[00:00:01] Speaker 04:
and what you've anticipated.

[00:00:05] Speaker 04:
Mr. Yancey is on by video. Can you hear us fine, Mr. Yancey?

[00:00:10] Speaker 03:
Yes, Your Honor, I can. Can you hear me okay?

[00:00:12] Speaker 04:
Yeah, I suggest you put, because you're bottom side on this, that you mute your microphone until it's time for you to to speak so that we don't end up with noises from your cat or somebody else who may wander through the room. Okay, Mr. Yost, you're first up.

[00:00:37] Speaker 06:
Good morning and may it please the court. I'm Austin Yost. I'm here with my colleague Kelly Mull. We represent Appellants Arizona Board of Regents and ASU President Michael Crow. I'm splitting argument time with Arizona Solicitor General Josh Bendor and I'll try to reserve three minutes of my time for rebuttal.

[00:00:53] Speaker 06:
The state of Arizona has not unequivocally consented to suit in federal court for state law claims generally or for the specific state law claim at issue here.

[00:01:03] Speaker 04:
Can I take you through the same question I'm going to ask everybody in this case? So I want to give Mr. Yancey fair notice about it.

[00:01:12] Speaker 04:
We know that the 1984 Act does not waive the state's 11th Amendment immunity because we so held in the Ronwin case, correct?

[00:01:25] Speaker 06:
That's correct.

[00:01:26] Speaker 04:
And it's a matter of federal law. This is an issue that's a matter of federal law.

[00:01:30] Speaker 06:
That's correct.

[00:01:31] Speaker 04:
Okay, so it seems to me, and I think the district judge reasoned the same way, even though he didn't cite Ronwin.

[00:01:39] Speaker 04:
So the question that gets posed by this case is whether the decision in the Redgrave's case, if that's the right pronunciation of it, constitutes the requisite waiver of 11th Amendment immunity. Will you address that question for me?

[00:01:57] Speaker 06:
Sure. And just to briefly return to the previous question, Ronwin, I think, predated Redgrave.

[00:02:04] Speaker 04:
Of course. But Ronwin holds that the 1984 Act, I don't know why I keep going back to the previous century, is not a waiver of the state's sovereign immunity.

[00:02:16] Speaker 01:
I thought actually that Redgrave, excuse me, I thought it actually held. THAT THE EARLIER STONE WAS NOT A WAIVER. IT WAS BEFORE THE 1984 ACT.

[00:02:33] Speaker 06:
IS THAT RIGHT? THAT'S CORRECT. AND THE LEGISLATURE CODIFIED STONE IN THE 1984 ACT. GO AHEAD, JUDGE.

[00:02:40] Speaker 01:
SOMETHING MORE THAN THE CODIFIED STONE. A LOT MORE THAN THE CODIFIED STONE.

[00:02:49] Speaker 01:
It expressed a general and broad principle that went beyond tort law, as has been understood to go beyond tort law, with regard to the waiver of sovereign immunity in Arizona. And it also added an interpretive gloss that said, essentially, we should find a waiver unless there's a good reason why not, and then it put in a bunch of exceptions as well. So it did considerably more than simply codify Stone.

[00:03:23] Speaker 06:
I agree with your honor, but the 1984 Act doesn't waive Arizona's 11th Amendment immunity from suit in federal court.

[00:03:33] Speaker 04:
So what kind of a waiver is necessary, I guess? I thank Judge Berzon for the correction on Ron Wood. What kind of a waiver is necessary? In other words, our cases say it must be clear and unequivocal.

[00:03:48] Speaker 04:
What if the state, what if the preface to the act said the state ought to be held liable any time it does anything wrong? Would that be enough?

[00:03:58] Speaker 06:
I don't think that would be enough. Under Port Authority Transit Corporation, the state would have to specify its intention to be subjected to suit in federal court. So it would need to say the state may be held liable for state law claims in federal court or courts created by the United States.

[00:04:18] Speaker 04:
Well, does it have to specify state law claims? You know, 11th Amendment immunity is an 11th Amendment immunity unless Congress has done away with it in some way. And so the question is simply whether or not you can be sued in federal court, not on what kind of claims.

[00:04:37] Speaker 06:
That's correct. I was speaking in the context of the 1984 Act, but if they were to amend it to say the state may be held liable for any claim in federal court, then the plaintiffs in this case could have brought...

[00:04:50] Speaker 04:
immunity from liability for the moment, as opposed to 11th Amendment immunity, because they're separate concepts, right?

[00:04:57] Speaker 06:
Yep.

[00:05:00] Speaker 04:
Doesn't Red Graves at least stand for the proposition that the state has waived any claim of immunity from liability?

[00:05:12] Speaker 06:
In federal court, Your Honor?

[00:05:13] Speaker 04:
Yes, not immunity from being sued. but immunity from liability. In this case, in Redgrave, for example, they waived the 11th Amendment immunity a separate way. They removed the case.

[00:05:25] Speaker 04:
So we were no longer talking about 11th Amendment immunity, and it seems to me Redgrave said, look, the 1984 Act is a waiver of immunity from liability, and it doesn't matter what court you're being sued in, but it didn't deal with the separate issue of 11th Amendment immunity.

[00:05:47] Speaker 04:
11th Amendment sovereign immunity, correct?

[00:05:50] Speaker 06:
Correct that it did not deal with the 11th Amendment.

[00:05:52] Speaker 04:
But they're two separate concepts.

[00:05:54] Speaker 01:
I have a question. I am not at all clear that there is, I mean, what's the 11th Amendment immunity is extremely fuzzy because we all know that the 11th Amendment doesn't in terms apply to the situation at all. And the 11th Amendment has been held to apply because of the notion that it was incorporating historical sovereign immunity. And I have not understood, or I don't like some case law that says that the 11th Amendment, as applied in federal court, applies to subject to suit but doesn't apply to liability.

[00:06:35] Speaker 01:
I don't understand that to be your position. I think that was the issue that was left open by the Ninth Circuit in Redgrave.

[00:06:43] Speaker 01:
So I don't know if there is that clarity as to what's – that 11th Amendment immunity doesn't go to liability or that 11th Amendment immunity.

[00:06:57] Speaker 01:
It's a phrase, but it's not – it is completely tied up with what sovereign immunity is because that's where it comes from. That is all that it is. It's constitutional by attribution of the sovereign immunity concept.

[00:07:14] Speaker 06:
Your Honor, I was responding that they might be separate concepts, immunity from liability or immunity from suit. I agree that 11th Amendment immunity is potentially hazy, given that as Alden v. Mayne holds, it doesn't derive from the 11th Amendment.

[00:07:32] Speaker 04:
But the Supreme Court has said in Alden that, Immunity from liability is a separate and distinct principle from the 11th Amendment immunity, correct?

[00:07:42] Speaker 06:
Yes, I agree with that.

[00:07:43] Speaker 04:
So the state could waive all immunity from liability, and when a case is appropriately in federal court, in the case of Red Graves, because it was removed, that means, and the Supreme Court of Arizona said, you waived your immunity from liability.

[00:08:01] Speaker 04:
You can't raise it in this case.

[00:08:04] Speaker 06:
I agree with that, and I think Pennhurst describes this in a way that's analytically helpful for me to think about it, that a state has separate constitutional interests and immunity about whether it may be sued and where it may be sued.

[00:08:15] Speaker 04:
Well, but I think the interests are different, and that's what I want to take up with you.

[00:08:18] Speaker 06:
I agree with that.

[00:08:19] Speaker 04:
The immunity from liability is a state interest, not a federal constitutional interest. There's nothing in the federal constitution that immunizes a state from liability, is there?

[00:08:33] Speaker 06:
The...

[00:08:34] Speaker 06:
Well, under Alden, the Congress can't subject a state.

[00:08:38] Speaker 04:
That's right. Congress may not have the ability to subject a state to liability if it hasn't already given up its immunity from liability. But its immunity from liability doesn't derive from the Constitution, does it?

[00:08:55] Speaker 06:
Well, I think that Alden suggests that it does, that the structure of the Constitution, and they cite Article I and the Tenth Amendment and

[00:09:04] Speaker 04:
Well, see, I think what Alden says, may me be wrong about this, is that the federal government doesn't have the power, absent an amendment that gives it that power like the 14th, to do away with the state's immunity from liability.

[00:09:23] Speaker 04:
But it doesn't say that the state's immunity from liability derives from the Constitution, does it?

[00:09:29] Speaker 06:
I think it does because it says, do the states hold a reciprocal privilege with the federal government? And the federal government has a constitutional interest in sovereign immunity in state and federal courts, and so do the states.

[00:09:44] Speaker 01:
That's the reciprocal privilege, and it derives— This is quite a mystery, but I don't know if we need to solve it in this case. I was simply taking issue with the clarity with which— Herb was stating it, but I think it's at least, which is why it was left open in Redgrave. So let's go to Redgrave, because we're running out of time. In fact, we may have run out of time, and I would appreciate having the time. So go ahead.

[00:10:09] Speaker 06:
Yes, and I'll- We cut you off.

[00:10:11] Speaker 01:
You never got to talk about Redgrave.

[00:10:13] Speaker 06:
I'll try my best to address it very briefly here.

[00:10:17] Speaker 01:
I vote for doing what you need to do. So go ahead.

[00:10:21] Speaker 06:
First, I think that it's important to recognize that neither the plaintiffs nor the district court represented that Redgrave is directly controlling here. And I think under the federal stringent waiver standard, that alone is dispositive.

[00:10:36] Speaker 01:
Nobody argues the 1984— Why don't we certify this case to the Arizona Supreme Court, as did Redgrave? I mean, if your argument is that simply by the fact that we need to certify it, it proves that it's ambivalent— Red-Grey Duke did exactly that. So in terms of precedent, our precedent is that we don't know we certify it. So at least we have done it at least once. So it can't be definitively the case that if there's sufficiently ambiguity to certify it, that means it's not that you should prevail.

[00:11:12] Speaker 01:
So why don't we certify it?

[00:11:14] Speaker 06:
I recognize I'm out of time. Answer the question. Thank you, Your Honor. The court shouldn't certify Redgrave because it doesn't do on its face what plaintiffs argue that it does. Plaintiffs argue that Redgrave rejects venue-based immunity, and on its face it does not do that. Redgrave adopted or followed a federal waiver standard when it was considering whether the state had consented to federal damages liability for FLSA claims. It wasn't considering or addressing the state's 11th Amendment immunity from suit in federal court for state law claims, and it wasn't rejecting venue-based immunity.

[00:11:49] Speaker 06:
So there's no reason to send it to the Arizona Supreme Court. The 11th Amendment waiver standards, an objective test.

[00:11:56] Speaker 01:
I understand your first point, but not your second.

[00:12:00] Speaker 01:
That is, it didn't directly address where the suit was filed, but it... did talk in terms of venue-based immunity. I mean, it could be non-reciprocal venue-based immunity, but it was venue-based at least in one. It was rejecting venue-based immunity where the result would be to have the case go forward in federal court.

[00:12:31] Speaker 01:
I'm trying to get it straight now.

[00:12:34] Speaker 01:
In one court, but not the other.

[00:12:37] Speaker 01:
whether they would do the opposite and do that in this circumstance, one doesn't know, which is why you might want to ask them. But it was in some sense rejecting venue-based.

[00:12:49] Speaker 06:
I disagree, Your Honor, and I have two brief points, and I recognize I'm out of time. I'll try to be brief.

[00:12:53] Speaker 04:
We'll take it out of Mr. Bender's time. No, I'm just kidding. Go ahead.

[00:12:57] Speaker 06:
The first is, in paragraph 18, the Supreme Court rejected a venue-based conception of the appropriate waiver standard. Not...

[00:13:06] Speaker 06:
of the appropriate immunity waiver standard. It wasn't talking about immunity itself.

[00:13:10] Speaker 04:
And in the context, it was saying... Well, it was talking about immunity, but not 14th Amendment immunity. Not 11th Amendment immunity, I'm sorry.

[00:13:18] Speaker 06:
It was talking about sovereign immunity and the appropriate waiver standards so that whether somebody could bring a federal FLSA claim in state court would benefit from a more relaxed standard than someone who brought the same claim against the state and federal court. And the Supreme Court said, we're going to adopt or follow the federal waiver standard deriving from Alden. It's a federal constitutional right, so it's the waiver of a federal constitutional rights established by federal law, and that's the standard.

[00:13:47] Speaker 04:
Okay, and I don't want to take you too long over, but Judge Berzon, I thought, in my mind, asked a different question.

[00:13:54] Speaker 04:
On the merits, Redgrave said, no, you haven't waived immunity in this case, Steve. But did Redgrave adopt the notion that in analyzing immunity, the Arizona Supreme Court would no longer look at the venue of the lawsuit?

[00:14:12] Speaker 04:
I'm not sure that's exactly the question she asked, but it's the one I took from what she asked.

[00:14:16] Speaker 06:
It did not do what Your Honor's suggesting. What it said is we're going to recognize the reciprocal privilege with the state and the federal government and follow the federal waiver standard and state and federal court.

[00:14:32] Speaker 06:
The reciprocal privilege derives from Alden, and what the reciprocal privilege is is with the state and the federal government, and critically, it's with the non-consenting states in the federal government. Here we're talking about a separate issue entirely. We're talking about the scope of the state's consent to sue. The state has consented to be held liable for state statutory common law claims. That's a separate issue as to whether it's consented to sue in federal court, and it has not.

[00:15:02] Speaker 04:
I think we've taken you way over, so unless one of my colleagues has more questions, we'll hear from Mr. Bendor.

[00:15:14] Speaker 00:
I have one question.

[00:15:19] Speaker 00:
Did consent to suit in federal court require that the suit, that the waiver be unequivocal?

[00:15:34] Speaker 06:
Yes.

[00:15:37] Speaker 06:
There's no unequivocal consent to suit in federal court here, so this court should reverse the district court's denial of the motion to dismiss the state law claim.

[00:15:47] Speaker 00:
Thank you.

[00:15:47] Speaker 06:
Thank you, Your Honors.

[00:15:58] Speaker 05:
Good afternoon, Your Honors. My name is Josh Bendor. I represent the state of Arizona as amicus.

[00:16:05] Speaker 05:
This case presents an issue of exceptional importance to the state of Arizona. Has the state waived its 11th Amendment sovereign immunity against suit in federal court for all state law claims? The law is clear that a state's consent to suit in federal court must be unequivocally expressed in the relevant statute, and the statute must specify that the state intends to subject itself to suit in federal court.

[00:16:30] Speaker 04:
So let me ask you a question about that, because I understand that's your position from the brief. And let's assume for a moment that the 1984 Act does not itself unequivocally waive 11th Amendment immunity.

[00:16:45] Speaker 04:
What if the Arizona Supreme Court were to find that it did?

[00:16:50] Speaker 04:
It didn't do that. I mean, I know you're arguing it didn't do that in Redgrave. But what if it were to find that it did? Would its ruling be binding on us?

[00:17:00] Speaker 05:
So I think that is one of the interesting questions here, and I think May not need to answer it. But here's how I would answer it. Obviously, there's both state law involved in this question and there's federal law. Ultimately, the 11th Amendment immunity question is a question of federal law. It's a question of the interpretation of the United States Constitution. And it's a question of jurisdiction and federal court jurisdiction. So ultimately, that's a federal law question. In the course of getting to that federal law question, There are authoritative constructions of state law that the state Supreme Court is the final arbiter over.

[00:17:30] Speaker 05:
Often those issues are going to be very intertwined, and so you may have a decision of a state Supreme Court that's basically going to box you in and determine the federal law question.

[00:17:40] Speaker 04:
There are a lot of cases out there where the federal court has relied on the state Supreme Court decision, which says we interpret our laws unequivocally, waiving 14th Amendment or 11th Amendment immunity. I'm sorry. and therefore found that it had been waived, right?

[00:17:56] Speaker 05:
I don't know if there are a lot of cases. There are cases like that.

[00:17:58] Speaker 04:
First Circuit.

[00:17:59] Speaker 05:
Yeah, and there are also cases that look at, the Second Circuit has looked at what the Connecticut Supreme Court said and said, well, that actually didn't go far enough.

[00:18:08] Speaker 04:
But I take your position in this. I ask that question because I think there's two separate questions here. One is, has it been waived?

[00:18:18] Speaker 04:
And the second one is, well, if we ask the, Arizona Supreme Court whether it has been waived or whether they consider it had been waived, what would their answer be?

[00:18:29] Speaker 04:
So I guess my, why shouldn't we, that's a roundabout way of asking, why shouldn't we certify it to them and ask them what they think?

[00:18:39] Speaker 05:
Yeah, and I think the simple reason is I think it's an easy question of state law and you only certify hard questions of state law. I think if you ask them, they'll give you the answer I want them to give you, which is consistent with Redgrave, which is there's clearly not an unequivocally expressed waiver in the 1984 Act. So I'm not scared of you asking them, but I don't think you need to. The reason I don't think you need to is there's just no text in the 1984 Act that indicates in any way that the state was intending to subject itself to suit in federal court.

[00:19:11] Speaker 05:
The purpose statement of the 1984 Act says that the state will be liable for acts and omissions of employees in accordance with the statutes and common law of this state. There's not a question here about a waiver of liability. Defendants have conceded that if this state law claim were brought in state court, that they wouldn't have a sovereign immunity argument about it. The only question is whether... There's sovereign immunity in federal court. Nothing in the 1984 act suggests that. And to the contrary, there are several provisions which refer to the Arizona rules of civil procedure, which are very strong statutory interpretation context that the act was clearly contemplating suits in state court.

[00:19:55] Speaker 05:
So I think it's an easy question for the Arizona Supreme Court. I think it's an easy question for this court. So I think this court should decide.

[00:20:00] Speaker 04:
I want to get back to the 1984 act for a second.

[00:20:03] Speaker 04:
The 1984 Act, let's go back one more. Stone abolished the notion of state sovereign immunity in Arizona, correct?

[00:20:12] Speaker 02:
Yes.

[00:20:14] Speaker 04:
Did the 1984 Act expand that or contract that?

[00:20:19] Speaker 05:
My understanding is that the 1984 Act codified that, and then as Judge Berzon noted, it did more. It added various immunities, absolute immunity, qualified immunity, set in place various procedures.

[00:20:31] Speaker 01:
It also eliminated any ambiguity as to whether it applies, the waiver applies beyond torts.

[00:20:40] Speaker 05:
I believe that's right, Your Honor, as well.

[00:20:42] Speaker 04:
So now, I think, given that understanding of what the 84 Act did, of what relevance is the Ronwin case, which which was dealing with a Supreme Court decision that completely waived sovereign immunity, and saying we don't find that to be an unequivocal waiver.

[00:21:02] Speaker 04:
What relevance does that case have to our determinations today?

[00:21:08] Speaker 05:
I think the Ronwin case is helpful because I think that as it relates to suits in federal court, the 1984 Act does not purport to do anything more than Stone did, and this court already in Ronwin interpreted what Stone did. But even more important is Redgrave, which cited Ronwin and cites two decisions from the District of Arizona. This is in paragraph 14 of Redgrave and approvingly cites those cases and quotes them and quotes Ronwin as saying that there is no indication that in stone that Arizona intended to consent to anything more than suit in its own courts.

[00:21:44] Speaker 05:
And that similarly quoted from two District of Arizona cases, clearly indicating that its understanding of those cases was wrong.

[00:21:51] Speaker 05:
still true, not just as a matter of stone, but as a matter of the 1984 Act. So the idea that Redgrave, which approvingly cites those cases, somehow waives sovereign immunity in federal court, sub-silentio, with no textual basis, I just, you can't find it in Redgrave. It's simply not there at all. And it's also not consistent with the way the Arizona Supreme Court does statutory interpretation, as evidenced in Redgrave and many other cases. It's a very text-focused court. It's not a purpose-focused court, and the argument that plaintiffs want this court to adopt is that there's some broad purpose, evinced in the 1984 Act, that suggests a waiver of immunity in federal court.

[00:22:34] Speaker 01:
If it was so text-based, how did it come to the conclusion that it didn't? Well, I guess I know the answer to that. In Redgrave, I guess the reason is because there is some textual basis for thinking that it's limited to state statutes.

[00:22:51] Speaker 05:
Yes. So, right. So, Redgrave, the question was, there's a waiver of liability for common law, for state common law and statutory claims. That was an FLSA claim. And there was a question of...

[00:23:05] Speaker 05:
There was a question of whether the waiver applied. And I think it's important also that, remember, Redgrave is a case where the court says, we do not find a waiver, right? And we are going to construe the waiver in the 1984 Act strictly, not to go beyond its text. And we are going to adopt the stringent federal test for requiring an unequivocally expressed waiver.

[00:23:25] Speaker 04:
So whether or not they had adopted it or not, that's the test that's applicable to us.

[00:23:31] Speaker 05:
Yes, but I'm just saying if you were going to ask them, Hey, what did you mean in Redgrave? Presumably you'd ask it a little differently. But if you're going to ask them, I think they'd say, well, look, we have the same unequivocally expressed test that you federal courts have, and we don't go, you know, we don't stray beyond the text. The text is our anchor. There's no text in the 1984 Act that suggests the state intended to... admit itself to suit in federal court, over and done. I think it's an easy case for them, and that's why I think you don't need to certify, although if you choose to, that's fine.

[00:24:01] Speaker 05:
We will go down and have the conversations with them. I don't mind doing so.

[00:24:08] Speaker 04:
Other questions from my colleagues?

[00:24:11] Speaker 05:
If there are not, I'll save the balance of my time for rebuttal, if I may. Thank you.

[00:24:20] Speaker 04:
Mr. Yancey.

[00:24:22] Speaker 03:
Thank you, Your Honors. Michael Yancey on behalf of the plaintiffs.

[00:24:26] Speaker 03:
May it please the court, I'm going to dump my notes and dive directly into Redgrave. I think there's a little bit of a dissonance between how Judge Tucci and plaintiffs read Redgrave and how appellants and the amicus read Redgrave.

[00:24:42] Speaker 03:
Judge Tucci does not cite to Redgrave as a factually identical case. District Court looked at Redgrave as a claim source case looking at the state's own sovereign immunity. So Redgrave does not say that Arizona is always immune. It says that Arizona is immune in that case from a federal damages claim because those claims fell outside of Arizona's legislative waiver. But then it expressly says that where a claim is based on Arizona statutes or Arizona common law, the opposite rule applies.

[00:25:12] Speaker 03:
At paragraph 27, Redgrave says, where a claim is based on the statutes and common law of the state, the act's command is clear, absent some other form of immunity, and it talks about Arizona statutory immunity reintroduced after Stone by the act.

[00:25:26] Speaker 04:
But why don't I read that reference as simply saying, The state has waived its immunity from liability the same way in either circumstance, but not pertaining to 11th Amendment waiver of liability. See, I think it makes perfect sense in that context. We look at the act, and it doesn't tell us.

[00:25:55] Speaker 04:
It doesn't tell us.

[00:25:57] Speaker 04:
We don't look at the act and try to figure out where the venue is. of the suit is based on state law. We just simply look at what the waiver in the act is. But then the court went out to find that the act didn't waive immunity from liability on this federal claim.

[00:26:17] Speaker 04:
And so I'm having difficulties reading that reference as saying, therefore, it applies to everything.

[00:26:25] Speaker 03:
So two things. One, back to the first part of the question, Why not read it that way? I think because it would be incongruous with the rest of Redgrave. You said the why not read it as we've just waived everything. Well, that's not what Redgrave says about the statute. It says claims arising out of the Arizona Constitution or common law and statutory claims. Those are what's waived. I think you mentioned the fact that we didn't waver. Sorry.

[00:26:54] Speaker 01:
It was with regard to what it ultimately concluded it was. basing it on the state statute.

[00:27:01] Speaker 01:
The state statutes express limitation to state statutes in common law and saying it doesn't apply to federal claims and it doesn't apply to federal claims in either state or federal law at court.

[00:27:18] Speaker 01:
It also made the other statement that you read, which is the obverse, that is where it is based on statutes in common law, the acts of command is clear, absence of other form of immunity, the state is .

[00:27:32] Speaker 01:
So the question is whether that obverse statement is sufficiently at least provocative or suggestive that we should ask the Supreme Court what it meant, whether it meant it as to applying in federal court or not. And in that regard, I would like your comment if you have any. to Judge Hurwitz's posit that there is some line of demarcation that's dispositive and strong between 11th Amendment amenity to suit and amenity to liability with regard to whether one applies and the other doesn't.

[00:28:15] Speaker 01:
He suggested that there would be, what I said would be correct if we were talking about a case that began in state court, but the fact that he filed it in federal court was why it can't go forward.

[00:28:28] Speaker 01:
That's what I understood him to be saying.

[00:28:31] Speaker 01:
You mean my colleague?

[00:28:34] Speaker 01:
If you, yes, if you had filed this case in state court and it had been moved to federal court, I understand Judge Hurwitz's posits to be that it could then go forward. But because you filed it in federal court, 11th Amendment immunity in the sense of an absence of liability or absence of suit applies and therefore everything changes.

[00:29:04] Speaker 01:
Is that right or wrong?

[00:29:07] Speaker 03:
I don't think that I agree because the fundamental point of Judge Tucci's order was Redgrave held that there was no waiver explicitly because the claim arose from a federal statute. And I think I disagree with my colleague on the amicus that had this claim been a statutory claim in Arizona, Redgrave would have found the other way. I think the reasoning in Redgrave is clear. Had the claim been based on an Arizona statute by Redgrave's own internal logic of not looking at form, looking at reciprocity, it would have found that waiver existed for an Arizona statutory claim, which is this case.

[00:29:46] Speaker 01:
The question I'm asking is it doesn't matter what waiver.

[00:29:50] Speaker 01:
Judge Hurwitz is positing, and I'm wondering whether it's correct, that yes, there would be a waiver from liability, but there wouldn't be what he's calling an 11th Amendment liability from filing suit in federal court. And the question is, is that dichotomy, one that we really, that's just positive here, And what it amounts to as a practical matter is that if you had filed a suit in state court and it had been removed to federal court, then Redgrave's sort of reciprocity rule might apply.

[00:30:27] Speaker 01:
But you didn't do that. You filed it in federal court. And the principles that apply with regard to waiver of suit in federal court are different and are purely federal and would result in an opposite result.

[00:30:44] Speaker 03:
No, I don't. I think the result will be the same. And that's because the federal rule on 11th Amendment or incorporating sovereign immunity and all the complicated immunity arguments all combined into one, it's still a stringent standard where you have to make an unequivocal statement. And as to that, going all the way back to 1918 –

[00:31:13] Speaker 01:
The question of whether you can file the suit in federal court is a purely federal question. And why would we ever ask the Supreme Court what the answer or why would you rely on Redgrave as the answer?

[00:31:27] Speaker 03:
Because the Supreme Court says you have to. In Palmer v. Ohio in 1918, this is 100 years ago, the Supreme Court held the question of waiver of sovereign immunity, which that's what this is, by a state's constitutional provision or a statute, is a matter of state law, vote as to which the decision of the, and it's bracketed, state's highest court, is controlling. And that's Palmer v. Ohio, 248 U.S. 32 and 34.

[00:31:51] Speaker 03:
And that's not inconsistent. So, yes, this is a state, pardon me, this is a federal law question.

[00:31:57] Speaker 03:
The stringent test is federal law. But the point of the stringent test, as discussed in Lee Thomas' citing to College Savings Bank, is to make sure that the statement of waiver is clear. But that doesn't have to come through magical words to a statute. In fact, if the state Supreme Court rules on a waiver regime, that ruling is binding.

[00:32:21] Speaker 04:
Let me ask you two questions. The first one, unrelated.

[00:32:26] Speaker 04:
The other side doesn't want certification, and you suggest in your brief that you don't either. Is that correct?

[00:32:32] Speaker 03:
No, I believe what I said was I don't think you need it, but I'm more than happy to go for it.

[00:32:37] Speaker 04:
Of course you're more than happy to. If we certify it, you'll have to. So you'll have to go there cheerfully.

[00:32:43] Speaker 04:
But you're not suggesting that we certify it.

[00:32:47] Speaker 03:
I don't think you need to.

[00:32:49] Speaker 04:
Okay, that's the answer. That's the answer I needed. I have a different question, and it goes back to – However, Judge Berzon framed the premise of my questions, I want to ask a very specific one. What language in Redgrave do you think is a clear and unequivocal waiver of 11th Amendment immunity?

[00:33:16] Speaker 03:
So Redgrave does not say that Arizona waives federal law. What it does is – Well, federal law and 11th Amendment are two different things. I'm sorry. Sovereign immunity in federal court. I misspoke. What it does is what only a state Supreme Court can do, which is provide the construction of that state of its own waiver statutes. Okay.

[00:33:40] Speaker 04:
So I agree with – I'm not sure I agree with your reading of it, but I agree that it may provide a template for the way the court approaches future cases.

[00:33:50] Speaker 03:
I don't think it would be a template, Your Honor. I think it would be a – the federal courts would be required to follow it.

[00:33:55] Speaker 04:
But you do agree that Redgrave itself is not a clear and ambiguous waiver of 11th Amendment immunity?

[00:34:05] Speaker 03:
Not standing by itself.

[00:34:06] Speaker 04:
Okay. And you agree that the 1984 Act by itself is not a clear and ambiguous waiver of 11th Amendment immunity? Okay.

[00:34:16] Speaker 03:
Absent Redgrave, that statute would not waive. Right.

[00:34:18] Speaker 04:
So what you're asking us to do is say, well, if the Arizona Supreme Court is going to be consistent with its logic, I'm not sure I agree with you on that, but I'm just trying to phrase your argument. Then when the issue comes up in front of it, it will almost surely find a waiver of 11th Amendment immunity.

[00:34:38] Speaker 03:
I don't know that the argument is, and I'll answer your question yes or no in just a second, but I don't know that the argument is in some point in the future, Arizona Supreme Court might rule this way. But to your first question, the answer is yes. If you disagree with Judge Tucci's interpretation of Redgrave.

[00:34:55] Speaker 04:
I'm not worried about Judge Tucci's reading of Redgrave. He's a terrific judge, but sometimes we may disagree. Sure.

[00:35:03] Speaker 04:
I think what I'm asking in a roundabout way is that you don't seem to be arguing that Redgrave unequivocally waives 11th Amendment immunity. You're arguing that the logic of Redgrave would lead to that conclusion, right?

[00:35:21] Speaker 03:
I'm arguing that applying Redgrave's interpretation of the statute, yes, would lead unquestionably to the conclusion.

[00:35:30] Speaker 04:
I think we're saying the same thing, so I'll accept your characterization of it. What you're saying is that if a court that wanted to be consistent with Red Grave when confronted with the question that we have today would come out in your favor.

[00:35:45] Speaker 03:
Yes, and I'm saying that I think Judge Tucci was required to.

[00:35:48] Speaker 04:
Forget what Judge Tucci was required to do. We're reviewing De Novo.

[00:35:53] Speaker 03:
So I understand that. But my point is, my point is to go back to your first question is to answer it is, yes, this depends on your interpretation.

[00:36:01] Speaker 04:
See, that leads to.

[00:36:04] Speaker 04:
I think that we have a different task than if we were engaging in an eerie guest here about what the state court will do in the next case, because I think the federal cases tell us, including the Supreme Court, we need to find a clear and unequivocal waiver. And if I can't find it in Redgrave, then the fact that I'm almost certain that the Arizona Supreme Court might find it in the next case, and I'm not, but let's assume for present purposes that I am, is that suffice?

[00:36:32] Speaker 03:
The fact that you think it would in the future?

[00:36:37] Speaker 04:
Yeah, well, that's what you're saying. You're saying the issue wasn't in front of it here, but I've read its reasoning and its language, and surely when the issue is in front of it, that's the way they'll come out.

[00:36:47] Speaker 03:
Oh, no. I think that's the primary source of disagreement. I'm not arguing that it wasn't in front of it.

[00:36:54] Speaker 04:
How could the 14th Amendment issue have been in front of the Arizona Supreme Court in Redgrave, which was a removed case, and therefore all of our precedent indicates that we're done with 14th Amendment immunity, 11th, I keep saying 14th, 11th Amendment immunity when the state removes it.

[00:37:16] Speaker 03:
Because the fundamental question is still the same. Does Arizona waive under – because 11 to immunity in federal court, regardless of how you get there, is a question about sovereign immunity. It's a question – and the question – and the test is still the same. You have to make an unequivocal statement, except the case law says that doesn't have to be in the statute. It can come from an interpretation by the Supreme Court.

[00:37:39] Speaker 04:
Right, but it can come from every case in which we've relied – federal courts have relied on the state Supreme Court. The state Supreme Court says we read this statute as a waiver of 11th Amendment immunity.

[00:37:55] Speaker 04:
You agree that the Greg Grave Court didn't say that?

[00:38:01] Speaker 03:
Yes, I agree he didn't say those exact words. Yes, Your Honor.

[00:38:03] Speaker 04:
Okay. So I'm focusing on the clear and unequivocal, not the implication or the necessary logic.

[00:38:11] Speaker 03:
I don't think you – I'm sorry, Your Honor.

[00:38:13] Speaker 04:
No, I'm sorry. So I wanted you to say why is that clear and unequivocal?

[00:38:17] Speaker 03:
Because to find that it isn't, you would have to ignore how Redgrave reached the decision it made. So when it interprets Arizona's own waiver regime as being not foreign-based, following the claim, and then it decides, hey, this is a federal claim, therefore no waiver of immunity, but, and the but there is, had it been an Arizona statutory claim, that would be a different answer. So if you don't find it there, That would basically be rejecting Redgrave's own internal interpretation of the statute.

[00:38:52] Speaker 04:
I'm sorry. I thought Redgrave was responding to the notion that if this case were brought in state court, there would be a waiver of immunity. And what Redgrave was saying is, no, the 1984 Act doesn't waive immunity from federal claims no matter what venue they're brought in. And I think that's a matter of state law. They had good reason to conclude that. But that's very different, isn't it, from saying that the 1984 Act, either the 84 Act or our decision today, is a determination of whether the state has waived 11th Amendment immunity.

[00:39:34] Speaker 04:
I got the number right that time.

[00:39:37] Speaker 04:
Isn't it?

[00:39:41] Speaker 03:
No, I don't think it is because, again, regardless of which forum you're in, the sovereign immunity is the overarching umbrella. The 11th Amendment immunity just channels that sovereign immunity into a certain situation.

[00:39:56] Speaker 04:
Your position is that any waiver of immunity from liability is necessarily a waiver of 11th Amendment immunity?

[00:40:09] Speaker 03:
If the waiver you're discussing is a waiver of sovereign immunity and consistently construed through Redgrave, then yes.

[00:40:16] Speaker 04:
Your position is that the waiver of sovereign immunity in the 1984 Act has been interpreted by Redgrave as a waiver of 11th Amendment immunity.

[00:40:32] Speaker 03:
Yes. But it doesn't say that, does it?

[00:40:36] Speaker 03:
It does not explicitly say that, but there's no way to come to any other interpretation.

[00:40:41] Speaker 04:
Then you ought to be in favor of certification.

[00:40:44] Speaker 03:
Like I said, I don't think it's necessary, but I'm not against certification.

[00:40:54] Speaker 01:
In terms of whether Redgrave is itself an unequivocal statement, of waiver or isn't. The fact is that our court certified the issue to the Arizona Supreme Court before it had the answer. So it was acting in a state of indeterminacy.

[00:41:28] Speaker 01:
And therefore, leaving aside for the moment, deposit that the state Supreme Court would be incapable of deciding the question of whether the case could be decided in federal court. And I don't know whether that's so or not. But assuming that it's not so for the moment, then the fact that we don't know what answer it's going to give doesn't mean that Redgrave had to be an unequivocal answer itself.

[00:41:58] Speaker 01:
It means that if we asked it and the court gave an answer, then it could be an unequivocal unequivocal answer.

[00:42:06] Speaker 01:
Is that right? In other words, you don't have to take the position that Redgrave is now an unequivocal determination, as Judge Tucci did.

[00:42:16] Speaker 01:
Our court in Redgrave itself certified the issue to the Arizona Supreme Court because it didn't know the answer.

[00:42:25] Speaker 01:
And then it accepted the answer. If the answer had been the other way, presumably it would have accepted that answer. So if we send it to the Arizona Supreme Court and it determines that there was, in fact, a venue, that the whole statute is venue-based and it does waive all forms of immunity in federal court, if it's capable of doing that, then that would be binding on us as an unequivocal answer.

[00:42:55] Speaker 01:
Is that right?

[00:42:57] Speaker 03:
You're asking if this is certified, is the Arizona Supreme Court answer right?

[00:43:01] Speaker 01:
In other words, you don't... The position that... Your position and Judge Chuchi's position was that there is now... Well, Judge Chuchi's position was that there is now an unequivocal determination by the Arizona Supreme Court. That's not your position, as I understand it. Your position is, well, it's not so unequivocal. If it's not so unequivocal, then...

[00:43:26] Speaker 01:
then your opponent's position seems to be, well, then there's no unequivocal waiver and we win. The other possibility is, well, we should find out what its answer is before we decide who wins.

[00:43:38] Speaker 03:
So two answers. One, I don't know, and he's not here, so he can't speak for himself, but I don't think that's what Judge Tucci found. He didn't find that Redgrave standing alone was an unequivocal statement. He found that waiver started with the legislature, with the statute, and was interpreted by Redgrave in a way that could only be.

[00:44:00] Speaker 03:
a waiver of sovereign immunity in federal court. So again, I don't, I don't, I regret the idea.

[00:44:05] Speaker 01:
You agree that Redgrave was not unequivocal on this question and just didn't directly answer the question. That's what you said when you were asked.

[00:44:13] Speaker 03:
Apologies. Apologies. If that's what I said, what I meant was it doesn't use those exact words, but that doesn't mean that by its own construction and its own interpretation of its statute, that the rule that comes from Redgrave isn't an unequivocal waiver of federal immunity. There is no, There is no magic words requirement. Now, does it have to say federal court?

[00:44:36] Speaker 01:
In federal jurisdiction, Would it be an incoherent decision for the state Supreme Court if asked to say, well, yes, with regard to which causes of action apply, there has to be uniformity across venues. But It's also the case that the waiver doesn't apply in federal court. Would that be an incoherent or ridiculous construction?

[00:45:11] Speaker 03:
I think it would be inconsistent with the regrave as it was written.

[00:45:13] Speaker 04:
Well, if I were you, I would have answered Judge Berzon's initial question, yes. Send it to the court and see what they say. But I think you treated a very friendly question as a hostile one, but maybe I'm wrong about that.

[00:45:27] Speaker 04:
Let me ask you. Any other questions for Mr. Yancey?

[00:45:33] Speaker 00:
Yeah, I do have a question. If we were to certify another question, to the state Supreme Court as to whether that waiver doctrine pronounced in Red Rafe applies if the suit is made in federal court.

[00:46:00] Speaker 00:
Why would our court be bound by whatever the state court says?

[00:46:13] Speaker 03:
Because that's what the Supreme Court of the United States has said federal courts must do. When a state Supreme Court speaks authoritatively and construes its own waiver doctrine, that is binding and that constitutes the clear statement of consent.

[00:46:29] Speaker 00:
But if the state Supreme Court did not state clearly and unequivocally that that it's waiver doctrine applied in federal court. Because as I understood it here, they limited what they said to state courts.

[00:46:57] Speaker 00:
If the state Supreme Court hasn't said that, then does the principle you just announced as a matter of logic require that we adopt it?

[00:47:15] Speaker 03:
I'm sorry, I think I missed the first part of the question.

[00:47:17] Speaker 00:
Well, I thought your statement was that in Redgrave, the court did say that there was a waiver and it wouldn't matter what court a suit was filed.

[00:47:40] Speaker 00:
But as I understood it, The state Supreme Court has not said expressly or unequivocally that its waiver doctrine applies in federal court.

[00:47:58] Speaker 00:
So my question is, why are we still free to use the clearly and unequivocally standard to determine if the suit in federal court Any objection to suit in federal court was waived.

[00:48:21] Speaker 03:
I think you do apply that standard.

[00:48:23] Speaker 03:
The plaintiff's position is that Redgrave interpreting the Arizona waiver regime satisfies that standard. Did I answer your question?

[00:48:34] Speaker 00:
What's the language the state Supreme Court used in its waiver declarations?

[00:48:44] Speaker 03:
Let me pull up the exact quotes real quickly for you. All right, so in Redgrave at paragraph 20, Redgrave says, our Constitution expressly assigns state liability matters, including the waiver of sovereignty to the legislature, A little bit later it says, which has expressly allowed state liability under the statutes and common law of this state.

[00:49:18] Speaker 03:
And then it says, after contrasting that with the FLSA, which it found there was no waiver because it was a federal statutory claim. It said, however, where a claim is based upon the statutes and common law of the state, the act's command is clear. It is plaintiff's position that that because the decision to find no waiver on the FLSA claim was based on the fact that it was a federal claim arising under federal statute, and then it immediately contrasted that with claims arising under the 1984 regime.

[00:49:58] Speaker 03:
That is the statement, and that is the controlling interpretation of Arizona's waiver doctrine that the court must follow.

[00:50:04] Speaker 01:
There's also an earlier paragraph in Redgrave, however, that cites some of the cases that pertain to where the case is filed as being pertinent. It's a little mysterious what it's doing there, but it's there.

[00:50:19] Speaker 03:
So I'm not sure, and I know it cites to Ronwen as approving what Ronwen said about Stone, and then a couple other district courts, I believe, who are also talking about Stone. I don't know how Stone is necessarily Relevant to the inquiry before the courts, because 1984 came after. And as this, as your honor has said, it's plaintiff's decision to get a whole lot more than just to codify stone.

[00:50:46] Speaker 04:
So you think did not, but you, you agree the 1984 act on its face didn't waive 11th amendment immunity.

[00:50:54] Speaker 03:
Correct.

[00:50:54] Speaker 04:
Doesn't contain a clear and unequivocal waiver.

[00:50:58] Speaker 04:
So to the extent Ron Wynn said that Stone, which was broader than the act, wasn't a clear and unequivocal waiver, it seems to me you have to be relying on Redgrave. You can't rely on the 1984 act.

[00:51:14] Speaker 03:
So I don't know that I agree that Stone was that much broader.

[00:51:18] Speaker 04:
Well, it said the Arizona, there will no longer be a doctrine of sovereign immunity in Arizona. That's the whole reason the legislature had to in 1984.

[00:51:29] Speaker 01:
As to torts.

[00:51:31] Speaker 04:
As to torts. Well, it wasn't clear. That's why the legislature acted in 84 to cabinet in, if you would.

[00:51:44] Speaker 04:
It's okay. I won't throw the question because we've gone over time. And I just want to make sure my colleagues don't have other questions.

[00:51:53] Speaker 00:
Nothing else here.

[00:51:56] Speaker 03:
Thank you, Your Honors.

[00:51:57] Speaker 04:
Thank you. Mr. Bettendorf, you have a little bit of time.

[00:52:11] Speaker 05:
Thank you, Your Honors. I want to start by clarifying one of the points Judge Berzon was asking about. A waiver of liability is not the same as a waiver of the right not to be sued in federal court. And a state can clearly do one, waive liability to suits in its courts for certain state law claims without doing the other. That's why you have the rules stated in college savings.

[00:52:33] Speaker 01:
The question is whether the Zionists, whether the state Supreme Court's determination, if there were one with regard to the authority to be sued in federal court, as a matter of state law would be a pertinent indice that there was a waiver.

[00:52:59] Speaker 05:
I think it certainly could be pertinent. I think it wouldn't. I think the construction of state law is binding. Its application to 11th Amendment jurisprudence is not binding on the federal court.

[00:53:09] Speaker 01:
So your position would be that if this case were filed in the state court and you removed it, there would not be an 11th Amendment question in the case and it would be a pure state question of sovereign immunity. Is that your position?

[00:53:25] Speaker 05:
That's my understanding. We're only amicus. That's my understanding. My understanding is defendants have conceded that if this claim, the state law claim, were filed in state court, there would not be... The federal court.

[00:53:35] Speaker 01:
And removed to federal court.

[00:53:36] Speaker 05:
Right, because under Loppy, this removal constitutes a waiver.

[00:53:39] Speaker 04:
In fact, that's exactly what Redgrave holds. Which makes it... That if you've waived immunity from liability in state court, you've also waived it in federal court. Immunity from liability, not 11th Amendment liability.

[00:53:55] Speaker 04:
Well, I'm not sure if that's what I... Well, I think that's a fair reading, because it said you didn't waive it in state court, and so the venue doesn't matter. And so I think it naturally follows that if you had waived it with respect to this suit in state court, you would have waived it with respect to the suit in federal court, but not 11th Amendment immunity.

[00:54:16] Speaker 05:
I think that's right.

[00:54:18] Speaker 01:
Therefore, if this case had been filed in state court, they'd be fine, even if you were moved into federal court.

[00:54:25] Speaker 05:
Correct, as to the state law claim. Yes.

[00:54:28] Speaker 01:
So they just filed it in the wrong place.

[00:54:29] Speaker 05:
Well, no. I mean, they have federal law claims, which is presumably why they filed it in federal court. The question is, can they proceed on their state law claim, and is there sovereign immunity as to that?

[00:54:39] Speaker 01:
They could have filed two suits, one in state court and one in federal court. They just didn't do it.

[00:54:44] Speaker 05:
I think that's the clear holding, right?

[00:54:46] Speaker 01:
I mean, College Savings Bank says... I'm really surprised to hear you agreeing, because this is the issue that was left open in Red Gray, that if a case is filed in state court and removed to federal court, that there is no sovereign immunity in state federal court on the liability.

[00:55:06] Speaker 05:
My reading of Lapidus from the Supreme Court in 2002 is that a state defendant's weight removal... of a case to federal court, waive sovereign immunity in that particular case.

[00:55:16] Speaker 04:
Waves the 11th Amendment immunity. Waves the 11th Amendment immunity in that particular case. So your reading of Redgrave has had the suit been brought in state court. It still would have failed because there was no waiver of state sovereign immunity.

[00:55:29] Speaker 05:
Correct, because the waiver in the 1984 Act is limited to state law.

[00:55:32] Speaker 01:
No, no, that's clear. That's clearly what they were saying. The question is whether they were saying the opposite, that if it had been filed in federal court...

[00:55:42] Speaker 01:
If it was a state law claim filed in state court and removed, would it then therefore necessarily not, would there necessarily be no liability sovereign immunity? And I'm a little surprised, but you're saying yes, that's true.

[00:56:05] Speaker 05:
That's my understanding because of removal as a form of consent. Removal removes your 11th Amendment.

[00:56:10] Speaker 01:
The consent is put in federal court, but the question is whether it is a consent to liability in federal court.

[00:56:20] Speaker 05:
Well, it would be a combination of the operation of the 1984 Act, which waives the state's liability to state law claims in the first place.

[00:56:27] Speaker 04:
And then—

[00:56:30] Speaker 05:
If you remove to federal court, you have also consented to federal jurisdiction as to that claim in that case.

[00:56:39] Speaker 04:
Okay. I have one very small question. I think nobody addresses Dr. Crowe separately.

[00:56:46] Speaker 04:
Is everybody's assumption in this case that however we rule, the ruling applies not only to the Arizona Board of Regents, but to Dr. Crowe, who is, I think, sued in his official capacity?

[00:56:58] Speaker 05:
Candidly, Your Honor, we appeared as amicus solely to answer the pure legal question.

[00:57:01] Speaker 04:
Oh, because you're only representing the state?

[00:57:02] Speaker 05:
And so I don't represent Dr. Crow, and I think Mr. Yost would be better positioned to answer that question.

[00:57:08] Speaker 04:
Okay, and nobody addressed it in their briefing, so... All right, unless... I see that my time is fully expired.

[00:57:16] Speaker 04:
It's over-expired.

[00:57:17] Speaker 05:
Yes, thank you.

[00:57:20] Speaker 04:
Unless my colleagues have further questions, I thank all three counsel, for the excellent arguments in this case and the briefing, and the case will be submitted. And with that, we will be adjourned.

[00:57:37] Speaker 03:
Thank you, Your Honor. Thank you, Your Honors.