Distinguishing between two kinds of state sovereign immunity, the Second Circuit dismisses an FLSA suit against Vermont

Beaulieu v. Vermont, No. 13-4198-cv (2d Cir. Sept. 16, 2015).

The Vermont State Capitol (credit: Nicholas Erwin / flickr)

The Vermont State Capitol (credit: Nicholas Erwin / flickr)

Here’s an interesting case about state sovereign immunity. The plaintiffs are roughly 700 current and former employees of the State of Vermont. They sued Vermont in state court, alleging violations of the Fair Labor Standards Act. Vermont removed the case to federal court, where it filed an unsuccessful motion to dismiss under Rule 12(b)(6). Then, two years after the case began, Vermont filed another motion asserting state sovereign immunity. The district court granted this second motion. 

The Second Circuit affirms in a typically illuminating opinion by Judge Leval. The court begins by distinguishing between two different kinds of state sovereign immunity: immunity under the Eleventh Amendment, which protects states from private suits for damages in federal court, and “broader general sovereign immunity,” which protects states from all private suits in both state and federal court. Vermont isn’t invoking its Eleventh Amendment immunity, so the only question here is whether general sovereign immunity applies. 

This sovereign-immunity question, in turn, is really a question about waiver. State sovereign immunity can be waived, and the plaintiffs argue that Vermont has waived its sovereign immunity both by statute and by its actions in this litigation. 

The Second Circuit rejects both arguments. True, it says, Vermont has acknowledged by statute that the FLSA applies to certain of its employees. But the whole point of sovereign immunity is that a law can apply to a sovereign and yet the sovereign can still be exempt from suit under that law. So Vermont hasn’t waived its immunity by statute. 

Neither has Vermont waived its immunity by removing the case to federal court and then waiting a while before asserting its immunity by motion. As the Second Circuit reads the case law, states waive their right to rely on the Eleventh Amendment when they remove a case to federal court, but they don’t thereby waive their general sovereign immunity. But what about Vermont’s delay in moving to dismiss on sovereign-immunity grounds? That wasn’t enough to waive immunity, says the court. While “earlier invocation of Vermont’s immunity might have … spar[ed]” the plaintiffs “some burden and expense,” Vermont engaged in no “duplicitous conduct” and the plaintiffs have suffered no “serious unfairness.”

The Second Circuit’s ruling may well be correct, but it does leave the reader wondering about the significance of Lapides v. Board of Regents, which held that states waive their Eleventh Amendment immunity by removing a case to federal court. If the Second Circuit is right, Lapides is drained of significance and confined to the presumably rare case in which a state (negligently) fails to invoke its general sovereign immunity.