district court one which correctly correctly articulated the law as to the new duties enjoyed by state entities and a second which conflated the two types of immunity and came to a conclusion which we believe is wrong so as a remedy we ask that this court confirm that the state of nevada has absolute immunity to suit in any court under the delivery standard that you're in so you're limiting immunity from suit not immunity from liability absolutely we are that is one hundred percent our position yes we would ask the court to reverse the district's mistaken order which came to the opposite conclusion and thirdly dismissed this action with prejudice since the only cause of action which were made before the court are the ones under the fair labor standards act now the court correctly that the situation as far as the types of immunity immunity from liability in unity from suit for purposes of my argument i mean to refer to it as all the versus main immunity or absolute immunity that's that's not really at the fence per se it's a structural element of nevada law that that is not wave a bull unless there is clear action on the part of the state to do so we believe that the court's march first two thousand and eighteen order got this correct they the court specifically said that the fair labor standards does not waive immunity to nevada suit in federal court that congress didn't have the power to abrogate that immunity and that federal courts do not have jurisdiction over epilepsy cases against state entities unless there's an immunity waiver that has occurred likewise the for courts first order talked about waiver needing to be expressly stated edelman versus jordan speaks to that because the constitutional right it's a stringent burden that the the the person alleging waiver has to fall or has to identify suit to federal court by itself was a waiver of the state's sovereign or all the immunity that's the in the error of law that we are going to fight the only rationale in the court's march twenty six doesn't apply in this case because lupita specifically says the question before us is whether the states act of removing a lawsuit from state court to federal court ways that immunity waves waves of this immunity and we hope that it does there's no mention whatsoever of olden immunity and to the conclusion that you just stated that with a single item waved you said relates to being able to be sued in federal court right that what i just did to create that just to focus the distinction we're strictly dealing with an immunity really of the old and or old in versus maine where we can be sued under the fair labor standards act our position is that we cannot the state of nevada cannot be sued under f l s a in any court that is the entirety of why that is correct that is correct and a new twenty of the embry versus king decision the ninth circuit leaves this point open because it's pacifically says this is not a case where congress acted beyond its power over the states so we need not decide removal by itself does not waive the state's all the immunity under for labor standards act in our briefs we've cited cases from the first circuit third circuit fourth fifth tenth eleventh and district district of columbia circuit all which speak to that same point and likewise district courts in the ninth circuit that we've cited one from montana one from the district of nevada and two from the district of arizona all speak to the same point that that is that's the overwhelming conclusion of the sister circuits and we believe the ninth circuit should judge of move in that direction another point we like to make is that the state the statute in question and it was forty one zero three one did not constitute a waiver of nevada's sovereign immunity to federal to fair labor standards claims in any court as i said before the waiver has to be clear and unequivocal because it's a constitutional right but more importantly the legislative history of an arrest forty one zero three one makes it clear under the hag blume case and the height vs franchise tax board case that the nevada supreme court has repeatedly construed that statute to concern only negligence and not contractual matters or administrative or regulatory matters the nature of the relationship between the state of nevada and its employees is entirely statute statutory and or administrative law based it has nothing whatsoever certain purposes but that does not create an independent right by itself and lastly we think it's interesting too that the a police don't disagree with nevada's position that removal to federal court did not waive all that immunity the argument a legislature did that for the up so that we don't have to they believe that they've never addressed the point that our removal constituted a waiver of that immunity they're saying if you look at an arrest forty one zero three one that by itself does it and the appellee spend nearly twelve pages of their brief making that argument despite the fact that the state of nevada supreme court has concluded that it applies only to negligence actions and not to any other kind of claims and they cite the oregon tort claims act and there's going to twenty eight a letter that got submitted just the other day which deals with the new york statute i'm interested to know the new york statute is represented as waiving both liability  the state of new york i can't render an opinion about what new york statute says or doesn't say but if that language is neither are we but of course we look at analogous statutes and cases oh sure i mean the language is certainly different as between the new york clear and so i think with all due respect what know what the states of new york and oregon have decided is sort of a sort of beside the point because we're dealing with a nevada statute particularly where the wishes or the preferences of the nevada supreme court are clear that that it only applies to court did not open us up to suit under the fair labor standards act and waive that immunity under all the verses mean that's the entirety of the community that we're seeking to vindicate here today thank you thank you they please the court joshua block on behalf of the police plaintiffs below i want to first address an issue that my friend on the other side raised about in the past supreme court having addressed the issue of the forty one zero three one waiver of immunity as only applying to torts that is not correct and that as a supreme court has never and dressed the scope of forty one point zero three one there are numerous cases in which in the nevada supreme court from all actions and liabilities with the exception of certain limitations that were provided in the underlying the later fall of statutes none of which contain a an exception for immune from suit this court is well aware and taylor versus county appeal which asks the parties to to address that there is a distinction between immunity from suit and immunity from doc has only argue below that they're immune from liability and they've only argued on appeal if you look at their opening brief the questions presented refer to immunity to liability only if you look  it's at the record it one five one one this is the response of cleaning tinea original file complaint the only affirmative defense that they asserted was immunity from liability one benefit is that for your client well the legislation has clearly expressly waived its immunity from all actions and liabilities with only certain exceptions and none of which apply to the fair labor standards act and again the fair be brought in federal or state courts across this country all the immunity in the you know the fence raise this issue of all of them versus maine only address the issue of when a state does not consent to have liability determined in the same as a corporation or a person again i would i would point the court's attention to the actual language of forty one three one which says the state of nevada hereby waves its immunity from liability and action and hereby consents to have its liability determined in accordance with the same rules of law as are applied to civil actions against natural persons and corporations when you look at that particular language and you look at the language in the new york statute it says if the vatican took it wholesale from the new york statute which was passed earlier w modifications and when you look at the new york treatment of that particular statute they have always held that the effortless say applies and they have held that that government employees can sue can't can can enforce their rights to somehow include language into the forty one the oath three one statute which is not there and they're doing it by focusing on the from the valor supreme court cases and  court would have to look to the vadra state law in interpretating that statute you generally certify this case to the advantage supreme court so that we get a clear could use to be able to analyze this question here and now mainly what is the best now that a supreme court case in your view on the issue why i think that well i think in about the best supreme court cases or they're the ones that talk about the stand there that you look at for determining waiver of immunity and the matter looks it construes the waiver of immunity stream lee brought in if you look at this of many many of these different cases just to be clear though what we're looking at is now that is supreme court cases that provide principles correct that we might use to interpret the statute correct that your us essentially what we have at this point and we but we have those principles like in in state versus silva which quote the apparent legislative thrust was to waive immunity and coralie to strictly construe limits on that waiver so the aspirin court has told all the courts you look  at you first look at forty one three one and it's waiver is extremely broad you give that intent and then you look at the limitations on that waiver and you strictly construe those the they are immune from liability because it is in their discretion whether or not to follow the f l s say and as this court has held in in prior cases following a statute  not in whether or not certain people should be paid for performing work priem post shift that is otherwise compensable and again it when you look at the stand there's that nevada supreme court has set out construing forty one three one broadly and you also look at other cases such as the glock home case that we cited in our brief which addresses that there that in the vast print court has dealt with cases that are not just limited to torts and that particular case it was it was a that somy and immunity of all its political subdivisions from liability and legal actions so definitely is listening to that phrase it would appear to be both lab milit and a waiver of the liability from the claim and getting to removal i don't think there's much dispute might end up having removed the case that we in recently filed and in state court to the federal court it  its immunity under emory embry without a very clear and concise statement which says it which says removal waves that immunity and opponent says well we left open an embryo this question of removing a state defendant whether immunized from federal law claims on the other hand i hear you did say no i'm sorry we embry decides the issue flat out so what do you do about the carve out if you will that the circuit did in embry in terms of what it's not deciding is that applicable here it's it's not a political here in the court really doesn't have the reach the issue because again the nevada statute under forty one or three one they've consented to liability and action therefore under that statute you have a consenting state just like in new york is a consenting state to this liability when they remove the action from the state court they were they waived their immunity from suit in the federal court and let's take a look at what has happened since that removal which was done in two thousand and fourteen the state of nevada living in litigate this case for four years we took we took tens of depositions we've exchanged hundreds of documents this case has been actively litigated without them ever having rains the immunity from suit issue it was never raised in the response the plaintiffs in the answer the first time it was ever raised was in their answer to the first amend the complaint in two thousand and eighteen how long was that after it was originally four years or other four years having it and then the there's always this question about jurisdiction of course can be raised at any time but is there a waiver of a waiver by not raising the waiver  jurisdiction and can you can you proceed in this particular court can you proceed in federal court well they obviously can because they did for forty years they live in gated community from sue it is i can't don't you can sue me at all problem we have a state law actions that have been dismissed by judge doing a lower court but we cannot appeal those until a final judgment right and when you plan on appealing one of them was based on a breach of contract action for failure to provide  follow the up on a say which the defendants agree that the f l s a is sounding in contract so we believe we have at least a horrible chance that at at an appeal on that action but but we can't do that yet this in to this court well and would would that then if there were no jurisdiction on the federal claims when it comes back under supplemental jurisdiction in that district  which states that the failure to raise as an affirmative defense in the first response the pleading a immunity from sued will waive that argument thank you thank you and just to address a few of the main points here our june twenty fourth two thousand and fourteen answer to the original complaint absolutely references the immunity that we are seeking to the kid here today it has been mentioned in our answer to complaint in june of two thousand and fourteen it was and it was mentioned again on april nineteenth two thousand and eighteen with our answer to the first amended complaint so there's never been any issue that we have preserved this is this this entitle me to hold an immunity from the beginning i just want a few points first of all hager bloom is another case we've cited in our brief we believe that is clear as well clark county versus richardson construction another nevada supreme court case speaks to that that the state does not waive its immunity you know circumstances as well so and i want to circle back to the taylor versus county of pima discussion we believe taylor versus county of pima is distinguishable on its face from from the matter before the court simply stated the municipality in that case made it clear that they were only dealing with immunity from liability and in the oral argument counsel basically conceded that fact in the briefing specifically said we're dealing we're only alleging immunity from liability that is clearly distinguishable from this case and we're going to let me stop there because i'm looking now at your opening brief and it says the issue presented on appeal is whether this dated of that away of sovereign immunity from liability for the fs nav now f a a claims and then issue b also is argued that we do it with the immunity said liability but you men immunity from suit absolutely hundred percent i don't i don't and one of the other things counsel referenced in that this didn't get raised and or at least live in gated until you're down the road with depositions discovery and everything else how did that happen well you are there's a few points there first of all  think the cases are clear that the state does not doesn't necessarily even have to argue or seek to to pursue immunity until later in the case and there's no presumptive prejudice to the other side from that there are before this thing gets litigated and now it gets up here and you're down the road in what would normally be a normal lawsuit understood two points firstly there their claim that we waived this issue through litigation conduct was itself were raised i understand it how did the court had this get from the district court you mean right i mean how does it come up after all this discovery and the case has been going on and then magically it hits the scene i understand understood to there was there was a motion for judgment on the pleadings which submitted with the court for at least a year we were subject to discovery orders in the court which required i should add this this case began as a mixture of different kinds of state walk claims and the f l as a claims and the discovery as to those sets of claims was identical to the nucleus of facts dealing with both claims let me you know we seem to be not communicating for a real simple answer ok let me ask a different ways that may be my fault for not being clear at the outset of the case if you believe you had immunity from suit did you file a motion for dismissal on the basis i'm unique from suit on that basis we did not  not i i can't speak to that because i was not involved in this league ation i mean we get all kinds of qualified immunity and other munity appeals and normally that's the first thing you do as a defendant you see is there any way i can get out of th not raised until later there's no question though four years after things are rolling down the road did you you filed a motion will the court set up briefing on it and asked us to respond to the immunity issue which we did do ok so it was it was preserved in the the the answer to complaint and the first amended complaint but but to be clear the cases are very clear that we did not have to we did not have to do with the way the court might suggest and move forward immediately we were within our rights to wait until later to do so and as an example there's a second circuit case that we cite beaulieu versus remind with the state said we waived this immunity and then changed their mind later and came back and said you know what we want to pursue that immunity and even in that case that was found to not constitute a waiver of the issue so we believe the cases are strongly on our side that that we have not prejudiced them through our conduct there has been no advantage taken in the litigation because of the way things have spilled out and so the they have not been hurt by the fact that this has taken place the way it has and to that the claims are dealing with are state law and federal law claims where the discovery that was done the depositions of counsel is talking about was all scuppering that would have occurred anyway even if there were as a claims and so so for that reason there is no harm no foul from from their standpoint they have not been prejudiced there was no advantage taken and the cases are clear that we can assert the immunity even as late as it has been asserted now but we preserve ok and i should be clear about that what we're seeing is the state law claims by virtue of judge dues order which dismissed some of them and by virtue of stipulation which dismissed the range remainder of them are gone all that's left are the fair labor standards act claims so we believe if you order an immunity is vindicated that we've been a advocating here cases over there's nothing left to go back down the court should reverse the order the judge who issued and dismissed the case with prejudice because there are no state law claims  you very much thank both counsel for argument very interesting case the case of warren versus state of nevada and submitted