Ashley Wilcox Page v. Todd L. Hicks, et al.

In Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613 (2002), the Court held that when a State voluntarily removes a case from state to federal court, that action waives the state’s sovereign immunity under the Eleventh Amendment to the United States Constitution. The United States Courts of Appeals have split, however, on the extent and scope of this waiver of immunity. The majority of circuit courts that have considered the Lapides question have chosen to adopt a blanket waiver-by-removal rule. This approach has been taken by the Second, Seventh, Ninth, Tenth, and Federal Circuits. The First, Fourth, and D.C. Circuits have limited Lapides and held that the waiver of immunity should only apply to situations where the state actor had waived its immunity in state court. The Third, Fifth and Eleventh Circuits have adopted a hybrid approach and divide immunity from suit and immunity from liability, allowing the State to retain one while waiving the other. Under the Lapides waiver-by-removal rule, does a state waive its constitutionally granted sovereign immunity to suit by voluntarily removing a civil claim from state to federal court?