State v. Sharafeldin
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In the Circu it Court for B altimore C ity Case No. 24-C-00-2057 IN THE COURT OF APPEALS OF MARYLAND No. 102 September Term, 2003 ______________________________________ STATE OF MARYLAND v. IBNOM ER SH ARAF ELDIN ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: July 27, 2004 In Septemb er, 1999, Ibn omer Sh arafeldin sued the State D epartmen t of Public S afety and Correctional Services in U.S. District Court, claiming, among other things, breach of contract. The con tract allegedly bre ached w as a 1995 Settlemen t Agreem ent intende d to resolve a discrimina tion claim that Sharafeldin had filed against the Department with the State Human Relations Commission (HRC) and the Federal Equal E mploymen t Opportu nity Comm ission (EEOC). When, in April, 2000, his Federal breach of contract action was dismissed on Eleve nth Amendment sovereign immunity grounds, Sharafeldin filed a similar claim in the Circuit Court for Baltimore City, where he met with better success. The jury returned a verdict in his favor of $366,50 0, which, u pon his ac ceptance o f a remittitur in order to avoid a new trial, was reduced to $108,000. Two inter-related issues are be fore us in th is appeal fro m the Circ uit Court jud gment, both emanating from the Department s defense of sovereign immunity. Through the enactment of w hat is now M aryland Code, §12-20 1 of the State Gov ernment Article (SG ), the Legislature has conditionally waived the State s sovereign immunity in actions filed in Maryland courts for b reach of a written con tract, but in §12-202 has provided that [a] claim under this subtitle is barred unless the claimant files suit within 1 year after the later of: (1) the date on which the claim arose; or (2) the completion of the contract that gives rise to the claim. The first question is wh ether §12-202 co nstitutes a condition to the waive r of sovereign immunity and thus to the right of action itself against the State or is, instead, merely a statute of limitations. It is undisputed that the action in Circuit C ourt was n ot filed with in the allowable one- year period. In order to save that action, Sharafeldin relies on Maryland Rule 2-1 01(b), which provides, in r elevant par t, that, if an action is filed in U.S. District Court within the period of limitations prescribed by Maryland law and the Federal action is dismissed for lack of jurisdiction , an action file d in the S tate C ircuit Co urt w ithin 30 d ays after entry of the order of dismissal shall be treated as timely filed in this State. The second is sue, as presented, depends on the ans wer to the f irst. If SG §1 2-202 is m erely a statute of limitations and Sharafeldin s action was filed in Federal court within the one-year period, the action filed in Circuit C ourt wou ld be regard ed as timely, as it was filed within 30 days after the Federal breach of contract claim was dismissed o n jurisdictiona l grounds. If SG §12 -202 is a condition to suit and no t a statute of limita tions, how ever, the qu estion arises w hether Ru le 2-101(b) can save th e action eve n if it had been filed in Federal court within the one-year period; does §12-202, in other words, ba r the action if not filed in State court within the oneyear period? 1 BACKGROUND Sharafeld in was employed by the Department as a chaplain at one or m ore of the State 1 There is a third issue, of whether Sharafeldin s breach of contract claim was filed in Federal court within the one-year period. It clearly was not filed within one year after the dates upon which the claims arose, but there is at least an argument that it was filed within one year after completion of the contract that gives rise to the claim. We need not addres s that issue in ligh t of our resp onse to the o ther two. S harafeldin also mov ed to dismiss the Department s appeal as untimely. We deny that motion. -2- prisons in the Hagerstown area. He began in 1989 as a contractual employee but, after filing discrimination charges against the Department with the HRC and EEOC, he became a fulltime employee in 1991. Since then, he has filed seven further complaints of discrimination. The gist of his current unhappiness was his desire to be transferred from the Hagerstown complex to prisons in the Baltimore/Jessup area. In February, 1995, in a resolution of one of his complaints to HRC and EEOC, the Department entered into a written Settlement Agreement with Sharafeldin in which the Department made three commitments: (1) It would rescind two existing suspensions and pay lost wages of $632; (2) It would [n]otify and interview [Sha rafeldin] fo r considera tion of Ch aplain position in the Baltimore/Jessup region ; and (3) It agreed that there will be no retaliation or harassment taken against [Shar afeldin ]. In October, 1995, a chaplain position opened in the Jessup area. The Departm ent notified Sharafeldin of the vacancy, interviewed him for the position, but selected someone else for the job a chaplain who received higher scores from three different raters selected by the Depa rtment to rev iew the ap plications. In th e Fall of 1997, another chaplain position opened in the Jessup area. Believing that it had fulf illed its obligation to Sharafeldin by considering him for the 1995 vacancy, the Department filled that position without notifying or interviewing Sharaf eldin. In March, 1998, the Department informed Sha rafeldin of a third -3- vacancy in a chaplain position in Jessup, interviewed him for the position, but, again, hired someone else, a person who received higher scores from five different raters. On August 21, 1998, an incident involving Sharafeldin and two correctional officers occurred at one of the Hagerstown prisons, in which Sharafeldin was allegedly shoved and mildly bruised. He filed criminal charges against the officers, which were dismissed, and another discrimination complaint with HRC and E EOC, which also was unsuccessful. He never returned to work, although, for whatever reason, the Department kept him on the payroll until June, 1999. On September 27, 1999, Sharafeldin filed a three-count complaint against the Department in the U.S. District Court, alleging hostile-work-environment harassment on the basis of his race, color, religion, and nation al origin (Count I) 2 , constructive discharge arising from the hostile-work-environment harassment (Count II), and breach of the 1995 Settlement Agreement (Count III). In Count III, Sharafeldin alleged that the Department breached the 1995 agreeme nt by not notif ying him of chaplaincy position on at least two occasions and by retaliating against him when the Defendant did not hire him or transfer him for the chaplaincy position for which he was well qualified and picking, instead, candidates who were le ss qualif ied than the Plain tiff. The Department s respo nse to the complaint is not in the re cord before us. It appea rs from the court s discussion, however, that the dispositive argument with respect to Count III, made in a motion to dismiss, was Eleventh Amendment sovereign immunity, for , on April 2 Sharafeldin claims to be a black, Sudanese-born Muslim. -4- 10, 200 0, the co urt dism issed C ount III o n that gr ound a nd disc ussed n o other . In February, 2001, the court entered summary judgment for the Department on the other two counts, concluding that Sharafeldin had not shown that the harassment alleged by him was based on race, religion, or national origin. Indeed, the court concluded that Sharafeld in was a contentious, disgruntled and paranoiac employee who clashed with almost everyone with whom he came into contact, including inmates, correctional officers, nurses, other chaplains, a nd superio rs, that he co nstantly comp lained abo ut his duties and work assignm ents, that he overreacted to petty slights and inconven iences, that it w as his inability to work with others and to comply with the directions of his superiors which led to the claims as serted by him, and that [w]henever disputes or conflicts a rose, Shara feldin attributed them to his race, his religion or his national origin. Sharafeldin v. Maryland, Dept. of Public S afety, 131 F. Supp.2d 730, 740 (D.Md. 2001). In an unreported opinion filed November 15, 2001, the U.S. Court of Appeals for the Fourth Circuit su mmarily affirmed the judgm ent of the D istrict Court. On April 25, 2 000 15 days after dismiss al of Cou nt III of his Fe deral com plaint Sharafeld in filed a two-count complaint against the Department in the Circuit Court for Baltimore City. Count 1, captioned Breach of Settlem ent Agre ement, alleg ed that, in the 1995 Settlement Agreement, a copy of which was attached to the Complaint, the Department promised that it would notify Sharaf eldin of v acant chap lain positions in the Baltimore and Jessup regions and would interview him for consideration of those positions and that the -5- Department breached the agreement in two respects: first, in the Fall of 1997, by appointing another person to f ill a vacant position in Jessup without notifying him of the vacancy, and second, by failing to hire him to fill vacancies that occurred in October, 1995 and March, 1998, failures which Sharafeldin averred constituted retaliation against him for filing a discriminatio n compla int. Count 2, captioned Breach of Implied Covenant of Good Faith and F air Dea ling, incorporated the earlier averments and asserted that the Department did not observe good faith and fair dealing under the agreement when it had eve ry opportun ity to do so and that, by reason of its failure to m ake a goo d faith effort to honor th e Settlemen t Agreem ent, Sharafeld in was forc ed to endu re years of ho stile and abu sive work environm ent and to subseque ntly los[e] his job. Count 2 was thus also in the nature of a breach of contract claim, based on an alleg ed breach of the 199 5 Settleme nt Agree ment. The Department moved to dismiss the actio n on the g roun d of sove reign immun ity. As to Count 1, the Department argued, that, because the action was not brought within one year from the date on which Sharafeldin s claims arose, the Department retained its defense of sovereign immunity. In presenting that defense, the Department contended, at least by implication, that the requirement imposed by SG §12-202 of bringing suit within one year constitutes not a statute of limitations but a condition precedent to the action itself a condition to the waiver of the State s sovereign immunity. In taking that position, the Department neglected to plead, as an alternative and in conformance with the requirement -6- of Ma ryland Rule 2-323(g), that the one year requ irement stated in §12-20 2, did cons titute a special Statute of Limitations and that Sharafeldin s action was barred on that ground. Count 2, the Department argued, rested on implied provisions, and the State retain ed its sovereign immunity with respect to implied contracts. The Department s motion was denied without comment or explanation. After some discovery, Sharafeldin and the Department filed cross-motions for summ ary judgmen t, both of which were d enied. The Dep artment s motion rested on its view that the Settlement Agreement required it to inform Sharafeldin of a vacancy in the Baltimore/Jessup area and to interview him for such a position only one time, and that it complied with that requirement in October, 1995. It asserted, in that regard, tha t the Depa rtment ha d an obliga tion only to notify Plaintiff of, and interview him for, a single Chap lain pos ition. The dispositive m otions hav ing been d enied, the ca se was su bmitted to trial before a jury, which returned a verdict in Sharafeldin s favor in the amount of $3 66,500. In response to the Department s post-verdict motion, the court determined that the verdict was excessive and shocks the Court s conscience, and therefore ordered a new trial u nless Shara feldin accepted a reduction to $108,000. Sharafeldin accepted the remittitur in order to avoid a new trial and judgm ent wa s entere d in that a moun t. The Department appealed, complain ing about th e denial of its motions to dismiss and for summary judgme nt. Sharafeldin cross-appe aled; he complains on ly about the remittitur. We granted certiorari prior to proc eedings in th e Court of Special A ppeals, princ ipally to -7- review the Departmen t s argument that the requirement in SG §12-202 that an action against the State or its age ncies for b reach of c ontract be brought within one year constitutes a condition precedent to the State s waiver of its sovereign immunity in breach of contract actions, rather than a statute of limitations, and that it is jurisdictional in nature. Because we are reviewing the judgm ent of the Circuit Court, rather than one of the Court of Special Appeals, the other two issues raised by the parties are also before us, although it will not be necessary for us to address them. DISCUSSION The Nature of SG §12-202 The nature and effect of SG §12-202 is a matter of statutory construction which, as we have often said, depends on legislative intent: did the General Assembly intend the requirement that an action subject to §1 2-201 be filed within one year to be a condition to the waiver of sovereign immunity and thus a condition to the action itself, or merely a shorter statute of limitations than would otherwise apply to a breach of contract action? As we recently observed in a case involving §12-202, in attempting to divine legislative intent, we look first to the words of the statute, but if the true legislative intent cannot readily be determined from the statutory language alone, we look to other indicia of that inte nt, including the title to the bill, the s tructure of th e statute, the inter -relationship of its various provisions, its legislative history, its general purpose, and the relative rationality and legal -8- effect of various competing constructions. Baltimore County v. RTKL Associates, 380 Md. 670, 846 A.2d 433 (2004). The mere wording of SG §12 -202 does not info rm us clearly of what the Legislature intended in this regard. W e may, as we shall explain , draw certain inferences from that wording, but it does not directly supply an answer. As we pointed out in RTKL, the question of waiving sovereign immunity in both tort and breach of contract actions was the subject of considerab le study by the Legisla ture in the m id-1970's. B ills to waive immunity in breach of contract actio ns were p assed in 1974 and 1975 but were vetoed by the Governor, who preferred to await the result of a comprehensive study of the matter by a gubernatorial Commission that had be en created to examin e the issue. In a n interim rep ort made in Februar y, 1976, the Commission recommended a conditional waiver of immunity in contract actions, and that report served as the basis f or the enac tment of w hat is now codified in SG §§12-201 and 12 -202. See 1976 Md. Laws, ch. 450. Indeed, the Legislature made sp ecific reference to the Com mission rep ort in the bill. In its report, the C ommissio n noted co ncerns that th e waiver o f immun ity in contract actions might have a significant fiscal impact by increasing liability on the part of the State, not only for contract damages but also for the cost of having to defe nd actions that then we re routinely dismissed on motion.3 Respo nding t o those conce rns, the Commission observed 3 Much of the concern in that regard was expressed by county and municipal governments which the Commission assumed enjoyed sovereign immunity in contract actions. As we pointed out in RTKL, however, that assumption was a mistaken one. -9- that, in other States that had waived immunity, the fiscal impact was ne gligible, in part because when the states abrogate sovereign immun ity in contract, they do so subject to a number of exceptions and limitations which act to further minimize the fiscal im pact. See Report of the Gov ernor s C ommis sion to Study Sovereign Immun ity, November, 1976, at 40. (Emp hasis ad ded). Perhaps keying on the word limitations used by the Commission, but without any documented critical analysis, the Legislature used that word in the title to the bill. The descriptive title stated the purpose of the bill to be to provide that the State and its various units may not raise the d efense of sovereign immunity in the courts of this State in an action in contract based on certain written contracts, and [to set] forth certain exclusions and limitations applicable to such actions. Several exclusion s and limitations we re provided in the bill: the w aiver applied only to breaches o f written co ntracts executed by an official or employee acting withing the scope of his/her authority; there would be no liability for punitive damages; and the action was barred if not filed within the one-year period . The best that can be said f or this, from Sharafeldin s point of vie w, is that the Legislature used the word lim itations as a g enerally descriptive term that pro bably included the requirement of bringing suit within one year, but not in the technical sense of a true statute of limitations. In Frankel v . Board o f Regents , 361 Md. 298, 308, 761 A.2d 324, 329 (2000), we referred to §12-202 as providing a period of limitation s, again as a generally descriptive term, and in RTKL, supra, we referred to a -10- similar statute, applica ble to actions against chartered counties, as a statute of limitations but noted that we did so as a matter of convenience and expressed no view whe ther it, or its counterparts, such as §12-202, are true statutes of limitations or condition s on the righ t to sue. RTKL, supra, 380 Md. at 677, n.1, 846 A.2d at 437, n.1. In neither case was the issue now before us presented. Two considerations militate against inferring an inten t to regard SG §12 -202 as a mere statute of limitations, waivable at will by State agencie s or their respective attorneys. We have held, consistently, that immunity from suit is one of the highest attributes of sovere ignty, and that an y waiver of th at immunity must come from th e Legis lature. See Katz v. Washington Su b. San. Comm n, 284 Md. 503 , 512-13, 397 A .2d 1027, 1032 (1 979); Dep t of Natural Resources v. Welsh, 308 Md. 54, 59-60, 521 A.2d 313, 315-16 (1986). State agencies may not, on their own, waive sovereign immunity either affirmatively or by failure to plead it. Welsh, 308 Md. a t 60, 521 A.2d a t 316. See also B oard v. Joh n K. Ruff, Inc., 278 Md. 580, 583, 366 A.2d 360, 362 (1976); Bd. of Education v. Alcrymat Corp., 258 Md. 508, 516, 266 A.2d 349, 353 (1970). Moreover, unlike the situation in some States, we have made clea r that the origin of the doc trine of sov ereign imm unity in Maryland did not stem from judicial fiat but was statutory in nature, and [w ]e have co nsistently declined to abrogate sovereign immunity by judicial fiat. Dep t of Natural Resources v. Welsh, supra, 308 Md. at 59, 521 A.2d at 315, and cases cited there. SG §12-202 is not worded like the traditional statutes of limitations, which n ormally -11- state only that an action shall be filed within the allowa ble perio d. See, for example, Maryland Code, Courts & Jud. Proc. Article , §5-101 (g eneral three- year statute of limitations for civil actions), §5-102 (twelve year statute of limitations for actions on specialties), §5-104 (five year statute of limitations for action on pub lic officer s bond); §5-105 (one year statute of limitations for action for assault, libel, or slander); §5-106 (statute of limitations for prosecution of misdemeanor); §5-109 (statute of limitations for actions against health care providers); §5-110 (action to enforce liability under Public Information Act); §5-111 (action for contempt for failure to pay child or spousal support); §5-113 (action for damages arising out of o ccupa tional di sease). Those statutes say nothing about an untimely action being barred. Thus, we have regarded limitations as not deny[ing] the plaintiff s right of action, but only the exercise of the right, Foos v. Steinberg, 247 Md. 35, 38, 230 A.2d 79, 80 (1967). Ac cord ingl y, we have held that limitations is an affirmative defense that can be waive d and that is waived unless raised in the def endan t s answ er. See Maryland R ule 2-323 (g); Foos, supra; Brooks v. State, 85 M d. App . 355, 36 5, 584 A .2d 82, 8 7 (199 1) (Op inion b y Bell, J.). In contrast, SG §12-202 states that a claim u nder the su btitle is barred unless suit is filed within one year. That, we believe, was intended to preserve the effect of sovereign immunity itself, which barred the action entirely. In using that language, the Legislature could not have intended to permit sub ordinate agencies, or counsel for those agencies, to be able to permit an action that the Legislature expressly declared barred to proceed -12- nonetheless, by simply omitting to raise the defense. That would effectively allow sovereign immunity to be waived by subordinate agencies or the attorneys who represent them which, as noted, we have consistently held they are not empowered to do. When the predecessor to §12-202 was first enacted in 1976, and even when the statute was re-enacted as part of the State Government Article in 1984, through the code revision process, the Federal courts had almost unanimously construed similarly worded Federal statutes as jurisdictional in nature and not as statutes of limitations that could be tolled or waived. Title 28 U.S.C. §2 401 sets time limits on the bringing of actions against the United States. Section 2401(a) provides that every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. (Emphasis added). Subsection (b), applicable specifically to tort claims, provides that a tort claim against the United States shall be fo rever barred unless the claim is presented to the approp riate Federal agency within tw o years after it accrues and an action in cour t is filed w ithin six m onths a fter den ial of the claim b y the agen cy. Until 1990, the Federal courts had construed those provisions a s meaning that, if an action under §2401(a) was not brought w ithin the presc ribed six-year p eriod, or a claim under §2401(b) was not submitted to the agency within the two year period and, if the claim was denied, an action was not filed in court within six months after notice was received of the denial, the court was withou t jurisdict ion to en tertain th e action . See Crown Coat Front Co. v. United States, 363 F .2d 407 (2nd C ir. 1966 ), rev d on other grounds, 386 U.S. 503, 87 S. -13- Ct. 1177, 18 L. Ed.2d 2 56 (1967 ); Powers v. United States, 390 F.2d 602 (9th Cir . 1968); Mann v. United States, 399 F .2d 672 (9th Ci r. 1968); Houston v. United States Postal Service, 823 F .2d 896 , 902 (5 th Cir. 1 987), cert. denied, 485 U.S. 1006, 108 S. Ct. 1470, 99 L. Ed.2d 699 (1988); Johnston v. United States, 85 F.3d 2 17 (5th C ir. 1996); Girard v. United States, 455 F. Su pp. 502 (D .N.H. 197 8); Thompson v. Duggan, 427 F. Supp. 342 (E.D.Pa. 1977); Huntington Steel Corp. v. United States, 153 F. Supp. 920 (S.D.N.Y. 195 7).4 In Soriano v. United States, 352 U.S. 270, 77 S. Ct. 26 9, 1 L. Ed.2d 306 (1957), the Supreme Court confirme d its earlier holding in Kenda ll v. United States, 107 U.S. 123, 2 S. Ct. 277, 27 L.Ed. 437 (1883) that a similar statute 28 U.S.C . §2501, ba rring claims o therwise w ithin the jurisdiction of the then-constituted Court of Claims unless filed within six years after the 4 There are a few S tate cases tha t appear to state a contrary view, but, on analysis, they are distinguishable in that they all involved notice of tort claim requirements rather than filin g of su it require ments. See Pritchard v. State, 788 P.2d 1178 (Ariz. 1990); Fredrichsen v. City of Lakewood, 491 P.2d 805 (Ca l. 1971); Bryant v. Duval Hosp. Authority , 502 So.2 d 459 (Fla . Dist. Ct. Ap p. 1986); Hill v. Board of Ed. of Middletown, 443 A.2d 225 (N.J. Super. Ct. App. Div. 1982). We have regarded our analogous notice of tort claim re quiremen t as substantiv e in nature, alth ough, by statute , it is subject to waive r for go od cau se and m ay be satis fied by su bstantia l comp liance. See Moore v. Norouzi, 371 M d. 154, 8 07 A.2 d 632 ( 2002) . Pritchard is distinguishable in another important respect. The Arizona court had previously abolished sovereign immunity by judicial fiat, so th e time limitation was not a condition to a statutory waiv er of imm unity and therefore was not regarded as part of the right of action itself. The Pritchard court noted that th e right to sue th e State in A rizona is no t a statutory grant, as is the case in several othe r states; rather it is a c ommo n law rule in Arizona that the gov ernment is liable fo r its tortiou s cond uct and immu nity is the ex ception , id. at 1182, and, on that basis, the cou rt found the notice requ irement to b e merely proc edural. Id. at 1183 . -14- claim first accrued was jurisdictional in nature and not subject to equitable tolling.5 That nearly universal construction of the Federal statute was shattered in 1990 fourteen years after the first enactment of the Maryland statute and six years after its reenactment as part of the State Government Article when the Supreme Court rele ased its opinion in Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S. Ct. 453, 112 L. Ed.2d 435 (1 990). Irwin did not involve 28 U.S.C. §2401, but rather 42 U.S.C. §2000e16(c), which required that an employment discrimination complaint against the Federal Government under Title VII of the Civil Rights Act of 1964 be filed [w]ithin thirty days of receipt of notice of final action taken by the EEOC. In Irwin, the EEOC decision was sent to Irwin s lawyer, who was out of the cou ntry at the tim e. The complaint in court was filed 44 days after the decision was received by the attorney s office but 29 days after the decision was first received by Irwin. The Court concluded that the time began to run when the decision was received in the attorney s office and that t he co mplaint t here fore was not timel y. It turned then to whether the late-filed claim was jurisdictionally barred or whether there was 5 We need not complicate the issue by addressing it in terms of whether the defense is jurisdictional in nature. The question involves the State s immunity from suit, not the jurisdiction of the court. The courts were never deprived of fundamental juris dicti on over the State a nd its age ncie s; even befor e the general w aive r of immunity, the State and its agencies w ere subject to suit for breach of contract if the Legislature authorized them to be sued and funds were available to pay any judgment that might be render ed aga inst them . University of Maryland v. Maas, 173 Md. 554, 197 A. 123 (1938). The relevant focus is on whether the time limitation for bringing an action for breach of contract is a no n-waivable, non-tollable co ndition to the waiver of im munity. If it is and the condition is not met, an action against the State must be dismissed because the State remains immune from suit, not because the court is without jurisdiction. -15- a basis for equitable tolling of the limitations period. The Court agreed that the statute, even as worded, was a condition to the waiver of sovereign immunity and thus must b e strictly construed. Irwin, 498 U.S . at 94, 111 S . Ct. at 456, 121 L. Ed.2d at 443. Though acknowledging Soriano and its more recent statement in Bowen v. City of New York , 476 U.S. 467, 479 , 106 S. Ct. 2022, 2029, 90 L. Ed.2d 462, 474 (1986) that it should not assume the authority to narrow the waiver that Congress intended, (citation omitted), the Court nonetheless regarded some of its decisions on Federal statutes of limitations as not entirely cons istent, and felt the need to ad opt a more general rule to gove rn the applic ability of equitab le tolling in suits against the Go vernm ent. Irwin, 498 U.S. at 95, 111 S. Ct. at 457, 121 L. Ed.2d a t 443. The ru le it adopted, w ith respect to equitable tolling, was to equate suits against the Government with suits against private parties, and it thu s held that th e same reb uttable presu mption of equit able tolling applicable to suits against private defendants should also apply to suits against the United States. Id. at 95-96, 111 S. Ct. at 457, 121 L. Ed.2d at 443-44. In announcing that decision, the Court observed that the language of 42 U.S.C. §2000e-16(c) was not identical to that in statutes such as 28 U.S.C. §2501, construed in Soriano, and that [a]n argument can undoub tedly be made that the latter langua ge is more stringent than the former, but was not persuaded that the difference between them is enough to manifest a different congressional intent with respect to the availability of equitable tolling. Id. at 95, 111 S. Ct. 457, 112 L. Ed. 2d 443. -16- Although intende d to crea te unifo rmity in this area, Irwin has appeared to sow more confusion and disun iformity than existed earlier. In two later cases, the Court concluded that the 12-year period of limitations applicable to actions against the G overnm ent to quiet title to land and the period of limitations for filing a claim for a tax ref und we re not subje ct to equitable tolling. See Un ited States v. B eggerly, 524 U.S. 38, 118 S. Ct. 1862, 141 L. Ed.2d 32 (1998) and United States v. Brockamp, 519 U.S. 347, 117 S. Ct. 849, 136 L. Ed.2d 818 (1997). The cou rts must still look at each statute to determine whether Congress meant for the limitations period to be subject to equitable tolling. Apart from that, the lower Federal courts are in some disarray as to how Irwin impacts other limitations periods, especially those applica ble to F ederal T ort Claim s Act (F TCA ) claims . Title 28 U.S.C . §2401(b), as noted, co ntains two limitations requireme nts. A tort claim against the United States is barred unless, first, it is presented in writing to the appropriate Federal agency within two years after the claim accrues, and seco nd, a lawsu it is filed within six months after the age ncy mails notic e of final d enial of the c laim. Prior to Irwin, both requirements had been regarded as jurisdictiona l, and the failu re to comply with either one doomed the action. There are now conflicting decisions as to whether equitable tolling may excuse a failure to comply with either or both. Irwin did not involve or directly address statutes such as 28 U.S.C. §2401, and much of the langua ge in the op inion was thus essentia lly obiter dicta with respect to that statute. Most of the lower Federal courts have given credence to tha t language, howe ver, have shifted -17- their previously-held view, and have applied equitable tolling principles to untimely claims made to the administrative agency or to untimely law suits after den ial of the claim . Not all of the Federa l courts hav e taken that a pproach , and there ap pears to be a split in some of the circuits.6 Very few cases have arisen since Irwin with respect to contract claims against the 6 In the First Circuit, compare Roman v. Townsend, 224 F.3d 24, 28 (1st Cir. 2000) and Heinrich v. Sweet, 44 F. Supp.2d 408, 415 (D.Mass. 1999), holding that the period of limitations for a FTCA claim is jurisdictional in nature and thus non-waivable, and De Casenave v. United States, 991 F.2d 11, 13 (1st Cir. 1993), recognizing the prospect of equitable tolling where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced o r tricked by his ad versary s misco nduct into a llowing the filing dead line to pass, (quoting Irwin, 498 U.S . at 96, 111 S . Ct. at 457-5 8), but findin g no such tolling in that case. In the Second Circuit, compare Air India v. Brien, 261 F. Supp.2d 134, 137 (E.D.N.Y . 2003), hold ing that 28 U .S.C. §240 1 is a jurisdictio nal predica te for this court s ability to entertain the claim with Hyatt v. United States, 968 F. Supp. 96 (E.D.N.Y. 199 7), applying equitable tolling to an untimely FT CA claim. Th e Third Circuit, citing Irwin, has concluded that the six-month period allowed by §2401(b) is not jurisdicti onal, bu t is waiv able an d subje ct to equ itable toll ing. See Hughes v. United States, 263 F.2d 272, 278 (3rd Cir. 2001). In the Fourth Circuit, we read Muth v. United States, 1 F.3d 246 (4th Cir. 1993) as indicating that equitable tolling might apply to a FTCA claim, in an appropriate case, but one District Court has continued to hold that the requireme nt of filing su it within six m onths after a dministrative denial of th e claim is jurisdicti onal. See Gibbs v. United States, 34 F. Supp.2d 405 (S.D.W.Va. 1999). In Flory v. United States, 138 F.3d 157 (5th Cir. 1998), the Fifth Circuit court declared baldly that both limitation s periods in § 2401(b) w ere jurisdiction al, but in Lambert v. United States, 44 F.3d 296 (5th Cir. 1995), the court read Irwin as permitting equitable tolling, although it decline d to app ly the doc trine in th at case. See also Perez v. United States, 167 F.3d 913 (5th Cir. 1999) (permitting and applying equitable tolling). The Sixth, Seventh, Eighth, and Ninth Circuits have construed Irwin as allowing equitable tolling even of the two-yea r require ment f or filing a claim with th e adm inistrativ e agen cy. See Glarner v. United States, 30 F.3d 6 97 (6th C ir. 1994); Goodhand v. United States, 40 F.3d 2 09 (7th Cir. 1994) ; Kanar v. United States, 118 F.3d 527 (7th C ir. 1997); Schmidt v. United States, 933 F.2d 639 (8th Cir. 1991) (on remand for reconsideration in light of Irwin); Slaaten v. United States, 990 F.2d 1038 (8th Cir. 1993) ; Alvarez-Machain v. United (contin ued...) -18- Govern ment. In UOP v. United States, 99 F.3d 344 (9th Cir.1996), the Ninth C ircuit court, without mentioning Irwin, held that 28 U.S.C. §2401(a) was jurisdictional and not a waivab le defense. In Cedars-Sinai Medical Center v. S halala, 125 F.3d 765 (9th Cir.1997), the same court held the ex act oppos ite that §24 01(a) wa s not jurisdiction al and was subject to waive r. We are not bound, of course, by any of these Federal decisions, including Irwin. Their only relevance is in how they might impact our view of the legislative intent behind SG §12202, which is the controlling consideratio n. If that statute had been enacted after 1990, we might embrace the fiction that the Legislature was aw are of the Su preme C ourt s analysis in Irwin and construe §12-202 in accordance with it. The fact is, however, that when the Legislature first waived immunity in contract actions in 1976 and later re-enacted that waiver as part of the State Government Article, the Federal decisions, includin g the Supreme C ourt s decision in Soriano, were nearly all to the effect that the analogous time limitations were, indeed, conditions to the waive r of immu nity and were not subject to waiver or tolling. For our purposes, therefore, the relevant Federal law is that which existed before Irwin. 6 (...continued) States, 107 F.3d 696 (9th Cir. 1997). In Hoery v. United States, 324 F.3d 1220, 1221 (10th Cir. 2003), the Tenth Circuit Court held that, because the FTCA is a waiver of sovereign immunity, timeliness is a prerequisite for subject matter jurisdiction. In Benge v. United States, 17 F.3d 1286 (10th Cir. 1994), that court declined to address whether equitable tolling applied to an FTCA claim because it would not have benefitted the plaintiff in that case in any event. A District Court in the Eleventh Circuit applied equitable tolling to an FTCA claim in Stanfill v. United States, 43 F. Supp.2d 1304 (M.D.Ala. 199 9). -19- Allied with the principle applied in the pre-Irwin decisions, arising from the language of the statute itself, is th e well-reco gnized bu t more gen eral rule, to which we have adhered, that, where a statute creates a new cause of action and fixes a time within which a suit under the statute must be filed, [t]he time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. The Harrisburg, 119 U.S. 199, 214, 7 S. Ct. 140, 147, 30 L. Ed. 358, 362 (1886). The Harrisburg Court noted that, in such a situation: Time has been made of the essence of the right and the right is lost if the tim e is disre garded . The liability and the remedy are created by the same s tatutes, and the limitations of the remedy are ther efore to be treate d as limi tations o f the rig ht. Id. In State v. Parks, 148 Md. 477, 479-82, 129 A. 793-94 (1925), we adopted and applied that principle to actions under the wrongful death statute, and, notwithstanding that the more central holding of The Harrisburg, that there was no common law right of action for wrongful death in Federal maritime cases, was overruled in Moragne v. States Marine Lines, 398 U.S. 375, 90 S. Ct. 1772, 26 L. Ed.2d 339 (1970), we have con tinued to follow that approach and have treated the overruling of the substantive holding of The Harrisburg as irreleva nt. See Waddell v. Kirkpatrick, 331 Md. 52, 57-59, 626 A.2d 353, 355-56 (1993). Significant in this regard is our application of that principle to claims against decedents estates. In language similar to that used in SG §12-202 , Estates and Trusts Article, §8-103 provides that such claims are forever barred unless filed within the periods -20- stated in the statute. In Blocher v. Harlow, 268 Md. 571, 303 A.2d 395 (1973), disapproved on other grounds in Eastgate Assoc. v. Apper, 276 Md. 698 , 703, 350 A.2d 6 61, 665 (1976), we confirmed earlier rulings th at the limitations period, eve n though affirmative ly waivable by a personal representative under certain circumstances, is a condition to the right itself and not merely to the remedy. We expressed the more general view that [t]here is a substantial body of law to th e effect tha t where a lim itation period is stipulated in a statute creating a cause of action it is not to be considered as an ordinary statute of limitations, but is to be considered as a limitation upon the right as well as the remedy. . . . Id. at 581, 303 A.2d at 400. The 1976 law, now codified in SG §§12 -201 and 12-202, was intended as a conditional waiver of the State s sovereign immunity in contract actions, which was to be accomplished by precluding the State and its agencies from raising that defense if the action was founded on a written contract executed by an authorized official or employee and the action was brought w ithin the one-year period. If the action was not brought within that period, however, it was barred. The sov ereign imm unity that the State enjoyed remained in effect; it could not be waived by subordinate agencies or their attorneys, and thus the agencies were req uired by law to raise the defense. We hold, therefore, that §12-202 is not a mere statute of limitations b ut sets forth a condition to the action itself. The waiver of the State s immunity vanishes a t the end of the one-year p eriod, and a n action filed thereafter is subject to the same fate it wou ld have suffered prior to the enactment of the 1976 legislation. -21- Maryland Rule 2-101(b) The second issue, of whether Rule 2-101(b) can save an action against a State agency for breach of contract that is (1) timely filed in Federal court, (2) dismissed on jurisdictional grounds, and (3) refiled within 30 days in State court, is also one we have not yet addressed. The Department interprets the Rule as providing an automatic extension of a period of limitations and argues that, as SG §12-202 is not a pe riod of limitations, the R ule is inapplicable. We agre e with the D epartmen t s ultimate con clusion, but on a somewhat different analysis. The Ru le is a general one, intended to save actions initially filed in a non-Maryland court but in a timely manner under Maryland law. We need not consider in this case whether the Rule operates to save other actions sub ject to a condition of suit limitations period that are initially filed within the prescribed period. There is a more precise reason why it does not apply to actions subject to SG §12-202. Sections 12-201 a nd 12-20 2 must be read togeth er. Section 12-201 precludes the State and its agen cies from ra ising the def ense of so vereign im munity in a co ntract action in a court of the State (emphasis added), meaning a cou rt tha t is pa rt of the M arylan d jud iciar y. There was clearly no intent on the part of the Le gislature to w aive the Sta te s Eleven th Amendment immunity in ac tions in Fed eral court or to waive its inherent so vereign im munity in actions filed in the courts of some other State. Section 12-201 is plainly limited to an action in a Mar yland co urt. -22- Section 12-202 states that [a] claim under this su btitle is barred unless the claimant files suit with in 1 year . . . . (Emph asis added ). A claim under this su btitle is necess arily a claim filed in a Maryland court, a claim to which §12-201 would otherwise apply. If, as we hold, the on e year requirem ent is a condition to the action itself, it follows that sovereign immunity is not waived unless the action is filed in a Maryland court within the one year period. There would be no reason to impose a con dition on the waiver of sovereign immunity with respe ct to an action in which that immunity had not been waived in the first instance. Thus, even if the Rule could be read to save some other action subject to a condition of suit period of limitations, it cannot save an action subject to §§12-201 and 12202 tha t is not file d in a M aryland c ourt w ithin the one year period . To construe the Rule otherwise would be tantamount to this Court, by jud icial fiat, effecting a waiver of the State s immunity beyond that decreed by the Legislature, which, as noted, we have steadfastly refused to do. This Co urt s rule-ma king autho rity under Art. IV, §18 of the Maryland Constitution is limited to adopting rules concerning the practice and procedure in and the administration of the appellate courts and in the other courts of this State. It does not exte nd to subs tanti vely w aivin g the State s sovereign immun ity. As Sharafeldin s action was concede dly not filed in the Circuit Court within the one year period, it is barred by sovereign immunity. Department s motion to dismiss. -23- The court erred in overruling the JUDGMENT OF CIRCUIT COURT FOR BALTIMORE CITY REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS COMPLAINT; COSTS TO BE PAID BY A PPEL LEE . -24-
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