By Kevin McGowan

A California Indian tribe may be immune from a Family and Medical Leave Act lawsuit by a fired employee even though it acted to move the lawsuit to federal court, the U.S. Court of Appeals for the Ninth Circuit ruled (Bodi v. Shingle Springs Band of Miwok Indians, 2016 BL 255421, 9th Cir., No. 14-16121, 8/8/16).

With the decision, two federal appeals courts now have ruled Indian tribes remain free to raise a sovereign immunity defense to lawsuits over statutory claims even if they exercise their right to remove those claims to federal courts from state courts.

“The act of removal does not express the clear and unequivocal waiver that is required for a tribe to relinquish its immunity from suit,” Judge Michelle T. Friedland wrotein an Aug. 8 opinion joined by Judges M. Margaret McKeown and Robert D. Sack.

The Shingle Springs Band of Miwok Indians therefore didn’t waive its sovereign immunity by removing fired tribal employee Beth Bodi’s FMLA lawsuit from state court to federalcourt, the Ninth Circuit said.

It reversed a district court’s ruling that the tribe waived an immunity defense to Bodi’s FMLA claims.

Federal district courts are divided over whether an Indian tribe’s petition to removea lawsuit from state to federal court waives the tribe’s sovereign immunity.

But the Ninth Circuit followed the Eleventh Circuit’s lead in holding that removal alone doesn’t constitute the “clear and unequivocal waiver” needed to find that a tribe relinquished its immunity from lawsuit.

Waiver Must Be ‘Unequivocally Expressed.’

Under U.S. Supreme Court precedent, a waiver of tribal sovereign immunity can’t be implied but rather must be “unequivocally expressed,” the Ninth Circuit said.

Bodi was a tribal member who was executive director of a health clinic on the reservation. After she attempted to take FMLA leave to address her health problems, the tribe’s health board terminated her employment.

She was subsequently reinstated in a new job but was fired again after indicating she intended to sue the tribe under the FMLA in a state court, Bodi alleged.

The tribe removed Bodi’s lawsuit to the U.S. District Court for the Eastern District of California. It then moved to dismiss the lawsuit based on sovereign immunity. But the district court denied the motion, holding the tribe waived its immunity by acting to remove Bodi’s lawsuit.

That result can’t be reconciled with the principles that shield Indian tribes from lawsuits without their consent, the Ninth Circuit said.

Bodi argued that Supreme Court case law holding a state may waive its 11th Amendment immunity by removing a lawsuit to federal court should apply to tribal sovereign immunity as well.

But tribal immunity differs from a state’s more limited immunity to damages lawsuits in federal court, the Ninth Circuit said. “Parallels between the two are of limited utility,”the court said.

States can waive their 11th Amendment immunity through litigation conduct, including removing a case to federal court, that wouldn’t cause a tribe to waive its sovereign immunity, the court said.

It remanded Bodi’s case so the district court can address remaining issues, including whether Congress in enacting the FMLA abrogated tribal immunity to lawsuits under the act.

Ad Astra Law Group LLP represented Bodi. Palmer Kazanjian Wohl Hodson LLP and Dentons US LLP represented the tribe.

To contact the reporter on this story: Kevin McGowan in Washington at[email protected]

To contact the editor responsible for this story:Susan J. McGolrick at[email protected]

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