Doris Freyre v. Chad Cronister ( 2018 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11231
________________________
D.C. Docket No. 8:13-cv-02873-JDW-TBM
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.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(December 14, 2018)
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Before TJOFLAT, MARCUS and NEWSOM, Circuit Judges.
TJOFLAT, Circuit Judge:
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. Fla.
Stat. § 39.3065(1). As to the remaining counties, including Hillsborough County,
the Legislature gave DCF the option to transfer DCF’s responsibility for child-
protective investigations to the county sheriff under grant agreements. Id. §
39.3065(3)(a). The Legislature specified certain minimum requirements that
grantee sheriff’s offices must meet: for example, sheriffs must “operate, at a
minimum, in accordance with the performance standards and outcome measures
established by the Legislature for protective investigations conducted by the
Department of Children and Families.” Id. § 39.3065(3)(b). The Legislature also
specified other requirements for these grant agreements pertaining to appropriation
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and segregation of funds, reporting, and program evaluation. Id. §§ 39.3065(3)(b)-
(d).
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
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hearing in state court. The document was filed with the court, but Freyre was
unable to prove that the state office was served, and HSCO contends that none of
its personnel saw this petition. In any event, MAF was transported to the nursing
facility in Miami without a hearing, and died shortly thereafter.
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 42 U.S.C. § 1983 for infringement of her rights under the
Fourteenth Amendment. A number of these defendants settled out, and in March
2017 the District Court granted Pietrzak’s and Valdez’s motions for summary
judgment as well as HCSO’s motion for summary judgment with respect to all of
Freyre’s claims except her associational ADA claim. The District Court denied
HCSO Eleventh Amendment immunity, and HCSO lodged this interlocutory
appeal two days later. Freyre then cross appealed the District Court’s grant of
summary judgment on her individual ADA, Rehabilitation Act, and § 1983 claims.
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II.
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 the 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. 28 U.S.C. § 1291. “A final order is one that ends the litigation on the
merits and leaves nothing for the court to do but execute its judgment.” World
Fuel Corp. v. Geithner, 568 F.3d 1345, 1348 (11th Cir. 2009) (quoting Crawford
1
Freyre filed this civil action against Sheriff David Gee in his official capacity as Sheriff
of the Hillsborough County Sheriff’s Office. Chad Chronister, Gee’s successor, was later
substituted as the named defendant for Freyre’s official-capacity claim.
5
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& Co. v. Apfel, 235 F.3d 1298, 1302 (11th Cir. 2000)). An order that disposes of
fewer than all the claims of all the parties is not final and appealable unless the
district court certifies the order for immediate review under Federal Rule of Civil
Procedure 54(b). Supreme Fuels Trading FZE v. Sargeant, 689 F.3d 1244, 1245–
46 (11th Cir. 2012) (per curiam). Similarly, an order that contemplates further
substantive proceedings in a case is not final and appealable. Broussard v.
Lippman, 643 F.2d 1131, 1133 (5th Cir. 1981).2 We refer to this as the final
judgment rule.
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, 69 S. Ct. 1221 (1949).
Under Cohen, an otherwise nonappealable 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, 98 S. Ct. 2454, 2458 (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
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions rendered before close of business on
September 30, 1981.
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Eleventh Amendment immunity is a collateral order subject to immediate
interlocutory appeal. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 147, 113 S. Ct. 684, 689 (1993); Black v. Wigington, 811 F.3d
1259, 1270 (11th Cir. 2016); Summit Med. Assocs. v. Pryor, 180 F.3d 1326, 1334
(11th Cir. 1999). Accordingly, the District Court’s denial of Eleventh Amendment
immunity is properly before this Court.
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 district 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
3
Because Sheriff Chronister’s challenge to Freyre’s associational ADA standing is
unreviewable under the collateral order doctrine, his challenge to her associational ADA claim
on the merits is unreviewable a fortiori.
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What’s true of standing is even truer of Freyre’s claims as cross-appellant.
The District Court’s summary judgment order in favor of Valdez-Corey and
Pietrzak “conclusively determine[d] [a] disputed question,”4 but it was not “an
important issue completely separate from the merits”5—indeed, it was the merits.
And the District Court’s grant of summary judgment is reviewable once all the
claims in the case—including the claim pending against Sheriff Chronister—reach
a final decision. See Myers v. Sullivan, 916 F.2d 659, 673 (11th Cir. 1990)
(“[E]arlier interlocutory orders merge into the final judgment, and a party may
appeal the latter to assert error in the earlier interlocutory order.”). This reasoning
likewise extends to Freyre’s individual ADA, Rehabilitation Act, and § 1983
claims, and precludes us from exercising jurisdiction over them under the collateral
order doctrine.
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
4
Livesay, 437 U.S. at 468, 98 S. Ct. at 2458.
5
Id.8
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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, 115 S. Ct. 1203, 1212
(1995)). Although 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 had 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 demonstrated standing to
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pursue her associational ADA claim. 6 See Black, 811 F.3d at 1270–71. Sheriff
Chronister’s argument to the contrary—that the questions are inextricably
intertwined because denying Freyre standing would conclusively resolve this
case7—misses the mark. The question is not whether deciding the pendent issue
would moot the properly appealed issue, but whether “review of the former
decision [is] necessary to ensure meaningful review of the latter.” King, 562 F.3d
at 1379 (alteration in original) (quoting Swint, 514 U.S. at 51, 115 S. Ct. at 1212).
And that simply is not the case here.
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,
6
This also applies to Sheriff Chronister’s merits challenge to the associational ADA
claim as well as all of Freyre’s claims as cross-appellant. All of these issues are separate, legally
and factually, from the legal question of whether HCSO is entitled to Eleventh Amendment
immunity.
7
Appellant’s Br. at 2.
8
Oral Argument at 19:35–24:52, Freyre v. Chronister, ___ F.3d ___ (2018) (No. 17-
11231), goo.gl/pzwMpJ.
10
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811 F.3d at 1270. If we agree, then “a plaintiff who alleges that type of claim . . .
successfully invoke[s] our jurisdiction unless [the] allegations are ‘immaterial and
made solely for purpose of obtaining jurisdiction’ or ‘wholly insubstantial and
frivolous.’” Id. (emphasis added) (quoting Blue Cross & Blue Shield of Ala. v.
Sanders, 138 F.3d 1347, 1352 (11th Cir. 1998)). Here, Sheriff Chronister does not
argue that Freyre’s associational ADA claim is “immaterial” or “insubstantial and
frivolous”; his argument is that she did not adduce enough evidence at summary
judgment to proceed with the claim. Appellant’s Br. at 44–49. But all we need to
proceed to the abrogation question is a legitimate allegation of a claim for which
Congress has abrogated sovereign immunity. See Black, 811 F.3d at 1270.
Accordingly, whether the District Court erred by denying summary judgment on
the associational ADA claim—as Sheriff Chronister argues—or erred by granting
summary judgment on all the other claims—as Freyre argues—is not a question
“inextricably intertwined” with sovereign immunity or abrogation.
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
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judgment, it should prevail if there is “no genuine dispute as to any material fact”
and it is entitled to immunity “as a matter of law.” Fed. R. Civ. P. 56(a). We view
the evidence in the light most favorable to Freyre and draw all reasonable
inferences in her favor. See Valderrama v. Rousseau, 780 F.3d 1108, 1112 (11th
Cir. 2015).
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 Citizens or
Subjects of any Foreign State.
U.S. Const. amend. XI. The Supreme Court has extended this protection to bar
suits against a state in federal court brought by the state’s own citizens. Hans v.
Louisiana, 134 U.S. 1, 15–16, 10 S. Ct. 504, 507–08 (1890). But “the Eleventh
Amendment does not immunize municipalities from suit.” Abusaid v.
Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1301 (11th Cir. 2005).
“An officer, therefore, is entitled to Eleventh Amendment immunity if he is acting
as an arm of the state but not if he is acting as an arm of the county.” Stanley v.
Israel, 843 F.3d 920, 924 (11th Cir. 2016).
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
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defines the entity; (2) what degree of control the State maintains over the entity;
(3) where the entity derives its funds; and (4) who is responsible for judgments
against the entity.” Id. at 1309. Analysis under Manders is function specific; in
addition to determining the defendant’s general status under state law, we also ask
whether the defendant was acting as an arm of the state “in light of the particular
function in which the defendant was engaged when taking the actions out of which
liability is asserted to arise.” Id. at 1308; see also Shands Teaching Hosp. &
Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308, 1311 (11th Cir. 2000) (“The
pertinent inquiry is not into the nature of [an entity’s] status in the abstract, but its
function or role in a particular context.”). Thus, our question is not simply whether
HCSO acts as an arm of the state generally, but whether it does so when
performing child-protective investigations under the Grant Agreement with DCF.
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, 405 F.3d at
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1305–06; Hufford v. Rodgers 912 F.2d 1338, 1341 (11th Cir. 1990). This is based
on several aspects of Florida law, including: (1) the Florida Constitution’s
definition of sheriffs as “county officers,” Fla. Const. art. VIII, § 1(d); (2) the fact
that Florida sheriffs are generally elected by electors of each county, id.; (3)
Florida counties’ prerogative to abolish the office of sheriff altogether, id.
(amended 2018); 9 and (4) Florida courts’ recognition of sheriffs as county officers,
see, e.g., Beard v. Hambrick, 396 So. 2d 708, 711 (Fla. 1981) (“[A] sheriff is a
‘county official,’ and, as such, is an integral part of the ‘county’ . . . .”). “[T]his
definition,” we have explained, “weighs heavily against assigning arm of the state
status to a Florida sheriff.” Stanley, 843 F.3d at 926 (quoting Abusaid, 405 F.3d at
1305).
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
9
At the time of the complained-of conduct, the Florida Constitution provided that “any
county office may be abolished when all the duties of the office prescribed by general law are
transferred to another office.” Fla. Const. art. VIII, § 1(d) (amended 2018). But on November 6,
2018, Florida voters approved Amendment 10, which removed this language from the Florida
Constitution. After amendment, this section provides that “a county charter may not abolish the
office of the sheriff . . . [or] transfer the duties of [the sheriff] to another officer or office.” Fla.
Const. art. VIII, § 1(d) (emphasis added).
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HCSO is carrying out state policy. Specifically, HCSO contracted to perform
child-protective investigations for DCF, a state agency entitled to sovereign
immunity. See Fla. Stat. § 20.19. This relationship is governed by the Grant
Agreement. When HCSO sheltered and transferred MAF, it was acting pursuant to
this Grant Agreement. Thus, the question we must answer is whether, under state
law, the relationship created by the Grant Agreement between DCF and HCSO
weighs in favor of classifying the latter as an arm of the state.
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 (11th Cir. 2007), the label “independent contractor” is legally
significant. Id. at 1044–45. Florida statutes draw a distinction between
“independent contractors,” who are often solely liable 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., the
Supreme Court of Florida explained that “an entity or business acting as an
10
Compare, e.g., Fla. Stat. § 30.24(2)(b) (“independent contractors” transporting
prisoners “shall be solely liable for the prisoner while the prisoner is in the custody of the
company”), id. § 394.462(1)(c) (“independent contractor” transporting patients “is solely liable
for the safe and dignified transport of the patient”), and id. § 916.107(10)(c) (“independent
contractor” transporting clients is “solely liable for the safe and dignified transportation of the
client”), with id. § 766.1115(2) (“It is the intent of the Legislature to ensure that health care
professionals who contract to provide such services as agents of the state are provided sovereign
immunity.” (emphasis added)).
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independent contractor of the government, and not as a true agent, logically cannot
share in the full panorama of the government’s immunity.” 513 So. 2d 1265, 1268
(Fla. 1987) (footnote omitted) (citation omitted) (emphases added); see also Sierra
v. Associated Marine Insts., Inc., 850 So. 2d 582, 590 (Fla. Dist. Ct. App. 2003)
(“[Defendants’] entitlement, if any, to sovereign immunity protection turns on
whether they can be deemed agents of the state under either common law or
statute.”).
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-
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protective investigations—does not fall into this narrow exception to HCSO’s
general status as an independent contractor. 11
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
11
The Grant Agreement casts further doubt on HCSO’s status as an agent by providing
that “[t]he Grantee shall not represent to others that it has the authority to bind the Grantor unless
specifically authorized in writing to do so.”
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sheriffs are elected by county voters. 405 F.3d 1306. And, at the time of the
events that gave rise to this litigation, counties were free to change that procedure
or abolish the office of sheriff altogether. See supra note 9. The sheriff must also
keep his office in the county seat and reside within two miles thereof, “illustrating
the essentially local nature of the office.” Id. at 1306–07. Unlike, e.g., the South
Florida Water Management District, which is governed by a board appointed and
removable by the Governor,12 the office of the sheriff is fundamentally a county
entity.
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
12
See United States ex rel. Lesinski v. S. Fla. Water Mgmt. Dist., 739 F.3d 598, 603 (11th
Cir. 2014).
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Agreement provides HCSO significant autonomy in conducting child-protective
investigations. In addition to designating HCSO as an independent contractor, the
Grant Agreement allows HCSO to develop its own policies and procedures for
child-protective investigations. The Grant Agreement also gives HCSO control
over child-protective investigators and supervisors, and it leaves it to HCSO to
develop hiring criteria for these positions. The Grant Agreement even gives HCSO
the ability to subcontract investigations related to neglect reports and assigns
HCSO “full responsibility” for safety decisions made by subcontractors.
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
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Rosario, 506 F.3d at 1042, 1047 (denying arm-of-the-state status to an independent
contractor in part because Florida had “no supervision of [its] day-to-day
activities” beyond approving letters to prospective program participants).
Sheriff Chronister also argues that HCSO wears a “state hat” when it
performs child-protective 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,
115 S. Ct. 394, 404 (1994) (“[U]ltimate 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,
110 S. Ct. 1868, 1877 (1990))).
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Considering both the autonomy that the Grant Agreement affords HCSO and
the control the state exerts through state-set standards and reporting requirements,
we conclude that this factor is neutral.
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
13
Rosario, 506 F.3d at 1046 (“[A]s Shands and other Eleventh Circuit cases have noted,
the most important factor in determining immunity is who is responsible for judgments against
the entity.” (citing Manders, 338 F.3d at 1325)); Manders, 338 F.3d at 1325 (noting that the
Supreme Court “weigh[ed] this source-of-payment factor heavily” in Hess); id. at 1330(Anderson, J., dissenting) (noting that the Supreme Court “cited with approval the fact that the
vast majority of the circuits have concluded that the state treasury factor is ‘the most important
factor’ to be considered” (quoting Hess, 513 U.S. at 49, 115 S. Ct. at 405)).
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funds are for “providing child protective investigations,” Fla. Stat. § 39.3065(3)(c);
the statute makes no reference to judgments. Second, Florida law authorizes
sheriffs to purchase liability insurance to cover “claims arising out of the
performance of his or her duties or the duties of his or her deputies or employees.”
Id. § 30.555. And HCSO acknowledges that it is self-insured under Florida
Statutes §§ 768.28(16) and 324.171. Finally, this Court has repeatedly
acknowledged that “no provision of Florida law provides state funds to a Florida
sheriff to satisfy a judgment against the sheriff.” Stanley, 843 F.3d at 930 (quoting
Hufford, 912 F.2d at 1342); Abusaid, 405 F.3d at 1312 (same). For these reasons,
we conclude that a judgment against HCSO would not be satisfied with state funds
and that this factor weighs against arm-of-the-state status.
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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