                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-1770
                         ___________________________

Jason Farrell McGehee; Stacey Eugene Johnson; Bruce Earl Ward; Terrick Terrell
                         Nooner; Don William Davis

                       lllllllllllllllllllllPlaintiffs - Appellees

                                           v.

                 Nebraska Department of Correctional Services

                       lllllllllllllllllllllDefendant - Appellant

                              ------------------------------

 State of Alabama; State of Arkansas; State of Georgia; State of Indiana; State of
 Louisiana; State of Idaho; State of Oklahoma; State of South Carolina; State of
                      Texas; State of Utah; State of Missouri

                  lllllllllllllllllllllAmici on Behalf of Appellant(s)
                                        ____________

                    Appeal from United States District Court
                     for the District of Nebraska - Lincoln
                                 ____________

                              Submitted: June 16, 2020
                               Filed: August 6, 2020
                                   ____________

Before KELLY, ERICKSON, and STRAS, Circuit Judges.
                           ____________
ERICKSON, Circuit Judge.

       Appellees are Arkansas prisoners who are or were on death row for capital
murder convictions. They commenced a lawsuit in the Eastern District of Arkansas
alleging, among other claims, that Arkansas’s method of execution violated the
Eighth Amendment.1 In order to obtain support for their claim, they sought
information about the existence of known and available alternatives that would
significantly reduce a substantial risk of severe pain. As part of their efforts to obtain
the necessary information, they served subpoenas on several state correctional
departments, including one on the Nebraska Department of Correctional Services
(“NDCS”). NDCS objected, asserting the subpoena violated Nebraska’s right to
sovereign immunity under the Eleventh Amendment. The district court,2 relying on
In re Missouri Dep’t of Nat. Res. (“Missouri DNR”), 105 F.3d 434 (8th Cir. 1997),
determined that the Eleventh Amendment did not categorically bar appellees’
subpoena. It also found that NDCS had failed to demonstrate the modified subpoena
requests infringed on the autonomy of the State of Nebraska.

      On appeal, NDCS renews its assertion that the Eleventh Amendment
categorically bars Article III jurisdiction over a third-party subpoena served on an
unconsenting state. NDCS submitted a letter pursuant to Rule 28(j) of the Federal
Rules of Appellate Procedure one day before the scheduled argument contending the




      1
       After briefing was complete and before oral argument, the district court ruled
against appellees on their Eighth Amendment claims. McGehee v. Hutchinson, Case
No. 4:17-cv-00179 KGB, __ F.Supp.3d __, 2020 WL 2841589 (E.D. Ark. May 31,
2020).
      2
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.

                                           -2-
case has become moot in light of the district court’s decision rejecting appellees’
Eighth Amendment claims in the underlying Arkansas case.3

       “A court faced with more than one jurisdictional issue may decide these
jurisdictional questions in any order.” In re AFY, 734 F.3d 810, 816 (8th Cir. 2013).
A court may decide to bypass a “murky” issue to reach a question that disposes of the
case. See In re Athens/Alpha Gas Corp., 715 F.3d 230, 235 (8th Cir. 2013)
(concluding it is permissible to bypass a rule of statutory jurisdiction to reach a
preclusion question that disposes of a case); see also Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 100 (1998) (noting that while “hypothetical jurisdiction” has
never been approved, it must be acknowledged that some cases “have diluted the
absolute purity of the rule that Article III jurisdiction is always an antecedent
question”). Because the district court properly determined that Missouri DNR
disposes of the sovereign immunity issue, we decline to address the “murky” issue of
mootness.

       In Missouri DNR this Court stated: “There is simply no authority for the
position that the Eleventh Amendment shields government entities from discovery in
federal court.” 105 F.3d at 436. Subsequently, in Alltel Commc’ns, LLC v. DeJordy,
this Court distinguished Missouri DNR and declined to predict how the Supreme
Court might decide a case involving “disruptive third-party subpoenas that would
clearly be barred in a State’s own courts.” 675 F.3d 1100, 1104–05 (8th Cir. 2012).
Although Missouri DNR involved a petition for a writ of mandamus, we find the
breadth of the Court’s decision controlling and applicable in this de novo review
context as well. Because we are bound by the prior panel decision, we affirm the
district court’s decision.

      3
         The use of a Rule 28(j) letter to raise mootness is procedurally irregular. The
usual practice is to raise the issue by motion. By raising the issue in a Rule 28(j)
letter, the issue was presented without full briefing by both parties. In light of our
disposition, the procedural irregularity is inconsequential in this case.

                                          -3-
STRAS, Circuit Judge, concurring.

       I have doubts whether, under basic sovereign-immunity principles, a state may
be haled into federal court solely for the purpose of answering a third-party subpoena.
See Alltel Commc’ns, LLC v. DeJordy, 675 F.3d 1100, 1105–06 (8th Cir. 2012)
(prohibiting this practice under the common-law doctrine of tribal immunity); see also
Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1154 (10th Cir. 2011) (“The
scope of tribal immunity, however, is more limited [than state sovereign
immunity].”). But because we approved of this practice in a nearly identical case, In
re Mo. Dep’t of Nat. Res., 105 F.3d 434, 436 (8th Cir. 1997), I reluctantly join the
court’s opinion.

                       ______________________________




                                         -4-
