                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2808
                                    ___________

St. Charles County, State of Missouri,   *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
State of Wisconsin,                      *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: February 15, 2006
                                 Filed: May 16, 2006
                                  ___________

Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.
                             ___________

SMITH, Circuit Judge.

       St. Charles County, Missouri, ("the County") filed this action against the State
of Wisconsin to collect $5,421.86 in expenses that St. Charles County allegedly
incurred for jailing a Wisconsin fugitive pending extradition. Wisconsin subsequently
moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure
12(c), and the district court1 granted the motion. The County appeals, arguing that the
Federal Extradition Act , 18 U.S.C. § 3181 et seq., grants this court jurisdiction to



      1
        The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
determine whether Wisconsin failed to comply with the Act and to order any available
remedy to the County for such failure. We affirm.

                                  I. Background
       Jill Knutowski fled from Wisconsin to Missouri in violation of her probation.
About a month later, she was arrested and incarcerated in the County. Wisconsin
sought to extradite Knutowski under the Act. The County detained Knutowski for 83
days pending extradition and then released her into the custody of an agent of
Wisconsin. The County requested $4,150.00—$50.00 per day—from Wisconsin for
housing Knutowski. Also, the County demanded $1,271.86 for Knutowski's medical
expenses while she was in custody. Wisconsin declined to pay the $5,421.86, and the
County brought suit to recover the expenses, citing 18 U.S.C. § 3195 for subject
matter jurisdiction.

       The district court granted Wisconsin's motion for judgment on the pleadings,
holding that the Act did not provide the County with a right of action and, even if it
did, the Eleventh Amendment would bar such a claim.

                                   II. Discussion
      On appeal, the County argues that § 31952 of the Act establishes a cause of
action for a county seeking to recover extradition costs and expenses from a
demanding jurisdiction, such as Wisconsin. Wisconsin responds that the Eleventh
Amendment is a jurisdictional bar to suits against states by counties in federal courts
because Congress did not expressly abrogate the states' sovereign immunity in the Act.
In the alternative, Wisconsin argues that even if Congress abrogated the states'
sovereign immunity, such abrogation is invalid because Congress lacks the power to
abrogate the states' sovereign immunity in the Act.

      2
      Section 3195 provides that "[a]ll costs or expenses incurred in any extradition
proceeding in apprehending, securing, and transmitting a fugitive shall be paid by the
demanding authority."

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      Because we consider it dispositive of the appeal, we first address whether the
Eleventh Amendment bars this suit. The Eleventh Amendment provides that "[t]he
Judicial power of the United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State." Thus, while the
Eleventh Amendment does not bar suits between states, a county is a "Citizen of
another State" for Eleventh Amendment purposes. Illinois v. City of Milwaukee, 406
U.S. 91, 97 (1972).

       We note that the Second and Tenth Circuits have come to conflicting
conclusions as to whether the Act establishes a cause of action by which a county may
recover its extradition costs.3 However, because we find the Eleventh Amendment
bars such an action, we need not address the issue.

       When Congress exercises its power to abrogate the Eleventh Amendment
without the states' consent, it must express its intention "in unmistakable language in
the statute itself." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243 (1985).4 The


      3
        The Second Circuit held that the Act provides a cause of action in federal court
to a county against a state to recover extradition costs. County of Monroe v. Florida,
678 F.2d 1124, 1128 (2d Cir. 1982). In contrast, the Tenth Circuit held that the Act
does not provide a cause of action to a county with a cause of action against a state to
recover extradition costs because only the executive authority of the state has the right
to recover extradition expenses. Colfax County Bd. of County Comm'r v. New
Hampshire, 16 F.3d 1107, 1109–10 (10th Cir. 1994).
      4
        The United States Supreme Court recently carved out an exception to the
general rule that Congress must expressly abrogate states' sovereign immunity. In the
case of bankruptcy, it is "not necessary [for Congress] to authorize the Bankruptcy
Court's jurisdiction" because, in ratifying the Bankruptcy Clause, the states "agreed
in the plan of the Convention not to assert any sovereign immunity defense they might
have had in proceedings brought pursuant to 'Laws on the subject of Bankruptcies.'"
Cent. Va. Comm. Coll. v. Katz, 126 S. Ct. 990, 995, 1004 (2006). The Court indicated

                                          -3-
Second Circuit acknowledged that "the Federal Extradition Act does not expressly
abrogate the states' Eleventh Amendment immunity." County of Monroe, 678 F.2d at
1133. However, despite the lack of express abrogation, the Second Circuit found that
the "plain language of s 3195 and its legislative history reveal an intent by Congress
to require the demanding state to pay the expenses of extradition" and that the Act has
a history focusing directly on the issue of state liability. Id. It found that if the Act
does not authorize suits by counties against states, then it is "rendered virtually
meaningless." Id. at 1134. In addition, the court noted that "a somewhat lesser
quantum of congressional intent to abrogate the immunity" is necessary when the "the
financial consequences of abrogating states' immunity are not particularly severe." Id.

       We read the Act, congressional intent, and Supreme Court precedent somewhat
differently. Regarding abrogation, the Court has stated:

      Our opinion in Atascadero should have left no doubt that we will
      conclude Congress intended to abrogate sovereign immunity only if its
      intention is "unmistakably clear in the language of the statute." Lest
      Atascadero be thought to contain any ambiguity, we reaffirm today that
      in this area of the law, evidence of congressional intent must be both
      unequivocal and textual. Respondent's evidence is neither. In particular,
      we reject the approach of the Court of Appeals, according to which,
      "[w]hile the text of the federal legislation must bear evidence of such an
      intention, the legislative history may still be used as a resource in
      determining whether Congress' intention to lift the bar has been made
      sufficiently manifest." Legislative history generally will be irrelevant to
      a judicial inquiry into whether Congress intended to abrogate the
      Eleventh Amendment. If Congress' intention is "unmistakably clear in

that this exception for bankruptcy cases is a narrow one, stressing that "the
Bankruptcy Clause's unique history, combined with the singular nature of bankruptcy
courts' jurisdiction," persuaded the Court that "the ratification of the Bankruptcy
Clause does represent a surrender by the States of their sovereign immunity in certain
federal proceedings." Id. at 1000 n.9. Because this is not a bankruptcy case, this
narrow exception does not apply.

                                          -4-
      the language of the statute," recourse to legislative history will be
      unnecessary; if Congress' intention is not unmistakably clear, recourse
      to legislative history will be futile, because by definition the rule of
      Atascadero will not be met.

Dellmuth v. Muth, 491 U.S. 223, 230 (1989) (internal citations omitted). Given this
guidance, we hold that the Eleventh Amendment bars the instant suit because
Congress did not expressly abrogate the states' sovereign immunity in the Act.

       Congress may not use its powers under Article I to abrogate the states'
sovereign immunity from suit in federal courts. Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 64–65 (1996). However, when it acts pursuant to the Fourteenth Amendment,
Congress has the power to abrogate the states' sovereign immunity. Fla. Prepaid
Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 637 (1999).
Therefore, "'appropriate' legislation pursuant to the Enforcement Clause of the
Fourteenth Amendment could abrogate state sovereignty." Id. To determine whether
an Act may be viewed as "remedial or preventive legislation aimed at securing the
protections of the Fourteenth Amendment," a court must "first identify the Fourteenth
Amendment 'evil' or 'wrong' that Congress intended to remedy, guided by the principle
that the propriety of any § 5 legislation must be judged with reference to the historical
experience it reflects." Id. at 640 (internal quotations and citation omitted).5

       Here, the County argues that "Section 3195 could be properly interpreted as a
mechanism by which the protections of the Fourteenth Amendment are extended to
[the County] to protect it from the unconstitutional deprivation of property occasioned
by the demand of Wisconsin to hold and extradite one of its fugitives." We do not so
interpret § 3195. Congress's 1793 enactment of the Extradition Act stated no intent to


      5
       As noted in footnote 4, states' sovereign immunity is also abrogated in
"proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts."
Cent. Va. Comm. Coll., 126 S. Ct. at 1005.

                                          -5-
abrogate the states' sovereign immunity through the Fourteenth Amendment because
the Act's passage predated the Fourteenth Amendment by 75 years.

       Finally, we "turn [ ]to the question whether [Wisconsin's] sovereign immunity,
though not abrogated, was voluntarily waived." Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999). Sovereign immunity is
a privilege that the state holds, which it may voluntarily waive. Id. However, the "test
for determining whether a State has waived its immunity from federal-court
jurisdiction is a stringent one." Id. (internal quotations and citation omitted). A state
only waives its sovereign immunity "if the State voluntarily invokes [federal]
jurisdiction, or else if the State makes a clear declaration that it intends to submit itself
to [federal] jurisdiction." Id. at 675–76 (internal quotations and internal citations
omitted). Therefore, "the State's consent [must] be unequivocally expressed."
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). We hold that
Wisconsin never expressly consented to being sued in federal court and that
constructive waiver of sovereign immunity is not permitted. Coll. Sav. Bank, 527 U.S.
at 680.

                                  III. Conclusion
       Accordingly, we affirm the judgment of the district court.
                      ______________________________




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