Monroe v. Fort Valley State Univ.

93 F.4th 1269

Taquila MONROE, Plaintiff-Appellant, v. FORT VALLEY STATE UNIVERSITY, Defendant,Board of Regents of the University System of Georgia, Defendant-Appellee

No. 21-14409

United States Court of Appeals, Eleventh Circuit

Filed: February 15, 2024

Appeal from the United States District Court for the Middle District of Georgia, D.C. Docket No. 5:21-cv-00089-MTT

Artur Davis, Law Office of Artur Davis, Montgomery, AL, Shannon Liss-Riordan, Lichten & Liss-Riordan, PC, Boston, MA, Jermaine Anthony Walker, Managing Senior Counsel, HKM Employment Attorneys LLP, Atlanta, GA, for Plaintiff-Appellant.

Ross Warren Bergethon, Ryan A. Kolb, Georgia Department of Law, Attorney General's Office, Katherine Stoff, Department of Law - Division 5, Employment and Labor, Atlanta, GA, for Defendant-Appellee.

Before Branch, Brasher, and Ed Carnes, Circuit Judges.

Ed Carnes, Circuit Judge:

This appeal requires us to determine whether Congress abrogated sovereign immunity for lawsuits against States under the anti-retaliation provision of the False Claims Act (FCA), 31 U.S.C. § 3730(h). And whether the Board of Regents of the University System of Georgia is an arm of the State entitled to the same immunity the State would have. Because Congress didn't abrogate sovereign immunity under that provision, and the Board is an arm of the State, the district court correctly granted the Board's motion to dismiss the plaintiff's complaint.

I.

Taquila Monroe was hired in August 2020 to serve as the Program Director for Fort Valley State University's Head Start and Early Head Start department, and she reported to the executive director of that department.¹ About five months after she was hired, Monroe was terminated. She filed a lawsuit against the Board, asserting claims under the Georgia Whistleblower Act, Ga. Code Ann. § 45-1-4, and the FCA's anti-retaliation provision, 31 U.S.C. § 3730(h)(1).²

Monroe's amended complaint (the operative one) alleges that Fort Valley receives millions of dollars annually from the U.S. Department of Health and Human Services to fund Early Head Start services for children up to the age of three and Head Start services for children ages three to five.³ The university's Head Start programs are also "partly supported by matching funds from the State of Georgia." Fort Valley uses those federal and state monies to deliver resources and services to local providers. Those local providers are called "subrecipients," and they run Head Start programs in their communities.

Monroe alleges that she "discovered pervasive, systematic problems in the structure of" Fort Valley's Head Start programs and that her attempts to "implement reforms" were "rebuffed" by her boss, the executive director of the programs. She asserts that Fort Valley misallocates Head Start funds and mismanages the Head Start programs in ways that make them non-compliant with federal standards. Monroe specifically alleges that Fort Valley has been guilty of: overspending on the costs of "developing and administering" Head Start grants; allocating Head Start funds to an employee primarily engaged in unrelated projects; using grant funds to pay down debts; improperly serving as both a grantee of the programs and a subrecipient of their benefits; excluding the Head Start policy council (comprised of parents and community leaders) from program decision-making; disregarding qualification requirements for subrecipients' teachers; and refusing to implement required protocols for monitoring subrecipient performance.

Monroe claims that she was fired because she reported those alleged improprieties to the executive director. Fort Valley sent Monroe a termination letter stating that her actions "were not properly vetted to ensure that the Head Start and Early Head Start programs [were] continuing to operate within the established [Fort Valley] system."

Monroe filed suit under state law and the FCA's anti-retaliation provision, which provides relief to an employee discharged because of efforts to stop the presentment of false claims to the federal government. See 31 U.S.C. § 3730(h). The Board filed a motion to dismiss her complaint. The district court decided that the FCA's anti-retaliation provision permits lawsuits against States. But the court also decided that Congress did not unequivocally abrogate the Eleventh Amendment sovereign immunity of States from suits brought under that provision. Finally, the court decided that because the Board of Regents is an arm of the State, the Eleventh Amendment shields it from liability on Monroe's FCA and Georgia Whistleblower Act claims. We agree.

II.

Whether the Georgia Board of Regents is an entity that can be sued under the anti-retaliation provision of the FCA is a matter of statutory interpretation. Whether the Board has sovereign immunity from Monroe's lawsuit is a jurisdictional matter. The district court ruled on both issues.

We are generally required to address jurisdiction as a threshold issue before reaching the merits of a case. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (rejecting view that courts may decline to address questions of jurisdiction and proceed to more easily resolvable questions of merits); Gardner v. Mutz, 962 F.3d 1329, 1339 (11th Cir. 2020) ("[T]he Supreme Court has expressly condemned the exercise of a so-called ' "hypothetical jurisdiction" that enables a court to resolve contested questions of law when its jurisdiction is in doubt.' ") (quoting Steel Co., 523 U.S. at 101, 118 S.Ct. 1003). But the Supreme Court has said that there are circumstances in which it is "possible, and indeed appropriate, to decide the statutory issue" of whether a party is subject to suit under a statute before deciding the jurisdictional issue of sovereign immunity. Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 780, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). For reasons we will explain, it is unnecessary for us to decide in this case the answer to the first issue, the statutory interpretation one.

The district court decided as a matter of statutory interpretation that the FCA's anti-retaliation provision allows for suit against the Board. The Board has not challenged that decision before us. It didn't raise the issue in its brief. The Board's counsel acknowledged that it could prevail in the appeal by winning on either of the two issues but the clearest way was with the Eleventh Amendment non-abrogation issue. By failing to raise the statutory issue before this Court, the Board has, for purposes of this appeal, "abandoned any argument" that it is not subject to suit under the terms of the anti-retaliation provision of the FCA. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014); see In re Blue Cross Blue Shield Antitrust Litig. MDL 2406, 85 F.4th 1070, 1092 (11th Cir. 2023) ("We will not consider issues that a party fails to brief adequately."); Regions Bank v. Legal Outsource PA, 936 F.3d 1184, 1189 (11th Cir. 2019) ("[The defendants] have failed to argue or cite caselaw [in support of a position . . .], so we consider that issue abandoned."); United States v. Willis, 649 F.3d 1248, 1254 (11th Cir. 2011) ("A party seeking to raise a claim or issue on appeal must plainly and prominently so indicate. . . . Where a party fails to abide by this simple requirement, he has waived his right to have the court consider that argument.") (alteration adopted) (quotation marks omitted); Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) ("Any issue that an appellant wants the Court to address should be specifically and clearly identified in the brief. . . . Otherwise, the issue — even if properly preserved at trial — will be considered abandoned. . . .") (quotation marks omitted).

We do not express or imply any view on whether the FCA's anti-retaliation provision provides a private cause of action against a state agency in the circumstances of this case. We do hold that the Board has forfeited that issue by not raising it before us. We turn to the Eleventh Amendment sovereign immunity issue, which the parties have raised and argued to us.

III.

The Eleventh Amendment provides: "The Judicial power of the United States 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. It "largely shields states from suit in federal courts without their consent, leaving parties with claims against a State to present them, if the State permits, in the State's own tribunals." United States ex rel. Lesinski v. S. Fla. Water Mgmt. Dist., 739 F.3d 598, 601 (11th Cir. 2014) (quotation marks omitted). But Eleventh Amendment immunity doesn't apply, even to unconsenting States, if Congress has abrogated the immunity pursuant to a valid exercise of its power. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).

"To temper Congress' acknowledged powers of abrogation with due concern for the Eleventh Amendment's role as an essential component of our constitutional structure," the Supreme Court has "applied a simple but stringent test: Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute." Dellmuth v. Muth, 491 U.S. 223, 227-28, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) (quotation marks omitted). Because it is "incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides the guarantees of the Eleventh Amendment," Congress must "unequivocally express this intention in the statutory language." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), superseded by statute on other grounds, Rehabilitation Act Amendments of 1986,...