Tenth Circuit Clarifies: No Implied Waiver of Eleventh Amendment Immunity by Litigation Silence; Post‑Judgment Amendment Requires Prior Vacatur

Introduction

In Merryfield v. State of Kansas, the United States Court of Appeals for the Tenth Circuit affirmed the dismissal of a pro se civil-rights action brought under 42 U.S.C. § 1983 by Dustin J. Merryfield, a civilly committed detainee under the Kansas Sexually Violent Predators Act (KSVPA). Merryfield alleged First and Fourteenth Amendment violations tied to the KSVPA annual review process and sought declaratory and injunctive relief against the State of Kansas.

The case presented two practical issues of recurring importance in federal litigation against states: (1) whether a state’s failure to raise Eleventh Amendment immunity in its initial Rule 12(b)(6) motion could amount to a waiver of that immunity; and (2) whether a plaintiff is entitled to amend a complaint after dismissal without first obtaining relief from the judgment. The Tenth Circuit answered both in the negative, emphasizing the strictness of Eleventh Amendment waiver doctrine and the procedural preconditions for post‑judgment amendment.

Although Merryfield also sought to press a substantive argument—contending he was denied the right to effective assistance of counsel in the KSVPA annual review—the court explained that it could not reach that issue because the district court lacked jurisdiction to begin with. As a result, merits rulings preceding the jurisdictional dismissal were a “nullity.”

Summary of the Judgment

The Tenth Circuit (Judges McHugh, Kelly, and Federico; opinion by Judge Kelly) affirmed the district court’s dismissal for lack of subject-matter jurisdiction under the Eleventh Amendment and affirmed the denial of post‑judgment leave to amend:

• Eleventh Amendment: Congress has not abrogated state sovereign immunity for § 1983 claims, the State of Kansas did not unequivocally consent to suit, and the “prospective relief against a state official” pathway was unavailable because the defendant was the State itself. Accordingly, the suit was barred.
• No Implied Waiver: Waiver of Eleventh Amendment immunity requires an unequivocal expression of consent; it cannot be inferred from litigation silence or omission (such as failing to raise immunity in a first Rule 12(b)(6) motion).
• Successive Rule 12 Motions: A jurisdictional objection can be raised at any time; therefore, the district court properly entertained the State’s later Rule 12(b)(1) motion.
• Post‑Judgment Amendment: Because judgment had been entered and Merryfield did not first seek relief under Rule 59(e) or Rule 60(b), the district court did not abuse its discretion by denying leave to amend.
• Merits Not Reached: Any earlier merits analysis was superseded by the jurisdictional dismissal and, as a matter of law, was a nullity. The court therefore did not consider the “effective assistance of counsel” claim.

Analysis

Precedents Cited and Their Influence

• Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984): Reaffirms that the Eleventh Amendment bars federal suits against a state and its agencies, absent valid abrogation or waiver. This is the doctrinal bedrock for the jurisdictional dismissal here.
• Frank v. Lee, 84 F.4th 1119 (10th Cir. 2023), cert. denied, 144 S. Ct. 1349 (2024): Recognizes the Ex parte Young exception allowing suits against state officials in their official capacities for prospective relief. The court invoked Frank to explain the available pathway Merryfield did not use—suing a responsible state official rather than the State itself.
• Lane v. Pena, 518 U.S. 187 (1996) and Edelman v. Jordan, 415 U.S. 651 (1974): Establish the “unequivocal expression” standard: waiver of sovereign immunity must be stated by the most express language or leave no room for reasonable contrary construction. These authorities foreclosed any argument that Kansas implicitly waived immunity through litigation conduct.
• Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221 (10th Cir. 2001): Sets the standard of review—de novo for subject-matter jurisdiction, clear error for jurisdictional facts—applied in affirming the dismissal.
• Cooper v. Shumway, 780 F.2d 27 (10th Cir. 1985) (per curiam) and Moothart v. Bell, 21 F.3d 1499 (10th Cir. 1994): Provide the abuse-of-discretion framework for reviewing the denial of post‑judgment leave to amend and define what constitutes an abuse of discretion (arbitrary, capricious, or manifestly unreasonable).
• Hunt v. Lamb, 427 F.3d 725, 727 n.1 (10th Cir. 2005) and Cunningham v. BHP Petroleum Group Brit. PLC, 427 F.3d 1238, 1245 (10th Cir. 2005): Clarify that orders entered without jurisdiction are a “nullity” and courts may not exercise authority without subject-matter jurisdiction. These cases explain why earlier merits rulings could not be considered on appeal.
• Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084 (10th Cir. 2005): Establishes that a party seeking to amend after judgment must first obtain relief from the judgment (Rule 59(e) or 60(b)), constraining post‑judgment use of Rule 15(a).
• Bender v. Williamsport Area School District, 475 U.S. 534 (1986) and Arbaugh v. Y&H Corp., 546 U.S. 500 (2006): Stress the court’s independent obligation to ensure subject-matter jurisdiction and that jurisdictional objections can be raised at any time, legitimizing the State’s later Rule 12(b)(1) motion.
• Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008): Notes that pro se pleadings are liberally construed, but courts do not act as counsel for the litigant—a helpful reminder regarding pleading defects in the initial complaint.

Legal Reasoning

The court’s analysis proceeds in three steps:

1. Eleventh Amendment Bar and Lack of Waiver/Abrogation. The Eleventh Amendment generally bars suits against states in federal court for any type of relief. There are three recognized routes around the bar:
   • Congressional abrogation: Not applicable for § 1983 claims.
   • State waiver/consent: Requires the most express language or overwhelming implications of consent. Kansas provided neither.
   • Ex parte Young prospective relief: Permits suits against state officials, not the state as such; Merryfield sued the State of Kansas itself.
   Because none of the exceptions applied, the district court lacked subject-matter jurisdiction, and the case had to be dismissed.
2. No Implied Waiver from Litigation Conduct. The district court initially inferred waiver from the State’s failure to argue, in its first Rule 12(b)(6) motion, that Merryfield should have sued a particular state official. On reconsideration, the district court correctly concluded—and the Tenth Circuit affirmed—that waiver cannot be inferred from such silence. Consistent with Lane and Edelman, only an unequivocal, express consent or its overwhelming textual equivalent suffices. The State’s later Rule 12(b)(1) motion was therefore proper and dispositive.
3. Post‑Judgment Amendment Requires Vacatur. After dismissal, Merryfield sought leave to amend, but he did not first move under Rule 59(e) or 60(b) to set aside the judgment. Under Tool Box, post‑judgment amendment is constrained by the need to reopen the case first. Denial of leave to amend under these circumstances was not an abuse of discretion. The court also emphasized that federal courts must police their jurisdiction sua sponte (Bender; Arbaugh), validating the district court’s consideration of the State’s successive Rule 12 motion.

Impact and Prospective Significance

While designated as nonprecedential, the decision is persuasive and clarifies several practice-critical points in the Tenth Circuit:

• No implied waiver of sovereign immunity: Litigants cannot rely on a state’s failure to raise Eleventh Amendment defenses at the earliest opportunity as a waiver. Counsel must assume the defense remains available unless the state expressly and unequivocally consents.
• Pleading pathway for constitutional challenges: Plaintiffs challenging state-run civil commitment regimes (like KSVPA) should ordinarily proceed under the Ex parte Young framework by suing the appropriate state official in his or her official capacity for prospective relief, and by carefully tailoring claims to allege ongoing violations of federal law.
• Section 1983 claims against states remain barred: The opinion reinforces that § 1983 actions cannot be maintained against a state itself due to both the Eleventh Amendment and the absence of abrogation.
• Jurisdiction first—merits later (if ever): Courts must resolve subject-matter jurisdiction before reaching the merits. Any merits ruling issued without jurisdiction is void. Plaintiffs should be prepared to address jurisdiction at the outset.
• Successive Rule 12 motions raising jurisdiction are permissible: Defendants may raise Eleventh Amendment immunity later in the litigation, including on appeal, and courts must entertain those objections whenever raised.
• Post‑judgment amendments require vacatur: After entry of judgment, plaintiffs cannot simply amend as of right or by routine motion under Rule 15(a); they must first obtain relief under Rule 59(e) or 60(b). This is a crucial procedural safeguard against re-pleading around a final judgment.
• Practical implications for KSVPA and similar regimes: Civilly committed individuals seeking prospective changes to review procedures should identify the state officials responsible for administering the challenged process and frame claims to fit Ex parte Young. Damages claims against the state or state agencies remain barred.

Complex Concepts Simplified

• Eleventh Amendment Immunity: A constitutional protection that prevents states from being sued in federal court without their consent. Think of it as a jurisdictional shield: unless an exception applies, the federal court must dismiss the case.
• Abrogation vs. Waiver:
  • Abrogation: Congress expressly removes states’ immunity for certain claims (e.g., in some civil-rights statutes enacted under § 5 of the Fourteenth Amendment). There is no abrogation for § 1983.
  • Waiver: The state itself clearly and unequivocally agrees to be sued. It cannot be inferred from a state’s silence or litigation choices; it must be unmistakable.
• Ex parte Young Doctrine: A legal fiction allowing suits for prospective (forward-looking) relief against state officials, not the state, to stop ongoing violations of federal law. It is the principal vehicle to challenge unconstitutional state practices in federal court.
• Rule 12(b)(1) vs. Rule 12(b)(6):
  • 12(b)(1): Dismissal for lack of subject-matter jurisdiction (e.g., Eleventh Amendment bar). The court has no power to hear the case.
  • 12(b)(6): Dismissal for failure to state a claim. Here, the court has jurisdiction but concludes the complaint is legally insufficient.
• Orders Entered Without Jurisdiction Are a “Nullity”: If the court lacks subject-matter jurisdiction, any rulings on the merits carry no legal force. The case must be dismissed, and earlier merits discussions cannot be revived on appeal.
• Post‑Judgment Amendment: After a final judgment is entered, a plaintiff must first get that judgment set aside (Rule 59(e) or 60(b)) before the court can consider amendments to the pleadings under Rule 15(a).
• Standard of Review:
  • De novo for subject-matter jurisdiction (the appellate court decides the issue anew).
  • Abuse of discretion for denial of post‑judgment leave to amend (a highly deferential standard).

Conclusion

Merryfield v. State of Kansas reinforces foundational principles governing federal litigation against states. The Tenth Circuit emphasized that Eleventh Amendment immunity is not lightly waived: it cannot be forfeited through litigation silence or omission and can be raised at any time. Plaintiffs aiming to challenge state practices—such as procedures under the KSVPA—must carefully structure suits under Ex parte Young, targeting appropriate officials and seeking prospective relief for ongoing violations. Equally, once a case is dismissed and judgment entered, amendment is not available without first obtaining vacatur under Rule 59(e) or 60(b).

The decision carries practical, if formally nonprecedential, weight. It underscores the primacy of jurisdictional analysis in federal court, the strict standards for sovereign-immunity waiver, and the procedural guardrails that govern post‑judgment litigation. For litigants and courts alike, the message is clear: address jurisdiction first, frame relief through the proper parties, and respect the finality of judgments unless properly reopened.