Rouse v. Fader

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

LATASHA ROUSE, et al., :

Plaintiffs, =

v. * Civ. No. JKB-22-0129

MATTHEW FADER, et al., *

Defendants. *

□□

x * te te x xe x * * * *

MEMORANDUM

Now before the Court are Plaintiffs’ Motion for Leave to File Second Amended Complaint

(“Motion for Leave to Amend”), (ECF No. 72), and Defendants’ Motion for Summary Judgment,

(ECF No. 73). The motions are fully briefed, and no hearing is required. See Local Rule 105.6

(D. Md. 2023).

For the reasons below, Defendants’ Motion for Summary Judgment will be granted and

Plaintiffs’ Motion for Leave to Amend will be denied. A separate order will issue to effectuate

this decision.

1 BACKGROUND

From its inception, this case has focused largely on allegations that Defendants, a rotating

cast of Maryland state officials, failed adequately to protect the interests of Plaintiffs—three

married couples, each with one spouse who, at all relevant times, was on active-duty military

service—by allowing judicial process to run against them, contrary to various legal safeguards for

active-duty servicemembers. Among these safeguards is the Servicemembers Civil Relief Act

(“SCRA”), which “provide[s] for the temporary suspension of judicial and administrative

proceedings and transactions that may adversely affect the civil rights of servicemembers during

their military service.” 50 U.S.C. § 3902(2); see generally id. §§ 3901-4043. After nearly three

years of litigation in this Court, Plaintiffs’ case is substantially narrowed, such that the SCRA is

the only remaining source of rights Plaintiffs allege to have been violated.

The prelitigation facts and early procedural history are set out at length in the Court’s

Memorandum dated March 20, 2024. See (ECF No. 58 at 3-8), reproduced as Rouse v. Moore,

Civ. No. JKB-22-0129, 2024 WL 1216475, at *2—-4 (D. Md. Mar. 20, 2024). An abridged version

follows below, along with a brief account of the most recent developments in this litigation.

A. Prelitigation Facts

Plaintiffs are three married couples: Latasha and Exabia Rouse, Daniel and Jessica Riley,

and Oscar and Sherryl Davines. (ECF No. 58 at 1, 3.) At separate times, each couple entered a

“purported contract for consumer goods” with one George LeMay. See (id. at 3 (citation omitted)).

LeMay later sued in various state courts to enforce these agreements, winning money judgments

on each. See (id. at 3-4). There was serious reason to doubt the judgments’ validity. See (id.).

Nevertheless, between June 2020 and June 2021, LeMay registered all three judgments in the state

courts of Maryland, a State with which Plaintiffs had no prior connection. See (id. at 3-4).

After registering the foreign judgments, LeMay repeatedly petitioned the Maryland courts

for writs of garnishment against the three couples. (ECF No. 58 at 4.) Most of these petitions

succeeded. See (id. at 4-5). The initial garnishment proceedings were ex parte, with the couples

unaware of what was happening until after the first writs had issued. (/d. at 4-5.) LeMay did not

file, and the presiding courts did not require, affidavits addressing whether the couples included

any active-duty servicemembers. (Id. at 5.) Nor did the courts appoint counsel for the couples,

leaving them instead to obtain counsel at their own expense—again, only after they learned of the

proceedings. (/d.) As alleged, these acts violated the SCRA. See (id. at 8-10, 15, 20, 34).

Each couple faced significant collections activity as a result. Before July 19, 2021, when

the Garrett County district court vacated the foreign judgment against the Rouses, the couple was

“subjected to at least 28 days of improper collection conduct,” including the freezing of their

accounts. (ECF No. 58 at 5 (citation omitted).) For over a year until October 2021, when the

Anne Arundel County district court dismissed LeMay’s case against the Rileys, LeMay won four

writs of garnishment and two subpoenas, causing certain of the Rileys’ accounts to be frozen as

well. (/d.) And before January 31, 2023, when that same court vacated the foreign judgment

against the Davineses, LeMay won at least two of the five writs he sought. (/d.)

B. Procedural History

Plaintiffs commenced this action on January 18, 2022. (ECF No. 1.) They named LeMay

as the primary defendant, alleging violations of the SCRA and various state consumer protection

laws. (ECF No. 58 at 5—6.) In January 2023, Plaintiffs settled with LeMay, e.g., (ECF No. 37 at

1), shortly after which the Court dismissed LeMay from the case with prejudice, (ECF No. 41).

In their initial complaint, Plaintiffs also named, in his official capacity, then—Maryland

Governor Lawrence Hogan. See (ECF No. 1). They alleged violations of the SCRA, the

Supremacy Clause, and the Due Process Clause of the Fourteenth Amendment. See (id. at {J 181—

202). In late January 2023, pursuant to Federal Rule of Civil Procedure 25(d), Hogan was replaced

by current Governor Wes Moore. (ECF No. 58 at 6 n.4 (citing ECF No. 36).)

In March 2023, Plaintiffs filed an Amended Complaint. See (ECF No. 42). They continued

to name Moore as a defendant in his official capacity. (/d.) Additionally, they named the justices

of the Supreme Court of Maryland, also in their official capacities: Chief Justice Matthew Fader

and Justices Steven Gould, Brynja Booth, Shirley Watts, Michele Hotten, Jonathan Biran, and

Angela Eaves (collectively, “Justices”). (/d.) Against each of these governmental defendants,

Plaintiffs reasserted their prior allegations regarding the SCRA, the Supremacy Clause, and the

Due Process Clause. See (ECF No. 42 at 9 162-87); see also (ECF No. 58 at 6 & n.5).

In early April 2023, Defendants moved to dismiss the Amended Complaint. See (ECF No.

46). Plaintiffs then opposed Defendants’ motion and sought partial summary judgment on certain

questions of law. See (ECF No. 49 at 1, 17-18).

The Court addressed both motions in a Memorandum and Order dated March 20, 2024.

See (ECF Nos. 58-59). The Court concluded Plaintiffs satisfactorily alleged their SCRA rights

were violated when the Maryland courts issued writs of garnishment and subpoenas without

following the procedures of 50 U.S.C. § 3931. See (ECF No. 58 at 20, 36-37). But the Court also

dismissed Plaintiffs’ claims to the extent they (1) were brought against Maryland Governor Wes

Moore; (2) sought injunctive or declaratory relief; (3) sought to expunge state judicial records; (4)

alleged violations of the Supremacy or Due Process Clauses by the state Uniform Enforcement of

Foreign Judgments Act, Md. Code Ann., Cts. & Jud. Proc. §§ 11-801 to -807; or (5) were brought

against the Justices based on decisions made in their legislative capacities as drafters of the

Maryland Court Rules. See (ECF No. 58 at 36-37; ECF No. 59 at 1).

What remained was a single official-capacity claim against the Justices, brought under the

SCRA, seeking actual damages based on the Justices’ alleged violations of the same—but only to

the extent those violations were caused by acts outside the Justices’ legislative (and judicial) roles.

See (ECF No. 58 at 31-37). The Court directed the parties to determine whether Plaintiffs’ much-

narrowed case would require additional discovery or invite further dispositive motions. See (id. at

37; ECF No. 59 at 1-2). Based on their responses, see (ECF No. 62), the Court set a handful of

additional deadlines: one for Plaintiffs to seek leave to amend their complaint a second time, and

three more for briefing on an expected dispositive motion by Defendants. See (ECF Nos. 63-64,

71). From these came the two motions before the Court today. See (ECF Nos. 72-73).

Notwithstanding Plaintiffs’ pending request to amend a second time, see (ECF No. 72), the

Amended Complaint remains the operative pleading. And apart from the substitution of Justice

Peter K. Killough for Justice Michele Hotten, see (ECF No. 76), the parties to this matter remain

the same as when the Court addressed the last dispositive motions. See (ECF No. 58).

Il. LEGAL STANDARDS

A. Motion for Summary Judgment

To earn summary judgment, the moving party must articulate a legally valid claim for relief

and show “no genuine dispute as to any material fact” in support of that claim. See Fed. R. Civ.

P. 56(a). The nonmoving party must then respond by “set[ting] forth specific facts showing that

there [remains] a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986); see also Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003).

At each stage, the Court views the facts and draws reasonable inferences in the light most favorable

to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). If the Court determines that a

reasonable jury could find in that party’s favor, summary judgment will be denied. See Anderson,

477 U.S. at 248. But the nonmoving party cannot rest on mere denials. It must set out its own

specific facts showing a genuine dispute. Bouchat, 346 F.3d at 525 (citation omitted). This

requires more than a “scintilla of evidence.” Anderson, 477 U.S. at 252.

B. Motion for Leave to Amend

At this juncture, Plaintiffs “may amend [their] pleading only with the opposing party’s

written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).! Even where, as here, the opposing

party does not consent, see generally (ECF No. 73 at 23-27), the Court must still “freely give leave

when justice so requires.” Fed. R. Civ. P. 15(a)(2). This is a relatively generous standard:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper

' The Federal Rules also permit a party to amend its pleading “once as a matter of course” within twenty-one days of

serving that pleading, Fed. R. Civ. P. 15(a)(1), or, if a responsive pleading is required, within twenty-days of service

of (1) the responsive pleading or (2) a responsive motion made under Rule 12(b), (e), or (f), whichever is earlier, Fed.

R. Civ. P. 15(a)(2). Because these deadlines have long elapsed, see (ECF No. 12 at 19 (Defendants’ Answer, served

on March 14, 2022); ECF No. 46 (Defendants’ pre-answer Motion to Dismiss Plaintiffs’ Amended Complaint, served

via CM/ECF on April 7, 2023)), Plaintiffs’ Motion for Leave to Amend is governed instead by Rule 15(a)(2), which

addresses “‘all other cases” in which a party seeks to amend its pleadings.

subject of relief, he ought to be afforded an opportunity to test his claim on the

merits. In the absence of any apparent or declared reason—such as undue delay,

bad faith or dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of amendment, etc.—the

leave sought should, as the rules require, be “freely given.”

Foman vy. Davis, 371 U.S. 178, 182 (1962). In applying this standard, however, the Court retains

broad discretion, “so long as it does not outright refuse ‘to grant the leave without any justifying

reason.” Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (quoting

Foman, 371 U.S. at 182).

II. ANALYSIS

For the reasons below, Defendants’ Motion for Summary Judgment will be granted, and

Plaintiffs’ Motion for Leave to Amend will be denied.

A. Defendant’s Motion for Summary Judgment

Defendants’ argument for summary judgment is straightforward. The Court previously

declined to dismiss Plaintiffs’ SCRA claim against the Justices, but only to the extent the claim

rested on the Justices’ nonjudicial, nonlegislative acts, if any. See (ECF No. 58 at 33-37). In

Defendants’ view, Plaintiffs do not—and cannot—identify any relevant nonjudicial, nonlegislative

acts. See (ECF No. 73-1 at 19-20). Asa result, whatever acts Plaintiffs do identify are inadequate

to overcome the Justices’ various individual immunities.* See (id.)

Although the question is a close one, touching on sensitive issues of public power and

accountability, the Court is persuaded by this argument. Defendants’ Motion for Summary

* The Court often imposes an additional good-cause requirement for leave to file non—matter-of-course amendments,

at least when leave is sought after the relevant Court-mandated deadline. Here, however, Plaintiffs sought leave prior

to the Court’s deadline of June 24, 2024. See (ECF Nos. 71—72). Accordingly, no showing of good cause is required.

3 These immunities, which include absolute legislative and judicial immunities, are also called “personal immunities,”

e.g., Lewis v. Clarke, 581 U.S. 155, 163 (2017), and “official immunities,” given their connection to their holders’

duties as government officers, e.g., Forrester v. White, 484 U.S. 219, 223-24 (1988). For purposes of this decision,

the Court refers to them only as “individual immunities.”

Judgment will be granted.

L. The Court Previously Declined to Dismiss Plaintiff's SCRA Claim Against

the Justices, But Only to the Extent Plaintiffs Pled Injuries Caused by the

Justices Acting in a Relevant Nonlegislative, Nonjudicial Capacity.

This is not the first time the Court has addressed the propriety of anchoring a claim to the

Justices’ official conduct. Upon consideration of the parties’ earlier dispositive motions, the Court

characterized Plaintiffs’ case against the Justices this way:

Plaintiffs contend that the Justices are liable as members of the government entity

responsible for ‘“appoint[ing] members of the Rules Committee,”

“recommend|ing]... changes to the Maryland Rules,” and “adopt[ing]

amendments... and new rules of civil procedure that apply to every state court

within Maryland.” [(ECF No. 42 at § 28 (citation omitted).)]| The Justices are

allegedly responsible for “the enforcement and application of the statutes and

Maryland Rules at issue in this matter.” (/d. at § 169.) Plaintiffs allege that Chief

Justice Fader has “overall responsibility for the administration of the courts of the

State,” and argue that this makes him a proper Defendant. (/d. at § 28 [(citation

omitted)].)

(ECF No. 58 at 7 (citations altered for clarity).) Based on those contentions, in conjunction with

the facts Plaintiffs alleged at the time, the Court observed that Plaintiffs sued the Justices primarily

“for their role in promulgating and enforcing the Maryland Rules”—not for their role in deciding

cases, nor for any other activity. See (id. at 31-32).

The Court subsequently dismissed that element of Plaintiffs’ claim. Because the Justices

‘“exercis[ed] the State’s entire legislative power’ in promulgating the Maryland Rules,” they were

entitled to invoke legislative immunity with respect to any decisions involving the adoption or

non-adoption of the same. See (ECF No. 58 at 33-34 (citation omitted)). To the extent Plaintiffs’

claim sought relief from acts within that “sphere of legitimate legislative activity,” (id. at 34

(citation omitted)), that part of their claim was barred. See (ECF No. 59 at 1).

But another part of Plaintiffs’ claim remained. As the Court put it at the time,

Plaintiffs[] have not sued the Justices merely based on the promulgation of the

Maryland Rules. The Plaintiffs also object to actions taken pursuant to those Rules,

actions this Court has already determined violate the SCRA. Plaintiffs argue that

the Justices have “some connection to enforcement” and note that the Chief Justice

is the “administrative head of the judicial system of the state.” (ECF No. 49 at 30,

44 |(citation omitted)].)

(ECF No. 58 at 34 (emphasis in original) (citation altered for clarity).) The Court acknowledged □

at least some reason to believe “the power of the Maryland courts goes beyond legislative or

adjudicative power.” (/d. at 35.) And it observed that, to the extent the Justices exercised any

such power, they would be acting in an enforcement capacity, unprotected by legislative or judicial

immunities. (/d.)

Based on the record at the time, however, the Court was unable to conclude whether the

Justices in fact had an enforcement role, let alone one relevant to the alleged SCRA violations.

See (ECF No. 58 at 36 (observing that Plaintiffs’ thin assertions, along with the parties’ briefing

directed mainly to other topics, left the Court “with more questions than answers”)). The result

was that Plaintiffs’ SCRA claim survived—if just barely. (/d. (“Plaintiffs have stated a claim upon

which relief may be granted, no more.” (emphasis in original)).) Defendants’ pending Motion for

Summary Judgment addresses the residue of that claim. See generally (ECF No. 73-1).

2 On_ the Remainder of Plaintiffs’ SCRA Claim Against the Justices,

Defendants Have Met Their Burden for Summary Judgment.

Defendants’ argument for summary judgment proceeds in three steps. First, Defendants

state that, far from identifying an enforcement capacity, Plaintiffs “identif[y] no specific action,

other than promulgating rules, that the Justices should (or even could) have taken to safeguard

[Plaintiffs’] rights under the SCRA.” (ECF No. 73-1 at 19); see generally (id. at 18-21; ECF No.

75 at 3-4). Second, they reiterate that Plaintiffs’ sole theory of causation—the Justices’ alleged

failure to promulgate more protective rules—is foreclosed by legislative immunity. (ECF No. 73-

1 at 19-20); see generally (id. at 16-24; ECF No. 75 at 2-7). Third, they rely implicitly on the

proposition that the Justices’ individual immunities inure to the benefit of the State in an official-

capacity suit. See (ECF No. 73-1 at 16-18).

On Plaintiffs’ remaining claim, Defendants have met their burden for summary judgment.

They have shown they are entitled to judgment as a matter of law, and that there exists no genuine

issue of material fact that might otherwise preserve Plaintiffs’ case. The Court addresses each

element of Defendants’ argument below.

fi Defendants Have Shown the Justices’ Responsibilities Are Highly

Limited, and that, in Any Event, Only One of Those Responsibilities

Bears Any Relationship to Plaintiffs’ SCRA Claim.

As Defendants explain, the Justices’ duties are broad but few. Their “principal role” is to

decide cases on appeal from the lower courts of the State. (ECF No. 73-1 at 11); see generally

Md. Const. art. IV, §§ 1, 14; Md. Code Ann., Cts. & Jud. Proc. §§ 12-101 to -702; Md. Rules 8-

101 to-611. They are also required to develop rules governing the procedure in and administration

of all the State’s courts. See Md. Const. art. IV, § 18(a); see generally Md. Code Ann., Cts. & Jud.

Proc. § 1-201. And they “may appoint such officers... as may be found necessary” for the

operation of their own court. See id. § 9. While various statutes clarify the scope and operation

of these responsibilities, see (ECF No. 73-1 at 11—12), in general, the Justices’ authority ends there.

As “the administrative head of the Maryland judicial system,” the chief justice holds duties

beyond those of the other Justices. See (ECF No. 73-1 at 12); see generally Md. Const. art. IV,

§ 18(b)(1)-(5); Md. Rule 16-102. Many of these additional duties involve personnel—namely,

“appointing, designating, assigning, and approving the appointment of” people to various judicial

posts, including judgeships. (ECF No. 73-1 at 12 (citing Md. Const. art. IV, §§ 3A, 18(b)(2); Md.

Code Ann., Cts. & Jud. Proc. §§ 1-302, -607, 3-806 to -807, 13-101(a)(b); Md. Rules 16-102(b),

-104(a), -105(a), -108(b)).) The chief justice also sets the rates of pay for employees in the circuit

courts clerks’ offices, Md. Code Ann., Cts. & Jud. Proc. § 2-505, and reviews “personnel policies

and procedures applicable to employees” throughout Maryland’s judiciary, Md. Rule 16-806.

Defendants likewise note his role in providing “direction to certain people in the execution of their

administrative duties,” (ECF No. 73-1 at 12)—an oblique reference to his broad authority over the

administration of the State’s courts. See, e.g., Md. Rules 16-103, -111. Other miscellaneous duties

include chairing the state Judicial Council, Md. Rule 16-110, approving circuit courts’ case

management plans, Md. Rule 16-302, overseeing the preparation of continuity-of-operations plans,

Md. Rule 16-803, and “receiv[ing] and review[ing] reports regarding the work and business of the

Maryland judiciary,” (ECF No. 73-1 at 13 (citing Md. Const. art. IV, § 18(b)(1); Md. Code Ann.,

Cts. & Jud. Proc. § 2-504.1; Md. Rules 16-302, 18-602)).

Of all these collective responsibilities, just one bears a plausible relationship to Plaintiffs’

SCRA claim. Plaintiffs’ alleged injuries arise out of judicial proceedings, not court administration,

which means responsibilities with no connection to proceedings—like courthouse administrative

duties—cannot support Plaintiffs’ theory. See (ECF No. 42 at § 7). On top of that, Plaintiffs assert

the Justices failed to prevent harm, not that they failed to rectify it after the fact, (id. at 4 169), as

evinced by statements like “[t]he State of Maryland has the burden [of] protect[ing] non-

residents . . . before making them subject to court proceedings in the state,” (id. at | 44 (emphasis

added)), “Maryland law does not require a party seeking to obtain a [writ of garnishment] . . . to

provide any evidence that the judgment debtor/defendant is not an active-duty servicemember,”

(id. at {46 (emphasis added)), and “the State of Maryland’s laws and procedures permitted the

conduct against the Plaintiffs complained of in this action,” (id. at {51 (emphasis added)). Only

the Justices’ rules-related responsibilities, such as they are, connect with actual proceedings and

support Plaintiffs’ forward-looking theory of liability. And indeed, this is the only responsibility

Plaintiffs marshal in support of their case. See, e.g., (id. at § 4, 7, 11, 29).

On this score, the Court ultimately agrees with Defendants: aside from promulgating rules,

it is unclear what rules-related actions the Justices themselves “should (or even could) have taken

to safeguard [Plaintiffs’] rights.” See (ECF No. 73-1 at 19-20). The authorities that delineate the

10

Justices’ collective responsibilities offer no indication of an “enforcement capacity” with respect

to the rules—only a capacity to create, amend, or withdraw those rules, or to regulate the process

by which such actions are taken. See Md. Const. art. IV, § 18(a); Md. Code Ann., Cts. & Jud.

Proc. §§ 13-301 to -303; Md. Rule 16-701. So, for whatever enforcement duties the Justices may

hold in their portfolios, see (ECF No. 58 at 34-36), Defendants have shown there exists no such

duty where Plaintiffs’ theory of harm is concerned.

ii. Defendants Have Shown that, as a Matter of Law, Suits Concerning

the Justices’ Rules-Related Responsibilities are Barred by

Legislative Immunity.

Having been persuaded by Defendants’ argument that the Justices lack an enforcement

capacity concerning the Maryland Court Rules, the Court considers the availability of individual

immunities with respect to the rules responsibilities the Justices do have. Again, these include

only a capacity to create, amend, or withdraw the rules, or to regulate the process by which those

actions are taken. See Md. Const. art. IV, § 18(a); Md. Code Ann., Cts. & Jud. Proc. §§ 13-301 to

-303; Md. Rule 16-701.

As the Court made clear in its prior decision, see (ECF No. 58 at 33), legislative immunity

“attaches to all actions taken ‘in the sphere of legitimate legislative activity.” Bogan v. Scott-

Harris, 523 U.S. 44, 54 (1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)). That

means it shields all “integral steps in the legislative process,” even if taken by non-legislators, and

even if taken under authorities legislators could never hold. See id. (noting that legislative

'

immunity shields, among other things, the executive veto function). This roomy standard reaches

everything the Justices may (or may not) do with respect to formulating the content of the rules.*

“It is of no moment that the rules are promulgated not by the Justices alone, but with the assistance of their appointees

on the Rules Committee, a standing body of legal professionals authorized to “aid in the exercise of [the Justices’]

rulemaking powers.” Md. Code Ann., Cts. & Jud. Proc. § 13-301. It is well settled that legislative immunity “covers

all those properly acting in a legislative capacity, not just actual officeholders.” EEOC v. Wash. Suburb. Sanitary

Comm'n, 631 F.3d 174, 181 (4th Cir. 2011) (citing Consumers Union, 446 U.S. at 731-34).

1]

In support of this point, Defendants cite persuasively to the Supreme Court’s decision in

Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719 (1980). See

(ECF No. 73-1 at 16-17). In that case, plaintiffs brought an action for injunctive and declaratory

relief against, among others, the state supreme court and its chief justice, in both his individual and

official capacities. Consumers Union, 446 U.S. at 721, 725-26. In short, plaintiffs feared their

attempts to create a legal services directory would run afoul of a provision of the state bar code

that prohibited attorney advertising. See id. at 724-25. They also believed that provision violated

their First and Fourteenth Amendment rights. /d. at 726. So, they sued in federal court to enjoin

against its future enforcement. Jd. The district court, sitting as a panel of three judges, granted

relief. See id. at 727-28.

On direct appeal, the Supreme Court largely affirmed. To start, it made clear that, to the

extent plaintiffs’ suit was founded on “the issuance of, or failure to amend, the challenged rules,”

it was barred by legislative immunity. Consumers Union, 446 U.S. at 734. But it also observed

that the state supreme court “performs more than a legislative role with respect to the State Bar

Code.” Jd. Specifically, it “hears appeals from lower court decisions in disciplinary cases, a

traditional adjudicative task; and in addition, it has independent enforcement authority of its own.”

Id. This “independent enforcement authority” consisted of an “inherent power to discipline

attorneys” as well as a statutory power to initiate disciplinary proceedings against members of the

state bar. Jd. at 724 (“[The statute] provides that if the [supreme court] or any other court of record

observes any act of unprofessional conduct, it may itself, without any complaint being filed by the

State Bar or by any third party, issue a rule to show cause against the offending attorney.”

(emphasis added)). The existence of this independent, quasi-prosecutorial power led the Supreme

Court to conclude “that the [state supreme court] and its chief justice properly were held liable in

their enforcement capacities.” Jd. at 736; see also (ECF No. 58 at 34).

12

There is no indication the Justices hold an analogous enforcement role with respect to the

Maryland Court Rules. See supra Section III.A.2.i; see generally Md. Rules 18-401 to -442

(setting out Maryland’s judicial disciplinary procedures, which seem to give the Justices only an

adjudicative role, see Md. Rule 18-437, not a quasi-prosecutorial one). But even if there were such

an enforcement function, the nub of Plaintiffs’ claim is that there is no rule to be enforced. See,

e.g., (ECF No. 42 at §§ 44, 46, 51, 169). Insofar as Plaintiffs’ claim centers on the absence of a

prophylactic rule, Consumers Union forecloses relief. This is because the Justices “exercis[e] the

State’s entire legislative power with respect to regulating” Maryland’s judicial procedure, making

them “the State’s legislators for the purpose of issuing” the Maryland Court Rules. See Consumers

Union, 446 U.S. at 734; Md. Const. art. [V § 18(a). And acts taken in that capacity are wholly

immune from suit. See Consumers Union, 446 U.S. at 734; see also (ECF No. 58 at 33-34, 36).

Because Defendants have shown Plaintiffs’ theory to involve acts taken only in that capacity,

individual immunity attaches to all acts relevant to Plaintiffs’ claim.

iil. As a Matter of Law, Individual Immunity from Suit over the Justices’

Rules-Related Responsibilities Inures to the Benefit of the State.

The Court must now decide whether the State can avail itself of the Justices’ individual

immunities, This is because Plaintiffs’ lone remaining claim is brought against the Justices in their

official capacities. See (ECF No. 42 at 429; ECF No. 59 at 1). And official-capacity suits

“generally represent only another way of pleading an action against an entity of which an officer

is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citation omitted). As a result, “a

plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the

government entity itself’ for payment, id. at 166 (emphasis added), making the State of Maryland

the real party in interest in this case.*

Personal-capacity suits, by contrast, “seek to impose personal liability upon a government official for actions he

takes under color of state law.” Graham, 473 U.S. at 165. Any damages award “can be executed only against the

13

It may feel obvious that legislative acts are not a proper subject of suit. After all, individual

immunities attach based on “the nature of the function performed, not the identity of the actor who

performed it.” Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (citation omitted). And because they

attach to those who perform certain functions, when they perform those functions, see id., it is

natural to think that what immunities shield are the functions themselves, not merely those who

discharge them. Cf, e.g., Malley v. Briggs, 475 U.S. 335, 342 (1986) (recognizing an absolute

immunity “not from an exaggerated esteem for those who perform th[at] function[], and certainly

not from a desire to shield abuses of offices, but because any lesser degree of immunity could

impair the . . . process itself” (citation omitted)). On that view, a State could not be made to answer

for its officials’ protected acts, separate and apart from those officials’ freedom from personal

liability. Policy considerations favor such a result. See, e.g., Eastland v. U.S. Servicemen’s Fund,

421 U.S. 491, 503 (1975) (“Private civil actions . . . may be used to delay and disrupt the legislative

function.”); Bogan, 523 U.S. at 54-55 (“[I]t simply is ‘not consonant with our scheme of

government for a court to inquire into the motives of legislators.” (quoting Tenney, 341 U.S. at

377)). And neither party offers serious reason to doubt it.°

But the question is more difficult than it first appears. On top of the peculiar confluence

of features that sharply limits the availability of controlling precedent in this case,’ other courts

have discussed the applicability of individual immunities in ostensibly conflicting ways, leaving

‘this Court to reconcile seemingly inconsistent statements of law.

To start, the Supreme Court observed in Kentucky v. Graham that because an official-

official’s personal assets.” Jd. at 165-66.

6 Plaintiffs offer only the cursory assertion that “[t]he legal defenses raised by the State simply do not apply to the

State generally.” (ECF No. 74 at 29.)

7 These features include the suit being one for damages, (ECF No. 42 at 1), brought against functionally legislative

officials in their official capacities, supra Section III.A.2.ii, in a context in which the State lacks sovereign immunity,

(ECF No, 58 at 26-31).

14

capacity damages suit “is not a suit against the official personally,” official-capacity defendants

may not invoke individual immunities. 473 U.S. at 166-67 (dictum) (emphasis in original); accord

Lewis v. Clarke, 581 U.S. 155, 162-63 (2017). This includes both the absolute immunities

associated with certain public roles, like that of a prosecutor in their capacity as advocate, as well

as the qualified immunity that shields other government officials. See Graham, 473 U.S. at 166—

67 (collecting cases). Accordingly, “[t]he only immunities that can be claimed in an official-

capacity action are forms of sovereign immunity that the entity, gua entity, may possess.” □□□ at

167 (dictum); accord Lewis, 581 U.S. at 163; Hafer v. Melo, 502 U.S. 21, 25 (1991); see also Bd.

of Cnty. Comm'rs, Wabaunsee Cnty. v. Umbehr, 518 U.S. 668, 677 n.* (1996). Although Graham

concerned a suit against an executive official, 473 U.S. at 161-62, and primarily relied upon cases

involving the same, see id. at 166-67, it made no attempt to cabin its rule to that context. Following

the principle here would wholly undercut Defendants’ assertions of individual immunities, see

(ECF No. 73-1 at 16-21, 24; ECF No. 75 at 5-12), as well as this Court’s prior rulings on that

subject, see (ECF No. 58 at 31-36).

But at least one decision appears to have reached the opposite result. As explained above,

Consumers Union affirmed the lower court’s conclusion that “the [state supreme court] and its

chief justice properly were held liable in their enforcement capacities.” 446 U.S. at 736. Yet the

Supreme Court took umbrage with a separate part of the lower court’s reasoning—namely, its

choice to award attorneys’ fees based on the state court’s “continued failure and apparent refusal

to amend [the bar code] to conform with constitutional requirements.” /d. at 728-29 (citation

omitted). Even though the fees were to be paid from public treasury funds, not by the defendants

themselves, the Supreme Court vacated the award for being “premised on acts or omissions for

which [the defendants] enjoyed absolute legislative immunity.” 446 U.S. at 738-39. The court

also noted that, although Congress could have abrogated the immunity, there was no indication it

15

intended to do so in the fee statute. Jd. at 738. In the end, the court determined it would “run|[]

counter” to the defendants’ individual immunities “for a district court’s [award] to be guided by

considerations centering on the exercise or nonexercise of the state court’s legislative powers.” Jd.

at 739.

Under the yoke of these conflicting lines of authority,® lower courts have not always ruled

consistently. Every geographic circuit has either stated or employed the principle that individual

immunities are unavailable in official-capacity suits.? Yet at least one has circuit has expressly

stated the opposite, see Scott v. Taylor, 405 F.3d 1251, 1256-57 (11th Cir. 2005) (dictum), as have

multiple judges of this Court, see, e.g., Lemon v. Hong, Civ. No. ELH-16-0979, 2016 WL

3087451, at *4 (D. Md. June 2, 2016), aff'd, 671 F. App’x 79, 79-80 (4th Cir. 2016) (per curiam);

Westfall v. Tichnell, Civ. No. GJH-20-0271, 2021 WL 2434432, at *3 (D. Md. June 15, 2021);

Racine v. Cecil County, 843 F. Supp. 53, 55 (D. Md. 1994). And while some of this discrepancy

may be the result of judges and litigants who “discuss immunity defenses without clearly

articulating to whom and in which capacity those defenses apply,” Turner v. Houma Mun. Fire &

8 Although the law of individual immunities has developed mainly in the context of 42 U.S.C. § 1983 actions against

local governments and state and local officials, the Court sees no reason to question the applicability of those principles

here. The Supreme Court has repeatedly acknowledged immunity doctrine’s common-law roots and trans-substantive

applicability. See, e.g., Tenney, 341 U.S. at 372-76; Bradley v. Fisher, 80 U.S. 335, 347 (1871); Clinton v. Jones,

520 U.S. 681, 692-93 & n.18 (1997); Imbler v. Pachtman, 424 U.S. 409, 418 (1976) (stating that § 1983 “is to be read

in harmony with general principles of tort immunities and defenses”). And it appears always to have spoken of

immunity in general terms, disconnected from any specific rights or rights of action. See, e.g., Nixon v. Fitzgerald,

457 U.S. 731, 749 (1982) (referring to immunity from “damages liability”); Harlow v. Fitzgerald, 457 U.S, 800, 818

(1982) (“liability for civil damages”); Bradley, 80 U.S. at 357 (“liab[ility] to answer in damages”); Jones, 520 U.S. at

692 (“suits for money damages”); /mbler, 424 U.S. at 431 (“civil suit[s] for damages”); Butz v. Economou, 438 U.S.

478, 514 (1978) (“damages liability”); Lake Country Ests., Inc. v. Tahoe Reg’! Plan. Agency, 440 U.S. 391, 405 (1979)

(“recovery of damages”).

See, e.g., Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 705 (Ist Cir. 1993); Ying Jing Gan v. City of New

York, 996 F.2d 522, 529 (2d Cir. 1993); Lonzetta Trucking & Excavating Co. v. Schan, 144 F. App’x 206, 211 & n.3

(3d Cir. 2005) (unpublished decision); Hughes v. Blankenship, 672 F.2d 403, 405—06 (4th Cir. 1982); Turner v. Houma

Mun. Fire & Police Civ. Serv. Bd., 229 F.3d 478, 482-86 (5th Cir. 2000); Top Flight Ent., Lid. v. Schuette, 729 F.3d

623, 633-34 (6th Cir. 2013); Capra v. Cook Cnty. Bd. of Rev., 733 F.3d 705, 711-12 & n.4 (7th Cir. 2013); VanHorn

v. Oelschlager, 502 F.3d 775, 778-79 (8th Cir. 2007); Schmidt v. Contra Costa County, 693 F.3d 1122, 1131 n.10

(9th Cir. 2012); Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1156 (10th Cir. 2011); Kimberly Regenesis, LLC

v. Lee County, 64 F.4th 1253, 1259-60 (11th Cir. 2023); Daskalea v. District of Columbia, 227 F.3d 433, 449 (D.C.

Cir. 2000).

16

Police Civ. Serv. Bd., 229 F.3d 478, 485 & n.12 (5th Cir. 2000), at least a few courts have

acknowledged, and have even sought to reconcile, the tension between Graham and Consumers

Union. See, e.g., Cushing v. Packard, 30 F.4th 27, 39-40 (1st Cir. 2022) (holding no conflict

because Graham concerned damages while Consumers Union concermed prospective relief); Scott,

405 F.3d at 1254-55 & n.6 (same); State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71,

84—88 & n.9 (2d Cir. 2007) (same).

Given the substantial uncertainty around this weighty issue, the Court declines to break

new ground. Again, as relevant to Plaintiffs’ SCRA theory, the Court has determined the Justices’

relevant responsibilities consist only of promulgating rules of procedure—acts of an undeniably

legislative character. See supra Section III.A.2.i. To bar the invocation of individual immunities,

then, would be to subject the State to suit over conduct for which its officers would be individually

immune. See supra Section III.A.2.ii. The Court is unaware of a prior instance in which a private

party was permitted to recover damages from a State over even an affirmatively harmful law or

judgment, much less an insufficiently protective one. Nor have Plaintiffs provided examples of

any. Indeed, this was the line Consumers Union apparently refused to cross, albeit with respect to

fees, not damages. See id. at 738-39. And the Supreme Court has given no affirmative indication

it intends to depart from this principle, Graham having even cited approvingly to that part of

Consumers Union without acknowledging the tension between them. See 473 U.S. at 164 & n.8.

To be sure, there is a colorable argument that individual immunities ought not to apply. As

noted, Plaintiffs’ remaining claim is for damages only. See (ECF No. 42 at 55-56; ECF No. 59 at

1). And several decisions that reconcile Graham with Consumers Union do so on the basis of the

remedy sought, observing that Consumers Union dealt solely with the question of immunity from

prospective relief. See Cushing, 30 F.4th at 39-40; Scott, 405 F.3d at 1254-55 & n.6; State Emps.,

17

494 F.3d at 88.'° But see Scott, 405 F.3d at 1257 (noting, in dicta, that immunity would apply

“regardless of whether a suit seeks damages or prospective relief and regardless of whether the

[defendants] are named in their individual or official capacity”). Under that reading of Consumers

Union, individual immunities would be wholly irrelevant to Plaintiffs’ damages claim.

But the Court remains unconvinced. While damages awards based on executive acts are

“run-of-the-mill occurrences,” it would be a difference in kind, not degree, to award damages

based on legislative and judicial acts. See Consumers Union, 446 U.S. at 739. And Congress

“does not hide elephants in mouseholes.” See Whitman v. Amer. Trucking Assocs., 531 U.S. 457,

468 (2001) (cleaned up). Although Consumers Union did not deal squarely with the question of

damages (as opposed to fees), it does make clear that, as a default proposition, public money may

not be awarded based on acts for which public officials are absolutely immune in their individual

capacities. 446 U.S. at 739. Here, as in that case, there is simply “no indication that Congress

intended to permit an award of [damages] to be premised on acts that themselves would be

insulated from even prospective relief.” See id.; see also Graham, 473 U.S. at 164 & n.8. Absent

unmistakable direction from Congress or a higher court, this Court is unwilling to take such an

unprecedented step in the other direction.!!

'° Both Scott and State Employees expressly attributed their conclusions to the fiction of Ex parte Young, 209 U.S.

123 (1908), which holds that official-capacity suits for prospective relief against state officials are not considered suits

against the State, contrary to the general rule. See Scott, 405 F.3d at 1255; State Emps., 494 F.3d at 87, 95; see also

Cushing, 30 F.4th at 40 n.13. As State Employees put it, “the individual defense of legislative immunity was available

for the same reason that the official defense of [sovereign] immunity was not available—namely, because the suit in

question was not considered to be a suit against the state itself.” 494 F.3d at 87 (emphasis in original) (citing Scott,

405 F.3d at 1255).

'! The Court emphasizes the distinction between this result and the Court’s earlier decision on sovereign immunity.

As previously explained, when it comes to Congress’s constitutional power to raise and support a military, the States

gave up whatever sovereign immunity they had at the time of the founding. (ECF No. 58 at 28 (citing Torres v. Tex.

Dep't of Pub. Safety, 597 U.S. 580, 589-90 (2022)).) And because the SCRA is a valid exercise of that constitutional

power, Plaintiffs’ suit is not barred by sovereign immunity. (/d.)

This dissolution of one barrier to suit is a feature of our constitutional design, not a bug—and Maryland's

invocation of Defendants’ individual immunities is not to the contrary. Rather, it accords with traditional and

prudential limits on what kinds of governmental action can give rise to damages liability. See, e.g., Consumers Union,

446 U.S. at 731-35, 739; Scott, 405 F.3d at 1256. Plaintiffs are therefore incorrect to suggest that applying individual

immunities would create an “exception” to the SCRA’s remedial mandate. See, e.g., (ECF No. 74 at 20-23). Quite

18

3. Plaintiffs Fail to Identify Any Defects in Defendants’ Legal Theories or

Show a Genuine Dispute of Material Fact Underlying the Same.

Plaintiffs offer various legal arguments to rebut Defendants’ prima facie case, some of

which are unnecessary,'* and none of which are availing. For instance, they argue repeatedly that

recognizing an individual immunity would create an “exception” to the SCRA. E.g., (ECF No. 74

at 20-23). But individual immunities are well-settled principles of background law, regularly held

to harmonize with Congress’s positive enactments. See, e.g., Will v. Mich. Dep't of State Police,

491 U.S. 58, 66-67 (1989). As such, they can hardly be considered “exceptions,” much less

something Congress is affirmatively required to write info a statute, as Plaintiffs would prefer. See

(ECF No. 74 at 24, 29, 37 n.15). Nor can the Court agree that recognizing an individual immunity

would undercut its earlier determination that sovereign immunity does not apply. See (ECF No.

74 at 24-27). As explained above, the two immunities serve distinct purposes; they do not always

travel together. See supra n.10. And so, insofar as Plaintiffs argue the absence of sovereign

immunity here somehow distinguishes Consumers Union, see (ECF No. 74 at 30 (describing

reliance on that case as “misplaced”’)), the Court cannot agree.

Plaintiffs appear to dismiss the focus on the Justices as mere hand-wringing over the case

caption, given that an official-capacity suit is ultimately one against the State. See (ECF No. 74 at

29 (describing the choice to name the Justices as “likely . . . not necessary” and “simply a reflection

apart from any changes in the landscape of state sovereign immunity, the SCRA contains no indication of Congress’s

intent to alter the landscape of individual immunities. And were the Court to rule otherwise, it would simply confront

a separate, similarly thorny question: whether Congress spoke clearly enough in the SCRA to subject States to liability

for their judicial and/or legislative acts. See Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991) (requiring Congress

to legislate clearly whenever a statute “would upset the usual constitutional balance of federal and state powers”); see

also Tenney, 341 U.S. at 376 (describing as a “big assumption” the idea “that Congress has constitutional power to

limit the freedom of State legislators acting within their traditional sphere,” and an “ever rasher assumption to find

that Congress thought it had exercised that power”). For today’s purposes, the Court need not decide that issue.

Plaintiffs spend much of their opposition brief arguing, in essence, that the SCRA applies to the State and its courts,

see (ECF No. 74 at 20-23)—something this Court has already held, (ECF No. 58 at 10, 15, 20), Defendants readily

concede, (ECF No. 73-1 at 20-22; ECF No. 75 at 4, 6), and which is clear from the plain text of the SCRA in any

event, see 50 U.S.C. §§ 3911(5), 3912(b).

19

of general custom and practice of similar claims against the State and demands of the assistant

attorneys general assigned to the case”)). But to the extent this suggests the acts of individual state

officials are irrelevant to the litigation, the Court disagrees, for at least two reasons. First, while

Plaintiffs are correct that their suit is effectively against the State, see Graham, 473 U.S. at 165,

the caption in an official-capacity action nevertheless says something about the substance of a

plaintiff's theory. Cf, e.g., Chase v. City of Portsmouth, 428 F. Supp. 2d 487, 490 (E.D. Va. 2006).

In this case, both the caption and the body of the pleadings make clear that Plaintiffs’ theory centers

on the Justices. See, e.g., (ECF No. 42 at § 169). Second, that a suit is against a State—whether

in name or in effect—does not mean a court must, or even may, disregard the role of state officials

in the alleged injuries. The fact of a damages suit being against a State is merely an indicator of

the source of any potential award. See Graham, 473 U.S. at 166. It does not relieve a plaintiff of

their duty to articulate a coherent theory of harm. And because a State is an abstract entity,

incapable of causing harm itself, any plaintiff seeking to recover from the state treasury must root

their theory in acts performed by state employees. See (ECF No. 75 at 11). To hold otherwise

would be to elide the basic requirement of causation. Accordingly, the proposition that the SCRA

does not require “a claim . . . [to] be asserted against a person[,] as is required by a § 1983 claim,”

(ECF No. 74 at 29 (emphasis in original)), is accurate only as a matter of captioning formality.

Plaintiffs also argue Maryland law “waives” Defendants’ individual immunities. See, e.g.,

(ECF No. 74 at 35 (“The State’s own Constitutional protections guarantee ‘that every man, for any

injury done to him in his person or property, ought to have a remedy by the course of the Law of

the Land, according to the Law of the Land.’” (cleaned up) (quoting Md. Const., Decl. Rts., art.

19))). But as Defendants observe, see (ECF No. 75 at 6-7), any remedy guaranteed by the

Maryland Constitution is awarded only “according to the Law of the Land.” Md. Const., Decl.

Rts., art. 19. And the “Law of the Land,” as used in that article, “is the same due process of law

20

required by the Fourteenth Amendment.” Franklin v. Mazda Motor Corp., 704 F. Supp. 1325,

1337 (D. Md. 1989) (quoting Attorney General v. Johnson, 385 A.2d 57, 71 (Md. 1978)). Given

the federal courts’ longstanding practice of applying individual immunities in cases asserting

violations of the Fourteenth Amendment, see, e.g., Consumers Union, 446 U.S. at 726, 738; Stump

v. Sparkman, 435 U.S. 349, 353 n.2, 364 (1978), any suggestion that such immunities violate the

same is without merit.!?

On top of all that, Plaintiffs fail to identify a triable issue. In particular, even when viewing

the facts in the light most favorable to them, Plaintiffs adduce nothing to show that the Justices

have an enforcement function with respect to the Maryland Court Rules. This is fatal, as the shaky

prospect of an enforcement role was the sole leg on which the case remained standing following

the Court’s decision on Defendants’ earlier motion to dismiss. See (ECF No, 58 at 36-37).

In lieu of specific arguments or facts to rebut Defendants’ prima facie case, Plaintiffs offer

a series of broad, conclusory statements that merely gesture at the possibility of some activity for

which the State would not be immune. For example, Plaintiffs claim to sue “not solely ... for

[Defendants’] failure to enact rules or legislation,” but also for their “failure to enforce the remedial

protections established by Congress” through the SCRA. (ECF No. 74 at 33.) Even if the Court

were to overlook the conclusory nature of the phrase “failure to enforce,” this statement appears

to suggest Plaintiffs are suing over lower court’s missteps during the collections proceedings—

something undoubtedly shielded by judicial immunity. See, e.g., Stump, 435 U.S. at 356-57.

Plaintiffs then recapitulate several of the chief justice’s administrative duties. See (ECF No. 74 at

'3 Plaintiffs mount a similar waiver argument with respect to the Justices’ oaths of office. See (ECF No. 74 at 36

(“[T]he public officials advancing the argument that the State of Maryland is immune or excused [for] violating its

mandatory SCRA duties simply appear to have forgotten their oaths of office[,] which require them to protect and

enforce all laws{,] including the SCRA ....” (citation omitted)). But insofar as the oaths create binding legal

obligations—itself a doubtful proposition, see, e.g., Neithardt v. Garvey, Civ. No. LKG-22-0815, 2023 WL 5671606,

at *9 (D. Md. Sept. 1, 2023); Johnson v. Thomas, Civ. No. WEB-10-0151, 2011 WL 1344008, at *4 (E.D.N.C. Apr.

8, 2011)—their terms do no more than reaffirm the Justices’ obligations within the preexisting legal landscape, which

embraces both the duties of the SCRA and the protections of common-law immunity. See (ECF No. 75 at 7).

21

33-34). But beyond involving some version of the word “administrative,” these do nothing to

support Plaintiffs’ theory, which, again, demands a duty that has a nexus with actual proceedings.

See supra Section III.A.2.i. Finally, Plaintiffs assert there is “no question” the Justices “are

responsible for ensuring that every state court judge and official of the Maryland judiciary

complies with the mandatory requirements of the SCRA.” (ECF No. 74 at 34.) But that is hardly

clear. After all, Maryland’s district judges are vested with “[t]he Judicial power of th[at] State” to

the same extent as the Justices themselves. Md. Const. art. § 1. And each is equally bound to

follow the dictates of federal and state law, including the Maryland Court Rules. See U.S. Const.

art. VI, cl. 2; Md. Const. art. §§ 1, 18(a). Beyond the Justices’ limited powers to promulgate

those rules and review cases on appeal, it is unclear what they could have done to alter the course

taken by the lower courts in these circumstances. 4

The only new information Plaintiffs offer is a recent disciplinary decision, /n re Ademiluyi,

321 A.3d 142 (Md. 2024), which they cite as evidence of “the broad role and responsibilities of

the Maryland Supreme Court beyond mere rulemaking.” (ECF No. 74 at 34 n.14.) This, too, is

unavailing. For one, bare assertions of roles “beyond mere rulemaking” are insufficient to survive

summary judgment. See Bouchat, 346 F.3d at 522 (“A party opposing a properly supported motion

for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings...

(quoting Fed. R. Civ. P. 56(e))). For another, the decision is the product of a judicial misconduct

'4 The Court notes a related infirmity in Plaintiffs’ case. Defendants concede that “[t]he Justices can promulgate rules

to ensure that, in issuing writs of garnishment, subpoenas in aid of enforcement, and orders on writs of garnishment,

lower courts adhere to the SCRA’s requirements.” (ECF No. 73-1 at 5 (emphasis added).) But they also note

Maryland’s courts have a separate obligation to follow the SCRA and other federal law—a freestanding duty that

“flows directly from federal law, not from any direction that the Justices may provide outside the setting of the

Maryland Rules or their disposition of cases” on appeal. (/d. at 20-21 (emphasis added).) In other words, the lower

courts were bound by the SCRA regardless of the content of the rules. As a result, any failure on the part of those

courts was certainly a more proximate cause, and arguably even a supervening cause, of Plaintiffs’ injuries, at least

relative to anything the Justices could have done. And to the extent Plaintiffs seek to impose a duty upon the State to

restate a federal statute, not merely to avoid conflicting with it, the argument raises concerns about legislative

commandeering. Cf, e.g., New York v. United States, 505 U.S. 144, 175-76 (1992) (noting that “the Constitution

does not empower Congress to subject state governments” to “a simple command. . . to implement legislation enacted

by Congress”).

22

proceeding. See 321 A.3d at 60 (“In accordance with Maryland Rule 18-435(c), the [Maryland

Commission on Judicial Disabilities] referred the matter to this Court for final disposition.”). This

appears to be precisely the sort of “traditional adjudicative task” Consumers Union distinguished

from “independent enforcement authority,” see 446 U.S. at 724, 734, and which would be shielded

by judicial immunity, see id. at 734-36. Even taking the disciplinary decision for all it is worth—

as evidence of the Justices’ capacity to discipline lower-court judges—it simply does not jibe with

Plaintiffs’ theory that the Justices failed to prevent something from happening. See supra Section

III.A.2.i. Nor is it this Court’s duty to square the two. Cf Grandy v. City of Baltimore, Civ. No.

ELH-18-1330, 2018 WL 6726546, at *9 (D. Md. Dec. 20, 2018) (“Judges ‘are not like pigs,

hunting for truffles buried in the briefs,’ nor is it the Court’s ‘job to wade through the record and

make arguments for either party.” (citation omitted)).

At bottom, this Court has an “affirmative obligation ... to prevent factually unsupported

claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526 (citation omitted). While

it recognizes the Justices have some ability to prevent or correct errors by Maryland’s lower courts,

see supra Section III.A.2.i, and even that they may have an enforcement capacity beyond the four

corners of this case, see (ECF No. 58 at 35-36), the Court is not persuaded the Justices have any

such capacity that connects with Plaintiffs’ alleged harms. And because Plaintiffs have failed to

articulate one, their attempts to distinguish Consumers Union fall flat. See (ECF No. 74 at 24-25

(arguing that the case merely “applied some limited legislative immunity . . . to judicial officers

acting solely in their rule-making capacity”)). As a result, every function that might support

Plaintiffs’ claim is foreclosed by some individual immunity, see (ECF No. 58 at 36-37), and there

is no legal basis for Plaintiffs’ case to move forward, let alone a factual dispute for trial.

Accordingly, summary judgment will be granted for Defendants.

23

B. Plaintiff's Motion for Leave to File a Second Amended Complaint

In their proposed Second Amended Complaint for Damages, Plaintiffs seek to name as

defendants the State of Maryland, the administrative judges of the District Court of Maryland for

Anne Arundel and Garrett Counties (“Administrative Judges”), and the administrative clerks of

the same (“Administrative Clerks”). (ECF No. 72-2 at 1.) Plaintiffs also slightly broaden their

allegations against all governmental defendants, new and old. Compare, e.g., (id. at § 4 (anchoring

claim to the State’s “customs, operations, laws, rule[s] of procedure, and practices”)), with (ECF

No. 42 at § 4 (anchoring claim only to “laws and rule[s] of procedure”)).

In light of the Court’s determinations as to Defendants’ Motion for Summary Judgment,

see generally supra Section III.A, Plaintiffs’ proposed amendments offer no legal basis for their

SCRA claim to proceed. And while “conjecture about the merits of the litigation should not enter

into the decision whether to allow amendment,” leave to amend is unavailable when the “proposed

acnistidnadiit may clearly be seen to be futile because of substantive or procedural considerations.”

Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980). This is one such instance. For

that reason, Plaintiffs’ Motion for Leave to Amend will be denied.!*

1. Plaintiffs’ Proposed Additional Parties Do Not Plausibly Support Plaintiffs’

Theory of Harm.

Plaintiffs offer multiple reasons for the addition of new defendants to their case. They seek

to add the State of Maryland because, as a practical matter, their claim is already against the State,

and because they believe it unnecessary to moor their SCRA theory to the conduct of particular

state officials. See (ECF No. 72 at 6 (proposing to amend, in part, “to conform the[] operative

'S Plaintiffs separately argue their proposed amendment is “not made with undue delay to [p]rejudice the State of

Maryland,” citing in part the fact of having filed it “on the deadline established by the Court’s current Order.” (ECF

No. 72 at 6 (citing ECF No. 71).) They also argue the proposed amendment “would not cause prejudice” and “is made

in good faith.” (/d. at 8.) Defendants do not oppose amendment on any of these grounds, see, e.g., (ECF No. 73-1 at

23), and because the Court determines amendment would be futile in any event, the Court need not consider them.

24

complaint [to] the law of the case, the facts [Plaintiffs] know now, and the claims remaining before

the Court”)). And to the extent the Court deems official-specific allegations necessary, Plaintiffs

seek to add the Administrative Judges and Clerks to bypass the individual immunities that shield

the Justices. See (id. (proposing to amend, in part, “to moot the various affirmative defenses raised

by the State of Maryland[,] should those defenses even apply to [Plaintiffs’] claims”)).

While these proposed additions are not without foundation, they are ultimately useless. As

Plaintiffs themselves admit, the State of Maryland is already the functional defendant in this

litigation. And the addition of the Administrative Judges and Clerks simply does not support

Plaintiffs’ theory of harm. Even to the extent that it could, it otherwise fails to pierce Defendants’

individual immunities. The Court addresses each proposed addition below.

i, Plaintiffs’ Addition of the State of Maryland is Unnecessary.

There is no doubt Maryland is the real party in interest in Plaintiffs’ case, particularly now

that the case is narrowed to a single damages claim. See (ECF No. 58 at 27). Again, an official-

capacity action against a public official is “generally ... only another way of pleading an action

against an entity of which [that official] is an agent.” Graham, 473 U.S. at 166 (citation omitted).

“As long as the government entity receives notice and an opportunity to respond, an official-

capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Jd.

(citation omitted). Since the filing of their initial complaint, Plaintiffs have pressed official-

capacity claims against officials of the State of Maryland. (ECF No. 1 at 1, § 25; ECF No. 42 at

1, {§ 27-29.) Plaintiffs have also made clear in the body of their prior pleadings that their claims

are against the State itself, vis-a-vis the conduct of certain relevant employees. E.g., (ECF No. 1

at | 6, 10-13; ECF No. 42 at § 8, 11-14). And both this Court and Defendants have, at various

points, referred to Defendants as “the State.” See, e.g., (ECF No. 58 at 27; ECF No. 73-1 at 9).

As a result, the Court is unpersuaded that naming the State as a defendant will effect any

ao

change in Plaintiffs’ case. Even Plaintiffs suggest the addition is unnecessary. See (ECF No. 74

at 29). For their part, Defendants chalk the addition up to an attempt to “generically fault[] the

State” rather than prove some official, acting in a capacity unshielded by an individual immunity,

caused Plaintiffs’ injuries. See (ECF No. 73-1 at 26). Defendants are correct insofar as they argue

that any theory of liability against a State, whether in name or in effect, must be founded upon the

acts of that State’s employees. See supra Section III.A.3. And to the extent Plaintiffs seek to add

the State merely to clarify the source of their desired recovery, such clarification is unnecessary,

as, again, Plaintiffs’ damages claims have always been directed to the state treasury. See, e.g.,

(ECF No. 42 at 414 (seeking “the recovery of all other appropriate relief, including money

damages, . . . from the State of Maryland”)).

Because adding the State of Maryland would be fruitless, the Court will not grant leave to

amend on that basis.

ii. Plaintiffs’ Addition of the Administrative Judges and Administrative

Clerks is Futile.

As with their proposal to add the State of Maryland, Plaintiffs say little about why adding

the Administrative Judges and Clerks would not be futile, arguing only that adding these officials

would “support [Plaintiffs’] original claims against the State of Maryland.” See (ECF No. 72 at

7). For their part, Defendants interpret the amendment as an attempt to “avoid[] legislative

immunity,” (ECF No. 73-1 at 23), and argue that Plaintiffs’ theories concerning these officials are

“every bit as conclusory as Plaintiffs’ claims against the Justices,” (id. at 24).

The Court agrees with Defendants: Plaintiffs’ conclusory allegations do not merit these

officials’ addition to the case. Simply, Plaintiffs allege no specific acts that connect the officials

to Plaintiffs’ injuries. Instead, Plaintiffs’ offer nebulous descriptions of the officials’ roles and

acts—stating, for instance, that the Administrative Judges are “responsible for the administration

and operation” of their respective courts, (ECF No. 72-2 at §§ 20-21), and that “[t]he State of

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Maryland and the officials carrying out the work” of the district courts allowed judicial process to

run without conforming the proceedings to the SCRA, see, e.g., (id. at J§ 44-47, 62-66, 75-82).

Indeed, the proposed pleadings cast the Administrative Judges and Clerks as something of an

afterthought. See, e.g., (id. at {§] 20-21 (explaining that the officials are “added to this action . . . if

it is determined that [the Justices] and the State itself are not the proper parties... from who[m]

Plaintiffs may recover”); id. at § 93 (seeking relief “against the State through the [Justices],”’ or,

“li]f necessary in the alternative, ... against the State through the administrative judges and

administrative clerks”)). While alternative pleading is doubtless permissible under the Federal

Rules, see Fed. R. Civ. P. 8(d)(2)+(3), these pleadings must still be supported by law and facts.

At bottom, Plaintiffs’ claims against the Administrative Judges and Clerks suffer from the

same basic problem as their claim against the Justices. Plaintiffs offer bare allegations of an

enforcement capacity—no facts about actions taken in that capacity, let alone facts connecting the

actions to the alleged injuries. At this juncture, it is not enough for Plaintiffs nakedly to assert that

certain officials hold “administrative” or “enforcement” duties with respect to relevant court units.

See supra Section III.A.3. That just leaves the Court to wonder how, exactly, the Administrative

Judges and Clerks factor into the litigation.'© And while this style of pleading may have been

enough to survive dismissal the first time, Plaintiffs were on notice that summary judgment was

imminent unless they showed the Justices to have a relevant enforcement function. See (ECF No.

Absent from every version of Plaintiffs’ pleadings is any assertion about the judges who rendered the erroneous

collections orders. And for good reason: judicial immunity shields them from liability for those decisions, see, ¢.g.,

Stump, 435 U.S. at 356-57—and, under the reasoning above, shields the State as well, see supra Section III.A.2.iii.

The Court notes, however, that Plaintiffs’ unadorned allegations against the Administrative Judges and Clerks verge

on becoming forbidden claims against the rendering judges. Unlike the Justices, the Administrative Judges and Clerks

have no duties related to the Maryland Court Rules; their roles are instead limited to deciding cases and/or courthouse

administration. See Md. Const. art. IV, §§ 1,41A, 41E, 41F. Because it is unclear, based on that, what these officials

could have done to prevent the rendering of erroneous orders by other judicial personnel, the Court is tempted to

conclude the kernel of Plaintiffs’ grievance is the rendering itself. If that is the case, both the Administrative Judges

and Clerks would very likely be shielded by either judicial immunity, see, e.g., Stump, 435 U.S. at 356-57, or quasi-

judicial immunity, see, e.g., Scruggs v. Moellering, 870 F.2d 376, 377 (7th Cir. 1989) (holding that judges’ immunity

extends to other court personnel in light of “[t]he danger that disappointed litigants, blocked by the doctrine of absolute

immunity from suing the judge directly, will vent their wrath on clerks, court reporters, and other judicial adjuncts”).

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58 at 36-37). Simply, the Court will not allow Plaintiffs to make amended allegations virtually

identical to others held insufficient elsewhere in the same decision. See supra Section III.A.

Because adding the Administrative Judges and Clerks would be fruitless as well, the Court

will not grant leave to amend on that basis, either.

2. Plaintiffs’ Broadened Allegations Fail to Allege, in Sufficient Detail, Acts

Not Foreclosed by Individual Immunity.

Plaintiffs broaden their allegations against Defendants, old and new, primarily by adding

to the list of control mechanisms over which Defendants are alleged to hold influence. Compare,

e.g., (ECF No, 72-2 at { 4 (“customs, operations, laws, rule[s] of procedure, and practices’), with

(ECF No. 42 at § 4 (“laws and rule[s] of procedure”)). As Defendants point out, Plaintiffs also

“pepper” the proposed Second Amended Complaint with the phrase “customs, operations, and

practices.” (ECF No. 73-1 at 23 (citation omitted).)

Merely asserting the existence of an enforcement capacity does not make it so. Plaintiffs’

conclusory allegations of pertinent administrative or enforcement duties are analogous to their

- nonspecific reasons for including the Administrative Judges and Clerks—zeasons which, in turn,

are little different from those the Court deems insufficient to counter summary judgment as to the

Justices. See supra Section III.B.1.ii. Again, the Comis earlier ruling put Plaintiffs on notice that

bare allegations of nonimmune activities would not suffice to push Plaintiffs’ case to trial. See

(ECF No. 58 at 36-37); see also Bouchat, 346 F.3d at 526. The delay that would result from

allowing such allegations to survive until another motion for summary judgment is reason enough

to deny leave to amend.'? See Foman, 371 U.S. at 182.

Defendants also argue the allegations fail under the pleading requirements of Rule 8. (See ECF No. 73-1 at 24

(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); and then citing Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)).) But because the Court already allowed similar allegations to proceed under that standard, (see ECF No. 58

at 36), it will not reject these on that basis.

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IV. CONCLUSION

Today’s decision does not foreclose the possibility of recovering against a State for SCRA

violations by state officials. On the basis of these pleadings, however, the decision does reaffirm

two bedrock principles. First, bare allegations of critical law and facts cannot suffice to move a

case to trial. Second, claims founded on fundamentally legislative or judicial acts are barred by

individual immunities, notwithstanding the absence of state sovereign immunity in cases arising

under Congress’s power to raise and support a military.

The Court acknowledges the difficulties that pervade this case. As the Court and Plaintiffs

have repeatedly stated, Plaintiffs’ claim is functionally against the State itself. See supra Section

III.A.2.iii; (ECF No. 42 at §§ 8, 11-14, 29). Asa result, it may seem unfair for the Court to deny

relief on the basis of an immunity designed to protect state officials. Indeed, it may be particularly

puzzling given the Court’s earlier conclusion that the Constitution itself eliminates state sovereign

immunity—a defense otherwise tailor made for damages suits like this. See, e.g., Bd. of Trs. of

Univ. of Ala. v. Garett, 531 U.S. 356, 363-64 (2001). In view of these wrinkles, alongside the

admonition that the SCRA “must be read with an eye friendly to those who dropped their affairs

to answer their country’s call,” cf Le Maistre v. Leffers, 333 U.S. 1, 6 (1948) (interpreting the

SCRA’s predecessor statute), Plaintiffs may well feel unfairly caught in something of an

“exception” to the SCRA’s requirements. See (ECF No. 74 at 20).

Even so, both law and prudence ordain today’s result. This is not an instance of a court

engrafting an immunity onto an unsuitable host. While Plaintiffs’ case is against the State itself,

each of Plaintiffs’ theories necessarily relies on conduct by state officials. See, e.g., (ECF No. 42

at 28-29, 169; ECF No. 72-2 at §§ 17-22, 93). And, for the conduct Plaintiffs have alleged,

some individual immunity poses an absolute bar to recovery against the officials personally. See

supra Sections III.A.2.ii, .B.1.11. The lesson of Consumers Union is that a backdoor recovery

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against the State is unavailable in such circumstances. See 446 U.S. at 738 (“[T]he District Court’s

award .. . in this case was premised on acts or omissions for which [defendants] enjoyed absolute

legislative immunity. This was error.”). This principle holds true even in the odd corner of the

law Plaintiffs have identified—a zone in which the State, unable to avail itself of the usual defense

of sovereign immunity, is left to stand essentially naked against the prospect of financial recovery.

Nor can the Court agree this result means “Congress created a right for servicemembers

without a remedy.” (ECF No. 74 at 16.) As Defendants point out, Plaintiffs could, and did, avail

themselves of remedies in the state courts—namely, the vacating of the foreign judgments and/or

dismissal of the collections actions. (ECF No. 73-1 at 21-22); see also (id. at 22-23 (noting

options of mandamus and ordinary appeal)). And it is not as if the State is the only entity capable

of compensating Plaintiffs for their injuries. As Plaintiffs have articulated their case, the Maryland

courts’ missteps were at least partly attributable to LeMay, who failed to supply critical—and

required—information about Plaintiffs’ military status. See, e.g., (ECF No. 42 at §§ 30(c), 32(d),

64, 93, 140; ECF No. 72-2 at □□□ 23, 44, 58, 75). Plaintiffs elected to attempt to allocate their

alleged losses between LeMay and the State of Maryland, rather than to recover from LeMay

alone.'® See (ECF No. 73-1 at 22). This choice was not mandated by the SCRA.

Finally, even if Plaintiffs were wholly bereft of relief, it is well settled that federal courts

cannot redress every harm that crosses their dockets. Although it has been said “that every right,

when withheld, must have a remedy,” Marbury v. Madison, 5 U.S. 137, 147 (1803); see also (ECF

No. 74 at 13), Chief Justice Marshall also seein that our system of government, in all its

texture and complexity, demanded the occasional exception to that lofty ideal. See, e.g, United

'® Insofar as the SCRA permits or requires defendants to be held jointly liable, Plaintiffs’ claim against the State may

in fact be barred to the extent of their settlement with LeMay. See, e.g., Gilliam y. Allen, 62 F.4th 829, 846 (4th Cir.

2023) (stating the rule against double recoveries, also known as the one-satisfaction rule, which “operates to reduce a

plaintiff's recovery from [a] nonsettling defendant to prevent the plaintiff from recovering twice from the same

assessment of liability” (citation omitted)), The Court makes no findings or determinations on this issue.

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States v. Clarke, 33 U.S. 436, 444 (1834). This is perhaps no truer anywhere than in the domain

of absolute individual immunities. See, e.g., Consumers Union, 446 U.S. at 731-33; Mireles v.

Waco, 502 U.S. 9, 9-10 (1991).

No doubt, legislators and judges make mistakes. And the nature of their authority can lead

these mistakes to have significant consequences. But our interest in affording core officials “the

breathing room necessary to make... choices in the public interest,” EEOC v. Wash. Suburb.

Sanitary Comm'n, 631 F.3d 174, 181 (4th Cir. 2011), often demands they be free from the specter

of financial liability, whether large or small, for themselves or for the institutions they serve—

even if the result is that real harms occasionally go unrectified. See Mireles, 502 U.S. at 10; Butz

v. Economou, 438 U.S. 478, 514 (1978).

DATED thisZ@6 day of November, 2024.

BY THE COURT:

Demme KPa hor

James K. Bredar

United States District Judge

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