Case vacated and remanded by Supreme
Court order filed 5/20/02
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHEILA K. MONTGOMERY,
Plaintiff-Appellant,

v.

THE STATE OF MARYLAND;
DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONAL SERVICES, Division of
                                                               No. 00-2099
Corrections; ROBERT KUPEC,
Warden; GEORGE KALOROUMAKIS,
Assistant Warden,
Defendants-Appellees.

UNITED STATES OF AMERICA,
Amicus Curiae.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-00-1019)

Argued: May 8, 2001

Decided: September 26, 2001

Before WILKINSON, Chief Judge, and WILKINS and
LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Wilkins and Judge Luttig joined.

_________________________________________________________________
COUNSEL

ARGUED: Jonathan Richard Siegel, GEORGE WASHINGTON
UNIVERSITY SCHOOL OF LAW, Washington, D.C., for Appellant.
Alisa Beth Klein, Appellate Staff, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
Curiae. Andrew Howard Baida, Solicitor General, Baltimore, Mary-
land, for Appellees. ON BRIEF: Deborah A. Jeon, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND,
Centreville, Maryland; Robin R. Cockey, COCKEY, BRENNAN &
MALONEY, Salisbury, Maryland, for Appellant. David W. Ogden,
Assistant Attorney General, Lynne A. Battaglia, United States Attor-
ney, Mark B. Stern, Appellate Staff, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Amicus Curiae. J. Joseph Curran, Jr., Attorney General of Maryland,
Scott S. Oakley, Assistant Attorney General, Amanda S. La Forge,
Staff Attorney, Baltimore, Maryland, for Appellees.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

This case requires us to decide whether the district court properly
dismissed plaintiff's suit on sovereign immunity grounds. We affirm
the dismissal, but for reasons different from the district court.

I.

Plaintiff Sheila Montgomery worked as an administrative aide to
the Warden of Maryland's Eastern Correctional Institute (ECI). In
September 1999, Montgomery took extended leave under the Family
Medical Leave Act (FMLA) to have a scheduled surgical procedure.
During her absence, Montgomery was reassigned to a position as a
secretary in the maintenance department. It is undisputed that this
new assignment kept her at the same pay grade and increment level
within the Maryland State Personnel Management System. It is also
undisputed that Montgomery suffered no loss of benefits. Montgom-
ery, however, felt that this transfer amounted to a retaliatory demotion

                  2
in response to her having taken FMLA leave. She filed suit against
the State of Maryland, ECI Warden Robert Kupec, and ECI Assistant
Warden George Kaloroumakis. Kupec and Kaloroumakis were sued
in both their individual and official capacities.

In response to Montgomery's suit, Maryland filed a motion to dis-
miss. At first, the state argued both that sovereign immunity barred
Montgomery's suit and that Montgomery had failed to state a claim
because she was returned to an equivalent position. Before Montgom-
ery replied, however, Maryland withdrew the Eleventh Amendment
defense on behalf of all defendants.

Notwithstanding Maryland's withdrawal of the argument, the dis-
trict court, sua sponte, dismissed Montgomery's suit on sovereign
immunity grounds. Noting its "duty not to enforce unconstitutional
statutes," the court held that the FMLA did not abrogate Maryland's
sovereign immunity. The district court also held that the state's with-
drawal of the sovereign immunity defense did not amount to giving
consent to be sued in federal court. The court dismissed the complaint
against all defendants. Montgomery then filed this appeal.

II.

A.

We first ask whether the district court erred in deciding the sover-
eign immunity question. In Wisconsin Department of Corrections v.
Schacht, 524 U.S. 381 (1998), the Supreme Court discussed whether
the Eleventh Amendment defense is one that courts must always
address, even sua sponte. In that case, the Court considered whether
the presence of one claim subject to Eleventh Amendment immunity
deprived the district court of removal jurisdiction over the entire suit
or whether federal jurisdiction survived with respect to the remaining
claims. Id. at 386. Holding that the presence of a claim barred by the
Eleventh Amendment does not destroy removal jurisdiction over the
entire suit, the Court noted that the Eleventh Amendment "does not
automatically destroy original jurisdiction" because the "State can
waive the defense." Id. at 389. Accordingly, the Court reasoned that
a district court need not "raise the defect on its own" and that

                  3
"[u]nless the State raises the matter [i.e., the defense of sovereign
immunity], a court can ignore it." Id.

The district court failed to recognize the discretion afforded it by
Schacht. To the contrary, the court explained its sua sponte consider-
ation of the Eleventh Amendment issue as being required by its "duty
not to enforce unconstitutional statutes." The court would have been
well advised, however, not to take up the Eleventh Amendment
defense. When a state clearly contemplates the defense of sovereign
immunity and then affirmatively and unequivocally decides to with-
draw that argument, a district court errs in considering the issue sua
sponte. This is true regardless of how the court ultimately rules. The
Eleventh Amendment reflects the principle that in a federal system
with dual sovereigns, one sovereign must treat the other with a mea-
sure of respect. See South Carolina State Ports Authority v. Federal
Maritime Commission, 243 F.3d 165, 172 (4th Cir. 2001) ("dual sov-
ereignty posits a relationship of mutual respect "). This goal is under-
mined when a federal court imposes on a state a legal argument that
the state first advanced but then affirmatively withdrew.1  1

B.

In the appeal before this court, the State of Maryland reversed
course and decided to aggressively invoke the defense of sovereign
immunity. When asked at oral argument, counsel for the state
unequivocally stated that Maryland was invoking its sovereign immu-
nity as a defense to Montgomery's suit. This assertion was followed
by a letter which confirmed, for the record, that "the State appellees
assert that the Eleventh Amendment bars the plaintiff's claim filed
_________________________________________________________________

1 We do not, of course, address the propriety of sua sponte consider-
ation of Eleventh Amendment defenses which the state has not raised.
See, e.g., Higgins v. Mississippi, 217 F.3d 951, 954 (7th Cir. 2000)
(affirming the dismissal of a pro se prisoner suit on Eleventh Amend-
ment grounds, even though the state did not respond, because doing so
protected the state from frivolous federal litigation and served the "inter-
est in maintaining harmonious relations between the states and the fed-
eral government") (internal quotations omitted). Such a situation does
not reflect the same affront to state prerogatives as consideration of a
defense which the state has affirmatively and unequivocally withdrawn.

                   4
under the Family Medical Leave Act." Because Maryland has pursued
in this litigation what might be described as an erratic approach to its
own Eleventh Amendment defense, we address whether this court has
the discretion to consider Maryland's assertion of immunity even
though the Attorney General attempted to withdraw it below. We con-
clude that we do have discretion, and that there is a substantial differ-
ence between consideration of an Eleventh Amendment defense in the
face of an affirmative withdrawal and consideration of the defense in
the face of an emphatic assertion of the immunity.

It is axiomatic "that the Eleventh Amendment defense sufficiently
partakes of the nature of a jurisdictional bar so that it need not be
raised in the trial court." Edelman v. Jordan, 415 U.S. 651, 678
(1974). As the Supreme Court has explained, "[t]he Eleventh Amend-
ment declares a policy and sets forth an explicit limitation on federal
judicial power of such compelling force that this Court will consider
the issue arising under this Amendment in this case even though
urged for the first time in this Court." Ford Motor Co. v. Dep't of
Treasury, 323 U.S. 459, 467 (1945).

Further, circuit precedent allows the Eleventh Amendment to be
raised for the first time on appeal, regardless of whether the case was
resolved on the pleadings, see Suarez Corp. Indus. v. McGraw, 125
F.3d 222 (4th Cir. 1997), or upon a grant of summary judgment, see
In re Creative Goldsmiths, Inc., 119 F.3d 1140 (4th Cir. 1997).
Indeed, a rule that prevented an appellate court from considering the
defense sua sponte would impair the important sovereign interest that
the Eleventh Amendment protects. Thus, the fact that Maryland did
not assert the immunity defense below does not preclude the state
from asserting it now.

Montgomery contends, however, that Maryland's conduct before
the district court amounted to a waiver of the sovereign immunity
defense. It is undisputed that the defense of sovereign immunity can
be waived. See South Carolina Ports, 243 F.3d at 170. And Mont-
gomery claims that by withdrawing the sovereign immunity argument
from its motion to dismiss, Maryland waived the defense.

Under Maryland law, however, the Attorney General may not dis-
positively waive the defense of sovereign immunity on behalf of the

                  5
state. In Linkenhoker v. Weinberger, 529 F.2d 51 (4th Cir. 1975), this
court held that "[s]ince the Maryland courts and legislature have been
so explicit in denying the attorney general the power to consent to
suits against the state in its own courts, a fortiori he may not consent
to suits against the state in federal court which would otherwise be
barred by the eleventh amendment." Id. at 54.

Linkenhoker explicitly relied on Maryland law because in Ford, the
Supreme Court held that whether executive officers of a state have
validly waived the defense of sovereign immunity is determined by
looking at "their power under state law to do so." Ford, 323 U.S. at
467. As Linkenhoker acknowledged, the Maryland courts have
already resolved this issue of state law. Indeed, in Brohawn & Bros.
v. Board of Trustees, 304 A.2d 819 (Md. 1973), Maryland's highest
court unequivocally stated that "neither counsel for the State nor any
of its agencies may, either by affirmative action or by failure to plead
the defense, waive the defense of governmental immunity." Id. at 820
(internal quotations omitted). Rather, suits against the state of Mary-
land can proceed only "where specific legislative authority" has been
given and where the legislature has allocated funds "for the satisfac-
tion of the judgment." Id. It is undisputed that Maryland's legislature
has not authorized FMLA suits against the state nor has it allocated
funds to satisfy FMLA judgments.

Montgomery acknowledges our holding in Linkenhoker and the
underlying Brohawn decision, but claims that these cases have been
superceded by subsequent legislative and judicial pronouncements.
However, as the United States recognizes in its amicus brief, we
relied upon Linkenhoker just four years ago for the proposition that
"the Attorney General of Maryland lacks the authority to waive Elev-
enth Amendment immunity on behalf of the state and its officials."
Booth v. Maryland, 112 F.3d 139, 145 n.2 (4th Cir. 1997). And in In
re Creative Goldsmiths, this court, examining current Maryland law,
held that "[u]nder state law, in Maryland's own courts, `a waiver of
sovereign or governmental immunity from suit generally requires that
two conditions be met.'" 119 F.3d at 1149 (quoting Kee v. State High-
way Administration, 545 A.2d 1312, 1317 (1988))."`First the Legisla-
ture must authorize suits for damages and second, there must be
provision for the payment of judgments.'" Id. (quoting Kee, 545 A.2d
at 1317). As neither condition has been met, under Maryland law an

                  6
attempt by the Attorney General to waive sovereign immunity in this
case cannot be binding on the state.

A failure to address the assertion of immunity would be inappropri-
ate on several fronts. First, there is the important interest of not hav-
ing private individuals impose a levy on state treasuries without any
consent by the state itself. Secondly, there is a risk of judicially
enforcing a private right of action which may rest upon an invalid
exercise of Congressional authority. Third, Maryland now quite
explicitly asserts the Eleventh Amendment defense. Just as it might
constitute a disregard of a state's sovereign prerogative to entertain
the defense in the face of an unequivocal withdrawal of immunity, so
too might we abridge state sovereignty by failing to respect a claim
of immunity in the face of the state's unequivocal assertion of it.

III.

Montgomery asserts claims against the State of Maryland, as well
as against Warden Robert Kupec and Assistant Warden George
Kaloroumakis in both their official and individual capacities. With
one exception, the Eleventh Amendment bars all these claims.

A.

First, Montgomery's claims against the state are barred by the
Eleventh Amendment. The Eleventh Amendment bars private suits
against unconsenting states unless Congress can validly abrogate a
state's Eleventh Amendment immunity. See Alden v. Maine, 527 U.S.
706, 755-57 (1999); South Carolina Ports, 243 F.3d at 176-77. In this
case, the suit against the state itself may proceed only if Congress
properly enacted the FMLA pursuant to its Fourteenth Amendment,
§ 5 power. See Lizzi v. Alexander, 255 F.3d 128, 134-36 (4th Cir.
2001). In Lizzi, we specifically noted that the FMLA is not "congruent
and proportional to the identified Fourteenth Amendment violation --
employment discrimination on the basis of sex." Id. at 134. Conse-
quently, the FMLA "is not a valid abrogation of a state's Eleventh
Amendment immunity from suit." Id. at 135. In arriving at this con-
clusion, this court became the seventh federal court of appeals to hold
that the FMLA does not abrogate the sovereign immunity of the
states. See, e.g., Townsel v. Missouri, 233 F.3d 1094, 1095 (8th Cir.

                  7
2000); Chittister v. Department of Cmty. & Econ. Dev., 226 F.3d 223,
228 (3d Cir. 2000); Kazmier v. Widmann, 225 F.3d 519, 526 (5th Cir.
2000); Sims v. University of Cincinnati, 219 F.3d 559, 566 (6th Cir.
2000); Hale v. Mann, 219 F.3d 61, 69 (2d Cir. 2000); Garrett v. Uni-
versity of Ala., 193 F.3d 1214, 1219 (11th Cir. 1999), rev'd on other
grounds sub nom. Board of Trustees v. Garrett, 121 S. Ct. 955, 961,
968 (2000). Because the FMLA does not validly abrogate Maryland's
Eleventh Amendment immunity, the claims against the state must be
dismissed.

Second, the Eleventh Amendment bars Montgomery's claims
against Kupec and Kaloroumakis for retroactive relief in their official
capacities. "The Eleventh Amendment bars a suit against state offi-
cials when `the state is the real, substantial party in interest.'" Penn-
hurst State School & Hosp. v. Halderman, 465 U.S. 89, 101 (1984)
(quoting Ford, 323 U.S. at 464). Whether the claim be legal or equita-
ble in nature, a private plaintiff cannot receive retrospective relief
from state officers sued in their official capacities. See Edelman v.
Jordan, 415 U.S. at 666-69; Lizzi, 255 F.3d at 136. Thus the Eleventh
Amendment bars suits by private plaintiffs for backpay and other
forms of retroactive relief that are in reality claims against the state
itself. See Pennhurst, 465 U.S. at 101, n.11; Edelman, 415 U.S. at
666-69. These types of actions can only be official capacity suits.
Consequently, Montgomery's claims against the individual supervi-
sors in their official capacities for retroactive relief must be dis-
missed.

Third, Montgomery's claims against Kupec and Kaloroumakis in
their individual capacities must be dismissed as well. Normally, of
course, the Eleventh Amendment does not bar claims by private
plaintiffs against individual officers in their individual capacities. See
Hafer v. Melo, 502 U.S. 21, 28-29 (1991). But this court has recently
held in Lizzi that the state is the real party in interest when an official
is sued for damages for official acts under the FMLA. Lizzi, 255 F.3d
at 136-38. We based this conclusion in large part on the fact that pri-
vate plaintiffs "would easily be able to evade the Eleventh Amend-
ment prohibition against suing a state merely by naming the
individual supervisor as the employer." Id. at 137. A rule permitting
this would undermine recent Supreme Court decisions such as Board
of Trustees of the University of Alabama v. Garrett, 121 S. Ct. 955

                   8
(2001), Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), and
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996). Lizzi, 255 F.3d
at 137-38. Indeed, the Seventh Circuit is in accord with our holding
in Lizzi that if a statute treats an individual state employee as the
employer, the real party in interest is in reality the state itself. See
Luder v. Endicott, 253 F.3d 1020, 1022-23 (7th Cir. 2001) ("[A] suit
nominally against state employees in their individual capacities that
demonstrably has the identical effect as a suit against the state is, we
think, barred. Any other position would be completely unrealistic and
would make a mockery of the Supreme Court's heightened sensitivity
to state prerogatives."). In this case, Montgomery's FMLA claims
against the supervisors in their individual capacities make clear "that
the state is the real party in interest." Lizzi, 255 F.3d at 136. Thus, the
state's Eleventh Amendment immunity transfers to these individual
capacity claims as well.

Moreover, even if Montgomery's claim for damages could some-
how survive the sovereign immunity defense, dismissal would still be
proper because she has failed to state a claim upon which relief can
be granted. The damages provision of the FMLA limits recovery to
"any wages, salary, employment benefits, or other compensation
denied or lost" on account of the violation. 29 U.S.C.
§ 2617(a)(1)(A)(i)(I). In the event that no wages, salary, or other com-
pensation are lost, damages are limited to "any actual monetary losses
sustained by the employee . . . such as the cost of providing care." Id.
§ 2617(a)(1)(A)(i)(II).

Montgomery has not alleged that she suffered actual monetary
damages, either in lost wages or in the cost of providing care. Rather,
her demand for monetary relief appears to be rooted solely in her
claim for emotional damages. The FMLA text nowhere provides,
however, for recovery of damages for emotional distress. See Settle
v. S.W. Rodgers, Co., 998 F. Supp. 657, 665-66 (E.D. Va. 1998), aff'd
182 F.3d 909 (4th Cir. 1999). Thus, Montgomery's suit for damages
against Kupec and Kaloroumakis was properly dismissed even absent
the Eleventh Amendment bar.

B.

The only remaining claim against the individual supervisors in
their official capacities is Montgomery's claim for reinstatement to

                   9
her former position. This claim can proceed because Montgomery's
complaint alleges an ongoing violation of federal law. See Ex parte
Young, 209 U.S. 123 (1908); Edelman, 415 U.S. at 664; South Caro-
lina Ports, 243 F.3d at 170. The FMLA requires employers to restore
an employee returning from FMLA leave to either the same position
or "an equivalent position with equivalent employment benefits, pay,
and other terms and conditions of employment." 29 U.S.C.
§ 2614(a)(1)(A)-(B). The regulation defining an equivalent position
focuses on the factors of equivalent pay, equivalent benefits, and
equivalent terms and conditions of employment. 29 C.F.R. § 825.215
(2000). Equivalent terms and conditions of employment, however, do
not require equivalence with respect to "the de minimis or intangible,
unmeasurable aspects of the job." Id. at § 825.215(f).

Montgomery's complaint focuses on precisely the sorts of de
minimis, intangible, and unmeasurable aspects of a job that the regu-
lations specifically exclude. For example, she contends that her duties
formerly were "truly administrative," but now are "the simplest, most
menial of clerical functions: answering the phone, taking messages,
typing simple correspondence, and the like." Moreover, she claims
that while she used to have "her own work area," now she must work
in a "room shared with another employee." Finally, she contends that
she has diminished job security.

Montgomery concedes, however, that her pay grade and increment
level remained the same. The record reflects that both before and after
her leave, Montgomery was classified as an "Administrative Aide
Stenographer" by the Maryland State Personnel Management System.
She also received a four percent raise within two months of being
transferred. And since Montgomery's transfer did not require a
change in classification, she has not lost any job security. Cf. Hamp-
ton v. Univ. of Md., 674 A.2d 145, 150 (Md. App. 1996). As the
Executive Director of the Human Resources Services Division of the
Department of Public Safety and Correctional Services explained:

       Ms. Montgomery is no more, and no less, subject to adverse
       action by the Maryland State Personnel Management Sys-
       tem now, as assigned to the Maintenance Department at
       ECI, than she was when she was formerly assigned to the
       Warden's office at ECI. Her employment rights within the

                  10
        [system] . . . have not changed with her reassignment from
        the Warden's office to the Maintenance Department.

Montgomery's other complaints, such as the alleged reduction in
the complexity of her tasks and the sharing of work space, also fall
within the excluded de minimis category. The difference between
"truly administrative" tasks and "answering the phone, taking mes-
sages, typing simple correspondence, and the like" is not of sufficient
magnitude, especially given the equivalent pay grade, increment
level, and administrative classification, to constitute an FMLA viola-
tion. And the difference between having one's own work space and
having to share space with one other person is not of such import as
to implicate the protections of the governing federal law. In sum,
Montgomery's claim for reinstatement was properly dismissed.2  2

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.
_________________________________________________________________

2 Montgomery is likewise not entitled to injunctive relief because her
complaint demonstrates that her change in status was not related to her
assertion of her rights under the Family and Medical Leave Act. Accord-
ing to her own summary of her complaint, the Defendants transferred her
"to retaliate against her for filing a grievance and otherwise complaining
of her work conditions." As it is evident that Montgomery would have
been transferred even if she had not taken medical leave, she has no right
to be returned to her pre-leave position. See 29 C.F.R. §§ 825.216(a),
825.312(d) (2000).

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