Bunch v. Robinson

⁴⁴⁰ DAVIS, Judge. Appellant Edward Bunch, III, formerly a parole and probation officer, and appellants Henry Boulware and Charles Woods, currently parole and probation officers for the State of Maryland, filed claims, alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 , et seq., and seeking monetary and injunctive relief in the United' States District Court for the District of Maryland on April 7, 1995. After the federal suit was dismissed on December 11, 1996, appellants pursued the same claim in the Circuit Court for Baltimore City. Secretary of the Maryland Department of Public Safety and Correctional Services, appellee Bishop Robinson, moved to dismiss appellants’ amended complaint and memorandum.

Pursuant to the motion and a reply filed in opposition thereto, the Circuit Court for Baltimore City conducted a hearing on September 8, 1997, after which it held the matter sub curia. The court issued its order and memorandum opinion granting the motion to dismiss, and appellants timely noted the instant appeal. On this appeal, appellants, joined by amicus, the United States, ask us to decide: I. Whether the Supremacy Clause of the United States Constitution requires the circuit court to enforce the FLSA as mandated by Congress.

II

Whether the Eleventh Amendment immunity under the federal constitution is synonymous with state common-law immunity. In addition to the issues raised jointly by appellants and in their brief, amici, the United States Department of Labor and the United States Department of Justice, additionally ask us to decide: III. Whether the proper avenue for State employees to enforce rights created by the FLSA is the State administrative grievance procedure when some of the remedies available under the FLSA are not available under the State grievance procedure. ⁴⁴¹ We shall answer the first issue in the affirmative and the second and third issues in the negative. Accordingly, we shall reverse the decision of the trial court and remand the case for further proceedings consistent with this opinion.

FACTUAL BACKGROUND The underlying cause of action from which this appeal emanates was based on appellants’ claim for compensation under the FLSA for being assigned duties that could not be accomplished in a forty-hour work week, but for which appellants were not paid overtime when their work week exceeded forty hours. Appellants Bunch, Boulware, and Woods were probation agents employed by the Division of Parole and Probation (DPP) of the Maryland Department of Public Safety and Correctional Services (Department). Appellee Robinson was the Secretary of the Department at the time of the proceedings in the lower court. On April 5, 1994, prior to the FLSA claim, the Department terminated Bunch, charging him with incompetence and inefficiency in the performance of his duties.

Bunch appealed the charges for removal and, after a hearing on the merits before the Office of Administrative Hearings (OAH) on September 9, 1994, the administrative law judge (ALJ) found that Bunch had violated certain sections of COMAR, 1 constituting sufficient cause for termination. A final order adopting the findings, conclusions, and proposed decision of the ALJ that Bunch be removed from State service was issued on November 22, 1994; that order was sustained by the Circuit Court for Baltimore City. The circuit court’s judgment was affirmed by this Court in a per curiam opinion dated March 25, 1997. As stated above, on April 7, 1995, appellants filed suit in the United States District Court, seeking compensation under the FLSA for not receiving overtime pay for work exceeding forty hours per week.

The district court, citing Seminole Tribe of ⁴⁴² Florida v. Florida, 517 U.S. 44 , 116 S.Ct. 1114 , 134 L.Ed.2d 252 (1996), dismissed appellants’ lawsuit on December 11, 1996, holding that the court lacked subject matter jurisdiction as the FLSA did not abrogate the states’ Eleventh Amendment immunity. Appellants thereafter filed suit in the Circuit Court for Baltimore City, reasserting the same claim that had been dismissed in the federal district court. THE CIRCUIT COURT’S DECISION The Circuit Court for Baltimore City, in holding that the Commerce Clause of the United States Constitution does not give Congress the authority to abrogate common-law based state sovereign immunity, opined: In the case before this [c]ourt, the [appellants’] FLSA claim is brought against [appellee] in his capacity as Secretary of the Maryland Department of Public Safety, and is therefore a suit against a State agency. This suit was brought under the express language of the 1974 amendments to the FLSA which imposed it on the states under the authority of the Interstate Commerce Clause.

Observing that the issue before the trial court had been decided by at least two jurisdictions since the Supreme Court’s decision in Seminole Tribe, the court relied on a decision of the Dane County, Wisconsin Circuit Court, German v. Wisconsin Dep’t of Transp., Case No. 96-CV-1261 (March 11,1997), wherein that court held: It would be anomalous if the “States’ rights” justices who authored Seminole Tribe, and who vigorously dissented in Garcia, acted to uphold [the] States’ Eleventh Amendment immunity from suit but, at the same time, affirmed congressional authority to overcome a State’s own sovereign immunity under its State constitution. German, slip op. at 5 n. 5. The Circuit Court for Baltimore City continued, in its memorandum opinion, concluding that, although the Maryland Constitution does not expressly have such a provision [comparable to Wisconsin’s Constitution], this concept that the legislature must decide where and when suits can be brought against its State is deeply rooted ⁴⁴³ in Maryland’s common law doctrine of State sovereign immunity. “Parties having claims or demands against [the State of Maryland], must present them through another department of the Government — the Legislature — and cannot assert them by suit in the courts. State v. B & O RR Co., 84 Md. 344, 374 (1871).” The trial court, in its memorandum opinion, ultimately held: ...

Applying the holding of Seminole Tribe, every jurisdiction that has considered the issue has concluded that Congress lacked authority, in enacting amendments to the FLSA under the Commerce Clause, to abrogate Eleventh Amendment immunity. Since Congress has not abrogated the States’ Eleventh Amendment sovereign immunity under an appropriate exercise of congressional authority, it logically follows that neither has Congress altered the States’ common-law sovereign immunity with respect to a FLSA claim. Although this [c]ourt holds that this action must be dismissed, this conclusion does not mean that the FLSA does not apply to the State. It only means that a suit for damages against the State cannot be maintained in State or Federal Court.

Further, this [c]ourts’ [sic] ruling does not leave the State employees with inadequate means of pursuing their complaints. The [appellants], as State employees, have access to an adequate and available administrative remedy to redress their claims. The General Assembly structured a multi-tiered grievance mechanism which covers disputes between the employee and employer about the interpretation of a personnel policy or regulation adopted by the Secretary. The purpose of the employee grievance procedure was to provide employees a means of seeking redress for alleged wrongs and was created to centralize and streamline cases involving State employees’ grievances arising from their employment.

(Citations omitted.) Based on the above holding, the Circuit Court for Baltimore City granted appellee’s motion to dismiss and this appeal followed. ⁴⁴⁴ STANDARD OF REVIEW We begin our analysis by setting forth the appropriate standard of review. In considering a motion to dismiss made pursuant to Maryland Rule 2-322(b), a court must assume the truth of all well-pleaded material facts and all inferences that can be drawn from them. Rossaki v. NUS Corp., 116 Md.App. 11, 18 , 695 A.2d 203 (1997); Society of Am. Foresters v. Renewable Natural Resources Found., 114 Md.App. 224, 232 , 689 A.2d 662 (1997); Simms v. Constantine, 113 Md.App. 291, 294 , 688 A.2d 1 (1997).

The grant of a motion to dismiss is proper if the complaint does not disclose, on its face, a legally sufficient cause of action. Rossaki, 116 Md.App. at 18 , 695 A.2d 203 ; Society of Am. Foresters, 114 Md.App. at 232 , 689 A.2d 662 ; Simms, 113 Md.App. at 294 , 688 A.2d 1 . The complaint need not specify with minute particularity that which ultimately need be proved; rather, it is enough that the complaint state with reasonable certainty the cause of action.

Simms, 113 Md.App. at 295 , 688 A.2d 1 . When reviewing the grant of a motion to dismiss, we must determine whether the trial court was legally correct in determining that the complaint did not set forth a legally sufficient cause of action. Rossaki, 116 Md.App. at 18 , 695 A.2d 203 . DISCUSSION In this case, essentially we are asked to decide whether the FLSA may be applied to a unit of the state government and enforced in state court.

For some years following the Supreme Court’s decision in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 , 105 S.Ct. 1005 , 83 L.Ed.2d 1016 (1985) (subjecting a local government to the FLSA), such application was, for the most part, constitutionally uncontroverted. In a recent line of cases culminating in Printz v. United States, — U.S.-, 117 S.Ct. 2365 , 138 L.Ed.2d 914 (1997), however, the Supreme Court has imposed limits, either through the Commerce Clause or the Tenth and Eleventh Amendments, on the power of Congress to enact legislation that affects state and local governments. See, e.g., Seminole ⁴⁴⁵ Tribe of Florida v. Florida, 517 U.S. 44 , 116 S.Ct. 1114 , 134 L.Ed.2d 252 (1996) (Eleventh Amendment); United States v. Lopez, 514 U.S. 549 , 115 S.Ct. 1624 , 131 L.Ed.2d 626 (1995) (Commerce Clause); New York v. United States, 505 U.S. 144 , 112 S.Ct. 2408 , 120 L.Ed.2d 120 (1992) (Tenth Amendment).

These cases recognize that state sovereignty is a valued and well-settled concept in the law, yet do not specifically overrule Garcia . It is the conflict between state sovereign immunity and Congress’s desire to regulate wages and work hours pursuant to its powers under the Commerce Clause that has created the quagmire of conflicting interests into which this case falls. I Appellants and amicus argue that, pursuant to the Supremacy Clause of the United States Constitution, the FLSA precludes the State’s, i.e., appellee’s, common-law defense of sovereign immunity and, therefore, the circuit court erred when it declined to consider the FLSA claims. Appellee counters, asserting that the circuit court properly held that the State’s common-law sovereign immunity bars appellants’ FLSA claims in State court because the Commerce Clause, the source of power behind the enactment of the FLSA, is insufficient constitutional authority to abrogate state sovereign immunity.

Despite the imperative interest of state sovereign immunity, we agree with appellants. Neither appellants nor appellee contest that the United States Congress expressly intended for the FLSA to apply to state employers. The minimum wage and overtime provisions of the FLSA apply to any “[ejmployer.” 29 U.S.C. §§ 206 and 207. The definition of “employer” includes a “public agency.” 29 U.S.C. § 203 (d). “Public agency” is defined to include “the government of a State.” 29 U.S.C. § 203 (x).

Further, a covered “employee” includes, with certain exceptions not applicable here, “any individual employed by a State.” 29 U.S.C. § 203 (e)(2)(c). ⁴⁴⁶ The Supremacy Clause 2 of the United States Constitution provides: The Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const, art. VI, cl. 2 (emphasis added). By its terms, the Supremacy Clause speaks directly to state judges, who “shall be bound” (1) to recognize the supremacy of federal law, like the FLSA, and (2) to resolve any conflicts between state and federal law in favor of federal law.

The Supreme Court, in a unanimous decision, has stated that “[fjederal law is enforceable in state courts ... because the Constitution and laws passed pursuant to it are as much law in the States as laws passed by the state legislature.” Howlett v. Rose, 496 U.S. 356, 367 , 110 S.Ct. 2430 , 110 L.Ed.2d 332 (1990). “State courts must interpret and enforce faithfully the ‘supreme Law of the Land’ and their decisions are subject to review by [the Supreme] Court.” McKesson Corp, v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 29 , 110 S.Ct. 2238 , 110 L.Ed.2d 17 (1990). Indeed, the duty of state judges to apply federal law is inherent in our nation’s constitutional system of government. See, e.g., Testa v. Katt, 330 U.S. 386, 389-90 , 67 S.Ct. 810 , 91 L.Ed. 967 (1947); Martin v. Hunter’s Lessee, 1 Wheat. 304 , 14 U.S. 304, 340 , 4 L.Ed. 97 (1816). Consequently, when Congress acts within its enumerated powers to create a federal ⁴⁴⁷ cause of action that imposes liability on the states, state courts of general jurisdiction may not refuse to hear the federal claim.

See id. (reversing a state court’s refusal to enforce the double damage provisions of the Emergency Price Control Act). The State’s assertion of sovereign immunity in this case does not alter the duty of the State court to enforce federal law that imposes liability on the states when that law has been validly enacted pursuant to Congress’s enumerated powers. Notably, the Howlett Court made clear that a state may not refuse to hear a federal cause of action by relying upon state law based sovereign immunity or by claiming a lack of jurisdiction due to sovereign immunity.

Howlett, 496 U.S. at 378-88 , 110 S.Ct. 2430 . In Howlett , the Court was asked to decide whether common-law sovereign immunity was available to a state school board to preclude a claim under 42 U.S.C. § 1983 . 3 The state court had dismissed the lawsuit on grounds that the school board, as an arm of the state, had not waived its sovereign immunity in § 1983 cases. The Supreme Court noted that the dismissal in state court raised concern that the state may be evading federal law and discriminating against federal causes of action. The Supreme Court held that state common-law immunity could not defeat a claim under a federal statute: Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum — although both might well be true — but because the Constitution and law passed pursuant to it are as much laws in the States as laws passed by the state legislature. ⁴⁴⁸ Howlett, 496 U.S. at 367 , 110 S.Ct. 2430 .

Accordingly, a state may refuse to enforce a federal statute against a state agency under very limited circumstances. See id. at 369-72 , 110 S.Ct. 2430 . “A state court may not deny a federal right, when the parties are properly before it, in the absence of a ‘valid excuse.’ ” Id. at 369 , 110 S.Ct. 2430 (quoting Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377 , 49 S.Ct. 355 , 73 L.Ed. 747 (1929)). An excuse that is “inconsistent with or violates federal law is not a valid excuse.” Howlett, 496 U.S. at 371 , 110 S.Ct. 2430 . “When Congress, in the exertion of the power confided to it by the Constitution, adopted the act, it spoke for all the people and all the States and thereby established a policy for all.” Id. Relying on Owen v. City of Independence, 445 U.S. 622 , 100 S.Ct. 1398 , 63 L.Ed.2d 673 (1980), and Martinez v. California, 444 U.S. 277 , 100 S.Ct. 553 , 62 L.Ed.2d 481 (1980), the Howlett Court expressly held that state common-law immunity is eliminated by acts of Congress in which Congress expressly makes the states liable.

Howlett, 496 U.S. at 376 , 110 S.Ct. 2430 . In that regard, the Court reasoned that, as to persons that Congress subjected to liability, individual States may not exempt such persons from federal liability by relying on their own common-law heritage. If we were to uphold the immunity claim in this case, every state would have the same opportunity to extend the mantle of sovereign immunity to “persons” who would otherwise be subject to § 1983 liability. States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the people.

Id. at 383, 110 S.Ct. 2430 . Similarly, in McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18 , 110 S.Ct. 2238 , 110 L.Ed.2d 17 (1990), and Reich v. Collins, 513 U.S. 106 , 115 S.Ct. 547 , 130 L.Ed.2d 454 (1994), the Supreme Court held that, when states collect taxes in violation of federal law, an assertion of state sovereign immunity does not bar a claim for retroactive monetary relief in state court. Specifically, the Court in ⁴⁴⁹ McKesson held that the Due Process Clause required that the state, which had collected taxes in violation of the Commerce Clause, provide a retroactive monetary remedy. Further, as indicated supra, the Court explained that, to secure “national uniformity” of federal law, state courts “must interpret and enforce faithfully the ‘supreme law of the land.’ ” McKesson, 496 U.S. at 29 , 110 S.Ct. 2238 .

In Reich , the Court held that a denial by a state court of a recovery of taxes exacted a violation of the laws or Constitution of the United States by compulsion is itself in contravention of the Fourteenth Amendment ... the sovereign immunity States traditionally enjoy in their own courts notwithstanding. Reich, 513 U.S. at 109-10 , 115 S.Ct. 547 . In so holding, the Court contrasted the state’s amenability to suit in state court, notwithstanding an assertion of sovereign immunity, to the Eleventh Amendment bar against suits for tax refunds in federal court. Id. at 110 , 115 S.Ct. 547 .

In Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197 , 112 S.Ct. 560 , 116 L.Ed.2d 560 (1991), the Supreme Court held, as it had in Howlett , that the Supremacy Clause requires that federal law be enforced in all state courts and that federal law supersede any state laws that interfere with the federal law. In Hilton , a six-to-two decision with one justice not participating, the Court examined whether the State Public Railways Commission could be sued in state court for a Federal Employer’s Liability Act (FELA) claim, when the Eleventh Amendment has provided the states with protection against FELA suits in federal courts.

First, the Court observed that the notion of symmetry of state immunity from liability, that is, immunity in both state and federal courts, had many commendable aspects. Nevertheless, the Court was not persuaded to grant immunity in state court based solely on the positive aspects of symmetry with Eleventh Amendment immunity. Rather, it focused on stare decisis and on the fact that the Court for twenty-eight years had interpreted the FELA to include claims against state-owned railroads. Additionally, in Welch v. Texas Dept. of Highways & Pub.

Transp., 483 U.S. 468 , 107 S.Ct. 2941 , 97 L.Ed.2d 389 (1987), the Court ⁴⁵⁰ had held that the Eleventh Amendment did not void state immunity in federal court for Jones Act claims. Because of the Welch decision and the fact that the Jones Act incorporated the FELA remedial scheme, the plaintiffs in Hilton dismissed the federal action and filed in state court. Accordingly, the Court adhered to its precedent that states were liable for FELA claims while noting that the Welch decision did not address the most vital consideration of our decision today, which is that to confer immunity from state-court suit would strip all FELA and Jones Act protection from workers employed by the States[.] Hilton, 502 U.S. at 203 ., 112 S.Ct. 560 Because the FELA imposed liability on the states, the Court concluded that the Supremacy Clause made it fully enforceable against the states in state courts. The Hilton opinion did not specifically discuss the conflict between the Supremacy Clause and state sovereign immunity, but it cited Howlett in support of its conclusion that the federal law should be enforced in state court.

Neither Howlett nor Hilton has been overruled by the Supreme Court, and we believe they, along with other cases to be cited infra, control the decision in this case. In Jacoby v. Arkansas Dep’t of Education, 331 Ark. 508 , 962 S.W.2d 773 (1998), the Supreme Court of Arkansas considered the same issue and reached the same conclusion as we do in the instant case. There, the court, relying heavily on Hilton and Howlett , held that the Eleventh Amendment poses no bar to the assertion of FLSA claims in state court and that, under the Supremacy Clause, the state is not immune from suit in state court for claims under the FLSA. In so holding, the court noted that it did “not deem the fact that Seminole Tribe v. Florida, [ 517 U.S. 44 , 116 S.Ct. 1114 , 134 L.Ed.2d 252 (1996) ] has struck down state liability for FLSA claims in federal courts as determinative of state liability in its own courts.” Jacoby, 962 S.W.2d at 777 .

Further, the court stated: The FLSA remains valid law protecting employees and empowering them to enforce claims for unpaid wages. This ⁴⁵¹ law remains the law throughout the land, and state sovereign immunity cannot impede it. Id; see also Wilson-Jones v. Caviness, 99 F.3d 203, 211 (6th Cir.1996) (stating in dicta that “State employees may sue in state court for money damages under the FLSA, and a state court would be obligated by the Supremacy Clause to enforce federal law”). Noting a policy reason in support of its conclusion, the Jacoby court opined: There is, of course, a uniformity consideration inherent in the principle of supreme law of the land.

If the matter is left to the individual states to determine whether the state sovereign immunity offers state employees sufficient protection, the result may well be a patchwork quilt of FLSA enforcement with some state courts permitting FLSA claims against state employers and other state courts declining to do so. Jacoby, 962 S.W.2d at 777 . The court in Jacoby also noted that several state appellate courts have not been persuaded that the Supremacy Clause preempts the immunity of a state sovereign against suit in its own courts. 4 Those cases, however, as noted in Jacoby , were decided before Hilton and Howlett . The Jacoby court also did not find persuasive “some ambiguous language in the Seminole Tribe opinion concerning ‘unconsenting states’ [that] has been seized upon as support for ⁴⁵² the proposition that state consent is a prerequisite to state liability in its own courts for violation of a federal right.” Jacoby, 962 S.W.2d at 778