[1] With respect to Poole, it is not necessary to determine
whether Poole was an employee of the Superior Court (and
therefore the State) or an employee of Lake County—or, for
that matter, which entity would have been ultimately responsible
for any judgment against him—because Tritchler has
overlooked one key and decisive fact: Poole explicitly waived
the immunity defense, by failing to assert it in his Answer and
by later affirmative declaration. Cf. Hill v. Blind Indus. and
Servs. of Md., 179 F.3d 754, 762 (9th Cir. 1999) (“[B]y
appearing and litigating the merits of the controversy without
objection, the state has waived its Eleventh Amendment
immunity and consented to the jurisdiction of the federal
court.”). Poole’s possible entitlement to immunity is thus
irrelevant because he has never pleaded it. Even if we were
to accept Tritchler’s argument that he was employed by the
Superior Court and not by Lake County, merely being
employed by an entity that has pleaded the defense doesn’t
automatically render the defense applicable to him.

[2] Because defendant Superior Court did plead Eleventh
Amendment immunity, we must reach Tritchler’s substantive
argument, brazen though it is given her own repeated assent
to the district court’s continued exercise of jurisdiction. It is
unnecessary to decide whether the district court erred in determining
that the Superior Court had waived the immunity that it pleaded,
because Tritchler does not have standing to raise the immunity
defense on behalf of the Superior Court in the first place, and the
Superior Court has very clearly announced that it does not want to
assert the defense, given that it has won (twice) on the merits.
Following Tritchler’s argument to its logical conclusion, a losing
plaintiff could raise an immunity claim belonging to the State so
long as the State had pleaded it, and would thereby get another
bite at the apple.

Moreover, as soon as the State pleaded its immunity defense,
the district court would apparently lose jurisdiction, a result
not contemplated either by the Eleventh Amendment or by the
case law. We have stated that Eleventh Amendment immunity
“does not implicate a federal court’s subject matter jurisdiction
in any ordinary sense” and that it “should be treated as an affirmative
defense.” ITSI TV Prods., Inc. v. Agric. Ass’ns, 3 F.3d 1289, 1291
(9th Cir. 1993). An affirmative defense is the defendant’s to raise,
not the plaintiff’s. The district court had jurisdiction subject to the
defendant’s possible Eleventh Amendment immunity, but that gives
the unsuccessful plaintiff no basis for challenging the court’s jurisdiction.
Amendment immunity defense

ADMINISTRATIVE LAW, CIVIL PROCEDURE, CIVIL RIGHTS, LABOR & EMPLOYMENT LAW

TRITCHLER v. THE COUNTY OF LAKE, No. 02-15687 (9th Cir. February 18,
2004)
Plaintiff unsuccessfully appeals from verdict against her on her
California Fair Employment and Housing Act claims. Plaintiff's
attempt to defeat federal jurisdiction fails, as she lacks standing
to assert that defendants are immune under the 11th Amendment.
Defendants were not estopped from litigating whether plaintiff's
former supervisor sexually harassed her, despite an administrative
finding that he had.

To read the full text of this opinion, go to:

[PDF File]
http://caselaw.lp.findlaw.com/data2/circs/9th/0215687p.pdf 
TRITCHLER v. THE COUNTY OF LAKE, No. 02-15687 (9th Cir. February 18, 2004)

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