Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA BILLY RAY PATTERSON, )
)
)
Plaintiff, )
) v. ) Case No. CIV-19-627-R
)
RURAL WATER DISTRICT 2, COTTON )
COUNTY, DAVID RODRIGUEZ, )
UDELL “SCOOTER” QUINN )
)
Defendants. )
ORDER
Before the Court is the Motion to Dismiss, Doc. No. 9, filed by Defendants Cotton County Rural Water District 2 (“CCRWD”), David Rodriguez, and Udell Quinn pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff responded, Doc. No. 10, and Defendants replied, Doc. No. 11. Upon review of the parties’ submissions, the Court grants Defendants’ motion in part and denies the motion in part.
I. Background
Plaintiff filed this action against his former employer, the CCRWD, and two of his former supervisors, Mr. Rodriguez and Mr. Quinn. The Complaint alleges a variety of claims arising out of the termination of Plaintiff’s employment with the CCRWD. In general, Plaintiff alleges that his termination, and the events leading up to it, demonstrate that Defendants discriminated against him on the basis of age and associational disability. [1] *2 In particular, Plaintiff asserts the following seven claims: (1) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”); (2) associational disability discrimination in violation of the American with Disabilities Act (“ADA”), American with Disabilities Act Amendments Act (“ADAAA”), Rehabilitation Act, and the Oklahoma Anti-Discrimination Act (“OADA”); (3) retaliation for engaging in protected opposition to disability discrimination in violation of the ADA, ADAAA, Rehabilitation Act, and the OADA; (4) violation of Plaintiff’s First Amendment right to free speech; (5) violation of Plaintiff’s Fourteenth Amendment right to equal protection; (6) tortious interference with a contract; and (7) tortious interference with a prospective economic advantage. Claims one through three are asserted only against the CCRWD; claims four and five are asserted against the CCRWD, Rodriguez, and Quinn; and claims six and seven are asserted only against Rodriquez and Quinn.
Defendants CCRWD, Rodriguez, and Quinn move for dismissal of all seven claims. The CCRWD argues that it is entitled to Eleventh Amendment immunity from all of Plaintiff’s claims because it is an arm of the State of Oklahoma. The Individual Defendants also claim immunity from Plaintiff’s federal claims and assert that Oklahoma law preempts Plaintiff’s state law claims.
II. Standard of Review
Defendants ask this court to review their entire motion pursuant to Federal Rule of
Civil Procedure 12(b)(6). However, Defendants’ first argument for dismissal involves the
CCRWD’s assertion of sovereign immunity—challenging the Court’s subject matter
*3
jurisdiction.
[2]
Therefore, Court considers Defendants’ first assertion pursuant to Rule
12(b)(1).
See Holt v. United States
,
Defendants’ other arguments discussed herein are appropriately considered
challenges made to the sufficiency of Plaintiff’s Complaint under Rule 12(b)(6). In
considering Defendants other arguments, the Court must accept all the well-pleaded
allegations of the Complaint as true and must construe the allegations in the light most
favorable to Plaintiff.
Bell Atl. Corp. v. Twombly
,
III. Sovereign Immunity
Defendants first argue that all of Plaintiff’s claims against the CCRWD—claims one through five—should be dismissed because the CCRWD is entitled to sovereign immunity under the Eleventh Amendment as an arm of the State of Oklahoma. Doc. No. 9, p. 5–8; Doc. No. 13; Doc. No. 15. In response, Plaintiff contends that the CCRWD is a political subdivision and thus not entitled to immunity. Doc. No. 10, p. 6–9; Doc. No. 14. For the reasons stated below, the Court finds that the CCRWD is entitled to immunity as an arm of the State of Oklahoma.
Under the Eleventh Amendment, “an unconsenting State is immune from suits
brought in federal court[] . . . .”
Edelman v. Jordan
,
In determining whether the CCRWD is an arm of the state, the Court must consider four primary factors:
First, we assess the character ascribed to the entity under state law. Simply stated, we conduct a formalistic survey of state law to ascertain whether the entity is identified as an agency of the state. Second, we consider the autonomy accorded the entity under state law. This determination hinges upon the degree of control the state exercises over the entity. Third, we study the entity’s finances. Here, we look to the amount of state funding the entity receives and consider whether the entity has the ability to issue bonds or levy taxes on its own behalf. Fourth, we ask whether the entity in question is concerned primarily with local or state affairs. In answering this question, we examine the agency’s function, composition, and purpose.
Baca v. Colorado Dep’t of State
,
A. Factor one: Character ascribed by state law
First, the Court assesses the character ascribed to the CCRWD under Oklahoma law.
Oklahoma’s Rural Water, Sewer, Gas and Solid Waste Management Districts Act, 82 O.S.
§§ 1324.1–35 provides that upon its creation a rural water district, like the CCRWD, “shall
be a body politic and corporate and an agency and legally constituted authority of the State
of Oklahoma for the public purposes set forth in this act.”
Id.
§ 1324.6. Interpreting this
language, the Oklahoma Supreme Court has declared that a water district—like the
CCRWD—created under 82 O.S. § 1324.6 is properly characterized as a “State agency”
for jurisdictional purposes.
Sinor Long Bay Marina, LLC v. Wagoner Cty. Rural Water
Dist. No. 2
,
Plaintiff’s support does not contradict this conclusion. First, Plaintiff cites 51 O.S. § 152(11)(f)–(g) which he claims characterizes rural water districts as political subdivisions. Doc. No. 14, p. 3. His assertion is, however, incomplete and misguided. The statute’s characterization of rural water districts as political subdivisions is “for the purposes of The Governmental Tort Claims Act [“OGTCA”] only.” 51 O.S. § 152(11)(f)– (g). If Plaintiff’s claims had been brought pursuant to the OGTCA, his argument that the CCRWD is a political subdivision not entitled to immunity would be correct. But his claims are not pursuant to the OGTCA. Therefore, his argument fails. In fact, it inferentially supports Defendants’ contention that outside of the OGTCA context, rural water districts like the CCRWD are considered state agencies, not political subdivisions. Next, Plaintiff cites Okla. Admin Code § 785:50-3-2(a), which he argues defines political subdivision to include rural water districts. Doc. No. 14, p. 3. Plaintiff is mistaken. The code’s definition of political subdivision does not include rural water districts. Rather, rural water districts *8 are included in the code as an example of “special purpose water resource districts” eligible for assistance under certain state programs. Okla. Admin Code § 785:50-3-2(a).
Finally, Plaintiff cites a number of federal cases, Doc. No. 14, p. 3, none of which
undermines the Court’s finding that Oklahoma law characterizes the CCRWD as an arm
of the State.
See Gunn v. Consol. Rural Water & Sewer Dist. No. 1, Jefferson Cty., Okl.
,
B. Factor two: Autonomy under state law
Second, the Court considers the autonomy accorded the CCRWD under Oklahoma
law—a determination that hinges upon the degree of control Oklahoma exercises over the
CCRWD. In performing this analysis, the Tenth Circuit has considered state control over
an entity’s use of property, the entity’s relationship with its employees, the handling of its
finances, and its auditing and reporting requirements.
See Steadfast
,
According to 82 O.S. § 1324, et seq. , the State of Oklahoma exercises control over the CCRWD in several ways: the State directs the purpose for which the CCRWD can *9 generate revenues, determines what the CCRWD’s revenues should be devoted to, id. at § 1324.11, sets term limits for the CCRWD’s directors, details requirements for qualification to serve as a board member, sets meeting requirements, id. at § 1324.16, and prescribes how the CCRWD’s officers are to be elected, id at § 1324.17. The State also requires the CCRWD to file annual financial audit reports, id. at § 1324.18, and controls the CCRWD’s ability to export water to entities outside Oklahoma, id. at § 1324.10(B). In addition, the CCRWD is subject to the regulatory authority of the State of Oklahoma through two of its agencies—the Oklahoma Department of Environmental Quality (“ODEQ”) and the Oklahoma Water Resources Board (“OWRB”). See generally Okla. Admin. Code § 252:626, 631 (detailing ODEQ’s oversight of public water supply systems); 82 O.S. §§ 1324.6–16 (detailing OWRB’s oversight of rural water districts).
Nevertheless, as Plaintiff points out, Doc. No. 14, p. 5, the CCRWD has extensive autonomy from the State of Oklahoma. The District is managed by a locally-elected board and has the capacity to sue and be sued, borrow money and contract indebtedness, make bylaws for the regulation of its own affairs, appoint officers, agents, and employees, sell or otherwise dispose of any property, enter into contracts, fix reasonable and nondiscriminatory rates, fees, rents or other charges for water, and to perform all acts and things necessary, convenient, or appropriate to effectuate its purpose. 82 O.S. § 1324.10.
Oklahoma law certainly provides the State with supervision and control over a number of the CCRWD’s internal and external affairs. But it also grants the CCRWD considerable independence from the State. This second factor does not weigh clearly in favor or against a finding that the CCRWD is an arm of the State. See T.D. v. Patton , 149 *10 F. Supp. 3d 1297, 1306 (D. Colo. March 16, 2016) (finding that the second element was a “mixed bag between aspects that indicate state control . . . and elements that indicate a lack of control . . . .”).
In
Sturdevant v. Paulsen
, 218 F.3d 1160 (10th Cir. 2000), the Tenth Circuit
encountered a similar situation. The entity asserting immunity in
Sturdevant
, a school
board, had a significant degree of autonomy, but the state also had notable control over the
board. There, the Circuit turned to what is now identified in
Steadfast
as the fourth factor
to resolve the second—the Circuit considered the state’s control “in light of the purpose,
composition and function” of the entity in question.
Sturdevant
, 218 F.3d at 1168;
Steadfast
,
Here, the Court is compelled to follow the Circuit’s example and resolve the second factor by viewing the CCRWD’s autonomy and Oklahoma’s control in light of the fourth Steadfast factor—the purpose, composition, and function of the CCRWD. According to Oklahoma law, the CCRWD’s purpose is to develop and provide “an adequate rural water *11 supply . . . to serve and meet the needs of rural residents within the territory of the district.” 82 O.S. § 1324.3. It is composed entirely of locally-elected board members. Id. at § 1324.7. Its function is to construct, install, improve, maintain and operate water works in Cotton County, Oklahoma. Id. at § 1324.4(2). The CCRWD undoubtedly helps fulfill the State’s public policy goals related to water protection, maintenance, improvement, and conservation—thus implicating statewide concerns. See 27A O.S. § 2-6-102. However, its purpose, composition, and function are concerned primarily with local affairs, much like a county or city. In light of this consideration, the Court determines that the second factor weighs slightly in favor of categorizing the CCRWD as a political subdivision.
C. Factor three: Finances
Third, the Court studies the entity’s finances. In accordance with the Tenth Circuit’s
instruction, the Court looks to the amount of state funding the entity receives and considers
whether the entity can issue bonds or levy taxes on its own behalf.
Baca
,
The CCRWD is eligible to receive state funds through a number of assistance programs, see Okla. Admin. Code § 785:50-3-2(a), but Defendants do not contend that they have received any state assistance. Instead, Defendants acknowledge that the CCRWD is an unappropriated agency, meaning that the state’s annual budget does not provide money *12 for its operations. The CCRWD generates its own revenue by charging fees for the water it supplies to residents of Cotton County. See 82 O.S. § 1324.10, 18.
Plaintiff contends that the CCRWD’s ability to generate its own revenue provides compelling evidence that the CCRWD is not an arm of the state. Doc. No. 14, p. 8–9. Defendant argues that this status is immaterial based on the Tenth Circuit’s findings in Steadfast . Doc. No 13, p. 7. In Steadfast , however, the Tenth Circuit considered it immaterial that the defendant, Grand River Dam Authority (“GRDA”), was an unappropriated agency that generated its own revenue only because that revenue constituted public funds—subject to state laws and regulations governing the receipt and expenditure of public funds in the same manner as all other state agencies. Steadfast , 507 F.3d at 1254–54. “That [the] revenue never entered the confines of the state treasury [was] immaterial” Id. Here, however, the CCRWD’s revenue generation is material because the CCRWD’s revenues are deemed “special” funds, not public funds. 82 O.S. § 1324.10. Any judgment entered against the CCRWD will likely be paid out of the CCRWD’s special revenues—a conclusion asserted by the Plaintiff in response, Doc. No. 14, p. 8–9, and uncontradicted by Defendants in reply. At first glance then, the third factor weighs in favor of characterizing the CCRWD as a political subdivision.
However, the CCRWD has no “authority to levy any taxes whatsoever or make any
assessments on property, real or personal.” 82 O.S. § 1324.6. Neither does it have the
authority to issue bonds on its own behalf.
See
Doc. No. 13, p. 7. In granting an entity
immunity as an arm of the state, the Tenth Circuit has found that the “absence of taxing
authority and the ability to issue bonds, with certain state guidance, renders an agency more
*13
like an arm of the state than a political subdivision.”
Steadfast
,
Ultimately, the Court determines this third factor to be neutral—some elements of the CCRWD’s finances suggest it acts as a political subdivision, while other elements suggest it acts as an arm of the state. See Lucero v. New Mexico Lottery , No. CIV 07-499 JCH/RLP, 2008 WL 7467977, at *5 (D.N.M. July 7, 2008) (finding financial considerations to be neutral in determining whether the entity at issue was entitled to immunity).
D. Factor four: Primary purpose Fourth, the Court asks whether the CCRWD is concerned primarily with local or state affairs. To answer this question, the Court must examine the CCRWD’s function, composition, and purpose—elements addressed above in the Court’s discussion of the second Steadfast factor. In short, the CCRWD’s function, composition, and purpose implicate state-wide issues, but are primarily concerned with local, not state, affairs.
* * *
Overall, the factors analyzed above weigh in favor of finding that the CCRWD is
an arm of the state. In summary, the first factor provides strong support for finding the
CCRWD to be an arm of the state, the second factor is unclear on its own but supports a
finding that the CCRWD is a political subdivision once it is evaluated in light of the fourth
factor, the third factor is neutral, and the fourth supports a finding that the CCRWD is a
political subdivision. The Court gives deference to state decisions in characterizing state
*14
entities,
Steadfast
,
IV. Waiver of Sovereign Immunity
Sovereign immunity is not, however, absolute. There are two exceptions to this
immunity: “(1) when Congress has abrogated the states’ immunity, as in legislation enacted
to enforce the Fourteenth Amendment; and (2) when a state waives its immunity.”
Pettigrew v. Okla. ex rel. Okla. Dep’t of Pub. Safety
,
Defendants assert that neither exception is relevant to Plaintiff’s claims under the
ADEA, ADA, ADAAA, OADA, or 42 U.S.C. § 1983. Doc. No. 9, p. 5–8. Plaintiff does
not address the issue. The Court determines that the CCRWD has not unequivocally waived
its immunity from suit in federal court under any of the relevant statutes. Nor has Congress
done so.
See Kimel v. Fla. Bd. of Regents
,
Defendants also assert that neither exception is relevant to Plaintiff’s claims under the Rehabilitation Act. Doc. No. 11, p. 4–5. They contend Plaintiff has failed to allege that the CCRWD receives federal financial assistance, and as a result, that Plaintiff cannot *16 establish that the CCRWD has waived its immunity under the Rehabilitation Act. Id. (citing Arbogast v. Kansas, Dep’t of Labor , 789 F.3d 1174, 1183 (10th Cir. 2015) for the proposition that receipt of federal financial assistance is required for a valid waiver of immunity under the Rehabilitation Act). Defendants did not raise this argument until their reply brief. The argument is thus waived. See Arbogast , 789 F.3d at 1183 n.4 (treating immunity argument as waived where defendant raised the issue only in reply). What’s more, based upon Plaintiff’s limited response in his supplemental briefing, it would appear that the CCRWD did waive its immunity when it received federal financial assistance in the form of a federal mortgage loan. See Doc. No. 14, p. 2–3 n. 1, Ex. 2; see also 45 C.F.R. § 84.3(h). [6] Therefore, Plaintiff’s second and third claims pursuant to the Rehabilitation Act are not subject to dismissal on the basis of the CCRWD’s sovereign immunity.
V. Qualified Immunity
Defendants also argue that Plaintiff’s fourth claim, pursuant to § 1983—alleging that the Individual Defendants violated his First Amendment rights—should be dismissed because both Defendants Rodriguez and Quinn are entitled to qualified immunity. Doc. No. 9, p. 8–10. Plaintiff contends that Defendants are not so entitled. Doc. No. 10, p. 10– 12. Upon consideration of the issue, the Court finds that the Individual Defendants are entitled to qualified immunity, subjecting Plaintiff’s fourth claim to dismissal.
[6]
While the Rehabilitation Act does not define “federal financial assistance,”
see
29 U.S.C. § 705, t he Department of
Health, Education and Welfare—the agency charged by the Executive Branch with coordinating the issuance of
regulations under the Rehabilitation Act,
see
Exec. Order No. 11914, 41 Fed. Reg. 17871 (1976)—has interpreted the
phrase to include any loan of funds. 45 C.F.R. § 84.3(h);
see also Jacobson v. Delta Airlines, Inc.
,
“Although summary judgment provides the typical vehicle for asserting a qualified
immunity defense, we will also review this defense on a motion to dismiss.”
Sayed v.
Virginia
,
Nevertheless, once an individual defendant asserts qualified immunity, the plaintiff
carries a two-part burden. The Plaintiff must show: (1) that the defendant’s actions violated
a federal constitutional or statutory right, and (2) that the right was clearly established at
the time of the defendant’s unlawful conduct.”
Knopf v. Williams
,
The Court’s analysis focuses on the clearly-established-law prong. To establish his First Amendment claim, Plaintiff alleges that his wife and co-worker had a disability, and that upon learning of Plaintiff’s wife’s disability, Defendant Rodriguez went to Plaintiff’s home and demanded that Plaintiff’s wife sign a document agreeing that if she were limited in performing her job or needed accommodation due to her disability, she would not continue employment with Defendant CCRWD. Doc. No. 1, ¶ 19. Plaintiff complained that Rodriquez was mistreating his wife based on her disability and asked Rodriguez to leave their home. Doc. No. 1, ¶ 20. Plaintiff alleges that after his grievance, Rodriguez began “nitpicking” Plaintiff ultimately leading to his termination in 2018. Doc. No. 1, ¶ 21–30. Upon consideration of Plaintiff’s allegations, the Court finds that the Individual Defendants are not alleged to have violated a clearly established right under the First Amendment.
A right is “clearly established” only if it is “sufficiently clear that every reasonable
official would understand that what he was doing was unlawful.”
Singh v. Cordle
, 936 F.3d
*19
1022, 1033 (10th Cir. 2019) (brackets, citations, and internal quotation marks omitted).
“To make such a showing in our circuit, [usually] the plaintiff must point to a Supreme
Court or Tenth Circuit decision on point, or the clearly established weight of authority from
other courts must have found the law to be as the plaintiff maintains.”
Id
. (citation and
internal quotation marks omitted) A plaintiff does not have to supply a case “directly on
point, but existing precedent must have placed the statutory or constitutional question
beyond debate.”
Ashcroft v. Al-Kidd
,
Plaintiff does not point to a Supreme Court or Tenth Circuit decision on point, nor
does Plaintiff cite a clearly-established weight of authority from other courts. Instead,
Plaintiff points to one case from the Third Circuit announcing a legal rule at a high level
of generality.
See
Doc. 10, p. 13. This is not sufficient to carry the Plaintiff’s burden.
See
Yeasin,
The First Amendment prohibits public employers from taking adverse action against
employees because of their protected speech. To determine if an employer’s adverse
employment action against an employee is an impermissible retaliation under the First
Amendment, we apply the
Garcetti/Pickering
test.
See Trant v. Oklahoma
,
Here, the Individual Defendants dispute elements two and three. They argue that the speech at issue—Plaintiff’s complaint to Defendant Rodriguez for allegedly treating Plaintiff’s wife and fellow co-worker unfavorably based on her disability—primarily involved a matter of personal, not public concern. Additionally, Defendants argue that a reasonable person could have believed that the government’s interest in promoting efficiency outweighed the Plaintiff’s free speech interests. As to element two, according to Tenth Circuit law, if the speech at issue “is not a matter of public concern, then the speech *21 is unprotected and the inquiry ends.” Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d 1192, 1203 (10th Cir. 2007). Plaintiff objects, arguing that his protected speech was a matter of public concern.
Speech on a matter of public concern is speech which can “be fairly considered as
relating to any matter of political, social, or other concern to the community.”
Connick v.
Myers
,
Plaintiff’s speech did not address a matter of public concern. Even if it did, that
reality was not sufficiently clear to put every reasonable official on notice. Plaintiff’s
speech—complaining to his supervisor about alleged discrimination—appears to be an
inherent matter of public concern.
Brammer-Hoelter
,
VI. Federal Preemption
Defendants further argue that Plaintiff’s fifth claim, pursuant to § 1983—alleging that the Individual Defendants violated his Fourteenth Amendment right to be free from age discrimination—should be dismissed on the basis of qualified immunity and because Plaintiff failed to properly plead his claim. Doc. No. 9, p. 8–11. Plaintiff objects. Doc. No. *23 10, p. 10–12, 14. The Court need not address either parties’ arguments; the issue is resolved on simpler grounds.
Section 1983 cannot be used to vindicate a violation of federal law where Congress
has otherwise created a comprehensive enforcement scheme that is incompatible with
individual § 1983 enforcement.
See Blessing v. Freestone
,
VII. State Preemption
In closing, Defendants argue that Plaintiff’s sixth and seventh claims against the Individual Defendants for tortious interference are preempted by the Oklahoma Anti- Discrimination Act (OADA), or in the alternative that they are improperly pled. Doc. No. 9, p. 11–14. Plaintiff argues that Defendants’ assertion misinterprets the relevant case law and that properly interpreted, the case law requires denial of Defendants’ motion. Doc. No. *24 10, p. 17–21. Upon consideration of the issue, the Court determines that Plaintiff’s sixth and seventh claims are preempted by the OADA.
The OADA “provides for exclusive remedies within the state of the policies for
individuals alleging discrimination in employment on the basis of . . . age [or] disability.”
25 O.S. § 1101. Interpreting this provision, the Tenth Circuit found that the OADA
preempts separately actionable tort claims—like those made for tortious interference—
predicated on the same facts as discrimination claims covered under the OADA.
Jones v.
Needham
, 856 F.3d 1284, 1292 (10th Cir. 2017). But the Circuit also highlighted an
exception to this rule: The OADA does not preempt separately-actionable tort claims that
are based on the same facts as discrimination claims covered under the OADA where the
legal theories underpinning the tort and discrimination claims are sufficiently distinct.
Id
.
This type of exception is satisfied when, for example, “the separately-actionable tort is
‘highly personable’ in nature.”
Id.
(citing
Brock v. United States
,
Plaintiff’s Complaint makes clear that the same facts provide the basis for both his age and associational disability discrimination claims and his tortious interference claims. Plaintiff has five pages of facts, Doc. No. 1, pp. 3–7, and states that both his discrimination claims under the OADA, and his tortious interference claims are predicated generally on “the matters alleged above” or the “acts above-described,” Doc. No. 1, p. 8, 9, 12, 13. The *25 question here is thus whether the elements of tortious interference are sufficiently distinct from the elements of age or associational disability discrimination. [9]
Oklahoma defines the elements of a claim for tortious interference as: “(1)
interference with a business or contractual right; (2) malicious and wrongful interference
that is neither justified, privileged, nor excusable; and (3) damages proximately sustained
as a result of the interference.”
Tuffy’s, Inc. v. City of Okla. City
,
In comparison, the elements of a claim for age discrimination include: (1)
membership in the protected class; (2) qualification for the job; (3) an adverse action; and
(4) the job not being eliminated.
See Kendrick v. Penske Transp. Servs.
,
These elements are not identical, but they are remarkably similar when the alleged
malicious conduct is the termination of Plaintiff’s employment predicated on Plaintiff’s
age and associational disability.
See Jones v. Needham
,
VIII. Conclusion
For the reasons stated herein, the Court grants Defendants’ Motion to Dismiss, Doc. No. 9, in part, and denies the motion in part. Only Plaintiff’s second and third claims pursuant to the Rehabilitation Act remain; all other claims are hereby dismissed.
IT IS SO ORDERED this 7th day of February 2020.
Notes
[1] Plaintiff was born in October of 1957 and was therefore over the age of 40 during the relevant period. Additionally, Plaintiff’s wife—and co-worker—was a qualified individual with a disability under the Americans with Disabilities Act (“ADA”), the Americans with Disabilities Act Amendments Act (“ADAAA”), and state law.
[2] On September 25, 2019, the Court ordered supplemental briefing on the issue of sovereign immunity. Thereafter, Defendants filed their supplemental brief, Doc. No. 13, Plaintiff responded, Doc. No. 14, and Defendants replied, Doc. No. 15.
[3] The Oklahoma Attorney General explains that prior to 1965, rural water districts were not considered agencies of
the state. 2001 OK AG 38, ¶4. However, the law was amended in 1981 to consider a district “a body politic and
corporate
and an agency and legally constituted authority of the State of Oklahoma
.”
See
82 O.S. § 1324.6 (emphasis
added). In 1985, the Attorney General opined that the “statutory change evidences clear legislative intent to bring
these Districts into the fold of ‘agencies’ of the State.”
[4] The Tenth Circuit has previously held that opinions of Oklahoma’s Attorney General, while not dispositive, offer
guidance and are to be accorded some deference.
Southern Disposal, Inc. v. Texas Waste Mgmt., a Div. of Waste
Mgmt. of Texas, Inc.
,
[5] The Court is cognizant of the Tenth Circuit’s admonition that rulings of state courts are not dispositive.
Steadfast
,
[7] “The first three elements are issues of law for the court to decide, while the last two are factual issues typically
decided by the jury.”
Trant v. Oklahoma
,
[8] Because the Court dismisses Plaintiff’s First Amendment claim against the Individual Defendants on the basis of qualified immunity, the Court need not address Defendants’ statute of limitations argument, Doc. No. 9, p. 11–12.
[9] The Court determines that Plaintiff’s separately-actionable claims for tortious interference are not “highly personable
in nature.” A lengthy discussion is not needed to demonstrate that claims for interference with a contractual right and
a prospective economic advantage are unlike the claims previously identified in this Circuit as “highly personable in
nature.”
See, e.g., Brock
,