Anthony L. Green v. Jackie Graham

Case: 17-14704 Date Filed: 10/12/2018 Page: 1 of 19
[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.
Case: 17-14704 Date Filed: 10/12/2018 Page: 2 of 19
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
2
Case: 17-14704 Date Filed: 10/12/2018 Page: 3 of 19
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.
3
Case: 17-14704 Date Filed: 10/12/2018 Page: 4 of 19
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
4
Case: 17-14704 Date Filed: 10/12/2018 Page: 5 of 19
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
5
Case: 17-14704 Date Filed: 10/12/2018 Page: 6 of 19
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.
6
Case: 17-14704 Date Filed: 10/12/2018 Page: 7 of 19
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).
7
Case: 17-14704 Date Filed: 10/12/2018 Page: 8 of 19
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
8
Case: 17-14704 Date Filed: 10/12/2018 Page: 9 of 19
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
9
Case: 17-14704 Date Filed: 10/12/2018 Page: 10 of 19
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)).
10
Case: 17-14704 Date Filed: 10/12/2018 Page: 11 of 19
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
11
Case: 17-14704 Date Filed: 10/12/2018 Page: 12 of 19
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
12
Case: 17-14704 Date Filed: 10/12/2018 Page: 13 of 19
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.
13
Case: 17-14704 Date Filed: 10/12/2018 Page: 14 of 19
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
14
Case: 17-14704 Date Filed: 10/12/2018 Page: 15 of 19
“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.
15
Case: 17-14704 Date Filed: 10/12/2018 Page: 16 of 19
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
16
Case: 17-14704 Date Filed: 10/12/2018 Page: 17 of 19
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.
17
Case: 17-14704 Date Filed: 10/12/2018 Page: 18 of 19
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
18
Case: 17-14704 Date Filed: 10/12/2018 Page: 19 of 19
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.
19