United States Court of Appeals

for the First Circuit

No. 11-1407

SCOTT BERGEMANN ET AL.,

Plaintiffs, Appellants,

v.

RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

AND GINA M. RAIMONDO, IN HER CAPACITY AS

TREASURER OF THE STATE OF RHODE ISLAND,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Lipez, Selya and Howard,

Circuit Judges.

Jeffrey D. Sowa, with whom Marshall M. Raucci and LaPlante

Sowa Goldman were on brief, for appellants.

Thomas A. Palombo, Assistant Attorney General, for appellees.

December 20, 2011
SELYA, Circuit Judge. This appeal poses a question that

has divided the circuits. The question, which is a matter of first

impression for this court, is whether a state waives its sovereign

immunity to a pleaded claim by removing that claim to the federal

court. We conclude that a waiver occurs only if the removal

confers an unfair advantage on the removing state. Because the

district court reached this same conclusion and because its other

rulings are unimpugnable, we affirm the judgment below.

I. BACKGROUND

This case is the latest in a series of courtroom assaults

launched by a cadre of Rhode Island environmental police officers

(EPOs) against their employer, the Rhode Island Department of

Environmental Management (DEM), a department of state government. 

The EPOs receive collectively bargained wages and benefits. They

have long been dissatisfied with the DEM's handling of certain wage

and benefit matters.

The claims asserted in this case grow directly out of the

EPOs' unorthodox work schedules. To ensure that an adequate number

of officers are on duty every day of the year, the DEM requires

EPOs to work staggered four-day-on, two-day-off schedules. Under

this paradigm, an EPO must work any holiday that coincides with a

scheduled work day. In such an instance, the collective bargaining

agreement (CBA) between the state and the EPOs' union provides that

the affected EPO will receive compensation over and above his usual

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salary. The EPOs' complaint about this arrangement is that the

extra holiday pay is not being factored into the calculation of

their retirement benefits.

To understand this claim, it is important to note that

the EPOs participate in a state employee retirement plan, which

entitles them to employer-paid pension contributions that are based

on their total "compensation." See R.I. Gen. Laws § 36-10-2. The

EPOs also contribute to their own pensions a percentage of their

"compensation." See id. § 36-10-1. The EPOs complain that the

state does not treat their extra holiday pay as "compensation"

within the definition prescribed by the relevant statute, see id.

§ 36-8-1(8), and therefore their pensions are being underfunded.

The EPOs' next claim stems from another unique aspect of

their work schedules: the requirement that they remain on call

during their lunch breaks. The EPOs contend that this arrangement

entitles them to compensation for the time spent having lunch. 

Counting these intervals, the EPOs estimate that they work on

average 37.5 hours per week yet are paid a weekly wage based on 1

only 35 hours. Accordingly, they claim an entitlement to back pay

for the allegedly unpaid two-and-one-half hours per week.

The state opposes both the holiday pay and lunch break

claims. It relies on the statutory definition of "compensation"

The actual number of hours that an EPO will work in a given 1

week varies due to how that week intersects the four-day-on, twoday-off work schedule.

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and the language and history of the CBA to argue that it is in

compliance with its retirement-plan obligations. Further, the

state points out that the EPOs are not hourly workers but, rather,

receive annual salaries that compensate them for both their hours

actually worked and their lunch periods.

With these grievances in the forefront, the EPOs sued the

DEM and Rhode Island's General Treasurer (collectively, the state)

in a Rhode Island state court. Their complaint asserted that the

state's failure to compensate them for their lunch periods

transgressed the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-

219, and breached the terms of the CBA; that the state's refusal to

include the extra holiday pay in the calculation of pension

contributions violated the relevant provisions of state law; and

that the state's noncompliance with its statutory and collectively

bargained obligations had resulted in its unjust enrichment. 

Seizing on the FLSA claim, the state removed the action to the

federal district court. See 28 U.S.C. §§ 1331, 1441(a). The state

then sought dismissal of the FLSA claim on immunity grounds.

The district court determined that the state was immune

from suit on the FLSA claim. See Bergemann v. Rhode Island 

(Bergemann I), 676 F. Supp. 2d 1, 5-9 (D.R.I. 2009). Accordingly,

the court dismissed that claim. See id. at 9. The court retained

supplemental jurisdiction over the remaining claims, see 28 U.S.C.

§ 1367, and allowed them to go forward.

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Following the close of discovery, the parties cross-moved

for summary judgment. The district court concluded that the EPOs

had received the full measure of benefits to which they were

entitled under the CBA and state law. See Bergemann v. Rhode

Island (Bergemann II), C.A. No. 09-150, 2011 WL 1042748, at *7-10

(D.R.I. Mar. 18, 2011). Consequently, it granted the state's

motion and denied the EPOs' cross-motion. Id. at *12.

This timely appeal ensued. In it, the EPOs challenge

both the dismissal of their FLSA claim and the entry of summary

judgment on their other claims.

II. THE FLSA CLAIM

We review the district court's dismissal of the FLSA

claim de novo. See McCloskey v. Mueller, 446 F.3d 262, 266 (1st

Cir. 2006). In performing that task, we take as true all wellpleaded factual allegations contained in the complaint and cede all

reasonable inferences therefrom to the plaintiffs. Dominion Energy

Brayton Point, LLC v. Johnson, 443 F.3d 12, 16 (1st Cir. 2006).

In the main, states are immune from claims brought by

private persons in federal courts. Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 54 (1996); see U.S. Const. amend. XI. Yet,

this immunity is not absolute. A state may waive immunity from

suit. Sossamon v. Texas, 131 S. Ct. 1651, 1658 (2011). 

Alternatively, Congress may abrogate a state's immunity pursuant to

its Fourteenth Amendment powers. See Alden v. Maine, 527 U.S. 706,

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756 (1999). "But absent waiver or valid abrogation, federal courts

may not entertain a private person's suit against a State." Va.

Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1638

(2011).

Congress has not abrogated Rhode Island's immunity from

FLSA claims. See Mills v. Maine, 118 F.3d 37, 48 (1st Cir. 1997). 

The relevant question, then, is whether Rhode Island has waived its

immunity.

Leaving to one side waivers that occur by reason of a

state's participation in federal programs that require a surrender

of sovereign immunity, see, e.g., Petty v. Tenn.-Mo. Bridge Comm'n,

359 U.S. 275, 280-82 (1959), a state may waive immunity in one of

two ways. First, a state may waive its immunity expressly; that

is, by unequivocally expressing its consent to suit. Sossamon, 131

S. Ct. at 1658. Second, a state may waive its immunity impliedly;

that is, by engaging in affirmative conduct during litigation

sufficient to evince consent to suit. See New Hampshire v. Ramsey,

366 F.3d 1, 15 (1st Cir. 2004). The dispute in this case centers

on waiver by conduct.

As a general proposition, waiver by litigation conduct

requires a showing that a state has "voluntarily invoke[d]" the

jurisdiction of the federal courts. Coll. Sav. Bank v. Fla.

Prepaid Postsec. Educ. Expense Bd., 527 U.S. 666, 675-76 (1999);

see Gunter v. Atl. Coast Line R.R., 200 U.S. 273, 284 (1906)

(explaining that "where a state voluntarily become[s] a party to a

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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 11th Amendment"). A state

voluntarily invokes federal jurisdiction when, for example, it

files a claim in the bankruptcy court, Gardner v. New Jersey, 329

U.S. 565, 574 (1947), or when it chooses to intervene in federalcourt litigation, Clark v. Barnard, 108 U.S. 436, 447-48 (1883). 

Refined to its essence, waiver by litigation conduct

represents a kind of tit for tat: a state's decision to avail

itself of a federal forum as a means of garnering a material

benefit that otherwise would not be available to it is deemed to

betoken a willingness to subject itself to the federal court's

jurisdiction with respect to the particular claim or claims at

issue. See Gunter, 200 U.S. at 284. Put in colloquial terms, the

state must take the bitter with the sweet.

In this instance, Rhode Island has neither asserted a

federal-court claim nor intervened in an ongoing federal

proceeding. It did, however, remove the action brought by the EPOs

to the federal district court. The EPOs contend that, by so doing,

the state waived its immunity to their embedded FLSA claim.

This contention is anchored in the Supreme Court's

decision in Lapides v. Board of Regents of the University System of

Georgia, 535 U.S. 613 (2002). There, an employee of a state

university sued Georgia in a state court pursuant to 42 U.S.C.

§ 1983 and the Georgia Tort Claims Act (GTCA), Ga. Code Ann. §§ 50-

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21-20 to 50-21-37. By statute, Georgia had waived its immunity

with respect to GTCA claims brought in state court but not with

respect to those brought in federal court. See Ga. Code Ann. § 50-

21-23(b). In a deft maneuver, Georgia removed the action on the

basis of the federal section 1983 claim, see 28 U.S.C. §§ 1331,

1441(a), and then asserted its federal-court immunity to the GTCA

claim. Lapides, 535 U.S. at 616. The Supreme Court held that by

removing the action, Georgia had voluntarily invoked federal

jurisdiction and thereby had waived its federal-court immunity with

respect to the GTCA claim. Id. at 620. 2

The language of Lapides is broad, see, e.g., id. at 624,

but the Supreme Court has limited its holding to its facts, id. at

617; see Magarian v. Hawkins, 321 F.3d 235, 240 n.6 (1st Cir. 2003)

(stating that a "holding is, of course, limited to the facts of

[the] case"). Those facts are materially different from the facts

of this case.

In Lapides, removal operated in effect as an end-run

around Georgia's state-court waiver of immunity. Here, by

contrast, Rhode Island is immune from FLSA claims in both state and

federal court. Thus, removal conferred no special advantage on the

state: it would have enjoyed exactly the same immunity had it

continued to litigate the claim in the state court. We believe

The Court noted that no viable section 1983 claim remained 2

in the case and that, therefore, the issue before it was limited to

whether the removal waived the state's immunity with respect to the

GTCA claim. See Lapides, 535 U.S. at 617.

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that this is a crucial distinction. After all, the Lapides Court

emphasized that waiver rules exist to avoid "inconsistency,

anomaly, and unfairness." 535 U.S. at 620. The Court's finding of

waiver by litigation conduct was driven by the fact that Georgia's

invocation of federal jurisdiction had conferred the "unfair

tactical advantage[]" of circumventing its state-court immunity

waiver. Id. at 621.

We take the Supreme Court at its word and regard the

holding in Lapides as limited to the "context of state-law claims,

in respect to which the State has explicitly waived immunity from

state-court proceedings." Id. at 617; see Ramsey, 366 F.3d at 20-

21 (explaining that the Lapides Court "expressly limit[ed] its

holding to cases where the state's immunity in state court has been

waived or abrogated"). Thus, Lapides leaves open the question of

whether removal of a federal claim effects a waiver when a state

has not waived immunity to that federal claim in its own courts.

To answer this question, we must look to the purpose

undergirding the doctrine of waiver by litigation conduct. Even

though its holding is not directly on point, Lapides has lighted

our path:

In large part the rule governing voluntary

invocations of federal jurisdiction has rested

upon the problems of inconsistency and

unfairness that a contrary rule of law would

create. And that determination reflects a

belief that neither those who wrote the

Eleventh Amendment nor the States themselves

(insofar as they authorize litigation in

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federal courts) would intend to create that

unfairness.

Lapides, 535 U.S. at 622 (citation omitted). This desire to avoid

unfairness has animated every invocation by the Supreme Court of

the waiver by conduct doctrine. For example, the Court has

concluded that a state cannot assert a monetary claim in federal

court while at the same time wielding immunity as a shield to block

a declaratory judgment addressing the state's entitlement to the

money. See Clark, 108 U.S. at 444-48. So, too, the Court has

concluded that if a state elects to bring a claim for unpaid taxes

in the bankruptcy court, it cannot claim immunity to pretermit the

bankruptcy court's adjudication of the merits of the claim. 

Gardner, 329 U.S. at 573-74. In each case, an opposite result

would have worked great unfairness.

Our case law concerning the waiver by litigation conduct

doctrine is animated by the same desire to avoid unfairness. By

way of illustration, we have held that it would be unfair to allow

a state to bring a claim in federal court while simultaneously

invoking sovereign immunity to shield itself from counterclaims

arising out of the same transaction or occurrence. See Arecibo

Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 28 (1st Cir.

2001).

In the case at hand, Rhode Island's sovereign immunity

defense is equally as robust in both the state and federal court. 

Consequently, there is nothing unfair about allowing the state to

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raise its immunity defense in the federal court after having

removed the action. Simply put, removal did not change the level

of the playing field.

In point of fact, it is the EPOs' position that would

create potential unfairness. They argue that a state waives

sovereign immunity whenever it removes a case to a federal court. 

If that position were to prevail, a state with a colorable immunity

defense to a federal claim brought against it in its own courts

would face a Morton's Fork: remove the federal claim to federal

court and waive immunity or litigate the federal claim in state

court regardless of its federal nature. Either way, the state

would be compelled to relinquish a right: either its right to

assert immunity from suit or its "right to a federal forum," Martin

v. Franklin Capital Corp., 546 U.S. 132, 140 (2005); see Boelens v.

Redman Homes, Inc., 759 F.2d 504, 507 (5th Cir. 1985) (explaining

that "[a] federal forum for federal claims is certainly a

defendant's right"). We think that it would be anomalous if a

3

doctrine born out of a concern for fairness were to be construed so

as to place a sovereign defendant in such an unfair position.

To be sure, the challenge of interpreting Lapides has

divided the courts of appeals. Some courts have concluded that

removal does not waive a state's sovereign immunity to a claim

This right is not insubstantial. Immunity to a federal 3

cause of action presents an issue of federal law, Owen v. City of

Independence, 445 U.S. 622, 647 n.30 (1980), and federal courts

have a special expertise in interpreting and applying federal law. 

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unless the state previously had waived its immunity to such a claim

in state court proceedings. See Stewart v. N. Carolina, 393 F.3d

484, 490 (4th Cir. 2005); Watters v. Wash. Metro. Area Transit

Auth., 295 F.3d 36, 42 n.13 (D.C. Cir. 2002). Others read Lapides

as operating more mechanically and take the position that,

regardless of the circumstances, removal always waives immunity. 

See Bd. of Regents of Univ. of Wis. Sys. v. Phx. Int'l Software,

Inc., 653 F.3d 448, 461 (7th Cir. 2011); Embury v. King, 361 F.3d

562, 564 (9th Cir. 2004); Estes v. Wyo. Dep't of Transp., 302 F.3d

1200, 1206 (10th Cir. 2002).

Two courts have charted a middle course, holding that

removal of federal claims generally does not waive immunity from

payment of money damages but does waive immunity from suit. See

Lombardo v. Pa. Dep't of Pub. Welfare, 540 F.3d 190, 198-200 (3d

Cir. 2008); Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 252-55

(5th Cir. 2005).

In our judgment, Stewart and Watters are the bestreasoned of these decisions — and they are the most faithful to the

teachings of the Lapides Court. Furthermore, they are congruent

with our own post-Lapides precedents, which as we explain below

stress that waiver by litigation conduct transpires only when a

state employs procedural maneuvering to gain an unfair tactical

advantage.

In Rhode Island Department of Environmental Management v.

United States (RIDEM), 304 F.3d 31 (1st Cir. 2002), the state was

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named as a defendant in four federal administrative proceedings

brought by certain DEM employees. The state asserted sovereign

immunity before the administrative law judge, who rejected the

assertion. Id. at 38 n.2. The state then asked the federal court

to enjoin the administrative proceedings on the same immunity

ground. We concluded that Lapides turned on Georgia's attempt "to

regain, by a change in forum, [a] litigation advantage [immunity]

that the state ha[d] already renounced by a general statute." Id.

at 49. Because Rhode Island had made no similar attempt "to

reverse its waiver by a change in forum," id., its assertion of

immunity in federal court gave it no "unseemly litigation

advantage," id. at 50. We therefore rejected the claim of waiver

by litigation conduct, reiterating that "consistency and fairness

are our guideposts" in such an inquiry. Id.

We reached a comparable result in Ramsey. There, New

Hampshire sued in federal court to overturn an administrative

arbitration award. 366 F.3d at 13. The state's primary basis for

challenging the award was its assertion of immunity from damages. 

The state's adversaries contended that, by mounting this challenge

in federal court, the state had waived its damages immunity. We

found no waiver because the state had "consistently asserted its

immunity from damages" and, therefore, had "gained no unfair

advantage" by invoking federal jurisdiction. Id. at 21.

Taken together, RIDEM and Ramsey indicate that when a

state has maintained a consistent, across-the-board position

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regarding its immunity, the invocation of federal jurisdiction to

enforce that immunity does not effect a waiver. This reasoning is

harmonious with longstanding Supreme Court precedent, which has

concluded that a voluntary invocation of federal jurisdiction

waives immunity only where a contrary finding would cultivate

unfair consequences. See, e.g., Lapides, 535 U.S. at 622.

That ends this aspect of the matter. Because Rhode

Island has consistently maintained its immunity to FLSA claims

(wherever brought), the state did not waive its immunity by

removing the instant action to federal court. It follows that the 4

FLSA claim was appropriately dismissed.

III. THE REMAINING CLAIMS

The court below granted summary judgment in the state's

favor on the EPOs' remaining claims. The EPOs challenge this

ruling. They are fishing in an empty stream.

Orders granting summary judgment engender de novo review. 

Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st

At oral argument, the EPOs suggested that the state may have 4

gained an unfair tactical advantage through removal because the

federal court had ruled in its favor in some of the earlier suits. 

This suggestion strikes us as profoundly flawed. To begin, we have

grave doubts whether a history of favorable rulings in other

federal-court proceedings can form the basis for an unfair

litigation advantage sufficient to convert removal into a waiver by

litigation conduct. In all events, we need not resolve this

question because the EPOs did not raise the point either in the

district court or in their briefs on appeal. The argument is,

therefore, waived. See Uno v. City of Holyoke, 72 F.3d 973, 985

(1st Cir. 1995); Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st

Cir. 1990).

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Cir. 1999). When conducting that review, we take the facts of

record and all reasonable inferences therefrom in the light most

favorable to the nonmoving party. Id. We will affirm only if the

record, so viewed, discloses that "there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(a).

The EPOs' remaining claims are idiosyncratic,

interstitial, and fact-specific. The district court analyzed them

with great care, explained its reasoning in exhaustive detail, and

reached a series of unarguably correct conclusions. See Bergemann

II, 2011 WL 1042748, at *7-10. Given this impressive body of work,

the appeal before us fits comfortably within the compass of the

familiar tenet "that when a trial court accurately sizes up a case,

applies the law faultlessly to the discerned facts, decides the

matter, and articulates a convincing rationale for the decision,

there is no need for a reviewing court to wax longiloquent." 

Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 2 (1st Cir.

2004).

Belaboring this point would serve no useful purpose. The

district court's conclusion that the EPOs have been appropriately

compensated for their on-call lunch breaks, Bergemann II, 2011 WL

1042748, at *7-9, is plainly correct. So, too, is the court's

conclusion that the state's retirement contribution calculations

properly disregard the extra holiday pay earned by the EPOs. See

id. at *9-10. Finally, the court perspicaciously recognized that,

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without a showing of improper conduct on the part of the state, the

EPOs lack a viable unjust enrichment claim. See id. at *7-9. We

could rephrase the district court's cogent analysis, but we doubt

that we could improve upon it; and we see no point in writing about

these matters in extenso merely to hear our own words resonate. 

Consequently, we affirm the disposition of the remaining claims for

substantially the reasons set forth below.

IV. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the judgment entered by the district court.

Affirmed.

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