Oracle America, Inc. v. Oregon Health Insurance Exchange Corp. (145 F. Supp. 3d 1018, 2015)

Citations

145 F. Supp. 3d 1018

Full opinion text

OPINION AND ORDER

BROWN, District Judge

This matter comes before the Court on Defendant State of Oregon’s Motion (#92) for Summary Judgment, Plaintiff Oracle’s Cross-Motion (#104) for Summary Judgment, and the Motion (#142) of Defendant Department of Consumer and Business Services (DCBS) for Judgment on the Pleadings. For the reasons that follow, *the Court DENIES the State of Oregon’s Motion for Summary Judgment, GRANTS Oracle’s Cross-Motion for Summary Judgment, and GRANTS DCBS’s Motion for Judgment on the Pleadings.

BACKGROUND

The parties are familiar with the facts underlying this, action. The Court, therefore, sets forth only the facts relevant to the pending Motions.

At some point in 2009 the Oregon Legislature created the Oregon Health Authority (OHA) as a division of the Oregon Department of Human Services (DHS).

On March 23, 2010, Congress enacted the Patient Protection and Affordable Care Act (ACA), Public Law No. 111-148, 124 Stat. 119 (2010), and thereby established legal foundations for- States either to create health-insurance exchanges (HIX) or to use an HIX developed by the federal government.

The State of Oregon, through DHS/ OHA, ultimately decided to use Oracle to complete a Modernization Project and the HIX (the Oracle Solution). Initially, however, DHS/OHA entered into an agreement on June 30, 2011, only with Mythies, Ine., a corporation that works with Oracle to distribute and to sell Oracle products and to provide consulting on the implementation and integration of Oracle’s products. That agreement, the Mythies License and Services Agreement (MLSA), provided in pertinent part:

This agreement is governed by the substantive and procedural laws of Oregon, without giving, effect to such state’s principles of conflicts of laws, and you and Mythies agree to submit to the exclusive jurisdiction of, and venue in, the federal courts in Oregon, or the state courts in Salem, 0$ in any dispute arising out of or relating to this agreement.

Agreed Facts (#88), Ex. 7 at § 0.1.

In June 2011 ■ the Oregon Legislature passed legislation creating the Oregon Health Insurance Exchange Corporation (Cover Oregon) as a public corporation. Specifically, Oregon Revised Statute § 741.002(l)(a) provided Cover - Oregon shall “[ajdminister a health insurance exchange in accordance with federal law to make qualified health plans available to individuals and groups throughout this state.”

In November '2011 DHS/OHA entered into an Oracle License Service Agreement (OHA OLSA) with Oracle that provided in pertinent part:

This agreement is governed by the substantive and procedural laws of Oregon and you and Oracle agree to submit to the exclusive jurisdiction of, and venue in, if in state Courts, in the Circuit Court of the State of Oregon for Marion County or, if in federal courts, the United States District Court for the District of Oregon, in any dispute arising out of or relating to this agreement.

Agreed Facts (#88), Ex. 13 at § 0.1. The OHA OLSA was signed by the State of Oregon Chief Information Officer Carolyn Lawson, Oregon Assistant Attorney General Jack McDonald, DHS/OHA Office of Contracts and Procurement Officer Stella Transue, and Oracle Contracts Manager Elizabeth Hwang. Agreed Facts (#88), Ex. 13 at 25.

As noted, Cover Oregon was not a party to the MLSA or the OHA OLSA. On March 14, 2013, therefore, Cover Oregon and Oracle executed an Oracle License and Services Agreement (Cover Oregon OLSA) that provided in pertinent part:

This agreement is governed by the substantive and procedural laws of Oregon and [Cover Oregon] and Oracle agree to' submit to the exclusive jurisdiction of, and venue in, if in state Courts, in the Circuit Court of the State of Oregon for Marion County or, if in federal courts, the United States' District Court for the District of Oregon, in any dispute arising out of or relating to this agreement.

Second Am. Compl., Ex. B at ¶ 0.1. The Cover Oregon' OLSA was signed by Cover Oregon Executive Director Howard King and Oracle License Contracts Manager William Simpson. Second Am. Compl., Ex. B at 26. ’

In order for Oregonians to obtain insurance for 2014 as required by the ACA, Cover Oregon established the goal of launching the HIX by October 1, 2013. Although the HIX was not ready to launch at that time, Oracle and Cover Oregon worked to make the Oregon HIX useable and effective throughout 2013 and into 2014.

. On August 8, 2014, however, Oracle filed a Complaint against Cover Oregon in this Court basing federal jurisdiction on the parties’ diversity of citizenship and asserting claims for breach of contract and quantum meruit. Oracle alleged Cover Oregon has not paid for all of the services that Oracle rendered, “continued] to use Oracle’s work product[,] and ... has transferred some or all of that work product to others in violation of the parties’ written agreements.”

On August 22, 2014, Cover Oregon filed a Motion to Dismiss for Failure to State a Claim and Failure to Join Necessary and Indispensable Party. Specifically, Cover Oregon sought dismissal of the Federal Action because Oracle failed to sue the State of Oregon, who, according to Cover Oregon, was a necessary and indispensable party to the action.

On September 8, 2014, Oracle filed an Amended Complaint in which Oracle added Oregon as a defendant and asserted claims for copyright infringement against Cover Oregon and Oregon, breach of contract against Cover Oregon, breach of the implied covenant of good faith and fair dealing against Cover Oregon, and quantum meruit against Cover Oregon and Oregon.

On September 18, 2014, in light of Oracle’s allegations in its Corrected First Amended Complaint, the Court denied as moot Cover Oregon’s Motion to Dismiss for Failure to State a Claim and Failure to Join Necessary and Indispensable Party and directed Cover Oregon and/or Oregon to file any motions against the Corrected First Amended Complaint no later than October 2, 2014.

On October 2, 2014, Oregon and Cover Oregon each filed separate Motions to Dismiss Oracle’s Corrected First Amended Complaint as well as a Joint Motion to Dismiss or, in the Alternative, to Stay.

On December 19, 2014, the Court heard oral argument on Oregon’s Motion to Dismiss; the Joint Motion to Dismiss or, in the Alternative, to Stay filed by Oregon and Cover Oregon; and Cover Oregon’s Motion to Dismiss. The Court orally granted Oregon’s Motion to Dismiss, denied Cover Oregon’s Motion to Dismiss, and took the Joint Motion tó Dismiss under advisement.

On January 13, 2015, the Court issued an Opinion and Order in which it formally granted Oregon’s Motion to Dismiss and denied Cover Oregon’s Motion to Dismiss with leave for Oracle tó file a Second Amended Complaint consistent with the Court’s rulings. Specifically, the Court concluded when Congress enacted the Copyright Remedy Clarification Act, it did not abrogate the States’ sovereign immunity to copyright actions pursuant to Section 5 of the Fourteenth Amendment to the United States Constitution; Oregon did .not waive its sovereign immunity in the action before this Court when it brought an action in state court against Oracle and others alleging only state-law claims; and Oracle did not establish that its claim against Oregon for copyright infringement as alleged in its Corrected First Amended Complaint falls within the scope of the OHA OLSA contractual provision. The Court granted Oracle leave to file a Second Amended Complaint to the extent that it could allege facts to establish that Oregon waived its sovereign immunity for the copyright claim pursuant to the venue clause in the OHA OLSA. The Court also granted in part and denied in part the Joint Motion to Dismiss as follows; (1) the Court denied the Joint Motion to Dismiss Oracle’s copyright-infringement claim on the ground that Oracle failed to state a claim, (2) the Court granted the Joint Motion to Dismiss Oracle’s alternative Fourth Claim for quantum meruit, and (3) the Court granted the Joint Motion to Dismiss the Doe Defendants.

On January 27, 2015, Oraclé filed a Second Amended Complaint in which it asserted claims for copyright infringement against Cover Oregon and Oregon; breach of the implied covenant of good faith and fair dealing against Cover Oregon; and, in the alternative to its claim for copyright infringement, claims for breach of contract and quantum meruit against Cover Oregon.

On March 3, 2015, Oregon filed a Motion for Summary Judgment in which it asserted the Eleventh Amendment of the United States Constitution bars Oracle’s claim against it for copyright infringement. On March 20, 2015, Oracle filed a Cross-Motion for Summary Judgment on the issue of Eleventh Amendment immunity. The Court heard oral argument on the parties’ Cross-Motions on April 10, 2015. At the hearing the parties requested the Court to reserve ruling on these Motions for Summary Judgment until it decided the motion for judgment on the pleadings that was to be filed shortly in order to ensure that the time for any appeal of the summary-judgment rulings would not begin to run before the time for any appeal began to run oh the motion for judgment on the pleadings.

In the meantime on March 6, 2015, the Oregon State Legislature passed Senate Bill 1, which dissolved Cover Oregon and moved its functions and duties to DCBS, an agency of the State of Oregon. In particular, the legislation provides: '

The rights, obligations and liabilities of [Cover Oregon] legally incurred before - [March 6, 2015] are transferred to [DCBS]. [DCBS] is the successor to those rights, - obligations and liabilities, notwithstanding any prohibition on assignment. contained in contracts assumed by .[DCBS] under sections 1 and 2 of this 2015 Act.

Senate Bill 1, § 6(3). In addition, § 6(3)(a) provides: '

Notwithstanding sections 1 to 5 of this 2015 Act, the rights, obligations and liabilities transferred to the department: (a) Are subject to the limitations, defenses and immunities of the department that arise under ORS 30.260 to 30.300, the Eleventh Amendment to the Upited States Constitution and other state and federal laws.

Finally, according to Senate Bill 1, § 5, “the State of Oregon, by and through [DCBS], is substituted for, [Cover Oregon]” in any.pending litigation “involving or with respect to” the “powers, rights, obligations and liabilities” of Cover Oregon’s Board and Executive Director.

On April 14, 2015, Cover Oregon filed a Motion for judgment on the Pleadings in which it asserted Cover Oregon’s “rights, obligations and liabilities” were transferred to DCBS under Senate Bill 1 as of March 6, 2015, and, accordingly, the State of Oregon should be substituted for Cover Oregon in any pending litigation. Cover Oregon also noted DCBS is an agency of the State, and, therefore, DCBS is entitled to Eleventh Amendment immunity as to Oracle’s copyright claim. Thus, Cover Oregon contended the Court should dismiss Oracle’s copyright claim against Cover Oregon.

On May 5, 2015, Oracle filed an Unopposed Motion to Substitute the State of Oregon, by and through the Department of Consumer and Business Services, for Cover Oregon. On May 6, 2015, Oracle filed a Corrected Unopposed Motion to Substitute the State of Oregon, by and through the Department of Consumer and Business Services, for Cover Oregon.

On June '5, 2015, the Court issued an Opinion and Order in which it granted Oracle’s Corrected Unopposed Motion to Substitute the State of Oregon, by and through the Department of Consumer and Business Services, for Cover Oregon and denied Cover Oregon’s Motion for Judgment on the Pleadings with leave to DCBS to file its own motion for judgment on the pleadings no later than June 22,2015.

On June 22, 2015, DCBS filed a Motion for Judgment on the Pleadings in which it seeks dismissal of Oracle’s copyright claim against DCBS on the ground that it is entitled to Eleventh Amendment immunity as to that claim.

The Court heard oral argument on DCBS’s Motion for Judgment on the Pleadings on September 3, 2015, and took the Motion under advisement.

OREGON’S MOTION (#92) FOR SUMMARY JUDGMENT AND ORACLE’S CROSS-MOTION (#105) FOR SUMMARY JUDGMENT

As noted, Oregon moves for summary judgment on Oracle’s copyright-infringement claim on the ground that it is barred as to the DHS/OHA under the Eleventh Amendment to the United States Constitution. Oracle cross-moves for summary judgment on the ground that Oregon waived Eleventh Amendment immunity for the copyright claim as to DHS/OHA pursuant to § O.l of the OHA. OLSA and/or § O.l of the MLSA.

I. Summary-Judgment Standard

Summary judgment is appropriate when “there is no ‘ genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Washington Mut. Ins. v. United States, 636 F.3d 1207, 1216 (9th Cir.2011). See also Fed. R. Civ. P. 56(a). The moving party must show the absence of a dispute as to a material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). In response to a properly supported motion for summary judgment; the nonmoving party must go beyond the pleadings and show'there is a genuine dispute as to a material fact for trial. Id, “This burden is not a light one. ... The non-moving party must do more than show there is some ’metaphysical doubt’ as'to the material facts at issue.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.2010) (citation omitted).

A dispute as to a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). .The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir.2010). “Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as .to material issues.” Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir.2004)(citation omitted). A “mere disagreement or bald assertion” that a genuine dispute as to a material fact exists “will not preclude the-grant of summary judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D.Cal., Jan. 20, 2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.1989)). When the nonmoving party’s claims are factually un-plausible, that party must “come forward with more persuasive evidence than otherwise would be necessary.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir.2009)(citation omitted).

The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir.2006). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id.

II. Eleventh Amendment and Sovereign Immunity

A. General Standard

“Sovereign immunity, as it has been interpreted in the federal courts, .,. encompasses two separate, but related, concepts — ... sovereign immunity ... and Eleventh Amendment immunity.” Magnolia Venture Capital Corp. v. Prudential Sec., Inc., 151 F.3d 439, 443 (5th Cir.1998)(citing Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)). The Eleventh Amendment of the United States Constitution provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or Citizens or Subjects of any Foreign State.” The Supreme Court “has drawn upon principles of sovereign immunity to construe the [Eleventh] Amendment to establish that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state.” Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990)(quotations omitted).

“The Eleventh Amendment bar to suit is not absolute. States may consent to suit in federal court ■ and, in certain cases, Congress may abrogate the States’ sovereign immunity.” Id. (quotations omitted). In addition, a State may choose to waive its immunity, 'thus consenting to suit. A State, nevertheless, “may waive its ... sovereign immunity without waiving its Eleventh Amendment immunity.” Port Authority, 495 U.S. at 306, 110 S.Ct. 1868. Thus, a State may consent to being sued in its own courts, while still retaining Eleventh Amendment immunity from suit in federal court. See, e.g., Fla. Dep’t of Health and Rehabilitative Servs. v. Fla. Nursing Home Ass’n., 450 U.S. 147, 150, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981)(State’s general waiver of sovereign immunity did not constitute a waiver by the State of its Eleventh Amendment immunity).

B. Waiver Standard

As noted, Oracle asserts Oregon waived the Eleventh Amendment immunity of DHS/OHA as to Oracle’s copyright-infringement claim in § O.l of the OHA OLSA. The Supreme Court summarized the issue of waiver of immunity in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank:

We have long recognized that a State’s ... immunity is' á personal privilege , which it may waive at its pleasure. The decision to waive that immunity, however, is altogether voluntary on the part of the sovereignty. Accordingly, our test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one. Generally, we will find a waiver either if the State voluntarily invokes our jurisdiction or else if the State makes a clear declaration that it intends to submit itself to our jurisdiction. Thus, a State does not consent to suit in federal court merely by . consenting to suit in the courts of its own creation. Nor does it consent to suit in federal court merely by stating its intention to sue and be sued or even by authorizing suits against it in any court of competent jurisdiction.

527 U.S. 627, 675-76, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999)(quotations omitted). “The Supreme Court has made it clear that [courts] may find a waiver of a State’s Eleventh Amendment immunity in only the most exacting circumstances. ‘[T]he State’s consent [to suit in federal court must] be unequivocally expressed.’ ” Magnolia, 151 F.3d at 443 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). “[S]olicitude for States’ ... immunity underlies the standard that this Court employs to determine whether a State has waived that immunity. The Court will give effect to a State’s waiver of Eleventh Amendment immunity only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.” Port Authority, 495 U.S. at 305-06, 110 S.Ct. 1868.

In addition, the Supreme Court and the Ninth Circuit have held there cannot be any waiver of Eleventh Amendment immunity “by implication or by use of ambiguous language.” United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 659, 67 S.Ct. 601, 91 L.Ed. 577 (1947). See also Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1112 (9th Cir.2010)(same). Courts must “indulge every reasonable presumption against waiver.” College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). Any ambiguity in the existence of a waiver of immunity or in the scope of a waiver of immunity “must be construed strictly in favor of the sovereign and not enlarged beyond what the ... language requires.” United States v. Nordic Village, Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992)(citations and quotations omitted). See also F.A.A. v. Cooper, — U.S. -, 132 S.Ct. 1441, 1448, 182 L.Ed.2d 497 (2012)(same).

Finally, a “state’s waiver must be accomplished by someone to whom that power is granted under state law.” Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 467, 65 S.Ct. 347, 89 L.Ed. 389 (1945), overruled on other grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 623, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002).

III. Provisions of the OHA OLSA at Issue

A. Applicability of OHA OLSA Provisions to Oracle’s Claim against DHS/OHA for Copyright Infringement

As noted, the OHA OLSA contains the following provision:

Agreed Facts, Ex. 13 at § O.1 (emphasis added).

In its Second Amended Complaint Oracle alleges the following with respect to the OHA OLSA and Oregon’s liability for copyright infringement:

71. An express condition precedent to any license to Cover Oregon under the Cover Oregon OLSA was that it was required to pay for all services rendered under the OLSA. Cover Oregon has not satisfied that express condition precedent, because Cover Oregon has not paid for all of the services rendered under the Cover Oregon OLSA. Accordingly, Cover Oregon has no license at all to the Copyright Assets and is not authorized to reproduce, prepare derivative works of, distribute, or publicly display those works, or to authorize others to do so.

72. By continuing to operate the Cover Oregon website, Cover Oregon is infringing Oracle’s exclusive rights to reproduce and publicly display the work.

73. By transferring Oracle’s Copyright Assets to the control of the State of Oregon for further development, Cover Oregon has unlawfully distributed the Copyright Assets, and has unlawfully authorized others to prepare derivative works based on the Copyright Assets, thereby infringing Oracle’s exclusive rights.

74. By accepting the transfer of source code from Cover Oregon and exercising dominion and control over a project to augment that code, the State of Oregon has infringed Oracle’s exclusive rights to reproduce and to prepare derivative works of the Copyright Assets. Oregon has claimed a license to all or part of the Copyright Assets based on the OHA OLSA, but that license does not allow preparation of derivative works from the Copyright Assets.

Second Am. Compl. at ¶¶ 71-74 (emphasis added). Oracle acknowledges the Court’s January 13, 2015, conclusion that Congress did not abrogate States’ Eleventh Amendment immunity for copyright-infringement claims when it enacted the Copyright Remedy Clarification Act (CRCA), Pub.L. 101-553, 104 Stat. 2749 (1990). Oracle also concedes the claim at issue here is one for copyright infringement rather than for breach of contract. Nevertheless, Oracle asserts its copyright-infringement claim “relates to” the OHA OLSA, and, therefore, § O.l applies to the dispute and waives DHS/OHA’s Eleventh Amendment immunity as to that claim.

The Ninth Circuit has held “in some circumstances, a contractual forum selection clause may also apply to related non-contract claims.” Petersen v. Boeing Co., 715 F.3d 276, 283 n. 7 (9th Cir.2013). Specifically, contractual forum-selection clauses may apply to noncontract claims “only when ‘resolution of the [noncontract] claims relates to interpretation of the contract.’ ” Id. (quoting Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 (9th Cir.1988)).

Resolution of noncontract claims “relates to” interpretation of the contract when the noncontract “claims require interpretation of the contract”; i.e., the non-contract claims “cannot be adjudicated without analyzing whether the parties were in compliance with the contract.” Manetti-Farrow, 858 F.2d at 514 (citation omitted). See also Kwiecinski v. Medi-Tech Intern. Corp., No. 3:14-CV-01512-BR, 2015 WL 3905224, at *3 (D.Or. June 25, 2015)(same); Simula, Inc. v. Autoliv, Inc., 175 F.3d 716 (9th Cir.1999); Mediterranean Enter., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1464 (9th Cir.1983).

The Court notes Oracle alleges in its claim against DHS/OHA for copyright infringement that Oregon asserts it had a license to all or part of the copyright assets based on the OHA OLSA and, in turn, that Oregon’s license does not allow preparation of derivative works from the copyright assets.

In light of these allegations, the Court concludes resolution of Oracle’s copyright-infringement claim against DHS/OHA will require the Court to analyze the terms and provisions of the OHA OLSA. Accordingly, § O.l of the OHA OLSA “relates to” Oracle’s copyright-infringement claim against DHS/OHA.

B. Legal Authority

As noted, Oracle asserts § O.l of the OHA OLSA establishes that Oregon waived its Eleventh Amendment immunity as to Oracle’s copyright-infringement claim against DHS/OHA. According to Oregon, however, § 0.1 does not contain “the most express language” nor is there “such overwhelming implication from the text as to leave no room for any -... reasonable construction” of that provision sufficient to establish that Oregon waived its Eleventh Amendment immunity.

The Court and the parties agree there are few cases in which courts have analyzed waiver of Eleventh Amendment immunity in the context of a contract nor is there is any Ninth Circuit precedent on the issue. It is also agreed that the Supreme Court set out the framework for such analysis in Port Authority. In addition, Oracle relies heavily on two other cases to support its position: Pettigrew v. Oklahoma, 722 F.3d 1209 (10th Cir.2013), and Baum Research and Development Company v. University of Massachusetts, 503 F.3d 1367 (Fed.Cir.2007), while Oregon contends these cases are distinguishable.

1. Port Authority v. Feeney

The parties agree the Supreme Court set out the framework for analysis of waiver of Eleventh Amendment immunity in Port Authority. In that case New York and New Jersey entered into a bistate compact in 1921 that created the Port Authority of New York and New Jersey Authority (PATH). Feeney and Foster brought separate actions against a subsidiary of PATH in the United States District Court for the Southern District of New York for injuries that they allegedly incurred during their employment -with PATH. PATH filed motions to dismiss in both actions on the ground of Eleventh Amendment immunity. The district court granted PATH’S motions to dismiss relying in part on a Third Circuit case in which the court concluded PATH was entitled to Eleventh Amendment immunity, 495 U.S. at 302, 110 S.Ct. 1868. The Second Circuit Court of Appeals, however, reversed the district court’s dismissal of the actions. The Supreme Court accepted certiorari to resolve the conflict between the circuits as to PATH’S immunity. The Supreme Court ultimately held New York and New Jersey had waived PATH’S Eleventh Amendment immunity through provisions in Acts passed by New York and New Jersey in 1951 that governed lawsuits against the Port Authority and its subsidiaries. Specifically, the Supreme Court noted “New York and New Jersey ... expressly consented to suit in expansive terms” in the 1951 Acts. 495 U.S. at 306, 110 S.Ct. 1868. The 1951 Acts provided in pertinent part that “the States ‘consent to suits, actions, or proceedings of any form or nature at law, in equity or otherwise ... against the Port of New York Authority.’ ” Id. (quoting N.J. Stat. Ann. § 32:1-157 and N.Y. Unconsol. Laws § 7101). The Court noted the consent provision “might be interpreted to encompass the States’ consent to suit in federal court as well as state court.” Id. at 306, 110 S.Ct. 1868. The Supreme Court, however, found it was equally likely that “such a broadly framed provision may .,. reflect only a State’s consent to suit in its own courts.” Id. The provision standing alone, therefore, was ambiguous. The Court reiterated it has previously “required ... consent to suit in federal court be express and thus has construed such ambiguous and general consent to suit provisions, standing alone, as insufficient to waive Eleventh Amendment immunity.” Id. The Court also noted, however, that “[ojther textual evidence of consent to suit in federal courts may resolve that ambiguity and sufficiently clearly establish the scope of the State’s more general consent to suit[, in which case] the Court must give effect to that clearly indicated consent to suit in federal court.” Id. at 306-07, 110 S.Ct. 1868. The Court then looked to the rest of the 1951 Acts in an effort to resolve the ambiguity and “to clearly establish the scope of the States’ more general consent to suit.” Id. at 306, 110 S.Ct. 1868. In particular, the Court examined the venue provisions of the 1951' Acts, which provided:

The foregoing consent [of N.J. Stat. Ann. § 32:1-157; N.Y. Unconsol. Laws § 7101] is granted upon the condition that venue in any suit, action or proceeding against the Port Authority shall be laid within a county or a judicial district, established-by one of said States or by the United States, and situated wholly or partially within the Port of New York District.

Id. at 306, 110 S.Ct. 1868.

Ultimately the Court concluded “the statutory venue provision suffices to resolve any ambiguity contained in the States’ general consent to suit provision by expressly indicating that the States’ consent to suit extends to suit in federal court.’ Id. at 307, 110 S.Ct. 1868. Specifically, the Court'explained:

[W]e believe that the provision directly indicates the extent of the States’ waiver embodied in the consent provision. The States passed the venue and consent to suit provisions as portions of the same Acts that set forth the nature, timing, and extent of the States’ consent to suit. The venue provision expressly refers to and qualifies the more general consent to suit provision. Additionally, issues of venue áre closely related to those concerning sovereign immunity, as this Court has indicated by emphasizing that “[a] Stated constitutional interest in immunity encompasses not merely whether it may- be sued, but where it may be sued.” ... The venue provision would hardly qualify “[t]he foregoing consent” unless the States intended that consent to include suits in federal court.

Id. at 307-08, 110 S.Ct. 1868. Finally, the Court noted PATH

suggests no reasonable construction that might be given to the venue provision’s ■phrase, ‘judicial district, established ... by the United States,’ other than that the States consented to suit in federal court. ... [PATH] essentially presents the choice between giving the venue provision its natural meaning and giving the provision no meaning at all. Charged with giving effect to the statute, we do not find the choice to be a difficult one.

Id. at 308, 110 S.Ct. 1868 (quotation omitted).

Based on Port Authority, Oracle asserts § O.l of the OHA OLSA combined with Oregon’s general consent to suit found in the Oregon Tort Claims Act (OTCA), Oregon Revised Statute § 30.265, and Oregon Revised Statute § 30.320 are sufficient to establish that Oregon waived its Eleventh Amendment immunity as to Oracle’s copyright-infringement claim against DHS/ OHA. Specifically, Oracle notes the OTCA, like the general consent to suit in the 1951 Acts at issue in Port Authority, provides a broad, general consent to suit. See Or. Rev. Stat. § 30.265 (“[E]very public body is subject to civil action for its torts ... whether arising out of a governmental-or proprietary function.”). According to Oracle, § O.l of the OHA OLSA, like the venue provision in the 1951 Acts at issue in Port Authority, elucidates the broad'consent-to-suit provision in the OTCA and establishes Oregon consented to suit in federal court.

Oregon, on the other hand, asserts the circumstances in Port Authority are distinguishable. Specifically, Oregon notes when the Supreme Court decided the venue provision of the 1951 Acts resolved any ambiguity in the States’ general consent to suit in those Acts, the Court pointed out that “[t]he States passed the venue and consent to suit provisions as portions of the same Act that set forth the nature, timing, and extent of the States’ consent to suit. The venue provision expressly refers to and qualifies the more general consent to suit provision,” Port Authority, 495 U.S. at 307, 110 S.Ct. 1868. Here, however, Oregon notes the parties drafted and entered into the OHA OLSA relatively recently while the general consent to suit found in the OTCA occurred almost 50 years ago. Oregon also points out that unlike the venue provision in Port Authority, which specifically stated “[t]he foregoing consent ... is granted upon the condition that...,” § O.l of the OHA OLSA does not reference the OTCA or Oregon’s general consent to suit under § 30.320. Oregon emphasizes the Supreme Court’s statement in Port Authority that “[t]he venue provision would hardly qualify ‘[t]he foregoing consent’ unless the States intended that consent to include suits in federal court.” Id. at 308, 110 S.Ct. 1868. Thus, Oregon contends § O.l remains ambiguous absent coupling with the OTCA, and, therefore, § O.l must be construed in favor of Oregon.

Finally, Oregon asserts it has offered another reasonable construction of § O.l: Specifically, Oregon notes § O.l is phrased conditionally (“submit to the exclusive jurisdiction of,., and venue in, if in state Courts, in the Circuit Court of the State of Oregon for Marion County or, if in federal courts, the United States District Court for the District of Oregon”), which, according to Oregon, suggests the provision requires jurisdiction and venue in the District of Oregon only to the extent that the parties “have an antecedent and independent legal basis to be in federal court.” Oregon contends there are at least three ways in which the State and Oracle could be involved in litigation in federal court that would implicate § O.l even if Oregon did not waive its immunity: (1) If the Ninth Circuit holds the CRCA abrogates States’ Eleventh Amendment immunity to copyright actions in federal court; (2) if Oregon is the plaintiff in a federal claim because the Ninth Circuit has held “a state that voluntarily brings suit [on a federal claim] as a plaintiff in state court cannot invoke the Eleventh Amendment when the defendant seeks removal to a federal court of competent jurisdiction,” Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 845 (9th Cir.2004); and/or (3) if Oregon voluntarily appears and defends an action in federal court on the merits. See Fordyce v. City of Seattle, 55 F.3d 436, 441 (9th Cir.1995) (A State can “waive Eleventh Amendment protection by voluntarily appearing and defending [a suit in federal court] on the merits.”). Oregon asserts § O.l would establish jurisdiction and venue in this Court in any of those situations as opposed to a federal court in some other jurisdiction. According to Oregon, therefore, unlike PATH in Port Authority, Oregon has offered another reasonable construction of § O.1.

In its Reply to its Cross-Motion for Summary Judgment, Oracle, however, asserts that Oregon’s allegedly reasonable alternative construction of the meaning of § O.l is, in fact, unreasonable, and PoH Authority directs the Court to find Oregon waived Eleventh Amendment immunity as to Oracle’s copyright-infringement claim against DHS/OHA.

2. Pettigrew v. Oklahoma

In Pettigrew the plaintiff brought an action in federal court against Oklahoma’s Department of Public Safety (DPS) alleging claims for retaliation in violation of Title VII and negligent supervision. The parties settled the -matter in December 2010 and executed a General Release and Settlement Agreement, which contained the following provision:

The laws of the State of Oklahoma shall govern interpretation of this Agreement. In the event that any litigation is commenced by either party to enforce the terms and conditions of the Agreement, the litigation will be brought in the appropriate Oklahoma court having jurisdiction, either state or federal.

722 F.3d at 1211 (emphasis in original). In January 2012 the plaintiff filed a second action against DPS in federal court in which he alleged: (1) DPS violated Title VII by retaliating against the plaintiff, (2) the alleged retaliation breached the Settlement Agreement, and (3) the plaintiff was entitled to a declaratory judgment that DPS had breached the Agreement, Id: at 1212. DPS moved to dismiss the plaintiffs second and third claims on the ground that they were barred by Eleventh Amendment immunity. The plaintiff asr serted the district court had supplemental jurisdiction over the state-law claims and that DPS had waived its Eleventh Amendment immunity as to those claims via the provision in the Settlement Agreement". The district court denied the motion to dismiss, and DPS appealed. On appeal the plaintiff, relying on Port Authority, asserted the language in the Settlement Agreement that any litigation “will be brought in the appropriate Oklahoma court having jurisdiction state or federal” unequivocally indicated DPS’s intent to .waive Eleventh Amendment immunity for actions to enforce the Settlement Agreement. The Tenth Circuit noted Oklahoma has “broadly consented] to suit[s] to enforce the terms of a contract entered into by the state.” Id. at 1214-15 (citing State Bd. of Pub. Affairs v. Principal Funding Corp., 542 P.2d 503, 506 (1975)). The Tenth Circuit found ‘‘[t]here is no question that [DPS] consented to being sued under the [Settlement] Agreement, at least in state court. ... The only unsettled question would be whether the state could be sued in federal court for breach of the Agreement.” Id. at 1215 (emphasis in original). DPS focused on the word “appropriate” and asserted the only appropriate Oklahoma court haying jurisdiction over the plaintiffs state-law claims was Oklahoma’s state court because the Eleventh Amendment bars the federal court from hearing those claims. The Tenth Circuit interpreted DPS’s position as an assertion that “the word ‘appropriate’ voids the words ‘or federal’ ” and stated:

In Oklahoma, contracts should be construed so as to give effect to every part, if reasonably practicable. Rejecting the state’s interpretation is not a difficult choice. The language “or federal” clearly signals that the word appropriate must be read as not taking Eleventh Amendment immunity into account. The word refers only to proper subject-matter and personal jurisdiction and, perhaps, venue. Because a federal court can have supplemental jurisdiction over a state-law contract claim, see 28 U.S.C. § 1367(a), a federal court can be an appropriate court.

Id. at 1215-16 (emphasis in original)(quotation and citation omitted). The Tenth Circuit noted:

One might argue ... the reference in the Venue Provision to '“either state or federal” courts could be read merely as acknowledging that the Agreement could be enforced in federal court if the . state’s immunity were not an obstacle for some reason independent of anything in the Agreement.. If that is the meaning, however, why include the language? .True, the state could waive its Eleventh Amendment immunity by other means, such as by removing a suit to federal court. But.we firmly doubt that the parties would include a provision allowing suit in federal court only if the state happened to prefer federal court at some point in the future. ... And the “state or federal” language would be pointless if it simply recited the venues where a suit could be brought anyway.

Id. at 1216.

Oregon asserts Pettigrew is distinguishable from this case on the ground that there was not any reasonable alternative interpretation for the venue provision in Pettigrew other than as a waiver of Eleventh Amendment immunity because the provision applied only to breach-of-contract claims to enforce the terms and conditions of the contract and such, claims cannot be asserted against a State" in federal court unless the State waives its Eleventh Amendment immunity. Oregon contends there was not any risk in Pettigrew of venue, being in a federal forum other than the District of Oklahoma because both the plaintiff and the defendant were citizens of Oklahoma and all of the relevant events occurred in Oklahoma. In contrast, § 0.1 applies to “any claims arising out of or related to” the OHA OLSA. Oregon, therefore, contends it was necessary in this case for the parties specifically to choose venue in the District of Oregon for potential federal claims that purportedly abrogate Oregon’s Eleventh Amendment immunity rather than risk vénue in a different federal court. Thus, although there was not any reasonable construction of the venue provision in Pettigrew other than as a waiver of Eleventh Amendment immunity, Oregon contends it has offered a reasonable alternative construction of § 0.1. •

3. Baum Research and Development Co. v. University of Massachusetts

Oracle also relies on Baum to support its assertion that § 0.1 is not ambiguous and that, it waives Oregon’s Eleventh Amendment immunity to Oracle’s copy-rightrinfringement- claim against DHS/ OHA. In Baum the defendant and the plaintiff, the holder of the two patents at issue, entered into a licensing agreement that contained the following provision:

This Agreement will be construed, interpreted and applied according to the laws of the State of Michigan and all parties agree to proper venue and hereby, submit to jurisdiction in the appropriate State or Federal Courts of Record sitting in the State of Michigan.

503 F.3d at 1368. The plaintiff filed an action in the United States District Court for the Western District of Michigan against the defendant alleging claims for patent infringement and breach of the licensing agreement.' The defendant moved to dismiss the plaintiffs complaint based on Eleventh Amendment immunity. The district court denied the defendant’s motion on the ground that the defendant waived its immunity in the licensing agreement. The defendant.appealed. On appeal the Federal Circuit rejected the defendant’s assertion that the provision was ambiguous and that it did not waive immunity because the provision could “also be read not as a waiver of immunity from suit, but merely an acceptance of venue in Michigan, if [the plaintiff] can somehow overcome the obstacle of the University’s immunity.” 503 F.3d at 1370. The Federal Circuit concluded:

[T]he contract terms are clear, ... the University agreed to submit to the jurisdiction of a federal court in Michigan as to disputes arising from this contract. Although the University argues that the contract does not state which court is “appropriate” as to which cause of action as may arise, this does not negate the agreement to submit to the jurisdiction of the appropriate court.

Id. at 1370. The court also concluded the provision met the criteria of Port Authority for establishing a waiver of Eleventh Amendment immunity. Id. at 1370-71.

Oregon asserts Baum is distinguishable because § O.l is phrased in the conditional: If a dispute is in federal court, then the parties agree to venue in and the jurisdiction of the District of Oregon. Thus, according to Oregon, § O.l only selects venue in the event that a case is already in federal court and does not provide for the necessary predicate consent to suit. The court in Baum, however, rejected a similar argument from the defendant (ie., that the contract provision at issue could be read “not as a waiver of immunity from suit, but merely an acceptance of venue in Michigan, if [the plaintiff could] somehow overcome the obstacle of [the defendant’s] immunity”). The court reasoned: “Although [the defendant] argues that the contract does not state which court is ‘appropriate’ as to which cause of action as may arise, this does not negate that agreement to submit to the jurisdiction of the appropriate court.” 503 F.3d at 1370.

C. Waiver Analysis

As noted, the Supreme Court and the Ninth Circuit have, made clear that there cannot be a waiver “by implication or by use of ambiguous language.” N.Y. Rayon Importing Co., 329 U.S. at 659, 67 S.Ct. 601; Holley, 599 F.3d at 1112. Oregon asserts the language in § O.l either clearly did not waive' Oregon’s Eleventh Amendment immunity or is ambiguous, and, therefore, § O.l must be interpreted in favor of Oregon. Oracle, in turn, asserts § O.l is a clear waiver of Eleventh Amendment immunity as to Oracle’s copyright-infringement claim against DHS/ OHA. Under Oregon law

[w]hen ... interpreting] any written instrument, [the court’s] objective is to ascertain the meaning that most likely was intended by the parties that entered into it. ... [The court] ascertain^] the meaning most likely intended by the parties by means of a three-step inquiry. [The court] begin[s] with the text of the disputed provision in the context of the instrument as a whole. In examining the text of the disputed provision, [the court] determine^] whether that provision is ambiguous, for, if the provision according to its terms is unambiguous, [the court] enforce[s] the provision according to its. terms as a matter of law. A contractual provision is ambiguous only if it is capable, of more than one plausible and reasonable interpretation. If the disputed provision is ambiguous, [the court] proceedfs] to a second step that involves examining extrinsic evidence of the contracting parties’ intent. If resort to "such extrinsic evidence does not resolve the ambiguity, then [the court] proceed[s] to a third and final step, namely, resort to appropriate maxims of construction.

McKay’s Mkt. of Coos Bay, Inc. v. Pickett, 212 Or.App. 7, 12, 157 P.3d 291 (2007)(internal quotations and citations omitted). See also Tipperman v. Tsiatsos, 327 Or. 539, 545-46, 964 P.2d 1015 (1998); Yogman v. Parrott, 325 Or. 358, 364, 937 P.2d 1019 (1997). Because there cannot be any waiver “by implication or by use of ambiguous language” and any ambiguity in the existence of a waiver of Eleventh Amendment immunity or in the scope of a waiver of Eleventh Amendment immunity “must be construed strictly in favor of the sovereign,” the parties agree the Court only needs to address the first step of Oregon’s three-step contract-interpretation analysis. See Nordic Village, 503 U.S. at 34, 112 S.Ct. 1011. See also F.A.A. v. Cooper, — U.S. -, 132 S.Ct. 1441, 1448, 182 L.Ed.2d 497 (2012). Specifically, the parties assert in an ordinary contract case the jury resolves any ambiguity in a contract provision. When, however, a contract provision involves a State’s purported waiver of Eleventh Amendment immunity, the court determines whether there is an ambiguity in the alleged waiver provision, and, if so, the court is compelled to find there was not a waiver.

The parties do not dispute Oregon consented under § 0.1 to suit in at least state court for violations of the OHA' OLSA because the language of § 0.1 clearly permits actions in state court against Oregon under the OHA OLSA. In addition, Oregon Revised Statute § 30.320 specifically contemplates contract actions against Oregon in state court, and the OTCA permits tort actions against Oregon in state court. The unsettled question is whether § 0.1 also waives Oregon’s Eleventh Amendment immunity to suit in federal court.

In Pettigrew the contract provision stated litigation to enforce the terms of the contract “will be brought in the appropriate Oklahoma court having jurisdiction, either state or federal.” 722 F.3d at 1214 (emphasis in original). As in this cáse, the defendant in Pettigrew asserted “[t]he only ‘appropriate’ Oklahoma court having jurisdiction over the state law claims ... would be Oklahoma’s state courts” because Eleventh Amendment immunity protects states from suits in federal court. 722 F.3d at 1215. Similarly, in Baum the provision in the parties’ contract stated the parties “hereby submit to jurisdiction in the appropriate State or Federal Courts of Record sitting in the State of Michigan.” 503 F.3d at 1368-69. The defendant in Baum asserted the venue provisions could “be read not as a waiver of immunity from suit, but merely an acceptance of venue in Michigan, if Baum can somehow overcome the obstacle of the University’s immunity.” 503 F.3d at 1370. As noted, the courts in both Pettigrew and Baum rejected the States’ arguments. For example, in Petti-grew the court noted adoption of the defendant’s interpretation of the venue provision would cause the word “appropriate” to void or to cancel “or federal.” The court concluded such an interpretation would violate Oklahoma’s rules of contract construction, which require contracts to be construed “‘so as to give effect to every part, if reasonably practicable.’ ” 722 F.3d at 1215-16 (quoting Okla. Stat. Tit. 15, § 157).

Although the specific language of § 0.1 is different from the wording in the Pettigrew and Baum contracts, the Court concludes the effect is the same. With respect to disputes related' to the OHA OLSA, § 0.1 provides DHS/OHA “agree[s] to submit to the exclusive jurisdiction of, and venue, in, if in state Courts, in the Circuit Court of the State of Oregon for Marion County or, if in federal courts, the United States District Court for the District of Oregon.” This phrasing is simply .another way of stating “appropriate jurisdiction” as in Pettigrew. Because the Eleventh Amendment prohibits actions against States in federal court, the phrase “if in federal court” must constitute a waiver or the phrase would áppear to be meaningless in the context of Oracle’s copyright-infringement claim against Oregon.

As noted, Oregon, nevertheless, argues there are three circumstances in which it asserts § 0.1 could have a meaning other than a waiver of Eleventh Amendment immunity: (1) If the Ninth Circuit holds the CRCA abrogates States’ Eleventh Amendment immunity to copyright actions, (2) if Oregon is the plaintiff in a federal claim, and/or (3) if Oregon voluntarily appears and defends an action in federal court on the merits. The Court concludes, however, that these examples actually lend credence to Oracle’s argument that § 0.1 is a waiver of Oregon’s Eleventh Amendment immunity because even without § 0.1, Oregon would properly be in federal court if it initiated an action on a federal claim, sought removal to federal court, or voluntarily appeared and defended an action in federal court on the merits. See, e.g., Cal. ex rel. Lockyer, 375 F.3d at 845 (“[A] state that voluntarily brings suit [on a federal claim] as a plaintiff in state court cannot invoke the Eleventh Amendment when the defendant seeks removal to a federal court of competent jurisdiction.”); Fordyce, 55 F.3d at 441 (A State can “waive Eleventh Amendment protection by voluntarily appearing and defending [a suit in federal court] on the merits.”). In addition, even though the Ninth Circuit had not decided whether Congress validly abrogated States’ Eleventh Amendment immunity when it enacted the CRCA, every other court that had addressed the question at the time that the parties entered into the OHA OLSA in 2011 concluded Congress did not so. The Court concludes it is not reasonable to infer on this record that the parties included the “if in federal court” language in § 0.1 only for the purpose of selecting this particular federal court to hear a copyright-infringement claim in the event that the Ninth Circuit concluded some time in the future that Congress validly abrogated Oregon’s Eleventh Amendment immunity with the CRCA.

In summary, after reviewing the text of § 0.1 in the context of the OHA OLSA as a whole as well as in the context of the parties’ negotiations, the Court concludes § 0.1 is a sufficiently clear and- unambiguous waiver of Oregon’s Eleventh Amendment immunity as to Oracle’s copyright-infringement claims against DHS/OHA.

IV, Authority to Waive Oregon’s Eleventh Amendment Immunity

Oregon asserts even if the Court finds § 0.1 to be a sufficiently clear waiver of Oregon’s Eleventh Amendment immunity with respect to Oracle’s copyright claim against the DHS/OHA, the Court should not enforce the waiver because Oregon Assistant Attorney General Jack McDonald-lacked the authority to waive Oregon’s Eleventh Amendment immunity.

As noted, a “state’s waiver must be accomplished by someone to whom that power is granted under state law.” Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 467, 65 S.Ct. 347, 89 L.Ed. 389 (1945). Although it is undisputed that the Oregon Attorney General has the power to waive the State’s Eleventh Amendment immunity, the parties dispute whether Assistant Attorney General McDonald had the authority to waive Oregon’s Eleventh Amendment immunity when he signed the OHA OLSA. The parties agree there is not any Ninth Circuit precedent on this issue.

Oregon relies on Magnolia Venture Capital Corp. v. Prudential Securities, Inc., to support its assertion that Assistant Attorney General McDonald lacked the authority to bind DHS/OHA to § 0.1. In Magnolia the Mississippi Department of Economic and Community Development (the MDECD) entered into a contract containing a provision that the Fifth Circuit assumed for purposes of its analysis was sufficient to indicate that Mississippi waived its Eleventh Amendment immunity. 151 F.3d at 442. Mississippi, however, asserted “.even if the venue.provision [was] construed as waiving Eleventh Amendment immunity, MDECD had no authority to waive Eleventh Amendment immunity,” and, therefore, Mississippi could still assert Eleventh Amendment immunity. Id. The Fifth Circuit concluded MDECD lacked the authority to waive Mississippi’s Eleventh Amendment immunity contractually, and, therefore, the matter should have been dismissed by the lower court. The Fifth Circuit explained courts -must look to the “ ‘general policy of the state as expressed in its Constitution, statutes and decisions’when determining whether a state official or entity has the authority to waive a State’s Eleventh Amendment immunity. Id. at 444 (quoting Ford Motor Co., 323 U.S. at 467, 65 S.Ct. 347). The authority to waive immunity “must' be clearly expressed” in these sources. Id. (citation omitted). Although the court found Mississippi law clearly waived the State’s sovereign immunity from suit in Mississippi state courts, “there [was] no Mississippi law to support the implication that MDECD had the authority to waive Mississippi’s Eleventh Amendment immunity.” Id.

Oracle, in turn, points to Oregon Revised Statute § 180.140(1), which provides:

The Attorney General shall appoint ... assistants the Attorney General deems necessary to ... perform such duties as .the Attorney General may designate and for whose acts the Attorney General shall be responsible. Each assistant shall have full authority under, the direction of the Attorney General to perform any duty required by law; to be performed by the Attorney General.

Oracle asserts because the Oregon Attorney General had the legal authority to waive Oregon’s Eleventh Amendment immunity, Assistant Attorney General McDonald had the same authority under § 180.140(1).

Oregon does not dispute § 180.140(1) generally vests assistant attorneys general “with the authority to perform duties that the Attorney Genéral may perform. Oregon, however, asserts Assistant Attorney General McDonald was not vested with the specific authority to waive Eleventh Amendment immunity, and, therefore, he could not do so in the OHA OLSA., Nonetheless, Oregon does not point to any statutory, constitutional, or regulatory authority that bars assistant attorneys general from waiving Eleventh Amendment immunity. Instead Oregon relies. on Oregon Department of Justice internal Policy Memo 5-80, which provides:

The. Attorney General has the authority to waive the State of Oregon’s Eleventh Amendment immunity from suit in federal court. This authority is inherent in the Attorney General’s responsibility to defend any action in any court and the DOJ’s authority to control and supervise the conduct of litigation.

' ❖ ' * *

The Attorney General may authorize waiver of the state’s 11th Amendment immunity in cases in federal court in which the state is a party and a claim for money damages is asserted or prospective relief is sought that could require a payment from state funds.

Decl. of John McDonald in Support of the State of Oregon’s Mot. for Summ. J., Ex. 1 at 1. The Policy Memo also, sets out a specific procedure that the Attorney General’s Office requires assistant attorneys general to follow in order to obtain permission to waive Eleventh Amendment immunity. The parties do not dispute that Assistant Attorney General McDonald failed to follow the internal Policy Memo procedure requiring him. - to obtain permission to waive Oregon’s Eleventh Amendment immunity in the OHA OLSA nor do the parties dispute that the Attorney General at the time, John Kroger, did not give Assistant Attorney General McDonald express permission to waive Oregon’s Eleventh Amendment immunity.

(The Court agrees with Oracle’s observa; tion that the internal Policy Memo is not a “[c]onstitution, statute[, or] decision” of the Oregon Legislature or Oregon courts, and, in light thereof, the Court concludes even under Magnolia Assistant Attorney General McDonald’s failure to follow the particular procedures set out in the Policy Memo is insufficient to establish that he lacked the actual authority to waive Eleventh Amendment immunity.

In the alternative, Oracle assérts even if Assistant Attorney General McDonald did not have the actual authority to waive Eleventh Amendment immunity, he had apparent authority to do so, and the parties proceeded under the terms of the OHA OLSA accordingly. Thus, Oracle contends DHS/OHA is bound by the terms of the OHA OLSA, including § 0.1. See Wiggins v. Barrett & Assoc., 295 Or. 679, 692-93, 669 P.2d 1132 (1983)(a public entity can be bound by an agent acting outside of the scope of his authority if that person acted with apparent authority). The Oregon Supreme Court has held an agent acts with apparent authority when: (l) He makes a promise that the public entity could lawfully make and perform, (2) the public entity “clothes” .the agent with apparent authority, (3) there is not any actual or constructive notice of the lack of actual authority, and (4) the public entity-retained a benefit in return for the promise. Wiggins, 295 Or. at 697, 669 P.2d 1132.

As noted, it is undisputed that the Attorney General has the power to waive, the State’s Eleventh Amendment immunity and that assistant attorneys general are authorized by statute to act with “full authority under the direction of the Attorney General to perform any duty required by law to be performed by the Attorney General.” Or. Rev. Stat. § 180.140(1). In addition, when the State authorized Assistant Attorney General McDonald to negotiate the provisions of the OHA OLSA and to sign the OHA OLSA, the Court finds Oregon “clothed” him with apparent authority to bind Oregon to the provisiohs of the OHA OLSA, including § 0.1. Moreover, it is undisputed that Assistant Attorney'General McDonald did not advise Oracle nor did Oracle have any indication that Assistant Attorney General McDonald lacked the authority to agree to § 0.1. Thus, Oracle did not have actual or constructive notice that Assistant Attorney General McDonald might lack the authority to agree to § 0.1. Finally, as Oracle points out, Oregon does not dispute for purposes of this issue that it received a benefit from the OHA OLSA.

Oregon, however,’ asserts Assistant Attorney General McDonald could not act with apparent authority outside of the scope of his actual authority. Because Assistant Attorney General. McDonald did not have the actual authority to permit him to waive the State’s Eleventh Amendment immunity, Oregon contends he also did not have the apparent authority to do so. Oregon relies on Baker v. Deschutes County, 10 Or.App. 236, 498 P.2d 803 (1972), to sup