PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1480

CARPENTERS PENSION FUND OF BALTIMORE, MARYLAND, by its 

Trustee, Augustus L. Lester; MID−ATLANTIC REGIONAL COUNCIL 

OF CARPENTERS HEALTH AND WELFARE FUND, by its Trustee, 

Augustus L. Lester; MID−ATLANTIC REGIONAL COUNCIL OF 

CARPENTERS SEVERANCE AND ANNUITY FUND, by its Trustee, 

Augustus L. Lester; MID−ATLANTIC REGIONAL COUNCIL OF 

CARPENTERS, BALTIMORE DISTRICT; CARPENTERS VACATION FUND OF 

BALTIMORE, MARYLAND, by its Trustee, Augustus L. Lester; 

BALTIMORE CARPENTERS' JOINT APPRENTICESHIP AND TRAINING 

COMMITTEE, by its Trustee, Augustus L. Lester,

Plaintiffs – Appellees,

v.

MARYLAND DEPARTMENT OF HEALTH AND MENTAL HYGIENE,

Garnishee – Appellant,

and

TAO CONSTRUCTION COMPANY, INC.,

Defendant,

WACHOVIA BANK,

Garnishee.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Benson Everett Legg, Senior District 

Judge. (1:07-cv-01414-BEL)

Argued: March 22, 2013 Decided: June 26, 2013
2

Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Reversed and remanded by published opinion. Judge Diaz wrote 

the opinion, in which Judge Duncan and Senior Judge Hamilton 

joined.

ARGUED: William F. Brockman, OFFICE OF THE ATTORNEY GENERAL OF 

MARYLAND, Baltimore, Maryland, for Appellant. Brian G. Esders, 

ABATO, RUBENSTEIN & ABATO, PA, Baltimore, Maryland, for 

Appellees. ON BRIEF: Douglas F. Gansler, Attorney General of 

Maryland, Baltimore, Maryland, for Appellant. Kimberly L. 

Bradley, ABATO, RUBENSTEIN & ABATO, PA, Baltimore, Maryland, for 

Appellees. 
3

DIAZ, Circuit Judge:

We consider whether the jurisdictional shield of the 

Eleventh Amendment1 insulates a state from a writ of garnishment

under Federal Rule of Civil Procedure 69(a). Carpenters Pension 

Fund of Baltimore, Maryland, and co-plaintiffs (collectively 

“the Fund”) filed this garnishment proceeding against the 

Maryland Department of Health and Mental Hygiene (the 

“Department”) to collect monies owed to a debtor construction 

company. The Department moved to quash the writ of garnishment

on grounds of sovereign immunity and Maryland public policy. 

The district court denied the motion, and the Department filed 

this interlocutory appeal. 

We conclude that a federal proceeding that seeks to attach 

the property of a state to satisfy a debt, whether styled as a 

garnishment action or an analogous common law writ, violates the 

Eleventh Amendment. As the Department is immune from suit, we 

reverse and remand with instructions to quash the writ of 

garnishment.

 1 While this appeal nominally arises under the Eleventh 

Amendment, we note “that the sovereign immunity enjoyed by the 

States extends beyond the literal text of the Eleventh 

Amendment,” Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 

743, 754 (2002), deriving from the common law immunity that the 

states possessed before ratification and which the Constitution 

should merely be seen “as evidencing and exemplifying,” Alden v. 

Maine, 527 U.S. 706, 728 (1999).
4

I.

The instant litigation originates from an Employee 

Retirement Income Security Act action filed by the Fund in May 

2007, against Tao Construction Company, Inc. (“Tao”) alleging 

deficient employer contributions. When Tao failed to answer the 

summons, the district court entered a $16,140.64 default 

judgment for the Fund.

In an effort to collect the judgment, the Fund filed an 

enforcement action in the federal district court for the 

District of Maryland. After failed attempts to locate any 

assets owned by Tao, the Fund discovered that Tao’s CEO had 

contracted with the Department to perform construction work

under the trade name “Pharoah Building and Construction.” 

Finding sufficient evidence that Pharoah was indeed the alter 

ego of Tao, the district court issued a writ of garnishment 

against the Department for amounts due ($9,963.52) to “Tao d/b/a 

Pharoah Building and Construction.” J.A. 41.

The Department moved to quash the writ on grounds of 

sovereign immunity and Maryland public policy. In a preliminary 

memorandum opinion and order, the district court concluded that 

sovereign immunity did not apply because by providing for 

immunity from suit only under a public policy doctrine, Maryland 

had implicitly waived its sovereign immunity under the Eleventh 

Amendment. The court further concluded that Maryland public 
5

policy did not foreclose the garnishment action because it 

sought “wages” rather than property. Nevertheless, the court

deferred a final ruling on the Department’s motion in 

anticipation of a joint status report regarding disputes about 

the payment obligations of the underlying contract.

The court subsequently held a hearing, during which the 

Department renewed its Eleventh Amendment objection. The court 

reaffirmed its conclusion that sovereign immunity did not bar 

the writ, but on different grounds. It concluded that the 

garnishment action was not a “suit” against a state entity, 

noting that although the garnishment action resembled a suit in 

the procedural sense, in substance it was not because the 

Department was not a real party in interest--but rather a “mere 

custodian” of the contract sums. J.A. 99. Accordingly, the

court denied the Department’s motion to quash.

We have jurisdiction2 under the collateral order doctrine to 

review this interlocutory order inasmuch as it involves the 

 2 We deferred action on the Fund’s motion to dismiss for 

lack of subject matter jurisdiction pending arguments. We now 

deny that motion. 

We do, however, agree with the Fund that we lack appellate 

jurisdiction to consider whether Maryland “public policy” 

supplies an independent basis for quashing the writ. The 

district court’s analysis on that issue in its preliminary 

memorandum was advisory, as the court postponed its ruling on 

the Department’s motion until its final order. The final order 

(Continued)
6

denial of an immunity from suit. See P.R. Aqueduct & Sewer 

Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-46 (1993). 

II.

A.

We review the denial of sovereign immunity de novo. S.C. 

Wildlife Fed’n v. Limehouse, 549 F.3d 324, 332 (4th Cir. 2008).

“[T]he States’ immunity from suit is a fundamental aspect 

of the sovereignty which the States enjoyed before the 

ratification of the Constitution.” Alden, 527 U.S. at 713. 

Because that protection inheres with the constitutional notion 

of sovereignty that the states retained, Seminole Tribe of Fla. 

v. Florida, 517 U.S. 44, 54 (1996), it “extends beyond the 

literal text of the Eleventh Amendment,” Fed. Mar. Comm’n, 535 

U.S. at 754, to any “suit” that “subject[s] a State to the 

coercive process of judicial tribunals,” Seminole Tribe, 517 

U.S. at 58. Thus, we consider here whether “the federal 

judicial action must fairly be deemed a ‘suit’” against the 

state. In re NVR, LP, 189 F.3d 442, 450 (4th Cir. 1999). 

In a case testing the Supreme Court’s jurisdiction to 

review state court criminal judgments in which the state is a 

 

in this case addressed only the Eleventh Amendment question, 

which is the sole issue before us. 
7

party, Chief Justice Marshall remarked: “What is a suit? We 

understand it to be the prosecution, or pursuit, of some claim, 

demand, or request.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 

264, 407 (1821). The Supreme Court has scarcely elaborated 

since, stating only that a “suit” is to be determined “‘by the 

essential nature and effect of the proceeding.’” Idaho v. Coeur 

d’Alene Tribe, 521 U.S. 261, 277 (1997) (quoting In re State of 

New York, 256 U.S. 490, 500 (1921)). 

For our part, we have outlined a more technical analysis 

based on “both the procedural posture and substantive nature of 

the proceeding.” In re NVR, 189 F.3d at 450. And although our 

decision in In re NVR likely does not survive Central Virginia

Community College v. Katz, 546 U.S. 356 (2006),3 we believe its 

general test for determining a “suit”--which the Supreme Court 

did not disturb--is nonetheless instructive. Accordingly, we 

examine whether the procedural means and substantive end of the

instant writ of garnishment involve the compulsory exercise of

 3 In Katz, the Supreme Court held that the Eleventh 

Amendment has limited application in the arena of federal 

bankruptcy jurisdiction, for the Bankruptcy Clause, U.S. Const. 

art. I, § 8, cl. 4, represented a partial cession by the states 

of their sovereign immunity. See Katz, 546 U.S. at 373. 

Accordingly, it is doubtful that In re NVR, which applied the 

Eleventh Amendment to a bankruptcy reorganization that sought 

refunds of exempted taxes paid to Maryland and Pennsylvania, 

remains viable. 
8

federal jurisdiction over the state of Maryland. See In re NVR, 

189 F.3d at 450, 452-53. 

The procedural inquiry compares the process of the legal 

action to that of a typical suit, see Fed. Mar. Comm’n, 535 U.S. 

at 756-59 (comparing putative “suit” to “civil litigation”), but 

principally as a measure of “the degree of coercion exercised by 

the federal court in compelling the state to attend,” In re NVR, 

189 F.3d at 452. For a suit qua “suit” involves “[t]he specific 

indignity against which sovereign immunity protects[:] the 

insult to a State of being haled into court without its 

consent.” Va. Office for Prot. & Advocacy v. Stewart, 131 S. 

Ct. 1632, 1640 (2011). 

The substantive inquiry asks whether the proceeding 

“demand[s] something [from the state] by the institution of 

process in a Court of justice,” Cohens, 19 U.S. (6 Wheat.) at

408, and “[t]he demand for money from a state is a strong 

indication that a federal judicial proceeding is indeed a 

‘suit’” as a substantive matter. In re NVR, 189 F.3d at 454; 

see also Coeur d’Alene Tribe, 521 U.S. at 277 (“[W]hen the 

action is in essence one for the recovery of money from the 

state, the state is the real, substantial party in 

interest . . . .”). Where relief is premised on federal 

jurisdiction over the state, as opposed to where the state is 

merely an adjunct to a dispute that “collaterally affects” its
9

interests,4 id., the proceeding is a suit in the substantive 

sense. 

B.

We now apply these principles to the instant proceeding, 

which is a federal enforcement action by the Fund under Federal 

Rule of Civil Procedure 69 to execute their legal judgment 

against Tao. The law of the forum state governs such ancillary 

proceedings. See Fed. R. Civ. P. 69. As a result, the district 

court in this case issued a writ of garnishment, which is a 

valid procedural device in Maryland for enforcing a judgment. 

See Parkville Fed. Sav. Bank v. Md. Nat’l Bank, 681 A.2d 521, 

524 (Md. 1996) (“A writ of garnishment is a means of enforcing a 

judgment. It allows a judgment creditor to recover property 

owned by the debtor but held by a third party.”). 

We begin by noting that procedurally this action resembles

a conventional “suit.” The garnishment proceeding commences 

upon the issuance of a writ, see Md. R. 2-645(b)-(c), at which 

point the garnishee must file an answer admitting or denying 

indebtedness and asserting any applicable defenses “within the 

 4 An example is a purely in rem proceeding in which “the 

state is not in possession of the property.” Tenn. Student 

Assistance Corp. v. Hood, 541 U.S. 440, 446-50 (2004). In this 

context, “jurisdiction is premised on the res, not on the 

persona” of the states, Hood, 541 U.S. at 450, while the remedy 

does not involve recovery from the state treasury, Cf. In re 

NVR, 189 F.3d at 453-54.
10

time provided by Rule 2-321”--a period which coincides with

answering a complaint in a civil action. See Md. R. 2-645(e). 

If the garnishee timely answers and the creditor timely replies, 

“the matter shall proceed as if it were an original action 

between the judgment creditor as plaintiff and the garnishee as 

defendant and shall be governed by the rules applicable to civil 

actions.” Md. R. 2-645(g). 

It is therefore not surprising that Maryland courts have 

designated garnishment actions as “separate cases, even though 

filed in the underlying action.” Mayor & City Council of 

Baltimore v. Utica Mut. Ins. Co., 802 A.2d 1070, 1083 (Md. Ct. 

Spec. App. 2002). In fact, the Maryland Court of Appeals has 

“established that garnishment is, in essence, a suit by the 

debtor against the garnishee for the use and benefit of the 

attaching creditor, and that the rights of the creditor against 

the garnishee cannot rise above those of the debtor.” Peninsula 

Ins. Co. v. Houser, 238 A.2d 95, 97 (Md. 1968) (emphasis added).

Perhaps most importantly, a garnishee who fails to file an 

answer to the writ risks default judgment. See Md. R. 2-645(f). 

As it is the compulsory aspect of one sovereign exerting its

jurisdiction over another that concerns the Eleventh Amendment, 

see Alden, 527 U.S. at 749, a proceeding that encumbers the 

property of a sovereign unless it participates certainly amounts 
11

to unconstitutional “coercion exercised by the federal court in 

compelling the state to attend,” In re NVR, 189 F.3d at 452.

The Fund’s service of the writ left the Department with two 

options: (1) answer the writ and appear before the court to 

assert its defenses, or (2) ignore the writ and have a default 

judgment imposed against the state treasury. When a similar 

ultimatum was present in Federal Maritime Commission, the 

Supreme Court stated: “To conclude that this choice does not 

coerce a State to participate in an . . . adjudication would be 

to blind ourselves to reality.” 535 U.S. at 763-64. 

The Fund’s claim that the Department has admitted its 

indebtedness to Pharoah is immaterial. The Eleventh Amendment

is a matter of jurisdiction, not liability. See In re NVR, 189 

F.3d at 452 (“The Eleventh Amendment, of course, does not free 

Maryland from federal law, but simply the jurisdiction of 

federal courts.”). It is the mere imposition of federal 

jurisdiction on a state, thereby offending its dignity as a 

sovereign, that violates this constitutional protection. See

Fed. Mar. Comm’n, 535 U.S. at 769; Alden, 527 U.S. at 715. This

injury results “regardless of the relief sought,” Metcalf and 

Eddy, 506 U.S. at 146, and regardless of whether the relief is 

actually owed, see Automatic Sprinkler Corp. of Am. V. Darla 

Env’t Specialists Inc., 53 F.3d 181, 182 (7th Cir. 1995) 

(“Automatic Sprinkler believes that sovereign immunity is 
12

inapplicable because it is trying to collect money that the 

United States concededly owes to Darla. This does not cut much 

ice.”). 

Accordingly, we conclude that this garnishment action is a 

“suit” in the procedural sense. The state is the named 

garnishee, the adversarial posture of the action “demands 

affirmative action by Maryland,” In re NVR, 189 F.3d at 453, and 

the action is indisputably premised on jurisdiction over the 

sovereign. 

We also find that the underlying garnishment action 

satisfies the substantive criteria of a “suit” because it 

demands recovery from the state treasury. See Gray v. Laws, 51 

F.3d 426, 433 (4th Cir. 1995). From the outset of the Republic 

a sovereign has enjoyed immunity from suits to attach its 

property, see The Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch)

116 (1812) (attachment of foreign vessel), and this principle 

applies equally to efforts to attach the funds of the sovereign

to satisfy the debt of another, see Mine Safety Appliances Co. 

v. Forrestal, 326 U.S. 371, 375 (1945) (“In effect . . . this is 

an indirect effort to collect a debt allegedly owed by the 

government in a proceeding to which the government has not 

consented.”).

As early as 1846, the Supreme Court rejected efforts by 

creditors to garnish the wages of navy seamen from the federal 
13

treasury. Buchanan v. Alexander, 45 U.S. 20 (1845). The Court 

acknowledged that the disbursements were owed, yet applied 

sovereign immunity to prevent the disruption on government 

functions that would attend the garnishment of public funds held 

in the Treasury. Id. 

Later in Federal Housing Administration, Region No. 4 v. 

Burr, 309 U.S. 242, 245 (1940), the Supreme Court affirmed that 

a sovereign is immune from garnishment, but confronted the 

separate question of whether Congress waived that immunity in 

the National Housing Act, 12 U.S.C. § 1702, by allowing the 

Federal Housing Administrator to “sue or be sued.” In 

determining “whether or not garnishment comes within the scope 

of that authorization,” Burr, 309 U.S. at 244, the Court 

concluded: 

Clearly the words ‘sue and be sued’ in their normal 

connotation embrace all civil process incident to the 

commencement or continuance of legal proceedings. 

Garnishment and attachment commonly are part and 

parcel of the process, provided by statute, for the 

collection of debts. In Michigan a writ of 

garnishment is a civil process at law, in the nature 

of an equitable attachment. But however it may be 

denominated, whether legal or equitable, and whenever 

it may be available, whether prior to or after final 

judgment, garnishment is a well-known remedy available 

to suitors. 

Id. at 245-46 (emphasis added). The analysis in Burr mirrors

our own. If a waiver from “suit” includes post-judgment 
14

garnishment, then certainly the scope of immunity from “suit” 

does as well. 

Recent precedent has confirmed that “sovereign immunity 

bars creditors from attaching or garnishing funds in the 

Treasury.” Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 264

(1999); see Franchise Tax Bd. of Cal. v. U.S. Postal Serv., 467 

U.S. 512, 516-17 (1984) (“[U]nless waived, sovereign immunity 

prevents the creditor . . . from collecting a debt through a 

judicial order requiring the United States to garnishee the 

employee’s salary.”).5 And we implicitly endorsed this rule 

when we noted that Congress needed to legislatively annul 

federal sovereign immunity from garnishment. See Diaz v. Diaz, 

586 F.2d 1061, 1063 (4th Cir. 1977) (“Indeed, it appears that 

the purpose and effect of 42 U.S.C. § 659 is to waive the 

sovereign immunity of the United States for garnishment and like 

purposes in a limited class of State court actions . . . .”).

Even though the relevant cases mostly concern the immunity 

of the federal government from post-judgment attachment, we see 

no reason why a state should not enjoy this immunity as well. 

 5 Our sister circuits have also affirmed this principle. 

See Watters v. Wash. Metro. Area Transit Auth., 295 F.3d 36, 40 

(D.C. Cir. 2002); Shaw v. United States, 213 F.3d 545, 548 (10th 

Cir. 2000); Neukirchin v. Wood Cnty. Head Start, Inc., 53 F.3d 

809, 812 (7th Cir. 1995); Ramsdell v. G.H. Coffey Co., 632 F.2d 

162, 163 (1st Cir. 1980); May Dep’t Stores Co. v. Smith, 572 

F.2d 1275, 1277 (8th Cir. 1978).
15

State and federal immunity from suit are coextensive inasmuch as 

both sovereigns derive their immunity from the same common law 

heritage. See Maxwell v. Cnty. of San Diego, 708 F.3d 1075, 

1087-88 (9th Cir. 2013) (“Tribal sovereign immunity derives from 

the same common law immunity principles that shape state and 

federal sovereign immunity.”). 

Swimming against the current of this precedent, the Fund

can only repeat the reasoning of the district court that the

instant proceeding is not a suit because the Department is a 

“mere custodian” for sums it admittedly owes to Pharoah.6

 But 

this characterization is true of all monies held in the state 

treasury in the sense that they are all allocated for some 

governmental purpose or obligation. 

At bottom, the Fund’s effort to distinguish the specific 

money it requests from the rest of Maryland’s treasury is an 

unsuccessful attempt to characterize its garnishment action as 

an in rem proceeding. But “[w]hile garnishment has been said to 

be a proceeding in rem, it is not, strictly speaking, in rem. 

It partakes both of the nature of a proceeding in personam and a 

 6 The principle precedent the Fund relies on for this 

proposition is inapposite. In re Visiting Home Services did not 

involve a writ of garnishment issued against a state in federal 

court, but rather sought to enjoin a garnishment judgment that 

had already been executed against a state agency in state court. 

643 F.2d 1356, 1361 (9th Cir. 1981). 
16

proceeding in rem.” 38 C.J.S. Garnishment § 2; see also Shaffer 

v. Heitner, 433 U.S. 186, 211 n.38 (1977) (“[G]arnishment or 

foreign attachment is a proceeding quasi in rem.”). 

In this case, the garnishment proceeding has an in personam 

character in that it requires jurisdiction over the sovereign 

and its treasury. And it is clear that “an action--otherwise 

barred as an in personam action against the State--cannot be 

maintained through seizure of property owned by the State. 

Otherwise, the Eleventh Amendment could easily be circumvented; 

an action for damages could be brought simply by first attaching 

property that belonged to the State and then proceeding in rem.” 

Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 699 

(1982) (plurality). 

Regardless of how the Fund characterizes its claim in this 

case, it is ultimately seeking recovery from the Maryland

treasury. Accordingly, the Fund’s post-judgment garnishment 

action is a suit in the substantive sense. 

III.

As a matter of procedure and substance, the garnishment 

proceeding we consider here is a “suit” under the Eleventh 

Amendment. As a result, the Department is entitled to sovereign
17

immunity. We therefore reverse the district court’s order and 

remand with instructions to quash the writ of garnishment.

REVERSED AND REMANDED