Judith M. Burch v. PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE On Appeal From the United States District…

NOT PRECEDENTIAL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.

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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
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

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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
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

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