Opinion
Case No. 4:21-cv-247-AW-MAF
2022-01-11
Steven W. HERNANDEZ and David Drwencke, on behalf of themselves and all others similarly situated, Plaintiffs, v. FLORIDA BOARD OF BAR EXAMINERS, et al., Defendants.
Michael Debenedictis, Debenedictis & Debenedictis LLC, Cherry Hill, NJ, for Plaintiffs. James Joseph Dean, Robert Andrew McNeely, Messer Caparello & Self PA, Tallahassee, FL, James Thomas Almon, Florida Board of Bar Examiners, Tallahassee, FL, for Defendants Florida Board of Bar Examiners, Michele A. Gavagni.
Michael Debenedictis, Debenedictis & Debenedictis LLC, Cherry Hill, NJ, for Plaintiffs. James Joseph Dean, Robert Andrew McNeely, Messer Caparello & Self PA, Tallahassee, FL, James Thomas Almon, Florida Board of Bar Examiners, Tallahassee, FL, for Defendants Florida Board of Bar Examiners, Michele A. Gavagni. ORDER GRANTING MOTION TO DISMISS Allen Winsor, United States District Judge
The Florida Bar charges an admission fee, but the amount depends on the applicant's years of experience. The smallest fee is for those who have never before been licensed to practice law. Those previously admitted to a state's bar pay more. The issue in this case is whether that fee structure is constitutional. Plaintiffs—Steven Hernandez and David Drwencke—contend it is not. They seek declaratory, injunctive, and monetary relief. ECF No. 14 (FAC) at 46-47.
Defendants—the Florida Board of Bar Examiners (FBBE) and its executive director—have moved to dismiss. ECF No. 23. They raise multiple jurisdictional or quasi-jurisdictional defenses: standing, ECF No. 23 at 34-36; Eleventh Amendment immunity, id. at 30-34; legislative and quasi-judicial immunity, and qualified immunity, id. at 25-27. They also argue that Plaintiffs have not stated a claim.
The Eleventh Amendment prohibits suits against a state by citizens of another state, see U.S. Const. amend. XI. States can waive Eleventh Amendment immunity, see, e.g., Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 624, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), so it is not 'jurisdictional' in the Article III case-or-controversy sense. Still, it "partakes of the nature of a jurisdictional bar" when the state raises it, Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), so I will consider it as a threshold matter here. Cf. Jacobson v. Fla. Sec'y of State, 974 F.3d 1236, 1256 (2020) (describing the Eleventh Amendment as a "bar to suit" but resolving the case on standing grounds).
After a hearing, and having carefully considered the parties' arguments, I conclude the claims must be dismissed.
I.
The basic facts come from the Amended Complaint. Plaintiffs are both licensed attorneys: Hernandez in New Jersey, FAC at 11 ¶ 14, and Drwencke in Illinois and elsewhere, id. at 9 ¶ 3. They both seek greener pastures in Florida, and they both want licenses to practice here. Id. at 10 ¶¶ 6-8, 12 ¶ 24. The hang up is that Florida requires attorneys previously licensed in another state to pay an "attorney fee" that starts at $1,000 but increases the longer the applicant has been licensed. Id. at 16 ¶¶ 47-48. Drwencke's fee would be $2,000 because he held an Illinois license for between 5 and 10 years. But he has not paid the fee because he has yet to register for Florida's bar exam. Id. at 10 ¶¶ 4-6. (Though the fee apparently has not dissuaded Drwencke from applying to the Florida bar, he contends it was "a factor in his decision to apply." Id. at 10 ¶ 10.) Hernandez has been licensed longer—more than fifteen years—so his fee is $3,000. Unlike Drwencke, he has already paid. Id. at 12 ¶ 26. His Florida bar application is pending. Id. at 12 ¶ 24.
Page numbers refer to ECF pagination.
The FBBE, an agency of the Florida Supreme Court, first promulgated the attorney-fee rule in 1996. Id. at 5 ¶ 8; 22 ¶ 75. The FBBE modeled its fee structure after the ABA's dues system, which also charges applicants on a graduated scale based on length of bar admission. Id. at 23 ¶ 81. The FBBE also contends that attorney fees fund applicants' background checks, and that attorneys with more experience require more extensive and expensive background checks than new attorneys. Id. Plaintiffs allege, however, that the fees are not justified by the need for background checks but instead just subsidize in-state bar applicants. Id. at 24 ¶ 87, 25 ¶ 88.
In Plaintiffs' view, the attorney fee is not just unfair or annoying—it is unconstitutional. Id. at 2-5 ¶¶ 1-5. They sued the FBBE and its executive director Michele Gavagni (in both her personal and official capacities), plus the Florida Supreme Court. Id. at 5-6 ¶¶ 8-10. (The Florida Supreme Court is no longer a party. ECF No. 22.) The heart of their argument is that the FBBE's attorney fee provision discriminates against out-of-state attorneys who want to practice in Florida, unconstitutionally burdening interstate commerce and the right to interstate travel. Id. at 3-4 ¶¶ 3, 4.
II.
A.
I will first address whether Plaintiffs have met their burden of establishing standing, a threshold showing without which they cannot continue. Jacobson v. Fla. Sec'y of State, 974 F.3d 1236, 1245 (11th Cir. 2020). The nature of a plaintiff's burden depends on the stage of litigation, and at the motion-to-dismiss stage, plaintiffs must allege facts that plausibly show standing. See Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir. 2020); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (plaintiff must allege a "plausible" claim for relief). They must allege facts showing "(1) an injury in fact that (2) is fairly traceable to the challenged action of the defendant and (3) is likely to be redressed by a favorable decision." Jacobson, 974 F.3d at 1245. An injury-in-fact must be "actual or imminent, not conjectural or hypothetical." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (cleaned up). Plus, "to have standing to obtain forward-looking relief, a plaintiff must show a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the future." Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1283 (11th Cir. 2001); accord Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013); Malowney v. Fed. Collection Deposit Grp.,193 F.3d 1342, 1347 (11th Cir. 1999) (holding that a declaratory judgment may issue only if the plaintiff "assert[s] a reasonable expectation that the injury [he has] suffered will continue or will be repeated in the future.").
Drwencke lacks standing because he has not alleged an actual or imminent injury. He has not applied to the Florida bar or been charged the attorney fee. FAC at 10 ¶ 6. He alleges a plan to seek bar admission someday, but "[s]uch 'some day' intentions—without any description of concrete plans, or indeed any specification of when the some day will be—do not support a finding of the 'actual or imminent injury' " sufficient to establish standing. Lujan, 504 U.S. at 564, 112 S.Ct. 2130. And Drwencke's allegation that his intention is "not speculative," FAC at 10 ¶ 7, rings as a "legal conclusion couched as a factual assertion," which I need not accept at this stage, Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Absent allegations showing an imminent injury, Drwencke cannot move forward. His claims will be dismissed.
Hernandez lacks standing to seek declaratory or injunctive relief, but for a different reason. He has already paid the attorney fee, FAC at 12 ¶¶ 24, 26, so his financial injury is not merely hypothetical. But to the extent that Hernandez seeks equitable relief, his complaint must allege "future harm, not past harm." Koziara v. City of Casselberry, 392 F.3d 1302, 1306 (11th Cir. 2004). It does not. Hernandez speculates that he may need to pay the attorney fee again if he fails the bar exam, see ECF No. 30 at 5-6, but that is not "a real and immediate threat of future [injury]." Shotz v. Cates, 256 F.3d 1077, 1082 (11th Cir. 2001). That leaves him to pursue only his damages claim. see FAC at 48 (seeking a "refund," which I take to be a request for monetary relief).
Hernandez does have standing as to his damages claim, because his economic harm is traceable to the FBBE and Director Gavagni. According to the complaint, both the FBBE generally and Gavagni in particular are responsible for setting the attorney fee rates and administering their collection. Id. at 13-15, ¶¶ 32-41. And a money judgment would compensate Hernandez for the fee he already paid. See Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1172 (11th Cir. 2014) (explaining that economic harms are "well-established injuries in fact under federal standing jurisprudence").
In sum, Drwencke lacks standing altogether; Hernandez lacks standing for his claims for prospective relief.
B.
The next issue is Eleventh Amendment immunity, which the FBBE and Gavagni (in her official capacity) argue precludes claims for damages. The Eleventh Amendment applies not only to States themselves, but also to "state agencies and other arms of the state." Schopler v. Bliss, 903 F.2d 1373, 1378 (11th Cir. 1990). It also applies to state officials sued in their official capacities, because "a judgment against a public servant in his official capacity imposes liability on the entity that he represents" and is thus equivalent to a judgment against the state itself. Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (marks removed) (quoting Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)).
So the question is whether FBBE is an arm of the state for Eleventh Amendment purposes. It is. Though the Eleventh Circuit has not expressly held that the FBBE is entitled to Eleventh Amendment immunity, it has found that the Florida Supreme Court is. See Uberoi v. Sup. Ct. of Fla., 819 F.3d 1311, 1313-14 (11th Cir. 2016). And the Eleventh Circuit has joined Florida state courts in viewing the FBBE as an "arm of" the Florida Supreme Court. See Ramos v. Tomasino, 701 F. App'x 798, 803 (11th Cir. 2017); accord Mueller v. Fla. Bar, 390 So. 2d 449, 451 (Fla. 4th DCA 1980). That analysis fits well with other Circuits' views on the status of state bar examination boards, see, e.g., Dubuc v. Mich. Bd. of Law Examiners, 342 F.3d 610, 615 (6th Cir. 2003) (Eleventh Amendment immunity for state board of law examiners), and Hernandez offers no persuasive reason to follow a different path here.
In addition, this court has repeatedly found that the Eleventh Amendment protects the FBBE and its board members. See, e.g., Diaz v. Moore, 861 F. Supp. 1041, 1048 n.22 (N.D. Fla. 1994); and Stoddard v. Fla. Bd. of Bar Examiners, 509 F. Supp. 2d 1117, 1123-24 (N.D. Fla. 2006); cf. Hobbs v. Fla. Bd. of Bar Examiners, 2018 WL 5905467 at *6 (N.D. Fla. June 16, 2018) (finding that the FBBE's Eleventh Amendment immunities were coextensive with the Florida Supreme Court's).
Even putting these earlier cases aside, other factors would support Defendants' position. To determine whether a state agency is entitled to Eleventh Amendment immunity, the Eleventh Circuit looks to "(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." Miccosukee Tribe of Indians of Fla. v. Fla. State Athletic Comm'n, 226 F.3d 1226, 1231 (11th Cir. 2000). Here, the Supreme Court of Florida characterizes the FBBE as its "administrative agency . . . created by the court to implement the rules relating to bar admission." Fla. St. Bar Admin. R. 1-13; see also Florida Bd. of Bar Examiners re Groot, 365 So. 2d 164, 165 (Fla. 1978) (describing the FBBE as the Florida Supreme Court's "agent for the admissions process"). Hernandez cites R. 1-13 (although he does not quote it) to argue that the FBBE—as an "establishment" of the Florida Supreme Court—is a distinct entity. ECF No. 30 at 32. But the FBBE's status as an administrative agency of the court clearly weighs in favor of viewing it as an "arm" of the court, almost by definition. And the Complaint alleges that the Florida Supreme Court exercises control over the FBBE by approving its rules—like the attorney-fee provision at issue here. FAC at 5-6, ¶¶ 8, 10. Thus, the first two Miccosukee factors counsel in favor of Eleventh Amendment immunity. See Miccosukee Tribe, 226 F.3d at 1231. Although the FBBE is not funded from general tax measures, that factor is not dispositive here. Its funding is sufficiently connected to its relationship to the State of Florida to bring it under the wings of the state, unlike the "counties or municipalities" that typically count as "independent entities." Id. Finally, a judgment against the FBBE would still impose "liability damages that must be paid out of the public fisc." Jackson v. Ga. Dep't of Transp., 16 F.3d 1573, 1577 (11th Cir. 1994).
Because the Eleventh Amendment bars Hernandez's damages claims against the FBBE and Gavagni in her official capacity, those claims will be dismissed.
Under the Ex Parte Young exception, Gavagni could be subject to suit in her official capacity for some types of equitable relief. 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). But Hernandez cannot receive the equitable remedy of disgorgement, ECF No. 14 at 35, because disgorgement is a "retroactive award" functionally indistinguishable from money damages. Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
C.
All that remain are Hernandez's monetary claims against Gavagni in her personal capacity. Section 1983 permits these suits, but a defendant may still be entitled to qualified immunity if she acted "pursuant to the performance of [her] duties" and "within the scope of [her] authority." Spencer v. Benison, 5 F.4th 1222, 1230 (11th Cir. 2021) (citations omitted). To overcome qualified immunity, Hernandez must show:
(1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291-92 (11th Cir. 2009) (citations omitted). But he cannot do so. He cites no case showing that Florida's attorney fee provision clearly violates the dormant commerce clause or any individual right, even though the fee provision has existed in some form since 1996. See FAC at 22 ¶ 73. And his general allegations about constitutional principles that the attorney fee provision might violate do not help: "clearly established law must be 'particularized' to the facts of the case" and "should not be defined 'at a high level of generality.' " White v. Pauly, 580 U.S. 73, 79, 137 S. Ct. 548, 196 L.Ed.2d 463 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) and Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
This is not to say that Hernandez's claims are meritless. But he has not pleaded facts to show a constitutional violation so obvious that "all but the plainly incompetent or those who knowingly violate the law" would have done other than what Gavagni did. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Therefore, his claims must be dismissed. See Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001) (explaining that a motion to dismiss on the basis of qualified immunity "will be granted if the complaint fails to allege the violation of a clearly established constitutional right" (cleaned up)).
III.
In conclusion, Drwencke does not have standing to bring any of his claims because he has suffered no injury in fact. Hernandez does have standing as to his damages claims, but Defendants are immune from suit as to those claims. Defendants' Motion to Dismiss (ECF No. 23) is GRANTED.
If Plaintiffs move for leave to file an amended complaint, they must do so within 14 days. The Defendants would then have 14 days to respond. Absent a timely motion for leave to amend, a judgment dismissing the case will issue with prejudice as to Plaintiffs' monetary claims against Gavagni in her individual capacity but without prejudice as to all other claims, based on Eleventh Amendment immunity and lack of subject matter jurisdiction.
SO ORDERED on January 11, 2022.