1

No. 16-603

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2016

ELIZABETH WARNER, IN HER OFFICIAL CAPACITY AS GOVERNOR OF BERNMONT, KENDRA GLASSERMAN-FULTZ, IN HER OFFICIAL CAPACITY AS CHIEF OF STAFF TO THE GOVERNOR OF BERNMONT, AND THE STATE OF BERNMONT,

Petitioners,

v.

TRAVIS GREENE,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE UNITED STATES

BRIEF FOR THE RESPONDENT

Attorneys for Respondent

Team A

i

QUESTIONS PRESENTED

1. Whether, as a matter of law, the Elrod/Branti policymaker exception extends to a

situation where a policymaking employee publicly expressed political views not relating to the employee’s official duties, but were adverse to the political views of the current administration, and if so, whether it justifies patronage termination.

2. Whether the State of Bernmont waived sovereign immunity for a state law claim for which it retained sovereign immunity in its own courts, when it voluntarily invoked federal jurisdiction by removing the claim to federal court.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .............................................................................................................. i

TABLE OF CONTENTS ................................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................................... iv

OPINIONS BELOW ...................................................................................................................... vi

STATEMENT OF JURISDICTION.............................................................................................. vi

STATEMENT OF THE CASE ........................................................................................................1

Background ..........................................................................................................................1

Procedural History ...............................................................................................................3

SUMMARY OF THE ARGUMENT ..............................................................................................5

ARGUMENT ...................................................................................................................................6

I. MR. GREENE’S POSTS ARE PROTECTED BY THE FIRST AMENDMENT AND THEREFORE FALL OUTSIDE OF THE ELROD/BRANTI POLICYMAKER EXCEPTION ..........................................6 A. Mr. Greene’s fundamental First Amendment right is paramount to the Governor’s

interest and therefore should be protected ..................................................................... 8

B. Mr. Greene’s speech requires First Amendment Protection because he was speaking as a private citizen ........................................................................................................13

C. Mr. Greene’s termination based on speech is unconstitutional ...................................14

II. THE COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT CORRECTLY HELD THAT THE

STATE OF BERNMONT WAIVED ANY SOVERIGN IMMUNITY IT POSSESSED WHEN IT VOLUNTARILY INVOKED FEDEAL JURISDICTION THROUGH THE ACT OF REMOVAL ................15

A. The history of the Eleventh Amendment’s jurisprudence supports the

Thirteenth Circuit’s holding that voluntary invocation of federal court jurisdiction waives sovereign immunity, regardless of any immunity retained in state court .................................................................................................................19

B. A general waiver-by-removal rule encourages a consistent application and eliminates the possibility of unfair tactical advantages ...............................................23

iii

C. The theory of states possessing dual forms of sovereign immunity improperly complicates the simple test articulated in Lapides and increases the likelihood of states gaining tactical advantages ............................................................................25

CONCLUSION ..............................................................................................................................28

iv

TABLE OF AUTHORITES UNITED STATES SUPREME COURT CASES

Alden v. Maine, 527 U.S. 706 (1999) ........................................................................................... 14 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985). ..................................................... 15, 25 Branti v. Finkel, 445 U.S. 507 (1980) ......................................................................................... 3, 8 Carey v. Brown, 447 U.S. 455 (1980). ............................................................................................ 6 Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) ........................................................................ 15 Clark v. Barnard, 108 U.S. 436 (1883) .................................................................................. 15, 16 Cleveland Bd. of Educ. V. Loudermill, 470 U.S. 532 (1985) ........................................................ 13 College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666

(1999). ............................................................................................................................. 5, 15, 16 Connick v. Myers, 461 U.S. 138 (1983) ...................................................................................... 6, 8 Edelman v. Jordan, 415 U.S. 651 (1974). .............................................................................. 15, 16 Elrod v. Burns, 427 U.S. 347 (1976) ...................................................................................... 3, 6, 7 Ford Motor Co. v. Dep't of Treasury of State of Indiana, 323 U.S. 459 (1945) .......................... 21 Gardner v. New Jersey, 329 U.S. 565 (1947) ............................................................................... 17 Gunter v. Atlantic Coast Line Railroad Company, 200 U.S. 273 (1906) ..................................... 16 Lapides v. Bd. of Regents of the Univ. System of Georgia, 535 U.S. 613 (2002) ......... 5, 17, 20, 22 Matthews v. Eldridge, 424 U.S. 319 (1976). ................................................................................ 13 Murray v. Wilson Distilling Co., 213 U.S. 151 (1909) ................................................................. 16 NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ............................................................ 6 New York Times v. Sullivan, 376 U.S. 254 (1964) .......................................................................... 6 O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996). ............................................ 8 Pickering v. Bd. of Educ., 391 U.S. 563 (1968) .............................................................................. 8 Roth v. United States, 354 U.S. 476 (1957) .................................................................................... 6 Rutan v. Republian Party of Ill., 497 U.S. 62 (1990) ..................................................................... 6 Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381 (1998)…………………………...21, 22

UNITED STATES CIRCUIT COURTS OF APPEALS CASES

American Mini Theatres, Inc. v. Gribbs, 518 F.2d 1014 (6th Cir. 1975). ...................................... 5 Bd. Of Regents of Univ. Of Wisconsin Sys. v. Phoenix Int'l Software, Inc., 653 F.3d 448 (7th Cir.

2011) ......................................................................................................................................... 19 Bergemann v. Rhode Island Dep't of Envtl. Mgmt., 665 F.3d 336 (1st Cir. 2011) ....................... 24 Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013) .............................................................................. 7 Curinga v. City of Clairton, 357 F.3d 305 (3d Cir. 2004) .............................................................. 8 Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995) ......................................................... 8 Embury v. King, 361 F.3d 562, 564 (9th Cir. 2004) ............................................................... 20, 24 Estes v. Wyoming Dep't of Transp., 302 F.3d 1200 (10th Cir. 2002) ..................................... 20, 24 Flynn v. City of Boston, 140 F.3d 42 (1st Cir. 1996) ...................................................................... 9 Graber v. Clarke, 763 F.3d 888 (7th Cir. 2014) ............................................................................. 9 Gustafson v. Jones, 290 F.3d 895 (7th Cir. 2002) ........................................................ 9, 10, 12, 13 Hinshaw v. Smith, 436 F.3d 997 (8th Cir. 2006) ........................................................................ 7, 8 In re Regents of Univ. of California, 964 F.2d 1128 (Fed. Cir. 1992). ......................................... 23

v

Jingles v. Pierce, 825 F.2d 1127 (7th Cir. 1987). ......................................................................... 13 Kokkinis v. Ivkovich, 185 F.3d 840 (7th Cir. 1999) ........................................................................ 9 Kristofek v. Vill. of Orland Hills , --- F.3d. ---, 2016 WL 4245494 (7th Cir. Aug. 11, 2016). 8, 10,

12 Lewis v. Cowen, 165 F.3d 154 (2d Cir. 1999) ................................................................................ 9 Lombardo v. Pennsylvania, Dep't of Pub. Welfare, 540 F.3d 190 (3d Cir. 2008) ............ 20, 25, 26 McEvoy v. Spencer, 124 F.3d 92 (2d Cir. 1997). ............................................................................ 9 McPherson v. Rankin, 786 F.2d 1233 (5th Cir. 1986) ............................................................ 10, 12 Meyers ex rel. Benzing v. Texas, 410 F.3d 236 (5th Cir. 2005). ................................. 19, 24, 25, 26 Rose v. Stephens, 291 F.3d 917 (6th Cir. 2002) .............................................................................. 8 Sowards v. Loudon Cty., Tenn., 203 F.3d 426 (6th Cir. 2000) ................................................... 6, 7 Stewart v. N. Carolina, 393 F.3d 484 (4th Cir. 2005) .................................................................. 24 Stroud v. McIntosh, 722 F.3d 1294 (11th Cir. 2013). ............................................................. 25, 26 Terrell v. University of Texas System Police, 792 F.2d 1360 (5th Cir. 1986) .............................. 12 Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000). ....................................................................... 12 Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964 (7th Cir. 2001) ................................ 9 Warzon v. Drew, 60 F.3d 1234 (7th Cir. 1995)....……………………………………………….11

CONSTITUTIONAL PROVISIONSU.S. CONST. amend. I ...................................................................................................................... 6 U.S. CONST. amend. XI ................................................................................................................. 15

STATUTORY PROVISIONS24 Bernmont Code § 3891 .............................................................................................................. 3 28 U.S.C. § 1291 ............................................................................................................................ vi 28 U.S.C. § 1441 ......................................................................................................................... v, 3 42 U.S.C. § 1983 ................................................................................................................... v, 3, 17 42 U.S.C. § 1988 ............................................................................................................................. 3

SECONDARY SOURCES 1 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 235 (1769) ......................... 14 Peter R. Dubrowski, Lapides v. Board of Regents of the University of Georgia, State Sovereign

Immunity, and the Proper Scope of Waiver-by-Removal, 17 N.Y.U. J. LEGIS. & PUB. POL'Y 763, 786 (2014). ........................................................................................................................ 26

vi

OPINIONS BELOW

The Memorandum Opinion and Order of the United States District Court for the Western

District of Bernmont (15-cv-554) is located on pages 2 – 13 of the record. The opinion of The

United States Court of Appeals for the Thirteenth Circuit (15-cv-5708) is located on pages 15 –

24 of the record.

STATEMENT OF JURISDICTION

A notice of removal to the District Court was filed pursuant to 28 U.S.C. § 1441. R. at 6.

The District Court has jurisdiction under on 28 U.S.C. § 1331. This is a civil action arising under

42 U.S.C. § 1983 alleging a violation of Mr. Greene’s First Amendment Rights under the

Constitution of the United States and supplemental state claims. The Court of Appeals also has

jurisdiction under 28 U.S.C. § 1291. The District Court entered final judgment on June 4, 2015.

R. at 13. Mr. Greene filed a timely notice of appeal on June 4, 2015. R. at 14. The Supreme

Court granted certiorari on June 30, 2016. R. at 25.

1

STATEMENT OF THE CASE

Background Travis Greene (“Respondent”) filed an action against Elizabeth Warner, Governor of

Bernmont, Kendra Glasserman-Fultz, Chief of Staff to the Governor of Bernmont, and the State

of Bernmont (collectively “Petitioners”) after Petitioners fired Mr. Greene for his speech and

political views that were unrelated to his position as Director of Commission. R. at 2.

Mr. Greene, a thirty-six-year-old African-American, grew up in South Maine, where the

Republican Party has predominately controlled the political system for the past thirty years. R. at

2-3. Mr. Greene, a Democratic Socialist and a lifelong member of the Democratic Party, left

South Maine and moved to Bernmont, a state where the political atmosphere is more in line with

his personal beliefs. R. at 3. While living in Bernmont, Mr. Greene attended Bernmont State

University and received degrees in Public Administration and Critical Race Studies. Id.

After college, Mr. Greene accepted a position with the Bernmont Human Rights

Commission (“Commission”). Id. “The Commission enforces Bernmont’s anti-discrimination

laws, adjudicating discrimination claims involving government agencies and investigating and

prosecuting claims against private businesses.” Id. Upon discovering the Commission’s

objectives, he was enthusiastic to begin this position and excited that his political views aligned

with his colleagues. Id. Mr. Greene received positive performance reviews that reflected his

knowledge and work ethic. Id. As a result, the Commission repeatedly promoted Mr. Greene. Id.

In 2012, former Republican Bernmont Governor, Timothy Paine, appointed Mr. Greene to an at-

will position as the Director of Commission for a six-year term. Id. In his role as Director, Mr.

Greene facilitated agency rulemaking, goal setting, and worked to protect Bernmont citizens

from discrimination. Id.

2

In 2014, a week prior to the primary election, Mr. Greene publically endorsed

Democratic candidate for Governor, Elizabeth Warner. R. at 4, n.1. Warner ultimately defeated

Governor Paine in the general election with a campaign centered around gun control. R. at 3-4.

After taking office, Governor Warner made multiple personnel changes to ensure her staff

aligned with her political views. R. at 4. Governor Warner also hired Kendra Glasserman-Fultz

as her Chief of Staff. Id. In this role, Glasserman-Fultz managed the selection and retention of

the State’s department heads. Id. Although Glasserman-Fultz replaced other department heads,

she re-appointed Mr. Greene as head of the Commission. Id.

In 2015, a white police officer shot and killed an unarmed African-American woman in

Port Worth, North Texas. Id. In the aftermath of the event, Port Worth held a Black Lives Matter

March. Id. Mr. Greene’s twin brother, Trevor, attended the event in protest of the killing. Id.

Trevor wore military garb and was legally equipped with a rifle under North Texas’ open carry

law. Id. At the event, a lone gunman began firing and killed five police officers. Id. To prevent

additional fatalities, Trevor “immediately assisted those under siege” and ultimately shot and

killed the gunman. Id. In the immediate aftermath of the shootings, national media made Trevor

a prime interviewee. R. at 4-5. The National Rifle Association (“NRA”) also featured Trevor in

advertisements to support armed citizens’ abilities to minimize violence. R. at 5.

Mr. Greene, also an NRA member, praised his brother’s actions on his personal social

media accounts.1 Id. Multiple Commission employees who have law enforcement family

members also expressed appreciation to Mr. Greene for his brother’s “heroic action” and Mr.

Greene’s social media praise. Id.

Based on the Port Worth killings, Governor Warner readdressed the issue of gun control

1 Mr. Greene’s posts included the following statements: “Way to go – Good guys with guns make a difference!”; “Black, Progressive, and a card-carrying member of the NRA, in that

3

and pressured the legislature to pass regulations strengthening Bernmont’s gun laws. Id. A local

reporter subsequently contacted Governor Warner for her comments regarding Travis’s

statements. Id. Based on this inquiry, Governor Warner learned of Mr. Greene’s NRA

membership. Id. Shorty thereafter, Glasserman-Fultz terminated Mr. Greene’s employment

stating that “even though his job had nothing to do with gun control, the Governor could not

have a senior member of the administration publically opposing gun control measures.” R. at 5-

6.

Procedural History

After his termination, Mr. Greene filed suit in Sandersburg Superior Court alleging

Petitioners violated his First Amendment rights under the United States Constitution as well as

his rights under the Free Speech and Association Provisions of the Bernmont Constitution. R. at

6. Mr. Greene sought an injunction for reinstatement and attorney’s fees against Governor

Warner and Glasserman-Fultz pursuant to 42 U.S.C. §§ 1983 and 1988, as well as an injunction,

an award of back pay, and attorney’s fees under 24 Bernmont Code § 3891 against all

Petitioners. Id.

Following the complaint, Petitioners filed a notice of removal to United States District

Court pursuant to 28 U.S.C. § 1441. Id. Petitioners then moved for summary judgment “alleging

that Mr. Greene’s dismissal was constitutional because the policymaker exception for patronage

firings in Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion) and Branti v. Finkel, 445 U.S.

507 (1980) should sanction terminations based on public speech inconsistent with the agenda of

the governing administration.” Id. Additionally, Petitioners claimed that even if the exception did

not permit the termination of Mr. Greene, sovereign immunity barred the possible recovery for

back pay. R. at 6-7. In response, Mr. Greene argued the “State waived its sovereign immunity

4

from damages actions by removing the case to federal court, and that the Elrod/Branti exception

does not apply.” R. at 7.

After completion of discovery regarding Mr. Greene’s role as a policymaker, Petitioners

renewed their motion for summary judgment. Id. Mr. Greene also “moved for summary

judgment, claiming that sovereign immunity did not preclude damages and that he was entitled

to judgment on his retaliation claim because the Elrod/Branti policymaking exception did not

justify his termination.” Id.

On June 4, 2015, the district court granted Petitioner’s motion for summary judgment and

concluded that the Elrod/Branti exception applies to Mr. Greene’s speech and therefore recovery

is barred. R. at 7, 13. Based on this finding, the court did not find the need to address the second

issue of sovereign immunity.2 Id.

On June 11, 2015, Mr. Greene filed an appeal to the United States Court of Appeals for

the Thirteenth Circuit. R. at 14. The Court of Appeals held that the Mr. Greene’s speech does not

apply to the policymaker exception under Elrod/Branti, and therefore should not be extended to

justify his termination. R. at 22. Further, the court found that “[b]ecause his state claims

substantively mirror his federal claim, and the State waived immunity for those claims, Greene is

also entitled to back pay.” Id. The Court of Appeals consequently reversed the district court and

remanded judgment for Mr. Greene. Id. On June 30, 2016, the Supreme Court of the United

States granted certiorari. R. at 25.

2 The State of Bernmont has not consented to suits against the state for claims under 24 Bernmont Code § 3891, thus retaining sovereign immunity. However, the exact extent of this immunity remains unclear. The Bernmont State Courts of Appeal are split as to whether Bernmont recognizes sovereign immunity in a single jurisdictional form or a dual form including both immunity from suit and immunity from liability. R. at 7.

5

SUMMARY OF THE ARGUMENT

This Court should affirm the ruling of the United States Court of Appeals for the

Thirteenth Circuit because Mr. Greene was improperly terminated based on his First Amendment

expression and that termination did not fall within the Elrod/Branti policymaker exception.

When Mr. Greene obtained employment with the government, he did not relinquish all of his

First Amendment rights. In applying the two-part test to determine whether Mr. Greene’s

termination was a violation of his First Amendment rights, this Court should find that Mr.

Greene’s speech was a matter of public concern. Therefore, this Court should apply the

Pickering balancing test given the combination of speech and political affiliation in this case. Mr.

Greene’s position as a policymaker, although a factor, does not preclude analysis under

Pickering. Under this test, this Court should find that Mr. Greene’s First Amendment right

outweighs the government’s interest. Under Pickering, the Petitioner will ultimately fail as Mr.

Greene’s speech was not disruptive and was not related to the responsibilities of his position in

the Commission, which were to promote anti-discrimination laws. Rather, it was solely

expressed outside of his employment and only involved personal matters. Furthermore, this

Court should find that Mr. Greene was not only denied First Amendment rights but also his due

process rights because he was not given proper notice, explanation, and opportunity upon

termination.

The Court of Appeals for the Thirteenth Circuit should additionally be affirmed because

the state of Bernmont waived any sovereign immunity it possessed when it voluntarily invoked

federal court jurisdiction through the act of removal. States may waive their sovereign immunity

expressly through statute, or impliedly through its conduct. Accordingly, the United States

Supreme Court has created a waiver doctrine where a state may waive its Eleventh Amendment

6

immunity by either voluntarily invoking federal court jurisdiction or by making a clear

declaration of its intent to subject itself to federal jurisdiction. In Lapides v. Board of Regents of

the University System of Georgia, 535 U.S. 613 (2002), this Court confirmed this test and held

that a state’s voluntary removal of a case to federal court is sufficient to waive its Eleventh

Amendment immunity with respect to a state law claim. Given the history and goals behind the

rule announced in Lapides, this Court should extend its reasoning to include the instant case

where the state has retained sovereign immunity in state court. This simple, objective rule

eliminates the possibility for states to take advantage of federal court jurisdiction in order to

secure litigation advantages. Furthermore, this Court should not recognize state immunity as

being comprised of immunity from suit and immunity from liability, as that recognition will only

encourage the litigation maneuvers that the rule in Lapides was created to eliminate.

ARGUMENT I. MR. GREENE’S POSTS ARE PROTECTED BY THE FIRST AMENDMENT

AND THEREFORE FALL OUTSIDE OF THE ELROD/BRANTI POLICYMAKER EXCEPTION.

First Amendment rights are recognized among “the most fundamental rights possessed by

free people.” American Mini Theatres, Inc. v. Gribbs, 518 F.2d 1014, 1019 (6th Cir. 1975). The

First Amendment, in pertinent part, provides that “Congress shall make no law . . . abridging the

freedom of speech.” U.S. CONST. amend. I. This Amendment “was fashioned to assure

unfettered interchange of ideas for the bringing about of political and social changes desired by

people.” Connick v. Myers, 461 U.S. 138, 144 (1983) (citing Roth v. United States, 354 U.S. 476,

484 (1957); New York Times v. Sullivan, 376 U.S. 254, 269 (1964)). At the core of the First

Amendment lies the need to protect political beliefs and associations. Sowards v. Loudon Cty.,

Tenn., 203 F.3d 426, 432 (6th Cir. 2000) (citing Rutan v. Republian Party of Ill., 497 U.S. 62, 69

7

(1990) (quoting Elrod, 427 U.S. 347, 356 (1976))). Accordingly, this Court has “frequently

reaffirmed that speech on public issues occupies the ‘highest rung of [the] hierarchy of First

Amendment values and is entitled to special protection.’” Connick, 461 U.S. at 144 (citing

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455,

467 (1980).

It is unconstitutional for a government’s conduct to infringe upon a First Amendment

right, unless it can overcome the highest level of scrutiny. Elrod, 427 U.S. at 362. The

government bears the burden to show that the interest it seeks to advance is “paramount [and]

one of vital importance.” Id. (emphasis added). The government cannot satisfy this burden by

merely showing a legitimate state interest or by showing that its interest is only rationally related

to its means. Id. Instead, the strict scrutiny burden mandates the government to prove both that

its interest outweighs the “incurred loss of the [First Amendment] protected rights” and that it

utilized “means closely drawn to avoid unnecessary abridgment.” Id. at 362-63 (emphasis

added). These means must be construed with narrow “precision” as they infringe on a person’s

most “precious” freedoms. Id. at 363.

The highest constitutional burden of strict scrutiny also extends to government

employees. See Bland v. Roberts, 730 F.3d 368, 373 (4th Cir. 2013) (stating the First

Amendment generally protects against the firing of government employees based on political

affiliation). This Court, however, created a narrow exception that allows for “patronage

dismissals” of employees occupying policymaking positions.3 Elrod, 427 U.S. at 564. Yet, this

Court also acknowledges “patronage dismissals severely restrict political belief and association.”

Id. at 565. Thus, the ultimate inquiry should not be “‘whether the label “policymaker” . . . fits a

3 Policymaker employee is one who, for example, acts as an advisor or formulates and implements broad office goals. Elrod, 427 U.S. at 564.

8

particular position; rather, the question is whether the hiring authority can demonstrate that party

affiliation [or political allegiance] is an appropriate requirement for the effective performance of

the public office involved.’” Bland v. Roberts, 730 F.3d 368, 375 (4th Cir. 2013) (quoting Branti

445 U.S. at 518); see also Hinshaw v. Smith, 436 F.3d 997, 1005 (8th Cir. 2006) (stating that the

government must demonstrate that party affiliation is a reasonable requirement for the public

position). Accordingly, when presented with this question, this Court should evaluate whether

political affiliation is an appropriate requisite for a government position as a matter of law.

Sowards, 203 F.3d at 435.

A. Mr. Greene’s fundamental First Amendment right is paramount to the Governor’s interest and therefore should be protected.

The United States Court of Appeals for the Thirteenth Circuit appropriately found that

Petitioner’s dismissal of Mr. Greene was improper because Mr. Greene’s First Amendment

expression did not fall within the Elrod/Branti policymaker exception. Although this Court has

yet to address whether, or how, the Elrod/Branti policymaker exception should be applied when

a policymaker asserts a First Amendment claim based on speech rather than political affiliation,

it is well settled that a government employee does not relinquish all of his or her First

Amendment rights when accepting government employment. Hinshaw, 436 F.3d at 1005.

As a result, courts are to employ a two-part test when analyzing whether a public

employee’s termination violates his or her First Amendment right. Rose v. Stephens, 291 F.3d

917, 920 (6th Cir. 2002) (citing Connick, 461 U.S. at 151-52). “The threshold question is

whether the employee’s ‘speech may be fairly characterized as constituting speech on a matter of

public concern.’” 4 Id. (quoting Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1186 (6th Cir.

4 “Speech deals with public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is the subject of legitimate news

9

1995)). If speech is appropriately characterized as public concern, then the court must apply the

Pickering test. Id. In Pickering, this Court outlined a specific set of criteria “to seek ‘a balance

between the interests of the [employee], as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.’” Connick, 461 U.S. at 142 (quoting Pickering, 391

U.S. at 568).

Although some Circuit Courts have tried to create a bright-line rule barring the Pickering

test from being applied to policymakers with adverse party affiliations, this Court has “indicated”

that when speech is intermixed with the affiliation, Pickering should apply. Hinshaw, 436 F.3d at

1006 (citing O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 718-19 (1996). Other

Circuit Courts have responded to this Court’s indication by incorporating the Pickering test in a

similar fashion. See Hinshaw, 436 F.3d at 1006 (stating the Eighth Circuit hesitates to apply the

Elrod/Branti policymaker exception to cases where speech is the concern as opposed to party

affiliation); Curinga v. City of Clairton, 357 F.3d 305, 314 (3d Cir. 2004) (describing how the

Pickering balancing test is a better analysis when the termination involves an employee’s

speech); Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir. 1999) (stating that Pickering must be

applied when speech is the justification for termination); Flynn v. City of Boston, 140 F.3d 42,

46-47 (1st Cir. 1996) (finding that a court may apply Pickering to analyze the employee’s

substantive views).

The policymaker’s position is not a dispositive factor that must be included in this

balancing test. Furthermore, the Second Circuit found that even when a policymaker exception

exists, this Court has never stated that a policymaker’s position would “automatically tilt the

interest; that is, a subject of general interest and of value and concern to the pubic.” Kristofek v. Vill. of Orland Hills , --- F.3d. ---, 2016 WL 4245494 (7th Cir. Aug. 11, 2016).

10

Pickering balance in the employer’s favor” therefore rejecting the policymaker bright-line rule.

McEvoy v. Spencer, 124 F.3d 92, 101 (2d Cir. 1997). Although the position may be a factor, it is

not to be conclusive. Id. Instead, when analyzing speech through the Pickering lens, the court

must weigh the following seven factors:

(1) whether the statement would create problems in maintaining discipline by immediate supervisors or harmony among co-workers; (2) whether the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee’s ability to perform his daily responsibilities; (4) the time, place, and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decision making; (7) whether the speaker should be regarded as a member of the general public.

Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, n.2 (7th Cir. 2001) (quoting

Kokkinis v. Ivkovich, 185 F.3d 840, 845 (7th Cir. 1999)); see also Graber v. Clarke, 763 F.3d

888, 896 (7th Cir. 2014) (noting that not all of the seven factors need to be addressed in a

Pickering analysis)).

When applying these factors, the Seventh Circuit emphasized the importance of the

context of the employee’s speech, as well as whether the speech caused disruptions within the

government. See Gustafson v. Jones, 290 F.3d 895, 911 (7th Cir. 2002). For example, the court

found that an employer did not meet its burden under the Pickering test when police officers

spoke out against their superior, but there was no evidence of disruption, and the police officers

voiced their concerns in an appropriate fashion. Gustafson, 290 F.3d at 911 (holding that after a

letter was sent to the press and elected officials without disruption to the police department, the

government did not meet its burden under Pickering). The Seventh Circuit reaffirmed this

holding in 2016 finding that when an officer accused his police chief of being a criminal who

was going to be indicted, the government could not show its interest justified termination

because the manner upon which the officer made this allegations did not disrupt the department.

11

Kristofek v. Vill. of Orland Hills, --- F.3d ---, 2016 WL 4245494, at *2 (7th Cir. Aug. 11. 2016).

Additionally, the Fifth Circuit held that when applying Pickering, courts must rely on the

proposition that the first amendment jurisprudence “will best be secured in the long haul if the

government tolerates as much diversity as possible.” McPherson v. Rankin, 786 F.2d 1233, 1239

(5th Cir. 1986). The Fifth Circuit addressed a situation where a clerical worker in the Houston

constable’s office made reference to a co-worker about how she hoped assassins would succeed

in killing President Reagan. Id. at 1234. When the Constable heard this statement, he terminated

the employee. Id. The Fifth Circuit, however, found that even though the government has an

interest in employing individuals with interests that are fundamentally in line with its mission,

the employee could not be fired for her political opinion. Id. at 1239. While the court

acknowledged that if the employee would have had more power within the office, their

evaluation may have been different, the fundamental principle remains: “[a]bsent evidence that a

government employee's views are inconsistent with the mission of the employing agency and

with the employee's role in that agency, tolerance is required. Id. (emphasis in original).

Petitioners in this case have failed to overcome their burden to show that the

government’s interest outweighs Mr. Greene’s First Amendment right. Given the parallel party

affiliation of Mr. Greene and Petitioners, Mr. Greene’s claim should be analyzed through the

lens of protecting First Amendment speech, as opposed to his position as a policymaker. For Mr.

Greene did not forfeit all of his First Amendment rights simply by becoming a government

employee. See Warzon v. Drew, 60 F.3d 1234, 1238 (7th Cir. 1995). Furthermore, although Mr.

Greene’s speech addressed a public concern, his speech must be evaluated under Pickering to

ensure that his interests are not stifled by a blanketed government attempt to invoke the

Elrod/Branti policymaker exception.

12

Here, when applying Pickering’s factors, Petitioners claim fails on multiple accounts.

First, Petitioners cannot show that Mr. Greene’s posts created disharmony among the

Commission’s employees. In fact, the record points to the contrary indicating that Mr. Greene’s

colleague showed appreciation to Mr. Greene for expressing his views about gun rights. R. at 5.

Second, while the Governor may claim that termination was appropriate because Mr. Greene’s

position is one that requires loyalty, this too is a failed argument because Mr. Greene’s not only

politically aligns with the Governor, but also publically supported the Governor in her campaign,

thus demonstrating his allegiance. R. at 4, n.1. Third, Mr. Greene’s speech did not impact his

ability to perform his daily responsibilities. Mr. Greene works for the Commission to protect

against discrimination in Bernmont. R. at 3. While these posts do not directly relate to Mr.

Greene’s responsibilities, the posts do reference the importance of minority rights, thus

upholding his duties to limit anti-discrimination. R. at 5. Next, Mr. Greene’s posts were written

outside of his employment on his own time. R. at 19. Mr. Greene was supporting his brother who

had recently taken the initiative to save innocent people from a rogue gunman. R. at 4. Lastly,

Petitioners concede that Mr. Greene’s speech caused absolutely no disruption within the

Commission, thus tipping the Pickering test in Mr. Greene’s favor. R. at 19.

Moreover, when applying the rationale from the Fifth, Seventh, and Thirteenth Circuits,

this Court should also find in favor of Mr. Greene because not only did his speech fail to create

any disruptions within the Commission, but his speech also was not inconsistent with his role of

promoting anti-discrimination. See Gustafson, 290 F.3d at 911 (finding that without a disruption

the government cannot meet its burden); Kristofek, 2016 WL 4245494, at *2 (same); McPherson,

786 F.2d at 1239 (stating that unless an employee’s role is inconsistent with the speech, the

speech must be tolerated). Moreover, because Petitioners admitted that Mr. Greene’s

13

professional duties “had nothing to do with gun control,” they cannot prove how their interest,

which must satisfy strict scrutiny, would be paramount to that of Mr. Greene’s fundamental

speech rights. Under this high burden, Mr. Greene’s First Amendment rights must be upheld,

and therefore, this Court should affirm the Thirteenth Circuit’s holding finding that Mr. Greene’s

termination based on his speech was unconstitutional.

B. Mr. Greene’s speech requires First Amendment protection because he was speaking as a private citizen.

This Court has emphasized the clear need to maintain the same speech rights for

government employees as enjoyed by their privately employed counterparts. Urofsky v. Gilmore,

216 F.3d 401, 407 (4th Cir. 2000). The Fourth Circuit has further stated that a critical element in

determining whether the employee’s speech is protected is “whether the speech is ‘made

primarily in the [employee’s] role as a citizen or primarily in his role as an employee.’” Id.

(citing Terrell v. University of Texas System Police, 792 F.2d 1360, 1362 (5th Cir. 1986)).

The speech at issue here is undoubtedly communicated as a private citizen and therefore

mandates First Amendment protection. Mr. Greene utilized his own social media accounts to

praise his brother and express his own personal views on gun control. R. at 5. Mr. Greene spoke

about these views solely on his own time, and never let it impact his professional duties. Id.

Petitioners did not even become aware of Mr. Greene’s gun control opinions until a reporter

contacted the Governor, demonstrating how Mr. Greene was able to compartmentalize his

personal views from his professional responsibilities. R. at 5-6. Mr. Greene also never referenced

his professional position within the post, clearly indicating his intent to keep his personal views

separate from that of the Commission’s. Therefore, based on this Court’s requirement that

private citizens be given the same First Amendment protections as their government

counterparts, this Court should affirm the Thirteenth Circuits opinion upholding Mr. Greene’s

14

First Amendment rights.

C. Mr. Greene’s termination based on speech is unconstitutional.

Even if this Court found Mr. Greene’s speech fell within the policymaker exception,

termination is not appropriate. “First Amendment rights cannot be trampled on hypothetical

concerns . . . .” Gustafson, 290 F.3d at 911. The Seventh Circuit has held that an employer needs

to prove with a substantial showing that the employee’s speech is disruptive before a termination

may be appropriate. Jingles v. Pierce, 825 F.2d 1127, 1132 (7th Cir. 1987). Moreover, due

process requires that government employees have the opportunity to be heard in a “meaningful

time and manner” regarding their employment because of their property interest in continued

employment. Matthews v. Eldridge, 424 U.S. 319, 333 (1976). Specifically, this Court requires

that government employers provide “(1) oral or written notice of the charges; (2) an explanation

of the employer's evidence; and (3) an opportunity for the employee to tell his side of the story.”

Cleveland Bd. of Educ. V. Loudermill, 470 U.S. 532, 546 (1985).

Petitioners failed to show actual disruption and ignored this Court’s requirements in

Loudermill, thus violating Mr. Green’s rights. As previously mentioned, Mr. Greene’s speech

caused no disruption at the Commission. Furthermore, Mr. Greene was not afforded a

meaningful opportunity to address his employment before Glasserman-Fultz terminated his

employment. Instead, Glasserman-Fultz simply stated that even though his employment had

nothing to do with the topic of his speech, Petitioners did not support his association with the

NRA, and consequently fired Mr. Greene. R. at 6. The record does not indicate that Mr. Greene

was given proper notice, Petitioners conceded their basis for firing him had nothing to do with

his actual professional responsibilities, and Mr. Greene was not given the opportunity to respond.

Id. Therefore, Mr. Greene’s termination based on his speech violated both this Court’s First

15

Amendment mandate as well as the due process requirements of Loudermill and its progeny. As

a result, this Court should affirm the Thirteen Circuit’s holding and reinstate Mr. Greene’s

employment.

II. THE COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT CORRECTLY HELD THAT THE STATE OF BERNMONT WAIVED ANY SOVEREIGN IMMUNITY IT POSSESSED WHEN IT VOLUNTARILY INVOKED FEDERAL COURT JURISDICTION THROUGH THE ACT OF REMOVAL.

Eleventh Amendment immunity and state sovereign immunity are related, but separate

doctrines. “[T]he sovereign immunity of the States neither derives from, nor is limited by, the

terms of the Eleventh Amendment.” Alden v. Maine, 527 U.S. 706, 713 (1999). Although distinct

doctrines, both derive from the axiom that “no suit or action can be brought against the King,

even civil matters, because no court can have jurisdiction over him . . . [f]or all jurisdiction

implies superiority of power.” 1 William Blackstone, COMMENTARIES ON THE LAWS OF

ENGLAND 235 (1769). “[A]s the Constitution’s structure, and its history, and the authoritative

interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect

of the sovereignty which the State enjoyed before the ratification of the Constitution, and which

they retain today….” Alden, 527 U.S. at 713.

The Eleventh Amendment of the Constitution provides, “[t]he 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. This amendment was passed by

Congress to overrule the Supreme Court’s decision in Chisholm v. Georgia, where the Court held

that sovereign immunity did not protect Georgia in a suit brought by a South Carolina resident. 2

U.S. (2 Dall.) 419 (1793) (opinion of Wilson, J.), superseded by constitutional amendment, U.S.

CONST. amend. XI. “While the Amendment by its terms does not bar suits against a state by its

16

own citizens, this Court has consistently held that an unconsenting State is immune from suits

brought in federal courts by her own citizens as well as citizens of another state.” Edelman v.

Jordan, 415 U.S. 651, 662-63 (1974).

State sovereign immunity, either from suit in its own courts or in federal courts, is not

absolute. “First, Congress may authorize such a suit in the exercise of its power to enforce the

Fourteenth Amendment.” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527

U.S. 666, 670 (1999) (citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)). “Second, a State may

waive its sovereign immunity by consenting to suit.” Id. (citing Clark v. Barnard, 108 U.S. 436

(1883)). The state may waive its sovereign immunity either expressly through statute or

impliedly though its conduct.

Even under express waiver, this Court still critically analyzes the statute to determine

whether the expression reaches a waiver of Eleventh Amendment immunity. “Although a State's

general waiver of sovereign immunity may subject it to suit in state court, it is not enough to

waive the immunity guaranteed by the Eleventh Amendment.” Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 241 (1985). Waiver must be “unequivocal” and “specifically applicable

to federal-court jurisdiction.” Id. “In deciding whether a State has waived its constitutional

protection under the Eleventh Amendment, we will find waiver only where stated ‘by such

overwhelming implications from the text as (will) leave no room for any other construction.’”

Edelman, 415 U.S. at 673 (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)).

If not expressly waived by statute, this Court must look at the voluntary conduct of the parties to

determine if the state actions rise to the level of waiver.

This Court has “long recognized that a State’s sovereign immunity is ‘a personal

privilege which it may waive at pleasure.’” Coll. Sav. Bank, 527 U.S. at 675 (1999) (quoting

17

Clark, 108 U.S. at 447). However, the decision to waive immunity must be voluntary on the part

of the sovereign. A state may waive immunity “either by voluntarily invoking federal jurisdiction

or by making a clear declaration of its intent to subject itself to federal jurisdiction.” Id. at 675-

76 (internal quotation marks and citations omitted). This voluntary invocation or clear

declaration standard was developed, in part, by this Court in three cases where the state’s actions

amounted to a waiver of its sovereign immunity.

Over a century prior to College Savings Bank, in Clark v. Barnard, the State of Rhode

Island voluntarily appeared in federal court as an intervenor to an action for money it was owed

on a construction bond. 108 U.S. 436, 447 (1883). This Court held that Rhode Island’s voluntary

appearance constituted a waiver of its sovereign immunity. Id. “[T]he State of Rhode Island

appeared in the cause and presented and prosecuted a claim to the fund in controversy, and

thereby made itself a party to the litigation to the full extent requited for its complete

determination.” Id. at 448.

Building upon this notion in Gunter v. Atlantic Coast Line Railroad Company, this Court

held that by voluntarily participating in a tax case in federal court, South Carolina waived its

right to claim Eleventh Amendment immunity. 200 U.S. 273, 285 (1906). This Court, noting the

state’s freedom to waive the privilege of immunity, held 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.” Id. at 284 (emphasis added) (citing Clark, 108 U.S. at 447).

The last of the three cases to establish the waiver rule, Gardner v. New Jersey, arose in

the bankruptcy context where the state of New Jersey voluntarily filed in federal court to resolve

a dispute. 329 U.S. 565 (1947). “When the State becomes the actor and files a claim against the

18

fund, it waives any immunity which it otherwise might have had respecting the adjudication of

the claim.” Id. at 574. The collective decisions by this Court in Clark, Gunter, and Gardner stand

for the proposition that the voluntary act of invoking federal court jurisdiction waives any

sovereign immunity claim the state may have had in state courts, and the state cannot reclaim

that immunity once in federal court.

Given the developments in Eleventh Amendment immunity and the inclusive forms of

conduct that can equate waiver, the precise contours of the waiver doctrine articulated in College

Savings Bank were largely left open. In 2002, this Court handed down the seminal decision of

Lapides v. Board of Regents of the University System of Georgia, which clarified the rule. 535

U.S. 613 (2002). In Lapides, a professor of the Georgia State University system sued the

University Board of Regents and individual board members in Georgia state court, alleging

violations of both Georgia tort law and 42 U.S.C. § 1983. Id. at 616. By statute, the State had

explicitly waived sovereign immunity for the state-law claims in state court. Id. All defendants

agreed to remove the case to federal court and sought dismissal based upon their Eleventh

Amendment immunity from suit in federal court. Id. Upon review from this Court, the federal

claim was dismissed as invalid, leaving only the state law claim. Id.

This Court unanimously held that by removing the action, Georgia voluntarily invoked

federal court jurisdiction and thereby had waived its Eleventh Amendment immunity with

respect to the state law claim. Id. at 620. This holding clarified the test for waiver by creating a

broad rule. The rule carefully adheres to both the history of the waiver doctrine, vis-à-vi the

“voluntary invocation” standard articulated in College Savings Bank, and creates a consistent,

objective rule that eliminates any potential for unfair results while furthering the fundamental

principles of sovereign immunity. Respondent urges this Court to extend its reasoning in Lapides

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to include cases in which a state has retained sovereign immunity for state law claims in its own

courts, thus affirming the Thirteenth Circuit Court of Appeal’s decision.

A. The history of Eleventh Amendment jurisprudence supports the Thirteenth Circuit’s holding that voluntary invocation of federal court jurisdiction waives sovereign immunity, regardless of any immunity retained in state court.

Some Circuit Courts have attempted to limit Lapides. Particularly, when a case presents

only a state law claim for which the state has consented to suit in state court. See Lapides, 535

U.S. at 617-18. However, given the broad language and overarching fundamental principles of

sovereign immunity, the Lapides holding should be liberally construed. Consistent with the

Thirteenth Circuit in the instant case, other Circuit Courts have held there is no reason to limit

Lapides to cases where the state has retained sovereign immunity in its individual state courts.

Particularly, the Fifth Circuit Court of Appeals concluded:

[W]e believe that Lapides's interpretation of the voluntary invocation principle, as including the waiver-by-removal rule, applies generally to any private suit which a state removes to federal court. There is no evident basis in law or judicial administration for severely limiting those general principles . . . to a small sub-set of federal cases including only state-law claims in respect to which a state has waived immunity therefrom in state court.

Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 242 (5th Cir. 2005). See also Bd. Of Regents of

Univ. Of Wisconsin Sys. v. Phoenix Int'l Software, Inc., 653 F.3d 448, 461 (7th Cir. 2011)

(agreeing and joining the “majority of our other sister circuits in reading Lapides to state a more

general rule”). The Fifth Circuit, in support of its position, noted “in formulating its rationale,

[this] Court did not restrict itself to facts, rules, or reasons peculiar to the Lapides case.” Meyers,

410 F.3d 236 at 244.

The Fifth Circuit additionally notes “the general applicability of the voluntary invocation

principle and the waiver-by-removal rule is demonstrated by their history.” Id. “During the long

history of the voluntary invocation principle prior to Lapides, the Supreme Court gave no

20

indication that the principle applied only to state-law claims or that it mattered whether the state

had waived its immunity from suit in its own courts.” Id. at 246. The foundational cases to the

waiver doctrine seem to focus more on the acts of the state, rather than any immunity that it

retained in its own state courts. This Court, in developing the waiver doctrine, continually

reaffirmed the voluntary invocation principle but did not analyze whether the state had waived

immunity as to the claim in state court. Id.

Other Circuit Courts have also examined the broad rule in Lapides and expanded it to

include both state and federal claims. See Embury v. King, 361 F.3d 562, 564 (9th Cir. 2004), as

amended (May 17, 2004) (holding “the rule in Lapides applies to federal claims as well as to

state law claims”); Meyers, 410 F.3d at 242 (same). Other Circuits have addressed cases where

the state removes a valid federal law claim to federal court, a fact specifically not addressed in

Lapides. 535 U.S. at 617. See Estes v. Wyoming Dep't of Transp., 302 F.3d 1200, 1204 (10th Cir.

2002) (holding the act of removing federal law claims waives a State’s sovereign immunity in

federal court); Lombardo v. Pennsylvania, Dep't of Pub. Welfare, 540 F.3d 190, 198 (3d Cir.

2008) (“We hold that the Commonwealth's removal of federal-law claims to federal court

effected a waiver of immunity from suit in federal court.”). This growing trend among the

Circuit Courts to treat Lapides broadly is due, in large part, to this Court’s adherence to the

historical development of the waiver doctrine.

In Lapides, Justice Breyer begins the opinion by carefully examining the historical

underpinnings of the waiver doctrine by tracking the principle emanating from Clark, Gunter,

and Gardner: “a State’s voluntary appearance in federal court amounted to a waiver of its

Eleventh Amendment immunity.” Lapides, 535 U.S. at 619-20. In an effort to respect the context

in which Clark, Gunter and Gardner arose, this Court noted the factual distinction amongst those

21

cases involved a state voluntarily injecting itself into the case, whereas Lapides involved a state

as an involuntary defendant in the original state-court proceedings. Id. at 620. However, this

distinction did not prove critical to this Court’s analysis. Id. However, “the State then voluntarily

agreed to remove the case to federal court.” Id. According to a unanimous Court, this conduct

voluntarily invoked the federal court’s jurisdiction and “the general legal principle requiring

waiver ought to apply.” Id. Not only does this act satisfy the voluntary invocation requirement of

College Savings Bank, but it also satisfies the clear indication prong. Justice Breyer, in his

opinion for this Court, holds “[t]he relevant ‘clarity’ here must focus on the litigation act the

State takes that creates the waiver. And that act—removal—is clear.” Id.

Before the seminal holding of Lapides, Justice Kennedy foreshadowed how the Court

should simplify the waiver doctrine in his concurring opinion in Wisconsin Department of

Corrections v. Schacht. 524 U.S. 381 (1998) (Kennedy, J., concurring). “It would seem simple

enough to rule that once a State consents to removal, it may not turn around and say the Eleventh

Amendment bars the jurisdiction of the federal court. Consent to removal, it can be argued, is a

waiver of the Eleventh Amendment immunity.” Id. at 393. The voluntary conduct for Justice

Kennedy was the pivotal factor in his analysis, mirroring this Court’s analysis in Lapides. “Since

a State. . . is under no compulsion to appear in federal court[,] . . . any appearance the State

makes in federal court may well be regarded as voluntary in the same manner as the appearances

which gave rise to the waivers in in Clark and Gardner.” Id. at 395-96. Not only did Justice

Kennedy call for a simplification of the rule in line with this Court’s waiver jurisprudence, he

also noted the inconsistency created by this Court’s decision in Ford Motor Co. v. Department of

Treasury of State of Indiana. Id. at 396-97 (citing 323 U.S. 459 (1945) overruled by Lapides, 535

U.S. 613 (2002)).

22

In Ford, the state’s attorney general had already litigated a claim brought against the state

in federal court and lost, but then asserted immunity for the first time in the Supreme Court.

Ford, 323 U.S. at 467. This Court found that “the attorney general is authorized to represent the

state in actions brought under the Indiana refund statute,” Id. at 466, but ultimately that “no

properly authorized executive or administrative officer of the state has waived the state's

immunity to suit in the federal courts,” sustaining the immunity defense. Id. at 469. In essence,

the attorney general was able to utilize every function of the federal court, but then deny waiver

occurred and prevail on an assertion of immunity, contrary to this Court’s clear holdings in

Clark, Gunter, and Gardner. See supra pg. 17-18. This inconsistency is precisely why Justice

Kennedy urged the Court to simplify the waiver rule.

“If 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 Amendment purposes) by the consent to removal.”

Schacht, 524 U.S. at 397 (Kennedy, J., concurring). That is ultimately what this Court in Lapides

concluded. “A rule of federal law that finds waiver through a state attorney general's invocation

of federal-court jurisdiction avoids inconsistency 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.” Lapides, 535 U.S. at 623. “And for these same reasons, we conclude that Clark,

Gunter, and Gardner represent the sounder line of authority. Finding Ford inconsistent with the

basic rationale of that line of cases, we consequently overrule Ford insofar as it would otherwise

apply.” Id. This Court’s continued adherence to the historical development of the waiver doctrine

and the desire to simplify the rule lends support to applying the holding in Lapides broadly,

regardless of any immunity retained in state court.

23

B. A general waiver-by-removal rule encourages a consistent application and eliminates the possibility of unfair tactical advantages.

Not only is the broad rule from Lapides consistent with the historical foundations of the

waiver doctrine, but it also achieves the fundamental purposes of sovereign immunity by creating

a simple, objective standard that can be consistently applied in every case. “It says that removal

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.”

Lapides, 535 U.S. at 623-24. This Court couches its decision in “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 advantages.” Id. at 620

(emphasis added).

The instant case is a perfect illustration of the importance of this principle. Bernmont

attempted to voluntarily invoke federal court jurisdiction and then move for dismissal for lack of

jurisdiction. At the outset of the opinion, this Court in Lapides noted the logical inconsistency of

this maneuver:

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 immunity, thereby denying that the ‘Judicial power of the United States’ extends to the case at hand.

Lapides, 535 U.S. at 619. Allowing “States to follow their litigation interests by freely asserting

both claims in the same case could generate seriously unfair results.” Id. Furthermore, “[t]he

Eleventh Amendment is not designed to give procedural advantage to State litigants, but to

shield States from unconsented actions against them.” In re Regents of Univ. of California, 964

F.2d 1128, 1134 (Fed. Cir. 1992). This Court, while considering potential litigation advantages,

and unfair results that may arise from this type of maneuvering, eliminates these concerns by

24

creating a clear objective rule without regard to the motives of the state. Lapides, 535 U.S. at

619-621

According to this Court, any motive by the State is immaterial to the waiver rule. The

Supreme Court rejected Georgia’s claim that waiver should not apply because “its motive for

removal was benign,” reasoning that “[m]otives are difficult to evaluate, while jurisdictional

rules should be clear” and that “[t]o adopt the State’s Eleventh Amendment position would

permit States to achieve unfair tactical advantages, if not in this case, in others.” Id. at 621. This

rejection of a state’s motive for removal simplifies the waiver rule. Furthermore, an objective

standard avoids the “inconsistency, anomaly, and unfairness” without the necessity of this

Court’s subjective analysis. “And that being so, the rationale for applying the general ‘voluntary

invocation’ principle is as strong here, in the context of removal, as elsewhere.” Id. See also

Estes, 302 F.3d at 1204 (noting that, under Lapides, a state’s motive for removing the case does

not matter); Embury, 361 F.3d at 564 (agreeing).

Although this Court explicitly rejects considering the motives of the state, thereby

eliminating the possibility of any unfair advantages, some Circuit Courts have incorrectly

centered their decision on whether the state defendant achieves any tactical advantage by

removing the claim to federal court. Specifically, the First and Fourth Circuit Court of Appeals

have held that because there was no advantage gained from the state removing the claim to

federal court, there was no waiver. See Bergemann v. Rhode Island Dep't of Envtl. Mgmt., 665

F.3d 336, 338 (1st Cir. 2011) (“waiver occurs only if the removal confers an unfair advantage on

the removing state”); Stewart v. N. Carolina, 393 F.3d 484, 490 (4th Cir. 2005) (“by removing

the case to federal court . . . North Carolina did not seek to regain immunity it had abandoned

previously”) (emphasis in original). In both cases, the states had maintained sovereign immunity

25

in their respective state courts, much like the state of Bernmont. Bergemann, 665 F.3d at 339;

Stewart, 393 F.3d at 490. The First and Fourth Circuits begin their analysis by borrowing from

the historical foundations of the waiver doctrine laid out in Lapides. Bergemann, 665 F.3d at

341; Stewart, 393 F.3d at 489. In doing so, both Circuits acknowledged the proposition from

Clark, Gunter, and Gardner that voluntary invocation of federal court constitutes waiver. Id.

However, the Circuit Courts focus their holding on the absence of any substantive advantages

gained from the state’s removal, thereby ignoring this Court’s reasoning in eliminating a state’s

motive from the general rule of waiver. Bergemann, 665 F.3d at 338; Stewart, 393 F.3d at 490.

As the Fifth Circuit explained while criticizing the Fourth Circuit’s holding, “Stewart

thus misunderstands that the voluntary invocation principle . . . rests on a concern for preventing

the potential for unfair tactics, not just upon the need to sanction the actual achievement of an

unfair tactical advantage.” Meyers, 410 F.3d at 249 (emphasis in original). “[T]he Supreme

Court in Lapides envisions the voluntary invocation principle and waiver-by-removal rule as

applying to all sovereigns regardless of their motives.” Id. This analysis by the Fifth Circuit is

equally appropriate to the First Circuit’s similar holding “because its rationale misconstrues

important principles animating Lapides.” Id. This Court eliminated the potential for unfair

results by creating this objective rule, therefore the presence or absence of an advantage is not

and should not be of consequence in this Court’s analysis.

C. The theory of states possessing dual forms of sovereign immunity improperly complicates the simple test articulated in Lapides and increases the likelihood of states gaining tactical advantages.

There is a minority of Circuit Courts that have split their state sovereign immunity into

two separate and distinct parts: immunity from suit and immunity from liability. See generally

Lombardo, 540 F.3d 190 (3d Cir. 2008); Meyers, 410 F.3d 236 (5th Cir. 2005); Stroud v.

26

McIntosh, 722 F.3d 1294 (11th Cir. 2013). “[S]overeign immunity, they say, encompasses more

than this narrow immunity from federal jurisdiction; specifically, a state that waives its forum-

based immunity may still have immunity from liability for particular claims. That underlying

immunity from liability is unaffected by the state’s voluntary invocation of the federal forum.”

Stroud, 722 F.3d at 1301 (internal citations omitted) (citing Lombardo, 540 F.3d at 198-200;

Meyers, 410 F.3d at 252-55). Essentially, the state retains any defenses it would have enjoyed in

state court, regardless of the waiver from suit in federal court.

In reaching their conclusion, these Circuits find very little precedential support. The

Third Circuit Court of Appeals opines, “The Supreme Court has suggested that a State may

waive its immunity from liability without waiving its immunity from suit in federal court, and we

see no reason to prohibit the inverse.” Lombardo, 540 F.3d at 199 (internal citations omitted)

(citing Atascadero, 473 U.S. at 241). However, the Third Circuit’s statement is flawed in that it

completely injects its own language into the Atascadero opinion and assumes that the inverse is a

valid statement of the law. The text from Atascadero reads, “Although a State's general waiver of

sovereign immunity may subject it to suit in state court, it is not enough to waive the immunity

guaranteed by the Eleventh Amendment.” 473 U.S. at 241. (emphasis added). The Third

Circuit’s justification is questionable based on this misinterpretation of the law.

“The three circuits that have struck out on this middle road have incorrectly inferred that

the inverse must also be permissible--that a state can waive immunity from suit in federal court

without waiving immunity from actual liability for the substantive claim.” Peter R. Dubrowski,

Lapides v. Board of Regents of the University of Georgia, State Sovereign Immunity, and the

Proper Scope of Waiver-by-Removal, 17 N.Y.U. J. LEGIS. & PUB. POL'Y 763, 786 (2014). This is

27

a dangerous and invalid assumption as it circumvents the principles of this Court’s development

of the waiver doctrine and essential holding in Lapides.

These Circuits, in trying to create a middle-ground approach, add yet another layer of

complexity which this Court in Lapides strived to simplify. Under the Third, Fifth, and Eleventh

Circuit’s reasoning, states will have two forms of immunity that it may choose to waive or retain

separately. See Stroud, 722 F.3d at 1301; Lombardo, 540 F.3d at 199-200; Meyers, 410 F.3d at

252-53. This will require this Court to conduct yet another formal analysis to determine, which

form of immunity, if any, the state has waived in a particular case through statute as well as

conduct. This will only encourage states to create an additional layer of protection for themselves

through another form of immunity. Instead of eliminating the possibility of litigation advantages

and keeping with the historical development of the waiver doctrine, these Circuit Courts simply

create a new avenue for states to take and ultimately gain procedural and tactical advantages,

without any risk.

In the instant case, the extent Bernmont’s sovereign immunity is in question as some

panels of the Bernmont State Court of Appels treat it as singular in nature, and others dual.

Under the Third, Fifth, and Eleventh Circuit’s dual sovereign immunity theory, Bernmont would

be allowed to voluntarily invoke federal court jurisdiction, waiving its jurisdictional immunity,

but still be allowed to assert immunity from liability to the state law claims, sidestepping the rule

announced in Lapides. The majority for the Thirteenth Circuit correctly ignored any analysis

under this dual theory of sovereign immunity, as should this Court.

28

CONCLUSION

Respondent respectfully requests the judgment of the Thirteenth Circuit Court of Appeals

be affirmed in all respects ruling that the Elrod/Branti policymaker exception does not extend to

Mr. Greene, the termination of Mr. Greene was thus improper, and the state waived any

sovereign immunity it had by its voluntary removal to federal court.

Dated this 19th day of September, 2016.

Respectfully submitted,

_________________________

Attorneys for Respondent