                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                               July 15, 2013
                                     PUBLISH                Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 THOMAS TRENT PETTIGREW,

             Plaintiff - Appellee,

 v.                                                   No. 12-6113

 STATE OF OKLAHOMA, ex rel.,
 THE OKLAHOMA DEPARTMENT
 OF PUBLIC SAFETY, a statutory
 state agency,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                   (D.C. NO. 5:12-CV-00116-L)


Kevin L. McClure, Assistant Attorney General, Oklahoma Attorney General’s
Office, Oklahoma City, Oklahoma, for Defendant - Appellant.

Scott F. Brockman (Stanley M. Ward and Barrett T. Bowers, with him on the
brief), Ward and Glass, L.L.P., Norman, Oklahoma, for Plaintiff - Appellee.


Before HARTZ, MCKAY, and O’BRIEN, Circuit Judges.


HARTZ, Circuit Judge.
      This appeal presents only one issue for consideration: whether a settlement

agreement between Thomas Trent Pettigrew and the Oklahoma Department of

Public Safety (DPS) waived the state’s “Eleventh Amendment” right not to be

sued in federal court. Although the language of the agreement is not explicit, the

agreement’s reference to bringing suit in federal court has no reasonable

construction except as a waiver. We therefore hold that there was a waiver and

affirm the district court.

I.    BACKGROUND

      In 2009 Pettigrew applied to DPS for a promotion to one of two open

positions of Field Major in the Oklahoma Highway Patrol. DPS denied the

promotion to Pettigrew, who is white, and instead promoted an African-American

and a man who, according to Pettigrew, was a friend of the DPS commissioner but

was unqualified for the position. In April and June 2009 Pettigrew filed

administrative grievances with DPS, complaining that the “Black Caucus” had

pressured the commissioner to promote an African-American officer and that he

had been denied the promotion because of his race. Aplt. App., Vol. I at 22. In

October 2009 DPS placed Pettigrew on administrative leave for the stated reason

that he was being investigated for potential media leaks concerning an unrelated

sexual-harassment complaint against DPS.

      Pettigrew filed suit against DPS in February 2010 in the United States

District Court for the Western District of Oklahoma. He alleged two claims: (1)

                                        -2-
that DPS had violated Title VII of the 1964 Civil Rights Act by retaliating against

him for filing the grievances; and (2) that DPS had negligently supervised,

trained, and retained the employees—including the commissioner—who

discriminated against him in the promotion process. The parties executed a

“General Release and Settlement Agreement” (the Agreement) in December 2010.

Id., Vol. II at 73. Among the terms of the Agreement was that the administrative

leave would be terminated and Pettigrew would return to work. One paragraph

further provided that DPS would not retaliate against Pettigrew for pursuing the

claims. And another paragraph (the Venue Provision) set forth, among other

things, the appropriate venues for resolving disputes concerning the Agreement:

      The laws of the State of Oklahoma shall govern interpretation of this
      Agreement. In the event that any litigation is commenced by either
      party to enforce the terms and conditions of the Agreement, the
      litigation will be brought in the appropriate Oklahoma court having
      jurisdiction, either state or federal, and the losing party shall pay to
      the prevailing party all reasonable attorneys’ fees and costs incurred
      by the prevailing party defending against the claim(s). However,
      prior to either party filing an action to enforce any of the terms of the
      Agreement, the party alleging a breach of the Agreement will first
      provide notice of the alleged breach to the alleged offending party,
      and provide that party thirty (30) days to reasonably cure the breach
      to the satisfaction of the party alleging a breach. If the alleged
      breach is not cured to the satisfaction of the party alleging a breach
      within the allotted 30 days, the party alleging the breach may file an
      action in the appropriate court with jurisdiction over the matter.

Id. at 76 (emphasis added).

      On January 31, 2012, Pettigrew filed a second suit against DPS in the same

federal court. He alleged that after he returned to work he received two formal

                                         -3-
letters of reprimand relating to his workplace conduct and interactions with other

employees, and he asserted that in issuing the letters DPS had employed

unprecedented procedures that violated written DPS policies. He further asserted

that the formal discipline was designed to disqualify him from future promotions

in retaliation for his pursuing the earlier discrimination claim. The complaint

alleged three claims: (1) that DPS had violated Title VII by retaliating against

Pettigrew; (2) that the alleged retaliation had breached the Agreement; and (3)

that he was entitled to a declaratory judgment that DPS had breached the

Agreement.

      The state moved to dismiss the second and third claims (which we shall call

the “state-law claims”), arguing that they are barred by sovereign immunity under

the Eleventh Amendment. Pettigrew responded that the district court could

exercise supplemental jurisdiction over the state-law claims, see 28 U.S.C.

§ 1367(a), and that the reference to federal courts in the Venue Provision waived

any Eleventh Amendment objection to federal jurisdiction. The court denied the

motion.

      The state filed a notice of appeal. Although the appeal is interlocutory (the

suit has not proceeded to final judgment), we have jurisdiction under 28 U.S.C.

§ 1291. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,

144 (1993) (order denying motion to dismiss on ground of Eleventh Amendment

immunity is a final decision appealable under the collateral-order doctrine).

                                         -4-
II.   DISCUSSION

      “We review de novo the denial of a motion to dismiss based on Eleventh

Amendment immunity.” Chamber of Commerce of U.S. v. Edmondson, 594 F.3d

742, 760 (10th Cir. 2010). The Eleventh Amendment states: “The 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.” U.S. Const. amend. XI.

      Before addressing the matter on which the parties disagree, we note some

common ground.     First, implicit in enactment of the Eleventh Amendment is that

state sovereign immunity ordinarily bars federal-court jurisdiction over private

suits against a state by citizens of the state. See Idaho v. Coeur d’Alene Tribe of

Idaho, 521 U.S. 261, 267–68 (1997) (“To respect the broader concept of

immunity, implicit in the Constitution, which we have regarded the Eleventh

Amendment as evidencing and exemplifying, we have extended a State’s

protection from suit to suits brought by the State’s own citizens.”). The sole

exceptions are (1) when Congress has abrogated the states’ immunity, as in

legislation enacted to enforce the Fourteenth Amendment; and (2) when a state

waives its immunity. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd., 527 U.S. 666, 669–70 (1999); cf. Cent. Va. Cmty. Coll. v. Katz, 546

U.S. 356 (2006) (Constitution’s Bankruptcy Clause authorizes limited

subordination of state sovereign immunity).

                                         -5-
      Second, DPS is an arm of the State of Oklahoma and therefore is treated as

the state for purposes of sovereign immunity and the Eleventh Amendment. See

Alden v. Maine, 527 U.S. 706, 756 (1999) (sovereign immunity extends to an

“arm of the State” but not to a “lesser entity” like a municipal corporation).

      Third, the federal district court has jurisdiction over Pettigrew’s claim

under Title VII, which was enacted to enforce the Fourteenth Amendment. See

Fitzpatrick v. Bitzer, 427 U.S. 445, 456–57 (1976).

      And fourth, absent the sovereign-immunity issue the supplemental-

jurisdiction statute, 28 U.S.C. § 1367, would give the district court jurisdiction to

hear Pettigrew’s breach-of-contract and declaratory-judgment claims. Section

1367(a) provides that a federal court with original jurisdiction over one claim

(such as a Title VII claim) may exercise “supplemental jurisdiction over all other

claims that are so related to claims in the action within such original jurisdiction

that they form part of the same case or controversy under Article III of the United

States Constitution.” 28 U.S.C. § 1367(a). “A claim is part of the same case or

controversy if it derives from a common nucleus of operative fact.” Price v.

Wolford, 608 F.3d 698, 702–03 (10th Cir. 2010) (brackets and internal quotation

marks omitted). That standard is satisfied here because Pettigrew premises his

claims for breach of the Agreement and declaratory judgment on the same factual

allegations as his Title VII claim.




                                          -6-
      The dispute before us arises because supplemental jurisdiction under

§ 1367 does not override the Eleventh Amendment’s bar on suing a state in

federal court. See Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 541

(2002) (“[Section] 1367(a) [does not] authorize district courts to exercise

jurisdiction over claims against nonconsenting States.”); Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 121 (1984). Pettigrew does not suggest that

any federal statute abrogates Oklahoma’s sovereign immunity with respect to his

state-law claims. Therefore, all we must resolve is whether the state waived its

immunity.

      Waiver of sovereign immunity must be knowing and voluntary, and the

“test for determining whether a State has waived its immunity from federal

jurisdiction is a stringent one.” Coll. Sav. Bank, 527 U.S. at 675 (internal

quotation marks omitted). The Supreme Court has found waiver when, for

example, a state expressly consented by statute to suit in federal court, see Port

Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 308–09 (1990), and when it

voluntarily invoked federal jurisdiction by filing suit in federal court, moving to

intervene in federal-court litigation, or removing a case to federal court, see

Lapides v. Bd. of Regents, 535 U.S. 613, 619–24 (2002). A state can likewise

enter into a contract that waives its Eleventh Amendment immunity to suits

related to the contract. See, e.g., Watson v. Texas, 261 F.3d 436, 442 (5th Cir.

2001) (settlement agreement waived state’s immunity to suit by claimants to

                                          -7-
recover settlement proceeds); see also Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d

1186, 1195, 1195 n.11 (10th Cir. 1998) (“Our conclusion [that the agreement at

issue did not indicate the state’s intent to waive immunity] does not foreclose the

possibility that a State may demonstrate an unequivocal intent to waive Eleventh

Amendment immunity by participating in a settlement.”). When a statute or other

document purportedly waives a state’s Eleventh Amendment immunity, we “will

give effect to [the waiver] only where stated by the most express language or by

such overwhelming implication from the text as will leave no room for any other

reasonable construction.” Feeney, 495 U.S. at 305 (brackets and internal

quotation marks omitted).

      Pettigrew contends that the Venue Provision of the Agreement is such a

waiver. It states: “In the event that any litigation is commenced by either party

to enforce the terms and conditions of the Agreement, the litigation will be

brought in the appropriate Oklahoma court having jurisdiction, either state or

federal . . . .” Aplt. App., Vol. II at 76 (emphasis added). Pettigrew argues that

the specific reference to federal courts unequivocally indicates the state’s intent

to waive Eleventh Amendment immunity in suits to enforce the Agreement.

      Pettigrew relies principally on Feeney, which interpreted similar language

as constituting a waiver. See 495 U.S. at 306–09. New York and New Jersey had

entered into a compact creating the Port Authority of New York and New Jersey

(the Port Authority). See id. at 301. The states passed identical statutes

                                         -8-
governing suits against the Port Authority. See id. at 302. A consent-to-suit

section in the statutes “provided that the States ‘consent to suits, actions or

proceedings of any form or nature at law, in equity or otherwise against the [Port

Authority].’” Id. at 302–03 (ellipsis omitted). And a venue section added, “‘The

foregoing consent . . . is granted upon the condition that venue in any suit, action

or proceedings against the Port Authority shall be laid within a county or a

judicial district, established by [New York or New Jersey] or by the United States,

and situated wholly or partially within the Port of New York District.’” Id. at 303

(emphasis added). The Court was unwilling to find an Eleventh Amendment

waiver in the consent-to-suit section, because “such a broadly framed provision

may . . . reflect only a State’s consent to suit in its own courts.” Id. at 306. The

venue provision, however, “suffice[d] to resolve any ambiguity contained in the

States’ general consent to suit provision by expressly indicating that the States’

consent to suit extends to suit in federal court.” Id. at 307. The Court rejected

the notion that it should not look to a venue provision to elucidate the scope of

the states’ consent to suit. See id. at 307–08. And it emphasized the absence of

any reasonable interpretation of the statutory language other than as a consent to

suit in federal court. See id. at 308.

      We agree with Pettigrew that Feeney is controlling. As in Feeney, the

Venue Provision does not explicitly grant consent to be sued in federal court. In

both cases any competent draftsman could have found much clearer language to

                                          -9-
convey the thought. But the Supreme Court in Feeney held that the venue section

of the Port Authority statutes satisfied the requirement of “such overwhelming

implication from the text as will leave no room for any other reasonable

construction,” id. at 305 (brackets and internal quotation marks omitted), simply

because there would be no other reasonable purpose for the section to refer to

federal courts. Any alternative construction of the statutory provision would have

rendered superfluous the federal-court language. As Feeney summarized:

“Petitioner essentially presents the choice between giving the venue provision its

natural meaning and giving the provision no meaning at all. Charged with giving

effect to the statute, we do not find the choice to be a difficult one.” Id. at 308.

      So here. There is no question that the state consented to being sued under

the Agreement, at least in state court. Under Oklahoma law the state broadly

consents to suit to enforce the terms of a contract entered into by the state. See

State Bd. of Pub. Affairs v. Principal Funding Corp., 542 P.2d 503, 506 (Okla.

1975) (“We hold that where a person or entity enters into a valid contract with the

proper State officials and a valid appropriation has been made therefor, the State

has consented to being sued and waived its governmental immunity to the extent

of its contractual obligations and such contractual obligations may be enforced

against the State in an ordinary action at law.”). And the express terms of the

Agreement reflect this rule; the final sentence of the Venue Provision provides

that a party not satisfied that an alleged breach has been cured “may file an action

                                          -10-
in the appropriate court.” Aplt. App., Vol. II at 76. The only unsettled question

would be whether the state could be sued in federal court for breach of the

Agreement. The Venue Provision answered that question with the words “the

appropriate Oklahoma court having jurisdiction, either state or federal.” Aplt.

App., Vol. II at 76 (emphasis added).

      The state focuses on the word appropriate in the Venue Provision language

allowing suit to be “brought in the appropriate Oklahoma court having

jurisdiction, either state or federal.” Id. Noting that Eleventh Amendment

sovereign immunity protects states from suits in federal court, it insists that “[t]he

only ‘appropriate’ Oklahoma court having jurisdiction over the state law claims in

this case would be Oklahoma’s state courts. . . .” 1 Aplt. Reply Br. at 5 (emphasis

omitted). That is, it believes a court is “appropriate” only if the Eleventh

Amendment poses no impediment to the court’s jurisdiction, and therefore no

federal court could be “appropriate.” The state is saying that even though the

Venue Provision allows suits to enforce the Agreement to be “brought in the

appropriate Oklahoma court having jurisdiction, either state or federal,” the word

appropriate voids the words or federal.


      1
        The full sentence in the state’s brief is: “The only ‘appropriate’
Oklahoma court having jurisdiction over the state law claims in this case would
be Oklahoma’s state courts since there is no diversity jurisdiction alleged by the
parties.” Aplt. Reply Br. at 5 (emphasis added and original emphasis omitted).
The emphasized language baffles us, because the clear language of the Eleventh
Amendment rejects diversity jurisdiction in suits against states.

                                         -11-
       We disagree with this reading of the provision. No rational drafter would

write such a sentence. In Oklahoma, contracts should be construed “‘so as to give

effect to every part, if reasonably practicable . . . .’ Okla. Stat. tit. 15, § 157

(2011).” Scungio v. Scungio, 291 P.3d 616, 622 n.2 (Okla. 2012). Rejecting the

state’s interpretation is not a difficult choice. The language “or federal” clearly

signals that the word appropriate must be read as not taking Eleventh Amendment

immunity into account. The word refers only to proper subject-matter and

personal jurisdiction and, perhaps, venue. Because a federal court can have

supplemental jurisdiction over a state-law contract claim, see 28 U.S.C.

§ 1367(a), a federal court can be an appropriate court.

       The state also points to another provision of the Agreement, which states,

“This Agreement does not waive any rights or claims that [Pettigrew] or [the

state] may have which arise after the date [Pettigrew] signs this Agreement . . . .”

Aplt. App., Vol. II at 74. It argues that this provision reserved its right to invoke

immunity because the right did not arise until this cause of action accrued, which

occurred after Pettigrew signed the Agreement. We think it too much of a stretch

to say that the state’s sovereign immunity does not “arise” until a cause of action

against the state accrues. But in any event, we still must avoid construing one

provision of a contract as voiding the language of another provision. We cannot

read this provision as overriding the Venue Provision.




                                           -12-
      One might argue (although the state does not) that the reference in the

Venue Provision to “either state or federal” courts could be read merely as

acknowledging that the Agreement could be enforced in federal court if the state’s

immunity were not an obstacle for some reason independent of anything in the

Agreement. If that is the meaning, however, why include the language? True, the

state could waive its Eleventh Amendment immunity by other means, such as by

removing a suit to federal court. But we firmly doubt that the parties would

include a provision allowing suit in federal court only if the state happened to

prefer federal court at some point in the future. Why would the state need such a

provision, and why would Pettigrew agree to such a one-sided rule? And the

“state or federal” language would be pointless if it simply recited the venues

where a suit could be brought anyway.

      Moreover, the Port Authority could have offered the same interpretation for

the statutory language in Feeney (that is, it could have argued that the language,

“venue . . . shall be laid within a county or a judicial district, established by [New

York or New Jersey] or by the United States,” 495 U.S. at 303, simply allowed

venue in federal court if a state consented to federal jurisdiction in a particular

case). Yet none of the courts addressing the issue discussed this possible

interpretation. Nor did anyone present to the Supreme Court any construction of

the statutory language that the Court thought could reasonably give meaning to

the reference to federal courts (other than as a waiver). See id. at 308 (there was

                                          -13-
“no ‘reasonable construction’ that might be given to the venue provision’s phrase,

‘judicial district, established by the United States,’ other than that the States

consented to suit in federal court” (citation and ellipses omitted)); id. (“the phrase

cannot reasonably be construed as an ineffectual attempt to limit venue for suits

for which Congress has abrogated the States’ immunity”). Accordingly, we hold

that the Venue Provision waives Oklahoma’s Eleventh Amendment immunity for

suits to enforce the Agreement.

III.   CONCLUSION

       We AFFIRM the district court’s denial of the state’s motion to dismiss.




                                          -14-
