3d Cir.: Stated waived immunity from ADEA suit but not damages

The Third Circuit held that (1) States waive their immunity from suit in federal court by seeking removal, regardless of whether they would enjoy immunity in state court, but (2) the State nevertheless retains immunity from liabilty unless waived by state law.

Accordingly, the court dismissed a claim under the Age Discrimination in Employment Act (ADEA), because although the State sought removal it had not waived its immunity from liability. Lombardo v. Pennsylvania Dept. of Public Welfare, --- F.3d ---, 2008 WL 3891593 (3d Cir. Aug. 25, 2008) (No. 06-4628).

 

            Lombardo, who worked at a state facility for the developmentally disabled, filed claims under the ADEA and state law in state court, but the State removed. The panel noted that in Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), the Court recognized that a state could waive its immunity from liability without waiving its immunity from suit in federal court. The panel said it saw “no reason to prohibit the inverse.” Beyond Atascadero, the court cited the Fifth and First Circuits, two law review articles relied on by those courts, and the rule that waiver of immunity “must be express and unequivocal.”

 

            Circuit courts have split on the extent of waiver by removal since Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002) (state could not take advantage of sovereign immunity by seeking removal where it would lack immunity in its own courts). The Ninth and Tenth Circuits have applied Lapides broadly, finding waiver for all claims on which State defendants seek removal. Embury v. King, 361 F.3d 562 (9th Cir.2004); Estes v. Wyo. Dep't of Transp., 302 F.3d 1200 (10th Cir.2002). The Fourth, Seventh and D.C. Circuits have ruled that waiver under Lapides is limited to cases where a state lacks immunity in its own courts. Stewart v. North Carolina, 393 F.3d 484 (4th Cir.2005); Omosegbon v. Wells, 335 F.3d 668 (7th Cir.2003); Watters v. Wash. Metro. Transit Auth., 295 F.3d 36 (D.C.Cir.2002). The Third Circuit now joins the Fifth and the First in distinguishing between immunity from suit (which is waived by removal) and immunity from liability (which is not). Meyers ex rel. Benzing v. Texas, 410 F.3d 236 (5th Cir.2006); New Hampshire v. Ramsey, 366 F.3d 1 (1st Cir.2004).

 

            Accordingly, the court ordered partial dismissal of the ADEA claim, leaving intact Lombardo’s claim for injunctive relief and his state law discrimination claim.

 

            Distinguishing between immunity from suit and immunity from liability has at least two significant consequences. One of them is seen here: where a law such as the ADEA has been held not to validly abrogate immunity, states can remove to federal court while retaining the defense of sovereign immunity.

            Another consequence arises under Spending Clause statutes such as the Religious Land Use and Institutionalized Persons Act (RLUIPA), where language that clearly waives sovereign immunity may nevertheless be held insufficient to provide for damages. See Williams v. Beltran, --- F.Supp.2d ----, 2008 WL 3048860 (C.D. Cal. Aug. 1, 2008). The practical effect of this doctrinal move is uncertain, however, given that the Supreme Court has already imposed a "clear statement" rule for Spending Clause statutes generally, including their remedies provision. See Arlington Centr. Sch. Dist. v. Murphy, 548 U.S. 291, 296 (2006).