Lombardo v. Pennsylvania, Dept. of Public Welfare

• Citation: 540 F.3d 190
• Decision Date: 25 August 2008
• Docket Number: No. 06-4628.,06-4628.
• Parties: Michael A. LOMBARDO v. Commonwealth of PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE; Estelle Richman, Secretary of the Department of Public Welfare, in her official capacity, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

540 F.3d 190

Michael A. LOMBARDO v. Commonwealth of PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE; Estelle Richman, Secretary of the Department of Public Welfare, in her official capacity, Appellants.

No. 06-4628.

United States Court of Appeals, Third Circuit.

Argued October 24, 2007.

Filed: August 25, 2008.

Thomas W. Corbett, Jr., John G. Knorr, III (Argued), Maryanne M. Lewis, Office of the Attorney General of Pennsylvania, Department of Justice, Harrisburg, PA, for Appellants.

Kimberly D. Borland (Argued), Borland & Borland, L.L.P., Wilkes Barre, PA, for Appellee.

Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

CHAGARES, Circuit Judge.

This case requires the Court to consider the contours of state sovereign immunity and under what circumstances such immunity may be waived.

Alleging violations of both federal and state antidiscrimination laws, Michael A. Lombardo (Lombardo) filed an employment discrimination complaint in the Court of Common Pleas of Luzerne County against the Commonwealth of Pennsylvania's Department of Public Welfare and its Secretary, Estelle Richman, in her official capacity (collectively, the Commonwealth). Based on the federal claim, the Commonwealth removed the complaint to the United States District Court for the Middle District of Pennsylvania and sought partial dismissal on sovereign immunity grounds. The parties acknowledge that Pennsylvania has not statutorily waived its sovereign immunity for claims brought under the federal statute at issue, and they agree that the central question in this appeal is whether the Commonwealth waived such immunity by voluntarily removing this matter from state to federal court.

The District Court denied the Commonwealth's motion to dismiss, reasoning that the Commonwealth waived its Eleventh Amendment immunity by removing the case. We agree that the Commonwealth's voluntary removal unequivocally invoked the jurisdiction of the federal courts and thereby waived the Commonwealth's Eleventh Amendment immunity from suit in a federal forum.

We hold, however, 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, we will reverse the judgment of the District Court and remand with instructions to grant the Commonwealth's motion for partial dismissal.

I.

Lombardo worked at the White Haven Center, a state-operated facility for the developmentally disabled located in White Haven, Pennsylvania, for more than 38 years. In 2003, Lombardo was passed over for a promotion. Lombardo, 61 years old at the time, believed that this action was due to his age. On March 23, 2006, he filed a complaint asserting two grounds for relief: 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. Lombardo sought equitable relief and damages.

On April 7, 2006, based on the ADEA claim, the Pennsylvania Department of Public Welfare (the Department) removed the case to the United States District Court for the Middle District of Pennsylvania and moved for dismissal. Lombardo then amended his complaint to add a second defendant — the Secretary of Public Welfare, Estelle Richman, in her official capacity. The Commonwealth moved for partial dismissal of the amended complaint on the ground that its Eleventh Amendment immunity barred Lombardo's claims under the ADEA, save for his claim for prospective injunctive relief against the Secretary.¹ The District Court denied the motion to dismiss, holding that the Commonwealth's voluntary removal of the case to federal court waived its Eleventh Amendment immunity under Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), even though Pennsylvania has not consented to suit or waived immunity under the ADEA in its own courts. This appeal followed.

II.

The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. Defendants appeal from the District Court's order denying a claim of sovereign immunity by the Department, a state agency. We have subject matter jurisdiction under 28 U.S.C. § 1291, as such orders are immediately appealable under the collateral order doctrine. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). This Court exercises plenary review over an order denying a motion to dismiss based on sovereign immunity. M.A. ex rel. E.S. v. State-Operated Sch Dist. of the City of Newark, 344 F.3d 335, 344 (3d Cir.2003).

III.

Our Constitution established a system of "dual sovereignty between the States and the Federal Government," Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), in which the States "retain `a residuary and inviolable sovereignty.'" Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (quoting The Federalist No. 39) (James Madison); see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 71 n. 15, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (acknowledging that "[t]he Constitution specifically recognizes the States as sovereign entities"). An important feature of this sovereignty is state sovereign immunity. See Puerto Rico Aqueduct, 506 U.S. at 146, 113 S.Ct. 684 (stating that "the States, although a union, maintain certain attributes of sovereignty, including 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.'" Nevada v. Hall, 440 U.S. 410, 416, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979) (quoting Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 51 L.Ed. 834 (1907)).

* * * * * *

For the reasons that follow, we hold that state sovereign immunity is not a unitary concept. We can discern two distinct types of state sovereign immunity: immunity from suit in federal court and immunity from liability.

A.

The immunity of States from suit in the federal courts is a fundamental aspect of state sovereignty. N. Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189, 193, 126 S.Ct. 1689, 164 L.Ed.2d 367 (2006); see Alden, 527 U.S. at 718, 119 S.Ct. 2240 (noting John Marshall's comment at the Virginia ratifying convention that "`I hope no gentleman will think that a state will be called at the bar of the federal court'") (quoting 3 Debates on the Federal Constitution 555 (J. Elliot 2d ed. 1854)). The Supreme Court has explained that "[t]he founding generation thought it `neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons.'" Alden, 527 U.S. at 748, 119 S.Ct. 2240 (quoting In re Ayers, 123 U.S. 443, 505, 8 S.Ct. 164, 31 L.Ed. 216 (1887)).

Only five years after the adoption of the Constitution, however, the Supreme Court in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793), determined that the state-citizen diversity clause of Article III of the Constitution subjected the States to federal court jurisdiction. This holding led directly to the expeditious adoption of the Eleventh Amendment, which provides: "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." U.S. Const. amend. XI. In Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the Supreme Court extended the Eleventh Amendment's reach to suits by in-state plaintiffs, thus barring all private suits against non-consenting States in federal court.

Accordingly, it is clear that the States possess immunity from suit in the federal courts, also known as Eleventh Amendment immunity.

B.

The Supreme Court has also recognized, however, that "the Eleventh Amendment does not define the scope of the States' sovereign immunity; it is but one particular exemplification of that immunity." Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 753, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002); see id. (stating that the Eleventh Amendment does not "explicitly memorializ[e] the full breadth of the sovereign immunity retained by the States when the Constitution was ratified"). Consequently, "the sovereign immunity enjoyed by the States extends beyond the literal text of the Eleventh Amendment." Id. at 754, 122 S.Ct. 1864; see Alden, 527 U.S. at 713, 119 S.Ct. 2240 (observing that the phrase "Eleventh Amendment immunity" "is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment"). State sovereign immunity thus comprises more than just immunity from suit in federal court. It also includes a State's immunity from liability. See Fed. Mar. Comm'n, 535 U.S. at 766, 122 S.Ct. 1864 ("Sovereign immunity does not merely constitute a defense to monetary liability or even to all types of liability."); Dellmuth v. Muth, 491 U.S. 223, 229, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) (declining to overrule the "longstanding holding" of Hans that "an unconsenting State is immune from liability for damages in a suit brought in federal court by one of its own citizens"); Edelman v. Jordan, 415 U.S. 651, 662-64, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (characterizing state sovereign immunity as safeguarding States against both "suits" and "liability").

We look to state law to determine if the Commonwealth maintains a separate immunity from liability. Under Pennsylvania law, the...