                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-3-2006

Burch v. PA Dept Pub Welfare
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1429




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"Burch v. PA Dept Pub Welfare" (2006). 2006 Decisions. Paper 366.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                        No. 06-1429


                                  JUDITH M. BURCH,
                                               Appellant

                                            v.

             PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE


                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 05-cv-2032)
                          District Judge: Thomas I. Vanaskie


                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 13, 2006

          BEFORE: BARRY, CHAGARES and COWEN, CIRCUIT JUDGES

                                 (Filed: October 3, 2006)


                                         OPINION



PER CURIAM

      Judith Burch appeals the dismissal of her pro se complaint by the United States

District Court for the Middle District of Pennsylvania. For the reasons below, we will

affirm the District Court’s judgment.
         On October 5, 2005, Burch filed a pro se discrimination action against her former

employer, defendant Pennsylvania Department of Public Welfare. She alleged that

defendant violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12201 et seq.,

when it discriminated and retaliated against her due to her alleged disability of, inter alia,

depression and anxiety. Burch sought front and back pay, and “comprehensive” and

punitive damages. The District Court dismissed the complaint for lack of subject-matter

jurisdiction based on Pennsylvania’s sovereign immunity under the Eleventh

Amendment. Burch timely appealed.1

         We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of

review is plenary. See Gould Elec., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.

2000).

         In her complaint, Burch argued that defendant discriminated and retaliated against

her due to her alleged disabilities. We agree with the District Court that the threshold

issue in this matter is whether Burch may recover under Title I of the ADA for her

discrimination and retaliation claims against defendant in federal court. She may not.

Defendant, as an instrumentality of the Commonwealth of Pennsylvania, is entitled to

immunity under the Eleventh Amendment from a suit for damages brought pursuant to

the ADA. See Bd. of Tr. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001); Benn




   1
    Burch filed the notice of appeal within 30 days from the denial of her timely-filed
motion to reconsider. See FRAP 4(a)(4)(A)(iv).
                                              2
v. First Judicial Dist. of Pa., 426 F.3d 233, 241 (3d Cir. 2005).2 This immunity functions

as an absolute bar to Burch’s ADA claim. Accordingly, we will affirm the judgment of

the District Court.3




   2
    Burch does not seek any non-monetary relief that might not be barred by the
Eleventh Amendment. See Garrett, 531 U.S. at 374 n.9.
   3
     To the extent Burch raises new constitutional and statutory claims, we note that
arguments raised for the first time on appeal are deemed to be waived and not susceptible
of review. See Brown v. Philip Morris, Inc., 250 F.3d 789, 799 (3d Cir. 2001).
                                            3
