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                                                                              [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT

                            _________________________

                                   No. 12-10436
                            _________________________

                     D.C. Docket No. 2:11-cv-00006-MEF-CSC


PATRICIA G. STROUD,

                                                                      Plaintiff–Appellant,

                                          versus

PHILLIP MCINTOSH,
THE ALABAMA BOARD OF PARDONS AND PAROLES,

                                                                  Defendants–Appellees.

                             ________________________

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


                                     (July 23, 2013)

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


       *
        Honorable Richard Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
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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

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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.




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       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 (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).



       1
         Stroud challenges other rulings of the district court, none of which were resolved on the
basis of sovereign immunity. Specifically, she contends that the district court improperly
dismissed her Title VII claims against both defendants and erred by dismissing her § 1983 claims
against McIntosh. We conclude that there is no error in these challenged rulings.
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              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 (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 (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 (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 (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 (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.

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      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 (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

(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 (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 (1984) (recognizing that the Eleventh

Amendment’s “significance lies in its affirmation that the fundamental principle of

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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 (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

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under § 5 of the Fourteenth Amendment” because of “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


        2
          Stroud also argues that Alabama consented to suit for federal ADEA claims when it
enacted the AADEA, because the AADEA “specifically adopted all of the rights and remedies of
the federal [ADEA].” (Appellant’s Br. at 12.)
        This argument is meritless. First, the argument assumes that a state consents to suit
simply by passing a law creating liability for employers generally. Alabama has not expressly
waived its immunity from AADEA claims. Cf. Larkins v. Dep’t of Mental Health & Mental
Retardation, 806 So. 2d 358, 363 (Ala. 2001) (“[The state’s] immunity cannot be waived by the
Legislature or by any other State authority.”). Second, even if Alabama had waived its immunity
from AADEA claims, that fact would not affect whether Alabama waived its immunity from
claims under the federal ADEA. A state does not waive immunity against a federal law by
waiving immunity against a similar state law. See Kimel, 528 U.S. at 91–92, 120 S. Ct. at 650
(recognizing that states’ express consent to claims under state age-discrimination laws does not
affect states’ immunity from federal ADEA claims).
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case to federal court. The district court then dismissed the § 1983 claims on the

basis of qualified immunity, leaving only the state law claim against the Board of

Regents. The Board of Regents asserted immunity under the Eleventh Amendment

from the state law claim in federal court, but the district court held that the Board

of Regents had waived its immunity when it removed the case.

      The Supreme Court agreed with the district court.           Using the phrase

“Eleventh Amendment immunity” to refer to a state’s immunity from suit in a

federal forum, the Court began by reciting the principle that a state waives its

Eleventh Amendment immunity by voluntarily invoking the jurisdiction of the

federal courts. Lapides, 535 U.S. at 619, 122 S. Ct. at 1643–44. That principle,

the Court decided, applies where the state removes a case to federal court because

removal constitutes a voluntary invocation of federal jurisdiction. Id. at 620, 122

S. Ct. at 1644. The Court reasoned that the principle has as its main concern the

potential for “inconsistency, anomaly, and unfairness” if a state were allowed to (a)

submit its case for resolution in the federal courts and (b) if advantageous, deny the

federal courts’ jurisdiction to resolve the case. Id. at 619–23, 122 S. Ct. at 1643–

46. Even though the Board of Regents argued that it sought no unfair advantage

by removing, the Court refused to consider its motive because “[m]otives are

difficult to evaluate, while jurisdictional rules should be clear.” Id. at 621, 122 S.

Ct. at 1645. Ultimately, the Court said, “the rule is a clear one”—“removal is a

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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.”

Id. at 623–24, 122 S. Ct. at 1646.

      The Court placed two restrictions on its holding. Because (1) the only

remaining claim in the case was a state law claim and (2) Georgia had waived its

immunity-based objection to suit in its own courts, the Court limited its holding to

“state-law claims, in respect to which the State has explicitly waived immunity

from state-court proceedings.” Id. at 617, 122 S. Ct. at 1643. The Court noted that

the plaintiff’s claim was a state law claim, not “a valid federal claim against the

State.” Id. Moreover, the opinion declined to “address the scope of waiver by

removal in a situation where the State’s underlying sovereign immunity from suit

has not been waived or abrogated in state court.” Id. at 617–18, 122 S. Ct. at 1643.

      The contrast between Lapides’s narrow holding and its broad reasoning has

sparked a debate in other circuits. These courts have addressed the weight of

Lapides’s reasoning in the situations Lapides’s holding expressly does not

control—where the state removes a case involving a valid federal law claim or

where the state has not relinquished its immunity from suit in its own courts. We

find a brief review of these cases helpful to give context to this case.

      Most circuit courts seem to agree that the Lapides Court’s reasoning should

apply in cases involving federal law claims as well as those involving state law

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claims. That is, the source of a plaintiff’s claim against a state (state law or federal

law) is irrelevant to whether a state waives its immunity against that claim by

removing to federal court. See Lombardo v. Penn., Dep’t of Pub. Welfare, 540

F.3d 190, 197 (3d Cir. 2008) (applying Lapides’s reasoning to a state’s removal of

a federal claim); Embury v. King, 361 F.3d 562, 564 (9th Cir. 2004) (“Nothing in

the reasoning of Lapides supports limiting the waiver . . . to state law claims

only.”); Estes v. Wyo. Dep’t of Transp., 302 F.3d 1200, 1204 (10th Cir. 2002)

(applying Lapides’s reasoning to hold that the state waived immunity by removing

a federal claim); see also Bergemann v. R.I. Dep’t of Envtl. Mgmt., 665 F.3d 336,

340–42 (1st Cir. 2011) (distinguishing Lapides in the context of a removed federal

law claim without reference to Lapides’s application only to removed state law

claims); Stewart v. North Carolina, 393 F.3d 484, 490 (4th Cir. 2005) (same).

      But the circuits divide over the meaning of Lapides’s second limitation—

that it does not control cases in which the state has not relinquished its sovereign

immunity in its own courts against the claim in question. On one hand, three

circuits (the First and Fourth Circuits and the D.C. Circuit) distinguish Lapides on

that basis, holding that a state did not waive sovereign immunity by removing a

case because, unlike Georgia in Lapides, the state had not waived its immunity in

its own courts. See Bergemann, 665 F.3d at 341; Stewart, 393 F.3d at 488–89;

Watters v. Washington Metro. Area Transit Auth., 295 F.3d 36, 42 n.13 (D.C. Cir.

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2002), cert. denied, 538 U.S. 1574, 123 S. Ct. 1574 (2003). On the other hand,

three circuits (the Seventh, Ninth, and Tenth) read Lapides’s broad reasoning to

establish the general rule that a state’s removal to federal court constitutes a waiver

of immunity, regardless of what a state waived in its own courts. See Bd. of

Regents of the Univ. of Wis. Sys. v. Phoenix Int’l Software, Inc., 653 F.3d 448, 461

(7th Cir. 2011); Embury, 361 F.3d at 564–65; Estes, 302 F.3d at 1204–06.

      Two circuits (the Third and Fifth) occupy something of a middle ground.

See Lombardo, 540 F.3d 190; Meyers ex rel. Benzing v. Texas, 410 F.3d 236 (5th

Cir. 2005), cert. denied sub nom. Texas v. Meyers, 550 U.S. 917, 127 S. Ct. 2126

(2007). These courts conclude that Lapides’s reasoning informs the answer to the

question of whether a state has waived its immunity-based objection to suit in a

federal forum—and only that question.          But sovereign immunity, they say,

encompasses more than this narrow immunity from federal jurisdiction;

specifically, a state that waives its forum-based immunity may still have immunity

from liability for particular claims. See Lombardo, 540 F.3d at 198–200; Meyers,

410 F.3d at 252–55. That underlying immunity from liability is unaffected by the

state’s voluntary invocation of the federal forum. See Lombardo, 540 F.3d at 200;

Meyers, 410 F.3d at 255.




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                                  D. Our Holding

      We agree with the conclusions of the Third and Fifth Circuits. We hold that

although the Board’s removal to federal court waived its immunity-based objection

to a federal forum, the Board retained its immunity from liability for a violation of

the ADEA.

                                         1.

      As a preliminary matter, we agree that sovereign immunity is a divisible

concept. See Lombardo, 540 F.3d at 198–200; Meyers, 410 F.3d at 252–55. The

Supreme Court has repeatedly recognized that sovereign immunity is a flexible

defense with multiple aspects that states can independently relinquish without

affecting others. See, e.g., Sossamon v. Texas, 563 U.S. ___, 131 S. Ct. 1651, 1658

(2011) (noting that a state’s waiver of sovereign immunity “in its own courts is not

a waiver of its immunity from suit in federal court” and that a state can retain its

“immunity to damages” even if it waives sovereign immunity against “other types

of relief”); Fed. Mar. Comm’n, 535 U.S. at 766, 122 S. Ct. at 1877 (suggesting that

sovereign immunity is an immunity “from suit” and encompasses a narrower

“defense to monetary liability”); Coll. Sav. Bank, 527 U.S. at 676, 119 S. Ct. at

2226 (noting that a state can retain its immunity from suit in federal court even

when it waives immunity in its own courts (citing Smith v. Reeves, 178 U.S. 436,

441–45, 20 S. Ct. 919, 921–22 (1900))); Atascadero State Hosp. v. Scanlon, 473

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U.S. 234, 241, 105 S. Ct. 3142, 3146–47 (1985) (same), superseded by statute on

other grounds, Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, 100

Stat. 1807.    And courts (including ours) have acknowledged that sovereign

immunity can include immunity from suit as well as immunity from liability,

depending on a state’s choices in fashioning the scope of its immunity. See, e.g.,

New Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir. 2004) (“Certainly, a state may

waive its immunity from substantive liability without waiving its immunity from

suit in a federal forum.”); CSX Transp., Inc. v. Kissimmee Util. Auth., 153 F.3d

1283, 1286 (11th Cir. 1998) (examining Florida law and determining that Florida

fashions its sovereign immunity as an immunity from liability but not from suit);

cf. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58, 116 S. Ct. 1114, 1124 (1996)

(explaining that the sovereign immunity embodied by the Eleventh Amendment

exists both to “preven[t] federal-court judgments that must be paid out of a State’s

treasury,” implying an immunity from liability, and to “avoid the indignity of

subjecting a State to the coercive process of judicial tribunals at the instance of

private parties,” implying an immunity from suit (alteration in original) (internal

quotation marks omitted)).

      The point that arises from these cases: a state, if it chooses, can retain

immunity from liability for a particular claim even if it waives its immunity from

suit in federal courts.

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                                         2.

      The Board contends that Lapides does not apply to this case because, unlike

in Lapides, Alabama has not waived its immunity before its own courts for ADEA

claims. We agree with the Board’s position that Lapides is distinguishable and

does not control our result. But the first question we address is whether to accept

Lapides’s reasoning as support for a holding that removal in this case waived the

Board’s immunity from a federal forum. We conclude that Lapides’s reasoning

supports that holding.

      A close reading of the opinion shows that the Lapides Court sought to avoid

the unfairness, anomaly, and inconsistency of a state’s invocation of federal

jurisdiction by removal, on one hand, and on the other, its denial of federal

jurisdiction by asserting immunity from federal court proceedings. The Court first

mentions this potential anomaly at the beginning of its analysis:

      It would seem anomalous or inconsistent for a State both (1) to invoke
      federal jurisdiction, thereby contending that the “Judicial power of the
      United States” extends to the case at hand, and (2) to claim Eleventh
      Amendment immunity, thereby denying that the “Judicial power of
      the United States” extends to the case at hand.

Lapides, 535 U.S. at 619, 122 S. Ct. at 1643. This paradox, the Court says, “could

generate seriously unfair results.”    Id.    The Court notes that the voluntary-

invocation principle seeks to avoid “selective use of ‘immunity’ to achieve

litigation advantages.” Id. at 620, 122 S. Ct. at 1644. In other words, it would be

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unfair to allow a state to remove to a federal forum and then assert a jurisdictional

immunity from that federal forum—this tactic would allow a state to essentially

use removal as a jurisdictional trump card in any case initiated in a state forum that

could fall under the original jurisdiction of the federal courts.

      So, under Lapides’s reasoning, a state waives its immunity from a federal

forum when it removes a case, which voluntarily invokes the jurisdiction of that

federal forum. But nothing in Lapides suggests that a state waives any defense it

would have enjoyed in state court—including immunity from liability for

particular claims. Lapides specifies that it is addressing only immunity to a federal

forum. Id. at 618, 122 S. Ct. at 1643 (narrowing the discussion to whether Georgia

waived its “Eleventh Amendment immunity from suit in a federal court”); id. at

624, 122 S. Ct. at 1646 (“[R]emoval 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.” (emphasis added)). In fact, the

opinion distinguishes this immunity against federal court proceedings from a

state’s “underlying sovereign immunity,” id. at 617–18, 122 S. Ct. at 1643—

implying that its discussion of immunity from federal court does not address other

aspects of sovereign immunity, including a state’s immunity from liability.

Finally, the Court’s reasoning, including its concern for the potential unfairness of

a state gaining a new litigation advantage by removing, does not involve a state’s

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immunity from liability that the state would have enjoyed had it remained in its

own courts. We do not understand Lapides to require the state to forfeit an

affirmative defense to liability simply because it changes forums. But the Lapides

Court’s reasoning supports the propositions that a state consents to federal

jurisdiction over a case by removing and that it cannot then challenge that

jurisdiction by asserting its immunity from a federal forum. We therefore hold that

the Board waived its immunity from suit in federal court when it removed the

case.3

                                               3.

         That brings us to our final point. The defense of immunity from a federal

forum was not the only immunity-based defense the Board had in its arsenal and

asserted in the Answer. As we have established, a state can waive its forum

immunity but retain other aspects of sovereign immunity, including immunity from

liability for certain claims. See Lombardo, 540 F.3d at 198–200; Meyers, 410 F.3d



         3
          That Stroud added the ADEA claim only after the case was removed does not change
the result. Forum immunity is a jurisdictional immunity that shields a state from suit in federal
court. U.S. Const. amend. XI (“The Judicial power of the United States shall not be construed to
extend to any suit . . . .” (emphasis added)). Once that jurisdiction is invoked by removal, the
federal court has jurisdiction over the entire case—not simply those claims that the complaint
alleged at the time of removal. See 28 U.S.C. § 1441(a) (“[A]ny civil action brought in a State
court of which the district courts of the United States have original jurisdiction[] may be
removed by the defendant . . . .”); Fed. R. Civ. P. 81(c)(1) (applying the Federal Rules of Civil
Procedure to removed cases); id. R. 15(a)(2) (allowing parties in civil cases to amend pleadings
“with the opposing party’s written consent or the court’s leave”); Embury, 361 F.3d at 565
(“[T]he State removed the case, not the claims, and like all cases in federal court, it became
subject to liberal amendment of the complaint.”).
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at 252–55. Here, an arm of the state remains immune from liability for claims

under the ADEA, notwithstanding its removal of the case.

      The Supreme Court has made it clear 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. Kimel, 528 U.S. at 91–92, 120 S. Ct. at 650. The

Board’s removal of the case did not waive its constitutional objection to ADEA

liability on the basis of sovereign immunity. See Meyers, 410 F.3d at 255 n.27

(recognizing that, even after waiver by removal, a state may raise an objection to

liability on the basis that Congress did not abrogate its sovereign immunity).

      Nor has Alabama waived its immunity from ADEA claims through other

means. Alabama retains a “nearly impregnable” immunity from suit, Patterson v.

Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002), and neither the state legislature

nor any other state authority can waive it, Larkins v. Dep’t of Mental Health &

Mental Retardation, 806 So. 2d 358, 363 (Ala. 2001). Alabama may assert the

defense of immunity from ADEA liability in state court. Cf. Ala. State Docks

Terminal Ry. v. Lyles, 797 So. 2d 432, 438 (Ala. 2001) (holding that an arm of the

state was immune in the state trial court from a claim brought under the Federal

Employers’ Liability Act).      Its removal to federal court did not affect the

availability of that defense. Cf. Lombardo, 540 F.3d at 198 (“[W]hile voluntary

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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.”); Meyers, 410 F.3d at 255 (“[T]he

Constitution permits and protects a state’s right to relinquish its immunity from

suit while retaining its immunity from liability, or vice versa . . . .”). The Board’s

affirmative defense of sovereign immunity was therefore valid, and the district

court correctly held that the Board did not waive that defense by removing.

                                IV. CONCLUSION

      We conclude that the Board waived its defense of immunity from litigation

in federal court when it removed to federal court, but the Board did not waive its

immunity from ADEA liability. The judgment of the district court is therefore

      AFFIRMED.




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