Hope Lee-Thomas v.  Prince George’s County Public Schools

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 HOPE LEE-THOMAS,
Plaintiff-Appellee,
v. No. 10-1699 
PRINCE GEORGE’S COUNTY PUBLIC
SCHOOLS,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Charles B. Day, Magistrate Judge.
(8:08-cv-03327-CBD)
Argued: September 20, 2011
Decided: January 11, 2012
Before KING, DAVIS, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge King wrote the major-
ity opinion, in which Judge Davis joined. Judge Keenan wrote
a dissenting opinion.
COUNSEL
ARGUED: Abbey G. Hairston, THATCHER LAW FIRM,
Greenbelt, Maryland; Leslie Robert Stellman, HODES, PES-
SIN & KATZ, PA, Towson, Maryland, for Appellant. Lorri-

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anne Jeanette Rice, Bowie, Maryland, for Appellee. ON
BRIEF: Linda H. Thatcher, Robert J. Baror, THATCHER
LAW FIRM, Greenbelt, Maryland, for Appellant.
OPINION
KING, Circuit Judge:
Defendant-appellant Prince George’s County Public
Schools (the school "Board") appeals from the district court’s
partial rejection of the Board’s assertion of immunity under
the Eleventh Amendment. Although it recognized that the
Board enjoys some measure of Eleventh Amendment immu-
nity, the court ruled that the State of Maryland has waived
such immunity for damage claims of $100,000 or less. See
Lee-Thomas v. Bd. of Educ. of Prince George’s Cnty., No.
8:08-cv-03327 (D. Md. Feb. 5, 2010) (the "Opinion").1 As
explained below, we agree with the district court and affirm.
I.
On December 11, 2008, plaintiff-appellee Hope Lee-
Thomas, a Board employee, initiated this proceeding in the
District of Maryland, alleging that the Board violated the
Americans with Disabilities Act (the "ADA") by failing to
reasonably accommodate her hearing disability. Lee-
Thomas’s complaint sought back pay, future pay, compensa-
tory damages of $1,000,000, punitive damages of $1,000,000,
plus attorney’s fees and costs. In October 2009, following dis-
covery, the Board moved for summary judgment, primarily on
the contention that the Eleventh Amendment barred an ADA
suit against the Board for damages. In acquiescence to the
Board’s contentions that back pay, future pay, and punitive
damages are not recoverable under the ADA, Lee-Thomas
1The Opinion is found at J.A. 60-64. (Citations herein to "J.A.___" refer
to the contents of the Joint Appendix filed by the parties in this appeal.)
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moved separately to amend her complaint to jettison those
requests for relief. She also sought to reduce her request for
compensatory damages from $1,000,000 to $100,000, and to
add a request for injunctive relief. Otherwise, Lee-Thomas
opposed the Board’s claim of Eleventh Amendment immu-
nity.
On February 5, 2010, the district court issued its Opinion,
granting the Board’s summary judgment motion only insofar
as Lee-Thomas’s damage claim exceeded $100,000.2 In so
doing, the Opinion adhered to the precedent of the Court of
Appeals of Maryland, the highest court of the State. In 2009,
that court concluded that the enactment of a state statute, see
Md. Code. Ann., Cts. & Jud. Proc. § 5-518(c) (the "immunity
provision"), effectuated a waiver of a county board of educa-
tion’s Eleventh Amendment immunity "for all claims in the
amount of $100,000 or less." Bd. of Educ. of Balt. Cnty. v.
Zimmer-Rubert, 973 A.2d 233, 243 (Md. 2009).3 The Opinion
also granted Lee-Thomas’s motion to amend her complaint.
On March 1, 2010, the Board moved for reconsideration of
the Opinion, which the court denied on June 8, 2010. On June
22, 2010, the Board filed its notice of appeal.4 We possess
jurisdiction under the collateral order doctrine to review a
2The parties consented in the district court to the jurisdiction of a magis-
trate judge for all purposes. In issuing his decisions, the magistrate judge
was acting for the court, and we therefore refer to those decisions as those
of the district court. See 28 U.S.C. § 636(c)(1).
3The immunity provision provides that "[a] county board of education
may not raise the defense of sovereign immunity to any claim of $100,000
or less." Concomitantly, Maryland county boards of education are required
to carry comprehensive liability insurance with a minimum coverage of
$100,000. See Md. Code Ann., Ed. § 4-105(a)-(b).
4We are satisfied that the Board’s motion for reconsideration should be
treated as a motion to alter or amend a judgment under Rule 59(e) of the
Federal Rules of Civil Procedure, in that it was filed within twenty-eight
days of the judgment. See Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d
462, 471 n.4 (4th Cir. 2011) (construing post-judgment motion for recon-
sideration as Rule 59(e) motion). As a result, the Board’s notice of appeal
was timely filed. See Fed. R. App. P. 4(a)(4)(A).
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denial of Eleventh Amendment immunity, in that such a rul-
ing is deemed a final decision under 28 U.S.C. § 1291. See
P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 144-47 (1993).
II.
We ordinarily review for abuse of discretion a district
court’s denial of a motion for reconsideration. See Cray
Comm’ns, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390,
395 (4th Cir. 1994). We review de novo, however, a district
court’s denial of Eleventh Amendment immunity. See Harter
v. Vernon, 101 F.3d 334, 336 (4th Cir. 1996). Because the dis-
trict court’s refusal to reconsider the Opinion was based on its
determination that the Board was not entitled to Eleventh
Amendment immunity, we consider the underlying question
anew, without deference to the court’s ruling on reconsidera-
tion. See Beentjes v. Placer Cnty. Air Pollution Control Dist.,
397 F.3d 775, 777 (9th Cir. 2005).
III.
The Board contends that the district court erred in deferring
to the decision of the Court of Appeals of Maryland in Board
of Education of Baltimore County v. Zimmer-Rubert, 973
A.2d 233 (Md. 2009), on the question of whether the immu-
nity provision waived the State’s Eleventh Amendment
immunity. The Board posits that no such deference is owed
because the question is one of federal law, on which the deci-
sions of the Supreme Court of the United States are control-
ling. More specifically, the Board relies on Supreme Court
precedent recognizing a statutory waiver of Eleventh Amend-
ment immunity only where the relevant state statute utilizes
express language of consent to suit in federal court. The
Board maintains that the words "any claim" in the immunity
provision are insufficient to constitute an express waiver
under federal law, contrary to the conclusion reached by
Maryland’s highest court in Zimmer-Rubert.
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We begin our analysis with the threshold issue of whether
federal law or state law controls the question of a state’s statu-
tory waiver of Eleventh Amendment immunity. Guided by the
precepts of Eleventh Amendment jurisprudence, we conclude
that, although the federal courts must apply federal law as
embodied in Supreme Court precedent, when a state’s highest
court has applied federal law and determined that a state stat-
ute effects a waiver of Eleventh Amendment immunity, the
federal courts must accord deference to that state court deci-
sion. Applying these principles to this case, the district court
properly deferred to the decision of the Court of Appeals of
Maryland in Zimmer-Rubert.
A.
Pursuant to the Eleventh Amendment, "[t]he Judicial power
of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State." U.S. Const.
amend. XI. The Supreme Court "has drawn on principles of
sovereign immunity to construe the Amendment to establish
that an unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of
another State." Port Auth. Trans-Hudson Corp. v. Feeney, 495
U.S. 299, 304 (1990) (internal quotation marks omitted). The
States’ immunity also extends to "state agents and state instru-
mentalities." Regents of the Univ. of Cal. v. Doe, 519 U.S.
425, 429 (1997).5 "The Eleventh Amendment bar to suit is not
5Lee-Thomas has conceded that the Board is an agent of the State of
Maryland. See J.A. 51. The district court apparently accepted, without
deciding, that the Board is a state agency. On appeal, the Board reassures
us that a number of federal and state court decisions have concluded that
Maryland boards of education are state agencies for Eleventh Amendment
immunity purposes. Where, as here, the judgment would not be paid from
the State’s treasury, we must consider whether the relationship between
the State and a board of education is "sufficiently close to make the entity
an arm of the State" by analyzing:
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absolute," however. Feeney, 495 U.S. at 304. There are three
exceptions to that constitutional bar.
First, "Congress may abrogate the States’ Eleventh Amend-
ment immunity when it both unequivocally intends to do so
and acts pursuant to a valid grant of constitutional authority."
Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363
(2001) (internal quotation marks and alterations omitted). The
applicability of the first exception is not a point of contention
in this appeal because Congress did not abrogate the States’
immunity from money damage claims under Title I of the
ADA. See id. at 374.6 Second, "the Eleventh Amendment per-
mits suits for prospective injunctive relief against state offi-
cials acting in violation of federal law." Frew ex rel. Frew v.
Hawkins, 540 U.S. 431, 437 (2004). The second exception is
also inapplicable here, because the complaint does not name
as defendants any officials of the State of Maryland. Third,
"[a] State remains free to waive its Eleventh Amendment
immunity from suit in a federal court." Lapides v. Bd. of
(1) the degree of control that the State exercises over the entity
or the degree of autonomy from the State that the entity enjoys;
(2) the scope of the entity’s concerns — whether local or state-
wide — with which the entity is involved; and (3) the manner in
which State law treats the entity.
Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219, 224 (4th Cir. 2001).
We agree with the courts that have evaluated the foregoing factors and
concluded that the State exercises a significant degree of control over
boards of education and that Maryland law treats them as instrumentalities
of the State. See, e.g., Lewis v. Bd. of Educ. of Talbot Cnty., 262 F. Supp.
2d 608, 613-14 (D. Md. 2003); Zimmer-Rubert, 973 A.2d at 236-37 (col-
lecting cases). As a result, for purposes of this proceeding, the Board is
an agent of the State entitled to invoke its claim of Eleventh Amendment
immunity.
6Title I of the ADA, as codified at 42 U.S.C. § 12112, proscribes the
type of discriminatory acts and omissions alleged by Lee-Thomas, i.e., the
failure of an employer to make reasonable accommodations. See E.E.O.C.
v. Fed. Express Corp., 513 F.3d 360, 371 (4th Cir. 2008).
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Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002). The
third exception, that of waiver, is at issue in this proceeding.
The Board maintains that the waiver exception is inapplicable
because Supreme Court precedent compels the conclusion
that the State of Maryland has not forgone its Eleventh
Amendment immunity.
The Board acknowledges that the Supreme Court long ago
decided that the question of waiver of sovereign immunity by
a state constitutional provision or statute is a matter of state
law, "as to which the decision of the [state’s highest court] is
controlling." Palmer v. Ohio, 248 U.S. 32, 34 (1918). The
Board contends, nevertheless, that the Court effectively over-
ruled Palmer in its unanimous 2002 Lapides decision, by vir-
tue of the following statement:
As in analogous contexts, in which matters are ques-
tions of federal law, cf., e.g., Regents of Univ. of Cal.
v. Doe, 519 U.S. 425, 429, n.5 (1997), whether a par-
ticular set of state laws, rules, or activities amounts
to a waiver of the State’s Eleventh Amendment
immunity is a question of federal law.
535 U.S. at 622-23.
In Lapides — initiated as a state court action alleging state
law claims against Georgia’s Board of Regents — the plain-
tiff sought to avail himself of a statutory waiver of Georgia’s
immunity from suit in the courts of that State. Georgia’s
Attorney General joined in the removal of the state proceed-
ing to federal court, however, and then sought dismissal of the
claims on Eleventh Amendment grounds. The question the
Supreme Court "agreed to decide [was] whether a state
waives its Eleventh Amendment immunity by its affirmative
litigation conduct when it removes a case to federal court."
Lapides, 535 U.S. at 617 (internal quotation marks and alter-
ation omitted). Limiting its holding to state law claims that
the State had already consented to defend in its own courts,
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the Court ruled that Georgia’s act of removal constituted a
waiver of its Eleventh Amendment immunity. Id. at 624. The
Court reasoned that it would "seem anomalous or inconsis-
tent" for a state to invoke federal jurisdiction by removal and
then assert immunity from such jurisdiction. Id. at 619.
Although Georgia maintained that its Attorney General was
not authorized, as a matter of state law, to waive the State’s
Eleventh Amendment immunity, the Court deemed the lack of
such authority immaterial. Rather, the Court stressed that the
State had voluntarily invoked federal jurisdiction, and, more
fundamentally, that waiver of such immunity by affirmative
litigation conduct is a question of federal law. Lapides, 535
U.S. at 622-23. As the Court explained,
an interpretation of the Eleventh Amendment that
finds waiver in the litigation context rests upon the
Amendment’s presumed recognition of the judicial
need to avoid inconsistency, anomaly, and unfair-
ness, and not upon a State’s actual preference or
desire, which might, after all, favor selective use of
"immunity" to achieve litigation advantages.
Id. at 620.
In this appeal, the Board erroneously conflates a state statu-
tory waiver of Eleventh Amendment immunity with a litiga-
tion conduct waiver, whereas the Lapides decision carefully
distinguished between them. See 535 U.S. at 620 (differentiat-
ing waiver requiring "‘clear’ indication of the State’s intent to
waive its immunity" from "waiver[ ] effected by litigation
conduct"). Therefore, we are unable to fairly read the single
statement in Lapides — on which the Board’s appellate posi-
tion relies — as having implicitly and effectively overruled
Palmer. It is, of course, solely the prerogative of the Supreme
Court to decide when to overrule one of its decisions, see
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.
477, 484 (1989), and we cannot "conclude [that the Court’s]
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more recent cases have, by implication, overruled an earlier
precedent," see Agostini v. Felton, 521 U.S. 203, 237 (1997).
It is not lost on us, of course, that it has been nearly a cen-
tury since the Supreme Court decided Palmer. Meanwhile, the
Court has developed a more complete body of law concerning
Eleventh Amendment immunity waivers. That precedent must
also be recognized and adhered to. Most relevant here, the
Court has admonished the lower federal courts to identify a
waiver of Eleventh Amendment immunity in a state statute
"only where stated by the most express language or by such
overwhelming implication from the text as will leave no room
for any other reasonable construction." Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 240 (1985) (internal quota-
tion marks and alteration omitted). And, because "a State’s
constitutional interest in immunity encompasses not merely
whether it may be sued, but where it may be sued . . . [the
state statute] must specify the State’s intention to subject itself
to suit in federal court." Id. at 241 (citation and internal quo-
tation marks omitted). As the Court emphasized, "[t]he test
for determining whether a State has waived its immunity from
federal-court jurisdiction is a stringent one." Id. Hence, a state
does not waive its Eleventh Amendment immunity "by con-
senting to suit in the courts of its own creation," "by stating
its intention to ‘sue and be sued,’ or even by authorizing suits
against it ‘in any court of competent jurisdiction.’" Coll. Sav.
Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527
U.S. 666, 676 (1999) (citations omitted).
There is no question that, in assessing a purported statutory
waiver of Eleventh Amendment immunity, a federal court
must apply the "stringent test" enunciated by the Supreme
Court’s 1985 Atascadero decision, and, in the absence of a
construction of the relevant state statute by the state’s highest
court, examine and decide the state law issue independently.
See Virginia v. Reinhard, 568 F.3d 110, 114-17 (4th Cir.
2009) (internal quotation marks omitted) (concluding that
state statute was "not sufficiently explicit to waive Virginia’s
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sovereign immunity"), reversed on other grounds, Va. Office
for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632 (2011);
Huang v. Bd. of Governors of the Univ. of N.C., 902 F.2d
1134, 1138-39 (4th Cir. 1990) (determining, after applying
stringent test and reviewing state court decisions, that North
Carolina statute did not waive Eleventh Amendment immu-
nity in federal court); see also Ford Motor Co. v. Dep’t of
Treasury of Ind., 323 U.S. 459, 467 (1945) ("As this issue has
not been determined by state courts, this Court must resort to
the general policy of the state as expressed in its Constitution,
statutes and decisions."), overruled on other grounds,
Lapides, 535 U.S. at 623.
Nevertheless, where a state’s highest court has applied the
Atascadero stringent test and carefully scrutinized state law to
determine whether a state statute effects a waiver of Eleventh
Amendment immunity, a federal court is obliged, under
Palmer, to defer to that state court decision. Indeed, we
should defer to the decision of the state’s highest court even
when the statute, on its face, does not appear to pass the strin-
gent test, because "[t]he whole point" of that test, "requiring
a clear declaration by the State of its waiver[,] is to be certain
that the State in fact consents to suit." See Coll. Sav. Bank,
527 U.S. at 680 (internal quotation marks omitted). As the
First Circuit has explained, "[w]here the highest court of a
state has construed a state statute as intending to waive the
state’s immunity to suit in federal court, the state’s intent is
just as clear as if the waiver were made explicit in the state
statute." Della Grotta v. Rhode Island, 781 F.2d 343, 347 (1st
Cir. 1986), abrogated on other grounds by Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 71 (1989).7 Put succinctly, "the
7In the Della Grotta case, the state statute did not "spell out an intention
to allow suit against [Rhode Island] in a federal court." Della Grotta, 781
F.2d at 346-47. The First Circuit nevertheless deferred to the Supreme
Court of Rhode Island, which had ruled "unequivocally" that the state stat-
ute manifested an intent to waive Eleventh Amendment immunity in fed-
eral court. Id. at 347. The court reasoned, inter alia, that "when the highest
court declares the intent of its own legislature, the federal courts have no
reason to exercise special oversight designed to save the state from its own
or (if distinguishable) its judicial folly." Id.
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silence of the legislature may be rectified by the voice of the
state’s highest court." See Minotti v. Lensink, 798 F.2d 607,
611 (2d Cir. 1986) (declining to defer to the Supreme Court
of Connecticut because it had not decided whether the rele-
vant "statute constituted a waiver of immunity to suit in fed-
eral court").
Moreover, the accumulated teachings of the Supreme
Court’s earlier and more recent precedents instruct that the
strictures of federal law extolled in Atascadero must, in defer-
ence to state sovereignty, yield to the decision of a state’s
highest court. This command is applicable here because "the
States’ immunity from suit is a fundamental aspect of [their]
sovereignty" that "neither derives from, nor is limited by, the
terms of the Eleventh Amendment." See Alden v. Maine, 527
U.S. 706, 713 (1999). Consequently, a state’s highest court is
entitled to say what that state’s law is on the question of con-
sent to suit in federal court. See Palmer, 248 U.S. at 34; see
also Johnson v. Fankell, 520 U.S. 911, 916 (1997) ("Neither
[the Supreme] Court nor any other federal tribunal has any
authority to place a construction on a state statute different
from the one rendered by the highest court of the State.");
Parden v. Terminal Ry. of Ala. State Docks Dep’t, 377 U.S.
184, 194-95 (1964) ("[W]hether a State has waived its immu-
nity depends upon its intention and is a question of state law
only."), overruled on other grounds, Coll. Sav. Bank, 527
U.S. at 680.8
8We are unable to disagree with our good dissenting colleague that, in
assessing whether a state statute effects a waiver of Eleventh Amendment
immunity, a court is obliged to apply federal law as embodied in Supreme
Court precedent, e.g., Atascadero. We cannot endorse the dissent’s view,
however, that Lapides’s holding or its dicta authorizes a federal court to
overrule the construction of a state statute rendered by that state’s highest
court. Such a view seems not only anomalous, as the dissent itself con-
cedes, but is an affront to the very notion of state sovereignty. In our view,
the dissent overemphasizes the distinction between "state court immunity"
and "Eleventh Amendment immunity" in asserting that a state’s highest
court has no business deciding whether its own state statute constitutes
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B.
With the foregoing principles in mind, we turn to the scope
of the Maryland immunity provision — the state statute at
issue in this appeal. In its Zimmer-Rubert decision, Mary-
land’s highest court considered and resolved the question of
whether the immunity provision waives a county board of
education’s Eleventh Amendment immunity. There, a teacher
had sued the Board of Education of Baltimore County (the
"Baltimore Board") in state court, alleging age discrimination
under the Age Discrimination in Employment Act ("ADEA")
and seeking to recover, inter alia, $100,000 in compensatory
damages. See Zimmer-Rubert, 973 A.2d at 235. The Circuit
Court for Baltimore County, where the suit was initiated,
granted the Baltimore Board’s motion to dismiss, ruling that
the immunity provision did not specifically waive Eleventh
Amendment immunity. Id. The Court of Special Appeals of
Maryland reversed, however, concluding that the immunity
provision waived the Baltimore Board’s Eleventh Amend-
ment immunity as to the plaintiff’s ADEA claim. Id. at 236.
The Court of Appeals of Maryland then granted certiorari. Id.
consent to suit in federal court. See post at 16-18. In either forum, a state
decides whether to waive its sovereign immunity. See Alden, 527 U.S. at
713–14. A state acts no less in its sovereign capacity when its highest
court interprets a state statute as when its legislature enacts one. Cf. Erie
R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (the "law of the state" is the
law "declared by its Legislature in a statute or by its highest court in a
decision"). Thus, to say that a state’s highest court has no right to speak
authoritatively on its state’s statutory waiver runs afoul of "the preeminent
purpose of state sovereign immunity [which] is to accord States the dig-
nity that is consistent with their status as sovereign entities." See Fed.
Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002).
Moreover, "[i]t would be a strange rule of federalism that ignores the view
of the highest court of a State as to the meaning of its own law." See
Stringer v. Black, 503 U.S. 222, 235 (1992). That a state’s highest court
is the final arbiter of a state statute is a fundamental tenet of federalism
older than Palmer, see Elmendorf v. Taylor, 23 U.S. 152, 159 (1825), and
yet thriving, see Johnson, 520 U.S. at 916.
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In affirming the Court of Special Appeals, the Court of
Appeals analyzed the issue presented as requiring "a two-part
determination": first, applying Maryland law to ascertain
whether the immunity provision waived general sovereign
immunity, and, second, whether it particularly waived Elev-
enth Amendment immunity, which the Court of Appeals rec-
ognized to involve "a question of federal constitutional law
. . . not limited to Maryland common law principles."
Zimmer-Rubert, 973 A.2d at 240-41. The Court of Appeals
deemed the "plain language" of the immunity provision to be
a "broad and unambiguous" waiver of a general sovereign
immunity defense. Id. at 242. The court also examined the
legislative history of the immunity provision, observing that,
as originally proposed, it would have required that "county
school boards carry liability insurance ‘for personal injury
claims.’" Id. The court further observed, however, "that [such]
language was stricken in favor of language requiring ‘compre-
hensive liability insurance.’" Id. The legislature’s revision, the
Court of Appeals concluded, "confirms that the words ‘any
claim’ in [the immunity provision] mean ‘all claims’ . . .
including those for personal injury and alleged employment
law violations." Id.
The Court of Appeals of Maryland then acknowledged and
applied the Atascadero stringent test and concluded that the
State had "specified its intention to subject itself to suit in fed-
eral court, as the words ‘any claim’ in [the immunity provi-
sion] encompass a claim brought in either state or federal
court." Zimmer-Rubert, 973 A.2d at 242. The Court of
Appeals contrasted the immunity provision with another
Maryland statute barring a sovereign immunity defense "in a
court of the State," which the court had previously held "ex-
cluded Eleventh Amendment immunity." Id. at 240, 242 (cit-
ing State v. Sharafeldin, 854 A.2d 1208 (Md. 2004)). The
court thus reasoned that, "if the General Assembly intended
to preserve the State’s Eleventh Amendment protection, that
body knew how to do so by merely limiting the State’s liabil-
ity to any claim brought ‘in a court in this State,’ or words to
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that effect." Id. at 243. Moreover, the court emphasized, "[i]t
would defy logic for the General Assembly to have waived
sovereign immunity as to ‘any claim,’ thereby allowing all
claims, whether in state or federal court, while simultaneously
intending to preserve Eleventh Amendment immunity." Id.9
The Board faults the district court for deferring to Zimmer-
Rubert rather than revisiting the Atascadero stringent test and
ruling in the Board’s favor — that the immunity provision’s
waiver of immunity as to "any claims" is insufficient to con-
stitute a consent to lawsuits against the Board in federal court.
As an initial matter, we reject the Board’s insistence that the
Court of Appeals failed to apply the stringent test. Indeed, it
is fair to read Zimmer-Rubert as concluding that the "over-
whelming implications" from the words "any claim" in the
immunity provision "leave no room for any other reasonable
construction" except that the immunity provision waives
Eleventh Amendment immunity. See Atascadero, 473 U.S. at
240. Moreover, we are reluctant to infer that the only way a
state statute can satisfy the stringent test is to include the
words "federal court" or "United States" in the statutory text.
In any event, as we have already explained, we owe deference
to the Court of Appeals on the question of whether Mary-
land’s legislature intended to consent to suit in federal court.10
9The Board contends on appeal that the Court of Appeals of Maryland
undercut its Zimmer-Rubert decision by recognizing in a subsequent deci-
sion that the words "any claim" in the immunity provision do not apply
to contract claims but only to "tort or insurable claim[s], such as those for
personal injury and for claims arising from alleged employment law viola-
tions." Beka Indus., Inc. v. Worcester Cnty. Bd. of Educ., 18 A.3d 890, 907
(Md. 2011) (internal quotation marks omitted). An effort to distinguish
between tort claims and contract claims, however, does not diminish the
conclusion reached in Zimmer-Rubert that the legislature intended the
immunity provision to effect a waiver of Eleventh Amendment immunity
as to claims concerning violations of employment law, the very type of
claim alleged in this case.
10The district court rejected the Board’s assertion that the Court of
Appeals was only in dicta observing that the State had "specified its inten-
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Finally, it is of some importance that there has been no leg-
islative response to the Zimmer-Rubert decision. In addressing
that point, the Court of Appeals of Maryland has explained
that "[t]he General Assembly is presumed to be aware of [the
Court of Appeals’s] interpretation of its enactments and, if
such interpretation is not legislatively overturned, to have
acquiesced in that interpretation." Pye v. State, 919 A.2d 632,
637 (Md. 2007) (internal quotation marks omitted); In re Wal-
lace W., 634 A.2d 53, 59-60 (Md. 1993) (emphasizing legisla-
tive acquiescence to interpretation by highest court of
Maryland as indicative of legislative intent). Although only
two years have passed since Zimmer-Rubert was decided, the
legislative inaction is conspicuous given the minimal effort
required. As the Court of Appeals observed, if the statutory
tion [in the immunity provision] to subject itself to suit in federal court."
See Zimmer-Rubert, 973 A.2d at 242. The Board contended in its motion
for reconsideration that, because Zimmer-Rubert was pursued in state
court, the only issue properly resolved was whether the immunity provi-
sion effected a waiver of immunity in state court. The Court of Appeals
believed, however, that "[t]he dispositive question" in Zimmer-Rubert was
"[w]hether the State of Maryland, pursuant to [the immunity provision]
enacted a valid waiver of Eleventh Amendment immunity." See 973 A.2d
at 236. Whether or not the question was necessarily before the Court of
Appeals, the court’s construction of the immunity provision was entirely
unequivocal, leaving no doubt that the provision was meant to waive all
aspects of sovereign immunity (up to $100,000), both state and federal.
Our distinguished colleague’s view that the Court of Appeals interpreted
only an intent to "preserve" —rather than to "waive" — Eleventh Amend-
ment immunity supplies a thin reed on which to overrule Maryland’s high-
est court concerning the scope of the immunity provision. Cf. Bragg v. W.
Va. Coal Ass’n, 248 F.3d 275, 289 (4th Cir. 2001) (interpreting federal
statute as not expressing "Congress’ clear intent that participating States
waive Eleventh Amendment immunity" since "language actually preserves
a State’s sovereign immunity"). Even accepting the dissent’s characteriza-
tion of Zimmer-Rubert’s pronouncement as dicta, however, it necessarily
qualifies as "[c]onsidered dicta" — constituting "a clear exposition of the
[state’s] law" by a state’s highest court, not "in conflict with other deci-
sions of that court" — which "must be followed." See Sherby v. Weather
Bros. Transfer Co., 421 F.2d 1243, 1244 (4th Cir. 1970); see also Hawks
v. Hamill, 288 U.S. 52, 58-59 (1933).
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intent underlying the immunity provision were only to waive
immunity in the state courts, the statute could be readily
amended, by simply adding "‘in a court in this State,’ or
words to that effect." See 973 A.2d at 243. That no such
amendment has been made further persuades us that the Court
of Appeals did not misconstrue the breadth of the immunity
provision or the intent of the legislature.
Accordingly, the district court properly adhered to the
Zimmer-Rubert decision in ruling that the immunity provision
effected a waiver of the Board’s Eleventh Amendment immu-
nity for claims of $100,000 or less. As a result, we are con-
strained to reject the Board’s contentions to the contrary.
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
BARBARA MILANO KEENAN, Circuit Judge, dissenting:
The majority holds that the issue of Maryland’s immunity
from suit in federal court was a question properly decided by
the state’s highest court. Because I conclude that this Eleventh
Amendment immunity question presents an issue of federal,
rather than of state law, I respectfully dissent.
I.
The issues of sovereign and Eleventh Amendment immu-
nity present complex considerations of comity in our federal-
ist system. The Supreme Court addressed some of the
confusion regarding these two categories of immunity in its
decision in Alden v. Maine, 527 U.S. 706 (1999).
In Alden, private plaintiffs attempted to sue the State of
Maine in state court, seeking relief under a federal statute. Id.
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at 711. The Supreme Judicial Court of Maine affirmed the
decision of the trial court dismissing the claim on the ground
of sovereign immunity. Id. On appeal, the United States
Supreme Court affirmed and, in its opinion, addressed the pri-
mary distinction between the broad umbrella of sovereign
immunity and the more narrow focus of Eleventh Amendment
immunity. The Court stated:
We have . . . sometimes referred to the States’
immunity from suit as "Eleventh Amendment immu-
nity." The phrase is convenient shorthand but some-
thing of a misnomer, for the sovereign immunity of
the States neither derives from nor is limited by the
terms of the Eleventh Amendment.
Id. at 713. The Court further explained that "sovereign immu-
nity derives not from the Eleventh Amendment but from the
structure of the original Constitution itself." Id. at 728.
A state’s Eleventh Amendment immunity is merely a type
of sovereign immunity "as it applies to suits filed in federal
court." Stewart v. North Carolina, 393 F.3d 484, 488 (4th Cir.
2005) (differentiating between Eleventh Amendment immu-
nity and state sovereign immunity more generally). The deci-
sion in Alden addressed the doctrine of sovereign immunity
with regard to suits filed in state court (hereafter, state court
immunity).
States may waive both their state court immunity and their
Eleventh Amendment immunity from suit in federal court. A
waiver may be drawn either in the form of a statute or a con-
stitutional provision. See Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 241 (1985). However, an interpretation of a
state’s waiver with respect to state court immunity differs sig-
nificantly from the question whether the state has waived its
immunity from suit in federal court.
When a state is haled into one of its own courts, the rele-
vant issue is one of state court immunity. Any issue whether
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a statute or constitutional provision effectively waives state
court immunity is a decision resolved by that state’s courts.
A ruling from the state’s highest court interpreting a statutory
waiver provision is conclusive with respect to the nature and
extent of the state’s immunity in state court. As the Court in
Alden observed, "the immunity of a sovereign in its own
courts has always been understood to be within the sole con-
trol of the sovereign itself." 527 U.S. at 749.
A state’s Eleventh Amendment immunity, however, oper-
ates in an entirely different context. While state court immu-
nity arises, and its contours are defined, in state court, issues
regarding Eleventh Amendment immunity originate only in
federal court. See Hilton v. South Carolina Pub. Rys.
Comm’n, 502 U.S. 197, 204-05 (1991) ("the Eleventh
Amendment does not apply in state courts") (quoting Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 63-64 (1989));
Atascadero, 473 U.S. at 238 n.2 (citing Employees v. Missouri
Dep’t of Pub. Health and Welfare, 411 U.S. 279, 293-94
(1973) (Marshall, J., concurring)). See also Huang v. Bd. of
Governors of the Univ. of North Carolina, 902 F.2d 1134,
1139 (4th Cir. 1990). Therefore, while state courts have ample
opportunity to address issues of state court immunity in dis-
posing of cases, state courts have no cause to address issues
of the state’s Eleventh Amendment immunity from suit in
federal court. In contrast, federal courts routinely confront
issues regarding a state’s Eleventh Amendment immunity
from suit in federal court. Nevertheless, the majority, errone-
ously in my view, concludes that issues of Eleventh Amend-
ment immunity are matters properly resolved under state law.
Undoubtedly, there is a certain visceral attraction in the
majority’s position. We regularly defer to a state court’s inter-
pretation of that state’s statutes and constitutional provisions.
See Johnson v. Fankell, 520 U.S. 911, 916 (1997). However,
in such cases, the state court will have interpreted those stat-
utes and constitutional provisions to resolve actions pending
before the state court. In contrast, the issue of Eleventh
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Amendment immunity from suit in federal court is fundamen-
tally different, because state courts do not have cause to opine
on a matter that arises exclusively in the federal courts and
has no impact on the state court system.
II.
To support its position that the resolution of Eleventh
Amendment immunity presents a question of state law, the
majority incorrectly interprets two Supreme Court cases1 and
relies on a case from one of our sister circuits. However, both
Supreme Court precedent and our own Circuit precedent
firmly establish the principle that issues regarding Eleventh
Amendment immunity present questions of federal law.
A.
In my view, the majority misconstrues the decision in
Palmer v. Ohio, 248 U.S. 32 (1918). Employing certain lan-
guage from Palmer, the majority asserts that the "waiver of
sovereign immunity by a state constitutional provision or stat-
ute is a matter of state law, ‘as to which the decision of the
[state’s highest court] is controlling.’" Slip op. at 7 (quoting
Palmer, 248 U.S. at 34). According to the majority, this lan-
guage from Palmer instructs that issues of states’ immunity
are controlled by decisions of the states’ courts.
I conclude that the majority incorrectly applies the above
language from Palmer by isolating the quoted language from
its procedural and factual context. The petitioners in Palmer
attempted to sue the State of Ohio in state court for flood-
1The majority also quotes from Parden v. Terminal Railway of the Ala-
bama State Docks Department, 377 U.S. 184, 194 (1964) for the proposi-
tion that waiver of immunity is an issue of state law. However, the
quotation is misleading, because it refers not to the Court’s holding, or
even to its analysis, but comes from a recitation of the respondent’s argu-
ment.
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related damages caused by the elevation of a spillway of a
state-maintained dam. Id. at 33. Faced with the barrier of state
sovereign immunity, the petitioners relied on an amendment to
the state constitution. The Supreme Court of Ohio concluded
that the state constitution did not confer the state’s consent to
be sued in state court, and the petitioners appealed to the
Supreme Court of the United States. In dismissing the writ of
error for lack of jurisdiction, the Supreme Court stated that:
The right of individuals to sue a State, in either a
federal or a state court, cannot be derived from the
Constitution or laws of the United States. It can
come only from the consent of the State. Whether
Ohio gave the required consent must be determined
by the construction to be given to the constitutional
amendment quoted, and this is a question of local
state law, as to which the decision of the State
Supreme Court is controlling with this court, no fed-
eral right being involved.
Id. at 34 (citations omitted).
The decision in Palmer, therefore, is entirely consistent
with the principles stated in Alden. In a suit brought in a state
court against that state by certain of its citizens, the state’s
highest court undoubtedly is the final arbiter of the issue
whether the state has waived its state court immunity. Such a
suit does not present an issue of Eleventh Amendment immu-
nity from suit in federal court.
Relying on a misapplication of Palmer, however, the
majority seeks to distinguish the holding of Lapides v. Board
of Regents of the University System of Georgia. 535 U.S. 613
(2002). There, the Supreme Court employed the clear rule that
the issue "whether a particular set of state laws, rules, or
activities amounts to a waiver of the State’s Eleventh Amend-
ment immunity is a question of federal law." Id. at 623.
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The majority attempts to dismiss the import of this plain
statement by noting that the issue presented in Lapides
involved the process of removal of a case to federal court, a
state "activity." Considering itself bound by its reading of
Palmer, the majority concludes that it may not construe
Lapides to overrule Palmer "implicitly." Slip op. at 8. How-
ever, because Palmer does not have a substantive impact on
Lapides, the two decisions can be interpreted in a parallel
manner. Thus, the Supreme Court’s instruction in Lapides,
that the issue "whether a particular set of state laws . . .
amounts to a waiver of the State’s Eleventh Amendment
immunity is a question of federal law," is dispositive here.2
Lapides, 535 U.S. at 623.
B.
The decision in Lapides does not stand alone. Both before
and after the decision in Lapides, this Court has held that
"questions of [E]leventh [A]mendment immunity are ulti-
mately governed by federal law." Md. Stadium Auth. v.
Ellerbe Becket, Inc., 407 F.3d 255, 262 (4th Cir. 2005) (quot-
ing Ram Ditta v. Md. Nat’l Cap. Park and Planning Comm’n,
822 F.2d 456, 459-60 (4th Cir. 1987)); Gray v. Laws, 51 F.3d
426, 437 (4th Cir. 1995) (same). Nor are we the only circuit
to have so held. See Abusaid v. Hillsborough Cnty. Bd. of
Cnty. Comm’rs, 405 F.3d 1298, 1314 (11th Cir. 2005) ("[T]he
County confuses the state law doctrine of sovereign immunity
with the doctrine of Eleventh Amendment immunity governed
by federal law and applicable only in federal court.").
The only context in which a state court deciding the merits
2Because Palmer only addressed state court immunity rather than Elev-
enth Amendment immunity, any impact Palmer has on the question of
Eleventh Amendment immunity would be purely dicta. Thus, if the major-
ity is correct that the statement in Lapides is dicta, and we are required to
choose between dicta from a century ago in Palmer and dicta from a
decade ago in Lapides, I have little difficulty choosing the latter.
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of a state action can address Eleventh Amendment immunity
is in dicta. This, of course, is exactly what the Maryland Court
of Appeals has done in Board of Education of Baltimore
County v. Zimmer-Rubert, 973 A.2d 233 (Md. 2009). In that
case, the Maryland Court of Appeals faced a question of state
court immunity. For reasons that are not clear, the court
described its analysis as being one of Eleventh Amendment
immunity.3 Because the Eleventh Amendment was entirely
unrelated to answering the question before the court in
Zimmer-Rubert, the Maryland Court of Appeals’ commentary
on that issue was purely dicta. Further, because a state’s Elev-
enth Amendment immunity from suit in federal court is an
issue of federal, rather than of state law, this dicta in Zimmer-
Rubert is neither relevant to, nor informative of, the present
action.
I acknowledge that the analytic framework for resolving a
question of Eleventh Amendment immunity is somewhat of
an oddity in the law. It seems anomalous that the authoritative
interpretation of a state statute rests with the federal courts.
This result, however, is the unavoidable consequence of the
Supreme Court’s reasoning. In addition to the clear statement
set forth in Lapides, the Supreme Court’s analysis in Atas-
cadero likewise compels this conclusion.
The analysis used by the Supreme Court in Atascadero
underscores the federal nature of Eleventh Amendment
immunity questions. There, the Supreme Court instructed that
federal courts considering this issue focus their attention on
the language of the statute under review. "[I]n order for a
state statute or constitutional provision to constitute a waiver
3The Maryland Court of Appeals stated that "[t]he question before this
Court is, essentially, whether [the immunity provision] waives the Board’s
Eleventh Amendment immunity as to Zimmer-Rubert’s ADEA suit."
Zimmer-Rubert, 973 A.2d at 206-07. However, the only pertinent issue in
that case was the applicability of state court immunity. See Hilton, 502
U.S. at 204-05.
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of Eleventh Amendment immunity, it must specify the State’s
intention to subject itself to suit in federal court." Id. at 241
(first two emphases added). Thus, the plain language of the
statute or constitutional provision must "specify the State’s
intention to subject itself to suit in federal court." Id. (citation
and internal quotation marks omitted). See also Edelman v.
Jordan, 415 U.S. 651, 673 (1974) ("[W]e will find waiver
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." (internal quota-
tion marks omitted) (emphasis added)).
This strict requirement of Atascadero, that a statute specify
the state’s intent to subject itself to suit in federal court, exem-
plifies the federal nature of the Eleventh Amendment immu-
nity analysis. "The test for determining whether a State has
waived its immunity from federal-court jurisdiction is a strin-
gent one. Although a State’s general waiver of sovereign
immunity may subject it to suit in state court, it is not enough
to waive the immunity guaranteed by the Eleventh Amend-
ment." Atascadero, 473 U.S. at 241. As the Court noted in a
later case, federal courts must "indulge every reasonable pre-
sumption against waiver." College Sav. Bank v. Fl. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999).
In no portion of this guidance does the Supreme Court even
suggest that pronouncements from state courts play any role
in ascertaining a state’s immunity from suit in federal court.
Instead of applying the plain directive of Atascadero, the
majority relies primarily on a single, divergent circuit court
case.4 In Della Grotta v. State of Rhode Island, the First Cir-
4The majority also references Minotti v. Lensink, 798 F.2d 607 (2d Cir.
1986), which the majority asserts applied the Della Grotta analysis. How-
ever, unlike the decision in Della Grotta, the holding in Minotti did not
rely on any state court decisions because the Second Circuit concluded,
unsurprisingly, that there were no relevant state court decisions addressing
Eleventh Amendment immunity. 798 F.2d at 610-11; see also Huang, 902
F.2d at 1139 (same).
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cuit held that Rhode Island waived its Eleventh Amendment
immunity by statute, even though that statute did not meet the
standard for waiver established in Atascadero. 781 F.2d 343,
346-47 (1st Cir. 1986). The First Circuit concluded that
Rhode Island had consented to suit in federal court because,
in a prior case, a federal district court had certified the ques-
tion of Eleventh Amendment immunity with respect to that
same statute to the Rhode Island Supreme Court, which had
determined that Rhode Island in fact had waived its Eleventh
Amendment immunity.5 Id. (citing Laird v. Chrysler Corp.,
460 A.2d 425 (R.I. 1983)). In contrast to the principles
emphasized in Atascadero, Edelman, and Lapides, the deci-
sion in Della Grotta stands alone.
For these reasons, I conclude that the issue of waiver of
Eleventh Amendment immunity is a question of federal law.
Therefore, rather than rely on the analysis provided by the
Maryland Court of Appeals regarding the effect of the state
statutory immunity provision, I conclude that an independent
inquiry is required, using the analysis set forth in Atascadero.
III.
Although the majority and the Maryland Court of Appeals
cite the analyses of Atascadero and Edelman, neither the
majority nor the Maryland court follows the guidance pro-
vided by those decisions. In considering the Eleventh Amend-
ment waiver issue in Zimmer-Rubert, the Maryland Court of
Appeals instead compared the present statutory language that
a "county board of education may not raise the defense of
sovereign immunity to any claim of $100,000 or less," Md.
5Of course, because Eleventh Amendment questions are issues of fed-
eral law, the outlying nature of Della Grotta is easily explained by the
improper use of certification, which is designed to assist federal courts in
considering questions of state law. But for the certification request by the
federal district court in Laird, Rhode Island would not have confronted the
issue of Eleventh Amendment waiver, and Della Grotta would have
upheld Rhode Island’s immunity from suit in federal court.
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Code Cts. & Jud. Proc. Ann. § 5-518(c) (emphasis added),
with a different immunity provision reviewed in Maryland v.
Sharafeldin, 854 A.2d 1208 (Md. 2004). There, the provision
at issue stated, in relevant part, that certain governmental enti-
ties cannot "raise the defense of sovereign immunity in a con-
tract action, in a court of the State, based on a written contract
. . . ." Md. St. Gov’t Code Ann. § 12-201 (emphasis added).
The Maryland Court of Appeals in Zimmer-Rubert relied
heavily on the differences in the phrases of these two statutes
emphasized above. Comparing the language at issue in Shara-
feldin to the immunity provision at issue in Zimmer-Rubert,
the Maryland court stated that "the General Assembly has not
demonstrated an intent to preserve its Eleventh Amendment
immunity" under the immunity provision. Zimmer-Rubert,
973 A.2d at 242 (emphasis added). The majority agrees with
this conclusion. Slip op. at 13-14.
In my view, this analysis misses the mark. It is not the
intention to preserve, but rather the intention to waive, that is
critical to the Eleventh Amendment analysis. See College Sav.
Bank, 527 U.S. at 682. Thus, the analysis in Zimmer-Rubert,
which distinguishes the statutory language at issue in Shara-
feldin from the language of the immunity provision, fails to
demonstrate the required "overwhelming implication" that
"leave[s] no room for any other reasonable construction."
Edelman, 415 U.S. at 673.
Here, the text of the immunity provision does not provide
a clear pronouncement by Maryland of its consent to be sued
in federal court. As was the case in Atascadero, the immunity
provision "does not specifically indicate the State’s willing-
ness to be sued in federal court." 473 U.S. at 241 (emphasis
added). Moreover, the immunity provision does not make any
reference whatsoever to federal courts or to lawsuits filed in
those courts. Cf. Kennecott Copper Corp. v. State Tax
Comm’n, 327 U.S. 573, 577-79 (1946) (holding that language
authorizing suit "in any court of competent jurisdiction" does
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not constitute valid consent to federal jurisdiction). While the
majority declines to adopt a rule that the words "federal court"
or "United States" must be employed in order to effectuate a
waiver of Eleventh Amendment immunity, slip op. at 14, no
waiver provision that has failed to employ those words, at
least by implication, has survived Supreme Court scrutiny.6
IV.
Although the Zimmer-Rubert analysis may be a sufficient
exercise in statutory construction were no presumption
involved, the strong presumption against waiver in the Elev-
enth Amendment context compels me to conclude that Mary-
land’s Eleventh Amendment immunity has not been waived
by the immunity provision. In my view, to hold otherwise
yields the result that this Court is bound by a state court’s
erroneous interpretation of federal law. Thus, I would reverse
the decision of the district court and enter final judgment in
favor of Prince George’s County Public Schools.
6In Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299 (1990),
the Supreme Court concluded that the state waived Eleventh Amendment
immunity based on the interplay between the immunity provision and the
relevant venue provision, the latter of which "expressly indicate[d] that the
State’s consent to suit extend[ed] to federal court." Id. at 307.
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