Taquila Monroe v. Board of Regents of the University System of Georgia

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14409
____________________
TAQUILA MONROE,
Plaintiff-Appellant,
versus
FORT VALLEY STATE UNIVERSITY,
Defendant,
BOARD OF REGENTS OF THE UNIVERSITY
SYSTEM OF GEORGIA,
Defendant-Appellee
____________________
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2 Opinion of the Court 21-14409
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:21-cv-00089-MTT
____________________
Before BRANCH, BRASHER , and E D C ARNES , Circuit Judges.
E D C ARNES , Circuit Judge:
This appeal requires us to determine whether Congress ab-
rogated sovereign immunity for lawsuits against States under the
anti-retaliation provision of the False Claims Act (FCA), 31 U.S.C.
§ 3730(h). And whether the Board of Regents of the University
System of Georgia is an arm of the State entitled to the same im-
munity the State would have. Because Congress didn’t abrogate
sovereign immunity under that provision, and the Board is an arm
of the State, the district court correctly granted the Board’s motion
to dismiss the plaintiff’s complaint.
I.
Taquila Monroe was hired in August 2020 to serve as the
Program Director for Fort Valley State University’s Head Start and
Early Head Start department, and she reported to the executive di-
rector of that department.1 About five months after she was hired,
Monroe was terminated. She filed a lawsuit against the Board,
1 Head Start is a federal program designed “to promote the school readiness of
low-income children by enhancing their cognitive, social, and emotional de-
velopment.” 42 U.S.C. § 9831.
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21-14409 Opinion of the Court 3
asserting claims under the Georgia Whistleblower Act, Ga. Code
Ann. § 45-1-4, and the FCA’s anti-retaliation provision, 31 U.S.C.
§ 3730(h)(1).2
Monroe’s amended complaint (the operative one) alleges
that Fort Valley receives millions of dollars annually from the U.S.
Department of Health and Human Services to fund Early Head
Start services for children up to the age of three and Head Start
services for children ages three to five.3 The university’s Head
Start programs are also “partly supported by matching funds from
the State of Georgia.” Fort Valley uses those federal and state mon-
ies to deliver resources and services to local providers. Those local
providers are called “subrecipients,” and they run Head Start pro-
grams in their communities.
Monroe alleges that she “discovered pervasive, systematic
problems in the structure of” Fort Valley’s Head Start programs
and that her attempts to “implement reforms” were “rebuffed” by
her boss, the executive director of the programs. She asserts that
2 Monroe initially sued both Fort Valley and the Board, but the district court
dismissed Fort Valley because a member institution of the State of Georgia’s
university system “is not a separate or distinct legal entity from the Board and,
therefore, cannot sue or be sued in its own capacity.” See Bd. of Regents of the
Univ. Sys. of Ga. v. Doe, 630 S.E.2d 85, 87 (Ga. Ct. App. 2006). Monroe does not
challenge that decision, and Fort Valley is not a party to this appeal.
3 When reviewing the grant of a motion to dismiss, we take the factual allega-
tions in the complaint as true and construe them in the light most favorable to
the plaintiff. See Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
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4 Opinion of the Court 21-14409
Fort Valley misallocates Head Start funds and mismanages the
Head Start programs in ways that make them non-compliant with
federal standards. Monroe specifically alleges that Fort Valley has
been guilty of: overspending on the costs of “developing and ad-
ministering” Head Start grants; allocating Head Start funds to an
employee primarily engaged in unrelated projects; using grant
funds to pay down debts; improperly serving as both a grantee of
the programs and a subrecipient of their benefits; excluding the
Head Start policy council (comprised of parents and community
leaders) from program decision-making; disregarding qualification
requirements for subrecipients’ teachers; and refusing to imple-
ment required protocols for monitoring subrecipient performance.
Monroe claims that she was fired because she reported those
alleged improprieties to the executive director. Fort Valley sent
Monroe a termination letter stating that her actions “were not
properly vetted to ensure that the Head Start and Early Head Start
programs [were] continuing to operate within the established [Fort
Valley] system.”
Monroe filed suit under state law and the FCA’s anti-retalia-
tion provision, which provides relief to an employee discharged be-
cause of efforts to stop the presentment of false claims to the fed-
eral government. See 31 U.S.C. § 3730(h). The Board filed a mo-
tion to dismiss her complaint. The district court decided that the
FCA’s anti-retaliation provision permits lawsuits against States.
But the court also decided that Congress did not unequivocally ab-
rogate the Eleventh Amendment sovereign immunity of States
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21-14409 Opinion of the Court 5
from suits brought under that provision. Finally, the court decided
that because the Board of Regents is an arm of the State, the Elev-
enth Amendment shields it from liability on Monroe’s FCA and
Georgia Whistleblower Act claims. We agree.
II.
Whether the Georgia Board of Regents is an entity that can
be sued under the anti-retaliation provision of the FCA is a matter
of statutory interpretation. Whether the Board has sovereign im-
munity from Monroe’s lawsuit is a jurisdictional matter. The dis-
trict court ruled on both issues.
We are generally required to address jurisdiction as a thresh-
old issue before reaching the merits of a case. See Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 93–102 (1998) (rejecting view that
courts may decline to address questions of jurisdiction and proceed
to more easily resolvable questions of merits); Gardner v. Mutz, 962
F.3d 1329, 1339 (11th Cir. 2020) (“[T]he Supreme Court has ex-
pressly condemned the exercise of a so-called ‘“hypothetical juris-
diction” that enables a court to resolve contested questions of law
when its jurisdiction is in doubt.’”) (quoting Steel Co., 523 U.S. at
101). But the Supreme Court has said that there are circumstances
in which it is “possible, and indeed appropriate, to decide the stat-
utory issue” of whether a party is subject to suit under a statute
before deciding the jurisdictional issue of sovereign immunity. Vt.
Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 780
(2000). For reasons we will explain, it is unnecessary for us to
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6 Opinion of the Court 21-14409
decide in this case the answer to the first issue, the statutory inter-
pretation one.
The district court decided as a matter of statutory interpre-
tation that the FCA’s anti-retaliation provision allows for suit
against the Board. The Board has not challenged that decision be-
fore us. It didn’t raise the issue in its brief. The Board’s counsel
acknowledged that it could prevail in the appeal by winning on ei-
ther of the two issues but the clearest way was with the Eleventh
Amendment non-abrogation issue. By failing to raise the statutory
issue before this Court, the Board has, for purposes of this appeal,
“abandoned any argument” that it is not subject to suit under the
terms of the anti-retaliation provision of the FCA. Sapuppo v. All-
state Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014); see In re
Blue Cross Blue Shield Antitrust Litig. MDL 2406, 85 F.4th 1070, 1092
(11th Cir. 2023) (“We will not consider issues that a party fails to
brief adequately.”); Regions Bank v. Legal Outsource PA, 936 F.3d
1184, 1189 (11th Cir. 2019) (“[The defendants] have failed to argue
or cite caselaw [in support of a position . . .], so we consider that
issue abandoned.”); United States v. Willis, 649 F.3d 1248, 1254 (11th
Cir. 2011) (“A party seeking to raise a claim or issue on appeal must
plainly and prominently so indicate. . . . Where a party fails to abide
by this simple requirement, he has waived his right to have the
court consider that argument.”) (alteration adopted) (quotation
marks omitted); Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1330 (11th Cir. 2004) (“Any issue that an appellant wants the Court
to address should be specifically and clearly identified in the brief. .
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21-14409 Opinion of the Court 7
. . Otherwise, the issue — even if properly preserved at trial — will
be considered abandoned. . . .”) (quotation marks omitted).
We do not express or imply any view on whether the FCA’s
anti-retaliation provision provides a private cause of action against
a state agency in the circumstances of this case. We do hold that
the Board has forfeited that issue by not raising it before us. We
turn to the Eleventh Amendment sovereign immunity issue, which
the parties have raised and argued to us.
III.
The Eleventh Amendment 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. It “largely shields states
from suit in federal courts without their consent, leaving parties
with claims against a State to present them, if the State permits, in
the State’s own tribunals.” United States ex rel. Lesinski v. S. Fla. Wa-
ter Mgmt. Dist., 739 F.3d 598, 601 (11th Cir. 2014) (quotation marks
omitted). But Eleventh Amendment immunity doesn’t apply, even
to unconsenting States, if Congress has abrogated the immunity
pursuant to a valid exercise of its power. Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 55 (1996).
“To temper Congress’ acknowledged powers of abrogation
with due concern for the Eleventh Amendment’s role as an essen-
tial component of our constitutional structure,” the Supreme
Court has “applied a simple but stringent test: Congress may
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8 Opinion of the Court 21-14409
abrogate the States’ constitutionally secured immunity from suit in
federal court only by making its intention unmistakably clear in the
language of the statute.” Dellmuth v. Muth, 491 U.S. 223, 227–28
(1989) (quotation marks omitted). Because it is “incumbent upon
the federal courts to be certain of Congress’ intent before finding
that federal law overrides the guarantees of the Eleventh Amend-
ment,” Congress must “unequivocally express this intention in the
statutory language.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234,
243 (1985), superseded by statute on other grounds, Rehabilitation Act
Amendments of 1986, Pub. L. No. 99-506, § 1003, 100 Stat. 1807,
1845. Which is to say, if Congress “chooses to subject the States to
federal jurisdiction, it must do so specifically,” because “[a] general
authorization for suit in federal court is not the kind of unequivocal
statutory language sufficient to abrogate the Eleventh Amend-
ment.” Id. at 246; see Seminole Tribe of Fla. v. Florida, 11 F.3d 1016,
1024 (11th Cir. 1994), aff’d, 517 U.S. 44 (1996). Authorizing a law-
suit generally is not tantamount to specifically authorizing a law-
suit against a State in federal court.
Monroe contends that the FCA’s anti-retaliation provision,
31 U.S.C. § 3730(h)(1), contains an unequivocal abrogation of sov-
ereign immunity. This is what that provision says:
Any employee, contractor, or agent shall be entitled
to all relief necessary to make that employee, contrac-
tor, or agent whole, if that employee, contractor, or
agent is discharged, demoted, suspended, threatened,
harassed, or in any other manner discriminated
against in the terms and conditions of employment
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21-14409 Opinion of the Court 9
because of lawful acts done by the employee, contrac-
tor, agent or associated others in furtherance of an
action under this section or other efforts to stop 1 or
more violations of this subchapter.
31 U.S.C. § 3730(h)(1).
There is no “unmistakably clear” abrogation of State sover-
eign immunity here. Dellmuth, 491 U.S. at 228 (quotation marks
omitted). Like the statute at issue in Dellmuth, the FCA’s anti-retal-
iation provision does not mention the Eleventh Amendment. It
does not mention the States. It does not mention abrogation. And
it does not mention who may be sued for violating it. See id. at 231
(concluding that a statute did not abrogate sovereign immunity be-
cause it included “no reference whatsoever to either the Eleventh
Amendment or the States’ sovereign immunity,” did not “address
abrogation in even oblique terms,” and did not “speak to what par-
ties are subject to suit”). The FCA’s anti-retaliation provision al-
lows “[a]ny employee, contractor, or agent” to seek relief in federal
court, but it doesn’t say that a State may be ordered to provide that
relief. 31 U.S.C. § 3730(h)(1). Instead, the provision provides only
“[a] general authorization for suit in federal court.” Dellmuth, 491
U.S. at 231 (quotation marks omitted); see also Atascadero, 473 U.S.
at 245–46 (concluding that the statute allowing for recovery against
“any recipient of Federal assistance” did not abrogate sovereign im-
munity though it was undisputed that the defendant State fit into
that category) (quoting 29 U.S.C. § 794a(a)(2)). The FCA’s anti-re-
taliation provision falls short of an unequivocal expression of intent
to subject States to suit. See Atascadero, 473 U.S. at 243.
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Faced with the absence of statutory language to support her
position, Monroe invents language as she walks us through amend-
ments to the statute. The previous version of the anti-retaliation
provision enacted in 1986 stated in relevant part:
Any employee who is discharged, demoted, sus-
pended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of
employment by his or her employer because of lawful
acts done by the employee on behalf of the employee
or others in furtherance of an action under this sec-
tion, including investigation for, initiation of, testi-
mony for, or assistance in an action filed or to be filed
under this section, shall be entitled to all relief neces-
sary to make the employee whole.
31 U.S.C. § 3730(h) (1986) (emphasis added); see also False Claims
Amendments Act of 1986, Pub. L. No. 99-562, § 4, 100 Stat. 3153,
3157–58. Monroe points out that in 2009 Congress amended the
statute to remove the words “by his or her employer.” See 31 U.S.C.
§ 3730(h)(1); Fraud Enforcement and Recovery Act of 2009, Pub. L.
No. 111-21, § 4(d), 123 Stat. 1617, 1624–25. She also considers it
significant that, in the wake of the Supreme Court’s 2000 holding
in Vermont Agency that the definition of “person” in the qui tam lia-
bility provision of the FCA does not encompass the sovereign, see
529 U.S. at 780–87, Congress elected not to include “person” in the
revised version of § 3730(h). In Monroe’s view, we can infer an in-
tent to allow suits against States from Congress’ removal of the
words “his or her employer” and failure to replace them with the
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21-14409 Opinion of the Court 11
word “person,” which the Supreme Court had established was in-
sufficient to abrogate sovereign immunity.
That’s not how Eleventh Amendment abrogation works. In-
ferences aren’t enough. Our basis for finding an abrogation must
be “textual,” Dellmuth, 491 U.S. at 230, “specific[],” Atascadero, 473
U.S. at 246, and grounded “only [in] the clearest indications” from
Congress, id. at 243. Not implied, general, and ambiguous. Mon-
roe cites no case (and we have found none) where a court held that
Congress abrogated sovereign immunity merely by omitting a
word that isn’t sufficient to abrogate immunity without adding
words that are sufficient.
The non-vacated decisions she cites where Congress abro-
gated the Eleventh Amendment’s protections — including cases
where courts considered amendments to the statutes at issue — are
easily distinguishable based on the statutes’ use of the term “State”
or terms synonymous with States or state entities. See Kimel v. Fla.
Bd. of Regents, 528 U.S. 62, 68, 73–74 (2000) (concluding that Age
Discrimination in Employment Act, 29 U.S.C. § 621, abrogated sov-
ereign immunity where it incorporated by reference a statute
amended to permit actions “against any employer (including a pub-
lic agency)”) (quoting 29 U.S.C. § 216(b)); Seminole Tribe, 517 U.S.
at 57 (concluding that “numerous references to the ‘State’ in the
text of § 2710(d)(7)(B) ma[d]e it indubitable that Congress intended
through the Act to abrogate the States’ sovereign immunity”); A.W.
v. Jersey City Pub. Schs., 341 F.3d 234, 238, 242–50 (3d Cir. 2003) (con-
cluding that “Congress unequivocally expressed its intent to
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12 Opinion of the Court 21-14409
condition participation in . . . two federal assistance programs on
the state’s relinquishment of its immunity” where statutes explic-
itly stated that State would not be immune under the Eleventh
Amendment for violations of those statutes); Bd. of Trs. of Univ. of
Ala. v. Garrett, 531 U.S. 356, 363–64 (2001) (finding clear statement
of intent to abrogate where statute explicitly stated that “[a] State
shall not be immune under the eleventh amendment . . . for a vio-
lation of this chapter”) (quoting 42 U.S.C. § 12202). Nothing like
that language appears in the anti-retaliation provision of the FCA.
We are not alone in concluding that the anti-retaliation pro-
vision of the FCA doesn’t abrogate sovereign immunity. Every cir-
cuit that has addressed the issue in a published opinion has held
that the previous version of 31 U.S.C. § 3730(h) (the one that in-
cluded the word “employer”) did not abrogate sovereign immun-
ity. See Wood ex rel. United States v. Am. Inst. in Taiwan, 286 F.3d
526, 535 (D.C. Cir. 2002) (concluding that a government entity “en-
joy[ed] sovereign immunity” in suit under § 3730(h)); United States
v. Tex. Tech Univ., 171 F.3d 279, 294–95 (5th Cir. 1999) (concluding
that a suit against State defendants under § 3730(h) “must be dis-
missed” due to “Eleventh Amendment implications”); LeBlanc v.
United States, 50 F.3d 1025, 1028–30 (Fed. Cir. 1995) (concluding
that sovereign immunity applied where the plaintiff “ha[d] not di-
rected us to any statutory language that even hints that Congress
intended to subject the federal government to suit under section
3730(h)”). Those holdings remain persuasive following Congress’
modification of the language in § 3730(h) because, as we have ex-
plained, the post-amendment version of the provision gives no
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21-14409 Opinion of the Court 13
more indication that States are subject to suit than the pre-amend-
ment version did.
Because Congress did not abrogate sovereign immunity for
suit under 31 U.S.C. § 3730(h)(1) with unmistakable clarity, see
Dellmuth, 491 U.S. at 228, state entities may invoke the Eleventh
Amendment to defend against FCA anti-retaliation suits.
IV.
Having determined that Congress did not abrogate state
sovereign immunity under 31 U.S.C. § 3730(h)(1), we turn now to
the issue of whether the Georgia Board of Regents is entitled to it.
An entity is protected by a State’s Eleventh Amendment immunity
if it is an arm of the State. See Lesinski, 739 F.3d at 602. The Board
insists it is that. Monroe says the Board isn’t that.
We have held the Georgia Board of Regents is an arm of the
State entitled to sovereign immunity. See Barnes v. Zaccari, 669 F.3d
1295, 1298, 1308–09 (11th Cir. 2012) (reversing denial of summary
judgment to Board on sovereign immunity grounds and stating:
“The Board is an arm of the State of Georgia.”); Williams v. Bd. of
Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1301–02 (11th Cir. 2007)
(holding that “the Eleventh Amendment bar[red] suit against” the
Board, which is a “state entit[y] for Eleventh Amendment pur-
poses”); see also Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S.
613, 620 (2002) (concluding that “the State” (i.e., the Board) had
waived Eleventh Amendment immunity by removing case to fed-
eral court); Stroud v. McIntosh, 722 F.3d 1294, 1299 (11th Cir. 2013)
(explaining that in Lapides, “[a] university professor sued the Board
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14 Opinion of the Court 21-14409
of Regents of the University System of Georgia (an arm of the
state)”).
Monroe contends that, notwithstanding that precedent, we
must apply our usual arm-of-the-State test to determine if the
Board was acting as a sovereign instrumentality when it performed
(through Fort Valley) the particular functions at issue in this case.
But nothing about Fort Valley’s administration of the Head Start
and Early Head Start programs changes the Board’s status as an
arm of the State of Georgia.
This Court considers four factors to determine whether an
entity is an arm of the State entitled to Eleventh Amendment im-
munity: “(1) how state law defines the entity; (2) what degree of
control the State maintains over the entity; (3) where the entity de-
rives its funds; and (4) who is responsible for judgments against the
entity.” Manders v. Lee, 338 F.3d 1304, 1309 (11th Cir. 2003) (en
banc). We begin with the two factors we have identified as most
important: how state law defines the entity, see Versiglio v. Bd. of
Dental Exam’rs of Ala., 686 F.3d 1290, 1292 (11th Cir. 2012), and who
is responsible for judgments against it, see Freyre v. Chronister, 910
F.3d 1371, 1384 & n.13 (11th Cir. 2018); Rosario v. Am. Corrective
Counseling Servs., Inc., 506 F.3d 1039, 1046 (11th Cir. 2007).
A. How State Law Defines the Entity
The way that state law defines the Board is important in de-
termining its arm-of-State status. That’s “because states have ex-
tremely wide latitude in determining their forms of government
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21-14409 Opinion of the Court 15
and how state functions are performed.” Manders, 338 F.3d at 1309
n.10.
In Versiglio we held that a dental examiners board was an
arm of the State of Alabama entitled to Eleventh Amendment im-
munity. 686 F.3d at 1292–93. That decision relied on the Alabama
Supreme Court’s determination that the board was entitled to sov-
ereign immunity under the state constitution. Id. Observing that
“[t]his court gives great deference to how state courts characterize
the entity in question,” we declined to reach a conclusion “diamet-
rically opposed to the findings of the highest state court to consider
the issue.” Id.; see also McAdams v. Jefferson Cnty. 911 Emergency
Commc’ns. Dist., 931 F.3d 1132, 1134–35 (11th Cir. 2019) (rejecting
sovereign immunity defense and relying on state supreme court de-
cision that entity analogous to defendant was not “agency of the
state”); Walker v. Jefferson Cnty. Bd. of Educ., 771 F.3d 748, 755–56
(11th Cir. 2014) (relying on Alabama Supreme Court holding that
local school boards were not arms of the State with respect to em-
ployment decisions to reach same conclusion).
Monroe concedes that “the Board and its affiliates are state
created entities.” The Board was created by the Georgia Constitu-
tion and holds constitutional and statutory mandates to manage
the university system of the State of Georgia. See Ga. Const. art.
VIII, § 4 ¶ I(b); Ga. Code Ann. § 20-3-51. Under the Georgia Con-
stitution, “[i]t is settled that the Board is an agency of the State to
which sovereign immunity applies.” Olvera v. Univ. Sys. of Ga.’s Bd.
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16 Opinion of the Court 21-14409
of Regents, 782 S.E.2d 436, 437 (Ga. 2016); see Versiglio, 686 F.3d at
1292–93.
Monroe argues that a “federally backed [Head Start/ Early
Head Start] program” is not a state entity under state law. But she
did not sue a federally backed “program.” She sued the Board,
which Georgia treats as a state entity entitled to sovereign immun-
ity. This factor strongly favors treating the Board as an arm of the
State.
B. Who Is Responsible for a Judgment Against the Board
“[W]hen the action is in essence one for the recovery of
money from the state, the state is the real, substantial party in in-
terest and is entitled to invoke its sovereign immunity from suit . .
. .” Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); see also
Williams v. Dist. Bd. of Trs. of Edison Cmty. Coll., 421 F.3d 1190, 1194
(11th Cir. 2005) (concluding that a community college was arm of
the State where “the state [was] ultimately responsible for [its] lia-
bilities”). This factor weighs in favor of applying sovereign immun-
ity when “the state’s treasury is directly implicated.” Lesinski, 739
F.3d at 605 (alterations adopted) (quotation marks omitted); see also
Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308,
1313 (11th Cir. 2000) (concluding that a third party administrator
of state health care services program was state entity where a judg-
ment against it “would implicate state funds”).
The Board insists that no entity other than the State of Geor-
gia could be held liable for a judgment against the state agency that
is constitutionally and statutorily responsible for managing
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21-14409 Opinion of the Court 17
Georgia’s university system. Monroe admits that the Board “gets
some traction” on this argument. More accurately, with this argu-
ment the Board is on solid ground. It is the only remaining defend-
ant in this suit. Its funding derives from the state legislature. See
Ga. Const. art. VIII, § 4 ¶ I(c). And a judgment would have to be
paid out of State funds.
Monroe asserts that discovery is appropriate to determine
whether the Board has liability coverage to protect against adverse
judgments. But the availability of liability insurance does not make
the Board less of a state entity for sovereign immunity purposes.
The Supreme Court has rejected the argument that a State’s pur-
chase of insurance to protect itself from liability diminishes its
claim to sovereign immunity, explaining: “[I]t is the entity’s poten-
tial legal liability, rather than its ability or inability to require a third
party to reimburse it, or to discharge the liability in the first in-
stance, that is relevant.” See Regents of Univ. of Cal., 519 U.S. at 431;
see also Lesinski, 739 F.3d at 605 (rejecting argument that existence
of self-insurance fund ensuring that defendant entity and not the
State would be liable for a judgment was “determinative of the [en-
tity’s] status as an arm of the state”).
The State of Georgia is responsible for judgments against
the Board of Regents, and state law defines it as an arm of the State.
Thus, the two most important factors favor immunity. We now
turn to the remaining two factors: the degree of control the State
exercises over the Board and the Board’s source of funding.
C. Degree of State Control
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18 Opinion of the Court 21-14409
The degree of control that Georgia exercises over the Board
“must be assessed in light of the particular function in which the
[Board] was engaged when taking the actions out of which liability
is asserted to arise.” Manders, 338 F.3d at 1308; see also Lesinski, 739
F.3d at 603.
Monroe and the Board disagree on how to define the
Board’s “particular function[s]” in the context of this case. See Man-
ders, 338 F.3d at 1308. Monroe encourages us to define the Board’s
relevant functions narrowly, focusing on Fort Valley’s administra-
tion of the Head Start and Early Head Start programs. While ac-
knowledging that the Board is an arm of the State in other capaci-
ties, she contends that the State maintains minimal control over the
administration of the Head Start programs. She argues that the
programs are federally regulated and that their administration “de-
rives from federal (not State) policy.” The Board, by contrast, de-
fines its relevant function more generally by pointing to its consti-
tutional mandate to govern the State’s university system.
Lesinski featured a similar dispute on comparable facts: a
state-created entity sought federal funds from a federal program,
which led to a lawsuit under the FCA. 739 F.3d at 600–01. The
state entity in that case was a Florida water management district
that had requested reimbursement from the Federal Emergency
Management Agency for post-hurricane repairs. Id. We concluded
that the district was an arm of the State that was not subject to suit
in an FCA action challenging its solicitation of those federal funds.
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21-14409 Opinion of the Court 19
Id. at 600.4 The parties disagreed on how to articulate the “partic-
ular function at issue” when debating the state-control factor: ei-
ther the district’s solicitation of public grants specifically, or its mis-
sion of water management generally. 739 F.3d at 603. We declined
to endorse either position and explained that the parties’ “abstrac-
tion argument stray[ed] from the ‘key question’ of the Manders
function-by-function inquiry, which is not what powers state enti-
ties have, but for whom they exercise that power.’” Id. at 604 (alter-
ations adopted) (quotation marks omitted). In Lesinski the state-
control factor favored treating the district as an arm of the State
because, however its applicable powers were defined, “the District
derive[d] both the authority and the obligation to exercise those
powers directly from the State.” Id.
The answer to that “key question” in Lesinski compels us to
conclude here that the Board is acting for the State of Georgia.
When the Board procures and uses federal grant money to help
Georgia children, it is exercising a welfare power on behalf of the
State. In administering the Head Start programs, the Board may
be acting in part on behalf of the federal government, but only in
part.
Not only that, but the administrators of Fort Valley made an
official decision to participate in those federal programs. Those
4 Lesinski was interpreting 31 U.S.C. § 3729(a) of the FCA instead of considering
the applicability of sovereign immunity, but it used the same arm-of-the-State
analysis applicable to the Eleventh Amendment. See 739 F.3d at 601–02 (citing
Vermont Agency, 529 U.S. at 779–80).
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20 Opinion of the Court 21-14409
decisionmakers were elected or appointed by the Board, see Ga.
Code Ann. § 20-3-31(2), which is comprised of members from
across the State of Georgia who were appointed by its governor
and confirmed by its senate, Ga. Const. art. VIII, § 4 ¶ I(a); Ga.
Code Ann. § 20-3-21; see also Manders, 338 F.3d at 1319 n.35 (noting
that when “the State delegates and performs certain . . . functions
through” an entity, that entity “act[s] for and represent[s] the State
in those assigned tasks”). And participation in the Head Start pro-
grams is entirely consistent with the Board’s core state duties,
which include “establish[ing] all such schools of learning or art as
may be useful to the state and . . . organiz[ing] them in the way
most likely to attain the ends desired.” Ga. Code Ann. § 20-3-31(3).
The State exercises sufficient control over the university sys-
tem, including the employees at Fort Valley applying for federal
grants to help Georgia’s children, to weigh this factor in favor of
sovereign immunity. See Lesinski, 739 F.3d at 603–04; Williams, 421
F.3d at 1193 (concluding that a state community college was enti-
tled to sovereign immunity in a suit based on an alleged violation
of students’ privacy rights due to sending grades by email where
the State of Florida “maintain[ed] substantial control over its edu-
cational system, including community colleges”).5
5 Monroe urges a narrow definition of the Board’s relevant functions, but the
decisions she relies on feature an entirely different issue: whether an entity or
official is more like a State, which is entitled to sovereign immunity, or more
like a county or similar municipal entity, which is not. See Freyre, 910 F.3d at
1380 (explaining that a law enforcement officer “is entitled to Eleventh
Amendment immunity if he is acting as an arm of the state but not if he is
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21-14409 Opinion of the Court 21
D. Where Entity Derives its Funds
If “state funds are involved to some extent in the particular
functions . . . at issue,” that is “sufficient to tilt the [source of funds]
factor of the Eleventh Amendment analysis toward immunity”
even if some other entity “bears the major burden of funding.”
Manders, 338 F.3d at 1323–24; see also Lesinski, 739 F.3d at 604–05
(concluding that water management district was not “strip[ped] . . .
of its insulation from suit in a federal forum” where the State “pro-
vide[d] a significant, albeit fluctuating, portion of the District’s
funding”) (footnote omitted); Williams, 421 F.3d at 1194 (conclud-
ing that community college was arm of the State, explaining that
“[a]lthough [it was] not exclusively funded by the state, state ap-
proval of institutional budgets evidences state control”).
acting as an arm of the county”) (quotation marks omitted); Abusaid v. Hills-
borough Cnty. Bd. of Cnty. Comm’rs, 405 F.3d 1298, 1317 (11th Cir. 2005) (con-
cluding that sheriff was not acting as an arm of State when enforcing county
ordinance); Manders, 338 F.3d at 1318–29 (comparing roles of State and county
in the function at issue and concluding that sheriff was “an arm of the State,
not [the] County,”); see also McAdams, 931 F.3d at 1135–36 (concluding that a
county’s 911 emergency communications district was not an arm of State en-
titled to sovereign immunity).
These cases have little, if any, persuasive value on the question of how to de-
fine the Board’s function here. Monroe does not argue that the Board is like a
county or other political subdivision, and her allegation that Fort Valley oper-
ated the Head Start programs in eight different Georgia counties would refute
that characterization anyway. Instead, Monroe focuses on the Board’s partic-
ipation in federal programs. But as we have discussed, see infra Part IV.C, even
when it accepts federal funds, the Board is acting on behalf of the State of
Georgia.
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22 Opinion of the Court 21-14409
Although Monroe emphasizes the federal funding of Head
Start programs, her own amended complaint alleges that the Head
Start grant “is partly supported by matching funds from the State
of Georgia.” By law, it must be; the federal government cannot
provide more than eighty percent of the costs. See 42 U.S.C. §
9835(b). And the Board itself is funded by appropriations from the
Georgia legislature. Ga. Const. art. VIII, § 4, ¶ I(c); Ga. Code Ann.
§ 20-3-53. The involvement of state funds in the function at issue
pushes this factor onto the side of sovereign immunity. See Man-
ders, 338 F.3d at 1323–24; Lesinski, 739 F.3d at 604–05; Williams, 421
F.3d at 1194.6
Individually and collectively, the Manders factors weigh
heavily in favor of treating the Georgia Board of Regents as an arm
6 Monroe relies on out-of-circuit decisions in which self-funded organizations
that engaged in commercial activity were found not to be arms of the State.
See United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 804 F.3d 646,
650, 658, 669, 676 (4th Cir. 2015) (concluding that a provider of student aid
services established by the State of Pennsylvania was not an arm of State
where it “support[ed] itself” through “significant revenues generated by its ex-
tensive commercial activities”); United States ex rel. Sikkenga v. Regence Bluecross
Blueshield of Utah, 472 F.3d 702, 718–19, 721 (10th Cir. 2006) (concluding that
an organization of pathologists owned by a corporation that was itself owned
by a state university was not an arm of State of Utah where it “was designed
to be not only self-sustaining, but a commercial ‘profit center’”), abrogated on
other grounds by Cochise Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S. ----,
139 S. Ct. 1507 (2019). Those two decisions have little bearing on the question
of whether the Board, which relies on some funding from the State of Georgia
to provide non-profit educational services, is an arm of the State for purposes
of this lawsuit.
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21-14409 Opinion of the Court 23
of the State for Eleventh Amendment purposes. Consistent with
our precedent, we hold that the Board is entitled to sovereign im-
munity.
AFFIRMED.
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