                           UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                           No. 12-1628


LONNIE GILLILAND, On behalf of themselves and all others
similarly situated; DONNA RAWLINGS, On behalf of themselves
and all others similarly situated; COREY WASHINGTON, On
behalf of themselves and all others similarly situated;
MELECKA RILEY, On behalf of themselves and all others
similarly situated; PATINA SCOTT; MARY THOMPSON; JUDITH M.
DAVIS; AMY J. ELY; EVELYN F. DAVIS; SHARON FORD; AMOS
GROSS; LESSTHAN S. WILLIAMS; TERRY HOFF; LISA K. WENFIELD;
SALANNA TRAVIS,

               Plaintiffs - Appellees,

         v.

THE BOARD OF EDUCATION OF CHARLES COUNTY; JAMES E. RICHMOND,
Individually and as Superintendent of Charles County Public
Schools; KEITH A. HETTEL, Individually and as Assistant
Superintendent for Human Resources; CHARLES L. WINELAND,
Individually and as Assistant Superintendent for Supporting
Services,

               Defendants – Appellants,

         and

CHARLES COUNTY PUBLIC SCHOOL BOARD; ROBERTA S. WISE,
Individually and as Members of the Charles County Public
School Board; MAURA H. COOK, Individually and as Members of
the Charles County Public School Board; JENNIFER S. ABELL,
Individually and as Members of the Charles County Public
School Board; PATRICIA BOWIE, Individually and as Members of
the Charles County Public School Board; MICHAEL K. LUKAS,
Individually and as Members of the Charles County Public
School Board; PAMELA A. PEDERSON, Individually and as
Members of the Charles County Public School Board; DONALD M.
WADE, Individually and as Members of the Charles County
Public School Board; KOCH TRUCKING, INC., And all similarly
situated bus contracting and operating entities; KELLER
TRANSPORTATION, INC.; ERNEST J. KELLER, JR.; ERNEST KELLER,
III; RUTH E. KOCH, INC.; EDWIN A. KELLER BUS SERVICE INC.; H
& H BUS SERVICE, INC., And all similarly situated bus
contracting and operating entities,

                Defendants.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     J. Frederick Motz, Senior District
Judge. (8:11-cv-03073-JFM)


Argued:   March 21, 2013                Decided:   April 26, 2013


Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and DAVID A.
FABER, Senior United States District Judge for the Southern
District of West Virginia, sitting by designation.


Reversed and remanded by unpublished per curiam opinion.


ARGUED: Edmund J. O'Meally, PESSIN & KATZ, PA, Towson, Maryland,
for Appellants.    Scott A. Conwell, CONWELL LAW, LLC, Crofton,
Maryland, for Appellees.   ON BRIEF: Leslie R. Stellman, Andrew
G. Scott, PESSIN & KATZ, PA, Towson, Maryland; Shani K.
Whisonant,   PESSIN   &  KATZ,   PA,  Columbia,  Maryland,   for
Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      The Board of Education of Charles County, Maryland (“the

Board”) and three high-level Board officials (collectively, “the

Board Appellants”) appeal a district court ruling that Maryland

waived the Board Appellants’ Eleventh Amendment immunity against

a claim brought under the Fair Labor Standards Act (“FLSA”), 29

U.S.C.    § 201   et    seq.,        for   up    to    $100,000      in       damages.    We

reverse.

                                            I.

      Plaintiffs       are    bus    drivers      and    bus    attendants        who    were

jointly    employed      by    the     Board     and    certain       bus      contractors.

Plaintiffs brought suit against the Board Appellants and these

bus contractors – who are not parties to this appeal – seeking

to recover unpaid wages, including overtime wages, primarily on

the basis of the FLSA.                Plaintiffs allege that they were not

paid for all of the hours that they worked.                           They also allege

that they were required to work more than 40 hours per week

during their joint employment and that they have not been paid

overtime for the hours they worked in excess of 40 per week.

      After Plaintiffs filed their complaint and before any of

the   defendants        responded,         Plaintiffs         filed       a     motion    for

conditional class certification.                  The bus contractor defendants

proceeded   to    answer       the    complaint,        but    the    Board      Appellants

moved to dismiss.             At the motions hearing that followed, the

                                            3
district court conditionally certified the class.                              The court

denied the Board Appellants’ motion to dismiss the FLSA claim to

the extent it sought damages of up to $100,000, concluding that

Maryland    had   legislatively        waived     Eleventh    Amendment         immunity

for an FLSA claim for damages up to that amount.                         However, the

district    court   dismissed        the   claims       against    the       named   Board

officials to the extent the claims were brought against them in

their    individual    capacities       and      also    dismissed   the       remaining

claims    against     the    Board     Appellants,       including       a    breach   of

contract claim, which the court ruled was preempted by the FLSA

claims.

                                           II.

        The Board Appellants argue that the district court erred in

ruling that they are not entitled to Eleventh Amendment immunity

against FLSA claims for damages of $100,000 or less.                         We agree. *

     The Eleventh Amendment to the United States Constitution

provides:     “The Judicial power of the United States shall not be

construed to extend to 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.”

     *
       A ruling that a state has waived its sovereign immunity
from a damages claim is appealable under the collateral order
doctrine.   See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 147 (1993); Madison v. Virginia, 474
F.3d 118, 123 (4th Cir. 2006).    We therefore possess appellate
jurisdiction over this interlocutory appeal.


                                            4
Eleventh Amendment immunity protects unwilling states from suit

in federal court.         See Edelman v. Jordan, 415 U.S. 651, 662-63

(1974); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70-

71 (1989).    This immunity also protects “state agents and state

instrumentalities,” Regents of the Univ. of Cal. v. Doe, 519

U.S. 425, 429 (1997), and Maryland school boards fit into that

category, see Lee-Thomas v. Prince George’s Cnty. Pub. Sch., 666

F.3d 244, 248 n.5 (4th Cir. 2012).

     Nevertheless,        state     legislatures           are    authorized        to    enact

statutory waivers of Eleventh Amendment immunity that apply to

state   agencies.         See    College          Sav.   Bank     v.     Florida     Prepaid

Postsecondary     Educ.     Expense       Bd.,       527    U.S.       666,    675-76,        680

(1999).      To   constitute        a    valid      Eleventh       Amendment        immunity

waiver, a statute must waive the immunity “by the most express

language or by such overwhelming implications from the text [of

the statute] as will leave no room for any other reasonable

construction.”           Edelman,       415       U.S.     at    673     (alteration          and

internal   quotation       marks        omitted).           In    the     absence        of    an

interpretation      by     the    relevant          state        court    of    a    statute

purporting to waive Eleventh Amendment immunity, we must examine

the statute ourselves and determine whether it satisfies this

stringent test.      See Lee-Thomas, 666 F.3d at 251; Virginia v.

Reinhard, 568 F.3d 110, 114-17 (4th Cir. 2009).                               However, when

the state’s highest court has already applied this test to the

                                              5
relevant statute, we must defer to that court’s decision.                    See

Lee-Thomas, 666 F.3d at 251.             After all, “the whole point of

that test, requiring a clear declaration by the State of its

waiver, is to be certain that the State in fact consents to the

suit.”     Id. (alterations and internal quotation marks omitted).

If   the   state’s     highest   court   determines   that     the   state   has

effected a valid legislative waiver, “the state’s intent is just

as   clear   as   if   the   waiver   were   made   explicit    in   the   state

statute.”    Della Grotta v. Rhode Island, 781 F.2d 343, 347 (1st

Cir. 1986), abrogated on other grounds by Will, 491 U.S. at 71.

      Two Maryland statutes appear relevant to our waiver issue.

Section 12-201(a) of the State Government Article provides, as

is relevant here:

      (a) Except as otherwise expressly provided by a law of
      the State, the State, its officers, and its units may
      not raise the defense of sovereign immunity in a
      contract action, in a court of the State, based on a
      written contract that an official or employee executed
      for the State or 1 of its units while the official or
      employee was acting within the scope of the authority
      of the official or employee.

Md. Code Ann., State Gov’t § 12-201(a) (emphasis added).                     And,

section 5-518 of the Courts and Judicial Proceedings Article

provides, in relevant part:

      (b) A county board of education, described under Title
      4, Subtitle 1 of the Education Article, may raise the
      defense of sovereign immunity to any amount claimed
      above the limit of its insurance policy or, if self-
      insured or a member of a pool described under § 4-


                                         6
      105(c)(1)(ii)        of      the       Education             Article,        above
      $100,000.

      (c) A county board of education may not raise the
      defense of sovereign immunity to any claim of $100,000
      or less.

Md. Code Ann., Cts. & Jud. Proc. § 5-518(b), (c).                                 The parties

agree   that    § 12-201(a)          could       not       waive        Eleventh    Amendment

immunity in this case because it applies only in state court to

cases that are based on written contracts.                              Since this case is

being litigated in federal court and is not based on a written

contract, any legislative waiver must derive from § 5-518.                                   We

therefore consider whether that statute applies.

      Two cases in which the Maryland courts have interpreted

§ 5-518 bear on that statute’s applicability.                              First, in Board

of Education of Baltimore County v. Zimmer-Rubert, 973 A.2d 233

(Md. 2009), the Maryland Court of Appeals considered whether

§ 518(c)    constituted      a   waiver          of    a    school        board’s    Eleventh

Amendment immunity against a suit seeking $100,000 in damages

brought pursuant to the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et seq.                     The court concluded that § 5-

518   applied   to   the    ADEA      suit,      noting          that,    “[b]y     its    plain

language,   § 5-518(c)       .   .    .   waives           the    defense     of    sovereign

immunity ‘to any claim of $100,000 or less.’”                                Zimmer-Rubert,

973 A.2d at 242.      The court explained that such broad statutory

language    “cannot        reasonably         be       read        to     exclude     certain



                                             7
categories of claims.”             Id. (internal quotation marks omitted).

The court further noted that the statute’s legislative history

confirmed        the    conclusion       that       the     statute   applied      to   ADEA

claims.      See id.         In that regard, the court pointed out that the

Maryland House of Representatives had originally proposed that

school boards be required to carry liability insurance only “for

personal injury claims,” but that language was later replaced by

a requirement that the boards obtain “comprehensive liability

insurance.”        See id. (internal quotation marks omitted).                           The

court reasoned that that “change exemplifies the intent of the

General Assembly to apply § 5-518(c) to all claims, including

those     for      personal        injury           and     alleged    employment        law

violations.”           Id.   The court further determined that the statute

effected     a    waiver      of   not    only       the    school    board’s   sovereign

immunity generally, but also its Eleventh Amendment immunity.

See id.

     Next, in Board of Education of Worcester County v. BEKA

Industries, Inc., 989 A.2d 1181 (Md. Ct. Spec. App. 2010), the

court considered a lawsuit against a county board of education

based   on    a    written      contract     the          board   entered   into    with   a

company (“BEKA”) for the performance of some construction work.

See id. at 1185.             BEKA filed suit in state court, asserting both

contract and tort claims.                See id. at 1186-87.            The trial court

denied the school board’s motion for judgment that was based, as

                                                8
is relevant here, on a claim of sovereign immunity.                     See id. at

1188.      BEKA    subsequently        obtained     a   $1.1    million       judgment

against the board, and the board appealed.               See id. at 1190.

     On appeal, the Maryland Court of Special Appeals recognized

that in determining whether the doctrine of sovereign immunity

applies in a particular case, the court must consider “whether

the entity asserting immunity qualifies for its protection; and,

if so, . . . whether the Legislature has waived immunity, either

directly or by necessary implication, in a manner that would

render    the    defense    of    immunity       unavailable.”        Id.     at   1195

(internal       quotation      marks    omitted).        Even    if     the     entity

qualifies for immunity protection and there has been a waiver,

the waiver is effective only when “there are funds available for

the satisfaction of the judgment or the agency has been given

the power for the raising of funds necessary to satisfy recovery

against     it.”         Id.     (internal        quotation     marks       omitted).

Concluding that a county board of education is a State agency

entitled to the protection of sovereign immunity, see id. at

1196,     the    court     turned      to   the    question     of    whether      the

legislature had waived immunity by enacting § 5-518.

     In analyzing the question, the court considered what effect

Zimmer-Rubert had on the issue.                 The court noted that the broad

“any claim” statement the Maryland Court of Appeals made in that

decision was made in the context of an ADEA claim.                      See id. at

                                            9
1199.    Because discrimination is “a species of personal injury

akin to tort,” the court reasoned that an ADEA claim “involves

personal injury.”         Id.    Thus, the court explained that the broad

language employed in Zimmer-Rubert “must be construed in the

context of a tort related claim.”                 Id.    The court added that the

Maryland Court of Appeals “did not address in that case, or in

any    other    case     that   we   have      found,        whether   C.J.P.   § 5-518

applies to contract claims.”             Id.

       Turning to that question, the court decided that although

§ 5-518’s language is broad, the language is ambiguous regarding

whether it applies to contract claims.                          See id.      The court

emphasized that § 5-518 is “tied to the requirements of” § 4-105

of the Education Article of the Maryland Code, which mandates

that    “county        boards   .    .   .     carry     comprehensive       liability

insurance or be self-insured for property or casualty risks.”

Id. at 1199-1200.         Since such insurance “generally covers claims

for bodily injury and property damage, not breach of contract,”

the court concluded the broad “any claim” language must be read

“in the context of liability insurance, which typically covers

tort claims.”       Id. at 1200.

       The     court    therefore     undertook         to    discover    whether   the

legislature intended § 5-518 to extend beyond tort claims.                          The

court   concluded       that    applicable        legislative      history   suggested

that the legislature intended to limit § 5-518’s application to

                                             10
tort claims.      The court found that the applicable legislative

history demonstrated that § 5-518’s predecessor was enacted to

waive the sovereign immunity defense to tort claims “to provide

a remedy for students injured on school grounds” and was not

intended to apply to contract claims.                 Id.     The court noted that

the     predecessor    statute     required          school    boards        to    obtain

liability insurance or to self insure for liability “limited to

one hundred thousand dollars . . . for each injury.”                               Id. at

1201 (emphasis added and internal quotation marks omitted).                           The

court     concluded    that      the    use     of    the     word     “injury”       was

“consistent     with   an   intent      that    the    statute       apply    to     tort,

rather than contract, claims.”                 Id.     Additionally, the court

considered that press reports indicated “that the [predecessor]

bill    was   introduced    in    response      to     a    catastrophic          personal

injury suffered by a student on school grounds.”                      Id.     The court

determined     that    nothing     in    subsequent         history     suggested        a

legislative “intent to expand the scope of [the limited waiver

of    sovereign   immunity]      beyond       tort    claims.”        Id.     at     1202.

Indeed, the court specifically traced the origin of § 5-518’s

“any claim” language and concluded that nothing suggested that

that language “was intended to change the scope of the waiver of

the defense of sovereign immunity.”              Id.; see id. at 1202-03.

       The court determined that prior caselaw also indicated that

§ 5-518 was not intended to extend beyond tort claims.                                The

                                         11
court pointed to Charles E. Brohawn & Bros., Inc. v. Board of

Trustees of Chesapeake College, 304 A.2d 819 (Md. 1973), which

interpreted a provision similar to § 5-518.                                 The court noted

that in Brohawn, the Maryland Court of Appeals concluded that

the    statute       affected       only       claims     that      would       be   covered    by

comprehensive            liability       insurance      and    thus       did    not   apply    to

contract claims.            See BEKA, 989 A.2d at 1203.

       Based on the aforementioned considerations, the court held

that     “§ 5-518         is   a    legislative         waiver       of     the      defense    of

sovereign immunity for a county board of education only with

respect to tort claims” and that “[i]t is not a legislative

waiver       of    the    defense        for   contract       claims.”           Id.   at   1204.

“Thus,” the court continued, “the language of § 5-518, limiting

the liability of a self-insured board of education to $100,000,

does not apply to BEKA’s contract claims against the Board.”

Id.

       Having       determined       that       § 5-518       was   not     applicable,        the

court turned to the question of whether § 12-201(a) applied to

school boards and constituted a legislative waiver of sovereign

immunity.         The court answered both questions in the affirmative.

See    id.    at    1205.          The    court    held    that      the    record      was    not

sufficient, however, to make a determination regarding whether

there were funds available to satisfy a resulting judgment or



                                                  12
whether the school board had the authority to raise such funds.

See id. at 1207.

      The     Maryland     Court        of        Appeals     subsequently         granted

certiorari to resolve several issues.                    See Beka Indus., Inc. v.

Worcester Cnty. Bd. of Educ., 18 A.3d 890, 896 (Md. 2011).                                 As

is   most    relevant    here,    the    court       affirmed      the    lower    court’s

rulings that § 12-201(a) constituted a legislative waiver of the

school      board’s   immunity     and       that    § 5-518       did    not     apply    to

contract      claims.     See     id.    at       907.      Like    the     intermediate

appellate     court,     the    Maryland      Court      of   Appeals       specifically

determined that Zimmer-Rupert was silent regarding whether § 5-

518 applied to contract claims:

           In Zimmer-Rubert, in the context of what we
      perceived to be a claim for personal injury resulting
      from an alleged age discrimination violation, we
      commented that the term “‘any claim’ [under § 5-
      518(c)] cannot reasonably be read to exclude certain
      categories of claims.”     Our interpretation of § 5-
      518(c) [there] was clearly in the context of a tort or
      insurable claim, such as “those for personal injury,”
      and for claims arising from “alleged employment law
      violations.”   We did not imply in that case that
      C.J.P. § 5-518(c) applies to contract claims, nor did
      we address, by association, the meaning of C.J.P. § 5-
      518(b), to which [the school board] looks in the
      present case.

Id. (citations omitted).

      Having       summarized    the     relevant        Maryland        cases,    we     now

consider     the    parties’     respective         arguments.           Relying    on    the

Maryland Court of Appeals decision in Beka, the Board Appellants


                                             13
maintain that FLSA claims are, in actuality, contract or quasi-

contract claims rather than tort or tort-related claims, and

thus are not of the type to which § 5-518 applies.                     On the other

hand, Plaintiffs rely on the statement by the Maryland Court of

Appeals in the same case that § 5-518(c) applies to personal

injury claims and “employment law violations,” Beka, 18 A.3d at

907 (internal quotation marks omitted), and argue that an FLSA

claim   should   be    considered    an        employment     law   claim    in     this

context.    We agree with the Board Appellants.

       The decisions of the Maryland appellate courts make clear

that    § 5-518’s      applicability       turns     on     the     type    of    claim

asserted.      The statute applies only to tort claims, such as

personal     injury    actions,     and        tort-related       claims,    such     as

discrimination actions.        The FLSA claim before us in this case

does not fit that description.                  Unlike discrimination claims,

which the Maryland courts have concluded are in the nature of

personal-injury claims, see Beka, 18 A.3d at 907, FLSA claims

“are contractual in their nature,” Roland Elec. Co. v. Black,

163 F.2d 417, 426 (4th Cir. 1947).                       That is so because the

FLSA’s overtime provisions “are read into and become a part of

every employment contract that is subject to” the FLSA’s terms,

and thus “[t]he liability of the employer [in an action under

the FLSA for unpaid overtime] is for the wages due under working

agreements     which    the   federal          statute    compels     employer       and

                                          14
employee to make.”            Id.         In light of the contractual nature of

the    FLSA    claim,    we    conclude          that    Maryland    courts     would       not

consider it to be an “employment law” claim in this context.

       Because we conclude that § 5-518, as the Maryland courts

have construed it, does not apply to Plaintiffs’ FLSA claim, we

hold    that    Maryland       has    not     even      partially    waived     the    Board

Appellants’         Eleventh       Amendment          immunity    against      the    claim.

Thus,    we    reverse     the       district         court’s    denial   of    the    Board

Appellants’ motion to dismiss and remand for entry of judgment

in their favor.

                                             III.

       In sum, finding the district court erred in ruling that

Maryland      had    waived    the        Board       Appellants’    right     to    Eleventh

Amendment      immunity       as     to    the    FLSA     damages    claim     for    up    to

$100,000, we reverse the district court’s denial of the Board

Appellants’ motion to dismiss that claim and remand for entry of

judgment in favor of the Board Appellants.

                                                                 REVERSED AND REMANDED




                                                 15
