Wood v. Montana Department of Revenue

Filing 97

ORDER directing the parties to simultaneously file briefs by 10/31/2011. Signed by Judge Donald W. Molloy on 10/4/2011. (dle)

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

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

CV 10-13-H-DWM

ORDER

The Court sua sponte raises the question of whether it has subject matter
jurisdiction over this case. See Adam v. Norton, 636 F.3d 1190, 1192 n.2 (9th Cir.
2011); Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1133 (9th Cir. 2010).
Specifically, the Court is considering whether the Montana Department of
Revenue has sovereign immunity from Jason Wood’s claim under the Family and
Medical Leave Act. 29 U.S.C. § 2612(a)(1)(D). In light of this concern, the Court

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orders the parties to file simultaneous supplemental briefs responding to the
questions below.
IT IS HEREBY ORDERED that the parties are directed to file simultaneous
supplemental briefs that respond to the following questions:
1.

Did Congress’s enactment of the “self-care” provision in the Family and
Medical Leave Act, 29 U.S.C. § 2612(a)(1)(D), effectively abrogate the
states’ eleventh amendment sovereign immunity for claims arising under the
Act? 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); Nelson v. Univ. of Tex.
at Dallas, 535 F.3d 318 (5th Cir. 2008); McKlintic v. 36th Jud. Cir. Ct., 508
F.3d 875 (8th Cir. 2007); Toeller v. Wisc. Dept. of Corrects., 461 F.3d 871
(7th Cir. 2006); Touvell v. Ohio Dept. of Mental Retardation & Dev.
Disabilities, 422 F.3d 392 (6th Cir. 2005); Brockman v. Wyo. Dept. of Fam.
Servs., 342 F.3d 1159 (10th Cir. 2003).

2.

If it did not, has the State of Montana nonetheless waived its eleventh
amendment sovereign immunity by removing this case to this Court?
See Indep. Living Ctr. of S. Cal., Inc. v. Maxell-Jolly, 572 F.3d 644, 661
(9th Cir. 2009); Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004).

3.

Has the State of Montana “previously consented to be sued in state court
under like circumstances”? Indep. Living Ctr. of S. Cal., 572 F.3d at 661;
see also Peretti v. State, 777 P.2d 329, 332 (Mont. 1989) (“[A] state cannot
be sued in its own courts without its plain and specific consent to suit either
by constitutional provision or by statute.)

4.

In light of your responses to the questions above, should this case be
remanded to the state court?
IT IS FURTHER ORDERED that the parties shall simultaneously file their

briefs by October 31, 2011. The briefs shall be limited to 4,000 words, excluding

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caption and certificates of service and compliance.
Dated this 4th day of October, 2011.

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