     Case: 16-60259      Document: 00513834794         Page: 1    Date Filed: 01/13/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 16-60259                               FILED
                                                                          January 13, 2017
                                                                            Lyle W. Cayce
MICHAEL C. ANDERSON,                                                             Clerk

              Plaintiff - Appellant

v.

JACKSON STATE UNIVERSITY,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:15-CV-326


Before JOLLY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
       Michael C. Anderson filed suit in state court against his former
employer, Jackson State University (“JSU”), alleging that it discriminated and
retaliated against him in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq. JSU removed the case to federal court and
promptly moved to dismiss the case on the grounds that it was entitled to




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-60259
sovereign immunity from this suit under the Eleventh Amendment.              The
district court agreed and dismissed Anderson’s claims with prejudice.
      Anderson argues, for the first time on appeal, that JSU is not entitled to
sovereign immunity because it waived its immunity by removing the case to
federal court; in the alternative, he argues that the claims must be dismissed
without prejudice, rather than with prejudice.
      We hold that Anderson waived his “waiver” argument by failing to raise
it below, and so affirm the district’s court’s dismissal of Anderson’s claims on
Eleventh Amendment grounds. However, we also hold that the district court
erred by dismissing Anderson’s claims “with prejudice” rather than “without
prejudice,” and so vacate the district court’s judgment in part and remand this
case for the limited purpose of dismissing the case without prejudice.
                                       I.
      Michael Anderson was employed at JSU, a public university in Jackson,
Mississippi. He alleged that after he suffered a stroke and became disabled,
he was discriminated and retaliated against on account of his disability and
eventually terminated.
      Anderson filed suit in state court in Mississippi, alleging employment
discrimination and retaliation under the ADA, as well as a state law claim for
breach of contract. JSU removed the case to federal court on the basis of
federal question jurisdiction. JSU then moved for judgment on the pleadings
on the grounds that it was entitled to sovereign immunity under the Eleventh
Amendment. The district court agreed, relying on Board of Trustees of the
University of Alabama v. Garrett, 531 U.S. 356, 360 (2001), which squarely
held that suits for employment discrimination under Title I of the ADA brought
against state entities are barred by the Eleventh Amendment. The court




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granted JSU’s motion and dismissed Anderson’s ADA claims with prejudice. 1
Anderson timely appealed.
                                          II.
      “We review de novo a grant of judgment on the pleadings under Federal
Rule of Civil Procedure 12(c).” United States v. 0.073 acres of land, more or
less, situate in Pars. of Orleans & Jefferson, 705 F.3d 540, 543 (5th Cir. 2013).
“The nonmovant must plead enough facts to state a claim to relief that is
plausible on its face.” Id. (quoting in part Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)) (internal quotation marks omitted). Further, “[w]hether a
state is entitled to Eleventh Amendment immunity is a question of law that
this court reviews de novo.” AT&T Commc’ns v. BellSouth Telecomms. Inc.,
238 F.3d 636, 643 (5th Cir. 2001).
                                         III.
                                          A.
      Anderson argues, for the first time on appeal, that JSU waived its
Eleventh Amendment immunity by removing this case from the state court
where it was originally filed to federal court.
      This court has, indeed, squarely held that where, as here, a state
“removed this case to federal court it voluntarily invoked the jurisdiction of the
federal courts and waived its immunity from suit in federal court.” Meyers ex
rel. Benzing v. Texas, 410 F.3d 236, 255 (5th Cir. 2005). But Anderson failed
to raise this argument below, and so he has forfeited any argument that JSU
voluntarily waived its immunity from suit in federal court. In other words, he
waived his “waiver” argument.




      1The district court also dismissed Anderson’s state law breach-of-contract claim.
Anderson does not appeal the dismissal of that claim.

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                                  No. 16-60259
      “The general rule of this court is that arguments not raised before the
district court are waived and will not be considered on appeal.” Celanese Corp.
v. Martin K. Eby Constr. Co., 620 F.3d 529, 531 (5th Cir. 2010). Anderson
argues that because his argument concerns subject matter jurisdiction, he may
raise it for the first time on appeal. But that is not an accurate statement.
Instead, “[a] lack of subject matter jurisdiction may be raised at any time and
may be examined for the first time on appeal.” Volvo Trucks N. Am., Inc. v.
Crescent Ford Truck Sales, Inc., 666 F.3d 932, 935 (5th Cir. 2012) (emphasis
added); accord Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action.”
(emphasis added)). Anderson does not challenge subject matter jurisdiction;
he seeks to defend it. And he waived any arguments in defense of subject
matter jurisdiction by failing to raise them below, just as other legal arguments
not properly raised in the district court.
      This court has, on at least two occasions, addressed nearly identical fact
patterns, and on both occasions it found that the plaintiffs waived their
argument that the defendant consented to subject matter jurisdiction by failing
to raise it before the district court. See Martinez v. Tex. Dep’t of Criminal
Justice, 300 F.3d 567, 573–75 (5th Cir. 2002) (holding that a plaintiff waived
an argument that the defendant voluntarily waived its Eleventh Amendment
immunity by removing the case from state to federal court by failing to raise it
before the district court, even though an intervening Supreme Court decision
clarified the law in the plaintiff’s favor); Perez v. Region 20 Educ. Serv. Ctr.,
307 F.3d 318, 331–32 (5th Cir. 2002) (refusing to consider an argument that a
defendant “waived its sovereign immunity by removing this case to federal
district court” because the plaintiff “raised the removal-by-waiver argument
for the first time on appeal” and noting that “[Plaintiff’s] claim that
[Defendant] waived its sovereign immunity has itself been waived”); accord
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R.I. Dep’t of Envtl. Mgmt. v. United States, 304 F.3d 31, 50 (1st Cir. 2002)
(“Claims of waiver of immunity are like any other legal argument and may
themselves be waived or forfeited if not seasonably asserted.”).
       Here, as in Martinez and Perez, there are no exceptional circumstances
excusing Anderson’s failure to raise his argument below. And those cases
foreclose any argument that he may raise such an argument for the first time
on appeal even though he failed to raise it in the district court. Accordingly,
we hold that the district court did not err by dismissing Anderson’s claims on
the grounds that JSU was entitled to immunity from suit under the Eleventh
Amendment. 2
                                             B.

       However, the district court did err by dismissing Anderson’s claims with
prejudice. The dismissal was based on the grounds that JSU was entitled to
Eleventh Amendment immunity, and so should have been without prejudice.
See United States v. Tex. Tech Univ., 171 F.3d 279, 286 n.9 (5th Cir. 1999)
(“Because [Eleventh Amendment] sovereign immunity deprives the court of
jurisdiction, the claims barred by sovereign immunity can be dismissed only
under Rule 12(b)(1) and not with prejudice.” (quoting Warnock v. Pecos Cty.,
Tex., 88 F.3d 341, 343 (5th Cir. 1996))); Daigle v. Opelousas Health Care, Inc.,
774 F.2d 1344, 1348 (5th Cir. 1985) (“A dismissal for want of jurisdiction bars
access to federal courts and is res judicata only of the lack of a federal court’s




       2 We therefore need not address JSU’s alternative argument that it is also entitled to
immunity from liability under Mississippi law.         See Meyers, 410 F.3d at 252–53
(distinguishing between two types of “immunity” that courts routinely refer to as “sovereign
immunity”—“immunity from suit” and “immunity from liability”).
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                                      No. 16-60259
power to act. It is otherwise without prejudice to the plaintiff’s claims, and the
rejected suitor may reassert his claim in any competent court.”). 3
       We therefore vacate the district court’s judgment and remand this case
for the limited purpose of entering a judgment dismissing Anderson’s ADA
claims without prejudice. Although the parties did not address the issue, we
leave to the district court to decide whether the proper course is to fully dismiss
the claims without prejudice or instead remand the claims to the state court in
which they originated. Cf. 13 Charles Alan Wright et al., Federal Practice and
Procedure § 3524 (3d ed. 2016) (“In removal cases, a federal court will remand
the case to the state court from which it was removed if the court determines
that the Eleventh Amendment prevents the court from exercising subject
matter jurisdiction.”).
                                            IV.
       In sum, we hold that the district court did not err in dismissing
Anderson’s ADA claims on the grounds that JSU was entitled to Eleventh
Amendment immunity. We further hold, however, that the dismissal should
have been entered without prejudice. The district court’s judgment is therefore
AFFIRMED IN PART, VACATED IN PART, and the case is REMANDED for
further proceedings not inconsistent with this opinion.




       3  Relying on non-binding caselaw, JSU argues that this court should nonetheless
affirm the dismissal with prejudice because any further attempt to pursue the case would be
futile. However, because the district court held only that JSU was immune from suit in
federal court, and because we decline to address the issue of whether JSU is immune from
liability under Mississippi law, cf. Meyers, 410 F.3d at 252–53, it would not necessarily be
futile for Anderson to pursue his claims in Mississippi state court.
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