Filed: Jul. 23, 2013
Latest Update: Feb. 12, 2020
Summary: Case: 12-10436 Date Filed: 07/23/2013 Page: 1 of 19 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-10436 _ D.C. Docket No. 2:11-cv-00006-MEF-CSC PATRICIA G. STROUD, Plaintiff–Appellant, versus PHILLIP MCINTOSH, THE ALABAMA BOARD OF PARDONS AND PAROLES, Defendants–Appellees. _ Appeal from the United States District Court for the Middle District of Alabama _ (July 23, 2013) Before WILSON and COX, Circuit Judges, and VOORHEES, * District Judge. * Honorable Richard
Summary: Case: 12-10436 Date Filed: 07/23/2013 Page: 1 of 19 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-10436 _ D.C. Docket No. 2:11-cv-00006-MEF-CSC PATRICIA G. STROUD, Plaintiff–Appellant, versus PHILLIP MCINTOSH, THE ALABAMA BOARD OF PARDONS AND PAROLES, Defendants–Appellees. _ Appeal from the United States District Court for the Middle District of Alabama _ (July 23, 2013) Before WILSON and COX, Circuit Judges, and VOORHEES, * District Judge. * Honorable Richard ..
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Case: 12-10436 Date Filed: 07/23/2013 Page: 1 of 19
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 12-10436
_________________________
D.C. Docket No. 2:11-cv-00006-MEF-CSC
PATRICIA G. STROUD,
Plaintiff–Appellant,
versus
PHILLIP MCINTOSH,
THE ALABAMA BOARD OF PARDONS AND PAROLES,
Defendants–Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(July 23, 2013)
Before WILSON and COX, Circuit Judges, and VOORHEES, * District Judge.
*
Honorable Richard Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
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COX, Circuit Judge:
The principal issues we address in this appeal are (1) whether removal of
this case to a federal court waived the state agency’s sovereign immunity from suit
in a federal court, and (2) whether removal of the case waived the agency’s
sovereign immunity from liability on a claim under the federal Age Discrimination
in Employment Act. We conclude that removal waived the agency’s immunity
from suit in a federal forum but did not waive the agency’s immunity from liability
on this federal claim. We affirm.
I. FACTS AND PROCEDURAL HISTORY
This case began in a circuit court in Montgomery County, Alabama, in
December 2010, when Patricia Stroud sued her employer, the Alabama Board of
Pardons and Paroles, and Phillip McIntosh, the Board’s personnel director during
the relevant time. Against the Board, Stroud’s original complaint alleged claims
under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2, and the Alabama Age
Discrimination in Employment Act (AADEA), Ala. Code §§ 25-1-20 to -29. The
Complaint alleged the same claims against McIntosh, as well as a claim under 42
U.S.C. § 1983 and state law claims for wanton conduct and intentional infliction of
emotional distress.
The Board and McIntosh removed the case to federal court, invoking the
court’s subject-matter jurisdiction under 28 U.S.C. § 1331. Five months after
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removal, Stroud amended her complaint. The Amended Complaint alleged claims
under § 1983 and Title VII against both defendants, repeated the state law claims
against McIntosh, and added a claim for damages under the federal Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–634, against the
Board.
In its Answer, the Board asserted as an affirmative defense (among many
others) that the Eleventh Amendment and the doctrine of sovereign immunity
barred all of Stroud’s claims against it. (Dkt. 26 at 17–18.) The Board then moved
for judgment on the pleadings, and McIntosh moved to dismiss the case.
The district court dismissed all of Stroud’s federal claims other than the
ADEA claim for failure to state a claim. (Immunity was not a basis for dismissal
of these claims.) Importantly for this appeal, the district court held that the Board
was immune from liability under the ADEA and did not waive that immunity when
it removed the case to federal court. The court entered judgment in favor of the
Board on the ADEA claim and remanded the remaining state law claims against
McIntosh to state court.
Stroud appeals.
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II. ISSUES ON APPEAL AND CONTENTIONS OF THE PARTIES
Stroud raises a number of issues on appeal. We address only her contentions
that the Board waives its immunity from suit and its immunity from liability under
the ADEA when it removed the case. 1
For these contentions, Stroud relies on the Supreme Court’s reasoning in
Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613,
122 S. Ct. 1640 (2002). She argues that the rationale behind Lapides’s holding
suggests that a state waives its sovereign immunity—to both a federal forum and
liability for a particular claim—when it removes a case. The Board contends in
response that Lapides is distinguishable on its facts and that Lapides’s reasoning
does not inform our result in this case; accordingly, the Board argues, it did not
waive its immunity from suit or from liability by removing.
III. DISCUSSION
The questions we address—whether a state waives its sovereign immunity
from suit and whether it waives its immunity from liability when it removes—are
questions of law that we review de novo. See Barnes v. Zaccari, 669 F.3d 1295,
1302 (11th Cir. 2012).
1
Stroud challenges other rulings of the district court, none of which were resolved on the
basis of sovereign immunity. Specifically, she contends that the district court improperly
dismissed her Title VII claims against both defendants and erred by dismissing her § 1983 claims
against McIntosh. We conclude that there is no error in these challenged rulings.
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A. Sovereign Immunity and the Eleventh Amendment
Put in its broadest form, the concept of sovereign immunity bars private
citizens from suing states for damages. See Fed. Mar. Comm’n v. S.C. State Ports
Auth., 535 U.S. 743, 751–52,
122 S. Ct. 1864, 1870 (2002). This immunity also
shields “arms of the State” from suit. N. Ins. Co. of N.Y. v. Chatham Cnty., Ga.,
547 U.S. 189, 193,
126 S. Ct. 1689, 1693 (2006). There is no dispute that the
Board is an arm of the state for the purposes of asserting sovereign immunity.
States enjoyed this immunity as a perquisite of their sovereignty before
entering the United States. See Hans v. Louisiana, 134 U.S. 1, 16,
10 S. Ct. 504,
507 (1890). But soon after the Constitution was adopted, the Supreme Court took
the position that Article III’s extension of federal jurisdiction to controversies
“between a State and Citizens of another State,” U.S. Const. art. III, § 2, allowed
states to be sued by citizens of other states in federal court. Chisholm v. Georgia, 2
U.S. (2 Dall.) 419, 466 (1793) (opinion of Wilson, J.), superseded by constitutional
amendment, U.S. Const. amend. XI. The reaction to this “unexpected blow to state
sovereignty” was overwhelmingly negative. Alden v. Maine,
527 U.S. 706, 720,
119 S. Ct. 2240, 2250 (1999) (quoting David P. Currie, The Constitution in
Congress: The Federalist Period 1789–1801, at 196 (1997)). This negative
response to Chisholm crystallized two years later with the ratification of the
Eleventh Amendment.
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By its terms, the Eleventh Amendment prohibits the “Judicial power of the
United States” from reaching “any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State.” U.S. Const. amend.
XI. But the language is deceiving; the Supreme Court interprets the Eleventh
Amendment to mean far more than what it says. See Blatchford v. Native Vill. of
Noatak, 501 U.S. 775, 779,
111 S. Ct. 2578, 2581 (1991) (“[W]e have understood
the Eleventh Amendment to stand not so much for what it says, but for the
presupposition . . . which it confirms . . . .”). Though the Amendment’s text
appears to only withdraw federal jurisdiction from any private suit against a state
by a noncitizen, the Supreme Court reads the Amendment to remove any doubt
that the Constitution preserves states’ sovereign immunity in the federal courts.
Va. Office for Prot. & Advocacy v. Stewart, ___ U.S. ___,
131 S. Ct. 1632, 1637
(2011) (“[W]e have understood the Eleventh Amendment to confirm the structural
understanding that States entered the Union with their sovereign immunity intact,
unlimited by Article III’s jurisdictional grant.”); Kimel v. Fla. Bd. of Regents,
528
U.S. 62, 73,
120 S. Ct. 631, 640 (2000) (“[F]or over a century now, we have made
clear that the Constitution does not provide for federal jurisdiction over suits
against nonconsenting States.”); Pennhurst State Sch. & Hosp. v. Halderman,
465
U.S. 89, 98,
104 S. Ct. 900, 906 (1984) (recognizing that the Eleventh
Amendment’s “significance lies in its affirmation that the fundamental principle of
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sovereign immunity limits the grant of judicial authority in Art. III” of the
Constitution).
Importantly, the Eleventh Amendment is neither a source of nor a limitation
on states’ sovereign immunity from suit. Alden, 527 U.S. at 713, 119 S. Ct. at
2246. Rather, it is a recognition of states’ sovereign immunity in federal court.
See Erwin Chemerinsky, Federal Jurisdiction 422 (6th ed. 2012) (“The Court has
thus ruled that there is a broad principle of sovereign immunity that applies in both
federal and state courts; the Eleventh Amendment is a reflection and embodiment
of part of that principle.”).
Like most general rules, sovereign immunity has exceptions. The Supreme
Court has recognized two ways that a private person can sue a state for damages:
either (1) Congress can abrogate sovereign immunity by enacting legislation to
enforce the substantive provisions of the Fourteenth Amendment, or (2) a state can
waive its sovereign immunity. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary
Educ. Expense Bd., 527 U.S. 666, 670,
119 S. Ct. 2219, 2223 (1999).
B. Stroud’s Contention
The ADEA, as enacted, authorized suits against states. But the Supreme
Court held that Congress was without authority to abrogate states’ sovereign
immunity against ADEA claims. See Kimel, 528 U.S. at 91–92, 120 S. Ct. at 650.
The Court held that the ADEA was “not a valid exercise of Congress’s power
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under § 5 of the Fourteenth Amendment” because of “the indiscriminate scope of
the Act’s substantive requirements[] and the lack of evidence of widespread and
unconstitutional age discrimination by the States.” Id. at 91, 120 S. Ct. at 650.
Stroud recognizes Kimel’s holding. But she argues that the Board waived
this immunity when it removed the case to federal court.2 And she rests this
argument on the Supreme Court’s opinion in Lapides, 535 U.S. 613,
122 S. Ct.
1640.
C. Lapides and Its Scope
The facts in Lapides bear some similarity to the facts in this case. A
university professor sued the Board of Regents of the University System of
Georgia (an arm of the state) in state court, alleging a violation of Georgia law.
Notably, Georgia had expressly consented to suit in its own courts for the alleged
violation. The plaintiff also named certain university officials as defendants and
alleged claims under § 1983 against them. The defendants in Lapides removed the
2
Stroud also argues that Alabama consented to suit for federal ADEA claims when it
enacted the AADEA, because the AADEA “specifically adopted all of the rights and remedies of
the federal [ADEA].” (Appellant’s Br. at 12.)
This argument is meritless. First, the argument assumes that a state consents to suit
simply by passing a law creating liability for employers generally. Alabama has not expressly
waived its immunity from AADEA claims. Cf. Larkins v. Dep’t of Mental Health & Mental
Retardation, 806 So. 2d 358, 363 (Ala. 2001) (“[The state’s] immunity cannot be waived by the
Legislature or by any other State authority.”). Second, even if Alabama had waived its immunity
from AADEA claims, that fact would not affect whether Alabama waived its immunity from
claims under the federal ADEA. A state does not waive immunity against a federal law by
waiving immunity against a similar state law. See
Kimel, 528 U.S. at 91–92, 120 S. Ct. at 650
(recognizing that states’ express consent to claims under state age-discrimination laws does not
affect states’ immunity from federal ADEA claims).
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case to federal court. The district court then dismissed the § 1983 claims on the
basis of qualified immunity, leaving only the state law claim against the Board of
Regents. The Board of Regents asserted immunity under the Eleventh Amendment
from the state law claim in federal court, but the district court held that the Board
of Regents had waived its immunity when it removed the case.
The Supreme Court agreed with the district court. Using the phrase
“Eleventh Amendment immunity” to refer to a state’s immunity from suit in a
federal forum, the Court began by reciting the principle that a state waives its
Eleventh Amendment immunity by voluntarily invoking the jurisdiction of the
federal courts. Lapides, 535 U.S. at 619, 122 S. Ct. at 1643–44. That principle,
the Court decided, applies where the state removes a case to federal court because
removal constitutes a voluntary invocation of federal jurisdiction.
Id. at 620, 122
S. Ct. at 1644. The Court reasoned that the principle has as its main concern the
potential for “inconsistency, anomaly, and unfairness” if a state were allowed to (a)
submit its case for resolution in the federal courts and (b) if advantageous, deny the
federal courts’ jurisdiction to resolve the case.
Id. at 619–23, 122 S. Ct. at 1643–
46. Even though the Board of Regents argued that it sought no unfair advantage
by removing, the Court refused to consider its motive because “[m]otives are
difficult to evaluate, while jurisdictional rules should be clear.”
Id. at 621, 122 S.
Ct. at 1645. Ultimately, the Court said, “the rule is a clear one”—“removal is a
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form of voluntary invocation of a federal court’s jurisdiction sufficient to waive the
State’s otherwise valid objection to litigation of a matter . . . in a federal forum.”
Id. at 623–24, 122 S. Ct. at 1646.
The Court placed two restrictions on its holding. Because (1) the only
remaining claim in the case was a state law claim and (2) Georgia had waived its
immunity-based objection to suit in its own courts, the Court limited its holding to
“state-law claims, in respect to which the State has explicitly waived immunity
from state-court proceedings.” Id. at 617, 122 S. Ct. at 1643. The Court noted that
the plaintiff’s claim was a state law claim, not “a valid federal claim against the
State.”
Id. Moreover, the opinion declined to “address the scope of waiver by
removal in a situation where the State’s underlying sovereign immunity from suit
has not been waived or abrogated in state court.”
Id. at 617–18, 122 S. Ct. at 1643.
The contrast between Lapides’s narrow holding and its broad reasoning has
sparked a debate in other circuits. These courts have addressed the weight of
Lapides’s reasoning in the situations Lapides’s holding expressly does not
control—where the state removes a case involving a valid federal law claim or
where the state has not relinquished its immunity from suit in its own courts. We
find a brief review of these cases helpful to give context to this case.
Most circuit courts seem to agree that the Lapides Court’s reasoning should
apply in cases involving federal law claims as well as those involving state law
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claims. That is, the source of a plaintiff’s claim against a state (state law or federal
law) is irrelevant to whether a state waives its immunity against that claim by
removing to federal court. See Lombardo v. Penn., Dep’t of Pub. Welfare, 540
F.3d 190, 197 (3d Cir. 2008) (applying Lapides’s reasoning to a state’s removal of
a federal claim); Embury v. King,
361 F.3d 562, 564 (9th Cir. 2004) (“Nothing in
the reasoning of Lapides supports limiting the waiver . . . to state law claims
only.”); Estes v. Wyo. Dep’t of Transp.,
302 F.3d 1200, 1204 (10th Cir. 2002)
(applying Lapides’s reasoning to hold that the state waived immunity by removing
a federal claim); see also Bergemann v. R.I. Dep’t of Envtl. Mgmt.,
665 F.3d 336,
340–42 (1st Cir. 2011) (distinguishing Lapides in the context of a removed federal
law claim without reference to Lapides’s application only to removed state law
claims); Stewart v. North Carolina,
393 F.3d 484, 490 (4th Cir. 2005) (same).
But the circuits divide over the meaning of Lapides’s second limitation—
that it does not control cases in which the state has not relinquished its sovereign
immunity in its own courts against the claim in question. On one hand, three
circuits (the First and Fourth Circuits and the D.C. Circuit) distinguish Lapides on
that basis, holding that a state did not waive sovereign immunity by removing a
case because, unlike Georgia in Lapides, the state had not waived its immunity in
its own courts. See Bergemann, 665 F.3d at 341;
Stewart, 393 F.3d at 488–89;
Watters v. Washington Metro. Area Transit Auth.,
295 F.3d 36, 42 n.13 (D.C. Cir.
11
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2002), cert. denied, 538 U.S. 1574,
123 S. Ct. 1574 (2003). On the other hand,
three circuits (the Seventh, Ninth, and Tenth) read Lapides’s broad reasoning to
establish the general rule that a state’s removal to federal court constitutes a waiver
of immunity, regardless of what a state waived in its own courts. See Bd. of
Regents of the Univ. of Wis. Sys. v. Phoenix Int’l Software, Inc.,
653 F.3d 448, 461
(7th Cir. 2011);
Embury, 361 F.3d at 564–65;
Estes, 302 F.3d at 1204–06.
Two circuits (the Third and Fifth) occupy something of a middle ground.
See Lombardo, 540 F.3d 190; Meyers ex rel. Benzing v. Texas,
410 F.3d 236 (5th
Cir. 2005), cert. denied sub nom. Texas v. Meyers,
550 U.S. 917,
127 S. Ct. 2126
(2007). These courts conclude that Lapides’s reasoning informs the answer to the
question of whether a state has waived its immunity-based objection to suit in a
federal forum—and only that question. But sovereign immunity, they say,
encompasses more than this narrow immunity from federal jurisdiction;
specifically, a state that waives its forum-based immunity may still have immunity
from liability for particular claims. See
Lombardo, 540 F.3d at 198–200;
Meyers,
410 F.3d at 252–55. That underlying immunity from liability is unaffected by the
state’s voluntary invocation of the federal forum. See
Lombardo, 540 F.3d at 200;
Meyers, 410 F.3d at 255.
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D. Our Holding
We agree with the conclusions of the Third and Fifth Circuits. We hold that
although the Board’s removal to federal court waived its immunity-based objection
to a federal forum, the Board retained its immunity from liability for a violation of
the ADEA.
1.
As a preliminary matter, we agree that sovereign immunity is a divisible
concept. See Lombardo, 540 F.3d at 198–200;
Meyers, 410 F.3d at 252–55. The
Supreme Court has repeatedly recognized that sovereign immunity is a flexible
defense with multiple aspects that states can independently relinquish without
affecting others. See, e.g., Sossamon v. Texas, 563 U.S. ___,
131 S. Ct. 1651, 1658
(2011) (noting that a state’s waiver of sovereign immunity “in its own courts is not
a waiver of its immunity from suit in federal court” and that a state can retain its
“immunity to damages” even if it waives sovereign immunity against “other types
of relief”); Fed. Mar.
Comm’n, 535 U.S. at 766, 122 S. Ct. at 1877 (suggesting that
sovereign immunity is an immunity “from suit” and encompasses a narrower
“defense to monetary liability”); Coll. Sav.
Bank, 527 U.S. at 676, 119 S. Ct. at
2226 (noting that a state can retain its immunity from suit in federal court even
when it waives immunity in its own courts (citing Smith v. Reeves,
178 U.S. 436,
441–45,
20 S. Ct. 919, 921–22 (1900))); Atascadero State Hosp. v. Scanlon, 473
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U.S. 234, 241,
105 S. Ct. 3142, 3146–47 (1985) (same), superseded by statute on
other grounds, Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, 100
Stat. 1807. And courts (including ours) have acknowledged that sovereign
immunity can include immunity from suit as well as immunity from liability,
depending on a state’s choices in fashioning the scope of its immunity. See, e.g.,
New Hampshire v. Ramsey,
366 F.3d 1, 15 (1st Cir. 2004) (“Certainly, a state may
waive its immunity from substantive liability without waiving its immunity from
suit in a federal forum.”); CSX Transp., Inc. v. Kissimmee Util. Auth.,
153 F.3d
1283, 1286 (11th Cir. 1998) (examining Florida law and determining that Florida
fashions its sovereign immunity as an immunity from liability but not from suit);
cf. Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 58,
116 S. Ct. 1114, 1124 (1996)
(explaining that the sovereign immunity embodied by the Eleventh Amendment
exists both to “preven[t] federal-court judgments that must be paid out of a State’s
treasury,” implying an immunity from liability, and to “avoid the indignity of
subjecting a State to the coercive process of judicial tribunals at the instance of
private parties,” implying an immunity from suit (alteration in original) (internal
quotation marks omitted)).
The point that arises from these cases: a state, if it chooses, can retain
immunity from liability for a particular claim even if it waives its immunity from
suit in federal courts.
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2.
The Board contends that Lapides does not apply to this case because, unlike
in Lapides, Alabama has not waived its immunity before its own courts for ADEA
claims. We agree with the Board’s position that Lapides is distinguishable and
does not control our result. But the first question we address is whether to accept
Lapides’s reasoning as support for a holding that removal in this case waived the
Board’s immunity from a federal forum. We conclude that Lapides’s reasoning
supports that holding.
A close reading of the opinion shows that the Lapides Court sought to avoid
the unfairness, anomaly, and inconsistency of a state’s invocation of federal
jurisdiction by removal, on one hand, and on the other, its denial of federal
jurisdiction by asserting immunity from federal court proceedings. The Court first
mentions this potential anomaly at the beginning of its analysis:
It would seem anomalous or inconsistent for a State both (1) to invoke
federal jurisdiction, thereby contending that the “Judicial power of the
United States” extends to the case at hand, and (2) to claim Eleventh
Amendment immunity, thereby denying that the “Judicial power of
the United States” extends to the case at hand.
Lapides, 535 U.S. at 619, 122 S. Ct. at 1643. This paradox, the Court says, “could
generate seriously unfair results.”
Id. The Court notes that the voluntary-
invocation principle seeks to avoid “selective use of ‘immunity’ to achieve
litigation advantages.”
Id. at 620, 122 S. Ct. at 1644. In other words, it would be
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unfair to allow a state to remove to a federal forum and then assert a jurisdictional
immunity from that federal forum—this tactic would allow a state to essentially
use removal as a jurisdictional trump card in any case initiated in a state forum that
could fall under the original jurisdiction of the federal courts.
So, under Lapides’s reasoning, a state waives its immunity from a federal
forum when it removes a case, which voluntarily invokes the jurisdiction of that
federal forum. But nothing in Lapides suggests that a state waives any defense it
would have enjoyed in state court—including immunity from liability for
particular claims. Lapides specifies that it is addressing only immunity to a federal
forum. Id. at 618, 122 S. Ct. at 1643 (narrowing the discussion to whether Georgia
waived its “Eleventh Amendment immunity from suit in a federal court”);
id. at
624, 122 S. Ct. at 1646 (“[R]emoval is a form of voluntary invocation of a federal
court’s jurisdiction sufficient to waive the State’s otherwise valid objection to
litigation of a matter . . . in a federal forum.” (emphasis added)). In fact, the
opinion distinguishes this immunity against federal court proceedings from a
state’s “underlying sovereign immunity,” id. at
617–18, 122 S. Ct. at 1643—
implying that its discussion of immunity from federal court does not address other
aspects of sovereign immunity, including a state’s immunity from liability.
Finally, the Court’s reasoning, including its concern for the potential unfairness of
a state gaining a new litigation advantage by removing, does not involve a state’s
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immunity from liability that the state would have enjoyed had it remained in its
own courts. We do not understand Lapides to require the state to forfeit an
affirmative defense to liability simply because it changes forums. But the Lapides
Court’s reasoning supports the propositions that a state consents to federal
jurisdiction over a case by removing and that it cannot then challenge that
jurisdiction by asserting its immunity from a federal forum. We therefore hold that
the Board waived its immunity from suit in federal court when it removed the
case.3
3.
That brings us to our final point. The defense of immunity from a federal
forum was not the only immunity-based defense the Board had in its arsenal and
asserted in the Answer. As we have established, a state can waive its forum
immunity but retain other aspects of sovereign immunity, including immunity from
liability for certain claims. See Lombardo, 540 F.3d at 198–200; Meyers,
410 F.3d
3
That Stroud added the ADEA claim only after the case was removed does not change
the result. Forum immunity is a jurisdictional immunity that shields a state from suit in federal
court. U.S. Const. amend. XI (“The Judicial power of the United States shall not be construed to
extend to any suit . . . .” (emphasis added)). Once that jurisdiction is invoked by removal, the
federal court has jurisdiction over the entire case—not simply those claims that the complaint
alleged at the time of removal. See 28 U.S.C. § 1441(a) (“[A]ny civil action brought in a State
court of which the district courts of the United States have original jurisdiction[] may be
removed by the defendant . . . .”); Fed. R. Civ. P. 81(c)(1) (applying the Federal Rules of Civil
Procedure to removed cases);
id. R. 15(a)(2) (allowing parties in civil cases to amend pleadings
“with the opposing party’s written consent or the court’s leave”);
Embury, 361 F.3d at 565
(“[T]he State removed the case, not the claims, and like all cases in federal court, it became
subject to liberal amendment of the complaint.”).
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at 252–55. Here, an arm of the state remains immune from liability for claims
under the ADEA, notwithstanding its removal of the case.
The Supreme Court has made it clear that the ADEA is unconstitutional as
applied to the states because Congress did not enact the law under section 5 of the
Fourteenth Amendment, the only recognized constitutional basis for abrogating
states’ sovereign immunity. Kimel, 528 U.S. at 91–92, 120 S. Ct. at 650. The
Board’s removal of the case did not waive its constitutional objection to ADEA
liability on the basis of sovereign immunity. See
Meyers, 410 F.3d at 255 n.27
(recognizing that, even after waiver by removal, a state may raise an objection to
liability on the basis that Congress did not abrogate its sovereign immunity).
Nor has Alabama waived its immunity from ADEA claims through other
means. Alabama retains a “nearly impregnable” immunity from suit, Patterson v.
Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002), and neither the state legislature
nor any other state authority can waive it, Larkins v. Dep’t of Mental Health &
Mental Retardation,
806 So. 2d 358, 363 (Ala. 2001). Alabama may assert the
defense of immunity from ADEA liability in state court. Cf. Ala. State Docks
Terminal Ry. v. Lyles,
797 So. 2d 432, 438 (Ala. 2001) (holding that an arm of the
state was immune in the state trial court from a claim brought under the Federal
Employers’ Liability Act). Its removal to federal court did not affect the
availability of that defense. Cf.
Lombardo, 540 F.3d at 198 (“[W]hile voluntary
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removal waives a State’s immunity from suit in a federal forum, the removing
State retains all defenses it would have enjoyed had the matter been litigated in
state court, including immunity from liability.”); Meyers, 410 F.3d at 255 (“[T]he
Constitution permits and protects a state’s right to relinquish its immunity from
suit while retaining its immunity from liability, or vice versa . . . .”). The Board’s
affirmative defense of sovereign immunity was therefore valid, and the district
court correctly held that the Board did not waive that defense by removing.
IV. CONCLUSION
We conclude that the Board waived its defense of immunity from litigation
in federal court when it removed to federal court, but the Board did not waive its
immunity from ADEA liability. The judgment of the district court is therefore
AFFIRMED.
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