GERBER v. THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
BRIAN GERBER, 	:
:
Plaintiff, 	:
:
v. 	: 	CASE NO.: 7:25-CV-00182 (WLS)
:
BOARD OF REGENTS OF THE 	:
UNIVERSITY SYSTEM OF 	:
GEORGIA, et al., 	:
:
Defendants. 	:
:
ORDER
Before the Court is Plaintiff’s Motion for Preliminary Injunction (Doc. 13). For the
reasons discussed below, the Motion is DENIED.
I. 	PROCEDRUAL BACKGROUND
Plaintiff Brian Gerber (“Plaintiff” or “Gerber”) filed this lawsuit on December 4, 2025.
The original Complaint (Doc. 1) asserted a federal procedural due process claim against
Dr. Richard Carvajal, in his official capacity as President of Valdosta State University, under
42 U.S.C. § 1983. Plaintiff also asserted state law claims against the Board of Regents of the
University System of Georgia (“Board of Regents”) for breach of contract, against Heidi Cox,
in her individual capacity for defamation, and against Dr. Carvajal for violation of Georgia’s
Open Records Act. Plaintiff amended his complaint on February 6, 2026, removing his breach
of contract claims against the Board of Regents and substituting Valdosta State University’s
interim President Dr. William Crowe, in his official capacity, for Dr. Carvajal. (Doc. 26). The
Board of Regents was subsequently dismissed from the case. (See Docs. 25 & 37).
Before amending his complaint, Plaintiff moved for a preliminary injunction on
December 22, 2025. (Doc. 13). Cox and now-dismissed-defendants Dr. Carvajal and the Board
of Regents filed a Response (Doc. 16). Plaintiff filed a Reply (Doc. 22). While the Motion was
pending, the remaining defendants, Crowe and Cox (collectively, “Defendants”), moved to
dismiss Plaintiff’s Amended Complaint. (Doc. 28).
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The Court held a hearing on Plaintiff’s Motion for Preliminary Injunction on March
11, 2026.1 Plaintiff submitted three exhibits, which were admitted without objection.
Defendants did not submit any exhibits. At the conclusion of the hearing, the Court afforded
the Parties the opportunity to submit supplemental briefing. Plaintiff filed his brief on March
18, 2026, and Defendants submitted their brief on the same day. (Docs. 40, 41). Plaintiff’s
motion is thus fully briefed and ripe for ruling.
II. 	FACTUAL BACKGROUND
Plaintiff Brian Gerber was a tenured professor in the College of Education and Human
Services at Valdosta State University (VSU) for approximately three decades. (Doc. 26 ¶ 2).
He was also Director of VSU’s STEAM Center for Applied Creativity and Innovation, which
hosted a summer camp for foster children on VSU’s campus in the summer of 2023. (Id. ¶¶ 3,
69). Gerber also assisted with a holiday fundraiser for Valdosta Early College Academy
(VECA). (Id. ¶ 54). In April of 2024, VSU’s Chief Audit Officer, Heidi Cox, began an audit of
all VSU programs involving minors on the university’s campus. (Id. ¶ 80–81). The initial stages
of the audit identified alleged accounting issues with the 2023 summer camp, which prompted
VSU to conduct an internal investigation into Gerber. (Id. ¶ 82). Gerber participated in this
administrative review by sitting for three separate recorded interviews with Cox and her
colleague, Jeanine Boddie-LaVan, VSU’s Chief Human Resources Officer, and by providing
documents and information to Cox. (Id. ¶ 83). A report was prepared following the conclusion
of the investigation. (Id. ¶ 85). The report concluded that Gerber misappropriated funds
designated 	for 	the 	2023 	summer 	camp 	and 	funds 	from 	the 	VECA 	fundraiser 	and
recommended that administrative action be taken against Gerber. (Id. ¶¶ 86, 88, 96).
A. Gerber’s Decision to Retire
On March 17, 2025, VSU’s Interim Provost, Dr. Sheri Noviello, sent a letter to Gerber
notifying him of the 	report’s findings and VSU’s intention to begin tenure removal
proceedings. (Doc. 26 ¶ 97); (Doc. 26-1). Gerber was placed on administrative leave and
advised of the option to meet with an administrative officer to explore “a mutual settlement.”
(Doc. 26-1). The following day, March 18, 2025, Gerber emailed Noviello to schedule a
1 While the Court initially set the hearing for both Plaintiff’s injunction motion and Defendants’ motion to
dismiss, the Court declined to hear argument on the motion to dismiss and limited the scope of the hearing to
evidence and argument on the injunction motion.
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meeting and to inquire whether retirement was an option that would preserve his health
benefits. (Doc. 16-3 at 6–7, 10–11). Noviello confirmed that retirement would preserve such
benefits. (Id. at 10). On March 25, 2025, Noviello sent another email to Gerber clarifying that
as part of the “mutual settlement” discussion, Gerber had the option to either “voluntarily
separate from the institution” or “move forward with the dismissal process” under applicable
Board of Regents policy. (Doc. 13-2 at 2–3).
The following day, March 26, 2025, Gerber’s attorney, Anthony Cochran, spoke with
VSU’s Chief Legal Affairs Officer Justin Arrington regarding Gerber’s options. (Doc. 16-1).
Cochran memorialized the conversation by email, stating: “To confirm, the option that Dr.
Gerber can ‘voluntarily separate from the institution,’ as expressed in the March 25, 2025 email
from [Noviello], means that Dr. Gerber can retire and retain all his retirement benefits. We
assume this will conclude the matter.” (Id. at 5). Arrington responded the following day with
instructions for Gerber’s submission of his letter of resignation. (Id. at 4). Arrington did not
otherwise address the remainder of Cochran’s email.
On March 28, 2025, Gerber submitted his letter of retirement wherein he accepted
VSU’s offer to voluntarily resign. (Doc. 16-3 at 15). Gerber’s letter stated: “Having accepted
the University’s offer and relying on [Arrington’s] explanation, I hereby retire effective April
1, 2025, as Professor and Director of the STEAM Center, retaining all retirement benefits.”
(Id.) Gerber expressed his understanding that his retirement “concludes the matters”
addressed in Noviello’s March 17 letter related to Cox’s investigation and the report’s findings
of misconduct. (Id.) Gerber believed the retirement benefits he retained to include eligibility
to be rehired by VSU or by a different institution within the USG. (Doc. 26 ¶ 138). Gerber’s
belief was based on three things: (1) a University System of Georgia (USG) policy2 regarding
employment for retirees, (2) the common practice in academia of retired professors continuing
to teach after retirement, and (3) Gerber’s supervisor’s recommendation for his designation as
Professor Emeritus. (Id. ¶¶ 138–41); (Doc. 13 at 18–19).
2 The specific USG policy, titled “Employment Beyond Retirement,” states that retirees “may be eligible for
reemployment with the USG on a part-time basis. The [retiree] shall not be reemployed by any institution of
the USG without the prior approval of the hiring institution’s president.” (Doc. 13-3 at 2).
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Arrington accepted Gerber’s resignation on VSU’s behalf on March 31, 2025, and in
an email to Gerber and Cochran, he confirmed that the university would no longer be seeking
termination of tenure but disclaimed control over any actions the Attorney General may take
against Gerber. (Doc. 16-1 at 8). Dr. Carvajal also sent a letter accepting Gerber’s retirement
on March 31, 2025. (Doc. 3-4). Gerber contends that these communications—Cochran and
Arrington’s emails on March 26 and March 27, 2025, his retirement letter, and Dr. Carvajal’s
letter accepting his retirement—memorialized the terms of a contract between Gerber and
VSU (hereinafter, “Retirement Agreement”). (Doc. 13 at 10).
B. Ineligible for Rehire Designation
Under USG’s “Policy on Eligibility for Rehire,” any time an employee separates from
a USG institution, the employee’s immediate supervisor must initiate an eligibility review at
the time of separation. (Doc. 26 ¶ 114); (Doc. 40-1 at 2). Employees receive one of three
designations: eligible for rehire, ineligible for rehire, or conditional. (Doc. 40-1 at 1). An
employee may be deemed ineligible for rehire when the employee “separate[s] for serious
misconduct, major policy violations, or criminal behavior . . . for a minimum of three years
from the date of separation.” (Id. at 2). Ineligible for rehire designations require the approval
of the institution’s president or designee. (Id. at 3). When an institution seeks to have this
designation applied, USG policy mandates that the employee “must be notified in writing, at
the point of separation or as soon as reasonably possible . . . and may appeal their rehire status
through established institutional procedures.” (Id. at 1); (Doc. 26 ¶ 114).
On April 30, 2025, Arrington sent a letter to Gerber and Cochran notifying Gerber of
VSU’s intention to have the USG System Office designate Gerber as ineligible for rehire based
on the findings of the administrative review. (Doc. 16-1 at 11). On May 13, 2025, after
receiving Arrington’s letter, Cochran wrote to Arrington disputing VSU’s decision to seek the
ineligible for rehire designation, contending that the matters of the administrative review were
concluded by Gerber’s decision to retire and that further action in that regard would constitute
a breach of the Retirement Agreement. (Doc. 16-1 at 14–15).
Arrington responded on June 4, 2025, stating that VSU was obligated to ensure
compliance with USG policy despite Gerber’s retirement letter. (Doc. 40-3 at 7). On June 11,
2025, Boddie-LaVan submitted a request to the USG System Office to designate Gerber as
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ineligible for rehire. (Doc. 26 ¶ 113). The stated reason for the designation was “Ethics
Violations/Misappropriation of Funds.” (Doc. 26-5). The designation request was approved
by the USG on June 17, 2025. (Doc. 16-5 at 8).
C. Appeal of the Ineligible for Rehire Designation
Gerber was notified of the approval of his designation as ineligible for rehire on June
26, 2025. (Doc. 26 ¶ 117). Gerber requested a hearing before Dr. Carvajal and formally
appealed the designation to VSU on June 30, 2025, by a letter sent via email to Arrington.
(Doc. 16-1 at 19–20); (Doc. 26 ¶¶ 118–19). Arrington indicated that Gerber would need to
forward his appeal to the USG System Office. (Doc. 40-3 at 43); (Doc. 26 ¶ 119). The System
Office subsequently redirected Gerber to VSU because under USG Policy, appeals of rehire
designations are heard at the institutional level. (Doc. 26 ¶ 120); (see Doc. 40-1 at 1 (stating
that employees “may appeal their rehire status through established institutional procedures”)).
Gerber thus resubmitted his appeal on July 9, 2025, and supplemented the submission with
additional evidence and argument on July 12 and 14, 2025. (Id. ¶ 121). On July 23, 2025,
Gerber’s appeal was denied by Dr. Carvajal in what constituted “the final institutional
decision.”3 (Id. ¶ 122); (Doc. 16-4 at 4).
D. Cox’s Presentation
On May 29, 2025, Cox gave a presentation to the USG’s Office of Internal Audit,
Ethics and Compliance that Gerber alleges was attended by people from outside VSU and the
USG. (Doc. 26 ¶ 103). The general topic of the presentation was the investigation and
administrative review Cox conducted into Gerber’s activities with the STEAM Center and the
VECA fundraiser. (Id. ¶¶ 104–109). Gerber alleges that the presentation contained thinly
veiled references to him, which made it easy for attendees to identify him. (Id. ¶ 106). For
example, the presentation referred to the “STEAM Center director.” (Id.) During the
presentation, Cox accused the STEAM Center director of misappropriating state funds
designated for the summer camp for foster children and other instances of misconduct. (Id.
¶¶ 107–09).
3 According to Arrington, appeals of ineligible for rehire designations at VSU are forwarded to the president
“for his review and final institution decision.” (Doc. 16-1 ¶ 4).
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III. 	PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Gerber moves for a preliminary injunction requiring the Board of Regents and Dr.
Crowe to remove the ineligible for rehire designation. (Doc. 13 at 26). As noted above, the
Board of Regents has been dismissed from the action along with Gerber’s breach of contract
claims against it. As such, the Court analyzes Gerber’s due process claim in determining
whether injunctive relief is available to him.
A. Standard of Review
To receive a preliminary injunction, a plaintiff must clearly establish the following: “(1)
a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury;
(3) that the threatened injury to the plaintiff outweighs the potential harm to the defendant;
and (4) that the injunction will not disserve the public interest.” Keister v. Bell, 879 F.3d 1282,
1287 (11th Cir. 2018) (quotation omitted). In cases where the government is the party
opposing the preliminary injunction, the third and fourth elements merge. Swain v. Junior, 958
F.3d 1081, 1091 (11th Cir. 2020) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). “A
preliminary injunction is an extraordinary and drastic remedy not to be granted unless the
movant clearly establishes the burden of persuasion as to the four requisites.” ACLU of Fla.,
Inc. v. Miami–Dade Cty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009); see Am. Airlines, Inc. v.
Spada, No. 23-21844-CIV, 2023 WL 8001220, at *3 (S.D. Fla. Nov. 18, 2023) (noting that the
preliminary injunction standard is more stringent than that of a motion to dismiss because “a
plaintiff’s claims must not be merely plausible, but likely to succeed on the merits”).
B. Substantial Likelihood of Success
Gerber must show a substantial likelihood of success on his procedural due process
claim. The Due Process Clause of the Fourteenth Amendment provides that no State shall
“deprive any person of life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV. Section 1983 holds any person acting under color of state law liable for depriving
another person of a federal right. 42 U.S.C. § 1983. To bring a due process claim under § 1983,
a plaintiff must establish “(1) deprivation of a constitutionally protected liberty or property
interest; (2) state action; and (3) constitutionally inadequate process.” Resnick v. KrunchCash,
LLC, 34 F.4th 1028, 1035 (11th Cir. 2022) (quotation marks omitted). The second element,
state action, is not in dispute here. Thus, the Court addresses the first and third elements.
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1. 	Constitutionally Protected Interests
Gerber alleges three protected interests: (1) a property interest in continued and
prospective employment, (2) a liberty interest in the ability to contract freely, and (3) a liberty
interest in his reputation. (Doc. 13 at 20–21). The Court addresses each alleged interest in turn.
a. 	Continued and Prospective Employment
“State law determines whether a public employee has a property interest in his or her
job.” Warren v. Crawford, 927 F.2d 559, 562 (11th Cir. 1991) (citing Bishop v. Wood, 426 U.S. 341,
344 (1976)). Generally, Georgia is an at-will employment state. See O.C.G.A. § 34-7-1. But
“state law can create an entitlement to a job through explicit contractual provisions or through
‘rules or mutually explicit understandings.’” Brown v. Georgia Dep't of Revenue, 881 F.2d 1018,
1026 (11th Cir. 1989) (quoting Perry v. Sindermann, 408 U.S. 593, 601 (1972)). “To obtain a
protected property interest in employment, a person must have more than a mere unilateral
expectation of continued employment; one must have a legitimate claim of entitlement to
continued employment.” Warren, 927 F.2d at 562 (citing Bd. of Regents of State Colleges v. Roth,
408 U.S. 564, 577 (1972)). Gerber contends that he has a property interest in continued
employment with VSU and prospective employment with other institutions in the USG
because 	the 	Retirement 	Agreement’s 	promise 	of 	full 	retirement 	benefits 	created 	an
entitlement. (Doc. 13 at 21). He argues that this entitlement is further supported by his
supervisor’s recommendation for Professor Emeritus status and the general understanding
that retired professors often continue to teach, which constitute “informal ‘rules and
understandings, promulgated and fostered by state officials.’” (Id. (quoting Sindermann, 408
U.S. at 601)). The Court finds that Gerber did not have a protected property interest in
employment for two reasons.
First, assuming the Retirement Agreement created a binding contract, that alone is not
enough to create a constitutionally protected property interest.4 See Key W. Harbour Dev. Corp.
v. City of Key W., Fla., 987 F.2d 723, 727 (11th Cir. 1993) (“The existence of an enforceable
contract with a state or local government entity does not give rise to a constitutionally
4 For the purpose of its analysis, the Court assumes that the Retirement Agreement was a contract between the
Parties. Because the Court concludes that the Retirement Agreement, even as construed, does not create a
property interest, the Court does not reach the question of whether the Retirement Agreement did in fact create
an enforceable contract between the Parties.
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protected property interest.”). Gerber must show a deprivation of a constitutional right. Braden
v. Texas A & M University, 636 F.2d 90, 93 (5th Cir. Unit A Feb. 1981) (holding that a mere
breach of contract does not give rise to a constitutionally protected property interest; rather a
plaintiff must predicate relief on a deprivation of a constitutional right).5 Here, assuming that
the Retirement Agreement is an enforceable contract and that its promise of “full retirement
benefits” includes being deemed eligible for rehire, the agreement still cannot be read as
securing Gerber’s right to be reemployed. Eligibility for reemployment is not a guarantee of
continued or future employment, but rather the opportunity to possibly be rehired in the
future. The mere possibility of employment does not count as a “legitimate claim of
entitlement” required to create a protectable property interest. Warren, 927 F.2d at 562; see
Bradshaw v. FAA, 8 F.4th 1215, 1225 (finding no legitimate claim of entitlement to the renewal
of an employment designation where the applicable rules did not guarantee renewal).
Gerber cites Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) and Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564 (1972) to argue that the Retirement Agreement created a
property interest in continued employment. (Doc. 13 at 21). But those cases are wholly
distinguishable from the facts present here. In Loudermill, the Supreme Court found that the
respondent-employees had a property interest in continued employment based on a state
statute that clearly stated they could only be terminated for cause. 470 U.S. at 538–39. And in
Roth, the Court found that the respondent-professor’s employment contract created a property
interest in his employment only through the contract’s end date because the contract did not
contain a provision for renewal which might secure an interest in future employment. 408 U.S.
at 578. This case does not involve a state statute, or any other contract or agreement, securing
the right to be reemployed. The Retirement Agreement secured at most Gerber’s eligibility to
be reemployed, and as discussed below, any reemployment would have then been subject to
additional policy requirements and the discretion of university officials.
Second, the policies Gerber relies on to support his property interest are discretionary
in nature and do not create an entitlement to continued or future employment. In determining
whether a policy creates a protectable property interest, “the determinative issue is the level of
5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the court adopted as binding
precedent all decisions of the former Fifth Circuit, including Unit A, handed down prior to October 1, 1981.
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discretion afforded to the governmental body by the statutes, ordinances, policies or rules.
The more discretionary authority afforded the governmental body by the [policy], the less
likely a constitutional protected property right exists.” Am. Recycling Co. v. Cnty. of Manatee, 963
F. Supp. 1572, 1583 (M.D. Fla. 1997) (citing Key W. Harbour Dev. Corp., 987 F.2d 723; Circa
Ltd. v. City of Miami, 79 F.3d 1057 (11th Cir. 1996); and Pataula Elec. Membership Corp. v.
Whitworth, 951 F.2d 1238 (11th Cir. 1992)). The Eleventh Circuit has looked to the discretion
afforded to the relevant authority in the employment context as well. See Edwards v. Brown, 699
F.2d 1073, 1077 (11th Cir. 1983) (holding that an ordinance which provided that an employee
“shall serve during good behavior and efficient service, to be judged by the commissioner or
a designee” created no property right for the employee); Warren, 927 F.2d at 563 (holding that
policies in a personnel handbook created no property interest for department heads because
they were subject to dismissal at the discretion of an administrator).
The “Employment Beyond Retirement” policy states that retirees receiving benefits
from specified retirement plans and programs “may be eligible for reemployment with the
USG on a part-time basis. The [retiree] shall not be reemployed by any institution of the USG
without the prior approval of the hiring institution’s president.” (Doc. 13-3 at 2). As
Defendants point out, being eligible for rehire is not a guarantee of future employment.
(Doc. 16 at 11). Instead, retirees may be eligible for reemployment if they meet certain
conditions and if they receive the approval of the hiring institution’s president. (See generally
Doc. 13-3). So, even if Gerber was deemed eligible for rehire, he was not guaranteed to be
reemployed as a retiree because the decision is within the discretion of the hiring institution’s
president.
Additionally, the Academic and Student Affairs Handbook policy governing the award
of emeritus status similarly affords discretion to the university’s president. It allows the
university president to confer the title of emeritus “at his or her discretion[,]” and further
provides that the “conferral of emeritus/emerita status is considered a distinctive honor, not
a right, and is not automatic.” (Doc. 13-4 at 4). Gerber’s supervisor recommended him for
Professor Emeritus status, but the recommendation was subject to the president’s discretion.
Gerber also points to the general understanding that retired professors often continue to teach.
(Doc. 13 at 21). But in order to continue teaching after retirement, professors must necessarily
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obtain the approval of the hiring university’s president, in accordance with USG policy. For
rules or understandings to create a property interest, they must “secure certain benefits [] that
support claims of entitlement to those benefits.” Roth, 408 U.S. at 577. The policies Gerber
cites do not secure any benefit or create any legitimate claim to continued or future
employment for him or other retiring professors. They merely provide for the possibility of
future reemployment.
In sum, Gerber has not shown that he had a property interest in continued or future
employment at VSU or other USG institutions.6 At most, the Retirement Agreement required
that Gerber be designated eligible for rehire, and the possibility of being rehired, which in this
case was subject to the discretion of the hiring institution’s president, is not a legitimate claim
of entitlement required to create a protected property interest.
b. Liberty Interest to Contract Freely
Gerber alleges a liberty interest in the ability to contract freely with other institutions
in the USG. (Doc. 13 at 20–21). He cites only Meyer v. Nebraska, 262 U.S. 390, 399 (1923),
which indeed held that the term “liberty” in the text of the Fourteenth Amendment includes
an individual’s right to contract. But “[l]iberty interests are both broader and more difficult to
define than property interests[,]” because, unlike property interests, they do not exist “in
concrete entitlements secured by independent sources of law.” Bank of Jackson Cnty. v. Cherry,
980 F.2d 1362, 1367 (11th Cir. 1993). Even so, “no citizen has a ‘right’ . . . to do business with
the government.” Id. at 1366 (citation and quotation marks omitted).
In the context of employment, the Eleventh Circuit held in Bradshaw v. FAA that “the
right to apply for the same job from which [plaintiff] was terminated does not constitute a
liberty interest.” 8 F.4th 1215, 1226 (11th Cir. 2021). There, the plaintiff alleged that his
termination deprived him of his liberty interest to seek future employment because FAA rules
barred him from applying for reinstatement. Id.
6 Defendants contend that Gerber’s choice to resign extinguished his due process rights. (Doc. 16 at 7–8).
Generally, when a government employee, who is otherwise entitled to due process, voluntarily resigns, he
relinquishes any due process protections he might have had. See Hargray v. City of Hallandale, 57 F.3d 1560, 1565
(11th Cir. 1995). Plaintiff contests this point, arguing that his resignation was involuntarily extracted. (Doc. 22
at 11–12). The Court need not reach the issue of the voluntariness of Gerber’s resignation because the
Retirement Agreement did not create a protected property interest, and thus, no process was required prior to
the ineligibility designation.
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Defendants contend that the same is true here because like the plaintiff in Bradshaw,
Gerber has no protected liberty interest in being reemployed by the Board of Regents, either
at VSU or at any other USG institution. (Doc. 16 at 12). The Court agrees. It is well-settled
that the Board of Regents is the state agency vested with the “governance, control, and
management of the University System of Georgia.” Ga. Const. Art. VIII, § IV, para. I(b); see
Nicholl v. Bd. of Regents of Univ. Sys. of Georgia, No. 1:16-CV-01350, 2016 WL 9651773, at *4
(N.D. Ga. Nov. 30, 2016), aff'd, 706 F. App'x 493 (11th Cir. 2017). Thus, Gerber has no
protected liberty interest in future employment with VSU or other institutions governed by
the Board of Regents.
c. 	Liberty Interest in Reputation
Gerber alleges a liberty interest in his reputation based on Cox’s allegedly defamatory
statements made during her presentation to the USG Office of Internal Audit, Ethics and
Compliance. (Doc. 13 at 21). To establish a deprivation of a liberty interest without due
process of law, Gerber must show: “(1) a false statement (2) of a stigmatizing nature (3)
attending a governmental employee’s discharge (4) made public (5) by the governmental
employer (6) without a meaningful opportunity for [an] employee name clearing hearing.”
Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1042–43 (11th Cir. 1989). Based on the
allegations in Gerber’s Amended Complaint, it appears that all of the elements are met, except
for one:7 that the stigmatizing statements in Cox’s presentation were made during the course
of Gerber’s discharge from employment. For one, Gerber was not discharged or terminated,
rather he resigned from his position at VSU. And Cox’s presentation was given on May 29,
2025, nearly two months after Gerber’s retirement was affected on April 1, 2025. While Cox’s
statements relate to the circumstances of Gerber’s retirement (i.e., the administrative review),
Gerber does not allege that the statements were made during the course of events surrounding
his retirement. See Cannon v. City of West Palm Beach, 250 F.3d 1299, 1301 n.1 (11th Cir. 2001)
(noting that stigmatizing statements must occur during the course of the termination).
7 The Court notes that Gerber’s allegations seem to contradict the element that the statements were made “by
the governmental employer” because he alleges that Cox acted outside the scope of her employment when she
gave the presentation. (Doc. 26 ¶ 111). The Court, however, need not reach the issue of whether Cox was
acting within the scope of her job as the Chief Audit Officer, and thus, as a governmental employer, because
the Court concludes that Gerber has not shown the deprivation of a recognized property or liberty interest in
connection with Cox’s alleged defamation, which is required to establish a liberty interest in his reputation.
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Setting this aside, “defamation by the government, standing alone and apart from any
other governmental action, does not constitute a deprivation of liberty or property under the
Fourteenth Amendment.” Cannon, 250 F.3d at 1302 (citing Paul v. Davis, 424 U.S. 693, 694
(1976)). Instead, “a plaintiff claiming a deprivation based on defamation by the government
must establish the fact of the defamation ‘plus’ the violation of some more tangible interest”
to invoke the protections of the Due Process Clause. Id. (citing Paul, 424 U.S. at 701–02); see
Moore v. Otero, 557 F.2d 435 (5th Cir. 1977) (“To establish a liberty interest sufficient to
implicate fourteenth amendment safeguards, the individual must be not only stigmatized but
also stigmatized in connection with a denial of a right or status previously recognized under
state law.”). This is known as the “stigma-plus” test.
In applying the test to § 1983 claims, the Eleventh Circuit has held that allegations of
an injury to one’s reputation must be accompanied by “a constitutionally recognized injury[,]”
meaning that the plaintiff must show “that the government official's conduct deprived the
plaintiff of a previously recognized property or liberty interest in addition to damaging the
plaintiff's reputation.” Cypress Ins. Co. v. Clark, 144 F.3d 1435, 1436 (11th Cir. 1998) (citing
Paul, 424 U.S. at 712). Here, as discussed at length above, Gerber does not have a protected
property interest in continued or prospective employment or a liberty interest in his right to
contract. And even if he did have a protected interest, Gerber does not allege or even argue
that Cox’s conduct was what deprived him of that interest. Cox’s presentation occurred both
after Gerber made the decision to retire and after VSU first expressed its intent to have Gerber
designated as ineligible for rehire. Contrast Behrens v. Regier, 422 F.3d 1255, 1263 (11th Cir. 2005)
(holding that where the plaintiff showed only reputational damage, he failed to allege the
deprivation of a constitutionally protected liberty or property interest) with Masvidal v. U.S.
Dep't of Just., 716 F. Supp. 2d 1207, 1212 (S.D. Fla. 2010) (finding that where the plaintiff
alleged that the defendant’s conduct resulted in his termination and further imposed a stigma
that prevented him from securing other employment opportunities, the plaintiff sufficiently
alleged a deprivation of a recognized right). Without a protected right or status, Gerber has
alleged nothing more than a defamation claim.
In sum, Gerber fails to satisfy the “plus” requirement of the stigma-plus test because
he has not demonstrated that Cox’s statements deprived him of a constitutionally protected
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interest. Further, the statements were not made during the course of Gerber’s discharge. See
Buxton, 871 F.2d at 1042–43. Since Gerber has only alleged reputational damage, he cannot
show a deprivation of a constitutionally protected liberty interest in his reputation.
Because the Court finds that Gerber has not established a constitutionally protected
liberty or property interest, his due process claim necessarily fails for purposes of the
preliminary injunctive relief he seeks. Even so, the Court briefly addresses the third element
of a § 1983 claim, constitutionally inadequate process. Resnick, 34 F.4th at 1035.
2. 	Constitutionally Adequate Process
As to the third element, assuming Gerber was able to show a deprivation of some right
protected by the due process clause, the Court must look “to whether the available state
procedures were adequate to correct the alleged procedural deficiencies.” Cotton v. Jackson, 216
F.3d 1328, 1331 (11th Cir. 2000). “If adequate state remedies were available but the plaintiff
failed to take advantage of them, the plaintiff cannot rely on that failure to claim that the state
deprived him of procedural due process.” Id. This is so because deprivation, for the purpose
of establishing a procedural due process claim, is not complete “unless and until the State
refuses to provide due process.” Zinermon v. Burch, 494 U.S. 113, 126 (1990); see McKinney v.
Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc) (“[O]nly when the state refuses to provide
a process sufficient to remedy the procedural deprivation does a constitutional violation
actionable under section 1983 arise.”). “In other words, if state courts, upon request, would
provide an adequate remedy for the procedural deprivation plaintiff claims to have suffered,
then there is no federal procedural due process violation, even if the plaintiff failed to take
advantage of the state remedy.” Ezzard v. Eatonton-Putnam Water & Sewer Auth., No. 5:11-CV-
505 CAR, 2013 WL 5438604, at *13 (M.D. Ga. Sept. 27, 2013) (citing Horton v. Bd. of Cnty.
Comm'rs, 202 F.3d 1297, 1300 (11th Cir. 2000)). The Eleventh Circuit has repeatedly stated
that this rule “recognizes that the state must have the opportunity to ‘remedy the procedural
failings of its subdivisions and agencies in the appropriate fora—agencies, review boards, and
state courts’ before being subjected to a claim alleging a procedural due process violation.”
Cotton, 216 F.3d at 1331 (quoting McKinney, 20 F.3d at 1560).
As for deprivations of a liberty interest in one’s reputation, the Eleventh Circuit has
held that Georgia’s writ of mandamus statute, O.C.G.A. § 9-6-20, provides a constitutionally
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adequate remedy for due process violations by state actors. Cotton, 216 F.3d at 1333. Georgia
law entitles a party to seek a writ of mandamus when “no other specific legal remedy is
available[,] and a party has a clear legal right to have a certain act performed.” Id. at 1332 (citing
O.C.G.A. § 9-6-20). The court in Cotton specifically recognized a mandamus action to order a
name clearing hearing as an adequate remedy for deprivations of a liberty interest in one’s
reputation, stating:
If Plaintiff were without another legal remedy and proved in a state mandamus
proceeding that Defendants had deprived Plaintiff of his federal liberty interest
in his reputation without a hearing, then Plaintiff would have shown that he had
a clear legal right to a name-clearing hearing. Therefore, Plaintiff would have
been entitled to an order of mandamus directing Defendants to hold a name-
clearing hearing (assuming that the mandamus proceeding was not itself a
sufficient name-clearing hearing to satisfy due process).
Id. at 1333. Thus, even if Gerber had established a deprivation of his liberty interest in his
reputation, he could have sought mandamus in a Georgia state court. And because he did not
do so, Cotton unambiguously compels the result that Gerber’s due process claim fails.
As for deprivations of property interests, courts in this Circuit have found a state law
breach of contract action to be a constitutionally adequate remedy for such deprivations in the
public employment context. See Mech v. Sch. Bd. of Palm Beach Cnty., No. 13-80437-CIV, 2014
WL 11444112 (S.D. Fla. Oct. 27, 2014), aff'd sub nom. Mech v. Sch. Bd. of Palm Beach Cnty., 806
F.3d 1070 (11th Cir. 2015), Ingalls v. U.S. Space & Rocket Ctr., No. 2:14-CV-699, 2015 WL
4528687 (M.D. Ala. July 27, 2015), aff'd, 679 F. App'x 935 (11th Cir. 2017), Keane v. Jacksonville
Police Fire & Pension Fund Bd. of Trs., 775 F. App'x 496 (11th Cir. 2019); see also Lujan v. G & G
Fire Sprinklers, Inc., 532 U.S. 189, 196 (2001) (holding that a claim for breach of contract by a
state actor would not support a procedural due process claim unless state contract remedies
were closed to the plaintiff). Because the Court finds that Gerber’s due process claim fails on
the first element, the Court does not make any explicit finding regarding the adequacy of a
state breach of contract action here. The Court does note, however, that Gerber’s claim rests
entirely on the notion that VSU was contractually prohibited from designating him as ineligible
for rehire and that the constitutional interests he claims are predicated on the Retirement
Agreement as an alleged contract. The Court also notes, as the Parties have made clear, that
Gerber has in fact brought a breach of contract action against the Board of Regents in state
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court. Thus, it is doubtful that a state court breach of contract action would not be a
constitutionally adequate remedy to address the procedural deprivations Gerber claims to have
suffered.
The Court finds that Gerber has not established a constitutionally protected liberty or
property interest, and therefore, his due process claim necessarily fails. As such, Gerber is
unable to show a substantial likelihood of success on the merits.
C. Irreparable Injury
Although the Court need not address the remaining requirements for a preliminary
injunction, having found that Gerber cannot show success on the merits, the Court briefly
addresses the second element of a preliminary injunction, irreparable injury. See Keister v. Bell,
879 F.3d 1282, 1288 (11th Cir. 2018) (citing Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir.
2011)). A second, independent reason exists for denying the Motion: Gerber has not
demonstrated that he will suffer irreparable injury in the absence of a preliminary injunction.
An irreparable injury is the “sine qua non of injunctive relief.” Siegel v. LePore, 234 F.3d 1163,
1176 (11th Cir. 2000). An injury is considered irreparable only when “it cannot be undone
through monetary remedies.” Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of
Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990). “The possibility that adequate
compensatory or other corrective relief will be available at a later date, in the ordinary course
of litigation, weighs heavily against a claim of irreparable harm.” Id. (quoting Sampson v. Murray,
415 U.S. 61, 88 (1974)). The injury “must be neither remote nor speculative, but actual and
imminent.” Siegel, 234 F.3d at 1176; see Ruffin v. Great Dane Trailers, 969 F.2d 989, 995 (11th Cir.
1992).
Gerber contends that he has suffered irreparable injury and will continue to suffer harm
absent injunctive relief in the form of harm to his reputation and lost job opportunities.
(Doc. 13 at 24–25). Specifically, he alleges that he lost the opportunity to teach during the
2025 fall semester, and at the time the motion was filed in December of 2025, Gerber
anticipated lost opportunities for the 2026 spring semester as well because hiring for the school
year “has likely already begun.” (Id. at 25). Aside from the speculative nature of Gerber’s
contentions about the upcoming school year, he has not identified any jobs that he has applied
for and been denied since the ineligibility designation was finalized on June 17, 2025.
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(Doc. 16-5 at 8). Gerber only states that “no other institutions in the USG or in other
university 	systems 	have 	contacted 	[him] 	about 	potential 	employment 	opportunities.”
(Doc. 13-1 ¶ 14). Gerber’s decision not to pursue other employment opportunities is a self-
imposed injury which cannot amount to irreparable harm. See Datto v. Univ. of Miami, No. 18-
CV-21053, 2019 WL 13255542, at *10 (S.D. Fla. Nov. 18, 2019), report and recommendation
adopted, No. 18-21053-CIV, 2019 WL 13255528 (S.D. Fla. Dec. 30, 2019) (finding that
plaintiff’s decision not to pursue admission at other medical schools constitutes a self-imposed
injury that does not amount to irreparable harm); Bellin v. La Pensee Condo. Assoc. Inc., No. 05-
80071, 2005 WL 8156021, at *9 (S.D. Fla. Oct. 13, 2005) (“Moreover, it is well settled that
avoidable harm is not irreparable; if a Plaintiff can mitigate the threatened ‘irreparable harm,’
she cannot refuse to do so and yet still claim that she would be irreparably injured absent an
injunction.”). And even if the Court were to assume Gerber is losing out on viable job
opportunities, this is the type of harm that other courts routinely find is compensable with
monetary damages. See Creger v. United Launch All. LLC, 571 F. Supp. 3d 1256, 1268 (N.D. Ala.
2021) (finding that plaintiffs’ alleged irreparable injuries related to the loss of income or
benefits could be remedied through later compensation); Alpha Home Health Sols., LLC v. Sec'y
of United States Dep't of Health & Hum. Servs., 340 F. Supp. 3d 1291, 1304 (M.D. Fla. 2018)
(finding that “[m]ere loss of income [] does not establish irreparable injury”).
Further, while Gerber also asserts ongoing reputational damage, he provides no factual
allegations to support this claim. The alleged harm is thus entirely speculative. See Smith v. Fla.
Agric. & Mech. Univ. Bd. of Trs., No. 6:24-CV-457, 2024 WL 4008150, at *4 (M.D. Fla. Aug. 30,
2024) (finding that terminated professor’s allegation of damage to her reputation within the
academic community was speculative).
Finally, a delay in seeking a preliminary injunction weighs against a finding of
irreparable harm as it indicates the threat of harm is not so grave to warrant a preliminary
injunction. Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016). “Indeed, the
very idea of a preliminary injunction is premised on the need for speedy and urgent action to
protect a plaintiff's rights before a case can be resolved on its merits.” Id. (emphasis in original).
For this reason, “a party's failure to act with speed or urgency in moving for a preliminary
injunction necessarily undermines a finding of irreparable harm.” Id. Here, Gerber was aware
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by at least May 13, 2025, that VSU was planning to deem him ineligible for rehire. (Doc. 16-1
at 14–15). Gerber was notified of the approval of his designation as ineligible for rehire on
June 26, 2025. (Doc. 26 ¶ 117). On July 23, 2025, Gerber’s appeal of the designation was
denied by Dr. Carvajal in what constituted “the final institutional decision.” (Doc. 16-4 at 4).
As Defendants note, Gerber waited five months from the latest of these dates before filing
the instant Motion on December 22, 2025. (Doc. 16 at 17); (see Doc. 13). Gerber claims that
his delay in filing the Motion was due to his efforts in resolving the dispute without litigation
and refers to exhibits containing communications with Arrington from March to June of 2025.
(Doc. 22 at 18). But Gerber fails to offer any evidence or explanation as to what steps he took
to resolve the dispute after his appeal to Dr. Carvajal was denied on July 23, 2025. Without
such evidence or explanation, the Court cannot discern any justification for the nearly five-
month delay.
Because the harms alleged here can be remedied with monetary damages, and because
Gerber’s unexplained delay in filing the instant Motion weighs against a finding of an
irreparable harm, the Court finds that Gerber has not demonstrated that he will suffer
irreparable injury in the absence of a preliminary injunction.
CONCLUSION
For the reasons stated above, Plaintiff cannot show a substantial likelihood of success
on the merits of his § 1983 due process claim or an irreparable injury that he is likely to incur
in the absence of injunctive relief. As such, Plaintiff’s Motion for Preliminary Injunction
(Doc. 13) is DENIED.
SO ORDERED, this 20th day of April 2026.
/s/ W. Louis Sands
W. LOUIS SANDS, SR. JUDGE
UNITED STATES DISTRICT COURT
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