Munoz

MEMORANDUM *

1. Defendants-appellees’ Eleventh Amendment argument under Kimel v. Florida Bd. of Regents, 528 U.S. 62 , 120 S.Ct. 631 , 145 L.Ed.2d 522 (2000), comes too late and in too elliptical a form for us to consider. “The Eleventh Amendment ... does not automatically destroy original jurisdiction.... Nor need a court raise the defect on its own. Unless the state raises the matter, a court can ignore it.” Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 , 118 S.Ct. 2047 , 141 L.Ed.2d 364 (1998) ; see also Blessing v. Freestone, 520 U.S. 329 , 340 n. 3, 117 S.Ct. 1353 , 137 L.Ed.2d 569 (1997). Here, defendants-appellees argued that the Eleventh Amendment bars the ADEA claim only after moving for summary judgment on the merits in the district court and briefing the merits of the case on appeal. Moreover, the 28(j) letter submitted by defendantsappellees did not affirmatively assert the State’s Eleventh Amendment immunity in this case, but rather advanced the false proposition that “the ADEA is unconstitutional as applied to the State of California.” Under these circumstances, the State waived its Eleventh Amendment immunity, and we reach the merits of the ADEA claim. See…