Zenon McHugh v. Illinois Department of Transportation

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3397
Z ENON M CHUGH ,
Plaintiff-Appellant,
v.
I LLINOIS DEPARTMENT OF
TRANSPORTATION , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17-cv-8658 — Charles P. Kocoras, Judge.
____________________
A RGUED O CTOBER 24, 2022 — DECIDED D ECEMBER 14, 2022
____________________
Before HAMILTON , S T. EVE, and K IRSCH , Circuit Judges.
ST. EVE, Circuit Judge. After the Illinois Department of
Transportation (“IDOT”) terminated Zenon McHugh’s em-
ployment, he sued seven individuals under federal law and
sued IDOT under an Illinois statute. IDOT defended on the
ground that sovereign immunity under the Eleventh Amend-
ment barred the suit. The district court held that McHugh’s
claim against IDOT could proceed in state court but not

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2 No. 21-3397
federal court, and it entered judgment on the merits. Entering
a final judgment on this count was an error. If a defendant
enjoys Eleventh Amendment immunity from a claim and in-
vokes that immunity, it deprives a federal court of jurisdiction
over the claim. Thus, we modify the district court’s judgment
on the state law claim to a dismissal for lack of jurisdiction.
I. Background
McHugh began working for IDOT’s Emergency Traffic Pa-
trol (“ETP”) unit in 2001, and in 2012 he attained a manage-
ment position in which he trained and ensured that subordi-
nates performed their jobs properly. An internal investigation
conducted by the Office of the Executive Inspector General
(“OEIG”) revealed that some ETP employees had failed to
perform their duties and submitted falsified records and that
some managers—including McHugh—had failed to ade-
quately supervise the employees who worked under them.
OEIG recommended that McHugh be terminated, and after
disciplinary procedures, IDOT terminated McHugh on Sep-
tember 14, 2016. McHugh filed a grievance related to his ter-
mination, but his union declined to arbitrate it.
McHugh then filed this lawsuit. His operative complaint
asserted 15 causes of action: one claim each for procedural
and substantive due process violations against seven individ-
uals involved in his termination and one claim against IDOT
under an Illinois statute, the State Officials and Employees
Ethics Act (the “Ethics Act”), 5 ILCS 430. The district court had
jurisdiction over the federal claims under 28 U.S.C. § 1343,
and McHugh asserted that the court had supplemental juris-
diction over the Ethics Act claim under 28 U.S.C. § 1367. IDOT
argued that the court lacked jurisdiction due to its Eleventh
Amendment sovereign immunity.

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No. 21-3397 3
After discovery, the defendants moved for summary judg-
ment, and the district court granted their motion. The court
held that the due process claims against the individual de-
fendants failed on the merits. Although the district court had
decided to enter judgment on all of McHugh’s federal claims,
it did not consider whether to relinquish supplemental juris-
diction over the Ethics Act claim. See 28 U.S.C. § 1367(c). In-
stead, the court found that IDOT was immune under the Elev-
enth Amendment and that Illinois had waived its immunity
to suits under the Ethics Act only in state court, not federal
court. See 5 ILCS 430/15-25 (“The circuit courts of this State
shall have jurisdiction to hear cases brought under [the Ethics
Act].”). Thus, the district court held that the Eleventh Amend-
ment barred McHugh’s Ethics Act claim. It entered summary
judgment—that is, judgment on the merits—on the claim.
McHugh moved to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e), arguing that the district
court should have declined to exercise supplemental jurisdic-
tion over his Ethics Act claim. McHugh asked the court to
modify its judgment on this claim to a dismissal without prej-
udice for lack of jurisdiction, to allow him to pursue the claim
in state court. The district court denied the motion, noting that
it was not required to relinquish supplemental jurisdiction
and finding that “the balance of factors weighed heavily in
favor of addressing McHugh’s claims in one forum.”
McHugh appealed, but he does not contest the entry of
summary judgment on his federal claims or the district
court’s finding that IDOT is immune under the Eleventh
Amendment. He challenges only the district court’s refusal to
relinquish supplemental jurisdiction over his Ethics Act
claim, relying on the general rule that “when all federal claims

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4 No. 21-3397
are dismissed before trial, the district court should relinquish
jurisdiction over pendent state-law claims rather than resolv-
ing them on the merits.” Lalowski v. City of Des Plaines, 789 F.3d
784, 794 (7th Cir. 2015) (quoting Wright v. Associated Ins. Cos.
Inc., 29 F.3d 1244, 1251 (7th Cir. 1994)). He argues that no spe-
cial circumstances favored resolving all claims in one forum,
see Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015), and
therefore the district court abused its discretion by retaining
supplemental jurisdiction over his Ethics Act claim.
We do not reach the issue of the district court’s discretion,
however, because we start and end with subject-matter juris-
diction. When it applies, the Eleventh Amendment deprives
federal courts of jurisdiction over claims against immune de-
fendants. The district court therefore lacked the power to en-
ter summary judgment on McHugh’s Ethics Act claim.
II. Discussion
The Supreme Court’s observation that “jurisdiction is a
word of many, too many meanings,” Biden v. Texas, 142 S. Ct.
2528, 2540 (2022) (internal alterations omitted) (quoting Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998)), rings
especially true about the Eleventh Amendment. The parties
agree that IDOT enjoys sovereign immunity from McHugh’s
Ethics Act claim, but they are unsure about the effect of that
immunity. Their uncertainty is understandable. Because “ju-
risdictional” has more than one meaning, we can accurately
say both that the Eleventh Amendment is jurisdictional and
that it is non-jurisdictional, and we have done just that in past
opinions.

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No. 21-3397 5
A. Eleventh Amendment Framework
The Eleventh Amendment speaks in terms of jurisdiction.
It provides that “[t]he Judicial power of the United States shall
not be construed to extend” to suits by individuals against
states.1 The Supreme Court has confirmed that “the Eleventh
Amendment is jurisdictional in the sense that it is a limitation
on [a] federal court’s judicial power ….” Calderon v. Ashmus,
523 U.S. 740, 745 n.2 (1998) (citations omitted). To assert Elev-
enth Amendment immunity is to “deny[] that the ‘Judicial
power of the United States’”—that is, federal courts’ subject-
matter jurisdiction—“extends to the case at hand.” Lapides v.
Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 624 (2002)
(quoting U.S. Const. amend. XI). Because it limits federal
courts’ jurisdiction, Eleventh Amendment immunity “can be
raised at any stage of the proceedings,” Calderon, 523 U.S. at
745 n.2, and the failure to raise the immunity as a defense in
the district court does not constitute waiver. See Patsy v. Bd. of
Regents of the State of Fla., 457 U.S. 496, 515 n.19 (1982).
But while Eleventh Amendment immunity shares some
characteristics with Article III’s limitations on federal courts’
subject-matter jurisdiction, it also has important differences.
See Calderon, 523 U.S. at 745 n.2 (The Eleventh Amendment “is
not coextensive with the limitations on judicial power in Arti-
cle III.” (citations omitted)). Unlike a question bearing on
1 “While the Amendment by its terms does not bar suits against a State
by its own citizens, th[e Supreme] Court has consistently held that an un-
consenting State is immune from suits brought in federal courts by her
own citizens as well as by citizens of another State.” Edelman v. Jordan, 415
U.S. 651, 662–63 (1974) (citations omitted).

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6 No. 21-3397
subject-matter jurisdiction, a court may consider some issues
before deciding whether sovereign immunity applies:
Questions of jurisdiction, of course, should be given
priority—since if there is no jurisdiction there is no au-
thority to sit in judgment of anything else. … We none-
theless have routinely addressed before the question
whether the Eleventh Amendment forbids a particular
statutory cause of action to be asserted against States,
the question whether the statute itself permits the cause
of action it creates to be asserted against States ….
Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S.
765, 798–99 (2000) (citations omitted). And while subject-mat-
ter jurisdiction can never be waived, e.g., Gonzalez v. Thaler,
565 U.S. 134, 141 (2012), a state may waive its sovereign im-
munity by, for example, consenting to the removal of a case
from state to federal court. Lapides, 535 U.S. at 618, 624.
These cases demonstrate that the Eleventh Amendment is
not “jurisdictional” in the same way as Article III’s case-or-
controversy requirement. See, e.g., FEC v. Cruz, 142 S. Ct. 1638,
1646 (2022). But the Eleventh Amendment is “jurisdictional”
in the sense that a defendant invoking its sovereign immunity
deprives a federal court of jurisdiction over the claims against
that defendant. E.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978)
(per curiam). With the different meanings of “jurisdictional”
in mind, we turn to our Eleventh Amendment caselaw.
B. Seventh Circuit Caselaw
Our cases referring to the Eleventh Amendment as “juris-
dictional” explain that the Amendment deprives federal
courts of jurisdiction when its immunity applies. In Feldman
v. Ho, we called sovereign immunity a “jurisdictional

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No. 21-3397 7
defense”—an argument that the present action was “a suit
against the state, and thus foreclosed in federal court by the
eleventh amendment.” 171 F.3d 494, 498 (7th Cir. 1999); see
also Ruehman v. Sheahan, 34 F.3d 525, 527 (7th Cir. 1994) (call-
ing the Amendment “a restriction on the jurisdiction of the
federal courts”). We reiterated that we lack jurisdiction over
claims against immune defendants in Sorrentino v. Godinez,
where the district court recognized that sovereign immunity
barred the plaintiffs’ claims but erred by dismissing those
claims with prejudice. 777 F.3d 410, 415 (7th Cir. 2015). Be-
cause “[a] court that lacks subject matter jurisdiction cannot
dismiss a case with prejudice,” Murray v. Conseco, Inc., 467
F.3d 602, 605 (7th Cir. 2006) (citation omitted), we held that
the dismissal based on Eleventh Amendment immunity
“should have been without prejudice.” Sorrentino, 777 F.3d at
415 (citing Murray, 467 F.3d at 605).
Conversely, our references to the Eleventh Amendment as
“non-jurisdictional” reflect that it is not a true limitation on
federal courts’ subject-matter jurisdiction. In Kennedy v. Na-
tional Juvenile Detention Association, we stated that “[s]ince the
immunity granted by the Eleventh Amendment may be
waived and matters of subject matter jurisdiction may not, the
Eleventh Amendment immunity is not jurisdictional.” 187
F.3d 690, 696 (7th Cir. 1999); see also Floyd v. Thompson, 227
F.3d 1029, 1035 (7th Cir. 2000) (canvassing ways in which the
Amendment does not act as a strict subject-matter jurisdiction
limitation); Endres v. Ind. State Police, 349 F.3d 922, 924–25 (7th
Cir. 2003) (analyzing whether a statutory cause of action ex-
ists before considering Eleventh Amendment immunity, as
permitted by Vermont Agency). Likewise, when we called Elev-
enth Amendment immunity a “non-jurisdictional defense,”
we used “non-jurisdictional” as a synonym for “waivable.”

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8 No. 21-3397
See Ind. Prot. & Advoc. Servs. v. Ind. Fam. & Soc. Servs. Admin.
(“IPAS”), 603 F.3d 365, 370–71 (7th Cir. 2010) (en banc). While
rehearing IPAS en banc, we noted that the panel had raised
the issue of sovereign immunity for the first time, then stated:
The Eleventh Amendment is unusual in that it does not
strictly involve subject matter jurisdiction and is thus
waivable, but a court may raise the issue itself. If the
panel had not chosen to raise the Eleventh Amendment
issue, this non-jurisdictional defense would have been
forfeited. Because the panel opened the door, however,
we address the defense.
Id. (citations omitted). We analyzed the defendants’ immun-
ity, concluded that two were immune, and “modif[ied] the
judgment to remove the[m] … as named defendants.” Id. at
372. Although we called the immunity “non-jurisdictional,”
our full discussion of the Eleventh Amendment in IPAS shows
that we lack jurisdiction over immune defendants.2
2 Some of the confusion relating to the jurisdictional status of Eleventh
Amendment immunity arises out of two nonprecedential orders that mis-
read IPAS’s statement that the Eleventh Amendment is a “non-jurisdic-
tional defense” to mean that a federal court has the power to enter judg-
ment on the merits on a claim against an immune defendant. See Mutter v.
Rodriguez, 700 F. App’x 528, 531 (7th Cir. 2017) (per curiam) (“In dismiss-
ing this suit as barred by the Eleventh Amendment, the district court
treated the dismissal as jurisdictional. But a dismissal based on that
amendment is on the merits and therefore with prejudice.”); Cooper v. Ill.
Dep’t of Hum. Servs., 758 F. App’x 553, 554 (7th Cir. 2019) (per curiam)
(“[B]ecause the Eleventh Amendment does not curtail subject-matter ju-
risdiction, we modify the district court’s judgment to reflect a dismissal
for failure to state a claim with prejudice ….”). As we have explained, this
understanding is incorrect. A federal court cannot enter judgment on the
merits when Eleventh Amendment immunity applies. See Sorrentino, 777

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No. 21-3397 9
C. Application
We now turn to the effect of IDOT’s immunity on
McHugh’s Ethics Act claim. The parties agree that IDOT is
immune from suit in federal court under the Ethics Act, IDOT
has invoked its immunity throughout the litigation, and the
district court found that IDOT was immune. Once the court
made that finding, it was obligated to dismiss IDOT as a de-
fendant for lack of jurisdiction. See Sorrentino, 777 F.3d at 415.
Instead, the district court erred by entering judgment on the
merits on the Ethics Act claim. We correct that error by modi-
fying the judgment to a dismissal without prejudice for lack
of jurisdiction.
IDOT argues that we can affirm the district court’s entry
of summary judgment based on res judicata. IDOT contends
that an Illinois court applying See v. Illinois Gaming Board, 170
N.E.3d 195 (Ill. App. Ct. 2020), would hold that McHugh’s
Ethics Act claim is barred in state court because he initially
attempted to bring it in federal court. But even if we had ju-
risdiction over the Ethics Act claim, we would not predict
what another court might decide about res judicata because
“the court rendering the first judgment does not get to deter-
mine that judgment’s effect; the second court is entitled to
make its own decision ….” Midway Motor Lodge of Elk Grove v.
Innkeepers’ Telemanagement & Equip. Corp., 54 F.3d 406, 409 (7th
Cir. 1995).
We recognize that IDOT would prefer we resolve this case
on the merits now, but more is at stake here than the parties’
F.3d at 415. Mutter and Cooper were therefore wrong to modify these judg-
ments to dismissals with prejudice.

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10 No. 21-3397
interests. A federal court acting without subject-matter juris-
diction violates federalism and separation-of-powers princi-
ples underlying our constitutional system. “Jurisdiction is
power to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the fact
and dismissing the cause.” Steel Co., 523 U.S. at 94 (quoting Ex
parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). That is what
we must do here.
III. Conclusion
Because IDOT enjoys Eleventh Amendment sovereign im-
munity from suit in federal court under the Ethics Act and it
invoked its immunity, the district court lacked jurisdiction
over that claim. Therefore, we modify the district court’s entry
of judgment on McHugh’s Ethics Act claim to a dismissal
without prejudice for lack of jurisdiction.

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