April 20, 2019

Tenth Circuit: State Waived Its Right Not to be Sued in Federal Court Under Eleventh Amendment

The Tenth Circuit Court of Appeals published its opinion in Pettigrew v. State of Oklahoma on Monday, July 15, 2013.

Thomas Pettigrew filed suit in federal court in Oklahoma against the Oklahoma Department of Public Safety (DPS) after having reached a settlement with DPS on previous claims. The state moved to dismiss the second and third state law claims, arguing the claims were barred by sovereign immunity under the Eleventh Amendment. The court denied the motion. The state filed this interlocutory appeal.

This appeal presented only one issue for consideration: whether the previous settlement agreement between Pettigrew and the Oklahoma Department of Public Safety waived the state’s Eleventh Amendment right not to be sued in federal court.

The Eleventh Amendment 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.” U.S. Const. amend. XI. State sovereign immunity ordinarily bars federal-court jurisdiction over private suits against a state by citizens of the state. Pettigrew did not suggest that any federal statute abrogated Oklahoma’s sovereign immunity with respect to his state-law claims. Therefore, all the Tenth Circuit had to resolve was whether the state waived its immunity.

Waiver of sovereign immunity must be knowing and voluntary, and the test for determining whether a State has waived its immunity from federal jurisdiction is a stringent one. Pettigrew contended that the Venue Provision of the Settlement Agreement was such a waiver. It stated: “In the event that any litigation is commenced by either party to enforce the terms and conditions of the Agreement, the litigation will be brought in the appropriate Oklahoma court having jurisdiction, either state or federal . . . .”

Although the language of the agreement is not explicit, the Tenth Circuit held the settlement agreement’s reference to bringing suit in federal court had no reasonable construction except as a waiver. The Court therefore held that there was a waiver and affirmed the district court.

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