In the
United States Court of Appeals
For the Seventh Circuit

No. 97-3521

Patrick J. Higgins,

Plaintiff-Appellant,

v.

State of Mississippi, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 C 4464--Joan B. Gottschall, Judge.


Submitted June 8, 1999--Decided June 30, 2000



 Before Posner, Chief Judge, and Flaum and Rovner,
Circuit Judges.

 Posner, Chief Judge. This suit under 42 U.S.C.
sec. 1983 against Illinois and Mississippi, an
Illinois municipality, and various Illinois and
Mississippi officials charges a plot to kidnap
the plaintiff from an Illinois jail and bring him
to Mississippi to face criminal prosecution. The
district court gave judgment for the defendants.
The appeal raises only two issues that merit
discussion: whether a district court may dismiss
a suit on the basis of the Eleventh Amendment
even if the state has not invoked the amendment;
and when an admission made in a prior case can be
used in the current case. An alternative ground
not presented to the district court for
dismissing the states from the suit is that
states are not "persons" within the meaning of
section 1983 and so are not liable under that
statute. Arizonans for Official English v.
Arizona, 520 U.S. 43, 69 (1997); Will v. Michigan
Dept. of State Police, 491 U.S. 66 (1989). This
could well be thought a jurisdictional ground for
dismissal and hence one that we can and should
raise on our own though it was waived in the
district court, or alternatively a
nonjurisdictional ground that we can nevertheless
notice on our own because to do so would promote
federal-state comity; but this we need not
decide. The alternative ground, the Eleventh
Amendment, is secure, as we are about to see.
 A state may, it is plain, waive its Eleventh
Amendment immunity from being sued in federal
court either legislatively, Atascadero State
Hospital v. Scanlon, 473 U.S. 234, 238 n. 1
(1985), or by an explicit waiver in the lawsuit
in which it is named as a defendant, Clark v.
Barnard, 108 U.S. 436, 447 (1883), provided that
the waiver is authorized by state law. Ford Motor
Co. v. Department of Treasury, 323 U.S. 459
(1945); Estate of Porter by Nelson v. Illinois,
36 F.3d 684, 690 (7th Cir. 1994). The question
this case presents is whether the state’s failure
to invoke its Eleventh Amendment immunity, by
pleading or otherwise, in the suit in which it is
named as a defendant (assuming the state has not
legislated a waiver) operates as a forfeiture of
the immunity, in which event the district court
should not on its own initiative have dismissed
Illinois from the case, since Illinois never
bothered to respond to Higgins’s complaint.

 In Wisconsin Dept. of Corrections v. Schacht,
524 U.S. 381, 389 (1998), the Supreme Court
stated that "unless the State raises the matter
[i.e., its Eleventh Amendment immunity], a court
can ignore it." The implication (despite some
fudging in an earlier sentence--"the Eleventh
Amendment, however, does not automatically
destroy original jurisdiction," id. (emphasis
added)), contrary to earlier decisions such as
Wilson-Jones v. Caviness, 99 F.3d 203, 206 (6th
Cir. 1996), is that the Eleventh Amendment does
not deprive the federal court of its subject-
matter jurisdiction, Kennedy v. National Juvenile
Detention Ass’n, 187 F.3d 690, 696 (7th Cir.
1999); Parella v. Retirement Bd. of Rhode Island
Employees’ Retirement System, 173 F.3d 46, 55
(1st Cir. 1999); see also Patsy v. Board of
Regents, 447 U.S. 496, 515 n. 19 (1982), since if
it did, the court could not ignore the presence
of an Eleventh Amendment immunity just because it
had not been argued. A more refined analysis
might distinguish between the "original" Eleventh
Amendment, which forbids the federal courts to
entertain diversity suits against states and thus
is clearly jurisdictional, from the later
interpretations that transformed the amendment
into a comprehensive charter of state sovereign
immunity, creating thus an affirmative defense
rather than a limitation on jurisdiction.

 But that is an aside; the important point is
that the Court in Schacht (which was not a
diversity case, but a case in which the Eleventh
Amendment was the vehicle for a defense of
sovereign immunity, see 524 U.S. at 389) said
only that the federal court could ignore the
immunity in such a case, not that it must ignore
it. Nor would such a statement, implying that the
immunity conferred by the Eleventh Amendment is
no different from any other affirmative defense,
comport with the long line of cases holding that
federal courts may forgive the waiver of a
defense that is based on comity--the mutually
respectful deportment of sovereign entities,
including the quasi-sovereign entities that are
the states of the United States. See, e.g.,
Younger v. Harris, 401 U.S. 37, 40-41 (1971);
Eaglin v. Welborn, 57 F.3d 496, 499 (7th Cir.
1995) (en banc); Pittman v. Chicago Board of
Education, 64 F.3d 1098, 1101 (7th Cir. 1995). As
we put it in Hoover v. Wagner, 47 F.3d 845, 852
(7th Cir. 1995), "when matters of comity are
involved, the ordinary doctrines of waiver give
way." And in Pittman v. Chicago Bd. of Education,
64 F.3d 1098, 1101 (7th Cir. 1995), we said
specifically that "one of the exceptions to the
principle of waiver . . . that is recognized by
the Supreme Court and by this court concerns the
interest in maintaining harmonious relations
between the states and the federal government."
That interest is present when a state is hauled
into a federal court as a defendant, as happened
here.

 We conclude, as have the other reported post-
Schacht decisions, that a federal court can raise
an Eleventh Amendment defense on its own
initiative, Parella v. Retirement Bd. of Rhode
Island Employees’ Retirement System, supra, 173
F.3d at 54-55; United States ex rel. Long v. SCS
Business & Technical Institute, Inc., 173 F.3d
890, 892 n. 4 (D.C. Cir. 1999), and we retract
our unfortunate dictum on remand in Schacht that
"the [Supreme] Court ruled that a federal court
must not raise a potential Eleventh Amendment
issue sua sponte." Schacht v. Wisconsin Dept. of
Corrections, 175 F.3d 497, 501 (7th Cir. 1999).
That was not what the Supreme Court ruled. We
need not consider whether, as urged in Michelle
Lawner, Comment, "Why Federal Courts Should Be
Required to Consider State Sovereign Immunity Sua
Sponte," 66 University of Chicago Law Review 1261
(1999), courts should always notice an Eleventh
Amendment immunity on their own, and at the
earliest point in the litigation, in order to
prevent states from using the immunity
opportunistically.

 The other issue we discuss arises from a written
statement that Higgins made in the criminal
proceedings against him in Mississippi, admitting
that he had waived extradition. The district
court relied on the statement in granting summary
judgment for the defendants, the statement being
inconsistent with Higgins’s claim that he had not
waived extradition but instead had been
kidnapped. If the statement was a judicial
admission, which means, in effect, a waiver,
Solon v. Gary Community School Corp., 180 F.3d
844, 858 (7th Cir. 1999); Murrey v. United
States, 73 F.3d 1448, 1455 (7th Cir. 1996);
Keller v. United States, 58 F.3d 1194, 1198 n. 8
(7th Cir. 1995); Barnes v. Owens-Corning
Fiberglas Corp., 201 F.3d 815, 829 (6th Cir.
2000), here of any contention that Higgins did
not waive extradition, then it would be binding;
if it was merely an evidentiary admission, it
would not be--it would just be one more bit of
evidence to weigh against Higgins’s denial, made
in his affidavit in the current suit, that he
ever waived extradition.

 We needn’t consider which type of admission it
was, judicial or evidentiary, because a judicial
admission binds only in the litigation in which
it is made. Kohler v. Leslie Hindman, Inc., 80
F.3d 1181, 1185 (7th Cir. 1996); Enquip, Inc. v.
Smith-McDonald Corp., 655 F.2d 115, 118 (7th Cir.
1981); Utility Sales Co. v. Certain-teed Products
Corp., 638 F.2d 1061, 1084 (7th Cir. 1981); Dugan
v. EMS Helicopters, Inc., 915 F.2d 1428, 1432
(10th Cir. 1990) (per curiam); United States v.
Raphelson, 802 F.2d 588, 592 (1st Cir. 1986). In
any other suit, as the cases just cited make
clear, it operates merely as an evidentiary
admission; for remember that a judicial admission
is in the nature of a waiver. A waiver is a
deliberate relinquishment of a known right, and a
waiver made for purposes of one lawsuit needn’t
have been intended to carry over to another.

 How then was the district court able to rely
upon Higgins’s waiver in the criminal proceedings
to show that he hadn’t waived extradition, since
the court was confronted with contradictory
statements, creating an issue of credibility? The
answer is that there are exceptions to the
principle on which Higgins relies that
credibility cannot be determined in a summary
judgment proceeding. The applicable exception is
that a party cannot by affidavit retract damaging
admissions without a good explanation, e.g.,
Cleveland v. Policy Management Systems Corp., 526
U.S. 795, 806-07 (1999); United States v.
Stewart, 198 F.3d 984, 986 (7th Cir. 1999);
Seshadri v. Kasraian, 130 F.3d 798, 801-02 (7th
Cir. 1997), whether (as these cases make clear)
the admissions were made in a deposition, a
trial, another affidavit, or, as in this case, a
written statement not under oath (actually
statements, but we can ignore that detail).
Higgins neither questions the authenticity of the
statement that he made in the Mississippi
proceedings nor offers an explanation for the
contradiction, such as that he was coerced to
waive extradition. In these circumstances, the
district court was right to credit that statement
and disregard the later, contrary affidavit.
Affirmed.
