless of attorney general's state-law waiver authority); and Newfield House, Inc. v. Massachusetts Dept. of Public Welfare, 651 F. 2d 32, 36, n. 3 (CA1 1981) (similar); with Estate of Porter ex rel. Nelson v. Illinois, 36 F. 3d 684, 690-691 (CA7 1994) (removal does not waive immunity); Silver v. Baggiano, 804 F. 2d 1211, 1214 (CA11 1986) (similar); and Gwinn Area Community Schools v. Michigan, 741 F. 2d 840, 846-847 (CA6 1984) (similar).
[33] II.
[34] The Eleventh Amendment provides that the "Judicial power of the United States shall not be construed to extend to any suit ... commenced or prosecuted against one of the ... States" by citizens of another State, U. S. Const., Amdt. 11, and (as interpreted) by its own citizens. Hans v. Louisiana, 134 U. S. 1 (1890). A State remains free to waive its Eleventh Amendment immunity from suit in a federal court. See, e.g., Atascadero, supra, at 238. And the question before us now is whether a State waives that immunity when it removes a case from state court to federal court.
[35] 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. And a Constitution that permitted States to follow their litigation interests by freely asserting both claims in the same case could generate seriously unfair results. Thus, it is not surprising that more than a century ago this Court indicated that a State's voluntary appearance in federal court amounted to a waiver of its Eleventh Amendment immunity. Clark v. Barnard, 108 U. S. 436, 447 (1883) (State's "voluntary appearance" in federal court as an intervenor avoids Eleventh Amendment inquiry). The Court subsequently held, in the context of a bankruptcy claim, that a State "waives any immunity . . . respecting the adjudication of" a "claim" that it voluntarily files in federal court. Gardner v. New Jersey, 329 U. S. 565, 574 (1947). And the Court has made clear in general that "where a State voluntarily becomes 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 Eleventh Amendment." Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 284 (1906) (emphasis added). The Court has long accepted this statement of the law as valid, often citing with approval the cases embodying that principle. See, e.g., College Savings Bank v. Florida Prepaid Post-secondary Ed. Expense Bd., 527 U. S. 666, 681, n. 3 (1999) (citing Gardner); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 294, and n. 10 (1973) (Marshall, J., concurring in result) (citing Clark); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U. S. 275, 276 (1959) (citing Clark).
[36] In this case, the State was brought involuntarily into the case as a defendant in the original state-court proceedings. But the State then voluntarily agreed to remove the case to federal court. See 28 U. S. C. §1446(a); Chicago, R. I. & P. R. Co. v. Martin, 178 U. S. 245, 248 (1900) (removal requires the consent of all defendants). In doing so, it voluntarily invoked the federal court's jurisdiction. And unless we are to abandon the general principle just stated, or unless there is something special about removal or about this case, the general legal principle requiring waiver ought to apply.
[37] We see no reason to abandon the general principle. Georgia points out that the cases that stand for the principle, Gunter, Gardner, and Clark, did not involve suits for money damages against the State -- the heart of the Eleventh Amendment's concern. But the principle enunciated in those cases did not turn upon the nature of the relief sought. And that principle remains sound as applied to suits for money damages.
[38] Georgia adds that this Court decided Gunter, Gardner, and Clark, before it decided more recent cases, which have required a "clear" indication of the State's intent to waive its immunity. College Savings Bank, 527 U. S., at 675-681. But College Savings Bank distinguished the kind of constructive waivers repudiated there from waivers effected by litigation conduct. Id., at 681, n. 3. And this makes sense because an interpretation of the Eleventh Amendment that finds waiver in the litigation context rests upon the Amendment's presumed recognition of the judicial need to avoid inconsistency, anomaly, and unfairness, and not upon a State's actual preference or desire, which might, after all, favor selective use of "immunity" to achieve litigation advantages. See Wisconsin Dept. of Corrections v. Schacht, 524 U. S. 381, 393 (1998) (Kennedy, J., concurring). The relevant "clarity" here must focus on the litigation act the State takes that creates the waiver. And that act -- removal -- is clear.
[39] Nor has Georgia pointed to any special feature, either of removal or of this case, that would justify taking the case out from under the general rule. Georgia argues that its motive for removal was benign. It agreed to remove, not in order to obtain litigating advantages for itself, but to provide its co-defendants, the officials sued in their personal capacities, with the generous interlocutory appeal provisions available in federal, but not in state, court. Compare Mitchell v. Forsyth, 472 U. S. 511, 524-530 (1985) (authorizing interlocutory appeal of adverse qualified immunity determination), with Turner v. Giles, 264 Ga. 812, 813, 450 S. E. 2d 421, 424 (1994) (limiting interlocutory appeals to those certified by trial court). And it intended, from the beginning, to return to state court, when and if its co-defendants had achieved their own legal victory.
[40] A benign motive, however, cannot make the critical difference for which Georgia hopes. Motives are difficult to evaluate, while jurisdictional rules should be clear. See Hanover Star Milling Co. v. Metcalf, 240 U. S. 403, 426 (1916) (Holmes, J., concurring). To adopt the State's Eleventh Amendment position would permit States to achieve "unfair tactical advantage[s,]" if not in this case, in others. See Schacht, supra, 393-394, 398 (Kennedy, J., concurring); cf. ALI, Study of the Division of Jurisdiction Between State and Federal Courts 366-367 (1968) (discussing the unfairness of allowing one who has invoked federal jurisdiction subsequently to challenge that jurisdiction). And that being so, the rationale for applying the general "voluntary invocation" principle is as strong here, in the context of removal, as elsewhere.
[41] More importantly, Georgia argues that state law, while authorizing its attorney general "[t]o represent the state in all civil actions tried in any court," Ga. Code Ann. §45-15-3(6) (1990); see Ga. Const., Art. 5, §3, ¶ ;4, does not authorize the attorney general to waive the State's Eleventh Amendment immunity, Ga. Const., Art. I, §2, ¶ ;4, IV(e), (f), reprinted in 2 Ga. Code Ann. (Supp. 1996). Georgia adds that in Ford, 323 U. S. 459, this Court unanimously interpreted roughly similar state laws similarly, that the Court held that "no properly authorized executive or administrative officer of the state has waived the state's immunity," 328 U. S., at 469, and that it sustained an Eleventh Amendment defense raised for the first time after a State had litigated a claim brought against it in federal court and lost. That is to say, in Ford a State regained immunity by showing the attorney general's lack of statutory authority to waive -- even after the State litigated and lost a case brought against it in federal court. Why, then, asks Georgia, can it not regain immunity in the same way, even after it removed its case to federal court?
[42] The short answer to this question is that this case involves a State that voluntarily invoked the jurisdiction of the federal court, while Ford involved a State that a private plaintiff had involuntarily made a defendant in federal court. This Court consistently has found a waiver when a State's attorney general, authorized (as here) to bring a case in federal court, has voluntarily invoked that court's jurisdiction. See Gardner, 329 U. S., at 574-575; Gunter, 200 U. S., at 285-289, 292; cf. Clark, 108 U. S., at 447-448 (not inquiring into attorney general's authority). And the Eleventh Amendment waiver rules are different when a State's federal court participation is involuntary. See Hans v. Louisiana, 134 U. S. 1 (1890); cf. U. S. Const., Amdt. 11 (discussing suits "commenced or prosecuted against" a State).
[43] But there is a more important answer. In large part the rule governing voluntary invocations of federal jurisdiction has rested upon the problems of inconsistency and unfairness that a contrary rule of law would create. Gunter, supra, at 284. And that determination reflects a belief that neither those who wrote the Eleventh Amendment nor the States themselves (insofar as they authorize litigation in federal courts) would intend to create that unfairness. As in analogous contexts, in which such matters are questions of federal law, cf., e.g., Regents of Univ. of Cal. v. Doe, 519 U. S. 425, 429, n. 5 (1997), whether a particular set of state laws, rules, or activities amounts to a waiver of the State's Eleventh Amendment immunity is a question of federal law. A rule of federal law that finds waiver through a state attorney general's invocation of federal-court jurisdiction avoids inconsistency and unfairness. A rule of federal law that, as in Ford, denies waiver despite the state attorney general's state-authorized litigating decision, does the opposite. For these reasons one Member of this Court has called for Ford's reexamination. Schacht, supra, at 394, 397 (Kennedy, J., concurring). And for these same reasons, we conclude that Clark, Gunter, and Gardner represent the sounder line of authority. Finding Ford inconsistent with the basic rationale of that line of cases, we consequently overrule Ford insofar as it would otherwise apply.
[44] The State makes several other arguments, none of which we find convincing. It points to cases in which this Court has permitted the United States to enter into a case voluntarily without giving up immunity or to assert immunity despite a previous effort to waive. See United States v. United States Fidelity & Guaranty Co., 309 U. S. 506 (1940); United States v. Shaw, 309 U. S. 495 (1940); see also Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla., 498 U. S. 505 (1991). Those cases, however, do not involve the Eleventh Amendment -- a specific text with a history that focuses upon the State's sovereignty vis-à-vis the Federal Government. And each case involves special circumstances not at issue here, for example, an effort by a sovereign (i.e., the United States) to seek the protection of its own courts (i.e., the federal courts), or an effort to protect an Indian tribe.
[45] Finally, Georgia says that our conclusion will prove confusing, for States will have to guess what conduct might be deemed a waiver in order to avoid accidental waivers. But we believe the rule is a clear one, easily applied by both federal courts and the States themselves. It says 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 (here of state law) in a federal forum. As Justice Kennedy has pointed out, once "the States know or have reason to expect that removal will constitute a waiver, then it is easy enough to presume that an attorney authorized to represent the State can bind it to the jurisdiction of the federal court (for Eleventh Amendment purposes) by the consent to removal." See Schacht, 524 U. S., at 397 (concurring opinion).
[46] We conclude that the State's action joining the removing of this case to federal court waived its Eleventh Amendment immunity -- though, as we have said, the District Court may well find that this case, now raising only state-law issues, should nonetheless be remanded to the state courts for determination. 28 U. S. C. §1367(c)(3).
[47] For these reasons, the judgment of the Court of Appeals is reversed.
[48] It is so ordered.