Nelson v. University of Texas at Dallas

• Decision Date: 07 June 2007
• Docket Number: Civil Action No. 3:05-CV-1741-N.
• Citation: 491 F.Supp.2d 672
• Parties: Robert T. NELSON, Plaintiff, v. UNIVERSITY OF TEXAS AT DALLAS, et al., Defendant.
• Court: U.S. District Court — Northern District of Texas

491 F.Supp.2d 672

Robert T. NELSON, Plaintiff, v. UNIVERSITY OF TEXAS AT DALLAS, et al., Defendant.

Civil Action No. 3:05-CV-1741-N.

United States District Court, N.D. Texas, Dallas Division.

June 7, 2007.

COPYRIGHT MATERIAL OMITTED

Robert J. Wiley, Law Office of Rob Wiley, Dallas, TX, for Plaintiff.

Ruth Ruggero Hughs, Office of the Texas Attorney General, Austin, TX, for Defendant.

ORDER

GODBEY, United States District Judge.

Before the Court is Plaintiff Robert Nelson's Motion to Vacate Judgment, pursuant to Federal Rule of Civil Procedure 59[25]. Nelson contends this Court's November 1, 2006 Order ("November 1 Order"), dismissing Nelson's claims against Defendant David E. Daniel in his official capacity pursuant to Rule 12(b)(1) and (6), is contrary to clearly established law, i.e., (according to Nelson) every other court to consider this question for the last hundred years. The Court thus must discuss at some length a proposition most would find obvious: wrongful termination under the FMLA is a discrete act, not a continuing wrong. The Court finds Nelson's motion both procedurally and substantively deficient and therefore denies the motion.

I. PROCEDURAL BACKGROUND TO NELSON'S RULE 59 MOTION

Defendant University of Texas at Dallas ("UTD") terminated Nelson allegedly because, following approved leave, Nelson failed to return to work and failed to notify anyone of the need for additional absences. Nelson filed this action against Defendants UTD, Karen M. Jarrell, Vivian Rutlege, and David E. Daniel (collectively "Defendants"), alleging violations of the personal leave provisions of the Family Medical Leave Act ("FMLA"). Specifically, Nelson claims Defendants discharged him, or otherwise discriminated against him, for exercising his right to leave under the FMLA. Nelson further claims he was entitled to return to the same position he held when his leave commenced. Nelson seeks economic relief of $630,000 for lost benefits as a result of Defendants' alleged violation of FMLA. With regard to Daniel, Nelson invokes Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and seeks injunctive relief, including hiring, reinstatement, and/or promotion.

Defendants moved to dismiss Nelson's claims pursuant to Federal Rules of Civil Procedure 12(b)(1) & (6). The Court dismissed Nelson's claims against all defendants but Daniel in its August 30, 2006 Order. As to Daniel, the Court denied the motion as moot, because Daniel sought dismissal in his individual capacity and Nelson sued Daniel in his official capacity.

Daniel then filed a second motion to dismiss in which he argued that Nelson's claims against Daniel in his official capacity were jurisdictionally barred. In deciding Daniel's motion to dismiss, the Court focused on whether Nelson alleged a continuing violation of federal law. The Court explained that plaintiffs may invoke Ex parte Young to "enjoin state officials to conform their future conduct to the requirements of federal law," McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir.2004) (quoting Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)), provided they bring suit (1) against a state official, seeking (2) only prospective injunctive relief (3) in order to end a "continuing violation of federal law." Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (citations omitted). Because the alleged violation — retaliation for exercising his right to leave — was a discrete, one-time event, Nelson failed to allege the third element of the prima facie case. Accordingly, this Court granted Daniel's motion to dismiss. Nelson now files this motion to vacate and amend the November 1 Order.

II. NELSON'S MOTION FAILS THE RULE 59 PROCEDURAL REQUIREMENTS

Rule 59(e) affords courts the discretion to reconsider a judgment, provided the movant shows "(1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or prevent manifest injustice." In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir.2002). The party cannot use the motion as a means to "raise arguments [that] could, and should, have been made before the judgment issued." Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir.2007) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990)). In the Fifth Circuit, Rule 59 motions are considered "an extraordinary remedy that should be used sparingly." Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir.2004).

Nelson in his Rule 59 motion seeks to reargue the Ex parte Young issue, now supporting his position with new arguments and citation to different authority. Nelson claims he is entitled to reargue the point because Defendant Daniel did not raise the continuing violation issue until his reply brief. That no doubt was because Nelson did not raise Ex parte Young until his response to the second motion to dismiss. In invoking Ex parte Young as a reason to deny Daniel's motion to dismiss on sovereign immunity grounds, Nelson acknowledged that a continuing violation of federal law was an element of the doctrine he must establish to avoid dismissal. See Reap. at 3. Daniel's reply did nothing more than point out that Nelson had failed to establish the elements of the exception he invoked to avoid dismissal.¹ Accordingly, Nelson's motion fits squarely within the category of motions that raise arguments that could, and should, have been made before judgment issued. The Court therefore denies the motion on this basis. Because the motion is also substantively deficient, the Court will discuss the merits as well.

III. NELSON FAILS TO ESTABLISH A CLEAR ERROR OF LAW

Nelson argues that the November 1 Order was contrary to clearly established law because reinstatement is prospective relief that remedies a continuing violation of federal law under Ex parte Young. Nelson boldly claims this Court's November 1 Order is contrary to every court to consider the issue since Ex parte Young, in 1908. Brief at 2. A more accurate characterization of Nelson's cited cases would be that many courts dealing with other substantive rights have found reinstatement to be proper prospective relief under Ex parte Young. But the November 1 Order dismissed Nelson's claim for failure to allege a continuing violation of federal law, not for failure to seek prospective injunctive relief — the remedy was not the issue.² Given Nelson's arguments, the Court must discuss at some greater length the principles of Ex parte Young. The Court will then apply those principles to Nelson's claims under the FMLA. Finally, the Court will discuss the cases that Nelson claims demonstrate error in this Court's November 1 Order.

A. The Purpose of Ex parte Young Claims

It is well-established that the Eleventh Amendment³ affords nonconsenting states constitutional immunity from suit in both federal and state courts. See, e.g., Alden v. Maine, 527 U.S. 706, 748, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 105 L.Ed.2d 45, (1989); Warnock v. Pecos County, 88 F.3d 341, 343 (5th Cir.1996). "The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities." Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002) (citing In re Ayers, 123 U.S. 443, 505, 8 S.Ct. 164, 31 L.Ed. 216 (1887)); see also ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 66 (Arthur Goldhammer trans., Library of America 2004) (1840) ("In short, there are twenty-four small, sovereign nations, which together form the great body of the Union."). "The founding generation thought it `neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons.'" Fed. Mar. Comm'n, 535 U.S. at 760, 122 S.Ct. 1864 (quoting Alden, 527 U.S. at 748, 119 S.Ct. 2240). Similarly, state officials enjoy immunity. Because a state cannot act but through its officials, a suit against a state official in his or her official capacity is, de facto, a suit against the state. McCarthy, 381 F.3d at 414 (stating that "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office" and thus the state) (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)). However, the Eleventh Amendment's proscription is not absolute.

Recognizing that the Eleventh Amendment threatened to render federal courts powerless to prevent state violations of the Constitution, the Supreme Court carved out a narrow exception in Ex parte Young, permitting courts to grant injunctive relief against state officers to preserve the Constitution as the "supreme law of the land." Alden, 527 U.S. at 747, 119 S.Ct. 2240; see also McCarthy, 381 F.3d at 412 (5th Cir. 2004) ("Under Ex parte Young, `a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law.'") (quoting Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)). The theory behind Ex parte Young, according to the Supreme Court, is that "use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of ... the State in its sovereign or governmental capacity." Ex parte Young, 209 U.S. at 159-60, 28 S.Ct. 441.

Of course, in carving out this exception, the Supreme Court constructed an "an obvious fiction." Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 270, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). In a case decided the same day as Ex parte Young, the...