Maryland Military Dept. v. Cherry

• Citation: 382 Md. 117,854 A.2d 1200
• Decision Date: 27 July 2004
• Docket Number: No. 98,98
• Parties: MARYLAND MILITARY DEPARTMENT, et al. v. Bryan CHERRY, et al.
• Court: Court of Appeals of Maryland

854 A.2d 1200

382 Md. 117

MARYLAND MILITARY DEPARTMENT, et al. v. Bryan CHERRY, et al.

No. 98, Sept. Term, 2003.

Court of Appeals of Maryland.

July 27, 2004.

Col. Stephen M. Doyle (Judge Advocate General's Corps, Maryland Army Nat. Guard, J. Joseph Curran, Jr., Atty. Gen., Laura C. McWeeney, Melissa S. Whipkey, Asst. Atty. Generals, on brief), for petitioners.

John F. Conwell (Davis & Associates Law Offices, P.A., Towson, on brief), for respondents.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

RAKER, J.

This case presents the question of whether Military Department airport firefighters may bring a direct suit in the circuit courts of this State against the State for overtime wages for attending National Guard drills, annual training and other federally mandated military training. Respondents, present and former Maryland Military Department airport firefighters, filed suit in the Circuit Court for Anne Arundel County against the Military Department and the Adjutant General. We shall hold that the Circuit Court lacks jurisdiction because the administrative grievance procedure set forth in Maryland Code (1993, 1997 Repl.Vol., 2003 Cum.Supp.) § 12-101 et seq. of the State Personnel and Pensions Article is the exclusive remedy for adjudication of respondents' overtime claims and respondents have not exhausted their administrative remedies.

I.

Respondents are twenty-three State employees, currently or formerly employed by the Maryland Military Department as airport firefighters at Martin's Air Base in Essex, Maryland. As a condition of their employment, respondents are required to maintain membership in the Maryland/United States Air National Guard (the "National Guard"). As National Guard members, they must attend two days of inactive duty training per month (eight and one-half hours per day, for a total of seventeen hours), and two weeks of active duty per year (twenty-four hours per day, for a total of 336 hours). Respondents are paid for their military service in the National Guard exclusively by the federal government pursuant to federal law. See 37 U.S.C. §§ 204(a)(2) and 206(a). The State neither compensates respondents for the time they spend engaged in National Guard duties nor considers that time for the purpose of calculating overtime wages.

On January 10, 2002, respondents filed suit in the Circuit Court for Anne Arundel County seeking overtime wages from the State for attending requisite National Guard drills and training. Respondents alleged that they were entitled to such compensation on the basis of wage and hour laws in Maryland Code, § 3-401 et seq. of the Labor and Employment Article; Maryland Code, § 8-301 et seq. of the State Personnel and Pensions Article; COMAR 17.04.02.08; and the federal Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq. The State moved to dismiss the action on the grounds that the State has not waived its sovereign immunity for direct judicial actions seeking overtime compensation and that respondents are not subject to the provisions of the FLSA when performing military service. Judge David S. Bruce granted the State's motion, concluding that the administrative and judicial review grievance procedure set forth in §§ 12-101 through 12-405 of the State Personnel and Pensions Article is the exclusive remedy for overtime wage claims against the State.

Respondents noted a timely appeal to the Court of Special Appeals. In an unreported opinion, that court vacated the judgment of the Circuit Court dismissing the overtime claim. The court referred to our earlier case of Kram v. Maryland Military Department, 374 Md. 651, 824 A.2d 99 (2003), in which some of the plaintiffs in the instant action were among the plaintiffs. There, the plaintiffs contested a requirement of their employment that as military airport firefighters, they must maintain membership in the National Guard. The firefighters claimed they had a right to grieve under Maryland Code (1993, 1997 Repl.Vol., 2003 Cum.Supp.) § 12-101 et seq. of the State Personnel and Pensions Article.¹ The administrative law judge denied the grievance on the ground that the National Guard requirement was outside the scope of a statutory grievance. On judicial review, the Circuit Court affirmed. The Court of Special Appeals affirmed, and this Court affirmed, holding that based on the plain language of the statute, the National Guard requirement was the establishment of a classification standard and therefore, one not the proper subject of a grievance. Id. at 654, 824 A.2d at 101.

Seizing on our language in Kram that "preventing the present grievance action does not necessarily preclude the employees from seeking redress for their perceived injuries," the intermediate appellate court remanded the instant case to the Circuit Court, holding that the Circuit Court erred in ruling that the grievance procedure is the exclusive remedy for the overtime wage claims the plaintiffs asserted.

We granted the State's petition for writ of certiorari. 378 Md. 617, 837 A.2d 928 (2003).

II.

The State argues that respondents may not bring a direct judicial action against the State for allegedly unpaid overtime wages because overtime claims may be pursued only through the administrative and judicial review grievance procedure set forth in Title 12 of the State Personnel and Pensions Article. As support, the State points to Robinson v. Bunch, 367 Md. 432, 788 A.2d 636 (2002), in which this Court held that the State has not waived its sovereign immunity for direct judicial actions seeking overtime compensation and overtime claims instead must be pursued through the administrative grievance procedure. The State argues alternatively that even if respondents were entitled to bring their action in the Circuit Court, the Court of Special Appeals erred by not affirming dismissal on the substantive ground that the wage and hour provisions of the FLSA do not apply, as a matter of law, to military service in the National Guard.

Respondents advance several grounds in support of their argument that they are not limited to pursuing their overtime claims through the administrative grievance procedure. First, they argue that the plain language of § 12-103(b) of the State Personnel and Pensions Article supports jurisdiction in the Circuit Court. Section 12-103(b) states that the grievance procedure is the exclusive remedy only when an employee seeks "an administrative remedy for violations of the provisions of this article," and, respondents assert, they are seeking more than just administrative remedies and raising claims under the Labor and Employment Article and the FLSA. Respondents also point out that § 8-302(b) dictates that State employees are entitled to "the greater of" the benefits that are provided in Subtitle 3, " Overtime Compensation," and the benefits required by the FLSA. Because remedies available to a successful grievant under the State Personnel and Pensions Article are much more limited than those available under the FLSA, respondents argue that limiting an employee's action to a grievance would deprive the employee of the greater benefits provided by the FLSA. See § 12-402 of the State Personnel and Pensions Article (limiting remedies to "the restoration of the rights, pay, status, or benefits that the grievant otherwise would have had if the contested policy, procedure, or regulation had been applied appropriately"); cf. 29 U.S.C. § 216(b) (permitting liquidated damages and attorney's fees).

In addition, respondents maintain that because there is no provision in Title 12 of the State Personnel and Pensions Article for grievances by former employees, holding them to the "exclusive remedy" of the grievance process would deprive them of their vested right to bring suit over their wage and hour claims; moreover, respondents argue, the interests of judicial economy and consistency of outcomes should give the Circuit Court subject matter jurisdiction for both former and current employees. Respondents also argue that prohibiting this action at law would effect an unconstitutional retroactive application of the law because the controlling law in the State at the time respondents filed this action was the Court of Special Appeals' holding in Bunch v. Robinson, 122 Md.App. 437, 712 A.2d 585 (1998), that rights protected by the FLSA are enforceable in state court and the administrative grievance process is preempted insofar as it is inconsistent with the FLSA. Finally, respondents argue that the State's requirement of secondary employment in the National Guard entitles them to overtime pay under the joint employer provisions of the FLSA. See 29 C.F.R. § 791.2.

III.

It was settled over a hundred years ago that the Eleventh Amendment to the United States Constitution² provides a state with immunity to claims arising under federal law and asserted by a citizen of that state in federal court. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)

. In Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), the Supreme Court held that the Eleventh Amendment is applicable to actions in state court and that Congress lacked the authority under the Commerce Clause to abrogate a state's sovereign immunity to suits in its own courts. Alden made it clear that the FLSA could not constitutionally authorize private suits for damages against a state in state court, as the Act purported to do. See 29 U.S.C. § 216(b) ("An action ... may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees"). The Court also explained in Alden, however, that states may consent to private suits in their own courts. 527 U.S. at 755,

119 S.Ct. at 2267,

144 L.Ed.2d at 678-79.

Subsequent to Alden, this Court considered in Robinson v. Bunch, 367 Md. 432, 788 A.2d 636 (2002), whether Maryland law permits...