                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  _____________

                                   No. 99-3628SI
                                  _____________

Leo Fromm,                               *
                                         *
             Appellant,                  *
                                         *   On Appeal from the United
      v.                                 *   States District Court
                                         *   for the Southern District
                                         *   of Iowa.
Commission of Veterans Affairs,          *
                                         *
             Appellee.                   *

                                   ___________

                             Submitted: May 12, 2000
                                 Filed: August 11, 2000
                                  ___________

Before RICHARD S. ARNOLD, HANSEN, and BYE, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.

      Plaintiff Leo Fromm brought this discrimination claim under the Age
Discrimination in Employment Act (ADEA) and the Iowa Civil Rights Act (ICRA)
against the Commission of Veterans Affairs, an Iowa state agency. The District Court1


      1
      The Hon. Ronald E. Longstaff, Chief Judge, United States District Court for the
Southern District of Iowa.
granted the state's motion for summary judgment, concluding that the state has Eleventh
Amendment immunity, which it did not waive. Mr. Fromm appeals, arguing that
Congress properly abrogated state immunity for ADEA violations, and that, in any
event, the immunity was waived by the actions of the Iowa Attorney General. We hold
that the ADEA does not abrogate states' sovereign immunity, and that Iowa's Eleventh
Amendment immunity was not waived when the Iowa Attorney General's Office made
a general appearance, filed an answer to plaintiff's complaint, and responded to
discovery.

                                           I.

       Mr. Fromm worked at the Iowa Veterans Home, a state facility, in
Marshalltown, Iowa. The Commission of Veterans Affairs, an agency of the State of
Iowa, supervises the administration of the Iowa Veterans Home. Mr. Fromm filed an
amended complaint against the Commission of Veterans Affairs on July 13, 1998,
which alleged two counts: (1) the Commission committed age discrimination in
violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 623,
626(b) and (c); and (2) the Commission's conduct amounted to age discrimination in
violation of the Iowa Civil Rights Act (ICRA), Iowa Code §§ 216 et seq.

       The Commission, through the Iowa Attorney General's Office as counsel,
entered a general appearance and filed an answer to plaintiff's complaint on September
14, 1998. This original answer included the contention that the Commission's actions
were for legitimate non-discriminatory business purposes. Moreover, the Commission
pleaded several affirmative defenses, including the defense that it had not consented to
be sued in federal court on plaintiff's ICRA claim. In November of 1998, the parties
submitted a joint scheduling order and discovery plan for the District Court's approval.
In December of 1998, the plaintiff submitted interrogatories, which the defendant
answered in February of 1999. On May 14, 1999, the Commission filed a motion to
amend its answer to plaintiff's amended complaint for the purpose of alleging an

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additional affirmative defense – that the District Court lacked subject-matter
jurisdiction over the ADEA claim because of Eleventh Amendment state sovereign
immunity. This motion to amend was granted on June 2, 1999. Also on May 14, 1999,
the Commission filed a motion for summary judgment, which alleged that there was no
subject-matter jurisdiction over the plaintiff's ADEA claim because of Iowa's Eleventh
Amendment sovereign immunity, and that there was no subject-matter jurisdiction over
the ICRA claim because the State of Iowa had not waived its immunity from suit.

       The District Court granted the defendant's motion for summary judgment. The
plaintiff appeals the District Court's decision with respect to the ADEA. The holding
that the State statutory claim is barred by the Eleventh Amendment is not contested on
this appeal.

                                          II.

       So the question we have to decide is whether the plaintiff's ADEA claim in this
case is barred by the Eleventh Amendment. This question easily divides itself into two
parts. First, was the attempt of Congress to abrogate the State's sovereign immunity
in ADEA actions valid, appropriate legislation under Section 5 of the Fourteenth
Amendment? Second, if not, did the State waive its immunity by entering a general
appearance in this case and by waiting until its amended answer to assert its Eleventh
Amendment defense?

      The first question is easily answered. In Kimel v. Florida Board of Regents, 120
S. Ct. 631, 645, 650 (2000), the Supreme Court held that "[t]he ADEA is not
'appropriate legislation' under Section 5 of the Fourteenth Amendment" and that '[t]he
ADEA's purported abrogation of the States' sovereign immunity is accordingly invalid."




                                         -3-
      What about waiver of immunity? Plaintiff's argument is based mainly on a
footnote in Sosna v. Iowa, 419 U.S. 393, 396 n.2 (1975). There, the Supreme Court
said:

             In their answer to the complaint, appellees asserted that the
             court lacked jurisdiction over the State by virtue of the
             Eleventh Amendment, but thereafter abandoned this defense
             to the action. While the failure of the State to raise the
             defense of sovereign immunity in the District Court would
             not have barred Iowa from raising that issue in this
             Court . . . no such defense has been advanced in this Court.
             . . . Our own examination of Iowa precedents discloses,
             however, that the Iowa Supreme Court has held that the
             State consents to suit and waives any defense of sovereign
             immunity by entering a voluntary appearance in defending
             a suit on the merits. McKeown v. Brown, 167 Iowa 489,
             499, 149 N.W. 593, 597 (1912).


Sosna, 419 U.S. at 399 n.2.

       Initially, some observations about this passage are appropriate. In Sosna, the
State of Iowa had at first asserted its Eleventh Amendment immunity, but thereafter
abandoned the defense. It did not argue the defense in the Supreme Court. Thus, the
issue had not been briefed in that Court. The Court nevertheless undertook to examine
Iowa precedents and determined, on the basis of McKeown, a 1914 case, that the entry
of a general appearance was sufficient to waive the sovereign immunity.

      We are not sure that the Supreme Court intended its pronouncement to be an
authoritative decision, binding on the lower courts. The circumstances of the Sosna
case may indicate otherwise. In addition, the McKeown opinion may not have
deserved the weight it was given. The Supreme Court of Iowa did reject a defense of
sovereign immunity, but the Eleventh Amendment had no necessary connection with

                                         -4-
the case. The suit was one brought in a state court against a state official, and the
principal holding of the Supreme Court of Iowa was that a statute (having to do with
escheat) had effectively waived the state's sovereign immunity. The remark about the
effect of a voluntary appearance was added almost as an afterthought, in only five lines,
and was at most an alternative holding.

        In any event, Iowa law subsequent to McKeown and Sosna solidly indicates that
the mere general appearance in a federal case by the Attorney General's office does not
waive Iowa's Eleventh Amendment immunity. Under Iowa R. Civ. P. 88(d),
promulgated long after McKeown, a jurisdictional defense is not waived simply
because it was omitted in a pre-answer motion to dismiss. The federal rule, Fed. R.
Civ. P. 12(h)(3), is to the same effect. Under this rule, either the court or any party
may raise an issue of subject-matter jurisdiction at any time, and the Eleventh
Amendment is regarded, at least for this purpose, as going to subject-matter
jurisdiction. See Raper v. State of Iowa, 940 F. Supp. 1421, 1426 (S.D. Iowa 1996),
aff'd, 115 F.3d 623 (8th Cir. 1997). In general, "a state official may waive the state's
immunity only where specifically authorized to do so by that state's constitution,
statutes, or decisions." Santee Sioux Tribe of Nebraska v. State of Nebraska, 121 F.3d
427, 431 (8th Cir. 1997) (holding that the conduct of an Assistant Attorney General of
Nebraska in answering a complaint and filing a counterclaim did not amount to waiver
of the Eleventh Amendment). See State v. Sorensen, 436 N.W.2d 358, 364 (1989),
holding that the state did not waive its immunity from suit with respect to landowners'
civil-rights counterclaims by filing a quiet-title action against the landowners.

       In sum, we hold the defendant's filing of an answer raising an Eleventh
Amendment defense to the state statutory claim, but not the ADEA claim, did not work
a forfeiture of the state's Eleventh Amendment Immunity. The judgment is

      Affirmed.


                                          -5-
BYE, Circuit Judge, concurring.

       I join in the majority opinion in all respects save for its suggestion that the
"Eleventh Amendment is regarded, at least for this purpose, as going to subject-matter
jurisdiction." It appears this Court need go no further than to conclude that Fromm
"failed to demonstrate that waiver of the State's Eleventh Amendment immunity is
within the authority of [Iowa's] attorney general." Santee Sioux Tribe of Neb. v. State
of Neb., 121 F.3d 427, 432 (8th Cir. 1997). I therefore concur in the result.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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