***** EDITOR’S UPDATE *****:

On July 13, 2012, the Eleventh Circuit granted the Board of Dental Examiners of Alabama’s motion for rehearing, based on a subsequent decision of Alabama’s highest court which held that the Board was in fact an “arm of the state.”  As they had in the prior decision, the Eleventh Circuit deferred to the courts of Alabama.  Since a higher court in Alabama had ruled that the Board was an “arm of the state,” the Eleventh Circuit reversed itself (and the court below) and entered judgment on behalf of the Board holding that it was sovereign immune as an “arm of the state” of Alabama.  Thus, the initial Opinion discussed below is no longer good law.

Click Versiglio v. Board of Dental Examiners of Alabama to read the entire substituted Opinion on Petition for Rehearing.

Versiglio v. Board of Dental Examiners of Alabama

This case was before the Eleventh Circuit on the Board’s appeal asserting that the court below erred when it held that it was not subject to Eleventh Amendment immunity from the FLSA as an “arm of the state.”  Rejecting this contention and affirming the decision below, the Eleventh Circuit relied, almost entirely, on the fact that the highest court of Alabama had previously held that the Board was not entitled to Eleventh Amendment immunity.

The Court summarized the issue before it as follows:

“Appellant Board of Dental Examiners of Alabama (the “Board”) appeals the district court’s judgment denying it sovereign immunity protection as an arm of the state of Alabama. Appellee Natalie Versiglio contends that the Board is sufficiently independent from the state of Alabama, that it is not entitled to Eleventh Amendment immunity, and that her claim under the Fair Labor Standards Act should be allowed to continue. The Supreme Court in Alden v. Maine settled the matter of state employees suing under the FLSA, writing, “We hold that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts. We decide as well that the State of Maine has not consented to suits for overtime pay and liquidated damages under the FLSA.” 527 U.S. 706, 712, 119 S.Ct. 2240, 2246 (1999). Thus, the question before this court is whether the Board is an arm of the state. For the reasons stated below, we conclude that at this time it is not and affirm the judgment of the district court.”

Discussing the parties assertions regarding the applicability of the Eleventh Amendment to Defendant the Eleventh Circuit, the court appeared to find Board’s arguments more compelling.  Specifically, the court noted that in creating the Board, the Alabama legislature made specific findings that supported the argument that the Board was an “arm of the state.”  Further, the Eleventh Circuit rejected the Plaintiffs’ arguments that Board’s independence- including the composition of its Board and its discretion to spend its funds- supported the finding that it was not an “arm of the state,” based on prior jurisprudence.  Curiously, the court also questioned the Plaintiffs’ assertion that the State treasury was not implicated by the case before it.  Instead, the court reasoned that- despite the fact that the State does not allocate, administer or collect the funds used by the Board- ultimately the State would likely have to pay any judgment.

Notwithstanding all of the above, the court still concluded that that the Board was not subject to Eleventh Amendment immunity, but relied almost entirely on a decision by Alabama’s highest court in reaching its holding.  The court reasoned:

“Despite the strength of the Board’s claim of sovereign immunity under the Miccosukee test, one factor weighs heavily against it. On April 1, 2011, the Court of Civil Appeals of Alabama released its opinion in Wilkinson v. Board of Dental Examiners of Alabama, 2011 WL 1205669, 2011 Ala. Civ.App. LEXIS 88 (Ala. Civ.App. April 1, 2011). ^FN3 In its opinion, the state appeals court conducted the first substantial analysis by a state court of the Board’s status as a state agency. ^FN4 The Board argued that it was immune from suit in state court pursuant to Article 1, Section 14 of the Alabama Constitution. That section provides that “the State of Alabama shall never be made a defendant in any court of law or equity.” Alabama courts have construed this immunity to extend to arms of the state. Armory Comm’n v. Staudt, 388 So.2d 991, 993 (Ala.1980). The test for entities seeking immunity is much like this court’s test: whether “a lawsuit against a body created by legislative enactment is a suit against the state depends on the character of power delegated to the body, the relation of the body to the state, and the nature of the function performed by the body.” Id. Applying this test, the Court of Civil Appeals examined many of the provisions discussed above, concluding that the Board is not an arm of the state and thus “is not entitled to § 14 immunity.” Wilkinson, 2011 Ala. Civ.App. Lexis 88 at *16, 2011 WL 1205669 at *5.

This court gives great deference to how state courts characterize the entity in question. This practice is in keeping with the ordinary deference granted state courts when they interpret matters of state concern. See Silverberg v. Paine, Webber, Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir.1983) (“A federal court applying state law is bound to adhere to decisions of the state’s intermediate appellate courts absent some persuasive indication that the state’s highest court would decide the issue otherwise.”). Federal courts are often more skeptical of state court decisions involving issues of sovereign immunity, as otherwise “[a] state would have too much self-interest in extending sovereign immunity to as many of its agencies and corporate creations as possible.” Miller–Davis Co. v. Illinois State Toll Highway Auth., 567 F.2d 323, 330 (7th Cir.1977). However, that concern is obviated when, as here, the state court finds that an entity is not an arm of the state. Id. (“Especially when a state supreme court does not extend immunity but, rather, holds that an entity is not to be deemed the state for purposes of sovereign immunity, we think the federal courts must pay careful attention to the state opinion.”).

Finding that the Board is entitled to sovereign immunity would require this court to interpret Alabama law in a way that is diametrically opposed to the findings of the highest state court to consider the issue. Such a ruling would also create the incongruous result of having a “state agency” that is immune from suit under federal law but not under state law. Cf. Alden, 527 U.S. at 793 n.29, 119 S.Ct. at 2285 n.29 (noting in a different context that the Framers of the Eleventh Amendment “would have considered it absurd that States immune in federal court could be subjected to suit in their own courts”). As such, we believe that a holding by this court that the Board is an arm of the state for purposes of sovereign immunity would be inappropriate.

For the aforementioned reasons, we affirm the district court’s finding that the Board is not entitled to sovereign immunity protection as an arm of the state of Alabama.”

Click Versiglio v. Board of Dental Examiners of Alabama to read the entire decision.