Hope LEE-THOMAS, Plaintiff-Appellee, v. PRINCE GEORGE'S COUNTY PUBLIC SCHOOLS, Defendant-Appellant, 666 F.3d 244

Affirmed by published opinion. Judge KING wrote the majority opinion, in which Judge DAVIS joined. Judge KEENAN wrote a dissenting opinion. OPINION KING, Circuit Judge: Defendant-appellant Prince George’s County Public Schools (the school “Board”) appeals from the district court’s partial rejection of the Board’s assertion of immunity under the Eleventh Amendment. Although it recognized that the Board enjoys some measure of Eleventh Amendment immunity, the court ruled that the State of Maryland has waived such immunity for damage claims of $100,000 or less. See Lee-Thomas v.

Bd. of Educ. of Prince George’s Cnty., No. 8:08-cv-03327 (D.Md. Feb. 5, 2010) (the “Opinion”). As explained below, we agree with the district court and affirm. I. On December 11, 2008, plaintiff-appellee Hope Lee-Thomas, a Board employee, initiated this proceeding in the District of Maryland, alleging that the Board violated the Americans with Disabilities Act (the “ADA”) by failing to reasonably accommodate her hearing disability. Lee-Thomas’s complaint sought back pay, future pay, compensatory damages of $1,000,000, punitive damages of $1,000,000, plus attorney’s fees and costs.

In October 2009, following discovery, the Board moved for

summary judgment, primarily on the contention that the Eleventh Amendment barred an ADA suit against the Board for damages. In acquiescence to the Board’s contentions that back pay, future pay, and punitive damages are not recoverable under the ADA, Lee-Thomas moved separately to amend her complaint to jettison those requests for relief. She also sought to reduce her request for compensatory damages from $1,000,000 to $100,000, and to add a request for injunctive relief. Otherwise, Lee-Thomas opposed the Board’s claim of Eleventh Amendment immunity. On February 5, 2010, the district court issued its Opinion, granting the Board’s

summary judgment motion only insofar as Lee-Thomas’s damage claim exceeded $100,000. In so doing, the Opinion adhered to the precedent of the Court of Appeals of Maryland, the highest court of the State. In 2009, that court concluded that the enactment of a state statute, see Md.Code Ann., Cts. & Jud. Proc. § 5-518(c) (the “immunity provision”), effectuated a waiver of a county board of education’s Eleventh Amendment immunity “for all claims in the amount of $100,000 or less.” Bd. of Educ. of Balt. Cnty. v. Zimmer-Rubert, 409 Md. 200, 973 A.2d 233, 243 (2009).

The Opinion also granted Lee-Thomas’s motion to amend her complaint. On March 1, 2010, the Board moved for reconsideration of the Opinion, which the court denied on June 8, 2010. On June 22, 2010, the Board filed its notice of appeal. We possess jurisdiction under the collateral order doctrine to review a denial of Eleventh Amendment immunity, in that such a ruling is deemed a final decision under 28 U.S.C. § 1291. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-47, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). II.

We ordinarily review for abuse of discretion a district court’s denial of a motion for reconsideration. See Cray Comm’ns, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 395 (4th Cir.1994). We review de novo, however, a district court’s denial of Eleventh Amendment immunity. See Harter v. Vernon, 101 F.3d 334, 336 (4th Cir.1996). Because the district court’s refusal to reconsider the Opinion was based on its determination that the Board was not entitled to Eleventh Amendment immunity, we consider the underlying question anew, without deference to the court’s ruling on reconsideration. See Beentjes v.

Placer Cnty. Air Pollution Control Dist., 397 F.3d 775, 777 (9th Cir.2005). III. The Board contends that the district court erred in deferring to the decision of the Court of Appeals of Maryland in Board of Education of Baltimore County v. Zimmer-Rubert, 409 Md. 200, 973 A.2d 233 (2009), on the question of whether the immunity provision waived the State’s Eleventh Amendment immunity. The Board posits that no such deference is owed because the question is one of federal law, on which the decisions of the Supreme Court of the United States are controlling.

More specifically, the Board relies on Supreme Court precedent recognizing a statutory waiver of Eleventh Amendment immunity only where the relevant state statute utilizes express language of consent to suit in federal court. The Board maintains that the words “any claim” in the immunity provision are insufficient to constitute an express waiver under federal law, contrary to the conclusion reached by Maryland’s highest court in Zimmer-Rubert. We begin our analysis with the threshold issue of whether federal law or state law controls the question of a state’s statutory waiver of Eleventh Amendment immunity.

Guided by the precepts of Eleventh Amendment jurisprudence, we conclude that, although the federal courts must apply federal law as embodied in Supreme Court precedent, when a state’s highest court has applied federal law and determined that a state statute effects a waiver of Eleventh Amendment immunity, the federal courts must accord deference to that state court decision. Applying these principles to this case, the district court properly deferred to the decision of the Court of Appeals of Maryland in Zimmer-Rubert. A.

Pursuant to the Eleventh Amendment, “[t]he 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.” U.S. Const, amend. XI. The Supreme Court “has drawn on principles of sovereign immunity to construe the Amendment to establish that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Port Auth. Trans-Hudson Corp. v.

Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990) (internal quotation marks omitted). The States’ immunity also extends to “state agents and state instrumentalities.” Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997). “The Elev- enth Amendment bar to suit is not absolute,” however. Feeney, 495 U.S. at 304, 110 S.Ct. 1868. There are three exceptions to that constitutional bar.

First, “Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (internal quotation marks and alterations omitted). The applicability of the first exception is not a point of contention in this appeal because Congress did not abrogate the States’ immunity from money damage claims under Title I of the ADA. See id. at 374,121 S.Ct. 955.

Second, “the Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004). The second exception is also inapplicable here, because the complaint does not name as defendants any officials of the State of Maryland. Third, “[a] State remains free to waive its Eleventh Amendment immunity from suit in a federal court.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002).

The third exception, that of waiver, is at issue in this proceeding. The Board maintains that the waiver exception is inapplicable because Supreme Court preeedent compels the conclusion that the State of Maryland has not forgone its Eleventh Amendment immunity. The Board acknowledges that the Supreme Court long ago decided that the question of waiver of sovereign immunity by a state constitutional provision or statute is a matter of state law, “as to which the decision of the [state’s highest court] is controlling.” Palmer v. Ohio, 248 U.S. 32, 34, 39 S.Ct. 16, 63 L.Ed. 108 (1918).

The Board contends, nevertheless, that the Court effectively overruled Palmer in its unanimous 2002 Lapides decision, by virtue of the following statement: As in analogous contexts, in which matters are questions of federal law, cf, e.g., Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429, n. 5 [117 S.Ct. 900,137 L.Ed.2d 55] (1997), whether a particular set of state laws, rules, or activities amounts to a waiver of the State’s Eleventh Amendment immunity is a question of federal law. 535 U.S. at 622-23,122 S.Ct. 1640.

In Lapides — initiated as a state court action alleging state law claims against Georgia’s Board of Regents — the plaintiff sought to avail himself of a statutory waiver of Georgia’s immunity from suit in the courts of that State. Georgia’s Attorney General joined in the removal of the state proceeding to federal court, however, and then sought dismissal of the claims on Eleventh Amendment grounds.

The question the Supreme Court “agreed to decide [was] whether a state waives its Eleventh Amendment immunity by its affirmative litigation conduct when it removes a case to federal court.” Lapides, 535 U.S. at 617, 122 S.Ct. 1640 (internal quotation marks and alteration omitted). Limiting its holding to state law claims that the State had already consented to defend in its own courts, the Court ruled that Georgia’s act of removal constituted a waiver of its Eleventh Amendment immunity. Id. at 624, 122 S.Ct. 1640.

The Court reasoned that it would “seem anomalous or inconsistent” for a state to invoke federal jurisdiction by removal and then assert immunity from such jurisdiction. Id. at 619, 122 S.Ct. 1640. Although Georgia maintained that its Attorney General was not authorized, as a matter of state law, to waive the State’s Eleventh Amendment immunity, the Court deemed the lack of such authority immaterial. Rather, the Court stressed that the State had voluntarily invoked federal jurisdiction, and, more fundamentally, that waiver of such immunity by affirmative litigation conduct is a question of federal law.

Lapides, 535 U.S. at 622-23, 122 S.Ct. 1640. As the Court explained, an

interpretation of the Eleventh Amendment that finds waiver in the litigation context rests upon the Amendment’s presumed recognition of the judicial need to avoid inconsistency, anomaly, and unfairness, and not upon a State’s actual preference or desire, which might, after all, favor selective use of “immunity” to achieve litigation advantages. Id. at 620, 122 S.Ct. 1640. In this appeal, the Board erroneously conflates a state statutory waiver of Eleventh Amendment immunity with a litigation conduct waiver, whereas the Lapides decision carefully distinguished between them.

See 535 U.S. at 620, 122 S.Ct. 1640 (differentiating waiver requiring “ ‘clear’ indication of the State’s intent to waive its immunity” from “waiver[ ] effected by litigation conduct”). Therefore, we are unable to fairly read the single statement in Lapides — on which the Board’s appellate position relies — as having implicitly and effectively overruled Palmer. It is, of course, solely the prerogative of the Supreme Court to decide when to overrule one of its decisions, see Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989), and we cannot “conclude [that the Court’s] more recent cases have, by implication, overruled an earlier precedent,” see Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). It is not lost on us, of course, that it has been nearly a century since the Supreme Court decided Palmer. Meanwhile, the Court has developed a more complete body of law concerning Eleventh Amendment immunity waivers. That precedent must also be recognized and adhered to.

Most relevant here, the Court has admonished the lower federal courts to identify a waiver of Eleventh Amendment immunity in a state statute “only where stated by the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 240, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (internal quotation marks and alteration omitted).

And, because “a State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued ... [the state statute] must specify the State’s intention to subject itself to suit in federal court.” Id. at 241, 105 S.Ct. 3142 (citation and internal quotation marks omitted). As the Court emphasized, “[t]he test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.” Id.

Hence, a state does not waive its Eleventh Amendment immunity “by consenting to suit in the courts of its own creation,” “by stating its intention to ‘sue and be sued,’ or even by authorizing suits against it ‘in any court of competent jurisdiction.’” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (citations omitted).

There is no question that, in assessing a purported statutory waiver of Eleventh Amendment immunity, a federal court must apply the “stringent test” enunciated by the Supreme Court’s 1985 Atascadero decision, and, in the absence of a construction of the relevant state statute by the state’s highest court, examine and decide the state law issue independently. See Virginia v. Reinhard, 568 F.3d 110, 114-17 (4th Cir.2009) (internal quotation marks omitted) (concluding that state statute was “not sufficiently explicit to waive Virginia’s sovereign immunity”), reversed on other grounds, Va.

Office for Prot. & Advocacy v. Stewart, — U.S. -, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011); Huang v. Bd. of Governors of the Univ. of N.C., 902 F.2d 1134, 1138-39 (4th Cir.1990) (determining, after applying stringent test and reviewing state court decisions, that North Carolina statute did not waive Eleventh Amendment immunity in federal court); see also Ford Motor Co. v.

Dep’t of Treasury of Ind., 323 U.S. 459, 467, 65 S.Ct. 347, 89 L.Ed. 389 (1945) (“As this issue has not been determined by state courts, this Court must resort to the general policy of the state as expressed in its Constitution, statutes and decisions.”), overruled on other grounds, Lapides, 535 U.S. at 623, 122 S.Ct. 1640. Nevertheless, where a state’s highest court has applied the Atascadero stringent test and carefully scrutinized state law to determine whether a state statute effects a waiver of Eleventh Amendment immunity, a federal court is obliged, under Palmer, to defer to that state court decision.

Indeed, we should defer to the decision of the state’s highest court even when the statute, on its face, does not appear to pass the stringent test, because “[t]he 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 suit.” See Coll. Sav. Bank, 527 U.S. at 680, 119 S.Ct. 2219 (internal quotation marks omitted).

As the First Circuit has explained, “[w]here the highest court of a state has construed a state statute as intending to waive the state’s immunity to suit in federal court, 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 v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Put succinctly, “the silence of the legislature may be rectified by the voice of the state’s highest court.” See Minotti v.

Lensink, 798 F.2d 607, 611 (2d Cir.1986) (declining to defer to the Supreme Court of Connecticut because it had not decided whether the relevant “statute constituted a waiver of immunity to suit in federal court”). Moreover, the accumulated teachings of the Supreme Court’s earlier and more recent precedents instruct that the strictures of federal law extolled in Atascadero must, in deference to state sovereignty, yield to the decision of a state’s highest court.

This command is applicable here because “the States’ immunity from suit is a fundamental aspect of [their] sovereignty” that “neither derives from, nor is limited by, the terms of the Eleventh Amendment.” See Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Consequently, 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. See Palmer, 248 U.S. at 34, 39 S.Ct. 16; see also Johnson v.

Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997) (“Neither [the Supreme] Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State.”); Parden v. Terminal Ry. of Ala. State Docks Dep't, 377 U.S. 184, 194-95, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964) (“[W]hether a State has waived its immunity depends upon its intention and is a question of state law only.”), overruled on other grounds, Coll. Sav. Bank, 527 U.S. at 680, 119 S.Ct. 2219. B.

With the foregoing principles in mind, we turn to the scope of the Maryland immunity provision — the state statute at issue in this appeal. In its Zimmer-Rubert decision, Maryland’s highest court considered and resolved the question of whether the immunity provision waives a county board of education’s Eleventh Amendment immunity. There, a teacher had sued the Board of Education of Baltimore County (the “Baltimore Board”) in state court, alleging age discrimination under the Age Discrimination in Employment Act (“ADEA”) and seeking to recover, inter alia, $100,000 in compensatory damages.

See Zimmer-Rubert, 973 A.2d at 235. The Circuit Court for Baltimore County, where the suit was initiated, granted the Baltimore Board’s motion to dismiss, ruling that the immunity provision did not specifically waive Eleventh Amendment immunity. Id. The Court of Special Appeals of Maryland reversed, however, concluding that the immunity provision waived the Baltimore Board’s Eleventh Amendment immunity as to the plaintiffs ADEA claim. Id. at 236. The Court of Appeals of Maryland then granted certiorari. Id.

In affirming the Court of Special Appeals, the Court of Appeals analyzed the issue presented as requiring “a two-part determination”: first, applying Maryland law to ascertain whether the immunity provision waived general sovereign immunity, and, second, whether it particularly waived Eleventh Amendment immunity, which the Court of Appeals recognized to involve “a question of federal constitutional law ... not limited to Maryland common law principles.” Zimmer-Rubert, 973 A.2d at 240-41.

The Court of Appeals deemed the “plain language” of the immunity provision to be a “broad and unambiguous” waiver of a general sovereign immunity defense. Id. at 242. The court also examined the legislative history of the immunity provision, observing that, as originally proposed, it would have required that “county school boards carry liability insurance ‘for personal injury claims.’ ” Id. The court further observed, however, “that [such] language was stricken in favor of language requiring ‘comprehensive liability insurance.’ ” Id.

The legislature’s revision, the Court of Appeals concluded, “confirms that the words ‘any claim’ in [the immunity provision] mean ‘all claims’ ... including those for personal injury and alleged employment law violations.” Id. The Court of Appeals of Maryland then acknowledged and applied the Atascadero stringent test and concluded that the State had “specified its intention to subject itself to suit in federal court, as the words ‘any claim’ in [the immunity provision] encompass a claim brought in either state or federal court.” Zimmer-Rubert, 973 A.2d at 242.

The Court of Appeals contrasted the immunity provision with another Maryland statute barring a sovereign immunity defense “in a court of the State,” which the court had previously held “excluded Eleventh Amendment immunity.” Id. at 240, 242 (citing State v. Sharafeldin, 382 Md. 129, 854 A.2d 1208 (2004)). The court thus reasoned that, “if the General Assembly intended to preserve the State’s Eleventh Amendment protection, that body knew how to do so by merely limiting the State’s liability to any claim brought ‘in a court in this State,’ or words to that effect.” Id. at 243.

Moreover, the court emphasized, “[i]t would defy logic for the General Assembly to have waived sovereign immunity as to ‘any claim,’ thereby allowing all claims, whether in state or federal court, while simultaneously intending to preserve Eleventh Amendment immunity.” Id. The Board faults the district court for deferring to Zimmer-Rubert rather than revisiting the Atascadero stringent test and ruling in the Board’s favor — that the immunity provision’s waiver of immunity as to “any claims” is insufficient to constitute a consent to lawsuits against the Board in federal court.

As an initial matter, we reject the Board’s insistence that the Court of Appeals failed to apply the stringent test. Indeed, it is fair to read Zimmer-Rubert as concluding that the “overwhelming implications” from the words “any claim” in the immunity provision “leave no room for any other reasonable construction” except that the immunity provision waives Eleventh Amendment immunity. See Atascadero, 473 U.S. at 240, 105 S.Ct. 3142. Moreover, we are reluctant to infer that the only way a state statute can satisfy the stringent test is to include the words “federal court” or “United States” in the statutory text.

In any event, as we have already explained, we owe deference to the Court of Appeals on the question of whether Maryland’s legislature intended to consent to suit in federal court. Finally, it is of some importance that there has been no legislative response to the Zimmer-Rubert decision. In addressing that point, the Court of Appeals of Maryland has explained that “[t]he General Assembly is presumed to be aware of [the Court of Appeals’s]

interpretation of its enactments and, if such

interpretation is not legislatively overturned, to have acquiesced in that

interpretation.” Pye v. State, 397 Md. 626, 919 A.2d 632, 637 (2007) (internal quotation marks omitted); In re Wallace W., 333 Md. 186, 634 A.2d 53, 59-60 (1993) (emphasizing legislative acquiescence to

interpretation by highest court of Maryland as indicative of legislative intent). Although only two years have passed since Zimmer-Rubert was decided, the legislative inaction is conspicuous given the minimal effort required. As the Court of Appeals observed, if the statutory intent underlying the immunity provision were only to waive immunity in the state courts, the statute could be readily amended, by simply adding “ ‘in a court in this State,’ or words to that effect.” See 973 A.2d at 243.

That no such amendment has been made further persuades us that the Court of Appeals did not misconstrue the breadth of the immunity provision or the intent of the legislature. Accordingly, the district court properly adhered to the Zimmer-Rubert decision in ruling that the immunity provision effected a waiver of the Board’s Eleventh Amendment immunity for claims of $100,000 or less. As a result, we are constrained to reject the Board’s contentions to the contrary. IV. Pursuant to the foregoing, we affirm the judgment of the district court. AFFIRMED .

The Opinion is found at J.A. 60-64. (Citations herein to "J.A. -” refer to the contents of the Joint Appendix filed by the parties in this appeal.) . The parties consented in the district court to the jurisdiction of a magistrate judge for all purposes. In issuing his decisions, the magistrate judge was acting for the court, and we therefore refer to those decisions as those of the district court. See 28 U.S.C. § 636(c)(1). .

The immunity provision provides that “[a] county board of education may not raise the defense of sovereign immunity to any claim of $100,000 or less.” Concomitantly, Maryland county boards of education are required to carry comprehensive liability insurance with a minimum coverage of $100,000. See Md. Code Ann., Ed. § 4-105(a)-(b). .We are satisfied that the Board’s motion for reconsideration should be treated as a motion to alter or amend a judgment under Rule 59(

e) of the Federal Rules of Civil Procedure, in that it was filed within twenty-eight days of the judgment. See Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 n. 4 (4th Cir.2011) (construing post-judgment motion for reconsideration as Rule 59(

e) motion). As a result, the Board’s notice of appeal was timely filed. See Fed. R.App. P. 4(a)(4)(A). . Lee-Thomas has conceded that the Board is an agent of the State of Maryland. See J.A. 51. The district court apparently accepted, without deciding, that the Board is a state agency. On appeal, the Board reassures us that a number of federal and state court decisions have concluded that Maryland boards of education are state agencies for Eleventh Amendment immunity purposes.

Where, as here, the judgment would not be paid from the State's treasury, we must consider whether the relationship between the State and a board of education is “sufficiently close to make the entity an arm of the State” by analyzing: (1) the degree of control that the State exercises over the entity or the degree of autonomy from the State that the entity enjoys; (2) the scope of the entity’s concerns— whether local or statewide — with which the entity is involved; and (3) the manner in which State law treats the entity. Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219, 224 (4th Cir.2001).

We agree with the courts that have evaluated the foregoing factors and concluded that the State exercises a significant degree of control over boards of education and that Maryland law treats them as instrumentalities of the State. See, e.g., Lewis v. Bd. of Educ. of Talbot Cnty., 262 F.Supp.2d 608, 613-14 (D.Md.2003); Zimmer-Rubert, 973 A.2d at 236-37 (collecting cases). As a result, for purposes of this proceeding, the Board is an agent of the State entitled to invoke its claim of Eleventh Amendment immunity. .

Title I of the ADA, as codified at 42 U.S.C. § 12112, proscribes the type of discriminatory acts and omissions alleged by Lee-Thomas, i.e., the failure of an employer to make reasonable accommodations. See E.E.O.C. v. Fed. Express Corp., 513 F.3d 360, 371 (4th Cir.2008). . In the Della Grotta case, the state statute did not “spell out an intention to allow suit against [Rhode Island] in a federal court.” Della Grotta, 781 F.2d at 346-47.

The First Circuit nevertheless deferred to the Supreme Court of Rhode Island, which had ruled "unequivocally” that the state statute manifested an intent to waive Eleventh Amendment immunity in federal court. Id. at 347. The court reasoned, inter alia, that “when the highest court declares the intent of its own legislature, the federal courts have no reason to exercise special oversight designed to save the state from its own or (if distinguishable) its judicial folly.” Id. .

We are unable to disagree with our good dissenting colleague that, in assessing whether a state statute effects a waiver of Eleventh Amendment immunity, a court is obliged to apply federal law as embodied in Supreme Court precedent, e.g., Atascadero. We cannot endorse the dissent’s view, however, that Lapides's holding or its dicta authorizes a federal court to overrule the construction of a state statute rendered by that state’s highest court. Such a view seems not only anomalous, as the dissent itself concedes, but is an affront to the very notion of state sovereignty.

In our view, the dissent overemphasizes the distinction between "state court immunity” and "Eleventh Amendment immunity” in asserting that a state's highest court has no business deciding whether its own state statute constitutes consent to suit in federal court. See post at 255-56. In either forum, a state decides whether to waive its sovereign immunity. See Alden, 527 U.S. at 713-14, 119 S.Ct. 2240. A state acts no less in its sovereign capacity when its highest court interprets a state statute as when its legislature enacts one. Cf. Erie R. Co. v.

Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (the "law of the state” is the law "declared by its Legislature in a statute or by its highest court in a decision”). Thus, to say that a state's highest court has no right to speak authoritatively on its state’s statutory waiver runs afoul of "the preeminent purpose of state sovereign immunity [which] is to accord States the dignity that is consistent with their status as sovereign entities.” See Fed. Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002).

Moreover, "[i]t would be a strange rule of federalism that ignores the view of the highest court of a State as to the meaning of its own law.” See Stringer v. Black, 503 U.S. 222, 235, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). That a state’s highest court is the final arbiter of a state statute is a fundamental tenet of federalism older than Palmer, see Elmendorf v. Taylor, 23 U.S. 152, 159, 10 Wheat. 152, 6 L.Ed. 289 (1825), and yet thriving, see Johnson, 520 U.S. at 916, 117 S.Ct. 1800. .

The Board contends on appeal that the Court of Appeals of Maryland undercut its Zimmer-Rubert decision by recognizing in a subsequent decision that the words "any claim” in the immunity provision do not apply to contract claims but only to "tort or insurable claim[s], such as those for personal injury and for claims arising from alleged employment law violations.” Beka Indus., Inc. v. Worcester Cnty. Bd. of Educ., 419 Md. 194, 18 A.3d 890, 907 (2011) (internal quotation marks omitted).

An effort to distinguish between tort claims and contract claims, however, does not diminish the conclusion reached in Zimmer-Rubert that the legislature intended the immunity provision to effect a waiver of Eleventh Amendment immunity as to claims concerning violations of employment law, the very type of claim alleged in this case. . The district court rejected the Board's assertion that the Court of Appeals was only in dicta observing that the State had "specified its intention [in the immunity provision] to subject itself to suit in federal court.” See Zimmer-Rubert, 973 A.2d at 242.

The Board contended in its motion for reconsideration that, because Zimmer-Rubert was pursued in state court, the only issue properly resolved was whether the immunity provision effected a waiver of immunity in state court. The Court of Appeals believed, however, that "[t]he dispositive question” in Zimmer-Rubert was "[w]hether the State of Maryland, pursuant to [the immunity provision] enacted a valid waiver of Eleventh Amendment immunity.” See 973 A.2d at 236.

Whether or not the question was necessarily before the Court of Appeals, the court's construction of the immunity provision was entirely unequivocal, leaving no doubt that the provision was meant to waive all aspects of sovereign immunity (up to $100,000), both state and federal. Our distinguished colleague’s view that the Court of Appeals interpreted only an intent to "preserve” — rather than to "waive” — Eleventh Amendment immunity supplies a thin reed on which to overrule Maryland’s highest court concerning the scope of the immunity provision. Cf. Bragg v. W. Va.

Coal Ass'n, 248 F.3d 275, 289 (4th Cir.2001) (interpreting federal statute as not expressing "Congress' clear intent that participating States waive Eleventh Amendment immunity” since "language actually preserves a State’s sovereign immunity”). Even accepting the dissent’s characterization of Zimmer-Rubert’s pronouncement as dicta, however, it necessarily qualifies as "[c]onsidered dicta” — constituting "a clear exposition of the [state’s] law” by a state’s highest court, not "in conflict with other decisions of that court” — which "must be followed.” See Sherby v. Weather Bros.

Transfer Co., 421 F.2d 1243, 1244 (4th Cir.1970); see also Hawks v. Hamill, 288 U.S. 52, 58-59, 53 S.Ct. 240, 77 L.Ed. 610 (1933).