Cite as: 524 U. S. 381 (1998)
Kennedy, J., concurring
proceed to hear those other claims, and the District Court did not err in doing so.
For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Kennedy, concurring.
In joining the opinion of the Court, I write to observe we have neither reached nor considered the argument that, by giving its express consent to removal of the case from state court, Wisconsin waived its Eleventh Amendment immunity. Insofar as the record shows, this issue was not raised in the proceedings below; and it was not part of the briefs filed here or the arguments made to the Court. The question should be considered, however, in some later case.
Removal requires the consent of all of the defendants. See, e. g., Chicago, R. I. & P. R. Co. v. Martin, 178 U. S. 245, 248 (1900); 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3731, p. 504 (2d ed. 1985). Here the State consented to removal but then registered a prompt objection to the jurisdiction of the United States District Court over the claim against it. By electing to remove, the State created the difficult problem confronted in the Court of Appeals and now here. This is the situation in which law usually says a party must accept the consequences of its own acts. It would seem simple enough to rule that once a State consents to removal, it may not turn around and say the Eleventh Amendment bars the jurisdiction of the federal court. Consent to removal, it can be argued, is a waiver of the Eleventh Amendment immunity.
Given the latitude accorded the States in raising the immunity at a late stage, however, a rule of waiver may not be all that obvious. The Court has said the Eleventh Amendment bar may be asserted for the first time on appeal, so a State which is sued in federal court does not waive the Eleventh Amendment simply by appearing and defending on the mer-
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