Case 5:12-cv-00218-C Document 7-1 Filed 01/04/13 Page 1 of 7 PageID 132 JAMES C. WETHERBE, PH.D., Plaintiff, v. TEXAS TECH UNIVERSITY, Defendant. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS SAN ANGELO DIVISION CIVIL ACTION NO. 5:12-CV-218 BRIEF IN SUPPORT OF DEFENDANT=S RULE 12(B)(1) MOTION TO DISMISS FOR LACK OF JURISDICTION TO THE HONORABLE SAM R. CUMMINGS, UNITED STATES DISTRICT JUDGE: Defendant TEXAS TECH UNIVERSITY ( TTU or The University ), hereby files its Brief in Support of Defendant s Rule 12(b)(1) Motion to Dismiss for Lack of Jurisdiction, and in support thereof would show this Court the following: A. Rule 12(b) Dismissal Standard. 1. Standard under Rule 12(b)(1). I. ARGUMENT AND AUTHORITIES A case is properly dismissed for lack of subject matter jurisdiction when the court lacks statutory or constitutional power to adjudicate the case. Home Builders Ass n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). The party seeking to invoke jurisdiction bears the burden of demonstrating its existence. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). [T]here is a presumption against subject matter jurisdiction that must be rebutted by the party for Lack of Jurisdiction Page 1
Case 5:12-cv-00218-C Document 7-1 Filed 01/04/13 Page 2 of 7 PageID 133 bringing an action to federal court. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996) (citation omitted). An action may be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) on any of three separate grounds: (1) the complaint standing alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint, the undisputed facts, and the court s resolution of disputed facts. Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir. 1989). Eleventh Amendment immunity operates as a jurisdictional bar, depriving federal courts of the power to adjudicate suits against a state. Cozzo v. Tangipahoa Parish Council-President Gov't, 279 F.3d 273, 280 (5th Cir. 2002); Skelton v. Camp, 234 F.3d 292, 295-96 (5th Cir. 2000). B. Wetherbe s Claims under the United States Constitution are Barred by Eleventh Amendment Immunity. Under the Eleventh Amendment, federal courts lack jurisdiction to entertain suits in law or equity against a non-consenting state, or a state agency, by its own citizens. See In re Soileau, 488 F.3d 302, 305 (5th Cir.2007), cert. denied, 552 U.S. 1180 (2008); Martinez v. Tex. Dep't of Criminal Justice, 300 F.3d 567, 573 (5th Cir.2002). For Eleventh Amendment immunity purposes, a suit against a state agency is a suit against the state. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908 (1983). It is therefore well settled that, unless waived, Eleventh Amendment immunity deprives a federal court of jurisdiction to hear a suit for damages against the State of Texas, any of its agencies, or a Texas state official. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304 (1989); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347 (1974). TTU is a state institution of higher education organized and administered under the statutes of the State of Texas, and is thus a state entity entitled to the full panoply of protections and immunities enjoyed by the State of Texas. See Tex. Educ. Code 109.001, et seq. for Lack of Jurisdiction Page 2
Case 5:12-cv-00218-C Document 7-1 Filed 01/04/13 Page 3 of 7 PageID 134 The Eleventh Amendment to the U.S. Constitution states 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 Citizens or Subjects of any Foreign State. U.S. Const. Amend. XI. There are two well-established exceptions to Eleventh Amendment immunity. First, Congress can abrogate the state s immunity without a state s consent when acting under its authority under the enforcement provisions of section 5 of the Fourteenth Amendment. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142 (1985). Second, a state may waive its immunity and consent to suit in federal court. Id. The state may waive its own immunity either by express legislative act, or through certain conduct, such as removal of a lawsuit from state to federal court. Lapides v. Bd. of Regents of Univ. System of Georgia, 535 U.S. 613, 624, 122 S.Ct. 1640 (2002). Here, however, Wetherbe has pled no facts establishing a waiver of Eleventh Amendment immunity with respect to any of his state law claims, nor his claims under the U.S. and Texas Constitutions. Accordingly, the University is entitled to dismissal of those claims for lack of jurisdiction. 1. Section 1983 does not waive TTU s Eleventh Amendment immunity. In the First and Second Causes of Action contained in his Original Complaint, Wetherbe asserts claims of First Amendment retaliation and due process violations under the Fourteenth Amendment to the U.S. Constitution. (See Clerk s Doc. No. 1, 107-116, pp. 22-23). Wetherbe brings these claims via 42 U.S.C. 1983. (Id.). The states Eleventh Amendment immunity with respect to civil rights claims under 42 U.S.C. 1983 has been litigated exhaustively; and the U.S. Supreme Court has unequivocally held that Section 1983 does not waive a state s immunity under the Eleventh Amendment. Quern v. Jordan, 440 U.S. 332, 338 n. 7, 99 S.Ct. 1139 (1979). Further, it is well-settled that a state entity is for Lack of Jurisdiction Page 3
Case 5:12-cv-00218-C Document 7-1 Filed 01/04/13 Page 4 of 7 PageID 135 not a person for the purposes of the first element of a proper 1983 cause of action. Will 491 U.S. at 71. Thus, state agencies, as subdivisions of the state, are entitled to the immunity defense when sued under 42 U.S.C. 1983. Id.; see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02, 104 S.Ct. 900 (1984). Because TTU is a state entity entitled to the full panoply of protections and immunities enjoyed by the State of Texas (Tex. Educ. Code 109.001), the University is entitled to Eleventh Amendment immunity. Therefore, this Court has no jurisdiction to hear any claims asserted against the University pursuant to 42 U.S.C. 1983. Accordingly, Wetherbe s claims for First Amendment retaliation and due process violations under the Fourteenth Amendment should be dismissed for lack of jurisdiction. 2. Wetherbe s claims under Article 1, sections 8 and 19 of the Texas Constitution are likewise barred by the Eleventh Amendment. In his Fourth Cause of Action, Wetherbe purports to sue TTU for alleged violations of his free speech rights under Article 1, 8 and violation of due course of law under 19 of the Texas Constitution. See Plaintiff s Original Complaint, 119-120, p. 23. However, for the same reasons set forth above, Wetherbe s claims under the Texas Constitution are also barred by Eleventh Amendment immunity. Wetherbe has not, and cannot, allege any consent by the State of Texas to be sued under its constitution in federal court. Even if such claims would be proper in a state district court, which in this case they would not, a state does not waive its Eleventh Amendment immunity by consenting to suit only in its own courts. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 306 (1990). Rather, in order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the state's intention to subject itself to suit in federal court. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241 (1985). No such waiver is implicated in this case. Further, to the extent Wetherbe seeks damages under such a claim, he may for Lack of Jurisdiction Page 4
Case 5:12-cv-00218-C Document 7-1 Filed 01/04/13 Page 5 of 7 PageID 136 not do so as a matter of law. City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (1995) (holding there is no implied private right of action for damages arising from the Texas Constitution). To the extent he seeks only prospective injunctive relief, the Texas Supreme Court has clarified that suits to require state officials to comply with statutory or constitutional provisions are not cognizable against the state agency itself. City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009). Accordingly, the Court should grant TTU s motion and dismiss Wetherbe s claims under the Texas Constitution as well. 3. Wetherbe s claims under The Federal Declaratory Judgments Act also fail to invoke this Court s Jurisdiction and should be dismissed. The Declaratory Judgment Act (DJA) permits federal courts to issue declarations as to the rights of parties to a controversy. 28 U.S.C. 2201(a) (West 2009). However, the Act cannot confer jurisdiction on the court; instead, DJA claims must be appended or relate to an existing case or controversy over which the trial court has subject matter jurisdiction. Skelly Oil Co. v. Phillips Co., 339 U.S. 667, 671-72, 70 S.Ct. 876 (1950); Anago, Inc. v. Tecnol Medical Products, Inc., No.3-92- 250-H, 1992 WL 387242, n3 at *3 (N.D.Tex. Nov. 27, 1992) (citing Borden v. Katzman, 881 F.2d 1035, 1037 (11th Cir.1989). In his Third Cause of Action, Wetherbe purports to sue for two declarations: (1) that he is entitled to the rank of Professor; and (2) that his contract is valid and cannot be terminated except upon one year s notice to be effective the beginning of the fall semester following the one year notice. See Plaintiff s Original Complaint, 117-118, p. 23. However, Wetherbe s claims under the DJA are not properly before the Court because, as shown above, he cannot demonstrate that the Court has subject matter jurisdiction over a case or controversy relevant to the requested declarations. Skelly Oil, 339 U.S. at 671-72. for Lack of Jurisdiction Page 5
Case 5:12-cv-00218-C Document 7-1 Filed 01/04/13 Page 6 of 7 PageID 137 As plead, Wetherbe s request for a declarations as to his rank and contract termination could only be appended to his civil rights claims under 42 U.S.C. 1983, neither of which are within the Court s jurisdiction because of Eleventh Amendment immunity. See Section B(1) supra. Further, Wetherbe s request for declaratory relief is nothing more than a preemptive attempt to bring an action to enforce a contract, a state law claim for which the Eleventh Amendment also bars this Court s jurisdiction. See Pennhurst State Sch., 465 U.S. at 121. Accordingly, the Court has no jurisdiction over Wetherbe s requests for declaratory relief under the federal DJA, and the same should be dismissed. II. CONCLUSION FOR THE FOREGOING REASONS, Defendant Texas Tech University respectfully requests that the Court grant its Motion to Dismiss and enter an order dismissing all claims. Respectfully submitted, GREG ABBOTT Texas Attorney General DANIEL T. HODGE First Assistant Attorney General DAVID MATTAX Director of Defense Litigation JAMES BEAU ECCLES Chief, General Litigation Division /s/ Gunnar P. Seaquist GUNNAR P. SEAQUIST Texas Bar No. 24043358 Assistant Attorney General Texas Attorney General=s Office General Litigation Division for Lack of Jurisdiction Page 6
Case 5:12-cv-00218-C Document 7-1 Filed 01/04/13 Page 7 of 7 PageID 138 P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 475-4093 (512) 320-0667 FAX Gunnar.seaquist@texasattorneygeneral.gov CERTIFICATE OF SERVICE ATTORNEYS FOR DEFENDANT I certify that a copy of the above Defendants Rule 12(b)(1) Motion to Dismiss for Lack of Jurisdiction was served as follows, on the 4 th day of January 2013, upon the following individuals at the listed addresses: Holly B. Williams Williams Law Firm, P.C. 1209 W. Texas Ave. Midland, TX 79701 ATTORNEYS FOR PLAINTIFF X X Via CM/ECF electronic service Via Certified Mail Return Receipt Requested Via Facsimile Via Regular Mail /s/ Gunnar P. Seaquist GUNNAR P. SEAQUIST Assistant Attorney General for Lack of Jurisdiction Page 7