Opinion
Cause No. 4:02-cv-212-C-DFH IVY
January 15, 2003
ENTRY ON MOTION FOR REMAND
This case arising from a dispute between a state college and an employee presents a sort of jurisdictional chess problem, not unlike those the Supreme Court has faced in Lapides v. Board of Regents of University System of Georgia, 122 S.Ct. 1640 (2002) (state university professor), and Wisconsin Department of Corrections v. Schacht, 524 U.S. 381 (1998) (state prison guard). The problem is odd because the parties agree on so much — that the plaintiff's state law claims should be remanded to state court — and because plaintiff is insisting so vigorously that the federal claim he pled in state court has no possible merit because it is barred by the Eleventh Amendment.
Plaintiff Doyle Berry, a citizen of Indiana, was employed for many years by defendant Ivy Tech State College, a state-run community college with campuses located throughout Indiana. On May 31, 2001 defendant Ty Handy, chancellor of Ivy Tech's Sellersburg campus, notified Berry that his position would be eliminated. On October 9, 2002, Berry filed this suit in Clark Superior Court. His complaint alleged age discrimination in violation of the federal Age Discrimination in Employment Act, 29 U.S.C. § 623, and the Indiana Age Discrimination Act, Ind. Code § 22-9-2-2, as well as state law claims for breach of contract, promissory estoppel, and wrongful discharge.
Defendants removed the case to this court. Berry then moved to remand the case to state court. Ordinarily, of course, a complaint alleging both federal and state law claims arising from the same transaction or occurrence would be removable to federal court under 28 U.S.C. § 1441. Berry's theory for remand is that the only federal claim he has alleged is barred by the Eleventh Amendment to the Constitution. See Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) (state university professor's claim of age discrimination barred by Eleventh Amendment). Berry argues that this court may not exercise subject matter jurisdiction over that federal age discrimination claim, drawing on some of the many cases that describe the Eleventh Amendment as a bar to federal subject matter jurisdiction. E.g., Crosetto v. State Bar of Wisconsin, 12 F.3d 1396, 1400-03 (7th Cir. 1993); but see Smith v. Wisconsin Dep't of Agriculture, 23 F.3d 1134, 1139-40 (7th Cir. 1994) (arguing that Eleventh Amendment immunity should be deemed instead a waivable affirmative defense, but following Crosetto as circuit precedent). If this court could not have exercised subject matter jurisdiction over this action as pled in the state courts, Berry concludes, removal was barred so that the entire action, including the barred federal age discrimination claim, should be remanded to state court.
Defendants agree that the Eleventh Amendment bars the federal age discrimination claim, as they have alleged in their answer. They also agree that the state law claims should be remanded to state court.
What is there to argue about? Perhaps it is only the difference between a dismissal of the federal claim on the merits or for lack of subject matter jurisdiction. But this distinction makes no practical difference here. At least after the defendants raised the Eleventh Amendment as a defense in their answer, Berry cannot seriously hope to pursue relief under the federal ADEA in state court. See Alden v. Maine, 527 U.S. 706 (1999) (Congress cannot exercise Article I power to abrogate state immunity in state courts).
Perhaps the only practical question is whether fees incurred in obtaining a remand might be available to plaintiff under 28 U.S.C. § 1447(c). Because the removal was proper, such fees are not available here. There is no point in encouraging plaintiffs to plead hopeless claims in state courts so as to generate a fee award based on a sterile motion practice in federal court leading to an inevitable remand.
The esoteric question is whether the Eleventh Amendment defeats subject matter jurisdiction, or is an affirmative defense on the merits, or is a creature unto itself. The Supreme Court has denied having reached any firm conclusion on the subject. See Schacht, 524 U.S. at 391 ("a question we have not decided"), but the Seventh Circuit has recognized the clear implications of Schacht: "the Eleventh Amendment does not deprive the federal court of its subject-matter jurisdiction." Higgins v. Mississippi, 217 F.3d 951, 953 (7th Cir. 2000). The Eleventh Amendment defense is unusual in that a court may raise the defense itself. Id. at 954. But the essential characteristics of a defect in subject matter jurisdiction are that a court must raise such an issue itself, and a party may not waive the defect. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95 (1998); Smith v. Wisconsin Dep't of Agriculture, 23 F.3d at 1140. An Eleventh Amendment defense does not have either of these characteristics.
In light of these considerations, it is apparent that plaintiff Berry is correct in acknowledging that the Eleventh Amendment bars his federal claim. Based on Kimel, the claim can be and should be dismissed. Based on Schacht, the dismissal should be on the merits for failure to state a claim upon which relief can be granted. There is no reason for this court to retain supplemental jurisdiction over Berry's remaining claims, so the remaining claims shall be remanded to state court. See 28 U.S.C. § 1367(c)(3). A final judgment shall be entered accordingly.
So ordered.