Opinion
Case No. 4:20cv20-MW/MAF
2020-12-03
Jami CLAIRE et al., Plaintiffs, v. FLORIDA DEPARTMENT OF MANAGEMENT SERVICES, et al., Defendants.
Kirsten N. Anderson, Simone M. Chriss, Jodi L. Siegel, Southern Legal Counsel Inc., Gainesville, FL, Jocelyn J. Armand, Pamela E. Flores, Jeffrey M. Hearne, Legal Services of Greater Miami Inc., Miami, FL, Miriam F. Haskell, Community Justice Project, Miami, FL, Eric J. Lindstrom, Egan Lev Lindstrom & Siwica, Gainesville, FL, Anton Marino, Daniel B. Tilley, ACLU Foundation of Florida Inc., Miami, FL, John T. McDonald, Thompson Hine LLP, Atlanta, GA, Jimmy Midyette, Jr., Jacksonville, FL, for Plaintiffs. Joel S. Carter, Miriam R. Coles, Henry Buchanan Hudson, Tallahassee, FL, Terry J. Harmon, Mark K. Logan, Jeffrey D. Slanker, Robert J. Sniffen, Michael P. Spellman, Sniffen & Spellman PA., Tallahassee, FL, for Defendants.
Kirsten N. Anderson, Simone M. Chriss, Jodi L. Siegel, Southern Legal Counsel Inc., Gainesville, FL, Jocelyn J. Armand, Pamela E. Flores, Jeffrey M. Hearne, Legal Services of Greater Miami Inc., Miami, FL, Miriam F. Haskell, Community Justice Project, Miami, FL, Eric J. Lindstrom, Egan Lev Lindstrom & Siwica, Gainesville, FL, Anton Marino, Daniel B. Tilley, ACLU Foundation of Florida Inc., Miami, FL, John T. McDonald, Thompson Hine LLP, Atlanta, GA, Jimmy Midyette, Jr., Jacksonville, FL, for Plaintiffs.
Joel S. Carter, Miriam R. Coles, Henry Buchanan Hudson, Tallahassee, FL, Terry J. Harmon, Mark K. Logan, Jeffrey D. Slanker, Robert J. Sniffen, Michael P. Spellman, Sniffen & Spellman PA., Tallahassee, FL, for Defendants.
ORDER GRANTING MOTIONS TO DISMISS
Mark E. Walker, Chief United States District Judge
This Court has considered, without hearing, the motions to dismiss filed by Defendants University of Florida Board of Trustees, University of Florida Board of Trustee Members, Florida Department of Corrections, Secretary Mark Inch, and Andy Thomas ("Defendant-employers"), as well as Plaintiffs' response in opposition. ECF Nos. 58, 66, & 68. Plaintiffs' amended complaint, ECF No. 34, includes eight claims made against various Defendants. The claims all relate to the Defendants' involvement in providing Plaintiffs, three state employees, with discriminatory health plans that specifically exclude gender-affirmative care. At issue are the claims against Defendant-employers; namely, Counts II-IV (based on Title VII) and Counts VI-VIII (based on the Equal Protection Clause). Defendant-employers argue that all six of these claims must be dismissed as Plaintiffs lack standing to bring them against Defendant-employers, and further that the latter three claims, based on the Equal Protection Clause, are barred by the Eleventh Amendment. As explained below, while accepting Plaintiffs' allegations as true, due to relatively recent binding precedent within the Eleventh Circuit, Defendant-employers are correct on both fronts, and their motions are GRANTED .
In addition to Defendant-employers, there are two other Defendants named in the complaint, Florida Department of Management Services ("DMS") and Jonathan Satter, in his official capacity as Secretary of the Florida DMS. DMS is the named Defendant for Count I and Secretary Satter is the named Defendant for Count V.
I. Standard for a Motion to Dismiss
At the motion to dismiss stage, this Court accepts the allegations in Plaintiff's Amended Complaint as true and construes them in the light most favorable to Plaintiff. See Hunt v. Aimco Props., L.P. , 814 F.3d 1213, 1221 (11th Cir. 2016). "To withstand a motion to dismiss under Rule 12(b)(6), a complaint must include ‘enough facts to state a claim to relief that is plausible on its face.’ " Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A ‘claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Id. (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "Plaintiff's allegations must amount to ‘more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.’ " Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
II. Standing for Counts II-IV and VI-VIII
Common to all of Plaintiffs' claims is the threshold constitutional requirement that Plaintiffs have standing to proceed. Plaintiffs must plead sufficient facts to demonstrate that i) they suffered an injury in fact that is ii) traceable to Defendants and iii) is likely to be redressed by a favorable ruling. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). While Plaintiffs have alleged injuries, their injuries found in Counts II-IV and VI-VIII are not fairly traceable to Defendant-employers under recent, binding precedent. Because of this, Plaintiffs lack standing to bring Counts II-IV and VI-VIII against Defendant-employers.
As Defendant-employers point out, Florida law makes DMS solely responsible for selecting and defining the contours of state health plan benefits. § 110.123(3)(c), Fla. Stat. (2019) (stating DMS "shall be responsible for all aspects of the purchase of health care for state employees under the state group health insurance plan or plans ..."); § 110.123(5)(a), Fla. Stat. (2019) (stating DMS shall, with prior approval by the Legislature, "[d]etermine the benefits to be provided and the contributions to be required for the state group insurance program").
Plaintiffs allege that DMS issued an Invitation to Negotiate that solicited private health maintenance organizations to offer contracts to administer state health plans, and that the Invitation specifically and categorically excluded "gender reassignment or modification services and supplies." See ECF No. 34 ¶¶ 48-63. This "State Plan Exclusion" is why "[t]ransgender individuals covered by State plans do not receive health insurance coverage for gender-affirming care, although it is medically necessary ...." Id. ¶ 56. This context, both statutory and relating to DMS's actions, is critical in determining whether Plaintiffs' injuries, stemming from discriminatory state health plans, are fairly traceable to Defendant-employers as opposed to solely Defendant DMS.
Plaintiffs and Defendant-employers cite to cases that, while related to the current issue, are easily distinguished. Plaintiffs reference Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris , 463 U.S. 1073, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983), where the concurrence states that "employers are ultimately responsible for the ‘compensation, terms, conditions, [and] privileges of employment’ provided to employees ..." Norris , 463 U.S. at 1089, 103 S.Ct. 3492 (Marshall, J., concurring). Defendant-employers argue that Norris is factually distinct because the state agency in question there, the governing committee, was more involved in selecting the discriminatory state benefits plan than Defendant-employers were here. ECF No. 66 at 11-12. However, that does not defeat the analogy, as the governing committee there would be analogous to Defendant DMS here. But Defendant-employers are correct to point out that in Norris the state agency employers are not included as defendants at all, suggesting that the line about employer liability is dicta. Accordingly, Norris does not control here.
Defendant-employers search for support in two Eleventh Circuit cases that are too easily distinguished from this matter to be either persuasive or dispositive. In Hollywood Mobile Estates Ltd. v. Seminole Tribe of Florida , the plaintiff "failed to allege that its injury was fairly traceable to the [defendant]" and instead "described some responsibilities of [defendant's] office, but failed to allege an action of the [defendant] that had caused [plaintiff] any injury." 641 F.3d 1259, 1265-66 (11th Cir. 2011). But here, Plaintiffs specifically allege that Defendant-employers have caused them an injury by providing to them, due to their employment, facially discriminatory health plans. ECF No. 34 ¶¶ 230-31, 235-36, 240-41. Defendant-employers also cite to Doe v. Pryor , where the sole defendant, then-Alabama Attorney General Bill Pryor, was entirely uninvolved with the source of the plaintiffs' alleged injuries (the actions of a state court), and there was no allegation of an actual connection otherwise. 344 F.3d 1282, 1285-86 (11th Cir. 2003). Here, the Plaintiffs allege a much greater connection—Defendant-employers provide to Plaintiffs discriminatory health coverage in connection with their employment. Because there is an actual alleged connection, this matter is not analogous to Doe v. Pryor , and neither that case nor Hollywood Mobile Estates controls here.
But Defendant-employers cite two more Eleventh Circuit cases that control the matter at hand. In Swann v. Secretary, Georgia , the Eleventh Circuit explained that Lujan stood for the proposition that "an injury is not fairly traceable to the actions of a defendant if caused by the ‘independent action of some third party not before the court.’ " 668 F.3d 1285, 1288 (11th Cir. 2012). Swann is persuasive. It was DMS's independent actions that caused the injuries. Unlike in Swann , however, the third party is before this Court, as DMS is a defendant.
It is in Jacobson that Defendant-employers find Eleventh Circuit precedent that controls this Court's determination of this matter. Jacobson v. Fla. Sec'y of State , 974 F.3d 1236 (11th Cir. 2020). Here, as in Jacobson , rather than Defendant-employers, "Florida law expressly gives a different, independent official control over" the conduct at issue, namely DMS. Id. at 1254. As explained supra , Florida law gives DMS sole responsibility for determining the benefits of state health plans. §§ 110.123(3)(c), 110.123(5)(a), Fla. Stat. (2019). Plaintiffs allege that it was DMS that took the action that caused Plaintiffs to be provided discriminatory health plans through conducting the "State Plan Exclusion." ECF No. 34 ¶¶ 48-63.
Plaintiffs argue that Jacobson is distinguishable, because in that case the Florida Secretary of State "could not have contributed to the harm about which the voters and organizational plaintiffs complained," whereas here, both DMS and Defendant-employers "share responsibility" and "all of the relevant parties are before this Court." ECF No. 68 at 14 n.7. This is at most a distinction without a difference. Per the Eleventh Circuit, when a state law makes one state official responsible for the challenged action, plaintiffs lack standing to sue another, independent state official for that action. Jacobson , 974 F.3d at 1254. Whether there is a general responsibility of employers for the discriminatory nature of the employment benefits they provide as referenced in Norris , 463 U.S. at 1089, 103 S.Ct. 3492, within the Eleventh Circuit, Jacobson stands as more specific, controlling precedent binding this Court. As Florida law expressly gives DMS official control over state health plans, official control that extends to the alleged conduct at issue here originating with the State Plan Exclusion, and as DMS exists independent from the Defendant-employers, Jacobson requires this Court to determine that Plaintiffs' injuries are not fairly traceable to Defendant-employers.
Plaintiffs' alleged injuries found in Counts II-IV and VI-VIII are not fairly traceable to Defendant-employers. Therefore, Plaintiffs lack standing to bring these claims. Lujan , 504 U.S. at 560-61, 112 S.Ct. 2130. Because these injuries are not fairly traceable to Defendant-employers, this Court need not determine whether Plaintiffs meet the third requirement for standing under Lujan , the likelihood of redressability. Id. at 561, 112 S.Ct. 2130.
III. The Eleventh Amendment (Counts VI-VIII)
In addition to Plaintiffs' lack of standing to bring certain counts, Plaintiffs are also barred from bringing Counts VI-VIII by the Eleventh Amendment. Counts VI-VIII are brought pursuant to 42 U.S.C. § 1983, asserting violations of the Fourteenth Amendment's Equal Protection Clause in the form of sex discrimination, specifically discrimination against transgender individuals due to their gender non-conformity. See ECF No. 34 ¶¶ 244-61. As with Counts II-IV, Counts VI-VIII concern the health care plans that Defendant-employers provided to Plaintiffs, as state employees, which specifically exclude coverage for gender-affirmative care. However, unlike Counts II-IV, Counts VI-VIII do not fall within an exception to state sovereign immunity. See U.S. Const. amend. XI.
Counts II-IV are brought pursuant to Title VII and are not barred by the Eleventh Amendment. See Allen v. Ala. State Bd. of Educ. , 816 F.2d 575, 577 (11th Cir. 1987).
To start, "a state may not be sued in federal court unless it waives its sovereign immunity or its immunity is abrogated by an act of Congress under section 5 of the Fourteenth Amendment." Grizzle v. Kemp , 634 F.3d 1314, 1319 (11th Cir. 2011). Neither of these exceptions apply to this case—the State of Florida has not waived its immunity to suits under § 1983, see Gamble v. Fla. Dep't of Health & Rehab. Servs. , 779 F.2d 1509, 1513-20 (11th Cir. 1986), and Congress did not abrogate state sovereign immunity through § 1983. See Will v. Mich. Dep't of State Police , 491 U.S. 58, 68-71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).
The third way a state may be sued in federal court is the "legal fiction" created by the United States Supreme Court in Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), where "a suit alleging a violation of the federal constitution against a state official in his official capacity for injunctive relief on a prospective basis is not a suit against the state, and, accordingly, does not violate the Eleventh Amendment." Osterback v. Scott , 782 F. App'x 856, 858 (11th Cir. 2019) (quoting Grizzle , 634 F.3d at 1319 ). This legal fiction is itself limited to only certain potential defendants as "a plaintiff may not challenge a state law by choosing whichever state official appears most convenient and haling them into federal court under the aegis of 42 U.S.C. § 1983." Support Working Animals, Inc. v. DeSantis , 457 F. Supp. 3d 1193, 1208 (N.D. Fla. 2020).
Plaintiffs argue that to qualify under the Ex parte Young exception to the Eleventh Amendment, a state officer need only " ‘have some connection’ with the unconstitutional act or conduct complained of." Luckey v. Harris , 860 F.2d 1012 (11th Cir. 1988) (quoting Ex parte Young , 209 U.S. at 157, 28 S.Ct. 441 ). But recent Eleventh Circuit precedent makes it clear that for a case to proceed under Ex parte Young , a plaintiff must sue a state officer that enforces the statute in question. "Under Ex parte Young , a litigant must bring his case ‘against the state official or agency responsible for enforcing the allegedly unconstitutional scheme.’ " Osterback , 782 F. App'x at 858-59 (quoting ACLU v. Fla. Bar , 999 F.2d 1486, 1490 (11th Cir. 1993) ). A defendant "must, at a minimum, have some connection with the enforcement of the provision at issue." Socialist Workers Party v. Leahy , 145 F.3d 1240, 1248 (11th Cir. 1998). "[U]nless the state officer has some responsibility to enforce the statute or provision at issue, the ‘fiction’ of Ex parte Young cannot operate." Summit Med. Assocs., P.C. v. Pryor , 180 F.3d 1326, 1341 (11th Cir. 1999). "Where the named defendant lacks any responsibility to enforce the statute at issue, ‘the state is, in fact, the real party in interest,’ and the suit remains prohibited by the Eleventh Amendment." Osterback , 782 F. App'x at 859 (quoting Summit Med. Assocs. , 180 F.3d at 1341 ).
Under the standard referenced in Luckey , Defendant-employers may be appropriate state official defendants under Ex parte Young. Luckey , 860 F.2d at 1012. Defendant-employers certainly have some connection to the health plans they offer to their employees. Defendant-employers (a) process employee applications to enroll, (b) verify the employee's information, (c) certify the employee's eligibility, (d) track employee status changes, (e) process employee applications for changes in coverage, (f) collect payments from employees, (g) contribute financially to employees' membership, and (h) make payroll deductions. ECF No. 68 at 12-13. But as the Eleventh Circuit has made clear, a defendant must enforce (or administer, see Curling v. Sec'y of Georgia , 761 F. App'x 927, 932 n.3 (11th Cir. 2019) ) the challenged state statute or provision for the Ex parte Young fiction to apply. And despite being involved with this complained-of discriminatory health plan, Defendant-employers do not enforce or administer it. That role is specifically and solely reserved for Defendant DMS by statute, see § 110.123(3)(c) Fla. Stat. (2019), which has not moved to dismiss the claims against it.
Counts VI-VIII assert violations of the Fourteenth Amendment's Equal Protection Clause and are based on 42 U.S.C. § 1983, but do not fit within any established exception to state sovereign immunity. As such, they are barred by the Eleventh Amendment.
Conclusion
While accepting Plaintiffs' allegations as true, see supra Part I, under the standard set in Jacobson , Counts II-IV and VI-VIII allege injuries that are not fairly traceable to the actions of the Defendant-employers, as they originate from the actions by an independent state agency, DMS, that Florida law has given control over state health plans. 974 F.3d at 1254. Additionally, Counts VI-VIII are barred by the Eleventh Amendment. Accordingly, Defendant-employers' motions to dismiss, ECF Nos. 58 & 66, are GRANTED . Accordingly, Counts II-IV and VI-VIII are hereby DISMISSED . The remaining counts remain pending and thus the file shall remain open.