Second Circuit Says No Waiver of General Immunity when State Removes

Steven D. Schwinn, John Marshall Law School

The Second Circuit this week ruled that a state does not waive its general state sovereign immunity (as opposed to its Eleventh Amendment sovereign immunity) when it removes a case to federal court.

The ruling is a win for the states and adds to the apparent weight of authority in the circuits. Still, the Second Circuit noted that "there has . . . been some confusion in the Circuit Courts" on the question, inviting the Supreme Court to clarify.

The case started with state employees' Fair Labor Standards Act case against Vermont in state court. Vermont removed the case to federal court, declined to assert any form of sovereign immunity, and even at one point represented that it wouldn't assert Eleventh Amendment immunity (as a result of its removal to federal court). Then it asserted general common law state sovereign immunity and moved to dismiss.

The Second Circuit dismissed the case. The court said that while Vermont waived its Eleventh Amendment immunity by virtue of its removal to federal court (under Lapides v. Board of Regents), it did not waive its general state sovereign immunity by virtue of removal. The court noted that the state in Lapides had already waived its general state sovereign immunity, so did not support the plaintiffs' position that Vermont waived immunity (because Vermont had not previously waived its general state sovereign immunity). The court also said that the circuits that have considered the question have ruled that a state does not waive its general state sovereign immunity by virtue of removal (even if it waives Eleventh Amendment immunity by virtue of removal)--even while noting that there's some confusion in the circuits on how to apply Lapides.

The court said that both logic also supported its result:

A state defendant sued in state court, when entitled to remove the suit to federal court, may well wish to do so in the belief that its entitlement to have the suit dismissed by reason of the state's sovereign immunity, an entitlement largely elaborated by federal courts, will be better protected by the federal courts than by courts of the state.

The court also rejected the plaintiffs' arguments that Vermont's foot-dragging on asserting immunity amounted to a waiver and that Vermont expressly waived immunity.