Burke v. Board of Trustees, 924 N.W.2d 304

Melissa Burke worked at Chadron State College under yearly contracts governed by a collective bargaining agreement administered by the Board of Trustees of the Nebraska State Colleges (the Board).
In April 2016 the college notified Burke her contract would not be renewed; she claimed the notice was untimely under the bargaining agreement because her prior service survived a 2015 job change (reclassification vs. transfer dispute).
Burke filed a declaratory judgment action in district court seeking a declaration that she was entitled to a contract for the 2016–17 year and related remedies; she did not exhaust the contract’s grievance procedure before filing suit.
The Board moved to dismiss for lack of subject matter jurisdiction and later for summary judgment; the district court granted summary judgment for the Board based on failure to exhaust the grievance procedure.
On appeal the Nebraska Supreme Court held the suit was an action against the State (the Board is an instrumentality of Nebraska) and concluded no applicable legislative waiver of sovereign immunity authorized Burke’s declaratory action; the court vacated the district court’s judgment and dismissed for lack of subject matter jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether suit against Board is an action against the State	Burke argued her declaratory action sought non-monetary relief and thus did not implicate sovereign immunity	Board asserted the Board is an instrumentality of the State and the suit is against the State	Held: Action is against the State; sovereign immunity applies
Whether Nebraska’s Declaratory Judgment Act waives sovereign immunity	Burke relied on declaratory relief to resolve contract dispute	Board said the Act does not waive State sovereign immunity	Held: Uniform Declaratory Judgments Act does not waive sovereign immunity
Whether statutes authorizing the Board to “sue and be sued” waive immunity	Burke pointed to § 85‑302 language allowing the Board to “sue and be sued”	Board argued such language is not self-executing and does not impose terms for suit	Held: § 85‑302 is not an express waiver of sovereign immunity
Whether any other statute (e.g., § 25‑21‑206 or State Contract Claims Act) waived immunity	Burke suggested § 25‑21‑206 or other statutes might permit suit	Board argued statutes either exclude employment claims or plaintiff failed to meet statutory pleading/presuit requirements	Held: No applicable waiver shown; § 25‑21‑206 inapplicable because plaintiff failed to meet pleading requirements; State Contract Claims Act excluded these employment contracts

Armstrong v. Clarkson College, 297 Neb. 595 (2017) (mandatory grievance procedures are condition precedent to enforcing contract rights)
Alden v. Maine, 527 U.S. 706 (1999) (state sovereign immunity is a fundamental aspect of sovereignty beyond the Eleventh Amendment)
Doe v. Board of Regents, 280 Neb. 492 (2010) (distinction when suing officials in their official capacity versus suing the State directly)
Livengood v. Nebraska State Patrol Retirement System, 273 Neb. 247 (2007) (language that the state may “sue and be sued” is not a self‑executing waiver of sovereign immunity)
State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241 (2018) (statutes purporting to waive sovereign immunity are strictly construed; waiver must be express)
Thomas v. Board of Trustees, 296 Neb. 726 (2017) (applied State Tort Claims Act to the Board and discussed Board as state instrumentality)