Waiver of Sovereign Immunity Does Not Apply to Federal Statutory Claims
The doctrine of sovereign immunity is an "ancient" concept. It is the
long-established view that a sovereign, such as a state, is
"infallible," and, thus, immune from suit "absent the State's consent."
The General Assembly provided such consent in the Maryland Tort Claims
Act which waives the State's immunity.
In Michele Williams v. Morgan State University, et al., No. 9-2022,
Maryland Supreme Court (August 14, 2023) the Supreme Court advised the
Fourth Circuit of its evaluation of the states statute waiving the
State's immunity to a tort action in a court of the State.
As to her federal claims against MSU, Appellant alleges that her
termination by MSU was impermissible retaliation for disclosing that the
University, primarily Dean Wickham, had overstated "the University's
operating costs to the Corporation for Public Broadcasting and the
United States Department of Education and . . . attempted to influence
the 2016 Baltimore mayoral race by violating FCC regulation[s]."
Eventually, the Fourth Circuit certified a question of law to the
Supreme Court: “Does Maryland's waiver of sovereign immunity for ‘a tort
action’ under the MTCA extend to federal statutory claims?”
BACKGROUND
Under the MTCA, a party injured by the negligent act or omission of a
state officer or employee within the scope of the officer's or
employee's public duties may obtain compensation for that injury from
the State. By its plain terms, the statute provides that the scope of
the State's waiver of sovereign immunity is not waived for, among other
things, "[a]ny tortious act or omission of State personnel that: (i)
[i]s not within the scope of the public duties of the State personnel;
or (ii) [i]s made with malice or gross negligence[.]"
The other central component of the MTCA, in addition to its waiver of
the State's sovereign immunity for tortious acts or omissions by State
personnel, is a corresponding immunity from suit and from liability in
tort for State personnel. The MTCA also contains certain limitations on
the scope of the waiver of the State's sovereign immunity beyond those
that are dependent on the actions of the State personnel.
ANALYSIS
The Supreme Court concluded, and so advised the USCA that the MTCA does
not waive the State's sovereign immunity for federal statutory claims.
Concluding that the General Assembly did not intend for "a tort action"
under the MTCA to include federal statutory causes of action the Supreme
Court noted that the MTCA's waiver provision contains no express
language indicating such a result, and the General Assembly knows how to
effectively waive the State's immunity, if that is its goal.
Furthermore, extending the scope of the waiver provision to federal
statutory claims is inconsistent with both the key, neighboring
provisions concerning the interplay between the State and a State
employee's immunity in certain suits, as well as the MTCA's role as a
gap-filler scheme. The certified question posed by the Fourth Circuit,
and slightly rephrased by the Supreme Court is whether "a tort action"
under the MTCA includes federal statutory claims. The Supreme Court's
answer was "no." It so held because, after assessing the plain language
of the MTCA, there is no evidence that the General Assembly intended to
include federal statutory claims within the scope of the MTCA.
ZALMA OPINION
Every person dealing with insurance for public entities, the MSU, must
understand the application of sovereign immunity that limits the need of
such public entities to secure insurance to protect the governmental
entity from charges that have not been waived. Insurance calculations
should be limited to the needs of the entity to protect against those
things where the state has waived sovereign immunity and not where
sovereign immunity was not waived.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
