Michael F. Henry v. United States of America

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 19, 2023*
Decided, January 20, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-1841
MICHAEL F. HENRY,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, et al.,
Defendants-Appellees.
Appeal from the United States
District Court for the North-
ern District of Illinois, Eastern
Division.
No. 22 CV 01091
John J. Tharp, Jr., Judge.
O R D E R
Michael Henry filed suit in a state court of Illinois against three federal prosecu-
tors (the United States Attorneys for each of the judicial districts in Illinois) and several
other defendants. He asked for a judgment compelling the prosecutors to file criminal
or civil suits to enforce some state laws that govern bidding for public contracts. The
prosecutors removed the case to federal court under 28 U.S.C. §1442(a)(1). The district
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).

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No. 22-1841 Page 2
court eventually remanded all claims against state officials. (That aspect of the judg-
ment is uncontested on appeal.) The claims against the federal defendants were dis-
missed, however, on sovereign-immunity grounds. The district judge stated that sover-
eign immunity deprives the state court of jurisdiction and so prohibits removal too. See
Ricci v. Salzman, 976 F.3d 768, 771–72 (7th Cir. 2020).
Deeming the suit non-removable was a misstep, for at least three reasons.
First, 5 U.S.C. §702 waives the sovereign immunity of the United States and its
officers for suits that do not seek money damages. Henry, who seeks only prospective
relief, is a beneficiary of that waiver.
Second, sovereign immunity is not a truly jurisdictional doctrine in the first
place. See United States v. Cook County, 167 F.3d 381 (7th Cir. 1999); Blagojevich v. Gates,
519 F.3d 370, 371 (7th Cir. 2008). Sovereign immunity contracts the scope of possible re-
lief but does not divest any given tribunal of the authority (that is to say, jurisdiction) to
resolve the controversy. The very fact that sovereign immunity can be waived shows
that it is not jurisdictional; truly jurisdictional doctrines are waiver-proof. The conse-
quences of sovereign immunity often are similar to the consequences of a jurisdictional
defect, but the two differ in principle.
Third, even if federal courts were to understand sovereign immunity as contract-
ing the scope of their jurisdiction, states would not be obliged to agree. Illinois is not
bound by Article III of the Constitution and is free to entertain suits that federal courts
must dismiss. The district court did not cite any statute or decision suggesting that Illi-
nois deems its courts to lack jurisdiction of suits seeking orders to compel federal offi-
cials to begin criminal or civil prosecutions. State law does curtail such relief against
state officials, see People v. Provenzano, 265 Ill. App. 3d 33, 37 (1994), but we could not
find any equivalent doctrine for federal defendants—and it is not clear to us that the
rule stated in Provenzano is jurisdictional in nature. The doctrine of intergovernmental
immunity also may affect a state court’s power to award the relief Henry wants, but
again we lack reason to think that Illinois deems this doctrine a jurisdictional limit on its
courts.
A jurisdictional dismissal of the federal defendants remains the right disposition,
however. Prosecutors have discretion to choose when and where, if at all, to initiate
proceedings. See, e.g., Heckler v. Chaney, 470 U.S. 821 (1985). Because this discretion is
unreviewable—Henry does not contend that any federal statute curtails that discretion
for claims of the sort he raises—people who want courts to compel prosecution cannot
show any legal injury redressable by a judicial order, which means that they lack

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No. 22-1841 Page 3
standing to sue. See, e.g., Linda R.S. v. Richard D., 410 U.S. 614 (1973); Leeke v. Timmer-
man, 454 U.S. 83 (1981). The federal tribunal therefore lacks jurisdiction.
AFFIRMED

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