28 F.3d 1554 (10th Cir. 1994), 93-2021, Mascheroni v. Board of Regents of University of California

Docket Nº:93-2021.
Citation:28 F.3d 1554
Party Name:Pedro Leonardo MASCHERONI, Plaintiff-Appellant, v. BOARD OF REGENTS OF THE UNIVERSITY OF CALIFORNIA, University of California, Los Alamos National Laboratory, Defendants-Appellees.
Case Date:July 11, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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28 F.3d 1554 (10th Cir. 1994)

Pedro Leonardo MASCHERONI, Plaintiff-Appellant,



of California, Los Alamos National Laboratory,


No. 93-2021.

United States Court of Appeals, Tenth Circuit

July 11, 1994

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Michael D. Bustamante, Albuquerque, NM (Roberto D. Ortega, Albuquerque, NM, and Richard Harrington of Chandler, Wood, Harrington & Maffly, San Francisco, CA, with him on the briefs), for plaintiff-appellant.

Daniel H. Friedman of Simons, Cuddy & Friedman, Santa Fe, NM, for defendants-appellees.

Before BALDOCK, BRORBY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Dr. Pedro Leonardo Mascheroni ("Dr. Mascheroni") appeals two orders dismissing state law causes of action and a federal Title VII claim against his former employer, the Board of Regents of the University of California (the "Board of Regents"). While we affirm the court's dismissal of the Title VII

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claim as time barred, we hold that the court improperly exercised jurisdiction over Dr. Mascheroni's state law claims because the Eleventh Amendment shields the Board of Regents from suit in federal court for alleged state law violations.


The Board of Regents operates the Los Alamos National Laboratory in New Mexico under a contract with the United States Department of Energy ("DOE"). Dr. Mascheroni was employed by the Board of Regents between 1979 and 1988 as a physicist at the Los Alamos National Laboratory. This suit arises from his supervisors' actions, which he alleges were based on his national origin, and his ultimate termination from the Los Alamos National Laboratory. Although a United States citizen since 1972, Dr. Mascheroni is Argentine by birth.

In 1986, Dr. Mascheroni criticized some of the Laboratory's projects, suggesting that the Laboratory's federal funding would be better spent on other projects. 1 His supervisors told him to cease his criticism, but he did not. In January 1987, the Board of Regents reduced the Laboratory's workforce. Dr. Mascheroni's position was terminated in March 1987, but he was reassigned to another division in April 1987. Between April and May 1987, Dr. Mascheroni was investigated for alleged security infractions. Based on his supervisors' recommendations, the DOE withdrew his security clearance in September 1987.

Dr. Mascheroni was ultimately dismissed from the Los Alamos National Laboratory in March 1988. Approximately 140 days later, on August 3, 1988, Dr. Mascheroni filed a complaint with the New Mexico Human Rights Commission, alleging discrimination based on national origin. The Commission referred Dr. Mascheroni's complaint to the Equal Employment Opportunity Commission ("EEOC") on November 27, 1990. Because neither the New Mexico Human Rights Commission nor the EEOC filed an action on Dr. Mascheroni's behalf within 180 days of the date he filed his complaint, Dr. Mascheroni received notice of his right to sue in January 1991.

On January 24, 1991, Dr. Mascheroni filed a complaint against the Board of Regents in California Superior Court, alleging multiple tort and breach of contract theories of recovery. 2 The Board of Regents moved for a stay on the grounds of forum non conveniens. Meanwhile, on April 24, 1991, Dr. Mascheroni filed a Title VII claim in the United States District Court for the District of New Mexico. In May 1991, the California Superior Court stayed Dr. Mascheroni's state law suit and subsequently denied Dr. Mascheroni's motion to dissolve the stay. Next, on May 7, 1991, Dr. Mascheroni amended his Title VII complaint in the District of New Mexico to include the state law claims asserted in the California Superior Court. He also added to this amended complaint new state law claims of tortious discharge, whistle-blower liability, and prima facie tort.

The district court first granted the Board of Regents' Fed.R.Civ.P. 12(b) motion to dismiss the state law claims. Order of July 17, 1992. The court concluded that the Board of Regents, by virtue of operating the Los Alamos National Laboratory in New Mexico, enjoys the same immunities to tort actions available to New Mexico state governmental entities under the New Mexico Tort Claims Act, N.M.Stat.Ann. Secs. 41-4-1 to -29. The court additionally held that Dr. Mascheroni's contract claims were barred by New Mexico's statute of limitations, N.M.Stat.Ann.

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Sec. 37-1-23. The district court permitted Dr. Mascheroni to amend his Title VII complaint to demonstrate that he had timely filed the original complaint with the New Mexico Human Rights Commission. Because New Mexico is a deferral state, Dr. Mascheroni had to show that the Board of Regents' allegedly discriminatory actions occurred within 300 days of the date on which he filed his complaint with the Commission. 3 It was undisputed that the reduction-in-force ("RIF") at the Los Alamos National Laboratory and the supervisors' recommendation to strip Dr. Mascheroni of his security clearance occurred in excess of 300 days before Dr. Mascheroni filed his complaint with the Commission.

In his second amended complaint filed on April 27, 1992, however, Dr. Mascheroni invoked the continuing violation doctrine in an attempt to cure his failure to file a timely complaint. Dr. Mascheroni argued that his ultimate dismissal from the Los Alamos National Laboratory, which occurred within the 300-day period, was sufficiently related to the RIF and security violation allegations so as to establish a pattern of discrimination based on national origin. Alternatively, Dr. Mascheroni's amended complaint invoked the doctrine of equitable tolling, alleging that because his supervisors actively deceived him and lulled him into not filing a Title VII complaint with the New Mexico Human Rights Commission, the filing period should be tolled. The court, however, dismissed Dr. Mascheroni's amended Title VII complaint as time barred because Dr. Mascheroni failed to demonstrate a continuing violation or to allege facts sufficient to warrant equitable tolling of the limitations period. Order of December 14, 1992.

Before us is Dr. Mascheroni's appeal from both district court orders. He argues that (1) dismissal of the state law claims against a California entity based on New Mexico immunity principles was improper; and (2) his Title VII complaint was timely filed.


We first consider Dr. Mascheroni's appeal from the district court's dismissal of his state tort and breach of contract claims. Dr. Mascheroni argues that the sovereign immunity bestowed on New Mexico state governmental entities under the New Mexico Tort Claims Act does not apply to a foreign governmental entity whose alleged tortious acts occurred in New Mexico. Alternatively, Dr. Mascheroni asks us to certify this question of first impression to the New Mexico Supreme Court. 4 However, because we conclude that the Eleventh Amendment bars Dr. Mascheroni's state law claims in federal court against the Board of Regents, both we and the district court lack jurisdiction to consider whether the New Mexico Tort Claims Act applies to a California state governmental entity operating in New Mexico, or to certify this question to the New Mexico Supreme Court.

The Eleventh Amendment imposes a constitutional limitation on the jurisdiction of Article III courts. U.S. Const. amend. XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.") (emphasis added); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984) (noting that the Eleventh

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Amendment "affirm[s] that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III.").

Whether an Eleventh Amendment bar that is not raised by the parties must be considered sua sponte by a court when its applicability is discovered or whether it is subject to the discretion of the court as to whether sua sponte to address an unraised Eleventh Amendment issue, has been subject to prolonged debate. In Pennhurst, the Supreme Court embraced the mandatory rule, explaining that a "federal court must examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment." Id. at 121, 104 S.Ct. at 919 (emphasis added); see also Charley's Taxi Radio Dispatch v. SIDA of Hawaii, 810 F.2d 869, 873 n. 2 (9th Cir.1987) ("The Eleventh Amendment may be described as either creating an immunity for states or establishing a jurisdictional limitation on federal courts ... Like a jurisdictional bar and unlike a traditional immunity, however, the effect of the Eleventh Amendment must be considered sua sponte by federal courts.") (emphasis added). Other circuits impliedly adopt this mandatory rule. See, e.g., Atlantic Healthcare Benefits Trust v. Googins, 2 F.3d 1, 4 (2d Cir.1993) ("Although the parties do not address the Eleventh Amendment in their briefs, we raise it sua sponte because it affects our subject matter jurisdiction."), cert. denied, --- U.S. ----, 114 S.Ct. 689, 126 L.Ed.2d 656 (1994); Sindia Expedition v. Wrecked & Abandoned Vessel, 895 F.2d 116, 119 (3d Cir.1990) (explaining that "we have 'a special obligation' to satisfy ourselves of our own and the district court's jurisdiction"); Morris v. Washington Metropolitan Area Transit Authority, 702 F.2d 1037, 1040 (D.C.Cir.1983) ("Such matters casting doubt upon the existence of federal subject matter jurisdiction [on the basis of Eleventh Amendment immunity] are the proper subject of consideration on the court's own motion, as neither the consent or omission of the parties nor the acquiescence of the court can confer jurisdiction where none exists.")...

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