this court's recent decision and walden versus nevada department of corrections squarely answers the only question in this case because it's now binding precedent it compels reversal of the district court's dismissal the sole question in this case whether arizona has state sovereign immunity under the f l essay and while than answers this question clearly it says a state defendant that removes a case a federal court waves its immunity from suit on all federal  that deals with immunity from suit but it doesn't deal with immunity from liability but no one right is however the state sovereign immunity is immunity from suit under justice kennedy's opinion and all the inverses maine state sovereign immunity from suit and i will go ahead and read that for clarity it says in light of history practice precedent and the structure of the constitution we hold that the states retain immunity from private suit in their own courts and immunity beyond the congressional power to abrogate the article one so i have i think that that's pretty clear that state sovereign immunity is immunity from suit there are two different questions let's suppose that there are ten claims in a case the state removes two federal court saying sure we're happy to be sued and for eight of these claims are statutes  immunity from liability for but for these two claims there's no liability on the part of the state they haven't given up well that part so talk to us about why under arizona law the state has agreed to be potentially liable for a wage claim under federal law well i think that that's exactly the issue that walden answered it isn't so just just bear with me and talk to me about the arizona law so if the court decides that it needs to reach arizona law and that wall then is it sufficient then it should still find that the lacks that the state lacks state sovereign immunity under twelve dash eight hundred and twenty dollars so the plain text of that act provides no sovereign immunity in this situation it says quote that there's immunity only for the exercise of an administrative function involving the determination of fundamental governmental policy which in turn must involve the exercise of discretion arizona has no discretion to not follow the fair labor standards act garcia has decided that the supreme court decided that garcia the fair labor standards act by itself by the text on its face applies to the states the state has no discretion to choose to evade that law so on the text on the plane face of the lot self there's no sovereign immunity the legislative history of the law also indicates that waiver was intended in arizona to apply very broadly in passing the act to the legislator legislature considered a variety of previous versions of the act which all included limiting language that limited it to towards considered a governmental commission's report on tort reform and chose to to eliminate all references to tort power in those previous versions and that were in suggested versions of the act and that elimination must be given meaning it was  both breach of contract and claims but they were state law claims is there any reason and arizona law of which you are aware why the state would have waived immunity for which claims under state law but not waived immunity for federal wage claims that are similar i'm not sure i understand the question but let me say there are no cases in arizona where the state has considered and waived immunity for a federal wage claim it or otherwise modify any other rules of tort immunity they're clearly talking about tort immunity as did the stone case in one thousand nine hundred and sixty three right so on those two points that cases which isn't actually that surprising because all the verses main didn't create states or an immunity for f l as a claims until one thousand nine hundred not so what case are you relying on to establish the proposition of the state of arizona has waived all immunity with respect to all claims under federal law against the state it has to be walled in your honor and has to be what waldon the recent december decision of this court and that's because of one with and yeah but that's bootstrapping isn't it reall says if you waive immunity and the status way from the federal a very very logical conclusion well i it's presumes step one and you have to tell me where the state has waived its sovereign immunity respect to this kind of claim i think it has to be footnote for but not for says because we are firm on the waiver by removal ground we do not address plaintiff's alternate argument that nevada has waived sovereign immunity from f l as a claims by enacting the four also indicates that removal itself waives state sovereign immunity and it's it's somewhat complex i'm not sure i got it right in the bleep brief so i want to go through it carefully in other words you're saying footnote four of walden which was not an arizona case affirmed and it sent the case back to nevada as our district court and allowed it to proceed it waived th i'm an immunity in state sovereign immunity so it must have found biased affirming and sending it back that both immunities were waived wasn't decided that it wasn't going to reach that waiver statute so the only possible way it could have found waiver is to remove all so that footnote four shows that removal waves both th amendment immunity and state sovereign cite this in the reply brief i believe that the th circuit has held that it is issues that are waived not arguments so i decided not to proceed with argument but the court as it showed in walden has the ability to decide a claim on much the points i intend to discuss today are st that the state has not waived its sovereign immunity to n f l s a claim through the actions against public entities or public employees act and for brevity i'd like to refer to this is just the act and  nd that the state's removal of this case from state court to federal court did not waive its sovereign immunity as to liability for plain so let me start with your st question in the field scarcely arizona supreme court said that an action against the state for failure to pay wages under a state  there was no immunity for that do you do you agree with that reading and that is what that case held your ok so what in the language of the statute were in any other arizona supreme court case where do we find a principle basis to say that one can bring state wage claims but not federal which claims well your honor to answer that we go back to the principles of sovereignty  that have existed from the beginning of the union now i'm asking you about the statute and what it says and what it means indeed so in speaking of the statute we look to and and this is guided directly by how the supreme court has directed we look to issues of waiver the st of all i would say that the point regarding the application of the statute to tort is is well taken however this arizona supreme court said that there was a common law right of action for employees to enforce wage claims so i don't i don't see how far that gets you so yes your honor but the clear intent of the legislature and  acting the act had to do with application of state common law and state law that is where does it say that in the statute where does it say that in the statute so in the statute itself  that isn't present however the legislature made clear its purpose and stating the legislative purpose of the act had to do with state arizona state law and arizona common law there was a very clear intent of the legislature not to go beyond any sort of waiver exceeding state law that is because the supreme court has told us when when dealing with issues of waiver of sovereignty we have to be very careful and look to the issue favoring the sovereign we can't imply a waiver through well if you were if you are if you apply the words of the statute it says nothing about federal versus state and the actual t honor if we were looking at specifically statutory interpretation and that were all in the text of the act itself the words this shall not apply to federal regulation are not present however we know definitively because  and and that is when when interpret ing immunity and waiver as as a supreme court has said we must indulge every reasonable presumption against waiver and where we have the legislature explicitly saying this is what we're doing we're not explicitly what it says is the text of statute but here let me let me ask you a further question here this is obviously a sort of thorny and difficult problem of interpret state statute why shouldn't we certify this question to the arizona supreme court and ask him to say whether the act where he was immunity from suit regarding f l s and he claims well you're honor i simply don't think that we need to go i know you don't think we need anybody if if it appears that the statute is ambiguous or of that reasonable arguments can be made on both sides of the question why wouldn't that be the most appropriate rizal where arizona cares and you know we don't have any dog in the fight because we have the clear intention of arizona in an act in the act we know what they were trying to do and we know from the supreme court direction how we are to interpret that action that is the legislature said here is what we're trying to do we are we regulating with regard to arizona state law and arizona common law and everything to do with this act is to be done with that purpose in mind they said that explicitly and i don't believe that only start with the text of the statu indeed and the text as you have said doesn't say anything about this one way or the other yes your honor and i and i and we know that waived claims under state law can be brought against the state and i can be brought either as a matter of common law back in the thirty's or as a matter of non immunity under this statute so that doesn't that create a little bit of a tension you are correct your honor if we were looking at strict statutory interpretation but what we're looking at here is is waiver and the intent of the state that is as as explained by the rd circuit quoting the supreme court in college savings the supreme court has noted that in effect of waiver of sovereign immunity like the waiver of other constitute protected rights must involve the intentional relinquishment or abandonment of a known right and here we know what the intention was the legislature stated the intention so it's not bank itself says it must be unequivocal correct your honor would you respond to opposing counsel's reference to footnote four of walden and why that  constitutes a waiver by the state of arizona of its sovereign immunity while your honor my my response is simply that it doesn't and i think the felony with it would be nice if you could explain that indeed and if we look by the walton decision even in so far as the courts have held that voluntary invocation of federal jurisdiction may act as waiver to an argument that the federal court has no jurisdiction this says nothing to do with relinquishing arguments that a state might have in its its own courts as to liability that is there's there's no implication at all from the reasoning behind walden that by removing a case a state defendant might give up its it's defenses as to liability which is being asserted here in which the district court in part bas questions from your honour's i conclude by saying the state of arizona respectfully request this court affirm the decision of the district court granting the state's motion to dismiss and entering judgment in its favor as the state does not have any liability as to your honor is this case is an existing almost exactly the same posture as walden so it while that should provide a very easy framework far deciding while then decided they were going to reach the nevada law they were going to answer a question that might be better left  nevada supreme court because they decided that waiver by removal waived both th amendment and unity and state sovereign immunity the court can do that and should do that here because while than is binding press but if the court chooses to nevertheless look at arizona law there's a wealth of evidence both from the legislature there is on the supreme court's its lower courts arizona's constitution that says that the state intends to waive its immunity that governmental liability is the exception an immunity is the rule that's clear in the arizona constitution and its decisions interpretating stone and its later cases and frankly i don't think that there's any reason why stone or immunity should apply only to tort cases because if you think about it a tort is a mistake if the government is willing to take on responsibility for a mistake then why would it be willing to take on responsibility and my husband hasn't said so this he answered your question is well i don't think so i think it has said so stone by the the supreme court so there was no the state didn't have the ability to waive something that exists that but it's reasoning is broad and again if the state is going to take on responsibility for a mistake that should also take on responsibility for an intentional violation