Public Employees — Retaliatory discharge — protected speech

Civil rights — Public employees — Speech — Retaliation — Public
employee’s subpoenaed trial testimony was protected by First Amendment —
Truthful testimony under oath by a public employee outside the scope of his
ordinary job duties is speech as a citizen for First Amendment purposes —
Community college president who terminated plaintiff was entitled to qualified
immunity from claim made against him in his individual capacity — Sovereign
immunity — Claim against community college president seeking equitable relief
of reinstatement was not barred by Eleventh Amendment

EDWARD R. LANE, Plaintiff-Appellant, v. CENTRAL ALABAMA COMMUNITY COLLEGE,
STEVE FRANKS, in His Individual Capacity, and SUSAN BURROW, in Her Official
Capacity as Acting President of Central Alabama Community College,
Defendants-Appellees. 11th Circuit. Case No. 12-16192. Non-Argument Calendar.
October 8, 2014. Appeal from the U.S. District Court for the Northern District
of Alabama (No. 4:11-cv-00883-KOB).

(Before MARTIN, FAY, and EDMONDSON, Circuit Judges.)

(PER CURIAM.) In Lane v. Cent. Ala. Cmty. Coll., 523 Fed. Appx. 709
(11th Cir. 2013) (per curiam), we affirmed the district court’s grant of summary
judgment in favor of Steve Franks, former president of Central Alabama Community
College (“CACC”), in Lane’s 42 U.S.C. § 1983 civil action alleging retaliation
in violation of the First Amendment. We concluded — based on existing Eleventh
Circuit precedent — that Lane’s subpoenaed testimony at a federal criminal
trial about acts that he performed as part of his official duties as a CACC
employee was not speech made “primarily in [Lane’s] role as a citizen” and,
thus, was not protected by the First Amendment. Id. at 712. We also said
that, even if a First Amendment violation had occurred, Franks would be entitled
to qualified immunity from the claim against him individually because Lane’s
First Amendment right was not clearly established under then-existing law.
Id. at 711 n.2. Because we determined that no First Amendment violation
occurred, we had no need to decide whether Franks was entitled to sovereign
immunity from Lane’s claim against him in his official capacity.1 Id. at 711.

The United States Supreme Court granted certiorari and, in Lane
v. Franks, 134 S.Ct. 2369 (2014) [24 Fla. L. Weekly Fed. S875a],
affirmed in part and reversed in part our decision and remanded the case for
further proceedings. The Supreme Court concluded that Lane’s subpoenaed trial
testimony was protected by the First Amendment. The Supreme Court said
that “[t]ruthful testimony under oath by a public employee outside the scope of
his ordinary job duties is speech as a citizen for First Amendment purposes . .
. even when the testimony relates to his public employment or concerns
information learned during that employment.” Id. at 2378. Because Lane
testified about a matter of public concern, and because CCAC offered no
justification for treating Lane differently from other members of the general
public, Lane’s testimony was protected under the First Amendment. Id. at
2380-81.

Although the Supreme Court ruled that a First Amendment violation had
occurred, the Court determined that the constitutional question had not been
“beyond debate” when Franks terminated Lane’s employment. Id. at 2383. As
a result, Franks was entitled to qualified immunity from the claim made against
him in his individual capacity. Id. Accordingly, the Court affirmed the
dismissal of Lane’s claim against Franks individually. Id.

Because we had declined to decide — and the parties had failed to argue on
certiorari review — whether Franks (now Burrow) was entitled to sovereign
immunity from Lane’s official capacity claim seeking equitable relief,2 the Supreme Court remanded the case for further
proceedings. Id. We now address the sovereign immunity issue.

The district court concluded that Lane’s official-capacity claim against
Franks for equitable relief was barred by the Eleventh Amendment. We review the
district court’s ruling de novo. See Summit Med. Assocs., P.C. v. Pryor,
180 F.3d 1326, 1334 (11th Cir. 1999).

Generally speaking, the Eleventh Amendment bars civil actions against state
officials in their official capacity “when the state is the real, substantial
party in interest.” Pennhurst State Sch. & Hosp. v. Halderman, 104
S.Ct. 900, 908 (1984). Pursuant to the exception established in Ex parte
Young, 28 S.Ct. 441 (1908), official-capacity suits against state officials
are permissible, however, under the Eleventh Amendment when the plaintiff seeks
“prospective equitable relief to end continuing violations of
federal law.” See Summit Med. Assocs., 180 F.3d at 1336 (emphasis in
original).

Here, Lane seeks equitable relief in the form of reinstatement of his
employment. We have determined previously that requests for reinstatement
constitute prospective injunctive relief that fall within the scope of the Ex
parte Young exception and, thus, are not barred by the Eleventh
Amendment. See Cross v. Ala. State Dep’t of Mental Health & Mental
Retardation, 49 F.3d 1490, 1503 (1995); Lassiter v. Ala. A & M Univ.,
Bd. of Trs., 3 F.3d 1482, 1485 (11th Cir. 1993), vacated on other
grounds, 28 F.3d 1146 (11th Cir. 1994).

And given our precedents, nothing demonstrates to us that Lane’s requested
reinstatement is considerably different, implicating Alabama’s sovereignty
interests and funds so significantly that the Ex parte Young exception
would be inapplicable. In Idaho v. Coeur d’Alene Tribe, 117 S.Ct. 2028
(1997), the Supreme Court concluded that a state was entitled to Eleventh
Amendment protection from a suit asserting ownership in certain submerged land
and navigable waterways within the state. The Supreme Court noted that the
relief sought was “functional[ly] equivalent” to a quiet title action barred by
the Eleventh Amendment. Id. at 2040. Moreover, the requested relief would
“diminish, even extinguish, the State’s control [not just state ownership but
the power to regulate or affect in any way] over a vast reach of land and waters
long deemed by the State to be an integral part of its territory.” Id.
Under the “particular and special circumstances” of the case — where the
state’s sovereign interests “would be affected in a degree fully as intrusive as
almost any conceivable retroactive levy upon funds in its Treasury” — the state
was entitled to Eleventh Amendment protection. Id. at 2043.

This case is not like Coeur d’Alene. Here, the special sovereignty
interest is lacking: this case does not involve land; Lane’s requested
reinstatement is not the “functional equivalent” of a form of relief otherwise
barred by the Eleventh Amendment. Cf. Summit Med. Assocs., 180 F.3d at
1340-41 (distinguishing Coeur d’Alene).

That Lane’s reinstatement would require the State to pay Lane’s salary does
not trigger Eleventh Amendment protection. The Supreme Court has recognized that
compliance with the terms of prospective injunctive relief will often
necessitate the expenditure of state funds. See Edelman v. Jordan, 94
S.Ct. 1347, 1358 (1974). And “[s]uch an ancillary effect on the state treasury
is a permissible and often an inevitable consequence of the principle announced
in Ex parte Young.” Id.

In the light of our reinstatement precedents, we conclude that the
district court erred in dismissing Lane’s official-capacity claim against Franks
as barred by the Eleventh Amendment.

We affirm in part and vacate in part; and we remand the case for further
proceedings consistent with this opinion and with the Supreme Court’s decision
in Lane
v. Franks, 134 S.Ct. 2369 (2014) [24 Fla. L. Weekly Fed.
S875a].3

AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.

__________________

1Lane’s claim against Franks in his
official capacity is now a claim against Susan Burrow, in her official capacity
as CACC’s acting President.

2Lane has abandoned expressly his claim
for money damages against Franks in his official capacity. See Lane, 523
Fed. Appx. at 710 n.1.

3We acknowledge that the C.I.T.Y. Program
for which Lane served as Director is no longer in existence. We are unconvinced
that this fact, in and of itself, renders Lane’s request for reinstatement moot,
particularly where Lane has alleged that the program was merely reorganized and
renamed. But we suggest that it might be necessary for the district court to
engage in additional factfinding on this issue to determine what form of
equitable relief is available to Lane.