Versiglio v. Bd. of Dental Examiners of Ala.

• Decision Date: 26 August 2011
• Docket Number: No. 10–14282.,10–14282.
• Citation: 23 Fla. L. Weekly Fed. C 324,18 Wage & Hour Cas.2d (BNA) 10,651 F.3d 1272
• Parties: Natalie VERSIGLIO, Plaintiff–Appellee,v.BOARD OF DENTAL EXAMINERS OF ALABAMA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

651 F.3d 1272

18 Wage & Hour Cas.2d (BNA) 10

23 Fla. L. Weekly Fed. C 324

Natalie VERSIGLIO, Plaintiff–Appellee,

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

No. 10–14282.

United States Court of Appeals, Eleventh Circuit.

Aug. 26, 2011.

John Bradley Medaris, Robert N. Barber, II, Barber Medaris, LLC, Birmingham, AL, for Plaintiff–Appellee.Hendon Coody, Montgomery, AL, for Defendant–Appellant.Appeal from the United States District Court for the Northern District of Alabama.Before DUBINA, Chief Judge, and EDMONDSON and WILSON, Circuit Judges.DUBINA, Chief Judge:

Appellant Board of Dental Examiners of Alabama (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. The Supreme Court in Alden v. Maine settled the matter of state employees suing under the FLSA, writing, “We hold that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts. We decide as well that the State of Maine has not consented to suits for overtime pay and liquidated damages under the FLSA.” 527 U.S. 706, 712, 119 S.Ct. 2240, 2246, 144 L.Ed.2d 636 (1999). Thus, the question before this court is whether the Board is an arm of the state. For the reasons stated below, we conclude that at this time it is not and affirm 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 is 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) (quotation marks omitted). 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.

In Miccosukee Tribe of Indians v. Florida State Athletic Commission, this court set forth a four part test to guide our analysis of whether state law establishes an agency as an arm of the state. 226 F.3d 1226 (11th Cir.2000). Miccosukee explains, “In determining whether the Eleventh Amendment provides immunity to a particular entity, this court examines the following factors: (1) how state law defines the entity; (2) what degree of control the state maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity.” Id. at 1231. Applying this test, the court in Miccosukee determined that the Florida State Athletic Commission constituted an arm of the state and was entitled to Eleventh Amendment immunity.

Initially, the Board appears to have a viable argument that it is an arm of the state under the Miccosukee test. First, Alabama law suggests that the Board is an arm of the state. In creating the Board, the legislature made specific findings that “the practice of dentistry affects the public health, safety and welfare and should be subject to regulation.” Ala.Code § 34–9–2(a). These findings indicate that the legislature saw the Board as an arm of the state, noting, “The licensure by this state of nonresident dentists who engage in dental practice within this state is within the public interest.” Id. § 34–9–2(c) (emphasis added). A regulatory body is defined under the state's immunity provision as “[a] state agency which issues regulations in accordance with the Alabama Administrative Procedure Act or a state, county, or municipal department, agency, board, or commission which controls, according to rule or regulation, the activities, business licensure, or functions of any group, person, or persons.” Id. § 6–5–340(a)(7). The Alabama Administrative Procedure Act governs “[e]very state agency having express statutory authority to promulgate rules and regulations.” Id. § 41–22–2(d). The Board is granted the authority to make such rules and regulations in Section 34–9–43 of the Alabama Code.

Moreover, while the Board has a degree of independence, the statutory scheme that created it allows the state to maintain control over its operations. Miccosukee recognizes that the regulatory abilities inherent in a licensing agency—including quasi-legislative and quasi-judicial functions—does not render it independent of the state. In Miccosukee, the court noted that the Commission's rule-making functions were constrained by legislative guidelines. 226 F.3d at 1232. The Board is similarly designed. Section 34–9–43 grants the Board power to promulgate regulations, but only as provided by Chapter 9 of the Alabama Code. For example, the Code, and not the Board, sets forth application categories, Section 34–9–10, registration procedures and deadlines, Section 34–9–15, a range of fees the Board may charge, Section 34–9–16, and examination requirements, Section 34–9–26, among others.

In Miccosukee, the court noted that the Athletic Commission was not permitted unfettered discretion to suspend or revoke licenses, but rather “the state allows the Commission to suspend or revoke a license for a limited number of grounds.” 226 F.3d at 1232. Similarly, the Board may only invoke disciplinary action against a licensee subject to Section 34–9–18, which sets forth seventeen grounds for Board action and nine different sanctions the Board may proscribe based on those grounds. Section 34–9–18(d) requires a hearing before any disciplinary action can be taken, and Section 34–9–25 allows for appeal to the circuit courts on the grounds that Board action is either illegal or arbitrary. The Board is allowed to “request assistance from the Attorney General” in enforcing its duties, and all “prosecuting attorneys throughout the state shall assist the board, upon request of either, in any action for injunction or prosecution without charge or additional compensation.” Ala.Code § 34–9–43.1(a).

One area in which the Board is more independent than the Commission in Miccosukee is the composition of the Board itself. In Miccosukee, the Commission was appointed by the Governor, subject to confirmation by the Senate. 226 F.3d at 1232–33. We noted that “[s]tate authority over the appointment of agency members lends support to finding that the agency is an arm of the state,” but we did not find the appointment procedure to be definitive. Id. Here, while the state does not select the Board, it has established detailed guidelines for how the members are to be selected. See Ala.Code § 34–9–40 (“The board shall consist of six dentists who shall be selected in the method set forth herein all of whom having been actively engaged in the practice of dentistry in the State of Alabama for at least five years next preceding the date of their election and one dental hygienist elected at-large and as provided in subsection (b). Each member of the board shall be a citizen of this state.”).

III.

Appellee argues that a strong point in favor of the Board's independence from the state is the fact that it derives its funds from licensing fees and can spend its money pursuant to its own discretion. This position was largely rejected in Miccosukee where this court found that it is the amount of control over the agency's fiscal life, not the source of its funding, that is most pertinent. 226 F.3d at 1233; Fouche v. Jekyll Island–State Park Auth., 713 F.2d 1518, 1520–21 (11th Cir.1983) (“Even though the Park Authority can raise money through the issuance of bonds and from the operation of Jekyll Island State Park, its fiscal life is controlled by the state.”). Furthermore, while the licensing fees paid to the Board never enter the state treasury, this appears to be little more than an accounting decision by the state. The Board's enabling legislation recognizes that the fees paid to the Board are controlled by the state, specifically authorizing, “All money, including license fees, annual renewal license certificate fees, examination fees and any and all other fees and receipts ... are hereby appropriated to the Board of Dental...