In the

United States Court of Appeals

For the Seventh Circuit

No. 97-3521

Patrick J. Higgins,

Plaintiff-Appellant,

v.

State of Mississippi, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 95 C 4464--Joan B. Gottschall, Judge.

Submitted June 8, 1999--Decided June 30, 2000

 Before Posner, Chief Judge, and Flaum and Rovner,

Circuit Judges.

 Posner, Chief Judge. This suit under 42 U.S.C.

sec. 1983 against Illinois and Mississippi, an

Illinois municipality, and various Illinois and

Mississippi officials charges a plot to kidnap

the plaintiff from an Illinois jail and bring him

to Mississippi to face criminal prosecution. The

district court gave judgment for the defendants.

The appeal raises only two issues that merit

discussion: whether a district court may dismiss

a suit on the basis of the Eleventh Amendment

even if the state has not invoked the amendment;

and when an admission made in a prior case can be

used in the current case. An alternative ground

not presented to the district court for

dismissing the states from the suit is that

states are not "persons" within the meaning of

section 1983 and so are not liable under that

statute. Arizonans for Official English v.

Arizona, 520 U.S. 43, 69 (1997); Will v. Michigan

Dept. of State Police, 491 U.S. 66 (1989). This

could well be thought a jurisdictional ground for

dismissal and hence one that we can and should

raise on our own though it was waived in the

district court, or alternatively a

nonjurisdictional ground that we can nevertheless

notice on our own because to do so would promote

federal-state comity; but this we need not

decide. The alternative ground, the Eleventh

Amendment, is secure, as we are about to see. 
 A state may, it is plain, waive its Eleventh

Amendment immunity from being sued in federal

court either legislatively, Atascadero State

Hospital v. Scanlon, 473 U.S. 234, 238 n. 1

(1985), or by an explicit waiver in the lawsuit

in which it is named as a defendant, Clark v.

Barnard, 108 U.S. 436, 447 (1883), provided that

the waiver is authorized by state law. Ford Motor

Co. v. Department of Treasury, 323 U.S. 459

(1945); Estate of Porter by Nelson v. Illinois,

36 F.3d 684, 690 (7th Cir. 1994). The question

this case presents is whether the state’s failure

to invoke its Eleventh Amendment immunity, by

pleading or otherwise, in the suit in which it is

named as a defendant (assuming the state has not

legislated a waiver) operates as a forfeiture of

the immunity, in which event the district court

should not on its own initiative have dismissed

Illinois from the case, since Illinois never

bothered to respond to Higgins’s complaint.

 In Wisconsin Dept. of Corrections v. Schacht,

524 U.S. 381, 389 (1998), the Supreme Court

stated that "unless the State raises the matter

[i.e., its Eleventh Amendment immunity], a court

can ignore it." The implication (despite some

fudging in an earlier sentence--"the Eleventh

Amendment, however, does not automatically

destroy original jurisdiction," id. (emphasis

added)), contrary to earlier decisions such as

Wilson-Jones v. Caviness, 99 F.3d 203, 206 (6th

Cir. 1996), is that the Eleventh Amendment does

not deprive the federal court of its subjectmatter jurisdiction, Kennedy v. National Juvenile

Detention Ass’n, 187 F.3d 690, 696 (7th Cir.

1999); Parella v. Retirement Bd. of Rhode Island

Employees’ Retirement System, 173 F.3d 46, 55

(1st Cir. 1999); see also Patsy v. Board of

Regents, 447 U.S. 496, 515 n. 19 (1982), since if

it did, the court could not ignore the presence

of an Eleventh Amendment immunity just because it

had not been argued. A more refined analysis

might distinguish between the "original" Eleventh

Amendment, which forbids the federal courts to

entertain diversity suits against states and thus

is clearly jurisdictional, from the later

interpretations that transformed the amendment

into a comprehensive charter of state sovereign

immunity, creating thus an affirmative defense

rather than a limitation on jurisdiction.

 But that is an aside; the important point is

that the Court in Schacht (which was not a

diversity case, but a case in which the Eleventh

Amendment was the vehicle for a defense of

sovereign immunity, see 524 U.S. at 389) said

only that the federal court could ignore the

immunity in such a case, not that it must ignore

it. Nor would such a statement, implying that the
immunity conferred by the Eleventh Amendment is

no different from any other affirmative defense,

comport with the long line of cases holding that

federal courts may forgive the waiver of a

defense that is based on comity--the mutually

respectful deportment of sovereign entities,

including the quasi-sovereign entities that are

the states of the United States. See, e.g.,

Younger v. Harris, 401 U.S. 37, 40-41 (1971);

Eaglin v. Welborn, 57 F.3d 496, 499 (7th Cir.

1995) (en banc); Pittman v. Chicago Board of

Education, 64 F.3d 1098, 1101 (7th Cir. 1995). As

we put it in Hoover v. Wagner, 47 F.3d 845, 852

(7th Cir. 1995), "when matters of comity are

involved, the ordinary doctrines of waiver give

way." And in Pittman v. Chicago Bd. of Education,

64 F.3d 1098, 1101 (7th Cir. 1995), we said

specifically that "one of the exceptions to the

principle of waiver . . . that is recognized by

the Supreme Court and by this court concerns the

interest in maintaining harmonious relations

between the states and the federal government."

That interest is present when a state is hauled

into a federal court as a defendant, as happened

here.

 We conclude, as have the other reported postSchacht decisions, that a federal court can raise

an Eleventh Amendment defense on its own

initiative, Parella v. Retirement Bd. of Rhode

Island Employees’ Retirement System, supra, 173

F.3d at 54-55; United States ex rel. Long v. SCS

Business & Technical Institute, Inc., 173 F.3d

890, 892 n. 4 (D.C. Cir. 1999), and we retract

our unfortunate dictum on remand in Schacht that

"the [Supreme] Court ruled that a federal court

must not raise a potential Eleventh Amendment

issue sua sponte." Schacht v. Wisconsin Dept. of

Corrections, 175 F.3d 497, 501 (7th Cir. 1999).

That was not what the Supreme Court ruled. We

need not consider whether, as urged in Michelle

Lawner, Comment, "Why Federal Courts Should Be

Required to Consider State Sovereign Immunity Sua

Sponte," 66 University of Chicago Law Review 1261

(1999), courts should always notice an Eleventh

Amendment immunity on their own, and at the

earliest point in the litigation, in order to

prevent states from using the immunity

opportunistically.

 The other issue we discuss arises from a written

statement that Higgins made in the criminal

proceedings against him in Mississippi, admitting

that he had waived extradition. The district

court relied on the statement in granting summary

judgment for the defendants, the statement being

inconsistent with Higgins’s claim that he had not

waived extradition but instead had been

kidnapped. If the statement was a judicial

admission, which means, in effect, a waiver,
Solon v. Gary Community School Corp., 180 F.3d

844, 858 (7th Cir. 1999); Murrey v. United

States, 73 F.3d 1448, 1455 (7th Cir. 1996);

Keller v. United States, 58 F.3d 1194, 1198 n. 8

(7th Cir. 1995); Barnes v. Owens-Corning

Fiberglas Corp., 201 F.3d 815, 829 (6th Cir.

2000), here of any contention that Higgins did

not waive extradition, then it would be binding;

if it was merely an evidentiary admission, it

would not be--it would just be one more bit of

evidence to weigh against Higgins’s denial, made

in his affidavit in the current suit, that he

ever waived extradition.

 We needn’t consider which type of admission it

was, judicial or evidentiary, because a judicial

admission binds only in the litigation in which

it is made. Kohler v. Leslie Hindman, Inc., 80

F.3d 1181, 1185 (7th Cir. 1996); Enquip, Inc. v.

Smith-McDonald Corp., 655 F.2d 115, 118 (7th Cir.

1981); Utility Sales Co. v. Certain-teed Products

Corp., 638 F.2d 1061, 1084 (7th Cir. 1981); Dugan

v. EMS Helicopters, Inc., 915 F.2d 1428, 1432

(10th Cir. 1990) (per curiam); United States v.

Raphelson, 802 F.2d 588, 592 (1st Cir. 1986). In

any other suit, as the cases just cited make

clear, it operates merely as an evidentiary

admission; for remember that a judicial admission

is in the nature of a waiver. A waiver is a

deliberate relinquishment of a known right, and a

waiver made for purposes of one lawsuit needn’t

have been intended to carry over to another.

 How then was the district court able to rely

upon Higgins’s waiver in the criminal proceedings

to show that he hadn’t waived extradition, since

the court was confronted with contradictory

statements, creating an issue of credibility? The

answer is that there are exceptions to the

principle on which Higgins relies that

credibility cannot be determined in a summary

judgment proceeding. The applicable exception is

that a party cannot by affidavit retract damaging

admissions without a good explanation, e.g.,

Cleveland v. Policy Management Systems Corp., 526

U.S. 795, 806-07 (1999); United States v.

Stewart, 198 F.3d 984, 986 (7th Cir. 1999);

Seshadri v. Kasraian, 130 F.3d 798, 801-02 (7th

Cir. 1997), whether (as these cases make clear)

the admissions were made in a deposition, a

trial, another affidavit, or, as in this case, a

written statement not under oath (actually

statements, but we can ignore that detail).

Higgins neither questions the authenticity of the

statement that he made in the Mississippi

proceedings nor offers an explanation for the

contradiction, such as that he was coerced to

waive extradition. In these circumstances, the

district court was right to credit that statement

and disregard the later, contrary affidavit.
Affirmed.