Nair v. Oakland County Comm. Mental Health Auth.

• Decision Date: 04 April 2006
• Docket Number: No. 05-1177.,05-1177.
• Citation: 443 F.3d 469
• Parties: D. Sreedharan NAIR, Plaintiff-Appellant, v. OAKLAND COUNTY COMMUNITY MENTAL HEALTH AUTHORITY and William J. Allen, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 469

443 F.3d 469

D. Sreedharan NAIR, Plaintiff-Appellant, v. OAKLAND COUNTY COMMUNITY MENTAL HEALTH AUTHORITY and William J. Allen, Defendants-Appellees.

No. 05-1177.

United States Court of Appeals, Sixth Circuit.

Argued: January 26, 2006.

Decided and Filed: April 4, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Barry S. Fagan, Dib, Fagan & Brault, Royal Oak, Michigan, for Appellant. Eileen K. Husband, Cummings, McClorey, Davis & Acho, Livonia, Michigan, for Appellees.

ON BRIEF:

Barry S. Fagan, Dib, Fagan & Brault, Royal Oak, Michigan, for Appellant. Eileen K. Husband, Thomas J. Laginess, Cummings, McClorey, Davis & Acho, Livonia, Michigan, for Appellees.

Before: GUY, SUTTON, and McKEAGUE, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

Dr. Sreedharan Nair challenges the district court's entry of summary judgment against him in this lawsuit claiming (1) First Amendment retaliation under 42 U.S.C. § 1983 and (2) a violation of Michigan's whistleblower statute. Because Nair's speech did not touch on a matter of public concern, we reject his First Amendment claim, and because his speech did not threaten to report a violation of law, we reject his state-law claim. And because the defendants have raised a sovereign-immunity defense to these claims as an alternative ground for affirmance, we need not decide whether their sovereign-immunity defense otherwise restricts our authority to reach the merits of this case. We affirm.

I.

The Oakland County Community Mental Health Authority "provide[s] a comprehensive array of mental health services appropriate to . . . individuals who are located within its geographic service area, regardless of an individual's ability to pay." Mich. Comp. Laws § 330.1206(1). A county-appointed board oversees the Authority, id. § 330.1212, and the executive director has day-to-day control over the Authority, id. § 330.1230.

The executive director "function[s] as the chief executive" of the program. Id. In "supervising all employees," id., the executive director has authority to appoint a psychiatrist as "medical director" to "advise the executive director on medical policy and treatment issues," id. § 330.1231.

In 2000, the Authority restructured its organization, which among other things entailed out-sourcing its patient-care responsibilities. By October 1, 2000, the Authority had completed the restructuring so that private contractors provided all patient care.

In November 2000, the Authority elevated Dr. Nair from a position as the interim medical director, which he had held since January 2000, to that of the permanent medical director. And in November 2001, the Authority hired William Allen as its executive director.

In early 2002, to trim administrative expenses, Allen proposed reducing the medical-director position, which was paid $110 per hour, from full-time to half-time. Nair disagreed with the proposal, believing that it would "further erode the role of the Medical Director to the detriment of the agency." JA 293. He sent Allen e-mails, faxes and other documents to convince him the position required full-time hours. Notwithstanding Nair's objections, the reduction took effect in June 2002.

One month later, Nair raised the issue with a pre-accreditation survey team, which displeased Allen. In October, Allen reviewed Nair's performance. While "[o]verall, Dr. Nair's performance ha[d] met the conditions of his position," JA 145, Allen found that "more effort was needed in terms of providing assertive medical leadership," JA 148.

On November 8, 2002, still bothered by the reduction in his hours, Nair sent a letter to the board outlining his concerns about his diminished responsibilities. "[S]teadily and deliberately," he complained, "the responsibilities of the Medical Director have been curtailed and recently the position has been downgraded to half-time level." JA 380. Nair requested that the board "set up a committee to study the role of the Medical Director in an agency like this." Id. The letter concluded by asking the board to "consider this matter urgent" and "have a response as soon as possible, as I have serious concerns about my legal, ethical and moral obligations." JA 381.

Allen viewed the letter as an insubordinate act on Nair's part and informed him on November 19 that "this will have serious consequences to it." JA 280, 465. "[A]ny future efforts to go to the Board before addressing issues with me," Allen noted, "will not be tolerated." JA 280. On November 20, Allen sent Nair a memo stating, "I continue to be concerned about [your] lack of leadership with regard to medical director responsibilities and your constant concern about being re-assigned to half-time rather than assertively handling your responsibilities." JA 165.

On November 30, Clifford Johnson, the chairman of the board, responded to Nair's letter. Johnson pointed out that the elimination of the Authority's "direct care" responsibilities had "necessarily altered the function of [the] Medical Director." JA 384. He also noted that the medical director "is selected and hired by, and supervised by, the Executive Director." JA 385. As "a direct subordinate" without patient-care duties, Nair's sole purpose was to add his "professional expertise and perspective to the overall management effort." Id. Johnson thus saw "no legitimate basis for the board action you request." Id.

On February 4, 2003, Allen terminated Nair, telling him that "[i]t just wasn't working out." JA 212. In response, Nair filed a complaint in federal court against the Authority and Allen, alleging that they had terminated him in retaliation for exercising his First Amendment rights and in violation of Michigan's Whistleblowers' Protection Act. Claiming that it was an arm of the State because it received over 55% of its budget from the State and because state money ultimately would be used to satisfy any judgment against it, the Authority claimed that the Eleventh Amendment barred the lawsuit from being heard in federal court.

The district court granted the defendants' motion for summary judgment. In doing so, it did not address the Authority's sovereign-immunity defense but instead ruled (1) that because Nair's speech did not touch on a matter of public concern, it could not form the basis of a First Amendment retaliation claim, and (2) that because Nair was not attempting to report a hidden violation of law, he could not bring a claim under Michigan's whistleblower statute.

II.

While the Authority has raised a sovereign-immunity defense to this lawsuit, it has not urged us to address the defense at the outset and indeed has presented the defense as an alternative ground for affirmance. This litigation stance prompts us to consider a jurisdictional question that the parties have not argued or identified: Is a sovereign-immunity defense more akin to an absence of subject-matter jurisdiction, which must be addressed at the outset and which may not be affected by the parties' litigation conduct, or more akin to other affirmative defenses, which need not be addressed at the outset and which a defendant may waive?

From one vantage point, the defense looks like a contention that subject-matter jurisdiction is missing. While the Tenth Amendment does not speak in subject-matter-jurisdictional terms, see Alden v. Maine, 527 U.S. 706, 712-14, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (noting that a State's sovereign immunity arises under the Tenth and Eleventh Amendments), and while the United States' sovereign immunity is not described in the Constitution at all, Keifer & Keifer v. Reconstruction Fin. Corp., 306 U.S. 381, 388, 59 S.Ct. 516, 83 L.Ed. 784 (1939), the Eleventh Amendment speaks in classic jurisdictional terms. "The Judicial power of the United States," it says, "shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Except for capitalizing "Power" rather than "judicial," the Article III description of judicial authority and of limitations on that authority is strikingly similar to the Eleventh Amendment's. In section one of Article III, the Constitution creates "[t]he judicial Power of the United States," and in section two it describes the subject-matter jurisdiction of the federal courts, namely that "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution. . . ." In addition to this similarity in language, there are other parallels between the two jurisdictional limitations. Like subject-matter jurisdiction, a sovereign-immunity defense may be asserted for the first time on appeal, Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and it may (and should) be raised by federal courts on their own initiative, Wisc. Dept. of Corr. v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998).

But "[w]hile the Eleventh Amendment is jurisdictional in the sense that it is a limitation on the federal court's judicial power," the defense "is not coextensive with the limitations on judicial power in Article III." Calderon v. Ashmus, 523 U.S. 740, 745 n. 2, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998). Unlike subject-matter jurisdiction, a State may waive Eleventh Amendment immunity through its own conduct: by legislation, Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990); by removing an action to federal court, Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 616, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); or by "appearing without objection and defending on the merits," Ku v. Tennessee, 322 F.3d 431, 435 (6th Cir.2003); cf. Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) ("[N]o action of the parties can confer subject-matter jurisdiction upon a federal court. ...