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States may waive Eleventh Amendment immunity with respect to litigating in federal courts and still retain its immunity from liability

States may waive Eleventh Amendment immunity with respect to litigating in federal courts and still retain its immunity from liability
Michael A. Lombardo v Commonwealth of Pennsylvania, Estelle Richman, Secretary of the Department of Public Welfare, in her official capacity, USCA, 3rd Circuit, Docket 06-4628

Typically a state will invoke the 11th Amendment to avoid having to litigate an issue in the federal courts. In Lombardo, the United States Circuit Court of Appeals, Third Circuit, considered the impact of a state?s decision to waive its ?sovereign immunity? and under what circumstances such immunity may be waived.

Alleging violation of the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634; and violation of the Pennsylvania Human Relations Act (PHRA), 43 Pa. Cons. Stat. §§ 951-963.Michael A. Lombardo filed an employment discrimination complaint against the Commonwealth of Pennsylvania?s Department of Public Welfare and its Secretary, in Pennsylvania state court. The Commonwealth removed the complaint to the United States District and sought partial dismissal on sovereign immunity grounds. Agreeing that Pennsylvania had not statutorily waived its sovereign immunity for claims brought under the federal statute at issue, the central question in this appeal is whether the Commonwealth waived such immunity by voluntarily removing this matter from state to federal court.

The Circuit Court ruled that state sovereign immunity includes both immunity from suit in federal court and immunity from liability, and that a State may waive one without waiving the other.

Because the Commonwealth?s removal did not waive its immunity from liability, it reversed the lower courts decision and remand the case to it with instructions to grant the Commonwealth?s motion for partial dismissal.

In Seminole Tribe of Fla. v. Florida, 517 U.S. 44, the United States Supreme Court held that ?[t]he Constitution specifically recognizes the States as sovereign entities?). An important feature of this sovereignty is state sovereign immunity. The Supreme Court has described sovereign immunity ?as based ?on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.??

Accordingly, the Third Circuit ruled that there were two distinct types of state sovereign immunity: immunity from suit in federal court and immunity from liability.

However, as the court noted, a State?s immunity from suit is not absolute. Congress may abrogate a State?s sovereign immunity ?in the exercise of its power to enforce the Fourteenth Amendment?.? In contrast, although the ADEA does contain a clear congressional statement of intent to abrogate the States? immunity, the Supreme Court in Kimel v. Fla. Bd. of Regents, 528 U.S. 62 ruled that this abrogation exceeded Congress? §5 powers.

The Third Circuit said, ?We hold that the Commonwealth?s removal of federal-law claims to federal court effected a waiver of immunity from suit in federal court. Our holding today does not affect a State?s ability to raise sovereign immunity when it is involuntarily brought into federal court. It is only when a State removes federal-law claims Lombardo asserts that the Commonwealth has waived this claim, since it did not raise the matter in the District Court.?
As to a ?states liability,? a State may waive its immunity from liability, but such a waiver must be express and unequivocal.

Thus, in this instance, the Third Circuit found that it is possible for ?a removing State [to waive] its Eleventh Amendment immunity from suit in a federal forum but [retain] its immunity from liability? and thereby the removing State retains all defenses it would have enjoyed had the matter been litigated in state court, including immunity from liability.?

The full text of the decision is posted on the Internet at:

http://caselaw.lp.findlaw.com/data2/circs/3rd/064628p.pdf

Full post as published by New York Public Personnel Law on September 08, 2008 (boomark / email).