2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-25-2008

Lombardo v. Comm of PA Welfare

Precedential or Non-Precedential: Precedential

Docket No. 06-4628

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PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 06-4628

____________

MICHAEL A. LOMBARDO

 v.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT

OF PUBLIC WELFARE; ESTELLE RICHMAN, Secretary of

the Department of Public Welfare, in her official capacity,

Appellants

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(No. 06-cv-00732)

District Judge: Honorable William J. Nealon

Argued October 24, 2007

Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit

Judges.

____________

(Filed: August 25, 2008)

Thomas W. Corbett, Jr.

John G. Knorr, III (Argued)

Maryanne M. Lewis

Office of the Attorney General of Pennsylvania

Department of Justice

Strawberry Square
2

Harrisburg, PA 17120

Counsel for Appellants

Kimberly D. Borland (Argued)

Borland & Borland, L.L.P.

69 Public Square 11th Floor

Wilkes Barre, PA 18701

Counsel for Appellee

___________

OPINION OF THE COURT

____________

CHAGARES, Circuit Judge.

This case requires the Court to consider the contours of state

sovereign immunity and under what circumstances such immunity

may be waived. 

Alleging violations of both federal and state antidiscrimination laws, Michael A. Lombardo (Lombardo) filed an

employment discrimination complaint in the Court of Common

Pleas of Luzerne County against the Commonwealth of

Pennsylvania’s Department of Public Welfare and its Secretary,

Estelle Richardson, in her official capacity (collectively, the

Commonwealth). Based on the federal claim, the Commonwealth

removed the complaint to the United States District Court for the

Middle District of Pennsylvania and sought partial dismissal on

sovereign immunity grounds. The parties acknowledge that

Pennsylvania has not statutorily waived its sovereign immunity for

claims brought under the federal statute at issue, and they agree

that the central question in this appeal is whether the

Commonwealth waived such immunity by voluntarily removing

this matter from state to federal court. 
3

The District Court denied the Commonwealth’s motion to

dismiss, reasoning that the Commonwealth waived its Eleventh

Amendment immunity by removing the case. We agree that the

Commonwealth’s voluntary removal unequivocally invoked the

jurisdiction of the federal courts and thereby waived the

Commonwealth’s Eleventh Amendment immunity from suit in a

federal forum. 

We hold, however, that state sovereign immunity includes

both immunity from suit in federal court and immunity from

liability, and that a State may waive one without waiving the other.

Because the Commonwealth’s removal did not waive its immunity

from liability, we will reverse the judgment of the District Court

and remand with instructions to grant the Commonwealth’s motion

for partial dismissal.

I.

Lombardo worked at the White Haven Center, a stateoperated facility for the developmentally disabled located in White

Haven, Pennsylvania, for more than 38 years. In 2003, Lombardo

was passed over for a promotion. Lombardo, 61 years old at the

time, believed that this action was due to his age. On March 23,

2006, he filed a complaint asserting two grounds for relief:

violation of the federal Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621-634; and violation of the Pennsylvania

Human Relations Act (PHRA), 43 Pa. Cons. Stat. §§ 951-963.

Lombardo sought equitable relief and damages.

On April 7, 2006, based on the ADEA claim, the

Pennsylvania Department of Public Welfare (the Department)

removed the case to the United States District Court for the Middle

District of Pennsylvania and moved for dismissal. Lombardo then

amended his complaint to add a second defendant – the Secretary

of Public Welfare, Estelle Richardson, in her official capacity. The

Commonwealth moved for partial dismissal of the amended

complaint on the ground that its Eleventh Amendment immunity

barred Lombardo’s claims under the ADEA, save for his claim for
The Commonwealth also moved to dismiss the 1

PHRA claim on a statute of limitations ground. The District Court

denied the motion, holding that this issue turned on questions of

fact which could not be resolved in the context of a motion to

dismiss. That holding is not before this Court, and the

Commonwealth did not assert immunity as to Lombardo’s PHRA

claim.

4

prospective injunctive relief against the Secretary. The District 1

Court denied the motion to dismiss, holding that the

Commonwealth’s voluntary removal of the case to federal court

waived its Eleventh Amendment immunity under Lapides v. Board

of Regents of the University System of Georgia, 535 U.S. 613

(2002), even though Pennsylvania has not consented to suit or

waived immunity under the ADEA in its own courts. This appeal

followed.

II.

The District Court had subject matter jurisdiction pursuant

to 28 U.S.C. §§ 1331 and 1343. Defendants appeal from the

District Court’s order denying a claim of sovereign immunity by

the Department, a state agency. We have subject matter

jurisdiction under 28 U.S.C. § 1291, as such orders are immediately

appealable under the collateral order doctrine. See Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,

147 (1993). This Court exercises plenary review over an order

denying a motion to dismiss based on sovereign immunity. M.A.

ex rel. E.S. v. State-Operated Sch. Dist. of the City of Newark, 344

F.3d 335, 344 (3d Cir. 2003). 

III.

Our Constitution established a system of “dual sovereignty

between the States and the Federal Government,” Gregory v.

Ashcroft, 501 U.S. 452, 457 (1991), in which the States “retain ‘a

residuary and inviolable sovereignty.’” Alden v. Maine, 527 U.S.
5

706, 715 (1999) (quoting The Federalist No. 39) (James Madison);

see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 71 n.15 (1996)

(acknowledging that “[t]he Constitution specifically recognizes the

States as sovereign entities”). An important feature of this

sovereignty is state sovereign immunity. See Puerto Rico

Aqueduct, 506 U.S. at 146 (stating that “the States, although a

union, maintain certain attributes of sovereignty, including

sovereign immunity”). The Supreme Court has described

sovereign immunity “as based ‘on the logical and practical ground

that there can be no legal right as against the authority that makes

the law on which the right depends.’” Nevada v. Hall, 440 U.S.

410, 416 (1979) (quoting Kawananakoa v. Polyblank, 205 U.S.

349, 353 (1907)).

* * * * *

For the reasons that follow, we hold that state sovereign

immunity is not a unitary concept. We can discern two distinct

types of state sovereign immunity: immunity from suit in federal

court and immunity from liability.

A.

The immunity of States from suit in the federal courts is a

fundamental aspect of state sovereignty. N. Ins. Co. of N.Y. v.

Chatham County, 547 U.S. 189, 193 (2006); see Alden, 527 U.S.

at 718 (noting John Marshall’s comment at the Virginia ratifying

convention that “‘I hope no gentleman will think that a state will be

called at the bar of the federal court’”) (quoting 3 Debates on the

Federal Constitution 555 (J. Elliot 2d ed. 1854)). The Supreme

Court has explained that “[t]he founding generation thought it

‘neither becoming nor convenient that the several States of the

Union, invested with that large residuum of sovereignty which had

not been delegated to the United States, should be summoned as

defendants to answer the complaints of private persons.’” Alden,

527 U.S. at 748 (quoting In re Ayers, 123 U.S. 443, 505 (1887)).

Only five years after the adoption of the Constitution,

however, the Supreme Court in Chisholm v. Georgia, 2 U.S. (2

Dall.) 419 (1793), determined that the state-citizen diversity clause
6

of Article III of the Constitution subjected the States to federal

court jurisdiction. This holding led directly to the expeditious

adoption of the Eleventh Amendment, which provides: “The

Judicial power of the United States shall not be construed to extend

to any suit in law or equity, commenced or prosecuted against one

of the United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.” U.S. Const. amend. XI. In Hans

v. Louisiana, 134 U.S. 1 (1890), the Supreme Court extended the

Eleventh Amendment’s reach to suits by in-state plaintiffs, thus

barring all private suits against non-consenting States in federal

court. 

Accordingly, it is clear that the States possess immunity

from suit in the federal courts, also known as Eleventh Amendment

immunity.

B.

The Supreme Court has also recognized, however, that “the

Eleventh Amendment does not define the scope of the States’

sovereign immunity; it is but one particular exemplification of that

immunity.” Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S.

743, 753 (2002); see id. (stating that the Eleventh Amendment does

not “explicitly memorializ[e] the full breadth of the sovereign

immunity retained by the States when the Constitution was

ratified”). Consequently, “the sovereign immunity enjoyed by the

States extends beyond the literal text of the Eleventh Amendment.”

Id. at 754; see Alden, 527 U.S. at 713 (observing that the phrase

“Eleventh Amendment immunity” “is convenient shorthand but

something of a misnomer, for the sovereign immunity of the States

neither derives from, nor is limited by, the terms of the Eleventh

Amendment”). State sovereign immunity thus comprises more

than just immunity from suit in federal court. It also includes a

State’s immunity from liability. See Fed. Mar. Comm’n, 535 U.S.

at 766 (“Sovereign immunity does not merely constitute a defense

to monetary liability or even to all types of liability.”); Dellmuth v.

Muth, 491 U.S. 223, 229 (1989) (declining to overrule the

“longstanding holding” of Hans that “an unconsenting State is
For Congress to “authorize a suit in the exercise of 2

its power to enforce” Article I, § 5 of the Fourteenth Amendment,

Congress “must identify conduct transgressing the Fourteenth

Amendment’s substantive provisions, and must tailor its legislative

scheme to remedying or preventing such conduct.” Fla. Prepaid

Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S.

7

immune from liability for damages in a suit brought in federal court

by one of its own citizens”); Edelman v. Jordan, 415 U.S. 651, 662-

64 (1974) (characterizing state sovereign immunity as safeguarding

States against both “suits” and “liability”).

We look to state law to determine if the Commonwealth

maintains a separate immunity from liability. Under Pennsylvania

law, the Commonwealth enjoys sovereign immunity unless the

General Assembly “specifically waives sovereign immunity.” 1 Pa.

Cons. Stat. § 2310. The state assembly has not specifically waived

immunity for ADEA violations, nor are such violations included in

the statutory exceptions to sovereign immunity. See 42 Pa. Cons.

Stat. § 8522 (listing “acts by a Commonwealth party” that “may

result in the imposition of liability on the Commonwealth” for

which “the defense of sovereign immunity shall not be raised to

claims for damages”); see also Chittister v. Dep’t of Cmty. & Econ.

Dev., 226 F.3d 223, 227 (3d Cir. 2000) (acknowledging that, with

the exception of the tort claims for damages in state court listed in

§ 8522, “the Commonwealth’s immunity is otherwise intact”). 

As a result, we conclude that the Commonwealth possesses

immunity from liability regarding claims under the ADEA.

IV.

We now turn to whether, in this case, the Commonwealth

has waived: (1) its immunity from suit in federal court; or (2) its

immunity from liability.

A.

A State’s immunity from suit is not absolute. Congress may

abrogate a State’s sovereign immunity “in the exercise of its power

to enforce the Fourteenth Amendment,” and a State may consent 2 
627, 639 (1999). While the ADEA does contain a clear

congressional statement of intent to abrogate the States’ immunity,

this abrogation exceeded Congress’ § 5 powers. See Kimel v. Fla.

Bd. of Regents, 528 U.S. 62 (2000). Thus, the ADEA “d[oes] not

validly abrogate the States’ sovereign immunity to suits by private

individuals.” Id. at 91.

Pennsylvania has withheld its consent to suit in

3

federal court. 42 Pa. Cons. Stat. § 8521(b). See Laskaris v.

Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981).

8

to suit by making a clear declaration that it intends to submit itself

to federal court jurisdiction. Coll. Sav. Bank v. Fla. Prepaid 3

Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 676 (1999).

Furthermore, a State may waive its immunity from suit by

invoking federal court jurisdiction voluntarily. Id. at 675. The

voluntary invocation principle emerged in early Supreme Court

jurisprudence and was later examined in Lapides. See Gardner v.

New Jersey, 329 U.S. 565 (1947) (finding waiver of Eleventh

Amendment immunity where a State voluntarily appeared in

bankruptcy court to file a claim against a common fund); Gunter v.

Atl. Coast Line R.R. Co., 200 U.S. 273, 284 (1906) (stating

generally that “where a State voluntarily becomes a party to a cause

and submits its rights for judicial determination, it will be bound

thereby and cannot escape the result of its own voluntary act by

invoking the prohibitions of the Eleventh Amendment”); Clark v.

Barnard, 108 U.S. 436 (1883) (holding that a State’s voluntary

intervention in a federal court action to assert its own claim

constituted a waiver of its Eleventh Amendment immunity).

Lombardo argues that the Commonwealth waived its immunity

from suit in federal court “by voluntarily removing this matter from

state to federal court.” Appellee Br. at 9. We agree.

We begin with the facts of Lapides. In 2001, Paul Lapides,

a professor employed by the Georgia state university system, filed

an action against the university system’s Board of Regents in state

court. Georgia had already consented to suit in its own courts
Georgia claimed that it agreed to remove in order to 4

provide its co-defendants, the officials sued in their personal

capacities, with the “generous interlocutory appeal provisions”

available only in federal court. Lapides, 535 U.S. at 621.

Defendants have not proffered an explanation for removing this

case to federal court. 

9

regarding the type of claims Lapides brought. Georgia’s Attorney

General removed the case to federal district court and sought

dismissal on Eleventh Amendment grounds. The Supreme Court

held unanimously that Georgia’s removal from state to federal

court waived its Eleventh Amendment immunity, but limited its

holding “to the context of state-law claims, in respect to which the

State has explicitly waived immunity from state-court

proceedings.” 535 U.S. at 617. The Court did not rule on whether

voluntary removal affected immunity from federal law claims, as

Lapides’ only federal claim against Georgia arose under 42 U.S.C.

§ 1983 and had to be dismissed, since a State is not a “person”

against whom a § 1983 claim for money damages may be asserted.

Id.

Despite expressly limiting its holding to state-law claims

from which immunity has been explicitly waived, the Lapides

Court utilized broad language regarding waiver and removal. First,

the Court referenced the “general principle” that immunity is

waived where a State voluntarily invokes a federal court’s

jurisdiction. 535 U.S. at 620. The Court concluded that “removal

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 (here of state law) in a federal forum,” id. at

624, explaining that “[a] rule of federal law that finds waiver

through a state attorney general’s invocation of federal-court

jurisdiction avoids inconsistency and unfairness.” Id. at 623.

Georgia’s allegedly “benign” motive for removal did not influence 4

the Court’s decision, since “adopt[ing] [Georgia’s] Eleventh

Amendment position would permit States to achieve unfair tactical

advantages, if not in this case, then in others.” Id. at 621.

Applying these principles to the matter at hand, we conclude
Since 2002, several appeals courts have addressed the 5

scope of Lapides’ waiver-by-removal rule. The Courts of Appeals

for the Ninth and Tenth Circuits have taken a broad view,

extending the rule to all state and federal claims. See Embury v.

King, 361 F.3d 562 (9th Cir. 2004); Estes v. Wyo. Dep’t of

Transp., 302 F.3d 1200 (10th Cir. 2002). The Courts of Appeals

for the Fourth, Seventh, and District of Columbia Circuits limit the

waiver principle to cases in which a State would obtain an unfair

advantage by enjoying immunity in federal court that it would not

have otherwise commanded in state court. See Stewart v. North

Carolina, 393 F.3d 484 (4th Cir. 2005); Omosegbon v. Wells, 335

F.3d 668 (7th Cir. 2003); Watters v. Washington Metro. Transit

Auth., 295 F.3d 36 (D.C. Cir. 2002). The Court of Appeals for the

Fifth Circuit has distinguished between immunity from suit and

immunity from liability, Meyers ex rel. Benzing v. Texas, 410 F.3d

236 (5th Cir. 2006), reh’g and reh’g en banc denied, 454 F.3d 503

(5th Cir. 2006), and the Court of Appeals for the First Circuit

favors an analogous theory. See New Hampshire v. Ramsey, 366

F.3d 1 (1st Cir. 2004); Rhode Island Dep’t of Envtl. Mgmt. v.

United States, 304 F.3d 31 (1st Cir. 2002).

10

that the Commonwealth waived its Eleventh Amendment immunity

from private suit in a federal forum when it voluntarily removed

this case to federal court. When a State, facing suit in its own 5

courts, purposefully requests a federal forum, it expresses a clear

intent to waive immunity from suit. While Lapides limited its

holding to state-law claims for which immunity was waived in state

court, it also teaches that, generally, “removal 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.” 535 U.S. at 1646.

In Estes, the Court of Appeals for the Tenth Circuit held that

a State’s removal to federal court of a case including both state law

and federal law claims constituted a waiver of Eleventh

Amendment immunity for both categories of claims. 302 F.3d at

1204-06. Similarly, in Embury, the Court of Appeals for the Ninth

Circuit determined that the waiver-by-removal rule established in
While not determinative in Lapides or in the case at 6

hand, we note that the Supreme Court’s jurisprudence has not been

entirely consistent in the view that the Eleventh Amendment

restricts subject matter jurisdiction. Like subject matter

jurisdiction, the Court permits an Eleventh Amendment immunity

claim to be raised for the first time on appeal. See Edelman, 415

U.S. at 677-78. But the ability of States to waive their immunity or

consent to suit, and the lack of a requirement that federal courts

raise Eleventh Amendment immunity defects sua sponte, may

resemble personal jurisdiction requirements. See, e.g., Erwin

Chemerinsky, Federal Jurisdiction § 7.1 (4th ed. 2003) (describing

sovereign immunity as a limit on federal judicial power and noting

that “[t]he Supreme Court . . . has not been completely consistent

in treating the Eleventh Amendment as a restriction on subject

matter jurisdiction”); Eric S. Johnson, Note, Unsheathing

Alexander’s Sword: Lapides v. Board of Regents of the University

System of Georgia, 51 Am. U. L. Rev. 1051, 1060-62 (2002)

(arguing that personal jurisdiction-like features of Eleventh

Amendment immunity undermine the Supreme Court’s assumption

that Eleventh Amendment immunity rests on subject matter

jurisdiction); cf. Wis. Dep’t of Corr. v. Schact, 524 U.S. 381, 393-

98 (1998) (Kennedy, J., concurring) (suggesting tying the Eleventh

Amendment to the Court’s personal jurisdiction jurisprudence).

11

Lapides applied to both state and federal claims, as well as to

claims asserted after removal. 361 F.3d at 564. The Embury court

observed that “[n]othing in the reasoning of Lapides supports

limiting the waiver to . . . state law claims only,” as it would be

illogical for a State to consent to having state law questions

determined by a federal court “where federal jurisdiction cannot

even be obtained but for federal claims asserted in the same case,”

yet oppose federal jurisdiction over those federal claims. Id. We

agree. 

6

We hold that the Commonwealth’s removal of federal-law

claims to federal court effected a waiver of immunity from suit in

federal court. Our holding today does not affect a State’s ability to

raise sovereign immunity when it is involuntarily brought into

federal court. It is only when a State removes federal-law claims
Lombardo asserts that the Commonwealth has 7

waived this claim, since it did not raise the matter in the District

Court. Appellee Br. at 18. See Huber v. Taylor, 469 F.3d 67, 74

(3d Cir. 2006) (“Generally, failure to raise an issue in the District

Court results in its waiver on appeal.”). Lombardo’s argument fails

because the issue was indeed before the District Court, despite the

fact that the court did not specifically address various aspects of

state sovereign immunity. In any event, issues of state sovereign

immunity may be raised at any time, including “for the first time on

appeal even if the state defended the merits of the suit in the district

court.” Chittister, 226 F.3d at 227 (citing Edelman, 415 U.S. at

677-78). 

12

from state court to a federal forum that it “submits its rights for

judicial determination,” Gunter, 290 U.S. at 284, and unequivocally

invokes the jurisdiction of the federal courts.

B.

As stated previously, the Commonwealth possesses

immunity from liability under 1 Pa. Cons. Stat. § 2310, save for

certain specifically enumerated tort claims for damages in state

court. See 42 Pa. Const. Stat. § 8522. The question we now

consider is whether the Commonwealth nonetheless waived its

immunity from liability by removing this case to federal court.7

A State may waive its immunity from liability, but such a

waiver must be express and unequivocal. See Coll. Sav. Bank, 527

U.S. at 680; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 99 (1984). The Supreme Court has noted that an effective

waiver of sovereign immunity, like the waiver of other

Constitutionally-protected rights, must involve the “‘intentional

relinquishment or abandonment of a known right. . . .’” Coll. Sav.

Bank, 527 U.S. at 682 (quoting Johnson v. Zerbst, 304 U.S. 458,

464 (1938)). Accordingly, we must “indulge every reasonable

presumption against waiver.” Aetna Ins. Co. v. Kennedy, 301 U.S.

389, 393 (1937). 
We have determined that a removing State waives its 8

Eleventh Amendment immunity from suit in a federal forum but

retains its immunity from liability. Several courts of appeals have

differed in the label given to the immunity retained by a removing

State, separate and apart from the Eleventh Amendment. See

Meyers, 410 F.3d at 250, 252-53 (rejecting the theory that state

sovereign immunity is comprised of two separate immunities from

suit–inherent immunity from private suit which may be asserted in

any court and Eleventh Amendment forum immunity from suit in

federal court–and concluding that a State “enjoys two kinds of

immunity that it may choose to waive or retain

separately–immunity from suit and immunity from liability”);

Stewart, 393 F.3d at 487-88 (distinguishing the “related but not

identical” concepts of Eleventh Amendment immunity and state

sovereign immunity and defining the former as “but an example”

of the latter “as it applies to suits filed in federal court against

unconsenting States by citizens of other states”); Ramsey, 266 F.3d

at 15 (discussing “two independent aspects of immunity from suit:

immunity from suit in a federal forum . . . and substantive

immunity from liability,” noting that “a state may waive its

immunity from substantive liability without waiving its immunity

from suit in a federal forum,” and assuming, arguendo, that a State

may waive federal forum immunity without waiving substantive

liability since the Supreme Court “thus far has not addressed” the

issue); Omosegbon, 335 F.3d at 671 (referring to state sovereign

immunity law and holding that since Indiana state immunity rules

would have allowed a state court to hear the plaintiff’s state-law

contract claims, a federal court could do the same where the State

removed the case to federal court); Watters, 295 F.3d at 42 n.13

(holding that the Washington Metropolitan Transit Authority

(WMATA), an entity created by an interstate compact between the

District of Columbia, Maryland, and Virginia, and the recipient of

the respective sovereign immunity of each signatory, retained

immunity upon its removal to federal court of an action to enforce

an attorney’s lien and stating that “[a]s the WMATA signatories

13

We hold that while voluntary 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. The Supreme Court 8
have not waived immunity from attorney’s liens in their own

courts, the narrow holding of Lapides does not apply to this case”).

We utilize the term “immunity from liability,” as this concept is

consistent with Lapides in that it prohibits a State from claiming

immunity from suit twice in the same case. It also best represents

our view that while a removing State invokes federal jurisdiction

and waives its immunity from suit in a federal forum, such waiver

does not prevent the State from asserting state sovereign immunity

as provided for by its own law as a defense in federal court.

14

has suggested that a State may waive its immunity from liability

without waiving its immunity from suit in federal court, see

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985),

superseded in other respects by Civil Rights Remedies Equalization

Amendment of 1986, 42 U.S.C. § 2000d-7; Great N. Ins. Co. v.

Read, 322 U.S. 47, 54 (1943), and we see no reason to prohibit the

inverse. See, e.g., Meyers, 410 F.3d at 252-53 (concluding that

state sovereign immunity is comprised of two separate and distinct

kinds of immunity: immunity from suit and immunity from

liability; that a State’s “waiver of one does not affect its enjoyment

of the other”; and that immunity from liability is not encompassed

within a State’s immunity from suit); Ramsey, 366 F.3d at 15

(stating, in dictum, that “a state may waive its immunity from

substantive liability without waiving its immunity from suit in a

federal forum”); Jonathan R. Siegel, Waivers of State Sovereign

Immunity and the Ideology of the Eleventh Amendment, 52 Duke

L.J. 1167, 1234 (2003) (explaining that “state sovereign immunity

has two independent aspects: it is partly an immunity from suit in

a particular forum (federal court) and partly a substantive immunity

from liability,” and “removal should be understood to waive only

forum immunity”); see also Bolden v. Southeastern Pa. Transp.

Auth., 953 F.2d 807, 831 (3d Cir. 1991) (Greenberg, J., dissenting)

(noting that a State “can enjoy state sovereign immunity protection

and yet not enjoy Eleventh Amendment immunity”); cf. Carlos

Manuel Vazquez, Sovereign Immunity, Due Process, and The

Alden Trilogy, 109 Yale L.J. 1927, 1930 (2000) (asserting that the

Court in Alden and College Savings “rejected the ‘forumallocation’ interpretation of the Eleventh Amendment, and
15

implicitly adopted . . . the ‘immunity from liability’ interpretation,

under which the states are immune from being subjected to damage

liability to individuals”) (referencing Carlos Manual Vazquez,

What is Eleventh Amendment Immunity?, 106 Yale L.J. 1683,

1700-08 (1997) (characterizing the “forum-allocation” and

“immunity from liability” interpretations of Eleventh Amendment

immunity)). 

C.

By affirmatively selecting a federal forum for litigation of

this case, the Commonwealth invoked federal court jurisdiction and

waived its immunity from suit. See Lapides, 535 U.S. at 623 (also

stating that waiver of a State’s Eleventh Amendment immunity

from suit “is a question of federal law”). It did not, however,

waive any defenses provided by its own sovereign immunity law.

In our federal system, the States retain the measure of sovereignty

necessary to enact and be protected by such laws. State sovereign

immunity preexisted the Constitution and remains intact today. By

providing for the States’ retention of this preratification

sovereignty, “the structure of the Constitution allows for variation

between the nature and structure of each state’s immunities from

suit and liability.” Meyers, 410 F.3d at 253. Accordingly, a State

may establish its own immunity against liability that is distinct

from the Eleventh Amendment immunity from suit enjoyed by all

the States. We hold that the Commonwealth has immunity from

liability regarding claims under the ADEA, and it has not waived

such immunity in this case.

V.

For the foregoing reasons, we will reverse the judgment

of the District Court and remand with instructions to grant the

Commonwealth’s motion for partial dismissal.