Employment Law Daily Nevada waived immunity from FLSA claims by removing suit to federal court
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Friday, October 18, 2019

Nevada waived immunity from FLSA claims by removing suit to federal court

By Lisa Milam, J.D.

In a case of first impression, the appeals court established a clear jurisdictional rule: “removal means waiver” of sovereign immunity as to all federal claims.

The State of Nevada waived sovereign immunity by removing correctional officers’ FLSA claims from state to federal court, the Ninth Circuit held, addressing an issue of first impression on interlocutory appeal. Extending Supreme Court and circuit precedent to now hold that “removal means waiver” even with respect to federal claims for which Congress did not unequivocally and validly abrogate Eleventh Amendment immunity. “A State defendant that removes a case to federal court waives its immunity from suit on all federal-law claims brought by the plaintiff,” the appeals court held, and affirmed a district court’s refusal to dismiss the officers’ collective action on jurisdictional grounds (Walden v. State of Nevada, October 16, 2019, Tashima, A.W.).

Wage claims. State correctional officers alleged that the Nevada Department of Corrections improperly failed to pay them for pre- and post-shift work at state prisons and other facilities. They filed suit in state court, alleging minimum wage and overtime claims under the FLSA, a minimum-wage claim under Nevada’s Constitution, a state statutory overtime claim, and a claim for breach of contract.

Nevada removed the case to federal court and moved for judgment on the pleadings, asserting the affirmative defense that it was “immune from liability as a matter of law.” The state did not explicitly mention state sovereign immunity or the Eleventh Amendment, though. The district court requested briefing on the question whether state sovereign immunity applies to the FLSA claims against the state now in federal court. (Notwithstanding the state’s asserted affirmative defense, the question had not been raised until nearly four years into the litigation, when the court did so sua sponte in an abundance of caution (fearing it might lack subject matter jurisdiction, given that “[u]nder Nev. Rev. Stat. §41.031(3), the state of Nevada has explicitly refused to waive its sovereign immunity in suits brought by state citizens in federal court.”).

The district court then found that Nevada had waived its sovereign immunity as to the officers’ FLSA claim, denied the state’s motion to dismiss, and conditionally certified the federal collective action, to which 542 current and former state correctional officers have opted in. Nevada filed an interlocutory appeal to the Ninth Circuit. Because Nevada asserts both immunity from liability and immunity from suit, the appeals court concluded it had jurisdiction to hear the appeal.

Evolution of sovereign immunity jurisdiction. In its 2002 decision in Lapides v. Bd. Of Regents of Univ. Sys. Of Ga., the U.S. Supreme Court held that a state’s decision voluntarily to invoke the jurisdiction of a federal court by removing an action from state court to federal court can waive Eleventh Amendment immunity. The High Court stressed, however, that this “voluntary invocation” principle did not apply in all circumstances; it limited the reach of its ruling to the specific procedural circumstances before it: a state-law claim “‘to which the State has explicitly waived immunity from state-court proceedings.’” Thus, when a state statutorily waives its immunity from suit on state-law claims in state court, it also waives its Eleventh Amendment immunity from suit on the same state-law claims if it voluntarily removes a state-law claim case to federal court.

Building on Lapides, in Embury v. King, a 2004 Ninth Circuit ruling, the appeals courtheld that a state waives sovereign immunity from suit as to certain federal claims when it removes a suit from state to federal court. Here, too, the opinion’s scope was limited, in this instance, by way of a footnote expressly providing that the holding did not extend to federal claims that Congress had not applied to the states through “unequivocal and valid abrogation of their Eleventh Amendment immunity.” In enacting the FLSA, Congress did not abrogate state sovereign immunity from suit in federal court, meaning federal courts lack jurisdiction over FLSA cases against states absent a state waiver of immunity. Thus, the matter of first impression in the circuit, to be addressed here.

A “clear jurisdictional rule” for all federal claims. Here, the appeals court went one step further. “We now hold that a State that removes a case to federal court waives its immunity from suit on all federal-law claims in the case, including those federal-law claims that Congress failed to apply to the states through unequivocal and valid abrogation of their Eleventh Amendment immunity,” it wrote.

As the Supreme Court had observed, it was inconsistent for a state simultaneously to invoke federal jurisdiction, thus acknowledging the federal court’s authority over the case at hand, while claiming it enjoyed sovereign immunity from the “Judicial Power of the United States” in the matter before it. Adopting the reasoning of both Lapides and Embury, the appeals court repeated its stated rationale in Embury that “it makes no sense that the State does not object to having state law questions resolved by a federal tribunal—where federal jurisdiction cannot even be obtained but for federal claims asserted in the same case—yet objects to federal jurisdiction over the federal claims.”

The Ninth Circuit therefore extended its “removal means waiver” stance as to all federal claims in a case which the state has removed to federal court, including those federal claims that Congress did not apply to the states through unequivocal and valid abrogation of their Eleventh Amendment immunity. “Forcing a State to waive sovereign immunity whenever it removes a case to a federal court might lead to unfair results for the State in some circumstances,” the appeals court acknowledged, “but these concerns are not strong enough to overcome the need for a clear jurisdictional rule.”

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