945 F.3d 1088
9th Cir.2019Background:
- Plaintiffs are current and former Nevada Department of Corrections correctional officers who sued under the FLSA for unpaid pre- and post-shift work; state-law claims were largely dismissed or dropped, leaving the FLSA claims.
- Nevada removed the suit from Nevada state court to federal court and answered; its answer included a vague affirmative defense saying only that it was "immune from liability as a matter of law," but it did not timely invoke Eleventh Amendment sovereign-immunity objections.
- The district court conditionally certified an FLSA collective; 542 employees opted in; nearly four years of litigation and significant discovery occurred before the district court sua sponte asked for briefing on Nevada’s sovereign-immunity defense.
- The district court held Nevada waived Eleventh Amendment immunity by removing the case to federal court and denied Nevada’s motion to dismiss the FLSA claims on that ground, relying on Lapides.
- The Ninth Circuit previously held in Embury that removal waives Eleventh Amendment immunity for certain federal claims but left open whether that waiver extends to federal claims that Congress did not validly abrogate (Footnote 20).
- The Ninth Circuit here holds that removal waives Eleventh Amendment immunity for all federal-law claims in the case—including FLSA claims that Congress did not abrogate—and affirms the district court.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal by a State waives Eleventh Amendment immunity from suit for all federal-law claims, including federal claims (like FLSA) that Congress did not validly abrogate | Removal waived Nevada’s immunity; Nevada also failed to timely and expressly assert sovereign immunity so cannot now assert it | Removal does not waive immunity for federal claims that Congress did not validly abrogate; Nevada retains Eleventh Amendment protection against FLSA suits | Removal by a State waives Eleventh Amendment immunity as to all federal-law claims in the case, including FLSA claims not abrogated by Congress; affirm |
Key Cases Cited
- Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002) (a State’s removal of state-law claims to federal court can waive Eleventh Amendment immunity when State had waived immunity in state court)
- Embury v. King, 361 F.3d 562 (9th Cir. 2004) (removal waives Eleventh Amendment immunity for federal claims generally, but left open claims not abrogated by Congress)
- Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (Congress cannot abrogate state Eleventh Amendment immunity under Article I)
- Quillin v. Oregon, 127 F.3d 1136 (9th Cir. 1997) (FLSA does not itself abrogate state sovereign immunity for suit in federal court)
- Hans v. Louisiana, 134 U.S. 1 (1890) (Eleventh Amendment bars suits by citizens against their own State)
- Clark v. Barnard, 108 U.S. 436 (1883) (a State’s voluntary appearance in federal court can operate as waiver of immunity)