UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-2477

MICHELE WILLIAMS,

Plaintiff - Appellant,

v.

MORGAN STATE UNIVERSITY; DEWAYNE WICKHAM, in his personal capacity,

Defendants - Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge. (1:19-cv-00005-GLR)

Submitted: December 21, 2020 Decided: March 18, 2021

Before KEENAN and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Daniel E. Kenney, DK ASSOCIATES, LLC, Chevy Chase, Maryland; Morris E. Fischer, MORRIS E. FISCHER, LLC, Silver Spring, Maryland, for Appellant. Brian E. Frosh, Attorney General, Catherine A. Bledsoe, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Michelle Williams appeals the district court’s orders dismissing her complaint and

denying her Fed. R. Civ. P. 59(e) motion. Because the district court erroneously relied on

the Eleventh Amendment in dismissing her complaint, we affirm in part, vacate in part,

and remand for further proceedings.

I.

Williams filed a four-count complaint in Maryland state court against Morgan State

University (“the University”) and Dean Dewayne Wickham (collectively, Defendants),

alleging claims of wrongful termination in violation of Maryland public policy (Count 1);

defamation (Count 2); retaliation in violation of the National Defense Authorization Act

for Fiscal Year 2013,

, and Section 1553 of the American Recovery and

Reinvestment Act of 2009,

Stat. 115, 297–302 (Count 3); and

discrimination and retaliation in violation of

(Count 4). Defendants

removed this case to federal court and moved to dismiss for failure to state a claim under

to Fed. R. Civ. P. 12(b)(6). In her opposition to the motion, Williams withdrew the § 1981

claim alleged in Count 4. In a reply brief, Defendants argued for the first time that

Williams’ retaliation claims in Count 3 were barred by the Eleventh Amendment and state

sovereign immunity.

The district court granted Defendants’ motion to dismiss. Although the court noted

Defendants first raised immunity in their reply brief, the court excused their failure to do

so because sovereign immunity is a jurisdictional issue. The court held that Defendants had immunity under the Eleventh Amendment. The court also found that Williams failed

to state a claim in Counts 1 and 2 of her complaint.

Williams filed a motion for reconsideration under to Fed. R. Civ. P. 59(e), solely

contending that the district court erred in dismissing Count 3 based on Eleventh

Amendment immunity. The district court denied her motion. The court emphasized that

Williams could have filed for leave to file a surreply brief to address immunity and that it

would have granted that request and that she may not use Rule 59(e) to excuse her failure

to do so. Williams timely appealed.

II.

On appeal, Williams contends that the district court erred in dismissing Count 3 and

in denying her Rule 59(e) motion. 1 “The existence of sovereign immunity is a question of

law that we review de novo.” S.C. Wildlife Fed’n v. Limehouse,

(4th

Cir. 2008) (brackets omitted) (quoting Franks v. Ross,

(4th Cir. 2002)).

Because we find that the district court erred in relying on the Eleventh Amendment rather

than answering the sovereign immunity question, we do not resolve whether the district

abused its discretion in denying the Rule 59(e) motion. So we vacate the immunity analysis

and remand for the district court to determine whether Maryland has waived its sovereign

immunity.

1 Because Williams does not contest the district court’s dismissal of her other claims, we affirm those portions of the district court’s dismissal order. See Grayson O Co. v. Agadir Int’l, LLC,

(4th Cir. 2017) (“A party waives an argument by failing to present it in its opening brief or by failing to develop its argument—even if its brief takes a passing shot at the issue.” (brackets and internal quotation marks omitted) (quoting Brown v. Nucor Corp.,

(4th Cir. 2015))). The Eleventh Amendment prevents federal courts from hearing “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.” U.S. Const. amend XI. This is a

rather narrow and precise provision that only bars a suit against a state by a noncitizen of

that state, which is not the case here. Va. Off. for Prot. & Advoc. v. Stewart,

,

253 (2011). Moreover, the Supreme Court has held that a State waives its Eleventh

Amendment immunity by voluntarily removing a case to federal court, which did occur

here. Lapides v. Bd. of Regents of the Univ. Sys. of Ga.,

, 619–20 (2002). For

both of those reasons, the Eleventh Amendment simply does not apply, and the district

court legally erred when it dismissed Williams’ retaliation claims solely based on Eleventh

Amendment immunity.

State sovereign immunity, on the other hand, is a broader doctrine that “bars all

claims by private citizens against state governments and their agencies, except where

Congress has validly abrogated that immunity or the state has waived it.” Passaro v.

Virginia,

(4th Cir. 2019). While courts often discuss both doctrines

under the banner of Eleventh Amendment immunity, “the sovereign immunity of the States

neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as

the Constitution's structure, its history, and the authoritative interpretations by [the

Supreme] Court make clear, the States’ immunity from suit is a fundamental aspect of the

sovereignty which the States enjoyed before the ratification of the Constitution, and which

they retain today.” Alden v. Maine,

(1999); see also Hans v. Louisiana,

, 15–16 (1890). Unlike Eleventh Amendment immunity, a state does not waive

its sovereign immunity by removing a suit to federal court. Passaro,

.

Although the Eleventh Amendment does not apply here, for the reasons stated

above, state sovereign immunity may apply and was not waived by removal. Yet the

district court did not answer whether Maryland waived its sovereign immunity through the

Maryland Tort Claims Act, Md. Code Ann., State Gov’t §§ 12-101 to -110. Because the

district court has not addressed this key legal issue, we remand to the district court for it to

address the issue in the first instance. See Lovelace v. Lee,

(4th Cir.

2006) (recognizing that “we are a court of review, not of first view” (alteration and internal

quotation marks omitted) (quoting Cutter v. Wilkinson,

, 718 n.7 (2005))). 2

III.

Accordingly, we affirm the district court’s dismissal order in part, vacate the district

court’s order dismissing Williams’ retaliation claim for Eleventh Amendment immunity,

and remand for further proceedings. By this disposition, we express no view on whether

Maryland has waived its sovereign immunity through the Maryland Tort Claims Act or on

the merits of Williams’ retaliation claims. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

2 For these same reasons, we decline to address Defendants’ arguments that Williams’ retaliation claims fail on the merits.