Weaver v. Madison City Bd. of Educ. & Dr. Dee Fowler

• Decision Date: 29 May 2013
• Docket Number: Case No. 5:11–cv–03558–TMP.
• Citation: 947 F.Supp.2d 1308
• Parties: Michael E. WEAVER, Plaintiff, v. MADISON CITY BOARD OF EDUCATION and Dr. Dee Fowler, in his official capacity as Superintendent of the Madison City Board of Education, Defendants.
• Court: U.S. District Court — Northern District of Alabama

947 F.Supp.2d 1308

Michael E. WEAVER, Plaintiff,

v.MADISON CITY BOARD OF EDUCATION and Dr. Dee Fowler, in his official capacity as Superintendent of the Madison City Board of Education, Defendants.

Case No. 5:11–cv–03558–TMP.

United States District Court,

N.D. Alabama,

Northeastern Division.

May 29, 2013.

Edward Still, Birmingham, AL, Kathryn Sydny Piscitelli, Harris & Helwig PA, Orlando, FL, for Plaintiff.

Carl E. Johnson, Jr., Bishop Colvin Johnson & Kent LLP, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

T. MICHAEL PUTNAM, United States Magistrate Judge.

This cause is before the court ¹ on a motion to dismiss filed on June 22, 2012, by the defendants, Madison City Board of Education and Dr. Dee Fowler, the Board's superintendent, (collectively referred to as “the Board”). They assert that the complaint must be dismissed as to all claims against them for lack of subject matter jurisdiction. (Doc. 17). After various extensions of time to respond, plaintiff filed his opposition to the motion on September 4, 2012 (Doc. 32), and the motion was heard for argument on November 19, 2012. Having now carefully considered the motion, response, and argument of counsel, the court finds that the motion is due to be denied.

Plaintiff Michael Weaver filed this lawsuit against the Board on October 4, 2011 under the Uniform Services Employment and Reemployment Rights Act (“USERRA”), codified at 38 U.S.C. § 4301 et seq. In its motion to dismiss, the Board argues that is immune from suit under USERRA as an “arm of the state” for Eleventh Amendment purposes. At § 4323 of the Act, the United States district courts are given jurisdiction over causes of action brought under USERRA “against a private employer by a person.” When an action is brought by a private litigant against a State as an employer, however, “the action may be brought in a State court of competent jurisdiction in accordance with the laws of the state.” 38 U.S.C. § 4323(b)(2).² To complicate matters further, 38 U.S.C. § 4323(i) defines the term “private employer” to include the “political subdivision[s] of a State.”

The Board in this action contends that it is not a mere “political subdivision” of the State of Alabama, but a full-fledged “arm of the State” itself. Defs.' Br. p. 3. Although the term “arm of the State” does not appear in the jurisdictional or definitional provisions of the statute, the Board argues that because it is not a mere political subdivision of the State of Alabama, § 4323(i) does not apply and that it is an “arm of the state,” immune from suit in the United States district court under the Eleventh Amendment to the United States Constitution. Plaintiff counters that the Board is not an “arm of the state,” but a “political subdivision” within the meaning of § 4323(i) and, even if the Board is an “arm of the state,” the Eleventh Amendment does not bar a private suit against the State under USERRA because it was enacted pursuant to Congress's constitutional War Powers,³ not the Commerce Clause. Pl.'s Br. p. 24–37.

DISCUSSION

I. Eleventh Amendment Immunity

The statutory structure of USERRA derives from a concern about Eleventh Amendment immunity. While actions against private employers can be brought in the United States district courts, the express language of the Act itself limits suits by individuals against “a State (as an employer)” to the “State court of competent jurisdiction in accordance with the laws of the State.” This dichotomy was created by the 1998 Veterans Programs Enhancement Act, which amended the jurisdictional and venue provisions of USERRA as originally enacted. As the Ninth Circuit Court of Appeals has explained:

The legislative history of the 1998 amendments confirms that Congress intended that actions brought by individuals against a state be commenced in state court. The underlying reason for these amendments was that Congress was concerned about the Supreme Court's then-recent decision in Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In Seminole Tribe, the Court held that Congress may abrogate a state's sovereign immunity only when acting pursuant to its powers under § 5 of the Fourteenth Amendment, and not when it is acting pursuant to its Commerce Clause powers. Id. at 59, 72–73, 116 S.Ct. 1114.

* * *

Despite the structure of the 1998 amendments' remedial scheme and its legislative history, [plaintiff] contends that USERRA provides for federal court jurisdiction for an action brought by a private individual against the University. He argues that Congress intended to retain federal court jurisdiction over USERRA claims brought by private individuals against an arm of the State. The Eleventh Amendment, however, bars federal jurisdiction over suits against an unconsenting state by its own citizens. See Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890); accord Seminole Tribe, 517 U.S. at 54, 116 S.Ct. 1114.

Although Congress may abrogate the states' sovereign immunity when “Congress has ‘unequivocally expresse[d] its intent to abrogate the immunity,’ ” and when “Congress has acted ‘pursuant to a valid exercise of power,’ ” Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)); accord Miranda B. v. Kitzhaber, 328 F.3d 1181, 1184–85 (9th Cir.2003), here, Congress has not unequivocally expressed an intent to abrogate the states' sovereign immunity in USERRA.

Townsend v. University of Alaska, 543 F.3d 478, 482–83, 484 (9th Cir.2008); see also McIntosh v. Partridge, 540 F.3d 315, 320 (5th Cir.2008). Thus, insofar as a private individual attempts to assert a claim under USERRA against the “State (as an employer)” or against an “arm of the State,” the Eleventh Amendment bars the suit. Political subdivisions of a state, however, such as counties and municipal corporations, are not shielded, and this is reflected in the statutory definition of a “private employer” suable in district court, which includes “political subdivisions” of the state found at § 4323(i).

In the instant case, the Board acknowledges that it is not the State of Alabama, but contends that it is an “arm of the State” entitled to Eleventh Amendment immunity from plaintiff's USERRA action. To support this argument, the Board asserts that careful analysis of the essential factors necessary for being deemed an “arm of the State” entitled to Eleventh Amendment immunity weighs in favor of such a finding with respect to the Board. Those factors have been defined as follows: “(1) how the state law defines the entity; (2) the degree of state control over the entity; and (3) the entity's fiscal autonomy—i.e., where the entity derives its funds and who is responsible for judgments against the entity.” Stewart v. Baldwin County Bd. of Education, 908 F.2d 1499, 1509 (11th Cir.1990) (citing Harden v. Adams, 760 F.2d 1158, 1163 (11th Cir.1985)); see also Manders v. Lee, 338 F.3d 1304, 1309 (11th Cir.2003) (articulating four factors to determine “arm of the State” status by dividing the Stewart opinion's factor three into two factors: where the entity derives its funds and who is responsible for paying judgments against the entity).

Referring to these factors, the Board offers a litany of statutory citations to show the degree of control the State of Alabama exercises over local school boards through the Alabama Department of Education. Defs.' Br. p. 3. The Board emphasizes, however, that the Alabama Supreme Court has extended “arm of the State” immunity under § 14 of the Alabama Constitution of 1901 to local boards of education. Ex parte Hale County Bd. of Educ., 14 So.3d 844, 848–49 (Ala.2009)(“County boards of education are not agencies of the counties, but local agencies of the state, charged by the legislature with the task of supervising public education within the counties.”). The Board stresses that how the state courts characterize a particular entity is the most important factor, and perhaps the determinative factor, for the federal courts to use in determining “arm of the State” status for an entity. Versiglio v. Bd. of Dental Examiners of Alabama, 686 F.3d 1290, 1292 (11th Cir.2012) (“This court gives great deference to how state courts characterize the entity in question.”).

How the state courts treat an entity is only one part of the first factor of the Stewart and Manders⁴ analysis. Within the first factor the court also weighs how state statutes treat the particular entity. Stewart, 908 F.2d at 1510 (discussing the local board's expenditures authorized by Alabama statute); Manders, 338 F.3d at 1319 (focusing on the dual “historical common law duties” of the sheriff and his “specific statutory duties” in determining the first factor of the “arm of the State” analysis.) Even giving primacy to the first factor, the court is still required to examine the remaining immunity factors, reaching an independent conclusion on each. See Manders, 338 F.3d at 1318–29 (court applies each factor and reaches an immunity conclusion for each, then aggregates all conclusions in reaching final immunity conclusion.) While the pronouncements of the state courts with respect to the status and function of an entity is important, it is not dispositive, as the Board suggests. This is because the Eleventh Circuit has stressed a functional approach to assessing “arm of the State” status. The court of appeals explained in Manders that whether a particular officer or entity is an “arm of the State” must be examined in the context of the particular function being carried out; an entity may be an “arm of the State” when exercising some functions, but not when exercising others.

It 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. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)....