FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 September 2, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 EDWARD HELMICK,

               Plaintiff-Appellee,                          No. 09-4139
          v.                                                  (D. Utah)
 UTAH VALLEY STATE COLLEGE; TOM                   (D.C. No. 2:07-CV-00355-JTG)
 McFARLAND; LARRY MARSING,

               Defendant-Appellants.


                           ORDER AND JUDGMENT *


Before MURPHY, SEYMOUR, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. The oral argument scheduled

for Thursday, September 23, 2010, is vacated, and counsel are excused from

attendance.



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I. Introduction

      Edward Helmick sued his former employer, the Utah Valley State College

(“UVSC”), and two UVSC administrators, Tom McFarland and Larry Marsing,

under the Age Discrimination in Employment Act (ADEA) and 42 U.S.C. § 1983.

Defendants filed a motion to dismiss and the district court concluded it lacked

subject matter jurisdiction over the ADEA claims brought against UVSC and the

individual defendants in their official capacities because Defendants were entitled

to Eleventh Amendment immunity with respect to these claims. The district court

also concluded Helmick’s § 1983 claims were not cognizable independent of the

ADEA, and that the two UVSC administrators were entitled to qualified immunity

from Helmick’s § 1983 claims against them in their individual capacities. Instead

of dismissing the case, however, the district court remanded Helmick’s claims

against UVSC, McFarland, and Marsing to the Utah Anti-Discrimination and

Labor Division (“UALD”) for reconsideration pursuant to Utah Code Ann. § 34A-

5-107 and § 63G-4-203. Defendants timely appealed. Exercising jurisdiction

under 28 U.S.C. § 1291, 1 this court REVERSES the district court’s remand order,

and REMANDS to the district court with instructions to dismiss Helmick’s

complaint in its entirety.




      1
       This appeal is not precluded by 28 U.S.C.A. § 1447(d) because this case
was originally filed in federal court; it was not removed from state court.

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II. Background

      Helmick was employed as a flight instructor at UVSC beginning in 2005.

In 2006, he was not hired for a new faculty position and his request to teach

specific classes was denied. He was 60 years old at the time.

      In response, Helmick filed an age discrimination claim with the UALD and

the Equal Employment Opportunity Commission (“EEOC”). The EEOC issued a

right-to-sue letter in 2007. Helmick then withdrew his claim with the UALD and

filed a complaint in federal court alleging ADEA claims against UVSC. Helmick

later amended his complaint to include additional claims against the two UVSC

administrators under both the ADEA and 42 U.S.C. § 1983.

      Defendants filed a motion to dismiss Helmick’s claims with prejudice.

They argued that UVSC, as well as the individual defendants in their official

capacities, were entitled to Eleventh Amendment immunity from Helmick’s

ADEA claims. Further, they contended Helmick’s § 1983 claims failed because

the ADEA was the exclusive remedy for age discrimination, and that McFarland

and Marsing enjoyed qualified immunity from Helmick’s § 1983 claims against

them in their individual capacities. The district court agreed, concluding it lacked

subject matter jurisdiction over Helmick’s ADEA claims because of the Eleventh

Amendment. Further, it concluded Helmick’s § 1983 claims were not cognizable

independent of the ADEA, and that the two UVSC administrators were entitled to

qualified immunity from being sued in their individual capacities. Instead of

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dismissing the case, however, the district court granted Helmick fifteen days to

file a motion to remand to state court for further proceedings. Helmick then filed

a motion requesting remand of his claims against UVSC, McFarland, and Marsing

to the UALD which the district court granted. Defendants appeal from this

remand order. 2

III. Analysis

      Under Fed. R. Civ. P. 12(h)(3), “[i]f the court determines at any time that it

lacks subject matter jurisdiction, the court must dismiss the action.” As noted, in

their motion to dismiss, Defendants contended they were entitled to Eleventh

Amendment immunity from Helmick’s ADEA claims. In this circuit, “an

assertion of Eleventh Amendment immunity concerns the subject matter

jurisdiction of the district court.” Ruiz v. McDonnell, 

, 1180 (10th

Cir. 2002). Accordingly, when the district court determined Helmick’s ADEA

claims were barred by the Eleventh Amendment, it should have dismissed them

pursuant to Fed. R. Civ. P. 12(h)(3), not remanded them to the UALD.

      Further, the district court remand order also erred in remanding Helmick’s

remaining claims against McFarland and Marsing. In its ruling on the merits, the

district court determined that Helmick’s claims against the two UVSC

administrators failed on the merits. In light of this merits determination, which


      2
       Neither party appeals from the district court’s underlying substantive
ruling on the merits of UVSC’s motion to dismiss.

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Helmick does not challenge on appeal, the district court should have dismissed

Helmick’s claims against McFarland and Marsing with prejudice, rather than

conditioning their dismissal on Helmick’s filing of a motion to remand.

IV. Conclusion

      For the foregoing reasons, this court REVERSES the district court’s

remand order, and REMANDS to the district court with instructions to dismiss

Helmick’s ADEA claims for lack of subject matter jurisdiction, and to dismiss his

remaining claims against McFarland and Marsing for substantially the reasons

stated in the district court’s ruling on the merits.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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