ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS IN PART AND GRANTING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION IN PART
Plaintiff, B.K., a minor, through Greg Kroupa, her father and guardian ad litem, brought suit against defendants, 4-H, Peter Nielson, Rod Geppert, John Does, and Mary Does
BACKGROUND FACTS
The pertinent facts to this order are as follows:
Greg Kroupa and his wife have four children, all of whom have participated or currently participate in 4-H. Tr. 9:14-15.
B.K. has been involved with 4-H since she was eight years old. Tr. 43:19-20. She used to be involved with sports, but she had to choose between sports and 4-H. Tr. 43:24-44:5. B.K. testified that she “made the choice to do 4-H, because that’s what meant the most to me.” Tr. 44:4-5. B.K. is also involved with FFA (Future Farmers of America), FCCLA (Future Career and Community Leaders of America), and FBLA (Future Business Leaders of America). Tr. 44:8-16. The school provides excused absences for 4-H events and congratulates students who do well at 4-H events, but 4-H is not a school-run program. Tr. 17-24. B.K. hopes to take over
Winning a livestock competition sometimes includes a monetary award. For example, a Sale of Champions award can be substantial, such as the $110,000 award that one of Greg’s other daughters won at the Sale of Champions in Denver. Tr. 26:24-27:3. In approximately 2009, B.K. won $22,000 at the NAILE Louisville Livestock Show for a reserve champion steer, and she put the $22,000 into her college fund. Tr. 46:7-13. The South Dakota State Fair is a terminal event, meaning that after the animal is shown, it must be sold for slaughter; it may not be used for breeding purposes. Tr. 38:11-18. The total award at the South Dakota State Fair for a champion animal is the value of the carcass and a $500 cash award. Tr. 26:13-27:3; Tr. 28:11-20.
The South Dakota State Fair took place from September 1 through September 6, 2011, and B.K. participated in the swine event. Tr. 11:11-13:18. One of the pigs that B.K. showed was named Moe, a crossbreed belted barrow. Tr. 13:18-14:25.
The family bought Moe from Aaron Cooper, who trades in show pig prospects, at a mutual acquaintance’s farm in Nebraska. Tr. 39:9-40:6. Neither B.K. nor Greg maintained records of Moe’s sale. Tr. 40:15-41:6. B.K. trained Moe to drive by giving him marshmallows as a treat if he successfully completed the exercise. Tr. 13:20-14:4; Tr. 45:21-24; Tr. 55:22-56:13 (“[Y]ou use the term ‘driving,’ because when you hit him on his jowl, he will move whichever direction you put him in.”). Moe received reserve grand honors for the entire 4-H division, and he was the champion market barrow at the FFA show at the fair’s conclusion. Tr. 14:9-13.
After the fair, B.K. received e-mails, text messages, and Facebook messages from 4-H members stating that B.K. did not care for Moe, she was a cheater, a liar, and a hypocrite, and she was not a good 4-H leader. Tr. 17:25-18:1; Tr. 47:12-21. B.K. found these messages to be hurtful, and she eventually deleted her Facebook account due to the hurtful messages. Tr. 48:2-5. B.K. told her parents about the comments. Tr. 48:12-19.
Greg called Geppert about the harassment. Tr. 18:17-24. Geppert told Greg that he would speak with Nielson and get back to Greg. Tr. 19:6-9. Greg had a phone call with Geppert, and possibly also Nielson, regarding the situation. Tr. 19:10-21:1. Greg testified that the family did not have any other contact with either Geppert or Nielson until the family received a letter dated October 3, 2011, from Nielson. Exhibit 2; Docket 25-1. The letter stated that B.K. was banned from 4-H:
This letter is to inform you that you will no longer be allowed to participate in South Dakota 4-H exhibition programs. When you enrolled in the South Dakota 4-H program, you and your parent/ guardian signed the South Dakota 4-H Code of Conduct Policy and Procedures document agreeing to certain behaviors at all 4-H events and activities (4-H821). The code notified you that those who have been found to have violated the code of ethics “will forfeit premiums and awards and may be prohibited from future exhibitions.” The code also required that you as an exhibitor “... affirm that ... [you] ... have owned and/or cared for ... your ... project animal.... ” It also goes on to say that, “Misrepresentations of ownership, age, identification numbers or facts relating thereto is prohibited.” After being shown pictures on September 9, 2011, your father, Mr. Greg Kroupa, admitted to Mr. Rod Geppert and then, to Mr. Peter Nielson that you have not owned or cared for your recent swine entry for the project season. He also admitted*810 that your swine entry had been submitted and competed in this year’s Missouri State Fair. The South Dakota 4-H Livestock Ethics Committee met on September 20, 2011 and concluded that you misrepresented the ownership of this animal and violated the code of ethics. Based on the events surrounding the misrepresentation of ownership of your Reserve Champion Over-all 4-H Market Swine entry, the State 4-H Office has permanently removed you from the South Dakota 4-H exhibition program and any future eligibility or participation in such programs. In addition, you are ineligible to receive any awards of premium monies from the 4-H Swine Project or 4-H Beef Project areas of the 2011 South Dakota State Fair. The South Dakota 4-H program takes the Behavioral Expectations and Code of Conduct outlined in 4-H821 very seriously and does not take this action lightly-
Exhibit 2; Docket 25-1.
In an affidavit, Nielson stated he, along with Geppert, investigated whether B.K. had violated 4-H’s ethics. Docket 25 ¶ 4. Nielson maintains that when he “confronted Greg Kroupa, [Greg] admitted the swine had been shown in the Missouri State Fair and that B.K. had not owned or cared for B.K’s recent swine entry for the project season[.]” Docket 25 ¶ 5.
During the hearing, Greg and B.K. maintained that B.K. cared for Moe, and Greg contended that he did not tell Nielson and Geppert otherwise. Tr. 23:11-24:13; Tr. 50:7-15; Tr. 45:16-20. Greg further asserted that Moe did not compete in the Missouri State Fair. Tr. 24:5-8.
Neither B.K. nor Greg received notification that the Livestock Ethics Committee was going to meet on September 20, 2011. Tr. 24:15-18; Tr. 50:19-51:2. B.K. never received the opportunity to appear before the Ethics Committee, but Greg received a text message from Geppert stating that the matter “was under an Advisory Committee hands[.]” Tr. 24:19-23. After the Ethics Committee made its decision, Greg met with Nielson to determine if a compromise could be reached, and Nielson informed him that the decision was final. Tr. 25:23-26:7. Nielson did not identify the Ethics Committee’s members for Greg. Tr. 26:6-12. B.K. has never met Nielson. Tr. 51:9-15.
Dawn Cable is one of B.K’s 4-H leaders for Brule County. Tr. 58:1-22. Geppert sent Cable a text message stating that B.K. had been banned from shows. Tr. 59:6-60:1. Geppert told Cable to contact Nielson with questions, but she never did. Tr. 59:25-60:3. In her 27 years of experience with 4-H, Cable had never heard of a student being banned from showing animals. Tr. 61:3-5.
While B.K. is banned from showing her animals and participating in events, she is still considered to be a member of 4-H. Tr. 49:13-22. B.K. is also a member of FFA and may attend shows with FFA, but some major shows will not let her show her animals because she is banned from 4-H. Tr. 53:22-54:12 (“[I]f you have been banned from 4-H, even if you are in FFA, you still cannot exhibit.”).
DISCUSSION
I. Motion to Dismiss
A. Standard of Review
The local rules require a party to specify “the Federal Rule of Civil Procedure on the basis of which the motion is made.” D.S.D. LR 7.1B. In their motion, defendants move to dismiss under Rule 12 but do not specify under which provision of Rule 12 their motion is made. During oral argument, the court asked defendants if they were moving under Rule 12(b)(1). Tr. 99:1-3. Defendants stated that they were making a facial and factual motion under Rule 12(b)(1). Tr. 99:5-19.
the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction— its very power to hear the ease — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to the plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.
Id. at 730 (quotation omitted). In determining a Rule 12(b)(1) motion, the court may look to evidence outside the pleadings. Id. Reviewing outside evidence under Rule 12(b)(1) does not convert the motion into a Rule 56(c) summary judgment motion like reviewing outside evidence does in the context of a Rule 12(b)(6) motion to dismiss or a Rule 12(c) motion for judgment on the pleadings. Deuser v. Vecera,
B. Discussion
Defendants move to dismiss B.K.’s claims against 4-H pursuant to Federal Rule of Civil Procedure 17(b)(3) because 4-H does not have the capacity to sue and be sued. Defendants also move to dismiss B.K’s claims against Nielson and Geppert in their official capacities under the sovereign immunity doctrine.
1. Motion to Dismiss 4-H
Federal Rule of Civil Procedure 17(b) governs whether an entity has the power to sue and be sued. 4-H is not an individual or a corporation, so Rules 17(b)(1) and (2) do not apply. Instead, Rule 17(b)(3), which covers “all other parties,” controls. Rule 17(b)(3) provides that “[cjapacity to sue or be sued is determined ... by the law of the state where the court is located[.]”
The parties first dispute whether 4-H is a federal or state program. B.K. contends that 4-H is “a federal program run through the State’s land grant university.” Docket 16 at 1.
In 1862, Congress passed the Morrill Land-Grant Act of 1862. 7 U.S.C. §§ 301-309. In 1890, Congress passed the Morrill Act of 1890, which is also known as the Agricultural College Act of 1890. 7 U.S.C. §§ 321-329. Congress granted “an amount of public land” to the states to be used for land grant colleges. 7 U.S.C. § 301. South Dakota agreed “to all the provisions of and the “terms and conditions” associated with the land grant act. SDCL 13-54-8.” South Dakota designated SDSU as its “land grant” college. SDCL 13-54-1.
In the Smith-Lever Act of 1914, Congress provided that the state land colleges should be engaged in “[c]ooperative agricultural extension work,” including educating the public on agriculture and home economics. 7 U.S.C. § 342. “Agricultural sciences” includes 4-H clubs. 7 U.S.C. § 3103(9)(L). Congress provided that the Secretary of Agriculture and the state’s land-grant, agricultural college should mutually agree upon how the program should be run. 7 U.S.C. § 342. Congress also provided a funding scheme for the extension program, which each state must match. See generally 7 U.S.C. § 343 (providing the funding scheme for the extension programs).
The South Dakota legislature has stated that SDSU, through the Board of Regents, will oversee the 4-H program for South Dakota:
The provisions of an act of Congress entitled, “An Act to establish agricultural extension departments in connection with agricultural colleges in the several states receiving the benefits of an act of Congress,” [7 U.S.C. § 341] having been accepted by this state, the Board of Regents is authorized and directed to maintain at South Dakota State University an extension department for the purposes of giving instruction and demonstration in agriculture and home economics to persons not attending such university.
SDCL 13-54-1. The South Dakota legislature has further stated that “[i]t shall be the duty of the Board of Regents of Education to organize and conduct agricultural extension work as provided by said act of Congress in connection with other agricultural extension work carried on by the South Dakota State University.” SDCL 13-54-9.
More recently, the South Dakota Attorney General reiterated that “[t]he South Dakota Cooperative Extension Services operates under the direction of the South Dakota State University.” Hearing Ex. 4. Re: Federal Law Implications of Budget Cuts to the South Dakota Cooperative Extension Service, S.D. Atty’s Gen. Op. No. 11-03 (June 17, 2011),
Because 4-H is a state entity, South Dakota law determines whether 4-H can sue or be sued. Fed.R.Civ.P. 17(b)(3). There is no South Dakota law stating whether 4-H can sue or be sued. When the state statute is silent on whether a state entity can sue or be sued,
2. Motion to Dismiss Nielson and Geppert
Defendants contend that sovereign immunity bars B.K.’s claims against Nielson and Geppert in their official capacities. B.K. responds that “Nielson and Geppert are not state employees for the purposes of 42 U.S.C. § 1983.” Docket 16 at 3.
The Eleventh Amendment provides that “[t]he 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
The Eighth Circuit and the South Dakota Supreme Court have held that the Board of Regents is a political subdivision of the state and, as such, is entitled to sovereign immunity, meaning that it cannot be sued under § 1983. See Prostrollo v. Univ. of S.D.,
Geppert’s W-2 tax forms state that “South Dakota State University” is his employer. See Docket 30, 30-1. Nielson’s W-2 forms were not submitted, but B.K’s attorney acknowledged that Nielson was most likely a state employee:
THE COURT: What about Mr. Nielson? Isn’t he a state employee?
MR. PEKAS: Mr. Nielson, without any discovery being done in this particular case, Your Honor, I would have to, with the affidavit that was submitted, I would believe that he is a state employee.
Docket 32; Tr. 81:19-23. The referenced affidavit is a letter sent by Nielson on cooperative extension letterhead.
The court will next examine whether B.K. can obtain prospective injunctive relief against Nielson and Geppert in their official capacities. In her complaint, B.K. seeks injunctive relief “barring the Defendants from keeping her from full participation in 4-H in good standing.” Docket 1 ¶ 42; see also Docket 18 at 1 (moving for an injunction to enjoin “Defendants to reinstate [B.K.] and to refrain from interfering with ... B.K’s participation in any 4-H activities.”).
II. Preliminary Injunction
B.K.’s remaining claims are her claims for injunctive relief against Nielson and Geppert in their official and individual capacities and her claims for monetary damages against Nielson and Geppert in their individual capacities.
“A preliminary injunction is an extraordinary remedy, and the burden of establishing the propriety of an injunction is on the movant.” Watkins Inc. v. Lewis,
A. Success on the Merits
Probability of the success on the merits is 'a critical factor in determining whether a court should issue a preliminary injunction. Lankford v. Sherman,
Section 1983 provides a civil cause of action against any person who, under color of state law, causes a deprivation of rights, privileges, or immunities secured by the Constitution and laws of the United States. 42 U.S.C. § 1983; McRaven v. Sanders,
B.K. asserts a claim for injunctive relief against Nielson and Geppert in their individual and official capacities. The court will analyze the official capacity claims because the relief that B.K. seeks on her procedural due process claim, the ability to continue participating in 4-H, would be provided in Nielson’s and Geppert’s official, not individual, capacities.
The Fourteenth Amendment protects'against a state depriving an individual of her liberty or property interest without due process of law. Bd. of Regents of State Colls, v. Roth,
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vendicate [sic] those claims.
Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions , are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
Id. at 577,
During the hearing, B.K’s attorney argued that “the administrative rules in the State of South Dakota would govern the process involved with whether or not you are going to take away a person’s abilities to access Federal benefits.” Docket 32; Tr. 89:3-7. B.K.’s attorney also argued that the United States Department of Agriculture or federal Administrative Procedures Act (APA) would provide the right under the due process analysis. Docket 32; Tr. 89:3-90:15. The court allowed B.K. to brief the issue of whether any provision in the APA applies.
In her brief, B.K. argues that the APA applies and must be followed before she can be expelled “from the federal program.” Docket 31 at 2; see also Docket 32; Tr. 80:8-11 (“I believe this is a Federal program, as the testimony indicated today. That people have a right and privileges under Federal law.”). But 4-H is an arm of the state. B.K. cites no precedent
South Dakota has statutory “Administrative Procedure and Rules,” SDCL 1-26 (SDAPA), which provides for notice and a hearing in certain circumstances: “In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.” SDCL 1-26-16. A “contested case”
a proceeding, including rate-making and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing but the term does not include the proceedings relating to rule making other than rate-making, proceedings related to inmate disciplinary matters as defined in § 1-15-20, or student academic or disciplinary proceedings under the jurisdiction of the Board of Regents or complaints brought by students attending institutions controlled by the Board of Regents about their residency classification under §§ 13-53-23 to 13-53-41, inclusive[.]
SDCL 1-26-1(2).
“Rules of statutory construction require that the Court must read statutes together and to the extent possible, give effect to all language.” Banner Health Sys. v. Long,
1. Exclusionary Language of SDCL 1-26-1(2)
The court first addresses the exclusionary portion of SDCL 1-26-1, which states that “student academic or disciplinary proceedings under the jurisdiction of the Board of Regents” is excluded from the contested case definition.
The Board of Regents oversees SDSU, which in turn operates the extension service, which in turn operates 4-H. There is no indication that the Board of Regents oversees either the day-to-day or the disciplinary proceedings of 4-H. Instead, all of the evidence suggests that 4-H is run by a board of directors paid through SDSU and volunteers. See Docket 1-3 at 7 (listing 4-H’s directors as of 2011); Hearing Ex. 1, “South Dakota Youth Development/4-H Behavioral Expectations at County, State and National Events” (containing the rules for events issued by 4-H, printed on 4-H letterhead); Stewards of Progress at 1 (stating that the advisory committee members “represent a broad cross-section of county- and state-level Extension experi
Defendants argue “that SDSU’s Extension Service is under the authority of the Board of Regents and the fact this is a ‘disciplinary proceeding’ by the Extension Service seems to show the [SDAPA] is inapplicable.” Docket 34 at 5 n. 1. The Board of Regents does have statutory authority to oversee the 4-H program. SDCL 13-54-1; 13-54-9. But there is no indication in the record that the Board of Regents has jurisdiction over a 4-H disciplinary proceeding. According to Nielson’s letter dated October 3, 2011, the “South Dakota 4-H Livestock Ethics Committee,” not the Board of Regents, investigated B.K’s case “and concluded that [she] misrepresented ownership of this animal [Moe] and violated the code of ethics.” Exhibit 2; Docket 25-1 (emphasis added). After receiving that information, the “State U-H office ... permanently removed [B.K.] from the South Dakota 4-H exhibition program and any future eligibility or participation in such programs.” Hearing Ex. 2; Docket 25-1 (emphasis added). Nielson’s letter does not state that the Board of Regents participated in either B.K.’s disciplinary proceeding or the decision to ban her from 4-H exhibition programs. There is no indication in the record that the Board of Regents controls 4-H’s Ethics Committee.
Moreover, B.K. is not a “student” within the Board of Regents’ jurisdiction because she is a not a “student” of a higher education institution controlled by the Board of Regents. Instead, B.K. is a student of a public high school and a member of 4-H. B.K’s only connection to the Board of Regents, that of a 4-H member, does not bring her within the ambit of the Board of Regents’ jurisdiction because that jurisdiction is limited to “students,” and the plain meaning of “student” is not synonymous with the plain meaning of “member.”
Defendants argue that even if B.K. is entitled to due process, under the rationale of Gul v. Center for Family Medicine,
Gul is not persuasive. By its own language, the SDAPA does not apply to the dismissal of a graduate student at an institution under the Board of Regents’ jurisdiction. SDCL 1-26-1(1).
Thus, the exclusionary portion of SDCL 1-26-1, “student academic or disciplinary proceedings under the jurisdiction of the Board of Regents,” does not apply.
2. Remainder of SDCL 1-26-1(2)
Under SDCL 1-26-1(2), a contested case exists for “a proceeding ... in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearingt.]” SDCL 1-26-1(2). In the SDAPA, agency means “each association, authority, board, commission, committee, council, department, division, office, officer, task force, or other agent of the state vested with the authority to exercise any portion of the state’s sovereignty.” SDCL 1-26-1(1). This definition is controlling. Bruggeman v. S.D. Chemical Dependency Counselor Certification Bd.,
4-H is an association, board, committee, or agent of South Dakota. Defendants contend that 4-H is entitled to Eleventh Amendment sovereign immunity because 4-H is an arm of the state of South Dakota. Because 4-H is an association, board, committee, or agent of the state and is entitled to exercise part of South Dakota’s sovereignty, the statutory definition of “agency” has been met.
3. Due Process Provisions of SDAPA
The South Dakota Supreme Court has reasoned that “[t]he principal manifestation of a ‘contested case’ is its character as a quasi-judicial process based upon particular facts and information, and immediately affecting the interests of specific parties in the proceedings.” In re Union Carbide Corp.,
The SDAPA “provides generally for appointment of a hearing examiner, rules of evidence, oath, subpoena power and deposition evidence. That such procedure is at least quasi-judicial in nature is beyond dispute.” Id. Thus,- the South Dakota Supreme Court has held “that a party thereto is entitled to due process.” Id.
B.K. was an adverse party in the Ethics Committee’s hearing because the Committee was determining whether she was entitled to continue her participation in 4-H, which is an agency for purposes of SDCL 1-26-16; 1-26-1(2). While the Board of Regents and SDSU facilitate the cooperative extension program and 4-H, it appears that 4-H maintains the right to discipline its members, including through a
Moreover, the Ethics Committee’s actions may have touched upon B.K.’s property and liberty interests. B.K. has been successful in the past at livestock shows. B.K. has earned multiple monetary awards, including a $22,000 award. B.K. has placed the proceeds from her livestock shows into her college fund. B.K. may be excluded from some major shows because she is banned from 4-H. Consequently, she has lost the opportunity to compete for the chance to win future monetary awards, which could be used to fund her college education.
In Marchand v. Grant County, No. CV-07-182-RHW,
On the other hand, Plaintiff has a liberty interest in attending the Grant County Fair that requires procedural due process. See Hodge [v. Lynd], 88 F.Supp.2d [1234] at 1242 [(D.N.M.2000)].... In this case, Plaintiff asserts that she was removed from Fair by the Board members without giving her an opportunity to address the allegations that were being levied against her. In order to determine whether Plaintiffs due process rights were violated, the jury will have to consider a number of factors; for instance, the time delay from the confrontation and the decision to expel Plaintiff, whether an emergency situation prevented the Board members from first approaching Plaintiff prior to asking the sheriff officers to remove her from the fair grounds, whether the confrontation disrupted any events that were taking place, or whether the confrontation resulted in some injury to a fair-goer. In viewing the facts in the light most favorable to Plaintiff, the Court finds that a reasonable jury could find that Plaintiffs due process rights were violated when she was expelled from the 2005 Grant County Fair without being afforded an opportunity to present her side of the story.
Id. at *5-6. Applying the rationale in Marchand to this case, the court finds that B.K. may similarly have a liberty interest to show livestock animals at 4-H events.
The SDAPA also applies if B.K. can show that a “privilege” afforded to her was controlled by 4-H. SDCL 1-26-1(2). A main focus of 4-H is to train and assist its members in preparing to exhibit livestock at various shows. Members have a right or a privilege to participate in these shows as long as they are in good standing with 4-H.
B.K. has shown that she has a fair chance of prevailing on the merits to prove that she has a property and/or liberty interest under the due process clause to attend and participate in livestock shows. B.K. has also demonstrated a fair probability of success to prove that she had a privilege and/or right of attending and participating in these shows as a member of 4-H under SDCL 1-26-1(2). Because a liberty interest, property interest, and/or privilege is involved and B.K.’s rights to attend and participate in livestock shows was controlled, at least in part, by 4-H (an agency for purposes of SDCL 1-26-1(1), (2)), she is likely entitled to the due process outlined in SDCL 1-26-16, which requires notice and a hearing.
B. Irreparable Harm
Of the two most critical Data-phase factors, courts heavily weigh the threat of irreparable harm factor. “[T]he movant’s failure to sustain its burden of proving irreparable harm ends the inquiry ‘and the denial of the injunctive request is warranted.’ ” Glenwood Bridge, Inc. v. City of Minneapolis,
B.K. need only show the possibility of harm and not actual harm. See, e.g., United States v. W.T. Grant Co.,
Numerous courts have held that there is no irreparable harm if the plaintiff is denied the opportunity to participate in government-sponsored athletics. See, e.g., McGee v. Va. High Sch. League, Inc.,
4-H and athletic activities share some similarities, including the time commitment necessary to excel in the activities and the competitive nature of the activities. Unlike athletic activities, however, 4-H offers its members a chance to win monetary awards, which B.K. has won in the past and has placed in her college fund. B.K. also testified that she hopes to
B.K. further alleges that she will be irreparably harmed due to “disdain from her contemporaries[.]” Docket 20 at 4. B.K. presented evidence that she received multiple harassing text messages, Face-book messages, and emails from other 4-H members stating that she did not personally care for Moe, she was a cheater, and she was not a good 4-H leader. B.K. terminated her Facebook account due to the harassment. B.K. has shown that she has faced “disdain” from her peers, and her reputation for honesty has been injured. The court finds, after considering all of the evidence, that the irreparable harm factor weighs in favor of granting the preliminary injunction.
C. Balance of the Harms
The balance of the harms factor examines the balance between the harm to the party seeking the injunction and the public interest. Pottgen v. Mo. State High School Activities Ass’n,
If the court improperly grants the injunction, then B.K. will participate in 4-H shows where she has the possibility of winning the show and receiving a monetary award to which she is not entitled. If the court improperly denies the injunction, then B.K. will lose the opportunity to learn about showing livestock and may possibly forfeit monetary prizes. She will also continue to be excluded from some major shows that do not allow banned 4-H members to participate. B.K. is currently 16 years old and has two more years to show livestock with 4-H. Due to the time-consuming nature of litigation, B.K. may be too old to show livestock with 4-H by the conclusion of this case. Thus, the balance of the harms factor weighs in favor of granting the injunction.
D. Public Interest
South Dakota has a strong public interest to afford notice and a hearing when appropriate. See generally SDCL 1-26 (containing a complex system of required notices and hearings in various circumstances). This interest is especially strong here when B.K. was banned from 4-H on the basis of what her father allegedly told Nielson and Geppert, the validity of which is disputed by her father. B.K. did not receive an opportunity to defend herself or otherwise explain what occurred. Thus,
All four factors weigh in favor of granting the preliminary injunction. Plaintiff seeks “a preliminary injunction enjoining the Defendants to reinstate the Plaintiffs ward and to refrain from interfering with the Plaintiffs ward, B.K’s participation in any 4-H activities.” Docket 18 at 1. Thus, defendants are prohibited from interfering with B.K’s participation in any 4-H activities until further order of the .court.
CONCLUSION
Defendants move to dismiss all of B.K.’s claims against 4-H and B.K’s claims against Nielson and Geppert in their official capacities. 4-H is not a legal entity that can sue or be sued and therefore is entitled to be dismissed. Nielson and Geppert, as state employees, are entitled to sovereign immunity under the Eleventh Amendment for B.K.’s claims for monetary relief against them in their official capacities. Thus, defendants’ motion to dismiss is granted as to B.K.’s claims for injunctive and monetary relief against 4-H and B.K’s claims for monetary relief against Nielson and Geppert in their official capacities. It is denied with respect to the request for injunctive relief against Nielson and Geppert in their official capacities. B.K. moves for a preliminary injunction under 42 U.S.C. § 1983 for various constitutional violations. The court only addressed B.K.’s Fourteenth Amendment procedural due process claim asserted against Nielson and Geppert in their official capacities. Because all four of the Dataphase factors have been met, B.K’s motion for a preliminary injunction is granted as to that claim. Accordingly, it is
ORDERED that defendants’ motion to dismiss (Docket 9) is granted in part.
IT IS FURTHER ORDERED that plaintiffs motion for a preliminary injunction (Docket 18) is granted in part.
IT IS FURTHER ORDERED that defendants are enjoined from interfering with B.K’s participation in any 4-H activities until further order of the court.
ORDER DENYING MOTION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL
Plaintiff, B.K., a minor, through Greg Kroupa, her father and guardian ad litem, brought suit against defendants, Peter Nielson and Rod Geppert in their individual and official capacities, alleging violations of her First, Fourth, Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983 after she was banned from participating in 4-H exhibition shows. B.K. moved for a preliminary injunction to enjoin defendants from precluding B.K’s participation in 4-H and to refrain them from interfering with B.K’s participation in 4-H • activities. Docket 18. The court granted that motion as to Nielson and Geppert until further court order. Docket 35. Defendants now move to stay the court’s order enjoining their actions pending appeal. Docket 36. Plaintiff resists this motion. Docket 43. For the following reasons, defendants’ motion to stay the preliminary injunction pending appeal is denied.
BACKGROUND
On July 12, 2012, this court entered its order that granted plaintiffs motion for a preliminary injunction, which enjoined defendants from preventing or interfering with B.K’s participation in 4-H activities. Docket 35. The court dismissed 4-H as a defendant because the court found that as a state entity, 4-H was protected by sovereign immunity. Docket 35 at 814-15. As to Nielson and Geppert, the court determined that plaintiff satisfied the Data-phase factors and B.K. was able to show that she was likely to prevail on the merits of her procedural due process claim against defendants in their official capacities. The court did not reach any of plain
DISCUSSION
Whether it is appropriate to suspend injunctive or equitable relief imposed by the district court during the pendency of an appeal is controlled by Federal Rule of Civil Procedure 62(c).
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.
Brady v. Nat’l Football League,
A stay intrudes upon the ordinary process of judicial review and administration and is not routinely done as a matter of right even if the moving party might sustain irreparable harm. Nken,
In its order granting preliminary relief, the court determined that B.K. successfully showed that she had a likelihood of success on the merits on her procedural due process claim against defendants in their official capacities because she may have a liberty interest or privilege to show livestock animals at 4-H events. Docket 35 at 820. Defendants now claim that they will succeed on the merits of their appeal because B.K. cannot show irreparable harm or a cognizable property interest when numerous courts
In fact, since the court’s opinion was issued that granted the preliminary relief, B.K’s argument as to her irreparable harm and her property interest or privilege in participating in 4-H events has gotten stronger. Although it was not a 4-H show, B.K. participated in the Summer Spotlight event on July 28, 2012, which is a preview to the South Dakota State Fair. There she won the bred market steer division (winning a $100 gift certificate), the “Grand Champion Market Heifer” (winning $150), and the “Reserve Grand Champion” (winning $250). Docket 43 at 2. B.K. also participated in the 2012 Brule County 4-H Achievement Days, where she won Grand Champion market overall “Champion Market Beef’ and “Reserve Grand Champion” for her goat. This was a prequalification event for the State Fair. Since the court’s order, B.K. has qualified her heifer, two steers, and two goats to compete for future cash prizes. Docket 43 at 2. Thus, B.K’s odds of winning cash prizes in the future have improved.
This evidence
The court will analyze the second and third factors together because the factors address both sides of the same issue. The second factor asks “whether the applicant will be irreparably injured absent a stay[,]” and the third factor inquires “whether issuance of the stay will substantially injure the other parties interested in the proceeding[.]” Hilton,
Defendants argue that the irreparable harm they will suffer if the stay is not granted is that 4-H’s integrity and reputation would be permanently and irrevocably damaged because it will be known as an organization that allows rule breakers back into the organization to participate. Damage to reputation can constitute threat of irreparable harm. See Roudachevski v. All-American Care Ctrs., Inc.,
The harm to B.K. also is substantial because she could lose the opportunity to compete in 4-H shows, earn valuable
Defendants’ concerns about loss in public confidence or damage to 4-H’s reputation are valid, but not significant enough for the court to consider granting a stay that would intrude upon the ordinary process of administration and judicial review. The chance that 4-H would sustain permanent and irrevocable harm to its reputation or lose its good standing with other 4-H members during the pendency of the appeal is slight in comparison to the harm to B.K., in which her constitutional rights to notice and process may have been infringed upon resulting in the loss of experience and future earnings. See Iowa Utils. Bd. v. F.C.C.,
The final factor in the court’s analysis is the public interest. Hilton,
The court finds, after balancing all four factors and considering the relative strength of each, that defendants have not carried their burden on this issue. For these reasons, defendants’ motion to stay is denied.
CONCLUSION
Defendants were unable to make a strong showing that they are likely to succeed on the merits of their claim. The court analyzed the same arguments and case law in determining that preliminary injunctive relief was appropriate and nothing has been brought forth that would convince the court to reach a different conclusion now. While defendants could establish a cognizable harm absent a stay, that harm was not irreparable, it was not enough to outweigh the harm to B.K. if the stay was granted, and it was insufficient to outweigh the public’s interest in ensuring that South Dakota citizens are afforded due process. Accordingly, it is
ORDERED that defendants’ motion to stay the preliminary injunction pending appeal (Docket 36) is denied.
Notes
. Because the John Does and Mary Does were not identified as of the time of the preliminary injunction, B.K.'s claims against these defendants are not addressed in this order.
. All citations are to the transcript from the hearing. Docket 32.
. B.K. also argues that ‘‘[t]he issue of whether the extension service is part of a land grant college was decided in the case of Jones v. Erickson, [
. Hearing Ex. 5. College of Agriculture & Biological Sciences, South Dakota State University, Stewards of Progress, SDSU Extension (April 2011), https://www.sdstate.edu/absd Grow/upload/Stewards-of-Progress.pdf [hereinafter Stewards of Progress ].
. The Board of Regents has the power to sue and be sued under South Dakota law. SDCL 13-49-11. But there is no South Dakota law stating that SDSU has the power to sue and be sued. See SDCL 13-58 (containing the statutes related to SDSU but not stating whether SDSU has the power to sue and be sued). The Board of Regents' power to sue and be sued does not extend to SDSU, Pushkin v. S.D. State Univ., No. 10-4108-KES,
. All of the letters from 4-H in the record are on a specific letterhead with SDSU's logo in the upper left hand comer and "South Dakota Extension Service” printed to the right of the logo.
. Defendants did not move to dismiss B.K.'s claims against Nielson and Geppert in their individual capacities. State officials sued in their individual capacities are amenable to suit under § 1983, including claims for monetary damages. Hafer v. Melo,
. The federal APA likely does not apply to a state entity. See e.g., Heard Commc'ns, Inc. v. Bi-State Development Agency,
. A "contested case” is "an adjudicatory hearing as opposed to a quasi-legislative or rule making proceeding.” In re Union Carbide Corp.,
. The final clause, addressing complaints brought by students attending institutions controlled by the Board of Regents, is not at issue here.
. Moreover, in Guse v. University of South Dakota, No. Civ. 08-4119-KES,
. The rule provides that "[wjhile an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” Fed.R.Civ.P. 62(c).
. These are the same or similar four factors used to determine whether a preliminary injunction is appropriate under the analysis outlined in Dataphase Systems, Inc. v. CL Systems, Inc.,
. Defendants rely on St. Patrick High School v. New Jersey Interscholastic Athletic Associations, Civ. No. 10-948,
. Defendants argue that the fact that B.K: won a few shows this summer does not establish that she will win in the future, and any other conclusion is pure speculation because success in one competition "does not change the competition’s nature of being speculative to outcome determinative." Docket 46 at 5. The court agrees that winning in the future is not certain, but odds of. future success improve when B.K. has had recent success in similar settings in addition to her past success.
. The main "showing season” for 4-H is the summer season; thus, B.K.’s harm did not become immediate until prior to the start of that season. Kroupa initiated suit in March of 2012 and moved for preliminary relief on May 30, 2012. These legal decisions are not illogical in light of the facts of this case. Defendants did not submit binding Eighth Circuit precedent to persuade the court that the few month lapse between the adverse conduct and the filing of the claim on its own is enough to justify staying the ordered preliminary relief. The court’s analysis is unique to each set of facts before it, and in this case, the court finds that the delay in filing the claim has no bearing on the analysis or ultimate result.
. There was testimony during the hearing that B.K. has won awards as large as $22,000 for participating in larger shows. Tr. 46:7-13; Docket 35 at 808-09.