sovereign immunity pursuant to its Article I powers; only legitimate exercises of legislative power pursuant to § 5 of the Fourteenth Amendment to the United States have been held to abrogate immunity. See Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 636-37, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999). Such legislation simply is not implicated by the facts of this case. (3) Lastly, a state may consent to suit in federal court, thereby waiving its sovereign immunity. Shieldalloy makes two consent/waiver arguments. Waiver through litigation conduct First, Shieldalloy asserts that NJ DEP waived sovereign immunity through its actions in the prior bankruptcy case. See generally Lapides v. Bd. of Regents, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (<HOLDING>). Specifically, Shieldalloy argues that by
holding that a state defendant waives sovereign immunity when it removes a state court case to federal court thereby deliberately invoking the federal courts subject matter jurisdiction holding that state defendant waived eleventh amendment immunity to a federal claim by removing to federal court holding that a lack of a waiver of sovereign immunity deprives federal courts of subject matter jurisdiction holding that state could not assert sovereign immunity defense where the state had waived immunity in state court and agreed to remove suit to federal court holding that when state voluntarily submits a claim in a bankruptcy proceeding the state waives its sovereign immunity