claims of employment discrimination because the state has not waived its eleventh amendment immunity from suit in federal court rather when the state created a private right of action for employment discrimination the state waived sovereign immunity solely as to those in state court as set forth in supreme court precedent there is a stringent test that is applied to determine whether a state has waived its eleventh amendment immunity under that test the state must express consent to suit in federal court as this court last term an allen versus cooper reiterated a clear statement is required to effect a waiver here that express consent is abs issue in title twenty of the state government article states that the state may not raise sovereign immunity as a defense against an award in an employment discrimination case under this title this title being title twenty there is no express consent to suit in federal court and that provision as the plain text demonstrates moreover the waiver is limited to cases under title twenty and title twenty contains a venue provision establishing that cases must be brought in the circuit court for the county where the alleged unlawful employment practices occurred and that's found also in title twenty of the state government article the venue provision provides persuasive textual evidence as to  but my hypothetical says there's case law in american court of appeals hypothetically that says other words if do we look do we even look at that case law yes if the state had interpreted the provision at issue so in other words in thomas a case in this court the state court of appeals had interpreted a waiver of sovereign immunity that was different very determined that any was synonymous with all looked at the language looked at the legislative history looked at the absence of any limiting language and determined that that was sufficient that no other reasonable construction could be had that was sufficient to waive was no venue provision in zimmer rupert it was simply a waiver a provision a waiver of state sovereign immunity for county boards of education as to any claim of one hundred thousand dollars or less there was no to allow a waiver in federal court would be similar to what is here with the same kind of general language in this statute says may not raise sovereign immunity as a defense against an award well your honor at the end the word the operative summary report that the court really hinge its decision on was any and any being synonymous with all and the court look to the legislative history regarding the requirement that county boards of education so you will the full language of the sovereign immunity waiver provision that's at issue here is that the state may not raise sovereign immunity as an award in an employment discrimination case under this title so that's what distinguishes this case from zimmer rupert there you had any claim waive sovereign immunity here you have employment discrimination case under this title and when you look at and it's a rule of maryland statutory interpretation when you have relevan statutory provisions that are part of the same statutory scheme they must be considered interpret any any any alone well in the legislative history they they talk about any war but the but it's important to think about the context of that provision and why that why that language was changed from a salary award to an award and the reason is because the sovereign immunity waiver prison was first in acted when maryland had only administrative remedies for employment discrimination claims and they when the private right of action was created it was very clear in the legislative history that that was intended to open the state's courthouse doors for if it doesn't appointments discrimination for whom filing suit in federal court was inconvenient or too expensive and so it was to open the state's courthouse doors the legislative history is quite clear as to that point and when the sovereign immunity waiver provision was brought into a compass awards in the private right of action not just limited to administrative decisions that's when the language was changed to an award but it was still limited to cases under this title and under this title you have to look under maryland rules of statutory interpretation this court must look to the venue provision that's encompassed within the private right of action and that venue provision requires that cases be brought in the circuit court of the circuit court of the county where the employment discrimination act occurred those being the general trial courts of jurisdiction in the state of maryland and under fini the supreme court has articulated that venue provisions provide persuasive textual evidence as to the scope of a statutory immunity waiver which must be construed strictly in favor of the sovereign under both fed what if there was no venue provision year even if there were no venue provision this state would argue that this only waived immunity and state court because there is not be any claim language that was at issue in zimmer rupert here we have a sorry no waiver religion that's limited to an award in a case under this title and that's just la expressed language that this court has required set forth last term and alan vs cooper that the supreme court requires and that's because there would be another reasonable construction that could be given there would not be an overwhelming implication because the any clothing well it's really limited in the states you in the states do it's limited to that particular sovereign immunity waiver provision it and then there would be you would have to look at other evidence and if there is other persuasive textual evidence pretty lease back in the day pretty rare in maryland now there's full legislative history like federal legislators history there are there is that there is a fair amount of legislative history in this case you have the the lead sponsor of the legislation explaining that the reason for an act in a private right of action was to open the state's courthouse stores in other words there is no there is no limit and there's no push back when the real court of appeals is there sometimes there's a supreme court about not looking at legislative history no one can one can take into account the legislative history in maryland statutory interpretation but be the limiting language in this statute is the venue provision and as the supreme court made clear in feeney that is persuasive textual evidence as to the scope of the sovereign immunity waiver and in this case it consent to supervision was did not waive eleven the member immunity and that was the ninth circuit in macumba knock over state of washington forty five and third three sixteen and the fifth circuit and martinez versus texas department of criminal justice that's a three hundred f thirty five sixty seven both of the cases are in the brief and in the ninth circuit case the state of washington was a knack to being a state level jones act type of cause of action for injuries that to see men on state owned souls and even though the jones act has a broader venue provision which allows it to be brought in the united states district courts that state statute sort of adopting the jones act the venue provision was limited to state courts and the ninth circuit held that that was enough to limit the waiver of sovereign immunity to state court only why the state wouldn't dismiss its appeal i don't want to breach attorney client privilege but it's in the best interest of the department and the best interest of the state to have a ruling  amended immunity issue from the district court and the letter order from judge him was not i if i had jurisdiction i would change my view it was you know i might maybe you've got a better argument than i thought but that remains to be seen and you know just to touch briefly on the rationale that judge graham borrowing from another district court judge had articulated in this case he really finds by implication and ambiguous language of the district court i think back in two thousand and thirteen and then that that her analysis sort of gets parroted by other federal district court judges when they're making a decision on this issue there hasn't been a  not a proper basis to find a waiver of eleven amendment immunity thank you and that case where the where the us supreme court look to the venue it was a very different kind of statute so in other words the first part said the state's consent to suit sanctions or proceedings of any form or nature at law in equity or otherwise against the port authority and then it went on to say the foregoing consent is granted upon the condition that venue in any suit action or proceeding against the port authority shall be laid within a county or a judicial district established by one of said states or by the united states and situated wholly or partially within three the state its officers and its units may not raise sovereign immunity as a defense against an award in an employment discrimination case under this title ok and then in a wholly different section we have a provisions that says a civil action under the section shall be filed in the circuit court for the county where the alleged unlawful practice occurred they will this can mean need to file it in the circuit court in the county where this unlawful practice occurred that's going to break it's not saying that you can't also filed in federal court if you've got a case that has federal court claims but my understanding of danny was that it is that there the venue provision actually clarify ok this is this is the consent to be sued ok good only occur if this suit is brought in these certain places and here you don't have a language that says that consent is only like we're only agreeing to be sued used used language that was not ambiguous and it can and the also the maryland maryland legislature knows how to limit itself is waived as to what action in a court of the state ok and then also in contract actions the state its officers and its units may not raise the defense of sovereign immunity in a contract action in accord of the state so clearly the maryland legislature knows how to limit its sovereign immunity it didn't do so in this case and i think you can look at  robert albeit a different statute but if you look at the analysis there zuma robert case there is no venue provision so i don't i don't think so but i don't think that's  it was it was a it was different language entirely well i mean unfortunately the supreme court whatever they say even if they're addressing different language controls but for the purposes of your argument no it's the language in there in which the statute said ok we will be sued by the federal government and if it's not which this we probably all can agree there's nothing this language that says that maryland reads to be federal as good and that means you wait so this case is is similar to that and when we were part of stringent test i mean comes out barefoot now you want to go to sever rupert case which goes to my question earlier is haven't made that determination that a federal procedure would deal with stringent tests of the supreme court what do we do if the court of appeals of maryland has ruled differently and two to indicate you got a look at that so but the question here is has maryland court of appeals spoken with some degree of certainty on this issue that we can now say well we know what the statute now me movie but i don't think that i still think you can use the language of zimmer robert and apply it to this case because i don't i  that case this language that we have the state may not raise sovereign immunity as a defense against an award in an employment discrimination case under this title i mean space sickly saying you can't do it if you can raise sovereign immunity as a defense it's very clear and here is a county board of education may not raise the defense of sovereign immunity to any claim of one hundred thousand dollars or less they could have said to a claim but i don't think that that's i don't think that's distinguished what you what you should be looking at as the distinguishing characteristic i think what you should sued in federal court yet maryland holds out do it but we can't say we can't say well they should have done it by implication i would i don't think we can do about implication i think we've got to find a specific intent by the court and that's why  the waiver and assistance to to be sued in federal court that that's correct i realize it's not the same statute but but i believe you can you can you listen argue is what i'm talking about isn't analogous language that's being used in of the think what's important i think i think the language in the zimmer rubert statute is analogous to the language that we have in in the feet a statute so that's what we got into the  change the result and i don't think that to me in my reading of zimmer ruber it goes more to the fact that the legislature knew how to preserve its eleventh amendment but protection but doing it to to judge when it's a question which i think was a good way to frame and so we're looking to see what the state court would say about this because if your colleagues on the other side acknowledge the state supreme court court of appeals in this case knows whether the state has waived immunity or not but when the state court is making that determination it also is looking at what the supreme court says you need to do supreme court put a lot of weight on that venue provision so whatever else you're talking about about the wording of these two statutes is it reasonable to think that the state of maryland the highest court of the state of maryland would think that when you have a venue provision like this you nonetheless we can stretch this language in just saying there is no way we're there is a waiver sovereign immunity and seems to me you have a pretty hard road to hoe they're going to stay when it was a complicated question i apologize now and i understand what you're what you're getting at because you would acknowledge that that the court i mean sometimes doesn't follow the supreme court law on the supreme court tells them that but that's what they're supposed to be doing just right we're doing right but i also see a difference in the venue provision at issue feeney well the answer is they're different were both venue provisions and that's what the supreme court found very telling telling bit of whether or not there was going to be a waiver of immunity but again it wasn't a venue provision that was just sort of out there it was a venue  connected to the actual wall sovereign immunity part of the statute basically saying that we're you know if   foregoing consent is granted upon the condition so we don't hov of the venue provision in the feet the statute doesn't say the foregoing consent is granted upon the provision that is only brought  circuit court well let me ask you this have you found any case law in which a federal court has said well we have a venue prove vision here but it's not like the venue provision that was talked about supreme court in these waiver of eleventh member immunity cases and therefore we're going to be interpreted differently and not saying it is an indication of waiver or not because i haven't found one no so i don't think that argument is very compelling but the difference in the two then you bruises ok well in any event even  basically the way the way i look at this is that we have a we have the zimmer ruber decision which interprets a different statute but yet says well there's no limiting language here and and says you know legislature they could have limited it if they wanted to when the engine we have we thomas saying you've got to go by what rome and when you go to does zimmerman case there is some language that might be helpful to you but i'm question comes to my mind why why would it be beneficial for you to say to the court why don't you well let's let's make sure we're clear if you use this spring to the supreme court case your argument is very difficult and so then you need to look at the state specific state and to a liberal court of appeals  s in the case and there's still a lot of right yes maybe that's why case which made us believe that there may not be stiction and so you know basically under maryland law sovereign immunity if under state law the immunity is an immunity from suit as opposed to an immunity from liability only so because of that language there there was that question and that's why we raise the chores to an issue and also just to clarify this the the great hopkins case actually said that sovereign immunity of the state of maryland is an immunity is actually an immunity from suit but they were so we have an eleventh amendment the state only a state has led to many meaning to the counties can have various other kinds of and do right this is right and you think that's wrong you think that the county has  between analyzing penn state claims and analyzing federal claims and because there were there was appended state blame in this case that that's why we could question the jurisdiction briefly your honour's issues of eleventh amendment immunity waiver are federal law issues it is an issue of federal law but this court stated in lee thomas was that courts must apply federal embodied in the supreme court precedent but when a state's highest court has applied federal law and determined that a state statute affects the waiver then this court must accord some deference to that decision we do not have a court of appeals decision to allow the federal government the state law and if state law the state crimes court determines that if it hasn't been turned in the supreme court tells us that then you apply the stringent test this is it you don't look at what the supreme court tells you on how to determine federal jurisdiction is that correct that's correct but in lee thomas this court did assure itself that the court of appeals of maryland had faithfully applied the federal court standards to the issue of whether the state had waived eleventh amendment immunity is still a federal question ok but i think what we're trying to get at is  that then you're here to get the this court as deadly thomas accord some deference but it still does assure itself that the stringent test has been met here and i and i think this is a little academic because there is no co and the issue is that there the language that the court of appeals based its decision on any claim with no limiting language anywhere else in that statute with  claims which included claims brought in federal or state court here we don't have that we don't have the word any we don't have the word all we have the waiver of sovereign immunity as defense in two in an award in  a employment discrimination case brought under this title and that language employment discrimination case if you look at the private right of action the venue provision also refers specifically to employment discrimination  that stringent to us and how to determine whether a state has waived is immunity is the term by the united states supreme court but up by and that in your view that said that there in fact was a waiver of sovereign immunity in this statute with all of that and then this case came to us so we are now looking at supreme court law and arguably for your purposes here thinking that you should prove it but we have a maryland court of appeals opinion telling us no this is a way we're under maryland law so what do we do i think you have to do with the court did only thomas which is that the that there was a waiver of eleventh the member and he would have to do that yes but in in lee thomas and all fairness to this day there is believe thomas the court did assure itself that the state had applied the right test  and so and given that it had this the court had no had no had no reason not to but this goes to the question of whether we should certified i understand  the only the only reason that the this court and lee thomas look to what the court of appeals of maryland did was because the maryland court of appeals had reason to have already interpreted that statutory provision here there has been no reason that there were there really wouldn't be a reason why this question would ever come to the maryland court of appeals because it would be dealing with federal yelling with state and federal claims in state court over  so that's why and this court does this all the time this court looks at language that a state general assembly or a legislature hasn't acted regarding sovereign immunity waiver or a consent to supervision with the venue provision and makes these decisions without certifying the language to the state's highest court it was only in lee thomas because it had just happened to be that the state had raised the defense of a limit the member community in state court the  definitively on the issue and that was why this court deferred to that decision it wasn't because as a first matter of general principles this court looks to the state court to see what it would do with this provision all of the cases that we cited that deal with state statutes of immunity i'm sorry no part of my time this court is starting with the strange a test set forth by the supreme court following its own president supreme court and for a second president  is understandably thomas which is the fourth circuit hates the supreme court it all willing good but under the constitution in terms of state sovereignty the highest court in the state tells you what state cases in which federal courts have certified this kind of issue i did not see any such cases all of the cases that i saw were federal courts looking at state statutes interpret in a climb the stringent test set forth in a task of barrow and ruling without any guidance from the state courts as to whether the state had waived its eleventh amendment munity or not every single case i believe that's in the brief follows that exact pattern the only one that's different is lee thomas because in that case it had just so happened that the state had raised an eleventh immunity defense in a case in state court and the state court rejected it that's the only reason that le thomas that's the only reason that lee thomas had reason or opportunity to rely on what the state court said in that case and every other case that is not what happens it is a federal court applying federal law to a state statute which we thank you very much we will come down and siller the lawyers and then go directly to your la