Anthony L. Green v. Jackie Graham

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-14704

________________________

D.C. Docket No. 2:15-cv-00697-DAB

ANTHONY L. GREEN,

BROOKE M. WALKER,

EARL E. HOWTON JR.,

Plaintiffs-Appellees,

versus

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.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_______________________

(October 12, 2018)

Before WILLIAM PRYOR, MARTIN, and BALDOCK, * Circuit Judges.

*

Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by

designation.

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WILLIAM PRYOR, Circuit Judge:

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., 535 U.S. 613 (2002), but did not necessarily

waive all sovereign-immunity-based defenses, see Stroud v. McIntosh, 722 F.3d

1294 (11th Cir. 2013). The district court ruled that the doctrine of Ex parte Young,

209 U.S. 123 (1908), made sovereign immunity inapplicable. We hold that the

officials have either waived or forfeited any immunity from suit and that we lack

jurisdiction to consider their immunity from liability on interlocutory appeal.

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

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investigator.” Ala. Code § 36-27-1(23). The next most generous status, “law

enforcement,” applies to correctional officers, firefighters, and law-enforcement

officers not eligible for state-policeman status. See id. § 36-27-59. All other

employees in the Retirement System fall in the residual “state employee” category.

Although the plaintiffs’ retirement status is law enforcement, they allege

they are 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.” Id. § 36-27-1(23). They asserted a federal equal-protection

claim for declaratory and injunctive relief, 42 U.S.C. § 1983, and a parallel state-

law claim. With Bronner’s consent, Collier removed the case to the district court.

The plaintiffs then voluntarily dismissed their claims against Bronner based on

assurances that the Retirement System would honor any court order in their favor.

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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, 465 U.S. 89, 106 (1984).

II. JURISDICTION AND STANDARD OF REVIEW

Although we ordinarily have jurisdiction to review only “final decisions of

the district courts,” 28 U.S.C. § 1291, the denial of state sovereign immunity by a

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district court is immediately appealable under the collateral-order doctrine. P.R.

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144–45 (1993).

We review a ruling on state sovereign immunity de novo. See Stanley v. Israel, 843

F.3d 920, 923 (11th Cir. 2016). We also review a ruling on a motion for summary

judgment de novo, “viewing all of the facts in the record in the light most favorable

to the non-movant. Summary judgment is proper if there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Id.

(citation and internal quotation marks omitted).

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 immunity 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

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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.” 722 F.3d at 1301. Because “states

can independently relinquish” parts of their sovereign immunity “without affecting

others,” id., we concluded that “a state can waive its forum immunity but retain

other aspects of sovereign immunity, including immunity from liability,” id. at

1303. Accordingly, we held that the removal of a suit against the State of Alabama

to federal court waived immunity from suit in a federal forum but did not waive

immunity from liability. See id. at 1302–03.

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, id. at

1301, is always immediately appealable, but the basic principles of the collateral-

order doctrine make the answer to that question straightforward. As the Supreme

Court has explained, denials of sovereign immunity are immediately appealable

only because sovereign immunity includes “an immunity from suit,” the “value” of

which “is for the most part lost as litigation proceeds past motion practice.” P.R.

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Aqueduct, 506 U.S. at 144, 145. It follows that interlocutory review of a denial of

immunity from liability alone is not available.

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, 963

F.2d 338, 340 (11th Cir. 1992). For example, we have held that the denial of a

sovereign-immunity defense that arises under Georgia or Alabama law is

immediately appealable because those states provide for immunity from suit as a

matter of state law. See id. (Georgia); Tinney v. Shores, 77 F.3d 378, 383 (11th Cir.

1996) (Alabama). But we have held that we cannot consider an immediate appeal

from the denial of a sovereign-immunity defense under Florida law, because

Florida sovereign immunity is an immunity only from liability. CSX Transp., Inc.

v. Kissimmee Util. Auth., 153 F.3d 1283, 1286 (11th Cir. 1998); see also Parker v.

Am. Traffic Solutions, Inc., 835 F.3d 1363, 1368–70 (11th Cir. 2016) (reaffirming

CSX Transportation). In considering state-law immunities of all kinds, our sister

circuits have also consistently held “that the availability of an [immediate] appeal

depends on whether, under state law, the immunity functions as an immunity from

suit or only as a defense to liability.” Liberal v. Estrada, 632 F.3d 1064, 1074 (9th

Cir. 2011) (emphasis omitted) (collecting cases).

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B. 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. 722 F.3d at 1302.

In this appeal, Graham and Taylor are not the state officials who removed the suit

to federal court, and only Taylor’s predecessor in office was a defendant at the

time of removal.

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., 985 F.2d

1534, 1542 (11th Cir. 1993), and the Supreme Court has long held that state

sovereign immunity “partakes of the nature of a jurisdictional bar” in certain

respects, Edelman v. Jordan, 415 U.S. 651, 678 (1974); see also Ford Motor Co. v.

Dep’t of Treasury of Ind., 323 U.S. 459, 467 (1945) (explaining that “[t]he

Eleventh Amendment . . . sets forth an explicit limitation on federal judicial

power”), partially overruled on other grounds by Lapides, 535 U.S. at 623. For

these reasons, we asked the parties to be prepared at oral argument to discuss

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whether the removal of the suit by the original defendants waived any federal-

forum immunity that Graham could assert.

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., 896

F. Supp. 1204, 1207 (M.D. Fla. 1995) (“Each state agency is a separate defendant

in this action, and each may choose whether to remove the cloak of Eleventh

Amendment immunity.”). Or is the state’s immunity unitary and indivisible, so that

a waiver by one state defendant waives it for all? See N.J. Dep’t of Envtl. Prot. v.

Gloucester Envtl. Mgmt. Servs., Inc., 923 F. Supp. 651, 664 (D.N.J. 1995) (“The

State colleges and hospitals cannot in one breath claim to be . . . entitled to share in

all of the State’s immunities, and in the next breath argue . . . that they are not the

same State which [waived federal-forum immunity by] fil[ing] the suit.”).

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, 519

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U.S. 425, 429 (1997). Specifically, the prohibition extends to suits against state

agents and entities in which “the state is the real, substantial party in interest and

is entitled to invoke its sovereign immunity from suit even though individual

officials [or entities] are nominal defendants.” Id. (emphases added) (quoting Ford

Motor Co., 323 U.S. at 464).

The Supreme Court has consistently recognized that sovereign immunity

belongs to the state, and only derivatively to state entities and state officials. See,

e.g., Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (“Sovereign

immunity is the privilege of the sovereign not to be sued without its consent.”

(emphases added)); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense

Bd., 527 U.S. 666, 675 (1999) (“We have long recognized that a State’s sovereign

immunity is ‘a personal privilege which it may waive at pleasure.’” (emphases

added) (quoting Clark v. Barnard, 108 U.S. 436 (1883))). Indeed, when the regents

of the University System of Georgia “joined in removing the case” brought against

them by Paul Lapides, the Supreme Court took it for granted that removal was “the

State’s act.” Lapides, 535 U.S. at 616; see also id. at 620 (explaining that “the

State was brought involuntarily into this case as a defendant” when the officials

were sued, “[b]ut the State then voluntarily agreed to remove the case to federal

court” (emphases added)).

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In Stroud, we explained that removal waives a state’s forum immunity from

claims first joined after removal, see 722 F.3d at 1302 n.3, and the same logic

applies to defendants first joined after removal. “Once [federal] jurisdiction is

invoked by removal, the federal court has jurisdiction over the entire case—not

simply those claims [or defendants] that the complaint alleged [or named] at the

time of removal.” Id. As long as the new state defendant can properly be joined to

the “case,” the federal court has jurisdiction over that defendant. See Gloucester,

923 F. Supp. at 664–65 (holding that the claims against the state entities asserting

sovereign immunity were part of the same case for which the state had invoked

federal jurisdiction).

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

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agent.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky v. Graham, 473

U.S. 159, 165 (1985)). “Indeed, when officials sued in this capacity . . . leave

office, their successors automatically assume their roles in the litigation.” Id. We

conclude that neither Graham nor Taylor is immune from suit in a federal forum.

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 oral

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, 750 F.3d 1238, 1242 (11th Cir. 2014). Second,

distinct from this limit on the judicial power of the United States, there is, Graham

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and Taylor contend, the state’s immunity from suit under state law. Third, there is

the state’s immunity from liability, which is also a creature of state law. Under

Graham and Taylor’s theory, both the second and third elements are embodied in

Article I, Section 14 of the state constitution, which provides that “the State of

Alabama shall never be made a defendant in any court of law or equity.” Ala.

Const. Art. I, § 14; see also Tinney, 77 F.3d at 382–83 (holding that section 14

immunizes the state from both suit and liability).

The Fifth Circuit rejected the theory of a distinct immunity from suit under

state law in Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 250–55 (5th Cir. 2005),

a decision we cited with approval in Stroud, see 722 F.3d at 1300–01, 1304, but we

need not consider whether Meyers is correct or the extent to which Stroud adopted

its reasoning. “[W]e do not consider [arguments] not raised in a party’s initial brief

and made for the first time at oral argument.” APA Excelsior III L.P. v. Premiere

Techs., Inc., 476 F.3d 1261, 1269 (11th Cir. 2007). This rule is but an application

of the general principle that a party “who fails to make a specific objection or

argument in the district court forfeits that objection or argument.” United States v.

Davis, 875 F.3d 592, 601 n.2 (11th Cir. 2017) (alterations adopted and internal

quotation marks omitted) (quoting United States v. Weeks, 711 F.3d 1255, 1261

(11th Cir. 2013)); see also United States v. Phillips, 834 F.3d 1176, 1183 (11th Cir.

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2016) (explaining the difference between waiver, which is the intentional

abandonment of a right, and forfeiture, which is the failure to timely assert a right).

True, “the Eleventh Amendment . . . can be raised at any stage of the

proceedings.” Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998). As the Supreme

Court has explained time and time again, the quasi-jurisdictional character of state

sovereign immunity makes it inappropriate for courts to apply the ordinary rules of

forfeiture. See id. (“[T]he Eleventh Amendment is jurisdictional in the sense that it

is a limitation on the federal court’s judicial power, and therefore can be raised at

any stage of the proceedings . . . .”); Pennhurst, 465 U.S. at 99 n.8 (“The limitation

deprives federal courts of any jurisdiction to entertain such claims, and thus may

be raised at any point in a proceeding.”); Edelman, 415 U.S. at 678 (“[T]he

Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional

bar so that it need not be raised in the trial court.”); Ford Motor Co., 323 U.S. at

467 (“The Eleventh Amendment declares a policy and sets forth an explicit

limitation on federal judicial power of such compelling force that this Court will

consider the issue arising under the Amendment in this case even though urged for

the first time in this Court.”); see also Stroud, 722 F.3d at 1302 n.3 (“Forum

immunity is a jurisdictional immunity that shields a state from suit in federal

court.”). But—by its own terms—Graham and Taylor’s new argument does not

depend on “the Eleventh Amendment,” or, to speak more accurately, the

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“constitutional principle” for which “‘Eleventh Amendment immunity’ . . . is

convenient shorthand but something of a misnomer,” Alden v. Maine, 527 U.S.

706, 713, 729 (1999).

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, 49 U.S. 441, 448–49 (1850) (explaining that

Congress is responsible for creating the inferior federal courts and defining their

jurisdiction). “[I]n delineating the boundaries of its jurisdiction and powers,” a

federal court “looks to the U.S. Constitution, federal statutes, U.S Supreme Court

precedent, and the precedent of the relevant federal circuit court—but not to state

statutes or state precedents.” Bryan A. Garner et al., The Law of Judicial

Precedent, § 65, at 551 (2016). So, under ordinary forfeiture principles, we

exercise our discretion not to consider Graham and Taylor’s belated defense of

state-law immunity from suit.

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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,” Ala. Code § 36-27-1(23), they suggest that

the plaintiffs should sue the members of the Personnel Board instead. Third, they

point out that the Ex parte Young exception does not apply to state-law claims. See

Pennhurst, 465 U.S. at 106.

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

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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.

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MARTIN, Circuit Judge, concurring:

This 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 2. 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 6, 8; see also Stroud v. McIntosh, 722 F.3d 1294, 1303 (11th Cir.

2013). Forum immunity is a shorthand term for the well-established principle that

a state cannot be sued in federal court without its consent. See Seminole Tribe of

Fla. v. Florida, 517 U.S. 44, 54–55, 116 S. Ct. 1114, 1122–23 (1996); Stroud, 722

F.3d at 1302 n.3. Forum immunity is jurisdictional in nature. See Seminole Tribe,

517 U.S. at 54–55, 116 S. Ct. at 1122–23; Stroud, 722 F.3d at 1302 n.3. When a

state or an arm of the state removes a case from state court to federal court, the

state or arm of the state consents to federal jurisdiction and thus waives forum

immunity. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 616, 122

S. Ct. 1640, 1642 (2002). I concur in the majority’s holding that the removal of

this case by the original state defendants waived forum immunity for later-joined

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state defendants. Maj. Op. at 8–12. The District Court thus has jurisdiction to

adjudicate this case.

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, 410

F.3d 236, 254–55 (5th Cir. 2005); see also Stroud, 722 F.3d at 1303 (characterizing

“immunity from liability” as a defense to a federal age discrimination claim). An

immunity defense does not implicate a federal district court’s jurisdiction. Rather,

as with any affirmative defense, the question goes to the merits of whether the state

can be held liable for the alleged violation. This court has said: waiving forum

immunity does not preclude a state from asserting any and all immunity defenses

to a claim once that claim proceeds in federal court. See id. This waiver of

immunity from suit in federal court merely allows a U.S. District Court to take

jurisdiction and adjudicate the case, including any immunity defense. The majority

is right, here again, that we lack jurisdiction to review the denial of an immunity

defense on interlocutory appeal, just as we would lack interlocutory jurisdiction to

review the denial of any affirmative defense. Maj. Op. at 7.

I concur in the majority opinion.

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