USCA4 Appeal: 21-1918 Doc: 46-2 Filed: 10/19/2022 Pg: 1 of 8

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1918

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)

Argued: September 16, 2022 Decided: October 13, 2022 Amended: October 19, 2022

Before WILKINSON, WYNN, and DIAZ, Circuit Judges.

Question certified to the Court of Appeals of Maryland by unpublished order.

ARGUED: Daniel Edward Kenney, DK ASSOCIATES, LLC, Chevy Chase, Maryland, for Appellant. Ann M. Sheridan, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: 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. USCA4 Appeal: 21-1918 Doc: 46-2 Filed: 10/19/2022 Pg: 2 of 8

ORDER

PER CURIAM:

In this appeal, Michele Williams challenges the district court’s grant of Morgan

State University’s motion to dismiss. Because the determinative issue hinges on a novel

question of Maryland state law, we certify the following question to the Court of Appeals

of Maryland:

Does the waiver of sovereign immunity for “tort action[s]” in the Maryland Tort Claims Act, Md. Code Ann., State Gov’t § 12-104(a)(1), extend to federal statutory claims, including those where the alleged harm is wrongful termination in retaliation for whistleblowing?

We acknowledge that the Court of Appeals of Maryland may reformulate this question.

.

I.

The Amended Complaint alleges these facts:

Between 2014 and 2017, Williams worked as Director of Broadcast Operations at

Morgan State University, where she was responsible for the oversight and management of

the University’s radio and television stations. In the lead-up to Baltimore’s 2016 mayoral

election, Williams organized a debate between the candidates. When the incumbent

Democratic candidate, Catherine Pugh, could no longer attend, Dean DeWayne Wickham

instructed Williams to cancel the debate. Wickham’s instruction conflicted with prior

guidance that non-attending candidates be given on-air interviews to replace debate time,

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and Williams alleges that Wickham canceled the debate at Pugh’s request. Wickham also

allegedly voiced displeasure when Williams granted requests for airtime to Republican and

Green Party candidates, threatening that things would “not end well” for Williams. J.A.

20. Williams believed Wickham’s actions violated the Hatch Act, Federal

Communications Commission regulations, and other state and federal laws, and she

complained to the University.

Williams also repeatedly complained to Wickham and other University leaders that

Morgan State was intentionally including inflated expense figures in reports to state and

federal agencies to secure larger grants and “pad the University’s funding.” J.A. 21.

Williams alleges that her complaints about the 2016 mayoral election and the misreporting

of funds led to her 2017 termination.

Williams brought wrongful-termination and defamation claims against the

University and Wickham in state court. She also pursued federal whistleblower claims

under the National Defense Authorization Act,

, and the American

Recovery and Reinvestment Act,

,

, 297–302

(2009). After exhausting her administrative remedies with the appropriate federal

agencies, Williams amended her complaint to allege federal whistleblower-retaliation

claims. The University removed the action to the U.S. District Court for the District of

Maryland.

On the University’s motion, the district court dismissed Williams’s suit, holding

that her federal claims were barred by Eleventh Amendment immunity. Williams v.

Morgan State Univ., No. GLR-19-5,

, at *5–6 (D. Md. Sept. 30, 2019).

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Williams appealed, and we vacated the district court’s dismissal of Williams’s federal

claims in an unpublished opinion. Williams v. Morgan State Univ.,

, 174

(4th Cir. 2021). We concluded the University’s Eleventh Amendment immunity didn’t

apply under the circumstances but remanded for consideration of whether Maryland’s state

sovereign immunity barred Williams’s claims.

at 173–74. That immunity is “broader”

than Eleventh Amendment immunity and isn’t waived when a state removes a suit to

federal court.

.

On remand, the district court again dismissed Williams’s federal claims, holding

that Maryland hadn’t waived its sovereign immunity for federal statutory causes of action.

Williams v. Morgan State Univ., No. GLR-19-5,

, at *6 (D. Md. July 26,

2021). This appeal followed.

While neither party has moved for certification, we raised the possibility at oral

argument and both parties agreed certification would be appropriate.

II.

The Maryland Uniform Certification of Questions of Law Act permits the Court of

Appeals of Maryland to answer a question of law certified by this court when (1) the answer

“may be determinative of an issue in pending litigation” and (2) there is no existing state

“appellate decision, constitutional provision, or statute” that controls.

. Both criteria are satisfied here.

First, the question of whether the “tort action” waiver in the Maryland Tort Claims

Act (“MTCA”) covers Williams’s federal statutory claims will determine whether those

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claims can proceed. The University is an instrumentality of the state,

(a)(2), to which Maryland’s sovereign immunity applies unless validly

abrogated by Congress or waived by the state, see Passaro v. Virginia,

(4th Cir. 2019).

Williams concedes that neither the National Defense Authorization Act nor the

American Recovery and Reinvestment Act abrogates Maryland’s sovereign immunity.

Instead, she argues that the Maryland General Assembly waived immunity for her claims

through the “tort action” waiver in the MTCA:

Subject to the exclusions and limitations in this subtitle and notwithstanding any other provision of law, the immunity of the State and of its units is waived as to a tort action, in a court of the State, to the extent provided under paragraph (2) of this subsection.

Md. Code Ann., State Gov’t § 12-104(a)(1). *

The district court held that the MTCA’s waiver didn’t encompass Williams’s federal

whistleblower claims, concluding that “the phrase ‘tort action’ has an ordinary meaning

and it does not include federal statutory causes of action.” Williams,

,

at *6 (citing Bd. of Educ. of Balt. Cnty. v. Zimmer-Rubert,

(Md. 2009)).

The sole issue on appeal is whether that conclusion was correct.

Second, there is no conclusive state appellate precedent or statute that controls. The

MTCA doesn’t define “tort action.” And while some cases from the Court of Appeals of

* Paragraph (2) limits liability to $400,000 per claimant for injuries arising from a single incident or occurrence and sets aggregate limits on liability arising from “intentional tortious acts or omissions or a violation of a constitutional right committed by a law enforcement officer.”

§ 12-104(a)(2).

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Maryland suggest “tort action” should be read broadly, the Court of Appeals has never

addressed the specific question of whether Section 12-104’s waiver covers federal

statutory claims.

For example, Williams cites Lee v. Cline, in which the Court of Appeals determined

that a separate provision of the MTCA, which grants qualified immunity to state personnel

for “tortious act[s] or omission[s],” extends to claims of state constitutional violations and

intentional torts.

, 302 n.1, 303 (Md. 2004). The Court of Appeals

emphasized that the text of the MTCA has no exceptions for intentional or constitutional

torts and stated its “reluctan[ce] to recognize exceptions in a statute when there is no basis

for the exceptions in the statutory language.”

. But as the University argues, Lee

involved claims brought under state rather than federal law and thus doesn’t resolve the

issue before us.

Other cases discussed by the parties similarly don’t control. See, e.g., Espina v.

Jackson,

(Md. 2015) (damages cap in Maryland’s Local Government

Tort Claims Act,

(a), which applies to claims

based on “tortious acts and omissions” of local government employees, extends to state

constitutional torts); Green v. N.B.S., Inc.,

, 286–88 (Md. 2009) (non-MTCA

statutory damages cap for “victim[s] of tortious conduct” applies to a claim brought under

Maryland’s Consumer Protection Act); Lopez v. Md. State Highway Admin.,

(Md. 1992) (plaintiff bringing claim against state agency under Maryland’s wrongful

death statute was required to comply with the procedural requirements of the MTCA).

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We believe this appeal raises a question of Maryland law for which there is no

controlling precedent. And we have said that “a state’s highest court is entitled to say what

that state’s law is on the question of consent to suit in federal court.” Lee-Thomas v. Prince

George’s Cnty. Pub. Schs.,

(4th Cir. 2012). Given the weighty concerns

of state sovereign immunity at issue and our obligation to respect the “sovereign dignity”

of the states, Alden v. Maine,

(1999), we believe whether Maryland has

waived immunity for Williams’s claims is best answered by the Court of Appeals of

Maryland.

III.

Accordingly, we hereby ORDER: (1) that the question stated above be certified to

the Court of Appeals of Maryland for answer with Michele Williams treated as the

appellant in the certification procedure; (2) that the Clerk of this Court forward to the Court

of Appeals of Maryland, under the official seal of this Court, a copy of this Order, together

with the original copies of the record before this Court to the extent requested by the Court

of Appeals of Maryland; and (3) that the Clerk of this Court fulfill any request for all or

part of the record simply upon notification from the Clerk of Court of the Court of Appeals

of Maryland.

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Entered at the direction of Judge Diaz with the concurrence of Judge Wilkinson and

Judge Wynn.

QUESTION CERTIFIED

FOR THE COURT

Albert Diaz Circuit Judge

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