Myers v. State of Texas is an appeal from the dismissal of an ADA suit against the state of Texas. The suit had been filed in state court, and the state removed it. The district court remanded, the state removed it again, and then (perversely) moved to dismiss based on 11th Amendment immunity. It worked! (at least in the district court). The Fifth Circuit, however, disagreed, holding that removal waived 11th Amendment immunity, taking 44 pages to do so. At this point, I’m to busy to report more, but may add something later if I get a chance. Watch this space.
UPDATE: Here’s a bit more on this case. The question noted above was one reserved by the Supreme Court in Lapides v. Bd. Of Regents, 535 U.S. 613 (2002), in which the state had removed a case with both 1983 claims and state law claims, and the 1983 claims were held barred by qualified immunity. The Supreme Court held that the removal waived immunity as to the state law claims and reserved whether it waived immunity as to federal claims.
In ruling that immunity as to federal claims were also waived, the Fifth Circuit joined the 9th and 10th Circuits and rejected the 4th Circuit’s view.
Texas also argued that it could assert sovereign immunity even if it had waived 11th Amendment immunity. That argument was rejected.
Reading the intro of the case, I wondered how the state had managed to remove the case twice. The first remand was based on the Tax Injunction Act. After the first remand, the Fifth Circuit had ruled in another case that claims that charging fees for handicapped permits violated the ADA did not violate the Tax Injunction Act. Texas then removed the case once again.
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