The 11th Circuit found the opposite on this issue, leaving open the possibility of an eventual circuit split.
Defendants invoked the jurisdiction of the federal courts to
raise a jurisdictional defense that could equally have been
raised in the state court. As the court recognized in its January
9, 2014 Order, “there appears no principled reason for defendants to have removed the action before asserting immunity.” (ECF No. 40.) Defendants have advanced none in their briefing or at oral argument. The court therefore finds that the Tribe has unequivocally waived any claim of sovereign immunity through removal. And, as defendants Health Program, Health Board, and Brenda Adams’s assertions of sovereign immunity derive from the Tribe’s sovereign immunity, subject matter jurisdiction over plaintiff’s claims against these defendants is also proper.
Briefs will be posted this afternoon.
Previous materials here.