                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-2008

Lombardo v. Comm of PA Welfare
Precedential or Non-Precedential: Precedential

Docket No. 06-4628




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                                        PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ____________

                         No. 06-4628
                        ____________

                 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

                        ____________

        On Appeal from the United States District Court
            for the Middle District of Pennsylvania
                      (No. 06-cv-00732)
         District Judge: Honorable William J. Nealon

                   Argued October 24, 2007

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

                        ____________

                   (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
Strawberry Square
Harrisburg, PA 17120

Counsel for Appellants


Kimberly D. Borland (Argued)
Borland & Borland, L.L.P.
69 Public Square 11th Floor
Wilkes Barre, PA 18701

Counsel for Appellee


                           ___________

                   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 anti-
discrimination 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 Richardson, 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.

                                 2
       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 Richardson, 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




                                 3
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
(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 (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 (1991), in which the States “retain ‘a
residuary and inviolable sovereignty.’” Alden v. Maine, 527 U.S.

       1
             The Commonwealth also moved to dismiss the
PHRA claim on a statute of limitations ground. The District Court
denied the motion, holding that this issue turned on questions of
fact which could not be resolved in the context of a motion to
dismiss. That holding is not before this Court, and the
Commonwealth did not assert immunity as to Lombardo’s PHRA
claim.




                                 4
706, 715 (1999) (quoting The Federalist No. 39) (James Madison);
see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 71 n.15 (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 (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 (1979) (quoting Kawananakoa v. Polyblank, 205 U.S.
349, 353 (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 (2006); see Alden, 527 U.S.
at 718 (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 (quoting In re Ayers, 123 U.S. 443, 505 (1887)).

        Only five years after the adoption of the Constitution,
however, the Supreme Court in Chisholm v. Georgia, 2 U.S. (2
Dall.) 419 (1793), determined that the state-citizen diversity clause


                                 5
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 (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 (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; see Alden, 527 U.S. at 713 (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 (“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 (1989) (declining to overrule the
“longstanding holding” of Hans that “an unconsenting State is




                                  6
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 (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 Commonwealth enjoys sovereign immunity unless the
General Assembly “specifically waives sovereign immunity.” 1 Pa.
Cons. Stat. § 2310. The state assembly has not specifically waived
immunity for ADEA violations, nor are such violations included in
the statutory exceptions to sovereign immunity. See 42 Pa. Cons.
Stat. § 8522 (listing “acts by a Commonwealth party” that “may
result in the imposition of liability on the Commonwealth” for
which “the defense of sovereign immunity shall not be raised to
claims for damages”); see also Chittister v. Dep’t of Cmty. & Econ.
Dev., 226 F.3d 223, 227 (3d Cir. 2000) (acknowledging that, with
the exception of the tort claims for damages in state court listed in
§ 8522, “the Commonwealth’s immunity is otherwise intact”).

     As a result, we conclude that the Commonwealth possesses
immunity from liability regarding claims under the ADEA.

                                IV.

      We now turn to whether, in this case, the Commonwealth
has waived: (1) its immunity from suit in federal court; or (2) its
immunity from liability.

                                 A.

       A State’s immunity from suit is not absolute. Congress may
abrogate a State’s sovereign immunity “in the exercise of its power
to enforce the Fourteenth Amendment,” 2 and a State may consent
       2
              For Congress to “authorize a suit in the exercise of
its power to enforce” Article I, § 5 of the Fourteenth Amendment,
Congress “must identify conduct transgressing the Fourteenth
Amendment’s substantive provisions, and must tailor its legislative
scheme to remedying or preventing such conduct.” Fla. Prepaid
Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S.


                                 7
to suit by making a clear declaration that it intends to submit itself
to federal court jurisdiction.3 Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 676 (1999).

        Furthermore, a State may waive its immunity from suit by
invoking federal court jurisdiction voluntarily. Id. at 675. The
voluntary invocation principle emerged in early Supreme Court
jurisprudence and was later examined in Lapides. See Gardner v.
New Jersey, 329 U.S. 565 (1947) (finding waiver of Eleventh
Amendment immunity where a State voluntarily appeared in
bankruptcy court to file a claim against a common fund); Gunter v.
Atl. Coast Line R.R. Co., 200 U.S. 273, 284 (1906) (stating
generally that “where a State voluntarily becomes a party to a cause
and submits its rights for judicial determination, it will be bound
thereby and cannot escape the result of its own voluntary act by
invoking the prohibitions of the Eleventh Amendment”); Clark v.
Barnard, 108 U.S. 436 (1883) (holding that a State’s voluntary
intervention in a federal court action to assert its own claim
constituted a waiver of its Eleventh Amendment immunity).
Lombardo argues that the Commonwealth waived its immunity
from suit in federal court “by voluntarily removing this matter from
state to federal court.” Appellee Br. at 9. We agree.

       We begin with the facts of Lapides. In 2001, Paul Lapides,
a professor employed by the Georgia state university system, filed
an action against the university system’s Board of Regents in state
court. Georgia had already consented to suit in its own courts


627, 639 (1999). While the ADEA does contain a clear
congressional statement of intent to abrogate the States’ immunity,
this abrogation exceeded Congress’ § 5 powers. See Kimel v. Fla.
Bd. of Regents, 528 U.S. 62 (2000). Thus, the ADEA “d[oes] not
validly abrogate the States’ sovereign immunity to suits by private
individuals.” Id. at 91.

       3
              Pennsylvania has withheld its consent to suit in
federal court. 42 Pa. Cons. Stat. § 8521(b). See Laskaris v.
Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981).



                                  8
regarding the type of claims Lapides brought. Georgia’s Attorney
General removed the case to federal district court and sought
dismissal on Eleventh Amendment grounds. The Supreme Court
held unanimously that Georgia’s removal from state to federal
court waived its Eleventh Amendment immunity, but limited its
holding “to the context of state-law claims, in respect to which the
State has explicitly waived immunity from state-court
proceedings.” 535 U.S. at 617. The Court did not rule on whether
voluntary removal affected immunity from federal law claims, as
Lapides’ only federal claim against Georgia arose under 42 U.S.C.
§ 1983 and had to be dismissed, since a State is not a “person”
against whom a § 1983 claim for money damages may be asserted.
Id.

        Despite expressly limiting its holding to state-law claims
from which immunity has been explicitly waived, the Lapides
Court utilized broad language regarding waiver and removal. First,
the Court referenced the “general principle” that immunity is
waived where a State voluntarily invokes a federal court’s
jurisdiction. 535 U.S. at 620. The Court concluded that “removal
is a form of voluntary invocation of a federal court’s jurisdiction
sufficient to waive the State’s otherwise valid objection to
litigation of a matter (here of state law) in a federal forum,” id. at
624, explaining that “[a] rule of federal law that finds waiver
through a state attorney general’s invocation of federal-court
jurisdiction avoids inconsistency and unfairness.” Id. at 623.
Georgia’s allegedly “benign” motive for removal4 did not influence
the Court’s decision, since “adopt[ing] [Georgia’s] Eleventh
Amendment position would permit States to achieve unfair tactical
advantages, if not in this case, then in others.” Id. at 621.

       Applying these principles to the matter at hand, we conclude

       4
              Georgia claimed that it agreed to remove in order to
provide its co-defendants, the officials sued in their personal
capacities, with the “generous interlocutory appeal provisions”
available only in federal court. Lapides, 535 U.S. at 621.
Defendants have not proffered an explanation for removing this
case to federal court.



                                  9
that the Commonwealth waived its Eleventh Amendment immunity
from private suit in a federal forum when it voluntarily removed
this case to federal court.5 When a State, facing suit in its own
courts, purposefully requests a federal forum, it expresses a clear
intent to waive immunity from suit. While Lapides limited its
holding to state-law claims for which immunity was waived in state
court, it also teaches that, generally, “removal is a form of
voluntary invocation of a federal court’s jurisdiction sufficient to
waive the State’s otherwise valid objection to litigation of a matter
. . . in a federal forum.” 535 U.S. at 1646.

       In Estes, the Court of Appeals for the Tenth Circuit held that
a State’s removal to federal court of a case including both state law
and federal law claims constituted a waiver of Eleventh
Amendment immunity for both categories of claims. 302 F.3d at
1204-06. Similarly, in Embury, the Court of Appeals for the Ninth
Circuit determined that the waiver-by-removal rule established in

       5
               Since 2002, several appeals courts have addressed the
scope of Lapides’ waiver-by-removal rule. The Courts of Appeals
for the Ninth and Tenth Circuits have taken a broad view,
extending the rule to all state and federal claims. See Embury v.
King, 361 F.3d 562 (9th Cir. 2004); Estes v. Wyo. Dep’t of
Transp., 302 F.3d 1200 (10th Cir. 2002). The Courts of Appeals
for the Fourth, Seventh, and District of Columbia Circuits limit the
waiver principle to cases in which a State would obtain an unfair
advantage by enjoying immunity in federal court that it would not
have otherwise commanded in state court. See Stewart v. North
Carolina, 393 F.3d 484 (4th Cir. 2005); Omosegbon v. Wells, 335
F.3d 668 (7th Cir. 2003); Watters v. Washington Metro. Transit
Auth., 295 F.3d 36 (D.C. Cir. 2002). The Court of Appeals for the
Fifth Circuit has distinguished between immunity from suit and
immunity from liability, Meyers ex rel. Benzing v. Texas, 410 F.3d
236 (5th Cir. 2006), reh’g and reh’g en banc denied, 454 F.3d 503
(5th Cir. 2006), and the Court of Appeals for the First Circuit
favors an analogous theory. See New Hampshire v. Ramsey, 366
F.3d 1 (1st Cir. 2004); Rhode Island Dep’t of Envtl. Mgmt. v.
United States, 304 F.3d 31 (1st Cir. 2002).




                                 10
Lapides applied to both state and federal claims, as well as to
claims asserted after removal. 361 F.3d at 564. The Embury court
observed that “[n]othing in the reasoning of Lapides supports
limiting the waiver to . . . state law claims only,” as it would be
illogical for a State to consent to having state law questions
determined by a federal court “where federal jurisdiction cannot
even be obtained but for federal claims asserted in the same case,”
yet oppose federal jurisdiction over those federal claims. Id. We
agree.6

       We hold that the Commonwealth’s removal of federal-law
claims to federal court effected a waiver of immunity from suit in
federal court. Our holding today does not affect a State’s ability to
raise sovereign immunity when it is involuntarily brought into
federal court. It is only when a State removes federal-law claims

       6
                While not determinative in Lapides or in the case at
hand, we note that the Supreme Court’s jurisprudence has not been
entirely consistent in the view that the Eleventh Amendment
restricts subject matter jurisdiction.        Like subject matter
jurisdiction, the Court permits an Eleventh Amendment immunity
claim to be raised for the first time on appeal. See Edelman, 415
U.S. at 677-78. But the ability of States to waive their immunity or
consent to suit, and the lack of a requirement that federal courts
raise Eleventh Amendment immunity defects sua sponte, may
resemble personal jurisdiction requirements. See, e.g., Erwin
Chemerinsky, Federal Jurisdiction § 7.1 (4th ed. 2003) (describing
sovereign immunity as a limit on federal judicial power and noting
that “[t]he Supreme Court . . . has not been completely consistent
in treating the Eleventh Amendment as a restriction on subject
matter jurisdiction”); Eric S. Johnson, Note, Unsheathing
Alexander’s Sword: Lapides v. Board of Regents of the University
System of Georgia, 51 Am. U. L. Rev. 1051, 1060-62 (2002)
(arguing that personal jurisdiction-like features of Eleventh
Amendment immunity undermine the Supreme Court’s assumption
that Eleventh Amendment immunity rests on subject matter
jurisdiction); cf. Wis. Dep’t of Corr. v. Schact, 524 U.S. 381, 393-
98 (1998) (Kennedy, J., concurring) (suggesting tying the Eleventh
Amendment to the Court’s personal jurisdiction jurisprudence).



                                 11
from state court to a federal forum that it “submits its rights for
judicial determination,” Gunter, 290 U.S. at 284, and unequivocally
invokes the jurisdiction of the federal courts.

                                  B.

       As stated previously, the Commonwealth possesses
immunity from liability under 1 Pa. Cons. Stat. § 2310, save for
certain specifically enumerated tort claims for damages in state
court. See 42 Pa. Const. Stat. § 8522. The question we now
consider is whether the Commonwealth nonetheless waived its
immunity from liability by removing this case to federal court.7

       A State may waive its immunity from liability, but such a
waiver must be express and unequivocal. See Coll. Sav. Bank, 527
U.S. at 680; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 99 (1984). The Supreme Court has noted that an effective
waiver of sovereign immunity, like the waiver of other
Constitutionally-protected rights, must involve the “‘intentional
relinquishment or abandonment of a known right. . . .’” Coll. Sav.
Bank, 527 U.S. at 682 (quoting Johnson v. Zerbst, 304 U.S. 458,
464 (1938)). Accordingly, we must “indulge every reasonable
presumption against waiver.” Aetna Ins. Co. v. Kennedy, 301 U.S.
389, 393 (1937).

       7
               Lombardo asserts that the Commonwealth has
waived this claim, since it did not raise the matter in the District
Court. Appellee Br. at 18. See Huber v. Taylor, 469 F.3d 67, 74
(3d Cir. 2006) (“Generally, failure to raise an issue in the District
Court results in its waiver on appeal.”). Lombardo’s argument fails
because the issue was indeed before the District Court, despite the
fact that the court did not specifically address various aspects of
state sovereign immunity. In any event, issues of state sovereign
immunity may be raised at any time, including “for the first time on
appeal even if the state defended the merits of the suit in the district
court.” Chittister, 226 F.3d at 227 (citing Edelman, 415 U.S. at
677-78).




                                  12
        We hold that while voluntary removal waives a State’s
immunity from suit in a federal forum, the removing State retains
all defenses it would have enjoyed had the matter been litigated in
state court, including immunity from liability.8 The Supreme Court
       8
                We have determined that a removing State waives its
Eleventh Amendment immunity from suit in a federal forum but
retains its immunity from liability. Several courts of appeals have
differed in the label given to the immunity retained by a removing
State, separate and apart from the Eleventh Amendment. See
Meyers, 410 F.3d at 250, 252-53 (rejecting the theory that state
sovereign immunity is comprised of two separate immunities from
suit–inherent immunity from private suit which may be asserted in
any court and Eleventh Amendment forum immunity from suit in
federal court–and concluding that a State “enjoys two kinds of
immunity that it may choose to waive or retain
separately–immunity from suit and immunity from liability”);
Stewart, 393 F.3d at 487-88 (distinguishing the “related but not
identical” concepts of Eleventh Amendment immunity and state
sovereign immunity and defining the former as “but an example”
of the latter “as it applies to suits filed in federal court against
unconsenting States by citizens of other states”); Ramsey, 266 F.3d
at 15 (discussing “two independent aspects of immunity from suit:
immunity from suit in a federal forum . . . and substantive
immunity from liability,” noting that “a state may waive its
immunity from substantive liability without waiving its immunity
from suit in a federal forum,” and assuming, arguendo, that a State
may waive federal forum immunity without waiving substantive
liability since the Supreme Court “thus far has not addressed” the
issue); Omosegbon, 335 F.3d at 671 (referring to state sovereign
immunity law and holding that since Indiana state immunity rules
would have allowed a state court to hear the plaintiff’s state-law
contract claims, a federal court could do the same where the State
removed the case to federal court); Watters, 295 F.3d at 42 n.13
(holding that the Washington Metropolitan Transit Authority
(WMATA), an entity created by an interstate compact between the
District of Columbia, Maryland, and Virginia, and the recipient of
the respective sovereign immunity of each signatory, retained
immunity upon its removal to federal court of an action to enforce
an attorney’s lien and stating that “[a]s the WMATA signatories


                                13
has suggested that a State may waive its immunity from liability
without waiving its immunity from suit in federal court, see
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985),
superseded in other respects by Civil Rights Remedies Equalization
Amendment of 1986, 42 U.S.C. § 2000d-7; Great N. Ins. Co. v.
Read, 322 U.S. 47, 54 (1943), and we see no reason to prohibit the
inverse. See, e.g., Meyers, 410 F.3d at 252-53 (concluding that
state sovereign immunity is comprised of two separate and distinct
kinds of immunity: immunity from suit and immunity from
liability; that a State’s “waiver of one does not affect its enjoyment
of the other”; and that immunity from liability is not encompassed
within a State’s immunity from suit); Ramsey, 366 F.3d at 15
(stating, in dictum, that “a state may waive its immunity from
substantive liability without waiving its immunity from suit in a
federal forum”); Jonathan R. Siegel, Waivers of State Sovereign
Immunity and the Ideology of the Eleventh Amendment, 52 Duke
L.J. 1167, 1234 (2003) (explaining that “state sovereign immunity
has two independent aspects: it is partly an immunity from suit in
a particular forum (federal court) and partly a substantive immunity
from liability,” and “removal should be understood to waive only
forum immunity”); see also Bolden v. Southeastern Pa. Transp.
Auth., 953 F.2d 807, 831 (3d Cir. 1991) (Greenberg, J., dissenting)
(noting that a State “can enjoy state sovereign immunity protection
and yet not enjoy Eleventh Amendment immunity”); cf. Carlos
Manuel Vazquez, Sovereign Immunity, Due Process, and The
Alden Trilogy, 109 Yale L.J. 1927, 1930 (2000) (asserting that the
Court in Alden and College Savings “rejected the ‘forum-
allocation’ interpretation of the Eleventh Amendment, and


have not waived immunity from attorney’s liens in their own
courts, the narrow holding of Lapides does not apply to this case”).
We utilize the term “immunity from liability,” as this concept is
consistent with Lapides in that it prohibits a State from claiming
immunity from suit twice in the same case. It also best represents
our view that while a removing State invokes federal jurisdiction
and waives its immunity from suit in a federal forum, such waiver
does not prevent the State from asserting state sovereign immunity
as provided for by its own law as a defense in federal court.



                                 14
implicitly adopted . . . the ‘immunity from liability’ interpretation,
under which the states are immune from being subjected to damage
liability to individuals”) (referencing Carlos Manual Vazquez,
What is Eleventh Amendment Immunity?, 106 Yale L.J. 1683,
1700-08 (1997) (characterizing the “forum-allocation” and
“immunity from liability” interpretations of Eleventh Amendment
immunity)).

                                 C.

        By affirmatively selecting a federal forum for litigation of
this case, the Commonwealth invoked federal court jurisdiction and
waived its immunity from suit. See Lapides, 535 U.S. at 623 (also
stating that waiver of a State’s Eleventh Amendment immunity
from suit “is a question of federal law”). It did not, however,
waive any defenses provided by its own sovereign immunity law.
In our federal system, the States retain the measure of sovereignty
necessary to enact and be protected by such laws. State sovereign
immunity preexisted the Constitution and remains intact today. By
providing for the States’ retention of this preratification
sovereignty, “the structure of the Constitution allows for variation
between the nature and structure of each state’s immunities from
suit and liability.” Meyers, 410 F.3d at 253. Accordingly, a State
may establish its own immunity against liability that is distinct
from the Eleventh Amendment immunity from suit enjoyed by all
the States. We hold that the Commonwealth has immunity from
liability regarding claims under the ADEA, and it has not waived
such immunity in this case.

                                 V.

       For the foregoing reasons, we will reverse the judgment
of the District Court and remand with instructions to grant the
Commonwealth’s motion for partial dismissal.




                                 15
