Guards OT
Guards OT
Guards OT
FOR PUBLICATION
SUMMARY**
Sovereign Immunity
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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COUNSEL
OPINION
BACKGROUND
DISCUSSION
127 F.3d 1136, 1139 (9th Cir. 1997).1 Although many FLSA
protections apply to state employees, see Garcia v. San
Antonio Metro. Transit Auth., 469 U.S. 528 (1985), the Ninth
Circuit has held that federal courts lack jurisdiction over
FLSA cases brought against States in the absence of a waiver
of immunity. Quillin, 127 F.3d at 1139. Therefore, this case
falls within the scope of Embury’s Footnote 20, meaning that
neither Lapides nor Embury entirely controls the outcome of
this issue. Because this case involves a statute that Congress
has not applied to the States through unequivocal and valid
abrogation, we are faced with an issue of first impression in
the Ninth Circuit.2
1
In Hale v. Arizona, 993 F.2d 1387 (9th Cir. 1993) (en banc), we held
that “Congress has made unmistakably clear its intention to apply the
FLSA to the States,” and, thus, had “abrogate[d] the states’ Eleventh
Amendment immunity.” Id. at 1391. Subsequently, however, the
Supreme Court held in Seminole Tribe that “[t]he Eleventh Amendment
restricts the judicial power under Article III, and Article I cannot be used
to circumvent the constitutional limitations placed upon federal
jurisdiction.” 517 U.S. at 72–73. Thus, because Hale is “clearly
irreconcilable” with Seminole Tribe, Hale’s holding has been abrogated
by Seminole Tribe. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc).
2
Other circuits’ approaches to interpreting Lapides are not uniform.
“As a result of the tension between Lapides’s express limitations on its
own holding and [its] general language, courts are divided on whether
Lapides indicates that a State defendant’s removal to federal court waives
its Eleventh Amendment immunity if the State has not waived its
immunity to suit in state court.” Bodi v. Shingle Springs Band of Miwok
Indians, 832 F.3d 1011, 1019 (9th Cir. 2016) (discussing Lapides, but
holding that its waiver-through-removal reasoning does not apply in the
context of tribal immunity). Some circuits have simply opted for a narrow
reading of Lapides. See, e.g., Bergemann v. R.I. Dep’t of Envtl. Mgmt.,
665 F.3d 336, 341 (1st Cir. 2011). Others have read Lapides to state a
more general rule. See, e.g., Bd. of Regents of Univ. of Wis. Sys. v. Phx.
Int’l Software, Inc., 653 F.3d 448, 460–71 (7th Cir. 2011); Meyers ex rel.
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Benzing v. Texas, 410 F.3d 236, 242 (5th Cir. 2005); Estes v. Wyo. Dep’t
of Transp., 302 F.3d 1200, 1205 n.1, 1206 (10th Cir. 2002).
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CONCLUSION
AFFIRMED.
3
Because we affirm on the waiver-by-removal ground, we do not
address Plaintiffs’ alternate argument that Nevada has waived sovereign
immunity from FLSA claims by enacting Nev. Rev. Stat. § 41.031.