Wood v. Montana Department of Revenue

Filing 103

ORDER re 97 Order: Count II ("Family and Medical Leave Act") of Jason Wood's complaint is DISMISSED WITHOUT PREJUDICE. The Court retains supplemental jurisdiction over the remaining state law claims. Signed by Judge Donald W. Molloy on 11/30/2011. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
JASON WOOD,

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Plaintiff,
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vs.
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MONTANA DEPARTMENT OF
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REVENUE,
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Defendant.
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______________________________ )

CV 10-13-H-DWM

ORDER

I. INTRODUCTION
Jason Wood claims that his former employer, the Montana Department of
Revenue, wrongly terminated his employment. As part of his lawsuit, he argues
that the Department terminated him on account of absences he took, even though
he claims was entitled to them under the “self-care” provision in the Family and
Medical Leave Act, 29 U.S.C. § 2612(a)(1)(D).1
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The self-care provision provides:
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The Court sua sponte raised the question of whether it has subject matter
jurisdiction over Mr. Wood’s Family and Medical Leave Act claim. Specifically,
the parties were asked to address whether the Department is entitled to sovereign
immunity from that claim.2
Having considered the briefs of each party, I conclude the Department is
entitled to sovereign immunity protection because it has not consented to be sued
in state court. Accordingly Wood’s Family and Medical Leave Act claim is
dismissed without prejudice. But, given the time and effort already expended on
the supplemental claims, and the proximity of the trial, I will retain supplemental
jurisdiction over the remaining state-law claims.
II. SOVEREIGN IMMUNITY
There are two forms of sovereign immunity: (1) sovereign immunity under

Subject to section 2613 of this title, an eligible employee shall be
entitled to a total of 12 workweeks of leave during any 12-month period
for one or more of the following: . . . (D) Because of a serious health
condition that makes the employee unable to perform the functions of
the position of such employee . . . .
29 U.S.C. § 2612(a)(1)(D).
Since sovereign immunity is a limitation on the Court’s subject matter
jurisdiction, the Court may address it sua sponte at any time prior to final
judgment. Adam v. Norton, 636 F.3d 1190, 1192 n.2 (9th Cir. 2001); Peterson v.
Islamic Republic of Iran, 627 F.3d 1117, 1133 (9th Cir. 2010).
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the Eleventh Amendment, which bars federal lawsuits against states and (2)
sovereign immunity under the broader doctrine of state sovereign immunity, which
shields a state from liability in both federal and state court, unless it has consented
to be sued. See, e.g., Fed. Mar. Commn. v. S.C. St. Ports Auth., 535 U.S. 743, 753
(2002) (“[T]he Eleventh Amendment does not define the scope of the States’s
sovereign immunity; it is but one particular exemplification of that immunity . . . .
[T]he sovereign immunity enjoyed by the States extends beyond the literal text of
the Eleventh Amendment.”); Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly,
572 F.3d 644, 660 (9th Cir. 2009) (observing that the broader doctrine of state
sovereign immunity predates the Constitution); Lombardo v. Pa., 540 F.3d 190,
194 (3d Cir. 2008) (“[S]tate 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.”).
Considering the principle of constitutional avoidance, it is unnecessary to
determine whether the Department is entitled to eleventh amendment sovereign
immunity because it is entitled to immunity under the broader doctrine of state
sovereign immunity.3 The Department is entitled to that immunity because the
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The doctrine of constitutional avoidance provides that “a court will not
pass upon a constitutional question if there is some other ground upon which the
case may be disposed.” See Harvey v. Brewer, 605 F.3d 1067, 1078 (9th Cir.
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State of Montana has not consented to be sued in state court under like
circumstances. See Indep. Living Ctr., 572 F.3d at 661.
In 1972, the State of Montana constitutionally abolished its sovereign
immunity as to all actions involving “injury to a person or property”:
The state, counties, cities, towns, and all other local governmental
entities shall have no immunity from suit for injury to a person or
property, except as may be specifically provided by law by a 2/3 vote of
each house of the legislature.
Mont. Const. art. II, § 18. While broadly written, the Montana Supreme Court has
held that this abolishment applies only to tort actions and not other actions (e.g.,
contract actions) involving injuries to a person or property. Peretti v. State, 777
P.2d 329, 332 (Mont. 1989).

2010).
Since the Court need not address eleventh amendment sovereign immunity,
it also need not address the question of whether Congress’s enactment of the “selfcare” provision in the Family and Medical Leave Act, 29 U.S.C. § 2612(a)(1)(D),
effectively abrogated the states’s eleventh amendment sovereign immunity for
claims arising under that provision. See Nev. Dept. of Hum. Res. v. Hibbs, 538
U.S. 721 (2003); Coleman v. Md. Ct. of Apps., 626 F.3d 187 (4th Cir. 2010), cert.
granted, 131 S. Ct. 3059 (June 27, 2011).
Similarly, the Court need not address whether Mr. Wood’s claim should go
forward under Ex Parte Young, 209 U.S. 123 (1908), since Ex parte Young
applies only in the context of the Eleventh Amendment, not in the context of the
broader doctrine of state sovereign immunity. Ex parte Young applies only to
lawsuits against state officials—it does not apply when, as here, the plaintiff has
named only the state or a state agency. Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & eddy, Inc., 506 U.S. 139, 146 (1993).
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Tort claims aside, the Montana Supreme Court has held that the State of
Montana “cannot be sued in its own courts without its plain and specific consent
to suit either by constitutional provision or statute.” Id. at 332; see, e.g.,
Gudmundsen v. St. ex rel. Mont. St. Hosp. Warm Springs, 203 P.3d 813, 815
(Mont. 2009).
In this case, since Wood’s statutory claim under the Family and Medical
Leave Act is not a tort claim, he must show that the State has “plain[ly] and
specific[ally] consent[ed] to suit either by constitutional provision or statute.” Id.;
see also, Babinecz v. Mont. Hwy. Patrol, 68 P.3d 715, 719 (Mont. 2003).
There is no Montana-law analog to the Family and Medical Leave Act, and
the State has not consented—either by constitutional provision or statute—to be
sued in state court under the Act. Consequently the Department is entitled to
sovereign immunity on this claim in Wood’s suit.
Wood argues that the State of Montana has consented to be sued under the
self-care provision because the State previously appeared as a defendant in a case
that involved the Act. See Olson v. State of Mont., 2006 Mont. LEXIS 574 (May
23, 2006). The same self-care provision at issue here was at issue in Olson. But in
Olson, neither the State nor the court raised the issue of sovereign immunity. In
effect, the State waived its immunity by failing to raise the question. Even so
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waiver in a prior case does not operate as consent to be sued in a different case,
even if the follow-up case involves an identical legal issue.
Montana law is clear: The State can consent to be sued in only one of two
ways—through a constitutional provision or statute. No such provision or statute
exists here. Wood has not cited any authority supporting the proposition that the
State consents to be sued by waiving its sovereign immunity in a different case.
For these reasons, the Department is entitled to sovereign immunity on the
Family and Medical Leave Act claim.
III. REMOVAL AND WAIVER OF SOVEREIGN IMMUNITY
Sovereign immunity, in either form, can be waived. See, e.g., Lapides v. Bd.
of Regents of the Univ. Sys. of Ga., 535 U.S. 613 (2002). A key question in this
case is whether the Department waived its sovereign immunity by removing this
case to federal court.
The United States Supreme Court has held that, if a state has consented to
be sued in state court, the state waives its eleventh amendment sovereign
immunity by removing a case to federal court. Id.; see also Indep. Living Ctr., 572
F.3d at 661–63; Embury v. King, 361 F.3d 644, 565–66 (9th Cir. 2004). The
Lapides Court explained that “removal is a form of voluntary invocation of a
federal court’s jurisdiction sufficient to waive the State’s otherwise valid objection
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to litigation of a matter . . . in a federal forum.” Id. at 624. But, more
fundamentally, if removal in such circumstances did not result in a waiver, a state
would gain an “unfair tactical advantage[ ].” Id. 535 U.S. at 621. A state
defendant, for example, could defeat a claim in state court simply by removing it
to federal court and then asserting an eleventh amendment defense.
Neither the Supreme Court nor the Ninth Circuit has addressed the related
question at issue here: If a state court has not consented to be sued in state court,
does it waive its immunity under the broader doctrine of state sovereign immunity
by removing the case to federal court? See Lapides, 535 U.S. at 617–18 (“Nor
need we address the scope of waiver by removal in a situation where the State’s
underlying sovereign immunity from suit has not been waived or abrogated in
state court.”); Indep. Living Ctr., 572 F.3d at 662 n.20 (declining to address the
question of whether removal results in a waiver of sovereign immunity when the
state has not consented to be sued in state court); see also, Stewart, 393 F.3d at
488. Other circuits have addressed this question, and they have concluded that, if a
state has not consented to be sued in state court, it does not waive its broader state
sovereign immunity by removing the case to federal court. See, e.g., Stewart, 393
F.3d at 488; Waters v. Wash. Metro. Area Transit Auth., 295 F.3d 36, 42 n.13
(D.C. Cir. 2002).
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The Fourth Circuit’s decision in Stewart is the most lucid explanation of
why a state does not waive its state sovereign immunity under such circumstances.
The Stewart court recognized that the Lapides Court’s finding of waiver in the
context of the Eleventh Amendment was based on “consistency, fairness, and
preventing States from using the Amendment ‘to achieve unfair tactical
advantages.’” 393 F.3d at 490 (quoting Lapides 535 U.S. at 621). But, unlike the
facts in Lapides, if a state has not consented to be sued in its own state courts, then
it is immune from suit—under the broader doctrine of state sovereignty—in both
federal and state court. So the state does not gain any unfair tactical advantage by
removing a case to federal court. Id. It occupies the same position in both courts.
By removing the case, the state is “merely [seeking] to have the sovereign
immunity issue resolved by a federal court rather than a state court.” Id. at 491. To
reach the opposite conclusion—i.e., that removal results in waiver—would give
plaintiffs an unfair tactical advantage because a state would be forced to abandon a
potentially valid defense if it wants to remove the case to federal court.
The Fourth Circuit’s reasoning is persuasive in the absence of controlling
authority from the Ninth Circuit. Thus, if Montana has not consented to be sued in
Montana state court, then it does not waive its immunity under the broader
doctrine of state sovereign immunity by removing the case to federal court.
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Concluding otherwise would result in a unfair tactical advantage for plaintiffs in
state court. See Lapides, 535 U.S. at 621.
In this case, the Department did not waive its immunity under the broader
doctrine of state sovereign immunity by removing this case, and it is therefore
entitled to the protection of that immunity.
V. SUPPLEMENTAL JURISDICTION
The Department is entitled to sovereign immunity from Wood’s claim under
the Family and Medical Leave Act, Count II (“Family and Medical Leave Act”)
and that claim is dismissed without prejudice. Count II is the only claim over
which the Court could exercise original jurisdiction. The Court has discretion to
remand the remaining state law claims. 28 U.S.C. § 1367(c)(3).
When deciding whether to retain supplemental jurisdiction over state law
claims, it is necessary to balance the factors of “judicial economy, convenience,
fairness, and comity.” Oliver v. Ralphs Grocery Co., 654 F.3d 903, 911 (9th Cir.
2011). “‘In the usual case in which all federal law claims are eliminated before
trial,’” these factors will “‘point toward declining to exercise jurisdiction over the
remaining state-law claims.’” Sanford v. MemberWorks, Inc., 625 F.3d 550, 561
(9th Cir. 2010) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988)). In this case, the factors of judicial economy, convenience, and fairness
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weigh heavily in favor of retaining jurisdiction over the pending supplemental
claims. The parties have thoroughly litigated this matter, and trial is set for next
month on December 12th. Given these facts, the Court retains supplemental
jurisdiction over the state law claims.
VI. CONCLUSION
For the reasons above, IT IS ORDERED that Count II (“Family and Medical
Leave Act”) of Jason Wood’s complaint is DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Court RETAINS supplemental
jurisdiction over the remaining state law claims.
Dated this 30th day of November, 2011.

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