In a July 23, 2013 opinion, the US Court of Appeals for the Eleventh Circuit held in Stroud v. McIntosh that while a state may waive its Eleventh Amendment immunity against suit in a federal forum by removing to federal court, removal does not necessarily waive its sovereign immunity from liability.

Plaintiff Patricia Stroud sued her employer, the Alabama Board of Pardons and Paroles (Board), as well as the Board's personnel director, Phillip McIntosh, under various state and federal employment laws in state court. The defendants removed the case to federal court, after which Stroud added a claim under the federal Age Discrimination in Employment Act (ADEA). The district court dismissed all of Stroud’s federal claims (other than the ADEA claim) for failure to state a claim. It then dismissed the ADEA claim on immunity grounds, and remanded the state-law claims to state court. Stroud appealed. On appeal, the Eleventh Circuit considered only Stroud’s contention that the Board, by removing to federal court, waived both its immunity from suit in a federal forum and its immunity from liability under the ADEA.

The Eleventh Circuit affirmed. While observing that the Eleventh Amendment to the US Constitution generally immunizes states from being sued in federal court, the appellate court noted that this immunity can be waived when the state (or state agency) removes a case from state court to federal court. However, the Eleventh Circuit went on to hold that even if a state waives its immunity from litigation in federal court by removing, removal does not necessarily waive the state’s immunity from liability. In so holding, the Eleventh Circuit joined the Third and Fifth Circuits. Here, because states are generally immune from ADEA liability, and because Alabama did not waive its immunity as to ADEA claims, the Eleventh Circuit concluded that the district court properly dismissed Stroud’s ADEA claims.