Opinion
Civil Action No. 99-2545
June 19, 2000
ORDER AND REASONS
Plaintiff, Jerry L. Robinett, filed this pro se and in forma pauperis complaint against defendants, Delgado Community College, the Board of Supervisors of the Louisiana Community and Technical College System and the Board of Supervisors of the University of Louisiana System, alleging causes of action under Title IV of the Higher Education Act, 20 U.S.C. § 1701 et seq.; 42 U.S.C. § 1983; and the Fourteenth Amendment to the United States Constitution. Amended Complaint for Permanent Injunction and Damages, Record Doc. No. 16.
Pro se civil rights complaints must be broadly construed, Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994), and I have broadly construed the complaint in this case.
Robinett asserts three claims: (1) Defendants violated the Higher Education Act and its implementing regulations by disqualifying him from receiving federal financial aid, failing to credit him with financial aid funds already received or approved and refusing to allow him to register for classes at Delgado to finish his second associate's degree program; (2) defendants denied him substantive due process by denying his right to federal Pell Grant funds and his right to a public education; and (3) defendants denied him procedural due process by providing an inadequate process to appeal these decisions. He seeks injunctive and monetary relief, and asks the Court to assess civil penalties against defendants pursuant to the Higher Education Act and its implementing regulations.
Defendants moved for summary judgment on all of plaintiffs' claims. They argue that, as state agencies, they enjoy sovereign immunity from suit in federal court under the Eleventh Amendment, and that they are not "persons" for purposes of suit under Section 1983. Record Doc. No. 24, Memorandum in Support of Motion for Summary Judgment. Plaintiff filed a timely opposition memorandum, in which he asserts that the Eleventh Amendment does not bar his claims for injunctive relief and that material issues of disputed fact preclude summary judgment. Record Doc. No. 35.
While the motion for summary judgment was under advisement, Robinett filed a motion for leave to "supplement" his complaint and for sanctions against defendants. Record Doc. No. 36. He seeks to amend his complaint for a third time to add as defendants "other State employees unknown."
Having considered the record, the arguments of the parties and the applicable law, IT IS ORDERED that defendants' motion for summary judgment is GRANTED IN PART AND DENIED IN PART as follows.
ANALYSIS
A. Summary Judgment Standards
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex Corp., 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson, 477 U.S. at 248. Facts that are not material or necessary to the case will not preclude summary judgment. Gibson v. Rich, 44 F.3d 274, 277 n. 7 (5th Cir. 1995). No genuine issue of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim. Id. (citing Celotex Corp., 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex Corp., 477 U.S. at 323.
The Court must consider all evidence in the light most favorable to the nonmoving party. National Ass'n of Gov't Employees, 40 F.3d at 712-13. "Conclusory allegations unsupported by specific facts, however, will not prevent the award of summary judgment; `the plaintiff [can]not rest on his allegations . . . to get to a jury without any "significant probative evidence tending to support the complaint."'" Id. at 713 (quotingAnderson, 477 U.S. at 249).
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof. assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. (quotation omitted) (emphasis in original).
B. Eleventh Amendment Immunity Bars Plaintiff's Claims Under the Higher Education Act
The material facts relevant to the Eleventh Amendment issues raised by defendants' motion for summary judgment are undisputed. It is undisputed that all three defendants are agencies or bodies corporate of the State of Louisiana. See La. Const. art. 8, § 6(a) (Board of Supervisors for the University of Louisiana System is a body corporate); id. art. 8, § 7.1(a) (Board of Supervisors of the Louisiana Community and Technical College System is a body corporate); La. Rev. Stat. §§ 17:3217, 3217.1, 3218, 3351 (listing institutions, including Delgado Community College, under supervision of the Boards of Supervisors and granting corporate authority and powers to the Boards of Supervisors).
As State agencies, defendants generally enjoy sovereign immunity from suit in federal court, pursuant to the Eleventh Amendment to the Constitution. "[T]he Eleventh Amendment confirms the States' role in our federal system as separate sovereigns which may not be sued in the court of another sovereign, i.e. the federal government, or their own courts absent consent or, in certain circumstances, congressional abrogation of sovereign immunity." Pendergrass v. Greater New Orleans Expressway Comm'n, 144 F.3d 342, 343-44 (5th Cir. 1998).
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. For more than a century, the United States Supreme Court has held that the Eleventh Amendment does not provide for federal jurisdiction over suits by citizens of a nonconsenting State against their own State or a State agency or department. Kimel v. Florida Bd. of Regents, 120 S.Ct. 631, 640 (2000); Pendergrass, 144 F.3d at 344.
Sovereign immunity is not absolute, however. First, Congress may abrogate a State's sovereign immunity. Second, Eleventh Amendment immunity extends only to suits for damages and retroactive injunctive relief, and not to suits for prospective injunctive relief. Both of these limitations must be analyzed in the instant case.
Congress has the authority under the Fourteenth Amendment to abrogate the States' sovereign immunity. Kimel, 120 S.Ct. at 644. The Court must examine the particular statute at issue to determine "first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority." Id. at 640 (citing Seminole Tribe v. Florida, 517 U.S. 44, 55 (1996)). If the statute fails to satisfy either prong of this two-pronged test, the Eleventh Amendment applies to bar suit against the States in federal court.
"To determine whether a federal statute properly subjects States to suits by individuals, we apply 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." Id. (quotations omitted). This intent can be either expressed in or implied from the statute.
Robinett fails to carry his burden to show congressional intent in the Higher Education Act to abrogate the States' sovereign immunity. With the exception of a single, district court opinion issued in 1976, which has been heavily and correctly criticized as overly broad and/or illogical by more recent decisions, all of the courts to consider the issue have held that the Higher Education Act does not provide a private right of action to enforce any of its provisions. See. e.g.,Karara v. United States, 176 F.3d 488, 1999 WL 190748, at *2 (10th Cir. Apr. 5, 1999) (unpubl. opin. avail, on Westlaw) (no private right of action for student borrowers under the Higher Education Act); Labickas v. Arkansas State Univ., 78 F.3d 333, 334 (8th Cir. 1996) (same); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (no private right of action for educational institutions to sue loan guarantors). These and the other cases cited infra, and the language, structure and legislative history of the Higher Education Act itself, establish that the statute contains neither an express nor an implied right of action.
De Jesus Chavez v. LTV Aerospace Corp., 412 F. Supp. 4, 7 (N.D. Tex. 1976).
De Jesus Chavez has not even been followed by subsequent cases in the same court. See Sibley v. Diversified Collection Servs. Inc., No. 396-CV-0816. 1998 WL 355492, at *4 n. 2 (N.D. Tex. June 30, 1998).
First, it is clear that the Higher Education Act does not expressly provide for a private cause of action for student borrowers or other participants in federal student loan programs. Parks Sch. of Business, 51 F.3d at 1484; L'ggrke v. Benkula, 966 F.2d 1346, 1348 (10th Cir. 1992);New York Inst. of Dietetics, Inc. v. Great Lakes Higher Educ. Corp., No. 94 Civ. 4858 (LLS), 1995 WL 562189 (S.D.N.Y. Sept. 21, 1995); Jackson v. Culinary Sch. of Wash., 788 F. Supp. 1233, 1256 (D.D.C. 1992), remanded on other grounds, 27 F.3d 573 (D.C. Cir. 1994).
Second, no congressional intent to create a private right of action can be implied from the Higher Education Act's language, structure or legislative history.
In determining whether a private remedy exists under the [Higher Education Act], this court must look to four factors: (1) is the plaintiff a member of the class for whose especial benefit the statute was passed; (2) was there a legislative intent to create or deny a private remedy; (3) is an implied remedy consistent with the purpose of the legislative scheme; and (4) is the cause asserted one that is traditionally relegated to state law. Cort v. Ash, 422 U.S. 66, 78 (1975). The critical inquiry, however, is whether Congress intended to create a private cause of action. Thus, the second and third Cort factors carry more weight in the analysis than do the other factors.Labickas, 78 F.3d at 334 (citing Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 145 (1985); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 24 (1979)); accord Parks Sch. of Bus., 51 F.3d at 1484.
The first Cort factor is satisfied in the instant case. The Higher Education Act was enacted to benefit students by providing them with access to education. Id. (citing 20 U.S.C. § 1070(a), 1071(a)(1));Keams v. Tempe Tech. Inst., Inc., 807 F. Supp. 569, 579 (D. Ariz. 1992),rev'd on other grounds, 39 F.3d 222 (9th Cir. 1994); Jackson, 788 F. Supp. at 1256.
However, the other factors militate against implying a private right of action. "The legislative history behind the [Higher Education Act] is silent on the issue of private rights of action. When a statute expressly provides for particular means of enforcement, we must be chary of reading additional ones into it." Parks Sch. of Bus., 51 F.3d at 1484 (citations omitted). As to claims under the Higher Education, Act by student borrowers against educational institutions, "[t]he [Higher Education Act] specifies that the Secretary of Education has the power to carry out the Act's purposes; the Secretary has promulgated numerous and comprehensive regulations that regulate educational institutions' compliance with the [Higher Education Act]; and the statute and legislative history do not otherwise suggest congressional intent to create a private remedy."Labickas, 78 F.3d at 334 (citing 20 U.S.C. § 1070(b), 1082(a)(2), 1082(h); Parks Sch. of Bus., 51 F.3d at 1485; L'ggrke, 966 F.2d at 1347-48). "The implication of a private cause of action would seriously undercut, rather than complement, the Secretary's enforcement powers."Parks Sch. of Bus., 51 F.3d at 1485 (quotation omitted).
Thus, in several recent cases, the courts have refused to find a private right of action implied in the Higher Education Act for a student borrower against the educational institution, the lender or the loan guarantee agency to remedy alleged violations of the Higher Education Act in the granting or denial of federal financial aid. Karara, 1999 WL 190748, at *2; L'ggrke, 966 F.2d at 1347-48; Waugh v. Connecticut Student Loan Fd., 966 F. Supp. 141, 143 (D. Conn. 1997); Moy v. Adelphi Inst., Inc., 866 F. Supp. 696, 704-05 (E.D.N.Y. 1994); Keams, 807 F. Supp. at 579-80; Hudson v. Academy of Court Reporting, Inc., 746 F. Supp. 718, 721 (S.D. Ohio 1990). If an educational institution violates the Higher Education Act, as Robinett alleges, the Secretary of Education has the authority and procedures to handle such violations. L'ggrke, 966 F.2d at 1347-48 (citing 20 U.S.C. § 1094(c)(2)(a); 34 C.F.R. § 668.84(a), 668.85(a)(1), § 668.86(a)).
Where a statute provides an administrative enforcement mechanism, the presumption is that no private cause of action is intended. Title IV gives extensive enforcement authority to the Secretary indicating that Congress intended this mechanism to be the exclusive means for ensuring compliance with the statutes and regulations. . . . To imply a private right on the part of a student would conflict with the enforcement powers of the Secretary and thus would be inconsistent with the underlying purpose of the statute.Id. at 1348. Therefore, the critical second and third Cort factors weigh heavily against an implied right of action in the Higher Education Act.
As to the fourth factor, Robinett's factual allegations are in the nature of negligence, misrepresentation, breach of contract, conversion, fraud and/or breach of fiduciary duty. Because these types of assertions are traditionally relegated to state law, this Cort factor also weighs against an implied right of action.
Based on the balance of the Cort factors, the plain language of the statute and the persuasive and overwhelming majority of court decisions on this issue, I find no implied private right of action in the Higher Education Act for Robinett's claims against defendants.
Because the Higher Education Act provides no express or implied private right of action, Congress clearly did not abrogate Eleventh Amendment immunity under that statute. Louisiana clearly has not waived its sovereign immunity. "No suit against . . . a state agency . . . shall be instituted in any court other than a Louisiana state court." La. Rev. Stat. § 13:5106(a); see Laxey, 22 F.3d at 623 (affirming summary judgment in favor of defendants, Board of Trnstees for State Colleges and Universities and University of Southwestern Louisiana, because they had not consented to be sued in federal court). Therefore, sovereign immunity bars all of Robinett's claims for relief under the Higher Education Act.
C. Sovereign Immunity Bars Plaintiff's Claims for Retroactive Injunctive and Monetary Relief Under Section 1983
As to plaintiff's Section 1983 claims, it is well established that "[t]he Eleventh Amendment bars claims against a state brought pursuant to 42 U.S.C. § 1983. Section 1983 does not waive the states' sovereign immunity." Aguilar v. Texas Dep't of Crim. Justice, 160 F.3d 1052, 1054 (5th Cir. 1998) (citing Quern v. Jordan, 440 U.S. 332, 338 n. 7 (1979);Farias v. Bexar County Bd. of Trustees, 925 F.2d 866, 875 n. 9 (5th Cir. 1991)); accord Brandley v. Keeshan, 64 F.3d 196, 200 (5th Cir. 1995) (citing Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 99 (1984)); Laxey v. Louisiana Bd. of Trustees, 22 F.3d 621, 623 (5th Cir. 1994). Robinett's Section 1983 claims for retroactive injunctive and monetary relief are therefore barred from suit in this Court. Ganther v. Ingle, 75 F.3d 207, 210 (5th Cir. 1996).
D. Defendants Are Not Persons for Purposes of Section 1983
In addition, Robinett's Section 1983 claims for monetary relief are barred because defendants are not "persons" under that statute. Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983 (emphasis added).
Claims for monetary relief under Section 1983 may be asserted only against "persons" as the statute and case law define that term. The State of Louisiana, state agencies and state officials acting in their official capacities from whom monetary damages are sought are not "persons" for purposes of a Section 1983 civil rights claim. Will v. Michigan Dep't of State Police, 491 U.S. 58, 69-71 n. 10 (1989); Washington Legal Fd. v. Texas Equal Access to Justice Fd., 94 F.3d 996, 1005 n. 52 (5th Cir. 1996), aff'd sub nom. Phillips v. Washington Legal Fd., 524 U.S. 156 (1998); Laxey, 22 F.3d at 623 n. 2. Thus, Robinett's Section 1983 claims for monetary relief against defendants also fail because defendants are not "persons."
E. Sovereign Immunity Does Not Bar Suits for Prospective Injunctive Relief Against Individual State Officials in Their Official Capacity
Contrary to defendants' assertion in their memorandum in support of their motion for summary judgment, Robinett's most recently allowed complaint (filed on February 3, 2000) clearly requests prospective injunctive relief. Record Doc. No. 16, ¶ 6, 17, 18, 19(1). The Eleventh Amendment does not bar suits for prospective injunctive relief against individual state officials in their official capacities.Aguilar, 160 F.3d at 1054 (citing Ex Parte Young, 209 U.S. 123 (1908));Washington Legal Fd., 94 F.3d at 1005; Ganther, 75 F.3d at 210. Thus, the Eleventh Amendment would not preclude Robinett from bringing the instant suit if he sought prospective injunctive relief against state officials in their official capacities.
Therefore, the only claims remaining that are not barred by the Eleventh Amendment are due process claims for prospective injunctive relief under Section 1983 against individual state officials whom plaintiff seeks to add as defendants in his pending, but not yet permitted, amended complaint. Plaintiff appears to assert both substantive and procedural due process claims. As to his substantive due process claim, Robinett appears to assert a constitutionally protected property interest in federal Pell Grant funds and to a public education, which he says defendants have denied him by disqualifying him from receiving such funds. As to his procedural due process claim, he concedes that he was provided with an appeal from Delgado's financial aid decisions, but alleges that the process was inadequate and biased because he was permitted only to appeal in writing and he does not know who made the decision on his appeal.
Plaintiff also alleges that the procedure fails to comply with 34 C.F.R. § 668. 16(e)(5), which requires the educational institution to "[p]rovide specific procedures under which a student may appeal a determination that the student is making satisfactory progress." As stated above, this claim is foreclosed by sovereign immunity and the absence of a private right of action in the Higher Education Act.
The current record is insufficient to address whether plaintiff has any property right in federal financial assistance or any right to procedural due process following the denial of such assistance. Although plaintiff has not yet sued any state officials in their official capacity, he has moved to amend his complaint to name individual defendants. Accordingly, summary judgment on his due process claims is not appropriate at this time.
The current defendants have asserted a qualified immunity defense in their answer and their counsel has advised the Court that any state employees who are subsequently named as defendants will also assert the qualified immunity defense. Therefore, a separate order will be issued pursuant to Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995), so that the qualified immunity defense to plaintiff s due process claims and his motion to amend his complaint can be considered before additional discovery and trial preparation occur.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendants' motion for summary judgment is GRANTED IN PART AND DENIED IN PART. Plaintiff has no viable claim against any existing defendant and all claims against defendants, Delgado Community College, the Board of Supervisors of the Louisiana Community and Technical College System and the Board of Supervisors of the University of Louisiana System, will be DISMISSED WITH PREJUDICE.
However, Robinett has stated claims for violation of his substantive and procedural due process rights and has moved to amend his complaint to name individual state officials as defendants. That motion is under advisement. Accordingly, final judgment will not be entered at this time and the case will proceed pursuant to a scheduling order to be entered separately.