926 F.3d 97
4th Cir.2019Background
- Michael Pense, a long-time employee of Maryland DPSCS, was placed on leave and then fired after disclosing he is gay and HIV positive; he sued raising state FEPA claims for sexual-orientation and disability discrimination.
- The Maryland Department of Public Safety and Correctional Services moved to dismiss the FEPA claims on Eleventh Amendment immunity grounds; the district court denied the motion, finding Maryland had waived sovereign immunity under Md. State Gov’t § 20-903.
- The State appealed the denial interlocutorily under the collateral order doctrine and obtained a district-court stay of proceedings pending this Court’s decision.
- The central statutory text: Md. State Gov’t § 20-903 ("The State, its officers, and its units may not raise sovereign immunity as a defense against an award in an employment discrimination case under this title.") and a venue provision requiring FEPA suits to be filed in state circuit court.
- The Fourth Circuit evaluated whether § 20-903 constitutes an "express" waiver of Eleventh Amendment immunity under Supreme Court precedent requiring a clear statement of consent to suit in federal court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Md. State Gov’t § 20-903 waives Eleventh Amendment immunity for FEPA claims | Pense: § 20-903 waives sovereign immunity and, by district-court precedent, applies in federal court | State: § 20-903 does not expressly consent to suit in federal court; Eleventh Amendment immunity remains | Held: No. § 20-903 does not expressly waive Eleventh Amendment immunity; FEPA claims against the Department are barred in federal court |
| Whether venue or other state statutes supply the necessary clear statement of consent to federal jurisdiction | Pense: Prior Maryland federal-court decisions and absence of a state-court-only limitation imply waiver | State: The venue provision specifying state circuit court suggests waiver limited to state courts; absence of explicit federal consent controls | Held: Absence of an express federal-court consent is dispositive; venue language does not show express waiver |
| Whether federal appellate jurisdiction exists to review denial of Eleventh Amendment immunity | Pense: Appeal is frivolous; no interlocutory jurisdiction | State: Collateral order doctrine permits interlocutory appeal of denial of Eleventh Amendment immunity | Held: Court has jurisdiction under the collateral order doctrine to review denial of Eleventh Amendment immunity |
| Whether a federal court should defer to state-high-court interpretations when available | Pense: Lee-Thomas supports deference where state highest court has construed similar statute | State: No controlling Maryland high-court construction for § 20-903 | Held: Deference applies only when the state’s highest court has construed the exact statute; here none exists, so the Fourth Circuit independently applied the Supreme Court’s stringent test |
Key Cases Cited
- P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (interlocutory appeal available for denial of Eleventh Amendment immunity)
- Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299 (state consent to suit must clearly indicate consent to federal-court jurisdiction)
- Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (stringent clear-statement rule for waiving Eleventh Amendment immunity)
- Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (state must expressly consent to suit in federal court)
- Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613 (states may waive Eleventh Amendment immunity; waiver standards explained)
- Regents of the Univ. of Cal. v. Doe, 519 U.S. 425 (Eleventh Amendment immunity can extend to state agents and instrumentalities)
- Lee-Thomas v. Prince George’s Cty. Pub. Sch., 666 F.3d 244 (Fourth Circuit defers to state high-court waivers when that court has applied Atascadero to the specific statute)
- Allen v. Cooper, 895 F.3d 337 (Fourth Circuit reaffirming that a State must expressly consent to federal-court suit to waive Eleventh Amendment immunity)
- Royster v. Gahler, 154 F. Supp. 3d 206 (D. Md. 2015) (district-court decision holding § 20-903 waived immunity; district precedent the Fourth Circuit rejected here)