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A state’s removal of a claim to federal court waives its sovereign immunity only if the removal gives the state an unfair advantage, the U.S. Court of Appeals for the 1st Circuit ruling has ruled. On Dec. 20, a unanimous panel affirmed a March 2011 summary and final judgment by Chief Judge Mary Lisi of the District of Rhode Island against wage and employment claims made by an environmental police officers’ union. The issue in the case, Bergemann v. Rhode Island Department of Environmental Management, was one of first impression for the circuit and also deepened a circuit split on whether a state’s removal of a case to federal court constitutes a waiver of sovereign immunity. Oral arguments were held on Nov. 8. Senior Judge Bruce Selya authored the opinion joined by judges Kermit Lipez and Jeffrey Howard. The officers initially sued the environmental agency in Rhode Island Superior Court in December 2008 because the agency didn’t include the officers’ mandatory holiday work pay when determining their retirement contributions. The complaint claimed the agency violated the Fair Labor Standards Act, breached a meal-time duties agreement, failed to make the required retirement contributions and unjustly enriched itself. The state removed the case to federal court then sought dismissal of the labor law claim based on sovereign immunity. Lisi dismissed that claim in December 2009. The officers’ appeal relied on a 2002 Supreme Court ruling in Lapides v. Board of Regents of University System of Georgia. In Lapides, the justices found that a state waives its 11th Amendment immunity by removing a case from state court to federal court. The 4th and the D.C. circuits have concluded that removal does not waive a state’s sovereign immunity unless the state waived its immunity on the claim in state court. The 7th, 9th and 10th circuits have ruled that removal always waives sovereign immunity. The 3d and 5th Circuits have held that removal waives immunity from suit, but not necessarily from monetary damages. Selya wrote that the removal in Lapides was essentially 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,” Selya wrote. “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 that this is a crucial distinction.” Selya observed that the 4th and the D.C. circuit rulings on the issue “are the best-reasoned 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.” Selya explained that prior 1st Circuit case law, particularly two cases in which a state turned to the federal courts to overturn an administrative law ruling or arbitration award, hold that “that when a state has maintained a consistent, across-the-board position regarding its immunity, the invocation of federal jurisdiction to enforce that immunity does not effect a waiver.” The 1st Circuit also upheld Lisi’s summary judgment ruling for the state on the officers’ remaining claims. “The [environmental police officers'] remaining claims are idiosyncratic, interstitial, and fact-specific,” Selya wrote. “The district court analyzed them with great care, explained its reasoning in exhaustive detail, and reached a series of unarguably correct conclusions.” Jeffrey Sowa, a partner at LaPlante Sowa Goldman in Providence, who argued the officers’ case at the 1st Circuit, declined to comment. In a statement, Rhode Island Attorney General Peter Kilmartin said the state is pleased by the 1st Circuit’s affirmation of the lower court’s dismissal: “The state argued that the case was without merit, and this decision will put the issue to rest.” Sheri Qualters can be contacted at [email protected].

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