Burke v. Bd. of Trs. of the Neb. State Colls. , 924 N.W.2d 304 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BURKE v. BOARD OF TRUSTEES
Cite as 302 Neb. 494
Melissa Burke, appellant and cross-appellee,
v. Board of Trustees of the Nebraska
State Colleges, appellee and
cross-appellant.
___ N.W.2d ___
Filed March 15, 2019. No. S-17-1167.
1. Immunity: Jurisdiction. Sovereign immunity is jurisdictional in nature,
and courts have a duty to determine whether they have subject mat-
ter jurisdiction over a matter. Subject matter jurisdiction is a question
of law.
2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional
question does not involve a factual dispute, the issue is a matter of law.
An appellate court reviews questions of law independently of the lower
court’s conclusion.
3. Actions: Colleges and Universities. An action against the Board of
Trustees of the Nebraska State Colleges is an action against the State
of Nebraska.
4. Constitutional Law: Immunity: States. The sovereign immunity of
a state neither derives from nor is limited by the terms of the 11th
Amendment to the U.S. Constitution. Rather, a state’s immunity from
suit is a fundamental aspect of sovereignty.
5. Statutes: Immunity: Waiver. Statutes that purport to waive the State’s
protection of sovereign immunity are strictly construed in favor of the
sovereign and against the waiver.
6. ____: ____: ____. A waiver of sovereign immunity is found only
where stated by the most express language of a statute or by such over-
whelming implication from the text as will allow no other reasonable
construction.
7. Immunity: Waiver: Jurisdiction: Legislature. Absent legislative
action waiving sovereign immunity, a trial court lacks subject matter
jurisdiction over an action against the State.
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BURKE v. BOARD OF TRUSTEES
Cite as 302 Neb. 494
8. Declaratory Judgments: Immunity: Waiver. Nebraska’s Uniform
Declaratory Judgments Act does not waive the State’s sovereign immunity.
9. Actions: Colleges and Universities: Immunity: Waiver: Legislature.
Language in Neb. Rev. Stat. § 85-302 (Reissue 2014) permitting the
Board of Trustees of the Nebraska State Colleges to “sue and be sued”
is not self-executing, prescribes no terms or conditions under which the
board can be sued, and is not an express legislative waiver of sover-
eign immunity.
10. Jurisdiction: Appeal and Error. When a lower court does not gain
jurisdiction over the case before it, an appellate court also lacks juris-
diction to review the merits of the claim.
Appeal from the District Court for Dawes County: Derek C.
Weimer, Judge. Vacated and dismissed.
Nicholas J. Welding, of Norby & Welding, L.L.P., for
appellant.
George E. Martin III, of Baird Holm, L.L.P., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg JJ.
Stacy, J.
Melissa Burke began working at Chadron State College in
2007. In April 2016, she was notified her employment contract
would not be renewed for the upcoming contract year. Burke
filed a declaratory judgment action in district court against
the governing body of Chadron State College, alleging she
had not been notified of the nonrenewal within the timeframe
required by a collective bargaining agreement. The district
court dismissed the action on summary judgment, and Burke
appeals. We find Burke’s action is barred by the doctrine
of sovereign immunity, and therefore, we vacate the district
court’s judgment and dismiss this appeal for lack of subject
matter jurisdiction.
I. FACTS
The underlying facts are largely undisputed, and most have
been stipulated by the parties. Burke brought this action against
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BURKE v. BOARD OF TRUSTEES
Cite as 302 Neb. 494
the Board of Trustees of the Nebraska State Colleges (the
Board). The Board is the governing body of Chadron State
College, Wayne State College, and Peru State College.1 The
Board was created by article VII, § 13, of the Nebraska
Constitution, and its duties and powers are prescribed by the
Legislature.2 The Legislature describes the Board as “a body
corporate”3 and as a “representative” of the State.4
In 2007, Burke was hired to work at Chadron State College.
At all relevant times, she was a member of a bargaining unit
represented by the Nebraska State College System Professional
Association. As such, the terms and conditions of her employ-
ment were provided in collective bargaining agreements
between the association and the Board.
1. Burke’s Employment
Burke entered into yearly employment contracts with the
Board for specific positions at Chadron State College. The
term of each contract was from July 1 to June 30. As relevant
to this case, the collective bargaining agreement requires that
association members in their first year of employment must be
given notice that their contract will not be renewed 30 days
prior to its expiration. Association members in their second
year of employment must be given notice 120 days prior to
contract expiration, and members in their third and subsequent
years of employment must be given notice 180 days prior to
contract expiration.
From 2007 to 2011, Burke was an athletic administrative
assistant at Chadron State College. From 2011 to 2015, Burke
was a compliance coordinator at Chadron State College. In
early 2015, Burke requested a review of her job duties, and
in March 2015, her job was changed and she began working
1
See Neb. Rev. Stat. § 85-301 et seq. (Reissue 2014 & Cum. Supp. 2018).
2
See Neb. Const. art. VII, § 13.
3
§ 85-302.
4
See Neb. Rev. Stat. §§ 81-1370 and 81-1371 (Reissue 2014).
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BURKE v. BOARD OF TRUSTEES
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as an associate athletic director. The parties generally dispute
whether this change was a reclassification or a transfer. If it
was a reclassification, then under the collective bargaining
agreement, Burke kept her prior years of service for purposes
of notice of nonrenewal. If it was a transfer, then Burke’s years
of service started over for purposes of notice of nonrenewal.
The parties do not dispute the meaning of the terms “reclas-
sification” and “transfer” in the collective bargaining agree-
ment; rather, the dispute is over the underlying facts of Burke’s
change in employment and whether it amounted to a “reclas-
sification” or a “transfer” under that agreement.
On April 8, 2016, Burke was notified via letter from the
president of Chadron State College that her employment con-
tract would not be renewed for the 2016-17 contract year.
Her 2015 contract was due to expire on June 30, 2016. Burke
believed this notice was untimely, because she understood that
her job had been reclassified and that she retained her prior
years of service and, per the collective bargaining agreement,
was entitled to 180 days’ notice that her contract would not be
renewed. The Board, however, reasoned that Burke had been
transferred in 2015, and not reclassified, and that her years of
service for computing notice of nonrenewal started over and
she was entitled to only 30 days’ notice of nonrenewal.
2. Grievance Procedure
The collective bargaining agreement contains a grievance
procedure designated as “the exclusive method for resolving
grievances concerning the administration of this Agreement.”
It defines a grievance as a “dispute . . . concerning the inter-
pretation or application of this Agreement.” The grievance pro-
cedure has several steps, one of which involves an evidentiary
hearing before a committee. The grievance procedure culmi-
nates with an appeal to the chancellor. Thereafter, any party
who is dissatisfied with the chancellor’s decision “may seek
relief under applicable State or Federal laws” or, if the parties
agree, through binding arbitration. The parties agree Burke did
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BURKE v. BOARD OF TRUSTEES
Cite as 302 Neb. 494
not initiate or exhaust the grievance procedure before filing
this declaratory judgment action in district court.
3. Declaratory Judgment Action
On June 8, 2016, a few weeks before her 2015 employment
contract was to expire, Burke filed what she styled as a declar-
atory judgment action in the district court for Dawes County,
Nebraska. Her complaint alleged the Board had breached the
collective bargaining agreement by failing to timely notify her
in writing of its intent not to renew her employment contract.
The complaint sought a declaration that as a result of the
breach, Burke was entitled to an employment contract for the
2016-17 contract year. The complaint also sought a declaration
that Burke was entitled to “all salary and fringe benefits asso-
ciated with her employment,” as well as back pay and conse-
quential damages.
After Burke filed her complaint, the Board moved to dis-
miss. It argued the court lacked subject matter jurisdiction,
because Burke’s action was not really seeking a declaration
regarding construction of a contract, but, rather, was seeking
relief for breach of contract. The Board also argued that to
the extent the complaint sought declaratory relief, Burke had
another equally serviceable remedy, namely, an action for
breach of contract. The district court overruled the motion to
dismiss, reasoning it had subject matter jurisdiction over the
declaratory judgment action and had the discretion to enter-
tain it.
While Burke’s declaratory judgment action was pending, we
issued our opinion in Armstrong v. Clarkson College.5 In that
case, we held that the “exhaustion of a mandatory grievance
procedure in a contract is a condition precedent to enforcing
the rights under that contract.”6 In response to Armstrong, the
Board moved for summary judgment, arguing Burke’s action
5
Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017).
6
Id. at 633, 901 N.W.2d at 28-29.
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BURKE v. BOARD OF TRUSTEES
Cite as 302 Neb. 494
was barred because she failed to exhaust the mandatory griev-
ance procedure in the collective bargaining agreement before
filing suit.
The district court granted summary judgment in favor of the
Board and dismissed Burke’s complaint. Burke filed this timely
appeal, and the Board cross-appealed. We granted the Board’s
petition to bypass.
II. ASSIGNMENTS OF ERROR
All four of Burke’s assigned errors challenge the district
court’s application of Armstrong to this case. Burke assigns,
reordered and restated, that the district court erred in (1) grant-
ing summary judgment in favor of the Board on the basis
that Burke failed to exhaust the grievance procedure in the
collective bargaining agreement; (2) interpreting Armstrong
to require, as a matter of law, the exhaustion of a grievance
procedure contained in a contract as a condition precedent to
bringing an action to enforce the contract; (3) rejecting her
argument that requiring exhaustion of a grievance procedure
violates the constitutional right to access the courts without
delay; and (4) rejecting her argument that requiring exhaustion
of the grievance procedure unlawfully infringes on the court’s
original equity jurisdiction.
On cross-appeal, the Board assigns, restated, that the district
court erred in overruling its motion to dismiss, because (1) the
court lacked subject matter jurisdiction over the declaratory
action and (2) the complaint failed to state a claim upon which
relief could be granted.
III. STANDARD OF REVIEW
[1,2] Sovereign immunity is jurisdictional in nature, and
courts have a duty to determine whether they have subject
matter jurisdiction over a matter.7 Subject matter jurisdiction
is a question of law.8 When a jurisdictional question does not
7
Cappel v. State, 298 Neb. 445, 905 N.W.2d 38 (2017).
8
LeRette v. Howard, 300 Neb. 128, 912 N.W.2d 706 (2018).
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BURKE v. BOARD OF TRUSTEES
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involve a factual dispute, the issue is a matter of law. An appel-
late court reviews questions of law independently of the lower
court’s conclusion.9
IV. ANALYSIS
After oral argument, the parties were ordered to file sup-
plemental briefs addressing (1) whether Burke’s action is an
action against the State and (2) if so, whether the Legislature
has enacted any statute waiving the State’s sovereign immu-
nity for this action. In their responsive briefs, the parties
agree Burke’s action against the Board is an action against
the State. They disagree, however, as to whether the doctrine
of sovereign immunity applies or has been waived by the
Legislature.
As a threshold matter, we agree with the parties that Burke’s
action is one against the State of Nebraska. Her operative com-
plaint names the Board as the only defendant. The Board was
created by article VII, § 13, of the Nebraska Constitution, and
its duties and powers are prescribed by the Legislature.10 The
Legislature describes the Board as “a body corporate”11 and as
a “representative” of the State.12 The Nebraska State Treasurer
serves as treasurer of the Board,13 and the Board must report all
expenditures to the Governor annually.14
[3] We have at times, perhaps imprecisely, characterized the
Board as a political subdivision of the State.15 We also have
9
Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013); S.L. v. Steven
L., 274 Neb. 646, 742 N.W.2d 734 (2007).
10
See Neb. Const. art. VII, § 13.
11
§ 85-302.
12
See §§ 81-1370 and 81-1371.
13
§ 85-302.
14
§ 85-303.
15
Chase v. Board of Trustees of Nebraska State Colleges, 194 Neb. 688, 235
N.W.2d 223 (1975). See, also, Brady v. Board of Trustees of Nebraska
State Colleges, 196 Neb. 226, 242 N.W.2d 616 (1976).
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compared the Board to the Board of Regents of the University
of Nebraska.16 Most recently, in Thomas v. Board of Trustees,17
we applied the State Tort Claims Act to the Board. That
act provides that a “State agency” includes “all departments,
agencies, boards, bureaus, and commissions of the State of
Nebraska and corporations the primary function of which is to
act as, and while acting as, instrumentalities or agencies of the
State.”18 Regardless of the precise terminology used histori-
cally, it is beyond debate that the Board is an instrumentality
of the State and is accountable to the State. As such, an action
against the Board is an action against the State.19
1. Sovereign Immunity
Principles
[4] The 11th Amendment makes explicit reference to the
states’ immunity from suits “commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.”20 This court has, as
a result, sometimes referred to the 11th Amendment when dis-
cussing Nebraska’s sovereign immunity from suit.21 However,
the sovereign immunity of a state neither derives from nor is
limited by the terms of the 11th Amendment.22 Rather, as we
have recognized, a state’s immunity from suit is a fundamental
16
State ex rel. Spire v. Conway, 238 Neb. 766, 472 N.W.2d 403 (1991).
17
Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017).
18
Neb. Rev. Stat. § 81-8,210(1) (Reissue 2014).
19
See, State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241, 917
N.W.2d 903 (2018); Henderson v. Department of Corr. Servs., 256
Neb. 314, 589 N.W.2d 520 (1999). See, also, Davis v. State, 297 Neb.
955, 902 N.W.2d 165 (2017) (describing Nebraska’s Board of Parole as
constitutionally created body of state government).
20
U.S. Const. amend. XI. See Alden v. Maine, 527 U.S. 706, 119 S. Ct.
2240, 144 L. Ed. 2d 636 (1999).
21
See State ex rel. Rhiley, supra note 19.
22
Alden, supra note 20; State ex rel. Rhiley, supra note 19.
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aspect of sovereignty.23 And a trial court lacks subject matter
jurisdiction over an action against the State unless the State has
consented to suit.24
Neb. Const. art. V, § 22, provides: “The state may sue and be
sued, and the Legislature shall provide by law in what manner
and in what courts suits shall be brought.” Long ago, we held
that this provision is not self-executing and that no suit may be
maintained against the State unless the Legislature, by law, has
so provided.25 Over time, we have examined the Legislature’s
limited waivers of the State’s sovereign immunity, usually in
the context of either the State Tort Claims Act or the Political
Subdivisions Tort Claims Act.26
[5-7] In doing so, we have found it well settled that stat-
utes that purport to waive the State’s protection of sovereign
immunity are strictly construed in favor of the sovereign and
against the waiver.27 A waiver of sovereign immunity is found
only where stated by the most express language of a statute or
by such overwhelming implication from the text as will allow
no other reasonable construction.28 Absent legislative action
waiving sovereign immunity, a trial court lacks subject matter
jurisdiction over an action against the State.29 The question,
then, is whether the Legislature has waived sovereign immu-
nity for purposes of this declaratory judgment action. Before
we directly address this question, we pause to address an argu-
ment made by Burke in her supplemental brief.
23
State ex rel. Rhiley, supra note 19. See Jill B. & Travis B. v. State, 297
Neb. 57, 899 N.W.2d 241 (2017).
24
Davis, supra note 19.
25
State ex rel. Rhiley, supra note 19; Shear v. State, 117 Neb. 865, 223 N.W.
130 (1929).
26
State ex rel. Rhiley, supra note 19.
27
Id.; Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551
(2018).
28
Id.
29
State ex rel. Rhiley, supra note 19; Henderson, supra note 19.
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BURKE v. BOARD OF TRUSTEES
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Burke argues that her declaratory judgment action does
not implicate the State’s sovereign immunity because, she
contends, her suit “is not in essence one for the recovery of
money.”30 She relies on Doe v. Board of Regents 31 to argue that
actions against the State “to compel or restrain state action do
not implicate sovereign immunity if such actions do not seek
monetary relief,”32 and she contends that sovereign immunity
applies only when an action against the State “requires the
expenditure of public funds.”33
Burke’s argument is premised on a fundamental misunder-
standing of Doe and sovereign immunity principles. In Doe, we
were addressing a situation not present here—how sovereign
immunity applies when a suit is brought against individuals
sued in their official capacity as State employees. We recog-
nized the following general rule:
[A]ctions to restrain a state official from performing an
affirmative act and actions to compel an officer to perform
an act the officer is legally required to do are not barred by
state sovereign immunity unless the affirmative act would
require the state official to expend public funds. As the
[U.S.] Supreme Court has consistently stated, “‘when the
action is in essence one for the recovery of money from the
state, the state is the real, substantial party in interest and
is entitled to invoke its sovereign immunity from suit even
though individual officials are nominal defendants.’”34
Here, Burke brought the action only against the Board. She
did not name as a defendant any state official, whether in an
30
Supplemental brief for appellant at 7.
31
Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010), overruled
on other grounds, Davis, supra note 19.
32
Supplemental brief for appellant at 5.
33
Id.
34
Doe, supra note 31, 280 Neb. at 511-12, 788 N.W.2d at 282, quoting
Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 117 S. Ct. 900, 137 L. Ed.
2d 55 (1997).
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individual or official capacity. As such, the distinctions iterated
in Doe are inapplicable here. Because Burke’s action against
the Board is an action directly against the State, sovereign
immunity applies to bar the action, unless the Legislature has
waived it.
2. No Statute Waives Board’s Immunity
It is well settled that statutes purporting to waive the State’s
protection of sovereign immunity are strictly construed in favor
of the sovereign and against the waiver.35 A waiver of sover-
eign immunity is found only where stated by the most express
language of a statute or by such overwhelming implication
from the text as will allow no other reasonable construction.36
With these key principles in mind, we turn to the parties’ argu-
ments regarding waiver of sovereign immunity.
(a) Uniform Declaratory Judgments Act
Does Not Waive Sovereign Immunity
[8] Burke has styled her action as one for declaratory judg-
ment, and the Board correctly points out that Nebraska’s
Uniform Declaratory Judgments Act37 does not waive the
State’s sovereign immunity.38 Thus, a party who seeks declara-
tory relief by suing only the State must find authorization for
such remedy from a source other than the Uniform Declaratory
Judgments Act.39
35
State ex rel. Rhiley, supra note 19; Amend, supra note 27; Zawaideh v.
Nebraska Dept. of Health & Human Servs., 285 Neb. 48, 825 N.W.2d 204
(2013).
36
State ex rel. Rhiley, supra note 19; Amend, supra note 27; Jill B. & Travis
B., supra note 23.
37
Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016).
38
County of Lancaster v. State, 247 Neb. 723, 529 N.W.2d 791 (1995); Riley
v. State, 244 Neb. 250, 506 N.W.2d 45 (1993); Concerned Citizens v.
Department of Environ. Contr., 244 Neb. 152, 505 N.W.2d 654 (1993).
39
Northwall v. State, 263 Neb. 1, 637 N.W.2d 890 (2002). See Zawaideh,
supra note 35.
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(b) § 85-302 Does Not Waive
Sovereign Immunity
[9] Nor do the statutes creating the state college system and
the Board directly address sovereign immunity.40 Burke points
out that § 85-302 provides that the Board, as a body corporate,
“may sue and be sued,” but, as previously noted, we have not
found such language to be sufficient to waive sovereign immu-
nity. Specifically, in Livengood v. Nebraska State Patrol Ret.
Sys.,41 we considered whether the State’s sovereign immunity
had been waived for an action against the Nebraska State Patrol
seeking a declaration that retirement annuities had been miscal-
culated. We noted that under the Nebraska Constitution, “‘[t]he
state may sue and be sued, and the Legislature shall provide by
law in what manner and in what courts suits shall be brought.’”42
But we reasoned this provision merely permits the State to lay
its sovereignty aside and consent to be sued on such terms
and conditions as the Legislature may prescribe. We held that
language permitting the State to “sue and be sued” is not self-
executing, but instead requires the Legislature to take specific
action to waive the State’s sovereign immunity.43 Based on this
rationale, we find the language in § 85-302 permitting the Board
to “sue and be sued” is not self-executing, prescribes no terms
or conditions under which the Board can be sued, and is not an
express legislative waiver of sovereign immunity.
(c) State Contract Claims Act
Does Not Apply
Nor is the State Contract Claims Act 44 a possible source of
waiver on this record. Section 81-8,303 of that act specifies
40
See § 85-301 et seq.
41
Livengood v. Nebraska State Patrol Ret. Sys., 273 Neb. 247, 729 N.W.2d
55 (2007).
42
Id. at 251, 729 N.W.2d at 60.
43
Id. Accord Cappel, supra note 7.
44
Neb. Rev. Stat. §§ 81-8,302 to 81-8,306 (Reissue 2014).
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that it does not apply to employment contracts entered into
pursuant to the State Employees Collective Bargaining Act,45
and the contract at issue was entered into pursuant to that
act.46 Thus, we can find no waiver of sovereign immunity for
Burke’s suit under the State Contract Claims Act.
(d) § 25-21,206 Does Not Apply
Finally, both parties discuss Neb. Rev. Stat. § 25-21,206
(Reissue 2016), which provides that the State may be sued
in “any matter founded upon or growing out of a contract,
express or implied, originally authorized or subsequently rati-
fied by the Legislature, or founded upon any law of the state.”
Burke’s action is founded upon or growing out of her contract
with the Board, and that contract was founded upon the State
Employees Collective Bargaining Act,47 a law of the state.
Both parties suggest the waiver of sovereign immunity under
§ 25-21,206 could be broad enough to cover an action such as
Burke’s, but we need not decide that question, because Burke
has failed to comply with the requirements of that statute,
and thus she cannot rely on it as a potential waiver of sover-
eign immunity.
Section 25-21,206 contains specific requirements, one of
which is that the complaint must comply with the pleading
requirements in Neb. Rev. Stat. § 25-21,202 (Reissue 2016).
Section 25-21,202 lists five specific allegations that must be
included in the complaint and requires that “in all cases,” the
complaint “shall” set forth:
(1) the facts out of which the claim originally arose; (2)
the action of the Legislature, or of any department of the
government thereon, if any such has been had; (3) what
person or persons is the owner or are the owners thereof,
45
Neb. Rev. Stat. §§ 81-1369 to 81-1388 (Reissue 2014).
46
See §§ 81-1370 and 81-1371.
47
See § 81-1371(6).
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or in anywise interested therein; (4) that no assignment
or transfer of the same, or any part thereof, or interest
therein, has been made, except as stated in the complaint;
and (5) that the claimant is justly entitled to the amount
claimed therein from the state after allowance of all just
credits and setoffs.
Even liberally construed, Burke’s complaint does not address
the requirements of subsections (4) or (5) in § 25-21,202. In
fact, because Burke has consistently taken the position that she
is not seeking any monetary amount from the Board in this
action, it is questionable whether she could ever plead factual
allegations that satisfy § 25-21,202(5).
As noted, statutes that purport to waive the State’s protec-
tion of sovereign immunity must be strictly construed in favor
of the sovereign and against the waiver.48 Here, § 25-21,206
expressly waives the State’s sovereign immunity, but only if
the requirements of the statute are met. Burke’s complaint
does not contain the necessary factual allegations to satisfy
§ 25-21,202, and therefore she cannot rely on § 25-21,206
to waive the State’s sovereign immunity here. And because
we conclude that § 25-21,206 does not apply on this record,
we need not address the Board’s argument that Burke can-
not rely on § 25-21,206 because she failed to comply with
the presuit procedures of Neb. Rev. Stat. § 81-1170.01
(Reissue 2014).
V. CONCLUSION
[10] Burke’s declaratory judgment action against the Board
is an action against the State, and we have not been directed
to any statute that serves to waive the State’s sovereign immu-
nity. As such, we must find the district court lacked subject
matter jurisdiction over Burke’s action against the Board.49
48
State ex rel. Rhiley, supra note 19; Amend, supra note 27.
49
See State ex rel. Rhiley, supra note 19.
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When a lower court does not gain jurisdiction over the case
before it, an appellate court also lacks jurisdiction to review
the merits of the claim.50 We thus vacate the district court’s
judgment and dismiss this appeal for lack of subject mat-
ter jurisdiction.
Vacated and dismissed.
Miller-Lerman, J., not participating.
50
Id.