Congress has abrogated states' immunity from suit in federal court in ADEA cases involving a state acting in its capacity as an "employment agency." Clearly, Congress has not manifested such an intent and has not made "unmistakably clear" an intention to abrogate the Eleventh Amendment in the "employment agency" situation. This court is not at liberty to infer such an intent.
To the contrary, Congress' explicit amendment of "employer" in 1974 to include States, coupled with its failure to similarly amend the definition of "employment agency," indicates if anything, a deliberate decision not to abrogate states' immunity in the employment agency context. Therefore, because Congress, through the ADEA, has not abrogated sovereign immunity for state-run employment agencies, the Eleventh Amendment bars this court's consideration of plaintiff's ADEA claims, as well as his state PHRA claims. Pennhurst, supra at 465 U.S. 121.
PENNSYLVANIA'S CONSENT TO SUIT IN FEDERAL COURT
Similarly, although it is a closer question, the court finds that Pennsylvania has not consented to federal lawsuit or I otherwise waived its Eleventh Amendment immunity by removing this case from state court to the Western District of Pennsylvania. Removal of a case initiated in state court, coupled with other affirmative acts by state officials or agencies, has occasionally been deemed to constitute an unequivocal expression of consent to suit in federal court sufficient to confer jurisdiction upon a federal court despite the usual Eleventh Amendment bar. See, e.g., Dion v. Commissioner, Maine Dep't of Human Services, 743 F. Supp. 80, 86 n.12 (D. Me. 1990)(removal to federal court plus filing third-party claims against federal defendants waived Eleventh Amendment immunity); Colorado Health Care Ass'n v. Colorado Dep't of Social Servs., 598 F. Supp. 1400, 1406 (D. Colo. 1984), aff'd 842 F.2d 1158 (10th Cir. 1988)(removal plus express stipulation plus consistent failure to challenge explicit arguments that state defendants had waived Eleventh Amendment immunity). However, mere removal of a case by state officials does not, without much more, waive the Eleventh Amendment immunity unless those state officials are explicitly authorized to waive such immunity and clearly and unequivocally do so. See, e.g., Silver v. Baggiano, 804 F.2d 1211, 1214 (11th Cir. 1986); Estate of Porter v. Illinois, 1993 U.S. Dist. LEXIS 8180 (N.D. Ill. 1993); Idoux v. Lamar Univ. System, 817 F. Supp. 637, 641 (E.D. Tex. 1993); Boyle v. City of Liberty, 1993 U.S. Dist. LEXIS 1077 (W.D. Mo. 1993); and Stephans v. Nevada, 685 F. Supp. 217, 219 (D. Nev. 1988).
Since removing the case, defendants have simply filed the initial motion to dismiss and a supplement in attempts to have the case decided in their favor based on asserted deficiencies in the plaintiff's complaint. There is no indication in the record that Pennsylvania has authorized its officials prosecuting this case to waive immunity and, in fact, the notice of removal explicitly states: "Defendants expressly do not waive any claims of constitutional immunity under the Eleventh Amendment in filing this removal . . . ." Notice of Removal, P 6. The court holds, therefore, that the defendants' removal of the case did not constitute a waiver or consent to be sued in federal court.
Following a determination that a case has been improvidently removed because the federal court lacks subject matter jurisdiction, the "case shall be remanded" to the state court as dictated by section 1016(c) of the Judicial Improvements and Access to Justice Act of 1988, 28 U.S.C. § 1447(c).
See also M.A.I.N. v. Commissioner, Maine Dep't of Human Services, 876 F.2d 1051, 1053-54 (1st Cir. 1989); and Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 188 (5th Cir. 1986). The case will be remanded, therefore, to the Court of Common Pleas of Beaver County which has concurrent jurisdiction over the ADEA claims
in addition to its jurisdiction over the state PHRA claims, and the court will leave it to Beaver to adjudicate the merits of the case, including the resolution of the objections raised by the defendants in their initial motion to dismiss.
An appropriate Order will be entered.