DORIS FREYRE, Plaintiff-Appellee, Cross-Appellant, versus CHAD CHRONISTER, in his official capacity as Sheriff of the Hillsborough County Sheriff‘s Office, Defendant-Appellant, Cross-Appellee, HILLSBOROUGH COUNTY SHERIFF‘S OFFICE, IRIS C. VALDEZ, JESSICA PIETRZAK, Defendants-Appellees, UNITED STATES OF AMERICA, Intervenor.
No. 17-11231
United States Court of Appeals for the Eleventh Circuit
December 14, 2018
D.C. Docket No. 8:13-cv-02873-JDW-TBM. Appeals from the United States District Court for the Middle District of Florida. [PUBLISH]
This interlocutory appeal asks us to determine whether the Hillsborough County Sheriff‘s Office (“HCSO“), in conducting child-protective investigations under a grant agreement with the Florida Department of Children and Families (“DCF“), acts as an arm of the state entitled to Eleventh Amendment immunity. The District Court held that HCSO was not an arm of the state and, for the reasons explained below, we affirm.
I.
In 1998, the Florida Legislature required DCF to transfer all responsibility for child-protective investigations in certain counties to the county sheriff.
On July 1, 2006, HCSO assumed responsibility for child-protective investigation in Hillsborough County accepted by DCF‘s Abuse Hotline. HCSO conducts these investigations pursuant to a grant agreement (“Grant Agreement“), the details of which we explain, where relevant, below.
On March 16, 2011, DCF received a call on its Abuse Hotline alleging that Doris Freyre had neglected her disabled child, MAF. HCSO, through child-protective investigators Jessica Pietrzak and Iris Valdez and under Sheriff David Gee‘s supervision, conducted an investigation that ended in the removal of MAF from Freyre‘s care. At a shelter hearing in state court, the judge agreed with HCSO that there was probable cause to remove MAF from Freyre‘s care but asked whether, instead of permanent removal, 24-hour home health care services could be obtained. The state was unable to secure those services, and MAF was temporarily hospitalized at Tampa General Hospital.
Unable to find a local, long-term placement that would meet MAF‘s needs, HCSO then sought to transfer MAF from Tampa General Hospital to a skilled nursing facility in Miami. Freyre was informed of the transfer and refused to consent. Freyre maintains that her father filed and served the state Attorney General‘s Office with a pro se petition on her behalf requesting an emergency
In November 2013, Freyre brought this action against HCSO, the State of Florida, Sheriff David Gee, Jessica Pietrzak, Iris Valdez, and other individuals and entities associated with MAF‘s removal and transfer. In her complaint, she asserted claims under the Americans with Disabilities Act (“ADA“), the Rehabilitation Act, and
As an initial matter, we must determine which issues in this case we have jurisdiction over. Sheriff Chronister1 raises two issues on interlocutory appeal: (1) whether the District Court erred in concluding that HCSO was not entitled to Eleventh Amendment immunity; and (2) whether the District Court erred in denying HCSO summary judgment on Freyre‘s associational ADA claim. In addition, Freyre as cross-appellant raises two issues: (1) whether the District Court erred in granting Valdez-Corey‘s and Pietrzak‘s motions for summary judgment; and (2) whether thе District Court erred in granting HCSO‘s motion for summary judgment on Freyre‘s individual ADA, Rehabilitation Act, and § 1983 claims. Although we unquestionably have jurisdiction under the collateral order doctrine to review the question of Eleventh Amendment immunity, we decline to exercise pendent appellate jurisdiction over the parties’ remaining issues.
A.
Generally speaking, our Court may only hear appeals from a district court‘s final order.
Like many legal rules, the final judgment rule is subject to exceptions. One such exception is the collateral order doctrine articulated by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Under Cohen, an otherwise nonappealablе interlocutory order is appealable if it (1) “conclusively determine[s] [a] disputed question,” (2) “resolve[s] [an] important issue completely separate from the merits of the action,” and (3) “[is] effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); see also Plaintiff A v. Schair, 744 F.3d 1247, 1252–54 (11th Cir. 2014) (explaining Cohen‘s three-part test). Both the Supreme Court and this Circuit have held that an order denying a defendant
But the same cannot be said of the other issues raised by the parties. For example, Sheriff Chronister argues that Freyre lacks standing to pursue her associational ADA claim because she “failed to show that she personally suffered exclusion, denial of benefits, or discrimination because of her association with MAF.” Appellant‘s Br. at 31 (emphasis omitted). Even if he‘s right, that issue is unreviewable: in Summit Medical Associates, we held that “the question of standing does not fit within the collateral order doctrine.” 180 F.3d at 1334. And it isn‘t difficult to see why: “[a]lthough a distriсt court‘s standing determination conclusively resolves a disputed question and settles an important issue separate from the merits of the case, courts have recognized that the issue of standing is not effectively unreviewable on appeal from a final judgment.” Id. In other words, standing satisfies the first two prongs of the Cohen test but fails the third.3
But that‘s not all there is to say about jurisdiction, for even if an interlocutory order is not appealable under the collateral order doctrine, we may exercise jurisdiction under the pendent appellate jurisdiction doctrine. Under this doctrine, we may address a nonappealable decision when it is “‘inextricably intertwined’ with the appealable decision or when ‘review of the former decision [is] necessary to ensure meaningful review of the latter.‘” King v. Cessna Aircraft Co., 562 F.3d 1374, 1379 (11th Cir. 2009) (per curiam) (alteration in original) (quoting Swint v. Chambers Cty. Comm‘n, 514 U.S. 35, 51 (1995)). Althоugh the question of whether to exercise pendent appellate jurisdiction is discretionary, Summit Med. Assocs., 180 F.3d at 1335, we do so “only under rare circumstances,” King, 562 F.3d at 1379. In this specific context, we have repeatedly stated that where we can resolve the issue of Eleventh Amendment immunity without reaching the merits of a substantive claim, we will not exercise pendent appellate jurisdiction over the substantive claim. See, e.g., Black, 811 F.3d at 1270–71; Summit Med. Assocs., 180 F.3d at 1335–36.
In Summit Medical Associates, we considered on interlocutory appeal whether to review standing under our pendent appellate jurisdiction when appellants hаd properly appealed, under the collateral order doctrine, the District Court‘s rejection of their Eleventh Amendment immunity defense. 180 F.3d at 1334-35. We ultimately declined to exercise jurisdiction because the two questions were not inextricably intertwined—the question of immunity could be resolved without reaching the merits of the standing challenge. Id. at 1335-36. Our reasoning there provides the same result here: the purely legal question of whether the District Court was correct to deny HCSO Eleventh Amendment immunity has nothing to do with whether Freyre has demоnstrated standing to
We should say one final thing about pendent appellate jurisdiction. At oral argument, we suggested that Freyre‘s claims as cross-appellant would be reviewable under our pendent appellate jurisdiction if, but only if, we reached the question of abrogation.8 We write now to clarify that these issues—i.e., the question of immunity and the merits issues raised by both parties on appeal—would not be inextricably intertwined even if we were to reach the question of abrogation. “When a plaintiff argues that Congress has abrogated sovereign immunity for a particular type of claim, we review that argument de novo.” Black,
B.
Having defined the scope of this appeal, we next consider whether HSCO is entitled to Eleventh Amendment immunity when performing child-protective investigations. We review this question de novo. Nat‘l Ass‘n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1313 (11th Cir. 2011). Because HCSO asserted Eleventh Amendment immunity in a motion for summary
The Eleventh Amendment protects states from being subject to suit in federal court. It 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 Citizеns or Subjects of any Foreign State.
This Court uses a four-factor test to determine whether an entity is an arm of the state and thus entitled to sovereign immunity. These factors, articulated in Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc), are “(1) how state law
1.
The first Manders factor asks us to determine how state law defines the defendant entity. Two bodies of state law are relevant here: state law concerning the status of the entity generally, and state law concerning the specific function the entity performs in the instant case. See Stanley, 843 F.3d at 926–27; Abusaid, 405 F.3d at 1305–06.
As to the former, we have repeatedly acknowledged that Florida sheriffs are, by default, county officers. Stanley, 843 F.3d at 926–927; Abusaid,
Notwithstanding a Florida sheriff‘s presumptive status as a county officer, we have also held out the possibility that “[w]hen carrying out some . . . functions, the sheriff may well be acting as an arm of the state.” Abusaid, 405 F.3d at 1310. In contrast to Abusaid—where the sheriff was enforcing a county ordinance—here
The Grant Agreement states that “[t]he Grantee [HCSO] shall act in the capacity of an independent contractor while performing child protective services.” As we explained in Rosario v. American Corrective Counseling Services, Inc., 506 F.3d 1039, 1044–45 (11th Cir. 2007), the label “independent contractor” is legally significant. Id. Florida statutes draw a distinction between “independent contractors,” who are often solely liablе for their actions, and “agents,” to whom the state extends sovereign immunity.10 Florida case law states the point even more clearly. In Dorse v. Armstrong World Industries, Inc., 513 So. 2d 1265, 1268 (Fla. 1987), the Supreme Court of Florida explained that “an entity or business acting as an
While the label of “independent contractor” serves as persuasive evidence that HCSO did not act as an agent of the state under Florida law, it is not dispositive. See Stoll v. Noel, 694 So. 2d 701, 703 (Fla. 1997) (explaining “that the roles of agent and independent contractor are not mutually exclusive” and depend on “the degree of control retained or exercised by [the state]“). In addition to the label, however, the Grant Agreement explains that “the Grantee [HCSO] shall be considered by the Grantor [DCF] as agent of the Grantor for the sole and limited purpose of receiving information obtained from or concerning applicants and recipients of public assistance programs.” (emphasis added). As if it were concerned that labeling HCSO an independent contractor wouldn‘t be enough, the Grant Agreement goes out of its way to circumscribe the function in which HCSO serves as an agent of DCF. And notably, the function at issue in this case—child-
As Sheriff Chronister points out, the Grant Agreement states that HCSO “may, during the performance of this grant, assert any privileges and immunities which are available as a result of the Grantee performing the state functions required by Chapter 39, F.S., and this Grant Agreement.” Sheriff Chronister attaches much significance to this language. Appellant‘s Br. at 54. But in our estimation, this language simply leaves intact whatever “privileges and immunities” HCSO might have as a result of performing under the Grant Agreement. Whether there are any such privileges or immunities in the first place is a question we, interpreting the Grant Agreement under Florida law and the law of our Circuit, must decide.
All in all, we conclude that this first factor weighs against arm-of-the-state status.
2.
The second factor requires us to look at the degree of control the state exercises over the entity generally as well as with respect to the specific function at issue. As we noted in Abusaid, the constitutional default rule is that Florida
Shifting to the function here, the Grant Agreement requires HCSO to meet state-prescribed standards when conducting child-protective investigations. As Sheriff Chronister notes, this Court in Stanley described state-set minimum hiring qualifications as “strong indicia of state control.” 843 F.3d at 928. But our precedent also acknowledges that “[e]stablishing minimum requirements is not sufficient to demonstrate [state] control.” Lightfoot v. Henry Cty. Sch. Dist., 771 F.3d 764, 773 (11th Cir. 2014).
Although the presence of state-prescribed standards is significant, we find here—as we did in Stanley, 843 F.3d at 928-29—that these “strong indicia of state control” do not outweigh the indicia of local control. Specifically, the Grant
Despite this, Sheriff Chronister argues that the Grant Agreement “is saturated with instances where DCF and the state maintain substantial control over [HCSO].” Appellant‘s Br. at 55. In particular, Sheriff Chronister refers to (1) HCSO‘s obligation to submit financial records for audit by DCF; (2) HCSO‘s duty to immediately notify DCF of any deaths, serious injuries, or significant accidents during child-protective investigations; and (3) performance evaluations DCF conducts of HCSO‘s child-protective investigations. Id. While these aspects of the Grant Agreement certainly impose requirements on HCSO, they‘re primarily reporting requirements—they don‘t speak directly to the “degree of control” the state exerts on HCSO in performing child-protective investigations. Compare Shands, 208 F.3d at 1311 (granting arm-of-the-state status to private program administrator over whom “Florida retains virtually complete control“), with
Sheriff Chronister also argues that HCSO wears a “state hat” when it performs child-protеctive investigations because the authority to do so derives from Florida statutes. Appellant‘s Br. at 54. It is true that we have described as a “key question” of the Manders analysis the question of “for whom sheriffs exercise [a given] power.” Abusaid, 405 F.3d at 1310 (quoting Manders, 338 F.3d at 1319 n.35). As in Lesinski, HCSO “derives both the authority and the obligation to [perform the relevant function] directly from the State.” 739 F.3d at 604. While this adds some support to Sheriff Chronister‘s argument, we caution to add that this principle can be taken too far as every power the sheriff exercises is ultimately granted by state law. See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 47 (1994) (“[U]ltimаte control of every state-created entity resides with the State, for the State may destroy or reshape any unit it creates. ‘Political subdivisions exist solely at the whim and behest of their State . . . .‘” (alteration omitted) (quoting Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 313 (1990))).
3.
Although Florida sheriff‘s offices are generally funded entirely by county taxes, Stanley, 843 F.3d at 929, DCF provides all funding for child-protective investigations, and Freyre does not contest this. Thus, this factor weighs in favor of arm-of-the-state status.
4.
This final factor, the most important of the Manders calculus,13 asks us to determine whether the state treasury would be burdened by a judgment against HCSO in this matter. Sheriff Chronister argues that it would, relying almost entirely on the testimony of an HCSO employee, Major Bullara. Bullara avers that “[i]f there were to be a judgment in this matter, it would be paid strictly out of the DCF grant money provided this fiscal year.” But there‘s reason to think that Bullara‘s assessment is incorrect. First, Florida law provides that Grant Agreement
While this case presents an especially close call, we ultimately conclude that HCSO does not act as an arm of the state when conducting child-protective investigations pursuant to the specific Grant Agreement between HCSO and DCF.
III.
The District Court correctly denied HCSO summary judgment on its sovereign immunity defense, the only issue we review in this interlocutory appeal. We accordingly affirm the District Court‘s judgment and remand the case for further proceedings.
AFFIRMED and REMANDED.
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