The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1628
LONNIE GILLILAND, On behalf of themselves and all others
similarly situated; DONNA RAWLINGS, On behalf of themselves
and all others similarly situated; COREY WASHINGTON, On
behalf of themselves and all others similarly situated;
MELECKA RILEY, On behalf of themselves and all others
similarly situated; PATINA SCOTT; MARY THOMPSON; JUDITH M.
DAVIS; AMY J. ELY; EVELYN F. DAVIS; SHARON FORD; AMOS
GROSS; LESSTHAN S. WILLIAMS; TERRY HOFF; LISA K. WENFIELD;
SALANNA TRAVIS,
Plaintiffs - Appellees,
v.
THE BOARD OF EDUCATION OF CHARLES COUNTY; JAMES E. RICHMOND,
Individually and as Superintendent of Charles County Public
Schools; KEITH A. HETTEL, Individually and as Assistant
Superintendent for Human Resources; CHARLES L. WINELAND,
Individually and as Assistant Superintendent for Supporting
Services,
Defendants – Appellants,
and
CHARLES COUNTY PUBLIC SCHOOL BOARD; ROBERTA S. WISE,
Individually and as Members of the Charles County Public
School Board; MAURA H. COOK, Individually and as Members of
the Charles County Public School Board; JENNIFER S. ABELL,
Individually and as Members of the Charles County Public
School Board; PATRICIA BOWIE, Individually and as Members of
the Charles County Public School Board; MICHAEL K. LUKAS,
Individually and as Members of the Charles County Public
School Board; PAMELA A. PEDERSON, Individually and as
Members of the Charles County Public School Board; DONALD M.
WADE, Individually and as Members of the Charles County
Public School Board; KOCH TRUCKING, INC., And all similarly
situated bus contracting and operating entities; KELLER
TRANSPORTATION, INC.; ERNEST J. KELLER, JR.; ERNEST KELLER,
III; RUTH E. KOCH, INC.; EDWIN A. KELLER BUS SERVICE INC.; H
& H BUS SERVICE, INC., And all similarly situated bus
contracting and operating entities,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. J. Frederick Motz, Senior District
Judge. (8:11-cv-03073-JFM)
Argued: March 21, 2013 Decided: April 26, 2013
Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and DAVID A.
FABER, Senior United States District Judge for the Southern
District of West Virginia, sitting by designation.
Reversed and remanded by unpublished per curiam opinion.
ARGUED: Edmund J. O'Meally, PESSIN & KATZ, PA, Towson, Maryland,
for Appellants. Scott A. Conwell, CONWELL LAW, LLC, Crofton,
Maryland, for Appellees. ON BRIEF: Leslie R. Stellman, Andrew
G. Scott, PESSIN & KATZ, PA, Towson, Maryland; Shani K.
Whisonant, PESSIN & KATZ, PA, Columbia, Maryland, for
Appellants.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
The Board of Education of Charles County, Maryland (“the
Board”) and three high-level Board officials (collectively, “the
Board Appellants”) appeal a district court ruling that Maryland
waived the Board Appellants’ Eleventh Amendment immunity against
a claim brought under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201 et seq., for up to $100,000 in damages. We
reverse.
I.
Plaintiffs are bus drivers and bus attendants who were
jointly employed by the Board and certain bus contractors.
Plaintiffs brought suit against the Board Appellants and these
bus contractors – who are not parties to this appeal – seeking
to recover unpaid wages, including overtime wages, primarily on
the basis of the FLSA. Plaintiffs allege that they were not
paid for all of the hours that they worked. They also allege
that they were required to work more than 40 hours per week
during their joint employment and that they have not been paid
overtime for the hours they worked in excess of 40 per week.
After Plaintiffs filed their complaint and before any of
the defendants responded, Plaintiffs filed a motion for
conditional class certification. The bus contractor defendants
proceeded to answer the complaint, but the Board Appellants
moved to dismiss. At the motions hearing that followed, the
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district court conditionally certified the class. The court
denied the Board Appellants’ motion to dismiss the FLSA claim to
the extent it sought damages of up to $100,000, concluding that
Maryland had legislatively waived Eleventh Amendment immunity
for an FLSA claim for damages up to that amount. However, the
district court dismissed the claims against the named Board
officials to the extent the claims were brought against them in
their individual capacities and also dismissed the remaining
claims against the Board Appellants, including a breach of
contract claim, which the court ruled was preempted by the FLSA
claims.
II.
The Board Appellants argue that the district court erred in
ruling that they are not entitled to Eleventh Amendment immunity
against FLSA claims for damages of $100,000 or less. We agree. *
The Eleventh Amendment to the United States Constitution
provides: “The 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, or by Citizens or Subjects of any Foreign State.”
*
A ruling that a state has waived its sovereign immunity
from a damages claim is appealable under the collateral order
doctrine. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 147 (1993); Madison v. Virginia, 474
F.3d 118, 123 (4th Cir. 2006). We therefore possess appellate
jurisdiction over this interlocutory appeal.
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Eleventh Amendment immunity protects unwilling states from suit
in federal court. See Edelman v. Jordan, 415 U.S. 651, 662-63
(1974); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70-
71 (1989). This immunity also protects “state agents and state
instrumentalities,” Regents of the Univ. of Cal. v. Doe, 519
U.S. 425, 429 (1997), and Maryland school boards fit into that
category, see Lee-Thomas v. Prince George’s Cnty. Pub. Sch., 666
F.3d 244, 248 n.5 (4th Cir. 2012).
Nevertheless, state legislatures are authorized to enact
statutory waivers of Eleventh Amendment immunity that apply to
state agencies. See College Sav. Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-76, 680
(1999). To constitute a valid Eleventh Amendment immunity
waiver, a statute must waive the immunity “by the most express
language or by such overwhelming implications from the text [of
the statute] as will leave no room for any other reasonable
construction.” Edelman, 415 U.S. at 673 (alteration and
internal quotation marks omitted). In the absence of an
interpretation by the relevant state court of a statute
purporting to waive Eleventh Amendment immunity, we must examine
the statute ourselves and determine whether it satisfies this
stringent test. See Lee-Thomas, 666 F.3d at 251; Virginia v.
Reinhard, 568 F.3d 110, 114-17 (4th Cir. 2009). However, when
the state’s highest court has already applied this test to the
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relevant statute, we must defer to that court’s decision. See
Lee-Thomas, 666 F.3d at 251. After all, “the 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 the
suit.” Id. (alterations and internal quotation marks omitted).
If the state’s highest court determines that the state has
effected a valid legislative waiver, “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, 491 U.S. at 71.
Two Maryland statutes appear relevant to our waiver issue.
Section 12-201(a) of the State Government Article provides, as
is relevant here:
(a) Except as otherwise expressly provided by a law of
the State, the State, its officers, and its units may
not raise the defense of sovereign immunity in a
contract action, in a court of the State, based on a
written contract that an official or employee executed
for the State or 1 of its units while the official or
employee was acting within the scope of the authority
of the official or employee.
Md. Code Ann., State Gov’t § 12-201(a) (emphasis added). And,
section 5-518 of the Courts and Judicial Proceedings Article
provides, in relevant part:
(b) A county board of education, described under Title
4, Subtitle 1 of the Education Article, may raise the
defense of sovereign immunity to any amount claimed
above the limit of its insurance policy or, if self-
insured or a member of a pool described under § 4-
6
105(c)(1)(ii) of the Education Article, above
$100,000.
(c) A county board of education may not raise the
defense of sovereign immunity to any claim of $100,000
or less.
Md. Code Ann., Cts. & Jud. Proc. § 5-518(b), (c). The parties
agree that § 12-201(a) could not waive Eleventh Amendment
immunity in this case because it applies only in state court to
cases that are based on written contracts. Since this case is
being litigated in federal court and is not based on a written
contract, any legislative waiver must derive from § 5-518. We
therefore consider whether that statute applies.
Two cases in which the Maryland courts have interpreted
§ 5-518 bear on that statute’s applicability. First, in Board
of Education of Baltimore County v. Zimmer-Rubert, 973 A.2d 233
(Md. 2009), the Maryland Court of Appeals considered whether
§ 518(c) constituted a waiver of a school board’s Eleventh
Amendment immunity against a suit seeking $100,000 in damages
brought pursuant to the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq. The court concluded that § 5-
518 applied to the ADEA suit, noting that, “[b]y its plain
language, § 5-518(c) . . . waives the defense of sovereign
immunity ‘to any claim of $100,000 or less.’” Zimmer-Rubert,
973 A.2d at 242. The court explained that such broad statutory
language “cannot reasonably be read to exclude certain
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categories of claims.” Id. (internal quotation marks omitted).
The court further noted that the statute’s legislative history
confirmed the conclusion that the statute applied to ADEA
claims. See id. In that regard, the court pointed out that the
Maryland House of Representatives had originally proposed that
school boards be required to carry liability insurance only “for
personal injury claims,” but that language was later replaced by
a requirement that the boards obtain “comprehensive liability
insurance.” See id. (internal quotation marks omitted). The
court reasoned that that “change exemplifies the intent of the
General Assembly to apply § 5-518(c) to all claims, including
those for personal injury and alleged employment law
violations.” Id. The court further determined that the statute
effected a waiver of not only the school board’s sovereign
immunity generally, but also its Eleventh Amendment immunity.
See id.
Next, in Board of Education of Worcester County v. BEKA
Industries, Inc., 989 A.2d 1181 (Md. Ct. Spec. App. 2010), the
court considered a lawsuit against a county board of education
based on a written contract the board entered into with a
company (“BEKA”) for the performance of some construction work.
See id. at 1185. BEKA filed suit in state court, asserting both
contract and tort claims. See id. at 1186-87. The trial court
denied the school board’s motion for judgment that was based, as
8
is relevant here, on a claim of sovereign immunity. See id. at
1188. BEKA subsequently obtained a $1.1 million judgment
against the board, and the board appealed. See id. at 1190.
On appeal, the Maryland Court of Special Appeals recognized
that in determining whether the doctrine of sovereign immunity
applies in a particular case, the court must consider “whether
the entity asserting immunity qualifies for its protection; and,
if so, . . . whether the Legislature has waived immunity, either
directly or by necessary implication, in a manner that would
render the defense of immunity unavailable.” Id. at 1195
(internal quotation marks omitted). Even if the entity
qualifies for immunity protection and there has been a waiver,
the waiver is effective only when “there are funds available for
the satisfaction of the judgment or the agency has been given
the power for the raising of funds necessary to satisfy recovery
against it.” Id. (internal quotation marks omitted).
Concluding that a county board of education is a State agency
entitled to the protection of sovereign immunity, see id. at
1196, the court turned to the question of whether the
legislature had waived immunity by enacting § 5-518.
In analyzing the question, the court considered what effect
Zimmer-Rubert had on the issue. The court noted that the broad
“any claim” statement the Maryland Court of Appeals made in that
decision was made in the context of an ADEA claim. See id. at
9
1199. Because discrimination is “a species of personal injury
akin to tort,” the court reasoned that an ADEA claim “involves
personal injury.” Id. Thus, the court explained that the broad
language employed in Zimmer-Rubert “must be construed in the
context of a tort related claim.” Id. The court added that the
Maryland Court of Appeals “did not address in that case, or in
any other case that we have found, whether C.J.P. § 5-518
applies to contract claims.” Id.
Turning to that question, the court decided that although
§ 5-518’s language is broad, the language is ambiguous regarding
whether it applies to contract claims. See id. The court
emphasized that § 5-518 is “tied to the requirements of” § 4-105
of the Education Article of the Maryland Code, which mandates
that “county boards . . . carry comprehensive liability
insurance or be self-insured for property or casualty risks.”
Id. at 1199-1200. Since such insurance “generally covers claims
for bodily injury and property damage, not breach of contract,”
the court concluded the broad “any claim” language must be read
“in the context of liability insurance, which typically covers
tort claims.” Id. at 1200.
The court therefore undertook to discover whether the
legislature intended § 5-518 to extend beyond tort claims. The
court concluded that applicable legislative history suggested
that the legislature intended to limit § 5-518’s application to
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tort claims. The court found that the applicable legislative
history demonstrated that § 5-518’s predecessor was enacted to
waive the sovereign immunity defense to tort claims “to provide
a remedy for students injured on school grounds” and was not
intended to apply to contract claims. Id. The court noted that
the predecessor statute required school boards to obtain
liability insurance or to self insure for liability “limited to
one hundred thousand dollars . . . for each injury.” Id. at
1201 (emphasis added and internal quotation marks omitted). The
court concluded that the use of the word “injury” was
“consistent with an intent that the statute apply to tort,
rather than contract, claims.” Id. Additionally, the court
considered that press reports indicated “that the [predecessor]
bill was introduced in response to a catastrophic personal
injury suffered by a student on school grounds.” Id. The court
determined that nothing in subsequent history suggested a
legislative “intent to expand the scope of [the limited waiver
of sovereign immunity] beyond tort claims.” Id. at 1202.
Indeed, the court specifically traced the origin of § 5-518’s
“any claim” language and concluded that nothing suggested that
that language “was intended to change the scope of the waiver of
the defense of sovereign immunity.” Id.; see id. at 1202-03.
The court determined that prior caselaw also indicated that
§ 5-518 was not intended to extend beyond tort claims. The
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court pointed to Charles E. Brohawn & Bros., Inc. v. Board of
Trustees of Chesapeake College, 304 A.2d 819 (Md. 1973), which
interpreted a provision similar to § 5-518. The court noted
that in Brohawn, the Maryland Court of Appeals concluded that
the statute affected only claims that would be covered by
comprehensive liability insurance and thus did not apply to
contract claims. See BEKA, 989 A.2d at 1203.
Based on the aforementioned considerations, the court held
that Ҥ 5-518 is a legislative waiver of the defense of
sovereign immunity for a county board of education only with
respect to tort claims” and that “[i]t is not a legislative
waiver of the defense for contract claims.” Id. at 1204.
“Thus,” the court continued, “the language of § 5-518, limiting
the liability of a self-insured board of education to $100,000,
does not apply to BEKA’s contract claims against the Board.”
Id.
Having determined that § 5-518 was not applicable, the
court turned to the question of whether § 12-201(a) applied to
school boards and constituted a legislative waiver of sovereign
immunity. The court answered both questions in the affirmative.
See id. at 1205. The court held that the record was not
sufficient, however, to make a determination regarding whether
there were funds available to satisfy a resulting judgment or
12
whether the school board had the authority to raise such funds.
See id. at 1207.
The Maryland Court of Appeals subsequently granted
certiorari to resolve several issues. See Beka Indus., Inc. v.
Worcester Cnty. Bd. of Educ., 18 A.3d 890, 896 (Md. 2011). As
is most relevant here, the court affirmed the lower court’s
rulings that § 12-201(a) constituted a legislative waiver of the
school board’s immunity and that § 5-518 did not apply to
contract claims. See id. at 907. Like the intermediate
appellate court, the Maryland Court of Appeals specifically
determined that Zimmer-Rupert was silent regarding whether § 5-
518 applied to contract claims:
In Zimmer-Rubert, in the context of what we
perceived to be a claim for personal injury resulting
from an alleged age discrimination violation, we
commented that the term “‘any claim’ [under § 5-
518(c)] cannot reasonably be read to exclude certain
categories of claims.” Our interpretation of § 5-
518(c) [there] was clearly in the context of a tort or
insurable claim, such as “those for personal injury,”
and for claims arising from “alleged employment law
violations.” We did not imply in that case that
C.J.P. § 5-518(c) applies to contract claims, nor did
we address, by association, the meaning of C.J.P. § 5-
518(b), to which [the school board] looks in the
present case.
Id. (citations omitted).
Having summarized the relevant Maryland cases, we now
consider the parties’ respective arguments. Relying on the
Maryland Court of Appeals decision in Beka, the Board Appellants
13
maintain that FLSA claims are, in actuality, contract or quasi-
contract claims rather than tort or tort-related claims, and
thus are not of the type to which § 5-518 applies. On the other
hand, Plaintiffs rely on the statement by the Maryland Court of
Appeals in the same case that § 5-518(c) applies to personal
injury claims and “employment law violations,” Beka, 18 A.3d at
907 (internal quotation marks omitted), and argue that an FLSA
claim should be considered an employment law claim in this
context. We agree with the Board Appellants.
The decisions of the Maryland appellate courts make clear
that § 5-518’s applicability turns on the type of claim
asserted. The statute applies only to tort claims, such as
personal injury actions, and tort-related claims, such as
discrimination actions. The FLSA claim before us in this case
does not fit that description. Unlike discrimination claims,
which the Maryland courts have concluded are in the nature of
personal-injury claims, see Beka, 18 A.3d at 907, FLSA claims
“are contractual in their nature,” Roland Elec. Co. v. Black,
163 F.2d 417, 426 (4th Cir. 1947). That is so because the
FLSA’s overtime provisions “are read into and become a part of
every employment contract that is subject to” the FLSA’s terms,
and thus “[t]he liability of the employer [in an action under
the FLSA for unpaid overtime] is for the wages due under working
agreements which the federal statute compels employer and
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employee to make.” Id. In light of the contractual nature of
the FLSA claim, we conclude that Maryland courts would not
consider it to be an “employment law” claim in this context.
Because we conclude that § 5-518, as the Maryland courts
have construed it, does not apply to Plaintiffs’ FLSA claim, we
hold that Maryland has not even partially waived the Board
Appellants’ Eleventh Amendment immunity against the claim.
Thus, we reverse the district court’s denial of the Board
Appellants’ motion to dismiss and remand for entry of judgment
in their favor.
III.
In sum, finding the district court erred in ruling that
Maryland had waived the Board Appellants’ right to Eleventh
Amendment immunity as to the FLSA damages claim for up to
$100,000, we reverse the district court’s denial of the Board
Appellants’ motion to dismiss that claim and remand for entry of
judgment in favor of the Board Appellants.
REVERSED AND REMANDED
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