Pettigrew v. Oklahoma Ex Rel. Oklahoma Department of Public Safety , 722 F.3d 1209 ( 2013 )


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  •                                                                     FILED
    United States Court of Appeals
    Tenth Circuit
    July 15, 2013
    PUBLISH                Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES COURT OF APPEALS
    TENTH CIRCUIT
    THOMAS TRENT PETTIGREW,
    Plaintiff - Appellee,
    v.                                                   No. 12-6113
    STATE OF OKLAHOMA, ex rel.,
    THE OKLAHOMA DEPARTMENT
    OF PUBLIC SAFETY, a statutory
    state agency,
    Defendant - Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE WESTERN DISTRICT OF OKLAHOMA
    (D.C. NO. 5:12-CV-00116-L)
    Kevin L. McClure, Assistant Attorney General, Oklahoma Attorney General’s
    Office, Oklahoma City, Oklahoma, for Defendant - Appellant.
    Scott F. Brockman (Stanley M. Ward and Barrett T. Bowers, with him on the
    brief), Ward and Glass, L.L.P., Norman, Oklahoma, for Plaintiff - Appellee.
    Before HARTZ, MCKAY, and O’BRIEN, Circuit Judges.
    HARTZ, Circuit Judge.
    This appeal presents only one issue for consideration: whether a settlement
    agreement between Thomas Trent Pettigrew and the Oklahoma Department of
    Public Safety (DPS) waived the state’s “Eleventh Amendment” right not to be
    sued in federal court. Although the language of the agreement is not explicit, the
    agreement’s reference to bringing suit in federal court has no reasonable
    construction except as a waiver. We therefore hold that there was a waiver and
    affirm the district court.
    I.    BACKGROUND
    In 2009 Pettigrew applied to DPS for a promotion to one of two open
    positions of Field Major in the Oklahoma Highway Patrol. DPS denied the
    promotion to Pettigrew, who is white, and instead promoted an African-American
    and a man who, according to Pettigrew, was a friend of the DPS commissioner but
    was unqualified for the position. In April and June 2009 Pettigrew filed
    administrative grievances with DPS, complaining that the “Black Caucus” had
    pressured the commissioner to promote an African-American officer and that he
    had been denied the promotion because of his race. Aplt. App., Vol. I at 22. In
    October 2009 DPS placed Pettigrew on administrative leave for the stated reason
    that he was being investigated for potential media leaks concerning an unrelated
    sexual-harassment complaint against DPS.
    Pettigrew filed suit against DPS in February 2010 in the United States
    District Court for the Western District of Oklahoma. He alleged two claims: (1)
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    that DPS had violated Title VII of the 1964 Civil Rights Act by retaliating against
    him for filing the grievances; and (2) that DPS had negligently supervised,
    trained, and retained the employees—including the commissioner—who
    discriminated against him in the promotion process. The parties executed a
    “General Release and Settlement Agreement” (the Agreement) in December 2010.
    Id., Vol. II at 73. Among the terms of the Agreement was that the administrative
    leave would be terminated and Pettigrew would return to work. One paragraph
    further provided that DPS would not retaliate against Pettigrew for pursuing the
    claims. And another paragraph (the Venue Provision) set forth, among other
    things, the appropriate venues for resolving disputes concerning the Agreement:
    The laws of the State of Oklahoma shall govern interpretation of this
    Agreement. In the event that any litigation is commenced by either
    party to enforce the terms and conditions of the Agreement, the
    litigation will be brought in the appropriate Oklahoma court having
    jurisdiction, either state or federal, and the losing party shall pay to
    the prevailing party all reasonable attorneys’ fees and costs incurred
    by the prevailing party defending against the claim(s). However,
    prior to either party filing an action to enforce any of the terms of the
    Agreement, the party alleging a breach of the Agreement will first
    provide notice of the alleged breach to the alleged offending party,
    and provide that party thirty (30) days to reasonably cure the breach
    to the satisfaction of the party alleging a breach. If the alleged
    breach is not cured to the satisfaction of the party alleging a breach
    within the allotted 30 days, the party alleging the breach may file an
    action in the appropriate court with jurisdiction over the matter.
    Id. at 76 (emphasis added).
    On January 31, 2012, Pettigrew filed a second suit against DPS in the same
    federal court. He alleged that after he returned to work he received two formal
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    letters of reprimand relating to his workplace conduct and interactions with other
    employees, and he asserted that in issuing the letters DPS had employed
    unprecedented procedures that violated written DPS policies. He further asserted
    that the formal discipline was designed to disqualify him from future promotions
    in retaliation for his pursuing the earlier discrimination claim. The complaint
    alleged three claims: (1) that DPS had violated Title VII by retaliating against
    Pettigrew; (2) that the alleged retaliation had breached the Agreement; and (3)
    that he was entitled to a declaratory judgment that DPS had breached the
    Agreement.
    The state moved to dismiss the second and third claims (which we shall call
    the “state-law claims”), arguing that they are barred by sovereign immunity under
    the Eleventh Amendment. Pettigrew responded that the district court could
    exercise supplemental jurisdiction over the state-law claims, see 28 U.S.C.
    § 1367(a), and that the reference to federal courts in the Venue Provision waived
    any Eleventh Amendment objection to federal jurisdiction. The court denied the
    motion.
    The state filed a notice of appeal. Although the appeal is interlocutory (the
    suit has not proceeded to final judgment), we have jurisdiction under 28 U.S.C.
    § 1291. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 
    506 U.S. 139
    ,
    144 (1993) (order denying motion to dismiss on ground of Eleventh Amendment
    immunity is a final decision appealable under the collateral-order doctrine).
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    II.   DISCUSSION
    “We review de novo the denial of a motion to dismiss based on Eleventh
    Amendment immunity.” Chamber of Commerce of U.S. v. Edmondson, 
    594 F.3d 742
    , 760 (10th Cir. 2010). The Eleventh Amendment states: “The Judicial power
    of the United States shall not be construed to extend to any suit in law or equity,
    commenced or prosecuted against one of the United States by Citizens of another
    State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI.
    Before addressing the matter on which the parties disagree, we note some
    common ground.     First, implicit in enactment of the Eleventh Amendment is that
    state sovereign immunity ordinarily bars federal-court jurisdiction over private
    suits against a state by citizens of the state. See Idaho v. Coeur d’Alene Tribe of
    Idaho, 
    521 U.S. 261
    , 267–68 (1997) (“To respect the broader concept of
    immunity, implicit in the Constitution, which we have regarded the Eleventh
    Amendment as evidencing and exemplifying, we have extended a State’s
    protection from suit to suits brought by the State’s own citizens.”). The sole
    exceptions are (1) when Congress has abrogated the states’ immunity, as in
    legislation enacted to enforce the Fourteenth Amendment; and (2) when a state
    waives its immunity. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.
    Expense Bd., 
    527 U.S. 666
    , 669–70 (1999); cf. Cent. Va. Cmty. Coll. v. Katz, 
    546 U.S. 356
     (2006) (Constitution’s Bankruptcy Clause authorizes limited
    subordination of state sovereign immunity).
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    Second, DPS is an arm of the State of Oklahoma and therefore is treated as
    the state for purposes of sovereign immunity and the Eleventh Amendment. See
    Alden v. Maine, 
    527 U.S. 706
    , 756 (1999) (sovereign immunity extends to an
    “arm of the State” but not to a “lesser entity” like a municipal corporation).
    Third, the federal district court has jurisdiction over Pettigrew’s claim
    under Title VII, which was enacted to enforce the Fourteenth Amendment. See
    Fitzpatrick v. Bitzer, 
    427 U.S. 445
    , 456–57 (1976).
    And fourth, absent the sovereign-immunity issue the supplemental-
    jurisdiction statute, 28 U.S.C. § 1367, would give the district court jurisdiction to
    hear Pettigrew’s breach-of-contract and declaratory-judgment claims. Section
    1367(a) provides that a federal court with original jurisdiction over one claim
    (such as a Title VII claim) may exercise “supplemental jurisdiction over all other
    claims that are so related to claims in the action within such original jurisdiction
    that they form part of the same case or controversy under Article III of the United
    States Constitution.” 28 U.S.C. § 1367(a). “A claim is part of the same case or
    controversy if it derives from a common nucleus of operative fact.” Price v.
    Wolford, 
    608 F.3d 698
    , 702–03 (10th Cir. 2010) (brackets and internal quotation
    marks omitted). That standard is satisfied here because Pettigrew premises his
    claims for breach of the Agreement and declaratory judgment on the same factual
    allegations as his Title VII claim.
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    The dispute before us arises because supplemental jurisdiction under
    § 1367 does not override the Eleventh Amendment’s bar on suing a state in
    federal court. See Raygor v. Regents of the Univ. of Minn., 
    534 U.S. 533
    , 541
    (2002) (“[Section] 1367(a) [does not] authorize district courts to exercise
    jurisdiction over claims against nonconsenting States.”); Pennhurst State Sch. &
    Hosp. v. Halderman, 
    465 U.S. 89
    , 121 (1984). Pettigrew does not suggest that
    any federal statute abrogates Oklahoma’s sovereign immunity with respect to his
    state-law claims. Therefore, all we must resolve is whether the state waived its
    immunity.
    Waiver of sovereign immunity must be knowing and voluntary, and the
    “test for determining whether a State has waived its immunity from federal
    jurisdiction is a stringent one.” Coll. Sav. Bank, 527 U.S. at 675 (internal
    quotation marks omitted). The Supreme Court has found waiver when, for
    example, a state expressly consented by statute to suit in federal court, see Port
    Auth. Trans-Hudson Corp. v. Feeney, 
    495 U.S. 299
    , 308–09 (1990), and when it
    voluntarily invoked federal jurisdiction by filing suit in federal court, moving to
    intervene in federal-court litigation, or removing a case to federal court, see
    Lapides v. Bd. of Regents, 
    535 U.S. 613
    , 619–24 (2002). A state can likewise
    enter into a contract that waives its Eleventh Amendment immunity to suits
    related to the contract. See, e.g., Watson v. Texas, 
    261 F.3d 436
    , 442 (5th Cir.
    2001) (settlement agreement waived state’s immunity to suit by claimants to
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    recover settlement proceeds); see also Ellis v. Univ. of Kan. Med. Ctr., 
    163 F.3d 1186
    , 1195, 1195 n.11 (10th Cir. 1998) (“Our conclusion [that the agreement at
    issue did not indicate the state’s intent to waive immunity] does not foreclose the
    possibility that a State may demonstrate an unequivocal intent to waive Eleventh
    Amendment immunity by participating in a settlement.”). When a statute or other
    document purportedly waives a state’s Eleventh Amendment immunity, we “will
    give effect to [the waiver] only where stated by the most express language or by
    such overwhelming implication from the text as will leave no room for any other
    reasonable construction.” Feeney, 495 U.S. at 305 (brackets and internal
    quotation marks omitted).
    Pettigrew contends that the Venue Provision of the Agreement is such a
    waiver. It states: “In the event that any litigation is commenced by either party
    to enforce the terms and conditions of the Agreement, the litigation will be
    brought in the appropriate Oklahoma court having jurisdiction, either state or
    federal . . . .” Aplt. App., Vol. II at 76 (emphasis added). Pettigrew argues that
    the specific reference to federal courts unequivocally indicates the state’s intent
    to waive Eleventh Amendment immunity in suits to enforce the Agreement.
    Pettigrew relies principally on Feeney, which interpreted similar language
    as constituting a waiver. See 495 U.S. at 306–09. New York and New Jersey had
    entered into a compact creating the Port Authority of New York and New Jersey
    (the Port Authority). See id. at 301. The states passed identical statutes
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    governing suits against the Port Authority. See id. at 302. A consent-to-suit
    section in the statutes “provided that the States ‘consent to suits, actions or
    proceedings of any form or nature at law, in equity or otherwise against the [Port
    Authority].’” Id. at 302–03 (ellipsis omitted). And a venue section added, “‘The
    foregoing consent . . . is granted upon the condition that venue in any suit, action
    or proceedings against the Port Authority shall be laid within a county or a
    judicial district, established by [New York or New Jersey] or by the United States,
    and situated wholly or partially within the Port of New York District.’” Id. at 303
    (emphasis added). The Court was unwilling to find an Eleventh Amendment
    waiver in the consent-to-suit section, because “such a broadly framed provision
    may . . . reflect only a State’s consent to suit in its own courts.” Id. at 306. The
    venue provision, however, “suffice[d] to resolve any ambiguity contained in the
    States’ general consent to suit provision by expressly indicating that the States’
    consent to suit extends to suit in federal court.” Id. at 307. The Court rejected
    the notion that it should not look to a venue provision to elucidate the scope of
    the states’ consent to suit. See id. at 307–08. And it emphasized the absence of
    any reasonable interpretation of the statutory language other than as a consent to
    suit in federal court. See id. at 308.
    We agree with Pettigrew that Feeney is controlling. As in Feeney, the
    Venue Provision does not explicitly grant consent to be sued in federal court. In
    both cases any competent draftsman could have found much clearer language to
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    convey the thought. But the Supreme Court in Feeney held that the venue section
    of the Port Authority statutes satisfied the requirement of “such overwhelming
    implication from the text as will leave no room for any other reasonable
    construction,” id. at 305 (brackets and internal quotation marks omitted), simply
    because there would be no other reasonable purpose for the section to refer to
    federal courts. Any alternative construction of the statutory provision would have
    rendered superfluous the federal-court language. As Feeney summarized:
    “Petitioner essentially presents the choice between giving the venue provision its
    natural meaning and giving the provision no meaning at all. Charged with giving
    effect to the statute, we do not find the choice to be a difficult one.” Id. at 308.
    So here. There is no question that the state consented to being sued under
    the Agreement, at least in state court. Under Oklahoma law the state broadly
    consents to suit to enforce the terms of a contract entered into by the state. See
    State Bd. of Pub. Affairs v. Principal Funding Corp., 
    542 P.2d 503
    , 506 (Okla.
    1975) (“We hold that where a person or entity enters into a valid contract with the
    proper State officials and a valid appropriation has been made therefor, the State
    has consented to being sued and waived its governmental immunity to the extent
    of its contractual obligations and such contractual obligations may be enforced
    against the State in an ordinary action at law.”). And the express terms of the
    Agreement reflect this rule; the final sentence of the Venue Provision provides
    that a party not satisfied that an alleged breach has been cured “may file an action
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    in the appropriate court.” Aplt. App., Vol. II at 76. The only unsettled question
    would be whether the state could be sued in federal court for breach of the
    Agreement. The Venue Provision answered that question with the words “the
    appropriate Oklahoma court having jurisdiction, either state or federal.” Aplt.
    App., Vol. II at 76 (emphasis added).
    The state focuses on the word appropriate in the Venue Provision language
    allowing suit to be “brought in the appropriate Oklahoma court having
    jurisdiction, either state or federal.” Id. Noting that Eleventh Amendment
    sovereign immunity protects states from suits in federal court, it insists that “[t]he
    only ‘appropriate’ Oklahoma court having jurisdiction over the state law claims in
    this case would be Oklahoma’s state courts. . . .” 1 Aplt. Reply Br. at 5 (emphasis
    omitted). That is, it believes a court is “appropriate” only if the Eleventh
    Amendment poses no impediment to the court’s jurisdiction, and therefore no
    federal court could be “appropriate.” The state is saying that even though the
    Venue Provision allows suits to enforce the Agreement to be “brought in the
    appropriate Oklahoma court having jurisdiction, either state or federal,” the word
    appropriate voids the words or federal.
    1
    The full sentence in the state’s brief is: “The only ‘appropriate’
    Oklahoma court having jurisdiction over the state law claims in this case would
    be Oklahoma’s state courts since there is no diversity jurisdiction alleged by the
    parties.” Aplt. Reply Br. at 5 (emphasis added and original emphasis omitted).
    The emphasized language baffles us, because the clear language of the Eleventh
    Amendment rejects diversity jurisdiction in suits against states.
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    We disagree with this reading of the provision. No rational drafter would
    write such a sentence. In Oklahoma, contracts should be construed “‘so as to give
    effect to every part, if reasonably practicable . . . .’ Okla. Stat. tit. 15, § 157
    (2011).” Scungio v. Scungio, 
    291 P.3d 616
    , 622 n.2 (Okla. 2012). Rejecting the
    state’s interpretation is not a difficult choice. The language “or federal” clearly
    signals that the word appropriate must be read as not taking Eleventh Amendment
    immunity into account. The word refers only to proper subject-matter and
    personal jurisdiction and, perhaps, venue. Because a federal court can have
    supplemental jurisdiction over a state-law contract claim, see 28 U.S.C.
    § 1367(a), a federal court can be an appropriate court.
    The state also points to another provision of the Agreement, which states,
    “This Agreement does not waive any rights or claims that [Pettigrew] or [the
    state] may have which arise after the date [Pettigrew] signs this Agreement . . . .”
    Aplt. App., Vol. II at 74. It argues that this provision reserved its right to invoke
    immunity because the right did not arise until this cause of action accrued, which
    occurred after Pettigrew signed the Agreement. We think it too much of a stretch
    to say that the state’s sovereign immunity does not “arise” until a cause of action
    against the state accrues. But in any event, we still must avoid construing one
    provision of a contract as voiding the language of another provision. We cannot
    read this provision as overriding the Venue Provision.
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    One might argue (although the state does not) that the reference in the
    Venue Provision to “either state or federal” courts could be read merely as
    acknowledging that the Agreement could be enforced in federal court if the state’s
    immunity were not an obstacle for some reason independent of anything in the
    Agreement. If that is the meaning, however, why include the language? True, the
    state could waive its Eleventh Amendment immunity by other means, such as by
    removing a suit to federal court. But we firmly doubt that the parties would
    include a provision allowing suit in federal court only if the state happened to
    prefer federal court at some point in the future. Why would the state need such a
    provision, and why would Pettigrew agree to such a one-sided rule? And the
    “state or federal” language would be pointless if it simply recited the venues
    where a suit could be brought anyway.
    Moreover, the Port Authority could have offered the same interpretation for
    the statutory language in Feeney (that is, it could have argued that the language,
    “venue . . . shall be laid within a county or a judicial district, established by [New
    York or New Jersey] or by the United States,” 495 U.S. at 303, simply allowed
    venue in federal court if a state consented to federal jurisdiction in a particular
    case). Yet none of the courts addressing the issue discussed this possible
    interpretation. Nor did anyone present to the Supreme Court any construction of
    the statutory language that the Court thought could reasonably give meaning to
    the reference to federal courts (other than as a waiver). See id. at 308 (there was
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    “no ‘reasonable construction’ that might be given to the venue provision’s phrase,
    ‘judicial district, established by the United States,’ other than that the States
    consented to suit in federal court” (citation and ellipses omitted)); id. (“the phrase
    cannot reasonably be construed as an ineffectual attempt to limit venue for suits
    for which Congress has abrogated the States’ immunity”). Accordingly, we hold
    that the Venue Provision waives Oklahoma’s Eleventh Amendment immunity for
    suits to enforce the Agreement.
    III.   CONCLUSION
    We AFFIRM the district court’s denial of the state’s motion to dismiss.
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