Bergemann v. Rhode Island Department of Environmental Management , 665 F.3d 336 ( 2011 )

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 week1 yet are paid a weekly wage based on
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"
1
The actual number of hours that an EPO will work in a given
week varies due to how that week intersects the four-day-on, two-
day-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 well-
pleaded 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 federal-
court 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.2 Id. at 620.
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
2
The Court noted that no viable section 1983 claim remained
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").3 We think that it would be anomalous if a
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
3
This right is not insubstantial. Immunity to a federal
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 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.
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.4 It follows that the
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
4
At oral argument, the EPOs suggested that the state may have
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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