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Walden v. State

United States Court of Appeals, Ninth Circuit

October 16, 2019

Donald Walden, Jr.; Nathan Echeverria; Aaron Dicus; Brent Everist; Travis Zufelt; Timothy Ridenour; Daniel Tracy, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees,
v.
State of Nevada; Nevada Department of Corrections, Defendants-Appellants.

          Argued and Submitted March 13, 2019 San Francisco, California

          Appeal from the United States District Court No. CV 14-0320 MMD for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

          Richard I. Dreitzer (argued) and James T. Tucker, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Las Vegas, Nevada; Adam Paul Laxalt, Attorney General; Steve Shevorski, Ketan D. Bhirud, and Theresa M. Haar, Office of the Attorney General, Las Vegas, Nevada; for Defendants-Appellants.

          Joshua D. Buck (argued), Mark R. Thierman and Leah L. Jones, Thierman Buck LLP, Reno, Nevada, for Plaintiffs-Appellees.

          Before: Eugene E. Siler, [*] A. Wallace Tashima, and M. Margaret McKeown, Circuit Judges.

         SUMMARY[**]

         Sovereign Immunity

         In an interlocutory appeal in a case in which a group of correctional officers allege, inter alia, violations of the Fair Labor Standards Act (FLSA), the panel affirmed the district court's holding that the State waived its Eleventh Amendment sovereign immunity as to the plaintiffs' FLSA claims when it removed the case from state court to federal court.

         Extending the holding of Embury v. King, 361 F.3d 562 (9th Cir. 2004), the panel held that a State that removes a case to federal court waives its immunity from suit on all federal-law claims in the case, including those federal-law claims that Congress failed to apply to the states through unequivocal and valid abrogation of their Eleventh Amendment immunity.

          OPINION

          Tashima, Circuit Judge.

         Plaintiffs-Appellees ("Plaintiffs") are a group of correctional officers who allege violations of the Fair Labor Standards Act ("FLSA") by Defendants-Appellants State of Nevada and the Nevada Department of Corrections (together, "Nevada"). Nevada removed the case from state court to federal court, then moved for judgment on the pleadings based on state sovereign immunity from suit. We have previously held that a State's removal of a suit from state to federal court waives state sovereign immunity from suit on certain federal-law claims. Embury v. King, 361 F.3d 562 (9th Cir. 2004). But Embury's holding did not cover federal-law claims that Congress did not apply to the states through unequivocal and valid abrogation of their Eleventh Amendment immunity. Id. at 566 n.20. We now hold that a State that removes a case to federal court waives its immunity from suit on all federal-law claims in the case, including those federal-law claims that Congress failed to apply to the states through unequivocal and valid abrogation of their Eleventh Amendment immunity.

         BACKGROUND

         Plaintiffs allege that Nevada has not compensated them for time that they spent working before or after scheduled shifts at state prisons and correctional facilities. Plaintiffs allege wage and overtime claims under the FLSA, failure to pay minimum wages under Nevada's Constitution, failure to pay overtime as required by Nev. Rev. Stat. § 284.180, and breach of contract.

         Plaintiffs filed this action in state court. Nevada removed the case to federal court and then answered the complaint. In its answer, Nevada pleaded the affirmative defense that "Defendant is immune from liability as a matter of law," but did not explicitly mention state sovereign immunity or the Eleventh Amendment. Upon Plaintiffs' motion, the district court granted conditional certification of the FLSA collective action and ordered notice be sent to all current and former non-exempt hourly paid employees who were employed by the Nevada Department of Corrections as correctional officers at any time from May 12, 2011 to the date of the order (March 16, 2015). In total, 542 current and former employees have opted into this action.

         On March 1, 2018, the district court sua sponte requested supplemental briefing on the issue of whether "the doctrine of state sovereign immunity [applied] to the FLSA claims against the State of Nevada as brought in federal court." This issue had not been raised at all until this point of the litigation, almost four years after the complaint was filed and after significant discovery had been completed, notwithstanding the affirmative defense Nevada raised in its answer, that "Defendant is immune from liability as a matter of law." In that order, the district court noted that although the FLSA confers subject-matter jurisdiction in federal court, the district court might be "barred from adjudicating the FLSA claims and this case should be remanded" because ...


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