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Interstate Commission for Adult Offender Supervision | Ensuring Public Safety for the 21st Century

Bench Book - 5.3.1.3 Waiver of Eleventh Amendment Immunity

There are several ways a state might waive its Eleventh Amendment immunity from suit in federal court. First, immunity can be waived by express state law. It can also be waived by voluntary participation in a federal program that expressly conditions state participation on the state’s consent to suit in federal court. See, e.g., Westinghouse Elec. Corp. v. W.V. Dep’t of Highways, 845 F.2d 468 (4th Cir. 1988). Finally, it can be waived when a state removes a case from state court to federal court. See, e.g., Grayson v. Kansas, No. 06-2375-KHV, 2007 WL 1624630, at *1 (D. Kan. June 4, 2007).

It is clear, though, that no waiver of immunity should be inferred from the mere fact of a state’s participation in an interstate compact. In Hodgson v. Mississippi Department of Correction, the court rejected the plaintiff’s argument that a waiver of sovereign immunity could be inferred for any state that joined the Uniform Act for Out-of-State Parolee Supervision. 963 F. Supp. 776 (E.D. Wis. 2002).

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