IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION . TAQUILA MONROE, ) ) Plaintiff, } ) v. ) CIVIL ACTION NO. 5:21-CV-89 (MTT) ) FORT VALLEY ) STATE UNIVERSITY, ef ai., ) ) Defendants. ) ed

ORDER Defendants Fort Valley State University (“FVSU"}' and the Board of Regents of the University System of Georgia (“the Board”) move to dismiss Plaintiff Taquila Monroe’s claims for retaliation brought under the False Claims Act (“FCA”) and the Georgia Whistleblower Protection Act (“GWA”). For the reasons discussed below, the defendants’ motion (Doc. 10) is GRANTED. l. BACKGROUND FVSU provides Head Start and Early Head Start (“HS/EHS”) services with the assistance of annual grants from the United States Department of Health and Human

FVSU and other "member institutions” are not “separate or distinct legal entitlies] from the [Board] and, therefore, cannot sue or be sued in [their] own capacity.” Bd. of Regents of the Univ. Sys. of Ga. v. Doe, 278 Ga. App. 878, 630 S.E.2d 85, 87 (2606) (holding that Georgia Tech could not sue or be sued in its own capacity): see also McCafferty v. Med. Coll. of Ga., 249 Ga. 62, 64-65, 287 S.E.2d 171, 173 (1982) (holding that the Medical College of Georgia could not sue or be sued in its own capacity), overruled on other grounds by Self v. City of Aflanta, 259 Ga. 78, 377 S.E.2d 674 (1989): Ranson-Dillard v. Tech. Coll, Sys. of Ga., 2021 WL 2003557, at *2 (M.D. Ga, May 19, 2021). (dismissing Southern Regional Technical College as a party), Regalado v. Ga. State Univ., 2020 WL 5815924, at *3 (N.D. Ga. Sept. 10, 2020) (substituting the Board of Regents for Georgia State University as a defendant); Lille v. Fort Valley Stafe Univ., 2011 WL 3957267, at *1 (M.D. Ga. Sept. 7, 2011) (finding that FVSU was an improper defendant). Monroe concedes this. Accordingly, the Board is the only proper defendant, and FVSU is DISMISSED.

Services. Doc. 5 I] 9-10. FVSU’s HS/EHS program is also “partly snared by matching funds from the state of Georgia.” /d. {| 1. While employed at FVSU, Monroe served as the Program Director for FVSU’s HS/EHS department and reported to the Executive Director of FVSU’s HS/EHS department. /d. ff] 8-13, 15. - Monroe alleges there were “pervasive, systematic problems” in FVSU’s HS/EHS program, to which Monroe proposed solutions that were “consistently rebuffed” by the Executive Director. fd. J 15. On January 15, 2021, white she was “in the process of

installing a more effective monitoring protocol,” Monroe was fired. /d. 9] 34-35. ‘Monroe alleges she was fired because she raised questions about FVSU’s HS/EHS operations and thus, she brings these claims for retaliation under the FCA and GWA. I. STANDARD The Federal Rules of Civil Procedure require that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To avoid dismissal pursuant to Rule12(b)(6), a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Belf Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Aclaim is facially plausible when “the court [can] draw the reasonable inference that the dafendarit is liable for the misconduct alleged.” /d. "Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (internal quotation marks and citations omitted). At the motion fo dismiss stage, “all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the

plaintiff.” FindWhat Inv'r Grp. v. FindWhat.com., 658 F.3d 1282, 1296 (1 ith Cir. 2011) {internal quotation marks and citations omitted). But “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Wiersum V. U.S. Bank, N.A., 785 F.3d 433, 485 (14th Cir. 2015) (ntemel quotation ane and station omitted). The complaint must give the defendant fair notice: of ve the ... claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555 (internal quotation MAG sad etanen omitted). Where there are dispositive issues of law, a court ents disnitss a claim egundless of the alleged facts. Patel v. Specialized Loan Servicing, LLC, 904 F.3d 1314, 1321 (11th Cir. 2018) (citations © omitted}. ill. DISCUSSION A. False Claims Act Retaliation Claim The parties’ briefs, particularly the Board’s, confuse the issues raised by the Board’s motion to dismiss Monroe's FCA retaliation claim. In effect, the Board raises three issues: (1) whether, as a matter of statutory interpretation, only “persons” can be sued for retaliation under the FCA and, if so, whether the Board is “person”: (2) if liability for retaliation under the FCA is not limited to “persons,” whether the Board is entitled to Eleventh Amendment immunity; and (3) whether Monfoe's complaint statesa claim for retaliation under the FCA. The Board conflates the first two issues and Monroe all but ignores the first. That is perhaps understandable—the gap between issues (1) and (2) is narrow. But it is a gap that visu be respected, and the Court addresses the first two issues separately. It is not necessary to address the third.

any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees. An employee may: bring an action. in the appropriate district court of the United States for the relief provided in the subsection. - Pub. L. No. 99-562, 100 Stat 3153 (1986) (emphasis added). Section 3730(h) has been amended several tines—most relevant here in 2009 when Congress expanded the scope of persons liable for retaliation: Currently, § 3730(h) provides: -

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, - harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter. (6310U.8.C.§ 3730(h). : The Board's abrogation argument is perfunctory, and thiat is probably all it needs to be. There is no unmistakably clear intent in § 3730(h) to abrogate Eleventh Amendment immunity. Recognizing that she is hobbled by the absence of even a hint in § 3730(h) that Congress abrogated state sovereign immunity, Monroe turns Sfevens’ person analysis to her advantage. When Congress added an FCA retaliation cause of action against employers in 1986, Monroe argues Congress knew that a qui tam action could only be -

_ asserted against a “person” and it knew that “person” did nat include states. Doc. 13 at 4-5. This, Monroe maintains, requires the Court to apply a more rigorous analysis beyond the mere absence of “magic words, such as an explicit refererice to states being liable,” to determine whether Congress had the “specific intent” fo abrogate the immunity of the states. /d. at 7-8.

Monroe then lays out her legislative history argument.® Id. at 4-5, When Wansness created a FCA retaliation cause of action, “if Congress meant the reach of the whistleblower’s section to be identical to the reach of the substantive enforcement sections, it could have done so seamlessly by substituting persons for ‘employers.”” /d. at 4, Even after Slavens: rather than limiting the exch at retaliation claims tc persons, Congress expanded that reach by deleting the imitation that retaliation claims could be BrOUSHt only agaivevemployers, “making the definition-of parties exposed to liability open-ended.” Id. at 5. Finally, Congress, “could have, but did not, overturn Stevens writing ‘states’ into the text of Section 3729.” /d. at 4-5. This sequence of events, Monrce concludes, establishes that Congress intended to abrogate Eleventh Amendment immunity for retaliation claims against the states. /d. at 8. honrae buttresses her legislative history arguments with policy arguments. /d. at 5-7. “There are multiple reasons Congress HIGH expose state actors to- whistleblowers suits while insulating them from qui tam litigation.” id. at 5. First, she argues that “the damages available in the retaliation clause remain less comprehensive financially burdensome to the state treasury”: therefore, Congress drew a line

“between compensatory relief for workplace retaliation and the lure of a multimillion - dollar judgment that could drain a state entity's resources.” Id. at 5-6. Second, she asserts that “Tif state employee whistleblowers could not sue for retaliation, states would have a free pass to punish them for exposing wrongdoing.” Id. at 6-7.

3 Monroe acknowledges in a footnote that legislative history is “generally not votovent to judicial analysis of whether Congress means a statute fo abrogate sovereign immunity.”. Doc. 13 at 4 n.3 (citing Delimuth v. Muth, 491 U.S. 223, 230 (7989)).

Aline arguments, but they are knocked down by the requirement that abrogating Eleventh Amendment immunity requires evidence of unmistakably clear intent, Kimel, 528 US. at 78. For example, in Kimel, the Supreme Court examined § 21 6(b) of the ADEA, which authorized aationa for BaaKpay ‘quainatany arupleyer fincliding a public agency) in avy Federal or State court of competent jurisdiction.” Id. at 73-74 (quoting 29 U.S.C. § 626(b)). The ADEA defines public ageneyas “the government of a State or political subdivision thereof,’ and ‘any agency of... a State, or a political subdivision of the State.” /d. at 74 (quoting 29 U.S.C, § 203(x)). This “plain language,” the Court held, “clearly demonstrates Congress’ intent to subject the States to suit for money damages.” Id. Simply put, § 3730(h) is devoid of any intent, much less unmistakably clear intent, to abrogate Eleventh Amendment immunity. And while Monroe’s legislative history argument might carry weight in other contexts, it is dead weight here because reliance on legislative history in the absence of unmistakably clear intent is “futile.” Dellmuth, 491 U.S. at 230. Furthermore, Monroe's policy argument that barring retaliation suits against states grants a “free pass to punish [empioyees] for exposing wrongdoing” is generally compelling, but it simply is not relevant to sovereign immunity abrogation snatyats 4 Doc. 13 at 6-7, In sum, the plain text of § 3730(h) does not provide “unmistakably clear” evidence of Congress's intent to allow retaliation suits

4 The few courts that addressed whether § 3730(h) abrogates Eleverith Amendment immunity have all held that it does not. See, e.g., Klaassen, 84 F. Supp. 3d at 1242-45 (finding that the language of § 3730(h) ambiguous as.to whether a state can. be sued for retaliation under the FCA); Bel!, 2010 WL 1856086, at “2-4 (finding that the 2009 amendment which removed the word “employer” from § 3730Q(h) did not equate to unequivocable intent to abrogate the immunity. of the states); Weihua Huang, 2011 WL 6329755, at *6-8 (same), , against the Board. Accordingly, Eleventh Amendment immunity has not been abrogated.

support regional water management) with Nicholl v. Bd. of Regents of Univ. Sys. of Ga., 706 F. App’x 493, 495 (11th Cir. 2017) (finding the Board of Regerits of the University system of Georgia is an “arm of the state” without resorting to Manders analysis). For example, in Manders, the Eleventh Circuit recognized that Eleventh Amendment immunity for Georgia sheriffs can be a close call because, under Georgia law, a sheriff is constitutionally created and accountable only to the State, yet exists to serve a particular county and derives significant funding from that county. See 338 F.3d 1310-12; see also Lake v. Skelton, 871 F.3d 1340, 1344 (11th Cir. 2047) (“Until our decision in Manders ... this Court always treated a claim against a Georgia county sheriff for operating a county jail as a claim against the county.”). Outside of that context, case-by-case analysis is rare because state entities created by the state legislature generally exist to serve only the state. See Spurrier v. Bd. of Tr. of the Univ. of Ala., 2016 WL 4137971, at *4 (ND. Ala. Aug. 4, 2016) (holding it was “without question” that the Board of Trustees of the University of Alabama was an “arm of the state” without applying Manders): Mack v. Bd. of Regents of Univ. Sys. of Ga., 2019 WL 7000035, at *4 (S.D. Ga. Dec. 19, 2019) (applying Manders only after finding the Board of Regents of the University System of Georgia was not Plaintiff's employer but rather Plaintiff was employed by a subsidiary entity controlled and owned by the Board). In other words, the entity claiming Eleventh Amendment immunity must be performing * discrete functions on behaif of both the state and another entity to require a rigorous function-specific analysis. See Williams v. Dist. Bd. of Tr. of Edison Cmty. Coll., Fia., 421 F.3d 1190, 1192-95 (11th Cir. 2005) (applying Manders to determine whether a Florida community college is an “arm of the state’); Haven v. Ba. of Tr, of Three Rivers

44.0

Libr..Sys., 625 F. App’x 929, 934 (11th Cir. 2015) (vacating district court's holding that a regional library was “uncontestably an arm of the state” and remanding with instructions that the court apply Manders to determine whether the library was entitled to Eleventh Amendment immunity), In short, when a state-created entity only serves the state, a Manders analysis is pointless exercise. That is the case here. Monroe does not suggest that the function

we at issue was performed for ar on behalf of some other entity. She just argues that the Board hasn't nove the function was performed for or on behalf of the state. That is not how it works. In effect, Monroe asks the Court to examine the function to determine whether it is a function states typically perform. Neither Manders nor any other case has suggested that Eleventh Amendment immunity turns on sucha determination. lf that were so, nearly every Eleventh Amendment immunity defense would require courts to pass judgment on whether particular activities of state agencies should enjoy the protection of the Eleventh Amendment. But the question is whether the state agency is performing a function as or on behalf of some non-state governmental entity. That is why Manders analysis is frequently necessary when sheriffs are sued, but almost never necessary when the defendant is a state agency that does not also act as a non-state governmental entity.

But Monroe raises Manders and the Court will address it, if for ro other reason than to demonstrate why it is a pointless exercise. Under Manders, whether an agency is an “arm of the state” is a “function-specific” inquiry determined by examining four factors: “(1) how state law defines the entity: (2) what degree of contro! the State maintains over the entity; (3) where the entity derives its funds: and (4) who is responsible for judgments against the entity.” 338 F.3d at 1308-09. Here, each factor supports a finding that the Board is an “arm of the state” and thus entitled to Eleventh Amendment immunity. Definition of the Board Under Georgia Law. The Georgia Constitution and state legislature vested the Board with the power to govern, control, and manage the university system and to establish schools of learning to benefit the State. Ga. Const. art. Vill, § 4, Jl; O.C.G.A.§ 20-3-51: O.C.G.A. § 20-3-31(3). Thus, the Board argues it “nerforms the essential governmental function of providing education to Georgia citizens” and that ends the inquiry. Doc. 15 at 6. On the other hand, Monroe argues the Board must show it was acting under the state’s authority when the Board administered the federally funded HS/EHS program. Doc. 13 at 10, But Monroe is missing the point. The Board does not derive its power to educate Georgia citizens from the federal government, nor does that power come from a county or municipality; rather, this power is exclusively derived from a constitutional mandate and the General Assembly. See Ga. Const. art. VIII, § 4, 7: O.C.G.A. § 20-3-51; O.C.G.A. § 20-3-31(3); see also Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm'rs, 405 F.3d 1298, 1309 (11th Cir. 2005) (observing that Florida sheriffs derive power from both the state and from counties, and they do not act as an “arm of the state” when enforcing county ordinances). be . Monroe's reliance on Lesinski is also misplaced, See Doc. 13 at 10-11. In that case, a Manders analysis was triggered because even though Florida law defined the water district as an “arm of the state” as‘it did with the state’s four other water districts, each individual water district shared characteristics with local municipalities because they served a specific geographic subdivision of the state and collected taxes from the same. See Lesinski, 739 F.3d at 603-04. Here, the Board unquestionably serves the entire State of Georgia, and the fact that it receives federal funding for seme of the programs it administers is simply irrelevant in determining the Board’s status as a state actor.® This factor clearly weighs in favor of immunity. The State’s Degree of Control Over the Board. Second, the degree of control exercised by the state of Georgia weighs unquestionably in favor of immunity. Specifically, the Board is composed of five members from the State at large, appointed by the Governor and confirmed by the Senate, and additional members from each congressional district. Ga. Const. art. Vill, § 4, [| O.C.G.A. § 20-3-21. The Board is also subject to strict oversight by the Governor and required to submit “annual reports of its transactions, together with such information as necessary to show the condition of | university system[]” 0.C.G.A. § 20-3-35. Nonetheless, Monroe argues the Board must “identify that there were meaningful state-prescribed restrictions governing [the Board’s] administration of the HS/EHS grant.” Doc. 13 at 11. In support of this proposition, Monroe directs the Court to {wo cases invoiving agencies that had some state oversight but were also subject to county regulation’ and control. Doc. 13 at 11 (citing Freyre v. Chronister, 910 F.3d 1371, 1383 (11th Cir. 2018)); Lightfoot v. Henry Cnty. Sch. Dist, 771 F.3d 764, 772-75 (11th Cir, 2014)"

‘In Freyre, the Florida county at issue elected the Sheriff and was free to abolish - the office altogether. 910 F.3d at 1383. In Lightfoot, county school board members

Mowalal: IGF funding would be relevant n situations where Congress nas unambiguously © ~~ conditioned the receipt of federal funds on a waiver of immunity because a state cannot continue to accept federal! funds without knowingly waiving its immunity, Garrett v. Univ. of Ala. af Birmingham Bd. of Tr., 344 F.3d 1288, 1293 (11th Cir. 2003). That is not the case here.

were locally elected county residents and thus largely under local control. 771 F.3d at 772. Here, neither of these cases is relevant because the Board is accountable to no other entity other than the General Assembly and the Governor of Georgia. O.C.G.A. § 20-3-35,

Thus, the Board is not required to identify any “meaningful state prescribed restrictions” because the Board is only subject to the control of the State. ©

Where the Board Derives Its Funding. The gist of Monroe's argument as to the third factor appears to be that because the specific function at issue was. federally funded, this factor weighs against a finding of immunity. Doc. 13 at 12. But federal funding has nothing to do with an Eleventh Amendment “arm of the state” analysis. As previously discussed, states are extended immunity, counties and similar municipal corporations are not. Mt. Healthy Cty Sch. Dist. Bd. of Educ., 429 U.S. at 280. Federal sovereign immunity is another matter entirely. F.D.L.C. v. Meyer, 510 U.S. 471, 475 (1994). But more importantly, the entity whose funding is relevant is the Board’s, and the Board's funding is controlled exclusively by the state. Ga. Const. art, 8,§ 4, 7 1(c); O.0:G A. § 20-3-35. Therefore, the third Manders factor clearly favors the Board. Liability and Risk of Judgment. Monroe correctly contends the fourth factor is generally considered the most important in making Eleventh Améndment immunity’: determinations. See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48 (1994). Nevertheless, Monroe is incorrect in her assertion that discovery is required to resolve it. See Doc. 13 at 12.

While the Board may receive funding ome other sources such as the federally funded HS/EHS grant, Monroe certainly does not contend the federal government would

be financially liable for any judgment levied against the Board. See generally Doc. 13 at 12-43, All that is required of the Board is the establishment of the state’s potential responsibility for a monetary judgment, which it has done. Here, the Board is not fiscally autonomous: if is governed and funded by the state of Georgia, Ga. Const. art. 4, 7 1(b); O.C.G.A. § 20-3-35, Because the Board is governed by the state of Georgia, any monetary judgment levied against the Board would be paid from the public treasury. Cf. Lightfoot, 771 F.3d at 777-78 (finding that the fourth Manders factor

disfavored immunity because of the school board's ability to raise its funding). Simply. put, ifthe Board didn’t pay, who would? Accordingly, the fourth factor favors iramunity.

As illustrated, because the Board only serves the State, all four Manders factors clearly support a finding of immunity. The Board is entitled to Eleventh Amendment. immunity as to Monroe's FCA retaliation claim.

B. Eleventh Amendment Immunity Precludes Monroe's GWA Claim Iti well settled that any GWA claim brought against the state is barred by Eleventh Amendment immunity, and Monroe does not contend otherwise. See Doc. 13 at 9-10. Monroe's only argument is that the Board is not an “arm of the state” which, as discussed, fails. Doc. 13 at 70. Accordingly, the Board is entitled to Eleventh Amendment as to Monroe's GWA claim. Brandenburg v. Bd. of Regents of Univ. Sys. . of Ga., 518 F. App'x 628, 631 (11th Cir, 2013) (“The district court also did not errin dismissing the Georgia Whistleblower Act claim ... based on Eleventh Amendment immunity”).

~IV. CONCLUSION ©

For the reasons discussed above, the Board’s motion to dismiss (Doc. 10) is GRANTED, and Monroe’s claims are DISMISSED without prejudice. §O ORDERED, this 22nd day of November, 2021. 3 S/MareT. Treadwell | MARC T. TREADWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

17»