Stroud v. McIntosh

• Decision Date: 23 July 2013
• Docket Number: No. 12–10436.,12–10436.
• Citation: 722 F.3d 1294
• Parties: Patricia G. STROUD, Plaintiff–Appellant, v. Phillip McINTOSH, the Alabama Board of Pardons and Paroles, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

722 F.3d 1294

Patricia G. STROUD, Plaintiff–Appellant,

v.Phillip McINTOSH, the Alabama Board of Pardons and Paroles, Defendants–Appellees.

No. 12–10436.

United States Court of Appeals, Eleventh Circuit.

July 23, 2013.

Jimmy Douglas Jacobs, Jimmy Jacobs LLC, Montgomery, AL, for Plaintiff–Appellant.

David R. Mellon, Kyle Thomas Smith, Sirote & Permutt, PC, Birmingham, AL, Merideth Hamilton Barnes, Steven Mallette Sirmon, Ala. Bd. of Pardons and Paroles, Andrew Lynn Brasher, John Cowles Neiman, Jr., Luther J. Strange, III, Atty. General's Office, Montgomery, AL, for Defendants–Appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before WILSON and COX, Circuit Judges, and VOORHEES,^* District Judge.

COX, Circuit Judge:

The principal issues we address in this appeal are (1) whether removal of this case to a federal court waived the state agency's sovereign immunity from suit in a federal court, and (2) whether removal of the case waived the agency's sovereign immunity from liability on a claim under the federal Age Discrimination in Employment Act. We conclude that removal waived the agency's immunity from suit in a federal forum but did not waive the agency's immunity from liability on this federal claim. We affirm.

I. FACTS AND PROCEDURAL HISTORY

This case began in a circuit court in Montgomery County, Alabama, in December 2010, when Patricia Stroud sued her employer, the Alabama Board of Pardons and Paroles, and Phillip McIntosh, the Board's personnel director during the relevant time. Against the Board, Stroud's original complaint alleged claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e–2, and the Alabama Age Discrimination in Employment Act (AADEA), Ala.Code §§ 25–1–20 to –29. The Complaint alleged the same claims against McIntosh, as well as a claim under 42 U.S.C. § 1983 and state law claims for wanton conduct and intentional infliction of emotional distress.

The Board and McIntosh removed the case to federal court, invoking the court's subject-matter jurisdiction under 28 U.S.C. § 1331. Five months after removal, Stroud amended her complaint. The Amended Complaint alleged claims under § 1983 and Title VII against both defendants, repeated the state law claims against McIntosh, and added a claim for damages under the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–634, against the Board.

In its Answer, the Board asserted as an affirmative defense (among many others) that the Eleventh Amendment and the doctrine of sovereign immunity barred all of Stroud's claims against it. (Dkt. 26 at 17–18.) The Board then moved for judgment on the pleadings, and McIntosh moved to dismiss the case.

The district court dismissed all of Stroud's federal claims other than the ADEA claim for failure to state a claim. (Immunity was not a basis for dismissal of these claims.) Importantly for this appeal, the district court held that the Board was immune from liability under the ADEA and did not waive that immunity when it removed the case to federal court. The court entered judgment in favor of the Board on the ADEA claim and remanded the remaining state law claims against McIntosh to state court.

Stroud appeals.

II. ISSUES ON APPEAL AND CONTENTIONS OF THE PARTIES

Stroud raises a number of issues on appeal. We address only her contentions that the Board waives its immunity from suit and its immunity from liability under the ADEA when it removed the case.¹

For these contentions, Stroud relies on the Supreme Court's reasoning in 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). She argues that the rationale behind Lapides's holding suggests that a state waives its sovereign immunity—to both a federal forum and liability for a particular claim—when it removes a case. The Board contends in response that Lapides is distinguishable on its facts and that Lapides's reasoning does not inform our result in this case; accordingly, the Board argues, it did not waive its immunity from suit or from liability by removing.

III. DISCUSSION

The questions we address—whether a state waives its sovereign immunity from suit and whether it waives its immunity from liability when it removes—are questions of law that we review de novo. See Barnes v. Zaccari, 669 F.3d 1295, 1302 (11th Cir.2012).

A. Sovereign Immunity and the Eleventh Amendment

Put in its broadest form, the concept of sovereign immunity bars private citizens from suing states for damages. See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 751–52, 122 S.Ct. 1864, 1870, 152 L.Ed.2d 962 (2002). This immunity also shields “arms of the State” from suit. N. Ins. Co. of N.Y. v. Chatham Cnty., Ga., 547 U.S. 189, 193, 126 S.Ct. 1689, 1693, 164 L.Ed.2d 367 (2006). There is no dispute that the Board is an arm of the state for the purposes of asserting sovereign immunity.

States enjoyed this immunity as a perquisite of their sovereignty before entering the United States. See Hans v. Louisiana, 134 U.S. 1, 16, 10 S.Ct. 504, 507, 33 L.Ed. 842 (1890). But soon after the Constitution was adopted, the Supreme Court took the position that Article III's extension of federal jurisdiction to controversies “between a State and Citizens of another State,” U.S. Const. art. III, § 2, allowed states to be sued by citizens of other states in federal court. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 466, 1 L.Ed. 440 (1793) (opinion of Wilson, J.), superseded by constitutional amendment,U.S. Const. amend. XI. The reaction to this “unexpected blow to state sovereignty” was overwhelmingly negative. Alden v. Maine, 527 U.S. 706, 720, 119 S.Ct. 2240, 2250, 144 L.Ed.2d 636 (1999) (quoting David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801, at 196 (1997)). This negative response to Chisholm crystallized two years later with the ratification of the Eleventh Amendment.

By its terms, the Eleventh Amendment prohibits the “Judicial power of the United States” from reaching “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” U.S. Const. amend. XI. But the language is deceiving; the Supreme Court interprets the Eleventh Amendment to mean far more than what it says. See Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 2581, 115 L.Ed.2d 686 (1991) (“[W]e have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms ....”). Though the Amendment's text appears to only withdraw federal jurisdiction from any private suit against a state by a noncitizen, the Supreme Court reads the Amendment to remove any doubt that the Constitution preserves states' sovereign immunity in the federal courts. Va. Office for Prot. & Advocacy v. Stewart, ––– U.S. ––––, 131 S.Ct. 1632, 1637, 179 L.Ed.2d 675 (2011) (“[W]e have understood the Eleventh Amendment to confirm the structural understanding that States entered the Union with their sovereign immunity intact, unlimited by Article III's jurisdictional grant.”); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 640, 145 L.Ed.2d 522 (2000) (“[F]or over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States.”); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984) (recognizing that the Eleventh Amendment's “significance lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III” of the Constitution).

Importantly, the Eleventh Amendment is neither a source of nor a limitation on states' sovereign immunity from suit. Alden, 527 U.S. at 713, 119 S.Ct. at 2246. Rather, it is a recognition of states' sovereign immunity in federal court. See Erwin Chemerinsky, Federal Jurisdiction 422 (6th ed. 2012) (“The Court has thus ruled that there is a broad principle of sovereign immunity that applies in both federal and state courts; the Eleventh Amendment is a reflection and embodiment of part of that principle.”).

Like most general rules, sovereign immunity has exceptions. The Supreme Court has recognized two ways that a private person can sue a state for damages: either (1) Congress can abrogate sovereign immunity by enacting legislation to enforce the substantive provisions of the Fourteenth Amendment, or (2) a state can waive its sovereign immunity. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 2223, 144 L.Ed.2d 605 (1999).

B. Stroud's Contention

The ADEA, as enacted, authorized suits against states. But the Supreme Court held that Congress was without authority to abrogate states' sovereign immunity against ADEA claims. See Kimel, 528 U.S. at 91–92, 120 S.Ct. at 650. The Court held that the ADEA was “not a valid exercise of Congress's power under § 5 of the Fourteenth Amendment” becauseof “the indiscriminate scope of the Act's substantive requirements[ ] and the lack of evidence of widespread and unconstitutional age discrimination by the States.” Id. at 91, 120 S.Ct. at 650.

Stroud recognizes Kimel's holding. But she argues that the Board waived this immunity when it removed the case to federal court.² And she rests this argument on the Supreme Court's opinion in Lapides, 535 U.S. 613, 122 S.Ct. 1640.

C. Lapides and Its Scope

The facts in Lapides bear some similarity to the facts in this case. A university professor sued the Board of Regents of the University System of Georgia (an arm of the state) in state court, alleging a violation of Georgia law. Notably, Georgia had expressly consented to suit in its own courts for the alleged violation. The plaintiff also named certain university officials as defendants and alleged claims under § 1983 against them. The defendants in Lapides removed the case to ...