Philip Romanelli v. CALIFORNIA BOARD OF REGISTERED NURSES On Appeal from the United States District…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1768
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PHILIP ROMANELLI,
Appellant
v.
CALIFORNIA BOARD OF REGISTERED NURSES
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 5:21-cv-02006)
District Judge: Honorable Jeffrey L. Schmehl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 13, 2022
Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges
(Opinion filed: October 13, 2022)
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OPINION*
___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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2
Pro se Appellant Philip Romanelli appeals the District Court’s order dismissing
his complaint for lack of subject matter jurisdiction. For the reasons set forth below, we
will affirm the District Court’s judgment with one modification.
I.
In 2021, Romanelli filed an action against the California Board of Registered
Nursing (“the Board”).1 The operative amended complaint raises claims pursuant to 42
U.S.C. § 1983, the First Amendment, and various state laws. Romanelli’s claims arose
out of proceedings that led to the surrender of his nursing license and the Board’s
subsequent denials of his requests for reinstatement. He sought monetary damages and
equitable relief.
The Board filed a motion to dismiss Romanelli’s amended complaint, which the
District Court granted upon concluding that the Board is immune from suit under the
Eleventh Amendment. Romanelli timely appealed.
II.
We have jurisdiction to review the District Court’s dismissal pursuant to 28 U.S.C.
§ 1291. We exercise plenary review over a district court’s dismissal of an action based
on sovereign immunity. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 (3d
Cir. 1996).
III.
1 Romanelli’s pleadings incorrectly referred to the Board as “the California Board of
Registered Nurses.”

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3
The Eleventh Amendment protects a state, state agency, or state department from
suit in federal court unless Congress has specifically abrogated the state’s immunity, or
the state has waived it. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
100, 120-21 (1984); Karns v. Shanahan, 879 F.3d 504, 513 (3d Cir. 2018); see also
Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655, 658 (3d Cir. 1989) (“A state
agency is entitled to immunity from suit in a federal court under the eleventh amendment
when a judgment against it would have had essentially the same practical consequences
as a judgment against the State itself.”) (citation and internal quotation marks omitted).
“This jurisdictional bar applies regardless of the nature of the relief sought.” Pennhurst,
465 U.S. at 100.
Romanelli does not contest that the Board is a state agency, nor does he raise any
arguments in his opening brief to undermine the District Court’s conclusion that the
Board is entitled to sovereign immunity. Even assuming any challenge to the District
Court’s sovereign immunity ruling has not been forfeited, see M.S. ex rel. Hall v.
Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020), we agree with the
District Court that Romanelli’s suit is barred by the Eleventh Amendment. The Board is
part of the California Department of Consumer Affairs and is responsible for the
administration of state nursing laws. See Cal. Bus. & Prof. Code § 2700 et seq.; Lee v.
Bd. of Registered Nursing, 147 Cal. Rptr. 3d 269, 272 (Cal. Ct. App. 2012). The District
Court properly concluded that it is a state agency immune from suit. See Forster v.
County of Santa Barbara, 896 F.2d 1146, 1149 (9th Cir. 1990) (per curiam) (holding that

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4
California Board of Medical Quality Assurance, also part of the Department of Consumer
Affairs, is a state agency protected by the Eleventh Amendment). As the District Court
noted, Congress has not abrogated California’s immunity, see Quern v. Jordan, 440 U.S.
332, 340-41 (1979), nor has California consented to suit in federal court or waived its
immunity here, see Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468, 473
(1987) (reasoning that “the Court will find a waiver by the State only where stated by the
most express language or by such overwhelming implications from the text as [will]
leave no room for any other reasonable construction” (alteration in original) (internal
quotation marks and citation omitted)).2
The District Court also properly declined to exercise jurisdiction over Romanelli’s
state-law claims. See Pennhurst, 465 U.S. at 120 (concluding that Eleventh Amendment
immunity extends to pendent state-law claims).3 We will, however, modify the District
Court’s order in part to reflect that the state-law claims are dismissed without prejudice to
Romanelli’s ability to bring them in state court. We express no opinion on Romanelli’s
likelihood of prevailing in that forum.
2 While a limited exception exists in which federal courts may have jurisdiction to
entertain a lawsuit seeking prospective injunctive relief against a state official, see
Pennhurst, 465 U.S at 102-03, Romanelli did not name any state officials in this action.
3 Although it appears that Romanelli was a citizen of Pennsylvania when he filed this
action, he did not assert diversity of citizenship as a basis for jurisdiction, and even if he
had, “federal courts cannot entertain a suit in diversity jurisdiction against a state or its
Alter ego.” Blake v. Kline, 612 F.2d 718, 726 (3d Cir. 1979).

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