LAPIDES v. BOARD OF REGENTS OF UNIVERSITY SYSTEM OF GEORGIA et al.

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613 OCTOBER TERM, 2001
Syllabus
LAPIDES v. BOARD OF REGENTS OF UNIVERSITY
SYSTEM OF GEORGIA et al.
certiorari to the united states court of appeals for
the eleventh circuit
No. 01–298. Argued February 25, 2002—Decided May 13, 2002
Petitioner, a professor in the Georgia state university system, filed a state-
court suit against respondents—the system’s board of regents (herein-
after Georgia or State) and university officials in their personal capac-
ities and as state agents—alleging that the officials had violated state
tort law and 42 U. S. C. § 1983 when they placed sexual harassment alle-
gations in his personnel files. The defendants removed the case to Fed-
eral 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.
Held: A State waives its Eleventh Amendment immunity when it removes
a case from state court to federal court. Pp. 617–624.
(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 pro-
ceedings. 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. 617–618.
(b) This Court has established the general principle that a State’s
voluntary appearance in federal court amounts to a waiver of its Elev-
enth Amendment immunity, Clark v. Barnard, 108 U. S. 436, 447; Gard-
ner 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 Postsecondary Ed. Expense Bd., 527 U. S. 666, 681, n. 3. Here,
Georgia was brought involuntarily into the case as a defendant in state

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614 LAPIDES v. BOARD OF REGENTS OF UNIV. SYSTEM
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Syllabus
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. 618–620.
(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 construc-
tive waivers repudiated there from waivers effected by litigation con-
duct, 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 pro-
visions 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 else-
where. Respondents also argue that Georgia is entitled to immunity
because state law does not authorize its attorney general to waive Elev-
enth Amendment immunity and because, in Ford Motor Co. v. Depart-
ment of Treasury of Ind., 323 U. S. 459, a State regained immunity by
showing such lack of authority—even after the State had litigated the
case against it. Here, however, Georgia voluntarily invoked the fed-
eral 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 repre-
sent the sounder line of authority, and Ford, which is inconsistent
with the basic rationale of those cases, is overruled insofar as it would

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615 Cite as: 535 U. S. 613 (2002)
Syllabus
otherwise apply. Respondents’ remaining arguments are unconvinc-
ing. Pp. 620–624.
251 F. 3d 1372, reversed.
Breyer, J., delivered the opinion for a unanimous Court.
David J. Bederman argued the cause for petitioner. With
him on the briefs were Michael J. Bowers and Patrick W.
McKee.
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.
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.
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 Attor-
ney General, and Lisa R. Eskow, Assistant Solicitor General,
and the Attorneys General for their respective States as fol-
lows: 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, Jenni-
fer M. Granholm of Michigan, Mike Moore of Mississippi,
Don Stenberg of Nebraska, Frankie Sue Del Papa of Ne-
vada, David Samson of New Jersey, Roy Cooper of North
Carolina, Wayne Stenehjem of North Dakota, Betty D. Mont-
gomery of Ohio, W. A. Drew Edmondson of Oklahoma, D.
Michael Fisher of Pennsylvania, Paul G. Summers of Ten-

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616 LAPIDES v. BOARD OF REGENTS OF UNIV. SYSTEM
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Opinion of the Court
nessee, Mark L. Shurtleff of Utah, William H. Sorrell of
Vermont, and Jerry W. Kilgore of Virginia.*
Justice Breyer delivered the opinion of the Court.
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.
I
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 capac-
ities and as agents of the State. Lapides’ lawsuit alleged
that university officials placed allegations of sexual harass-
ment 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).
All defendants joined in removing the case to Federal Dis-
trict Court, 28 U. S. C. § 1441, 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.
*John Townsend Rich filed a brief for Ceres Marine Terminals, Inc., as
amicus curiae urging reversal.

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Opinion of the 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).
The State appealed the District Court’s Eleventh Amend-
ment ruling. See Puerto Rico Aqueduct and Sewer Author-
ity 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).
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 fed-
eral court . . . .” Pet. for Cert. (i).
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 mone-
tary damages, and we have held that a State is not a “per-
son” 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 (assert-
ing that complaint also sought declaratory judgment on
the federal claim), with complaint, App. 9–19 (failing, im-
plicitly 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

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Opinion of the Court
situation where the State’s underlying sovereign immunity
from suit has not been waived or abrogated in state court.
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). 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 differ-
ences of view among the lower courts, we shall do so. Com-
pare 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) (simi-
lar); and Gwinn Area Community Schools v. Michigan, 741
F. 2d 840, 846–847 (CA6 1984) (similar).
II
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 fed-
eral court. See, e. g., Atascadero, supra, at 238. And the
question before us now is whether a State waives that im-

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munity when it removes a case from state court to federal
court.
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 im-
munity, thereby denying that the “Judicial power of the
United States” extends to the case at hand. And a Constitu-
tion that permitted States to follow their litigation interests
by freely asserting both claims in the same case could gener-
ate 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 Postsecondary 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).

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Opinion of the Court
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.
We see no reason to abandon the general principle. Geor-
gia points out that the cases that stand for the princi-
ple, 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.
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 con-
structive 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 Amend-
ment’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 ad-
vantages. See Wisconsin Dept. of Corrections v. Schacht,
524 U. S. 381, 393 (1998) (Kennedy, J., concurring). The rel-
evant “clarity” here must focus on the litigation act the State
takes that creates the waiver. And that act—removal—is
clear.

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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 pro-
vide its codefendants, the officials sued in their personal
capacities, with the generous interlocutory appeal provisions
available in federal, but not in state, court. Compare Mitch-
ell v. Forsyth, 472 U. S. 511, 524–530 (1985) (authorizing
interlocutory appeal of adverse qualified immunity determi-
nation), with Turner v. Giles, 264 Ga. 812, 813, 450 S. E. 2d
421, 424 (1994) (limiting interlocutory appeals to those certi-
fied by trial court). And it intended, from the beginning, to
return to state court, when and if its codefendants had
achieved their own legal victory.
A benign motive, however, cannot make the critical dif-
ference 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 advantages, if not in this case, in others. See
Schacht, supra, at 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 sub-
sequently 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.
More importantly, Georgia argues that state law, while au-
thorizing 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, id., Art. 1, § 2, ¶¶ 9(e), (f), reprinted in 2 Ga. Code

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Ann. (Supp. 1996). Georgia adds that in Ford, 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 Elev-
enth Amendment defense raised for the first time after a
State had litigated a claim brought against it in federal court.
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 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?
The short answer to this question is that this case involves
a State that voluntarily invoked the jurisdiction of the fed-
eral court, while Ford involved a State that a private plain-
tiff 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 jurisdic-
tion. 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 in-
quiring into attorney general’s authority). And the Elev-
enth Amendment waiver rules are different when a State’s
federal-court participation is involuntary. See Hans v. Lou-
isiana, 134 U. S. 1 (1890); cf. U. S. Const., Amdt. 11 (discuss-
ing suits “commenced or prosecuted against” a State).
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 analo-
gous contexts, in which such matters are questions of federal

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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 in-
consistency 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, 524 U. S., 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 ra-
tionale of that line of cases, we consequently overrule Ford
insofar as it would otherwise apply.
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 vol-
untarily 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 Okla-
homa 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-a` -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.
Finally, Georgia says that our conclusion will prove con-
fusing, 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

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federal courts and the States themselves. It says that re-
moval 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 Amend-
ment purposes) by the consent to removal.” See Schacht,
supra, at 397 (concurring opinion).
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 de-
termination. 28 U. S. C. § 1367(c)(3).
For these reasons, the judgment of the Court of Appeals
is reversed. It is so ordered.