Thomas H. Roberts & Associates, PC

Virginia's Personal Injury & Civil Rights Law Firm

11th Amendment Immunity – Federal Suits

Generally speaking states are immune from being sued in federal court. Practice tip: Sue in state court.

The 11th Amendment to the United States Constitution 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.”

The United States Supreme Court has made it clear that when a state removes a case to a federal court’s jurisdiction, the general legal principle requiring waiver out to apply. Lapides v. Board of Regents of University System of Georgia, 535, 613, 620, 122 S.Ct. 1640, 1644 (2002). The court explained,

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, 20 S. Ct. 854, 44 L.Ed. 1055 (1990) (removal requires the consent of all defendants). In doing so, it voluntarily invoked the federal court’s jurisdiction. An 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 out to apply.”

Id.

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