           Case: 15-11064   Date Filed: 08/27/2015   Page: 1 of 12


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11064
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:13-cv-00090-LGW-RSB


KAREN L. HAVEN,

                                                            Plaintiff-Appellant,

                                 versus

THE BOARD OF TRUSTEES OF THREE RIVERS
REGIONAL LIBRARY SYSTEM,
LINDA KEAN,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                             (August 27, 2015)

Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Karen Haven appeals the district court’s dismissal of her complaint against

her former employer, alleging age discrimination and retaliation in violation of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, for lack of

subject-matter jurisdiction. The court concluded that the defendant, the Board of

Trustees of Three Rivers Regional Library System (the “Library”), was entitled to

Eleventh Amendment immunity because it was “uncontestedly an arm of the state”

of Georgia. Haven argues that the district court failed to analyze whether the

Library was entitled to Eleventh Amendment and that dismissal for subject-matter

jurisdiction was inappropriate because the Library is not an arm of the state. After

careful review, we vacate and remand for further proceedings.

                                         I.

      Karen Haven filed this employment-discrimination lawsuit under the ADEA

against the Library and Linda Kean, the Library Director, in the United States

District Court for the Southern District of Georgia. According to the complaint,

Haven was hired as the Head of Technical Services for the Library in 1999. She

was laid off in 2011, at the age of fifty-one, purportedly due to budget cuts. Haven

claimed that her termination was based on her age because she and two other older,

more experienced librarians were laid off, while the Library retained two younger,

less qualified librarians.




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       Haven also asserted that the Library retaliated against her for filing a charge

of age discrimination with the Equal Employment Opportunity Commission

(“EEOC”). According to the complaint, Kean placed a copy of the EEOC charge,

along with notes Kean had prepared after Haven’s termination that reflected

negatively on Haven’s job performance, in her personnel file. When the personnel

file was requested by a prospective employer, it caused the prospective employer

to withdraw an employment offer it had made to Haven.1

       After discovery, the Library moved for summary judgment. The Library

argued that it was entitled to immunity under the Eleventh Amendment as an “arm

of the state,” citing to this Court’s decision in Manders v. Lee, 338 F.3d 1304 (11th

Cir. 2003) (en banc). Further, the Library contended, the exception to Eleventh

Amendment immunity set forth in Ex parte Young, 209 U.S. 123, 28 S. Ct. 441

(1908), allowing certain claims for prospective and injunctive relief, did not apply.

The Library also claimed that it was entitled to summary judgment on the merits of

Haven’s discrimination and retaliation claims.

       Thereafter, Haven moved for leave to file an amended complaint in order to,

among other things, make clear that she was “seek[ing] prospective and injunctive

relief against Defendants to prevent a continuing and ongoing violation of federal


       1
          Haven also raised a state-law tort claim against Kean, personally, but the district court
ultimately granted summary judgment as to this claim, and Kean does not appeal this portion of
the district court’s decision.
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law, under the Ex parte Young doctrine.”          She argued that amendment was

necessary because she was unaware of the Library’s immunity defense until it filed

the motion for summary judgment. The Library opposed the motion, which a

magistrate judge later denied after concluding that Haven failed to demonstrate

good cause to amend. Haven did not appeal this ruling to the district court.

      While her motion for leave to file an amended complaint was still pending,

Haven filed a brief in opposition to the Library’s motion for summary judgment.

In the brief, she did not argue that the Library was not an arm of the state. Rather,

she asserted that the defense of immunity was not timely raised and that there were

material factual disputes about whether the Ex parte Young exception applied.

Haven also argued the merits of her claims, contending that genuine disputes of

material fact existed that precluded granting summary judgment. The Library

replied, reiterating the arguments it raised before.

      On November 12, 2014, the district court granted the Library’s motion for

summary judgment and dismissed Haven’s ADEA complaint for lack of subject-

matter jurisdiction. The court first addressed its authority to rule on the immunity

question. It noted that the Library arguably did not properly raised the defense of

immunity because it did not timely invoke the doctrine, and it improperly framed

the issue as a defense on the merits. Nevertheless, the court determined that it

could consider Eleventh Amendment immunity sua sponte.               The court then


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summarily concluded that “the Library is entitled to Eleventh Amendment

sovereign immunity (whether it properly raised that defense or not)” and then

“examin[ed] whether the Ex parte Young doctrine provides an exception to that

immunity.” The court began its analysis of whether the Ex parte Young exception

applied by stating, “Here, the Library is uncontestedly an arm of the state.” (Id. at

12).   Ultimately, the court concluded that the exception did not apply, so it

dismissed Haven’s ADEA claims for lack of jurisdiction.

       Two days before entry of the district court’s summary-judgment order, this

Court issued its decision in Lightfoot v. Henry County School District, 771 F.3d

764 (11th Cir. 2014), which held that the Henry County School District was not an

“arm of the state” of Georgia, so it was not immune from damages suits under the

Eleventh Amendment. Shortly thereafter, the district court in this case requested

that the parties address whether Lightfoot changed the court’s conclusion that the

Library is an arm of the state and therefore immune.

       In its brief in response, the Library argued that Lightfoot did not alter the

court’s conclusion because Lightfoot merely applied the test set forth in Manders

for determining whether an entity is an arm of the state and because the Library

differed significantly from the school district in Lightfoot.            In Haven’s

supplemental brief, she argued for the first time that the Library was not an arm of

the state under the Manders test.


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         After receiving the parties’ supplemental briefs, the district court issued an

addendum to its summary-judgment order explaining that the prior decision still

stood.     The court concluded that Lightfoot did not alter the arm-of-the-state

analysis set forth in Manders, which, according to the court, was available to

Haven since the case began, but she “elected not to challenge [the Library’s] status

as an arm of the state.”         “In fact,” the court stated, “Plaintiff’s complaint

specifically alleged that the Library is a unit of the University of Georgia System.”

The court further noted that Haven did not argue that the Library was not an arm of

the state during the pendency of the motion for summary judgment but instead

sought refuge under the Ex parte Young exception, and the district court explained

that its request for supplemental briefing “was not an invitation to amend the

pleadings or withdraw concessions.” According to the district court, its arm-of-

the-state determination was “based solely on the specific posture of the pleadings

and arguments made before the Court” and was not intended “as a determination

that units of the Georgia Public Library Service generally are arms of the state.”

         Haven now appeals. She argues that she never admitted in her complaint

that the Library was an arm of the state, and that, even if she did, the district court

was not permitted to rely solely on this statement because she could not admit a

conclusion of law. Further, she contends, the Library never met its burden of

demonstrating that it was an arm of the state, and the district court failed to apply


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the Manders test. Finally, Haven asserts that the Library, under Manders, is not an

arm of the state entitled to share in sovereign immunity.

                                               II.

      We review dismissals based upon Eleventh Amendment immunity de novo.

Ass’n for Disabled Ams., Inc. v. Fla. Int’l Univ., 405 F.3d 954, 956 (11th Cir.

2005). Likewise, whether an entity is an “arm of the state” for purposes of

Eleventh Amendment immunity is a question of law reviewed de novo. Lightfoot,

771 F.3d at 768.

                                        III.

      The Eleventh Amendment largely bars federal courts from entertaining suits

against a state without the state’s consent. Manders, 338 F.3d at 1308. This

sovereign immunity applies not only to the state, but also to an entity acting as an

“arm of the state.” Id. “Whether a defendant is an ‘arm of the State’ must be

assessed in light of the particular function in which the defendant was engaged

when taking the actions out of which liability is asserted to arise.” Id. In Manders,

this Court set forth the following four-factor test for determining whether an entity

is an arm of the state: “(1) how state law defines the entity; (2) what degree of

control the State maintains over the entity; (3) where the entity derives its funds;

and (4) who is responsible for judgments against the entity.” Id. at 1309.




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      There is no dispute that the Eleventh Amendment is implicated by this case.2

Although Congress has the power, within limitations, to abrogate the states’

Eleventh Amendment immunity, the Supreme Court has held that Congress, in

enacting the ADEA, did not validly abrogate the states’ immunity. Kimel v. Fla.

Bd. of Regents, 528 U.S. 62, 66-67, 91-92, 120 S. Ct. 631, 637, 650 (2000); see

also Stroud v. McIntosh, 722 F.3d 1294, 1303 (11th Cir. 2013) (“The Supreme

Court has made it clear [in Kimel] that the ADEA is unconstitutional as applied to

the states because Congress did not enact the law under section 5 of the Fourteenth

Amendment, the only recognized constitutional basis for abrogating states’

sovereign immunity.”).      Thus, states are immune from damages suits brought

under the ADEA.

      Haven now argues that the Library is not an arm of the state entitled to share

in the state’s immunity. In response, the Library contends that these arguments are

not properly before this Court because Haven failed to oppose the Library’s status

as an arm of the state in a timely fashion during the district-court proceedings. As

we see it, there are two related but distinct doctrines that could bar our review of

Haven’s arguments on appeal.




      2
         Haven does not contend that the Library waived its defense of immunity. See
McClendon v. Ga. Dep’t of Cmty. Health, 261 F.3d 1252, 1257 (11th Cir. 2001) (stating that
Eleventh Amendment immunity is a “volitional defense” that may “be waived by the state”).
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       First, it is well settled that we will not consider on appeal an issue or

argument not fairly presented to the district court, unless our refusal to do so will

result in a miscarriage of justice. Resolution Trust Corp. v. Dunmar Corp., 43 F.3d

587, 598-99 (11th Cir. 1995); see also Access Now, Inc. v. Sw. Airlines Co., 385

F.3d 1324, 1331 (11th Cir. 2004) (issues raised for the first time on appeal will not

be considered). Here, although the Library asserted that it was an arm of the state

in its motion for summary judgment, Haven did not contest the Library’s position

until after the court granted summary judgment. Ordinarily, we would decline to

address Haven’s belatedly raised argument. In the specific circumstances of this

case, however, we conclude that general rule of Resolution Trust and like cases is

inapplicable.

       As the governmental entity invoking the Eleventh Amendment, the Library

“bears the burden of demonstrating that it qualified as an arm of the state entitled

to share in its immunity.” 3 See Woods v. Rondout Valley Cent. Sch. Dist. Bd. of

Educ., 466 F.3d 232, 237 (2d Cir. 2006); see also Gragg v. Ky. Cabinet for

Workforce Dev., 289 F.3d 958, 963 (6th Cir. 2002) (“[T]he entity asserting

Eleventh Amendment immunity has the burden to show that it is entitled to

immunity, i.e., that it is an arm of the state.”); Skelton v. Camp, 234 F.3d 292, 297

(5th Cir. 2000) (same); Christy v. Pa. Turnpike Comm’n, 54 F.3d 1140, 1144 (3d

       3
         Consistent with this burden, the Library in its summary-judgment motion argued that it
was an arm of the state and cited factors under the Manders test relevant to that question.
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Cir. 1995) (same); ITSI TV Prods., Inc. v. Agric. Ass’ns, 3 F.3d 1289, 1292 (9th

Cir. 1993) (same). Although the district court dismissed the complaint for lack of

subject-matter jurisdiction based on Eleventh Amendment immunity, the court

never analyzed or determined whether the Library met its burden of establishing

that it was entitled to immunity as an arm of the state.

      Nor, generally, does a party’s failure to oppose a summary-judgment motion

absolve the district court of its responsibility to consider the merits of the motion.

United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami,

Fla., 363 F.3d 1099, 1101 (11th Cir. 2004) (“[T]he district court cannot base the

entry of summary judgment on the mere fact that the motion was unopposed, but,

rather, must consider the merits of the motion.”). In view of the fact that the

Library bore the burden of establishing its entitlement to immunity, Haven’s

failure to oppose the Library’s contention that it was an arm of the state alone does

not resolve whether the Library is entitled to immunity as an arm of the state under

Manders.

      The second doctrine that could bar our review of Haven’s appeal is the

doctrine of invited error. The doctrine of invited error precludes appellate review

“when a party induces or invites the district court into making an error.” United

States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998); see also Pensacola Motor

Sales Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211, 1231 (11th Cir. 2012). Here,


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the district court appears to have found that Haven did not simply fail to oppose the

Library’s arguments, but had effectively conceded that the Library was an arm of

the state. If Haven had affirmatively conceded that the Library was an arm of the

state, the doctrine of invited error would prohibit appellate review. Cf. United

States v. Haile, 685 F.3d 1211, 1221 (11th Cir. 2012) (concession at trial that a gun

was a “machine gun” constitutes invited error and precludes review of a challenge

to the court’s failure to define “machine gun” for the jury).

      While it is a close question, we cannot conclude that Haven invited the court

to find that the Library was an arm of the state.        The allegation in Haven’s

complaint that the Library was “a unit of the University of Georgia System,” cited

by the district court as a “concession” of its arm-of-the-state status, concedes no

more than that the Library is a governmental entity to which sovereign immunity

may apply. The Library adds that this “concession” was not alone, and that, when

viewed jointly with Haven’s failure to oppose the Library’s arguments, the district

court properly found that Haven had conceded that the Library was an arm of the

state. However, failing to oppose is not equivalent to inducing or inviting. See

United States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012) (“[F]ailing to object

does not trigger the doctrine of invited error.”); cf. United States v. Olano, 507

U.S. 725, 733, 113 S. Ct. 1770, 1777 (1993) (“Whereas forfeiture is the failure to

make the timely assertion of a right, waiver is the intentional relinquishment or


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abandonment of a known right.” (internal quotation marks omitted)). Overall,

Haven’s actions amount to no more than a failure to oppose the Library’s argument

that it is an arm of the state. Therefore, invited error does not apply.

      In sum, we conclude that Haven’s argument that the Library is not an arm of

the state is properly before us. However, although both parties have briefed this

issue, we do not decide it in this appeal. Because the district never addressed this

issue in any depth, we vacate the dismissal of Haven’s ADEA claims and remand

to the district court for further proceedings, including for the court to consider in

the first instance the question whether the Library is entitled to Eleventh

Amendment immunity as an arm of the state under the test set forth in Manders.

See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 & n.4 (11th Cir. 2001)

(stating that we have a preference for the district court to address issues in the first

instance, even on summary judgment). We express or imply no opinion on the

proper resolution of the immunity question.

      VACATED AND REMANDED.




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