Versiglio v. Bd. of Dental Exam'r of Ala.

• Decision Date: 13 July 2012
• Docket Number: No. 10–14282.,10–14282.
• Parties: Natalie VERSIGLIO, Plaintiff–Appellee, v. BOARD OF DENTAL EXAMINERS OF ALABAMA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

686 F.3d 1290

23 Fla. L. Weekly Fed. C 1318

Natalie VERSIGLIO, Plaintiff–Appellee,

v.BOARD OF DENTAL EXAMINERS OF ALABAMA, Defendant–Appellant.

No. 10–14282.

United States Court of Appeals,Eleventh Circuit.

July 13, 2012.

John Bradley Medaris, Robert N. Barber, II, Barber Medaris, LLC, Birmingham, AL, for Plaintiff–Appellee.

Hendon Blaylock Coody, Montgomery, AL, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Alabama.

ON PETITION FOR REHEARING

Before DUBINA, Chief Judge, and EDMONDSON and WILSON, Circuit Judges.

DUBINA, Chief Judge:

There is presently pending in this case a petition for rehearing filed by the Appellant Board of Dental Examiners of Alabama (the “Board”). We grant the Board's petition for rehearing, vacate our prior panel opinion in this case, issued on August 26, 2011, and published at 651 F.3d 1272, and substitute the following opinion in lieu thereof. After a recent decision by the Alabama Supreme Court, we now reverse the district court's judgment finding that the Board does not constitute an arm of the State of Alabama and is therefore not entitled to sovereign immunity from suits.

In the present case, the Board appeals the district court's judgment denying it sovereign immunity protection as an arm of the State of Alabama. Appellee Natalie Versiglio contends that the Board is sufficiently independent from the State of Alabama that it is not entitled to Eleventh Amendment immunity and that her claim under the Fair Labor Standards Act should be allowed to continue. Thus, the question before this court is whether the Board is an arm of the state and protected from suit by sovereign immunity. Based on a recent decision by the Alabama Supreme Court, Wilkinson v. Bd. of Dental Exam'rs of Ala., ––– So.3d ––––, 2012 WL 1890677 (Ala. May 25, 2012), we conclude that it is and we reverse the judgment of the district court.¹

I.

In Manders v. Lee, the Eleventh Circuit noted that “[i]t is also well-settled that Eleventh Amendment immunity bars suits brought in federal court when the State itself is sued and when an ‘arm of the State’ is sued.” 338 F.3d 1304, 1308 (11th Cir.2003). Whether an agency qualifies as an arm of the state is a federal question with a federal standard, but whether that standard is met will be determined by carefully reviewing how the agency is defined by state law. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 n. 5, 117 S.Ct. 900, 904 n. 5, 137 L.Ed.2d 55 (1997) (“Ultimately, of course, the question whether a particular state agency has the same kind of independent status as a county or is instead an arm of the State, and therefore ‘one of the United States' within the meaning of the Eleventh Amendment, is a question of federal law. But that federal question can be answered only after considering the provisions of state law that define the agency's character.”); Tuveson v. Fla. Governor's Council on Indian Affairs, Inc., 734 F.2d 730, 732 (11th Cir.1984) (“The state law provides assistance in ascertaining whether the state intended to create an entity comparable to a county or municipality or one designed to take advantage of the state's Eleventh Amendment immunity.”). States have “extremely wide latitude in determining their forms of government and how state functions are performed.” Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm'rs, 405 F.3d 1298, 1303 (11th Cir.2005). But if a state creates an institution in such a way that gives it independence, “[w]hatever may have been the state's reason for doing it [that] way, it must live with the consequences. It cannot claim an immunity based on a condition which it itself sought to avoid.” Williams v. Eastside Mental Health Ctr., Inc., 669 F.2d 671, 678 (11th Cir.1982). In conducting our analysis, this court “has stated the most important factor is how the entity has been treated by the state courts.” Tuveson, 734 F.2d at 732 (citing Huber, Hunt & Nichols, Inc. v. Architectural Stone Co., 625 F.2d 22, 25 (5th Cir.1980)²).

II.

When this court heard oral argument, the highest court in the State of Alabama to analyze the issue of whether the Board constitutes an arm of the state was the Court of Civil Appeals of Alabama, which found that the Board was not an arm of the state and not entitled to immunity from suit in Alabama state courts. See Wilkinson v. Bd. of Dental Exam'rs of Ala., –––So.3d ––––, ––––, 2011 WL 1205669, at *5 (Ala.Civ.App. Apr. 1, 2011), rev'd Wilkinson, ––– So.3d –––, 2012 WL 1890677. Based on this decision, we similarly held that the Board was not an arm of the state and was not entitled to immunity from suit in federal courts. See Versiglio v. Bd. of Dental Exam'rs of Ala., 651 F.3d 1272 (11th Cir.2011). However, once this court became aware of the Alabama Supreme Court's decision to grant the Board's petition for a writ of certiorari, we withheld issuance of our mandate that could have resulted in the incongruous result of having a “state agency” that is immune from suit under state law but not federal law. Cf. Alden v. Maine, 527 U.S. 706, 793 n. 29, 119 S.Ct. 2240, 2285 n. 29, 144 L.Ed.2d 636 (noting in a different context that the Framers of the Eleventh Amendment “would have considered it absurd that States immune in federal court could be subjected to suit in their own courts”).

III.

On May 25, 2012, the Alabama Supreme Court issued a decision holding that the Board is in fact an arm of the state and is entitled to immunity from suits in Alabama state courts. Wilkinson, ––– So.3d –––.³ In so holding, the Alabama Supreme Court conclusively held “that the Board is ‘an arm of the state’ rather than a mere ‘franchisee licensed for some beneficial purpose.’ ... Therefore, the Board ... is entitled to immunity.” Id. at ––––.

This court gives great deference to how state courts characterize the entity in question. This practice is in keeping with the ordinary deference granted state courts when they interpret matters of state concern. See Silverberg v. Paine, Webber, Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir.1983) (“A federal court applying state law is bound to adhere to decisions of the state's intermediate appellate courts absent some persuasive indication that the state's highest court would decide the issue otherwise.”). Finding now that the Board is not entitled to sovereign immunity would require this court to interpret Alabama law in a way that is diametrically opposed to the findings of the highest state court to consider the issue. We decline to do so.

IV.

For the aforementioned reasons, we reverse the district court's judgment finding that the Board is not entitled to sovereign immunity protection as an arm of the State of Alabama.

REVERSED.

APPENDIX

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2011–2012

_________________________

1100993

_________________________

Ex parte Board of Dental Examiners of Alabama

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CIVIL APPEALS

(In re: Mary Ann Wilkinson

v.

Board of Dental Examiners of Alabama)

(Jefferson Circuit Court, CV–10–902491;

Court of Civil Appeals, 2100175)

WISE, Justice.

We granted the petition for a writ of certiorari filed by the Board of Dental Examiners of Alabama (“the Board”) seeking review of the decision of the Court of Civil Appeals in Wilkinson v. Board of Dental Examiners of Alabama, [Ms. 2100175, April 1, 2011] ––– So.3d ––––, 2011 WL 1205669 (Ala.Civ.App.2011), in which the Court of Civil Appeals held that the Board was not a State agency and thus was not entitled to immunity pursuant to Art. I, § 14, Ala. Const.1901. For the reasons set forth below, we reverse the judgment of the Court of Civil Appeals.

I. Facts and Procedural History

The pertinent facts are stated in the Court of Civil Appeals' opinion in Wilkinson:

“Mary Ann Wilkinson was employed by the Board of Dental Examiners of Alabama (‘the Board’) for several years, until the Board terminated her employment in December 2009. During her tenure with the Board, Wilkinson was employed pursuant to yearly contracts. Wilkinson's employment contracts provided that the ‘sole remedy for the settlement of any and all disputes arising under the terms of this agreement shall be limited to the filing of a claim with the Board of Adjustment for the State of Alabama.’

“In July 2010, Wilkinson sued the Board, seeking compensation she alleged was due her pursuant to her employment contracts. Wilkinson based her breach-of-contract claim on an audit of the Board covering the period between October 2003 and September 2007 conducted by the Department of Examiners of Public Accounts of Alabama, which was completed in February 2009. Wilkinson alleged that the audit had revealed that the Board had not paid Wilkinson for her attendance at Board meetings between October 2004 and September 2007 and that the Board had overpaid Wilkinson other compensation. According to Wilkinson's complaint, the audit determined that the Board had underpaid Wilkinson $31,950 and had overpaid Wilkinson $21,787.92. Thus, Wilkinson contended in her complaint that the Board owed her $10,162.08. She also requested a further audit and compensation for her attendance at Board meetings between October 2007 and December 2009.

“The Board filed a motion to dismiss Wilkinson's complaint, in which it alleged that the complaint should be dismissed pursuant to Rule 12(b)(1), Ala. R. Civ. P., on the ground that the trial court lacked subject-matter jurisdiction because the Board, as a State agency, is immune from suit under Ala. Const.1901, Art. I, § 14; that the complaint should be dismissed pursuant to Rule 12(b)(6), Ala. R. Civ. P., because it failed to state a claim; and that the complaint should be dismissed pursuant to Rule 12(b)(3), Ala. R. Civ. P., for improper venue. The motion to dismiss contained legal argument concerning only the immunity issue and whether the employment contracts, which provided that Wilkinson's sole remedy would lie with the Board of Adjustment,...