UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMI CLAIRE, KATHRYN LANE,

and AHMIR MURPHY,

Plaintiffs, 

v. CASE NO.: 4:20-cv-00020-MW-MAF

FLORIDA DEPARTMENT OF 

MANAGEMENT SERVICES, et al., 

Defendants. 

__________________________________________/ 

DEFENDANT UNIVERSITY OF FLORIDA BOARD OF TRUSTEES’ AND

UNIVERSITY OF FLORIDA BOARD OF TRUSTEES MEMBERS’

MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

Defendants, the University of Florida Board of Trustees (“UF”) and Members 

of the University of Florida Board of Trustees, in their official capacities (“UF Board 

Members”), (collectively “UF Defendants”) through undersigned counsel, and 

pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P., and N.D. Fla. Loc. R. 7.1, 

move this Court to dismiss Counts II and VI of the Amended Complaint, with 

prejudice.

Introduction

Plaintiff Jami Claire (“Plaintiff” or “Ms. Claire”) brings the following counts 

against the UF Defendants: Count II asserts violations of Title VII against UF; and 

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Count VI, brought pursuant to 42 U.S.C. §1983, asserts violations of the Fourteenth 

Amendment’s Equal Protection Clause against the UF Board Members.

Each of these counts must be dismissed, with prejudice, because Plaintiff has

failed to demonstrate standing. None of the alleged injuries are fairly traceable to, or 

can be redressed by, the UF Defendants. This is because by statute, the Florida 

Department of Management Services (“DMS”) has total control and authority over 

the provision of health insurance for state employees, including the Plaintiff. As 

such, the actions of the UF Defendants are not fairly traceable to the harm suffered 

by the Plaintiff, which was solely caused by the actions of DMS in determining the 

appropriate level of healthcare for state employees.

Count VI, styled as an Ex Parte Young claim for prospective injunctive relief 

from a continuing violation of law against state officers, also fails because it is barred 

by sovereign immunity. The UF Board Members lack the authority to implement the 

complained-of plan at issue. This destroys the legal fiction that Ex Parte Young

provides in very limited cases for litigants to obtain relief from state officials in 

federal courts in situations where such actions for relief would otherwise be barred.

Facts

The following facts are taken from the Amended Complaint and in the light 

most favorable to the Plaintiff employed by UF, Jami Claire. None of the facts 

recited herein should be deemed an admission on the part of the moving parties that 

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they are true. That said, the facts as set forth herein and in the Amended Complaint, 

simply do not provide a basis for relief against the UF Defendants.

Plaintiff, Ms. Claire, was born male, but identifies as female. (Doc. 34 p. 18 ¶ 

67). Plaintiff was diagnosed with gender dysphoria at or before the alleged 

constitutional and statutory violations occurred. (Doc. 34, p.19 ¶ 70). According to 

the Amended Complaint, gender dysphoria is a medical diagnosis for the “feeling of 

incongruence between one’s gender identity and one’s sex assigned at birth, and the 

resulting distress caused by that incongruence . . .” (Doc. 34 p. 9 ¶ 25). Plaintiff 

alleges that her treating physician recommended she receive an orchiectomy and 

deemed it medically necessary to treat her gender dysphoria. (Doc. 34 pp. 24-25 ¶¶

93, 94). 

Plaintiff Claire is employed as a Senior Biological Scientist in the College of 

Veterinary Medicine at the University of Florida. (Doc. 34 p. 18 ¶ 64). As a state 

employee, her health insurance is provided by the state of Florida through AvMed. 

(Doc. 34, pp. 13-14 ¶ ¶ 39, 43, 44). 

The state health plan is developed, maintained, and provided by DMS. (Doc. 

34 p. 13 ¶ ¶ 40, 41, 42). Under section VI of the health insurance plan documents 

outlining the coverage provided by AvMed there is a “Limitations and Exclusion” 

provision, which states “[t]he following services and supplies are excluded from 

coverage under this Plan unless a specific exception is noted. Exceptions may be 

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subject to certain coverage Limitations.” (Doc. 20-1 p. 57). Section VI identifies 39 

different categories of limitations and exclusion in the plans, one of which is “gender 

reassignment or modification services and supplies.” (Doc. 20-1 p. 58). 

While the Amended Complaint does not include the AvMed plan document,

it is referred to extensively therein. The Eleventh Circuit has instructed that a district 

court may consider extrinsic evidence in ruling on a motion to dismiss if it is (1) 

central to the plaintiff's claim, and (2) its authenticity is not challenged. SFM 

Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); see 

also Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267-68 (11th Cir. 2002). 

Plaintiff’s Amended Complaint is centered around the state-provided insurance plan

and the gender reassignment exclusion is also referred to. (Doc. 34 p. 15 ¶ 54). 

Obviously, the plan document is central to the Amended Complaint and its

authenticity should not be in question.

Plaintiff alleges that she sought authorization for an orchiectomy through the 

state health plan on December 27, 2018. (Doc. 34 p. 25 ¶ 96). AvMed issued a letter 

to Ms. Claire denying authorization for the procedure because, according to AvMed, 

it fell under the gender reassignment or modification services and supplies coverage 

exclusion. (Doc. 34 p. 25 ¶ 97). Plaintiff appealed the denial to AvMed pursuant to 

the plan and AvMed denied the appeal. (Doc. 34 p. 25 ¶ ¶ 98, 99). Plaintiff then filed 

a second–level appeal to the Division of State Group Insurance, part of DMS, which 

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also denied the appeal for the same basis as AvMed’s denial. (Doc. 34 pp. 25-26 ¶ ¶

100, 101). 

Fundamentally, Plaintiff fails to allege any fact connecting UF or its Board 

Members to these decisions or to the establishment of the state plan. 

Argument1

I. Plaintiff Lacks Article III Standing to Sue the UF Defendants. 

All of Plaintiff’s counts against the UF Defendants must be dismissed pursuant 

to Rule 12(b)(1), Fed. R. Civ. P., as this Court lacks subject matter jurisdiction over 

the Plaintiff’s claims. This is because Plaintiff cannot establish standing to sue the 

UF Defendants. To satisfy the constitutional restriction of federal courts’ jurisdiction 

to “cases” and “controversies,” “a plaintiff must demonstrate constitutional 

standing.” Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296, 1302 (2017). 

Article III standing requires plaintiffs to show an “injury in fact” that is “fairly 

traceable” to the defendant’s conduct and “that is likely to be redressed by a 

favorable judicial decision.” Id. The party invoking federal jurisdiction bears the 

burden of proving standing. Hollywood Mobile Estates Ltd. v. Seminole Tribe of 

Fla., 641 F.3d 1259, 1265 (11th Cir. 2000). 

 1 Because this Court is surely well-versed in the standard for adjudicating a motion 

to dismiss, it is omitted.

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Here, Plaintiff’s alleged injuries are not fairly traceable to the challenged 

actions of the UF Defendants. In fact, the injuries are not traceable to these 

defendants at all. Moreover, a favorable decision by this Court on the counts subject 

to this motion will not result in any remedy that the UF Defendants can provide as a 

matter of law. Stated another way, this Court cannot compel UF to do anything that 

would redress Plaintiff’s injuries. Thus, Plaintiff cannot establish the requisite 

standing to proceed against these defendants warranting dismissal.

a. Plaintiff’s Injuries Are Not Fairly Traceable to UF Defendants

Plaintiff’s claims against the UF Defendants, as pled in the Amended 

Complaint, do not establish Article III standing because Plaintiff’s alleged injuries 

are not fairly traceable to the actions of UF. Here, any injury allegedly suffered by 

the Plaintiff via denial of coverage for her requested procedures, is exclusively tied 

to the independent actions of a third party – DMS. The UF Defendants do not have 

any control over any aspect of the health insurance provided to state employees via 

the AvMed state insurance plan. 

The Florida Legislature has expressly declared its intent that DMS “shall be 

responsible for all aspects of the purchase of health care for state employees under 

the state group health insurance plan or plans . . ..” §110.123(3)(c), Fla. Stat. (2019)

(emphasis supplied). The responsibilities assigned to DMS by the Legislature 

include the “determination of health care benefits to be provided” and the 

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“negotiation of contracts for health care and health care administrative services.” Id.;

see also §110.123(5)(a), Fla. Stat. (It is the duty of the DMS to “[d]etermine the 

benefits to be provided and the contributions to be required for the state group

insurance program”). Plaintiff acknowledges DMS’s statutory responsibilities as to 

the determination and provision of group health insurance for state employees. (Doc. 

34 ¶ ¶ 40-43). To be sure, the University of Florida is a “State Agency” for purposes 

of the state insurance program. §110.123(2)(i), Fla. Stat. The Plaintiff is a full-time 

employee of a state agency as defined in §110.123(2)(i), Fla. Stat., and she has

voluntarily elected to participate in the group insurance program offered by DMS as 

an enrollee. §110.123(2)(b) & (c), Fla. Stat.

Nowhere in the Amended Complaint does Plaintiff allege that the UF 

Defendants have any role in, or authority to, implement the state health plans, 

establish exclusions, solicit or choose providers, or otherwise control or influence 

any aspect of the state health plans. It was solely DMS’s responsibility to select and 

define the contours of the benefits offered under the state health plan. Because the 

UF Defendants had no involvement in that process, no conduct of the UF Defendants 

is fairly traceable to the injury alleged in the Amended Complaint.

Florida law explicitly provides that UF is prohibited from offering group 

health insurance to state employees unless authorized by law. See section I(a), supra; 

see also §1001.706(6)(b), Fla. Stat. (“Unless specifically authorized by law, neither 

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the Board of Governors nor a state university may offer group insurance programs 

for employees as a substitute for or as an alternative to the health insurance programs 

offered pursuant to chapter 110”). No provision of Florida statutes permits UF or its 

Board members to establish a healthcare plan separate and apart from the plan 

established by DMS as set forth in Section 110.123 for the benefit of Plaintiff. While 

UF is free under Board of Governors Regulations and the Direct Support 

Organization statute to establish Direct Support Organizations, those statutes do not 

provide a basis for UF to use those organizations as a vehicle to avoid the statutory 

prohibition on offering Plaintiff healthcare coverage separate and apart from the 

scheme established by the Florida legislature for state employees in Section 110.123. 

See §1004.28, Fla. Stat.; Florida Board of Governor Regulation 9.011.

Ultimately, the “fairly traceable” element of Article III standing is essentially 

a threshold showing that there is some causal connection between the injury and the 

actions of the defendants. See Allen v. Wright, 468 U.S. 737, 757-58 (1984), 

abrogated in part on other grounds by Lexmark Int’l., Inc. v. Static Control 

Components, Inc., 572 U.S. 118 (2014) (holding that causation is a distinct 

requirement of standing apart from whether requested relief might substantially 

remedy a threatened constitutional injury). This case is similar to numerous cases in 

which the Eleventh Circuit has found want of facts to establish the “fairly traceable” 

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element of Article III standing and a lack of causal connection between the conduct 

alleged on the part of a defendant and the injury suffered. 

For example, in Doe v. Pryor, several plaintiffs sued the Attorney General of 

Alabama to enjoin enforcement of a statute making “deviate sexual intercourse” a 

criminal offense. 344 F.3d 1282, 1285–86 (11th Cir. 2003). While one plaintiff lost 

a custody dispute based on the challenged statute, the Eleventh Circuit held that this 

injury was not “fairly traceable” to the Attorney General because the Attorney 

General played no role in the custody dispute. Id. at 1285. What was lacking in Doe 

is the same as what is lacking here: any connection between the defendant and the 

injury. Id.; see also Hollywood Mobile Estates, 641 F.3d at 1265–67 (holding that 

injury was not fairly traceable to Secretary of the Interior, where there was no 

allegation that Secretary caused any injury, in that case, a forcible eviction of a 

leased property committed by the Seminole Tribe of Florida); Daogaru v. U.S. 

Attorney Gen., 683 F. App'x 824, 825-26 (11th Cir. 2017) (dismissing federal 

government defendant and finding that defendant’s conduct was not fairly traceable 

to injury in complaint challenging federal firearms law prohibiting the plaintiff from 

possessing a firearm and ammunition in his home, where state law independently 

prohibited plaintiff from possessing a firearm); Allen, 468 U.S. at 753 n.19 (holding 

that parents lacked standing to sue the IRS for their children's diminished ability to 

receive an education in a racially integrated school because, even though this was a 

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cognizable injury, “whatever deficiencies exist in the opportunities for desegregated 

education for [plaintiffs'] children might not be traceable to IRS violations of law”).

The instant matter is unlike the case in Arizona Governing Comm. for Tax 

Deferred Annuity and Deferred Comp. Plans v. Norris, 463 U.S. 1073 (1983) which 

found the state of Arizona responsible for a discriminatory fringe benefit plan it 

adopted. In Norris, the plaintiff brought suit against the state of Arizona, the 

Governing Committee responsible for adopting the plan, and several members of the 

Committee. Id. at 1078 (Marshall, J., concurring). Notably, the plaintiff’s employer, 

the Arizona Department of Economic Security, was not itself a defendant. Id. While 

the Supreme Court did note that “an employer that adopts a fringe-benefit scheme 

that discriminates among its employees on the basis of race, religion, sex, or national 

origin violates Title VII regardless of whether third parties are also involved in the 

discrimination” it emphasized the extent of the involvement of the defendants in 

establishing and administering the discriminatory fringe benefit plan in reaching that 

conclusion. Id. at 1088–89 (Marshall, J., concurring). The Supreme Court noted the 

extensive involvement of Arizona’s Governing committee in establishing the fringe 

benefit plan including the fact that it invited insurance companies to submit bids 

outlining the terms on which they would supply benefits, selected the companies that 

were to participate in the plan, and entered into contracts with them governing the 

terms on which benefits were to be provide to employees. Id. It was only “under 

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these circumstances” that the Supreme Court held “there can be no serious question” 

that the state was responsible for the discriminatory terms of the fringe benefit plan. 

463 U.S. at 1089 (Marshall, J., concurring). 

Courts that have based employer liability on participation in third party 

programs that are discriminatory, emphasize the fact that the employer in those 

situations had some control over the terms of the program and therefore can be said 

to have perpetuated that discrimination. See Morgan v. Safeway Stores, Inc., 884 

F.2d 1211, 1214-15 (9th Cir. 1989) (collecting authorities holding the same). The 

Ninth Circuit’s decision in Morgan is directly on point. There, the Ninth Circuit held 

that Safeway was not responsible for alleged discriminatory features of the Safeway 

Credit Union benefit offered to employees because the grocery store did not 

participate in the discriminatory program. Id. at 1215–16. The Ninth Circuit held as 

much because there was no evidence of the participation of Safeway in establishing 

or maintaining the credit union’s alleged discriminatory policy. Id. Safeway did not 

specify the terms of the program by contract, as in the Norris case, it did not require 

its employees to participate in the alleged discriminatory program, it did not 

establish conditions for receiving the benefits, and it did not develop the terms of the 

program. Id. 

Just as in Morgan, the UF Defendants have no involvement in the 

development of the state health care plans challenged in this action. UF is defined as 

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a state agency under Section 110.123, which reserves the administration and 

authority for the state health care plans, including engaging in all of the key indicia 

of participation outlined by the Norris and Morgan courts, to DMS. The Amended 

Complaint does not plead any facts demonstrating that the UF Defendants solicited 

any plan terms, established any plan terms, entered into any contracts with service 

providers or were part of the process for establishing or administering the state health 

plans. Simply put, “participation” and control over the state health plan on the part 

of these defendants has not been alleged or pled.

Any invitation that the Article III standing requirement, an important 

prudential requirement that speaks to the heart of this Court’s jurisdiction over the 

subject matter of a dispute, can be premised on the Norris case must be rejected as 

inapposite as applied here. The plaintiff in Morgan argued that “participation” in the 

allegedly discriminatory third party program does not require an active role on the 

part of the employer relying on the Ninth Circuit’s own precedent in Norris v. 

Arizona Governing Committee for Tax Deferred Annuity and Deferred 

Compensation Plans, 671 F.2d 330 (9th Cir.1982), which would go on to the 

Supreme Court, as cited supra. The Ninth Circuit plainly rejected this argument, 

noting that the State of Arizona could be held liable because it took an active role in 

administering and developing the program, adopted the plan, and entered into a 

contract governing the terms of the plan, thus specifically agreeing to them. Morgan, 

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884 F.2d at 1214-15, n. 1. That active participation was lacking in the Morgan, and 

it is lacking here.

Surely, the injury need not be “the very last step in the chain of causation” to 

be fairly traceable to the defendant, but the conduct of the defendant must have at 

least been a step in that chain. Bennett v. Spear, 520 U.S. 154, 168-96 (1997). In 

Bennett, the plaintiff was found to have standing to sue a federal agency that issued 

an advisory opinion, because the advisory opinion amounted to a “determinative or 

coercive effect upon the action of someone else” leading to injury. Id. at 169. While 

another agency took ultimate action in the Bennett case, the exceptional 

circumstances of the advisory opinion led to a finding that the injury was fairly 

traceable to the agency issuing that advisory opinion. Id. at 168-171. In Bennett, the 

government admitted that the specific advisory opinion at issue had a powerful and 

coercive effect on the action of agencies playing a central role in the agency’s 

decision-making process. Id. at 169. Agencies bore the burden of articulating in its 

administrative record why it decided to go against the advisory opinion and they 

carried a substantial risk in disregarding the advisory opinion because it opened itself 

up to criminal and civil penalties in those circumstances. Id. at 169-170. In fact, the 

advisory opinion at issue in Bennett contained an “incidental take statement” that 

provided that an action was not approved unless it was “in compliance with this

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incidental take statement,” and warning that “[t]he measures described below are 

nondiscretionary, and must be taken.” Id. at 170-71.

This is hardly a situation in which the UF Defendants caused Plaintiff an 

injury by taking an action that had a “determinative or coercive effect upon the action 

of someone else.” Rather, UF simply has no control over DMS with respect to the 

plans offered to state employees.

The allegations in the Amended Complaint do not meet the bar for standing 

in this Circuit as recently articulated by the Eleventh Circuit. Jacobson v. Fla. Sec'y 

of State, 957 F.3d 1193 (11th Cir. 2020) (holding that plaintiffs lacked Article III 

standing to sue Secretary of State for dispute over election ballot ordering where 

“Florida law expressly gives a different, independent official control over the order 

in which candidates appear on the ballot”). A plaintiff lacks standing to challenge a 

rule if an independent source would have caused her to suffer the same injury. Swann 

v. Sec'y, Georgia, 668 F.3d 1285, 1288–89 (11th Cir. 2012); Charles Alan Wright, 

Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531.5 

(3d ed. 2008) (“Rather than a break in one causal chain, standing may be defeated 

by finding a different cause.”). Here, the Plaintiff’s injury is attributable to DMS, 

and not fairly traceable to the UF Defendants. This warrants dismissal of all counts 

pled against the UF Defendants.

b. Plaintiff’s Injuries Are Not Redressable by the UF Defendants

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For an injury to be redressable “it must be likely, as opposed to merely 

speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defs. 

of Wildlife, 504 U.S. 555, 561(1992). “Redressability is established . . . when a 

favorable decision ‘would amount to a significant increase in the likelihood that the 

plaintiff would obtain relief that directly redressed the injury suffered.’” Mulhall v. 

UNITE HERE Local 355, 618 F.3d 1279, 1290 (11th Cir. 2010) (quoting Harrell v. 

Fla. Bar, 608 F.3d 1241, 1260 n.7 (11th Cir. 2010)). Courts must be able “to 

ascertain from the record whether the relief requested is likely to redress the alleged 

injury,” Steele v. Nat'l Firearms Act Branch, 755 F.2d 1410, 1415 (11th Cir. 1985), 

and if they cannot, then there is no jurisdiction to entertain the action. See DiMaio 

v. Democratic Nat'l Comm., 520 F.3d 1299, 1303 (11th Cir. 2008) (dismissing 

complaint for lack of standing because it did not “suggest in any way how [the] 

‘injury’ could be redressed by a favorable judgment”).

Plaintiff seeks, inter alia, equitable relief in the form of permanent injunctive 

relief against all of the defendants to: (1) cease enforcement of the State Plan 

Exclusion of coverage for “gender reassignment or modification services and 

supplies”; and (2) provide benefits that cover Plaintiffs’ medically necessary gender 

affirming care. (Doc 34 pp. 62-63). Again, as DMS is the singular controlling entity 

as to the determination and administration of the state health plans as provided 

pursuant to Chapter 110 Fla. Stat., a favorable decision against the UF Defendants 

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will do nothing to redress the Plaintiff’s alleged injuries. The UF Defendants have 

no power or authority to require DMS to alter the group health insurance plans 

already in effect. Moreover, the UF Defendants could not compel or require DMS, 

notwithstanding the current plans in effect, to provide funds that cover the benefits 

the Plaintiff seeks, nor do the UF Defendants have any authority to commit state 

funds for such use. 

In fact, the UF Defendants are statutorily prohibited from doing so as the state 

of Florida has exclusively made it the province and authority of DMS to control such 

terms. See section I(a), supra. The Eleventh Circuit’s opinion in Jacobson is on 

point. There, the Eleventh Circuit found that relief ordered against Florida’s 

Secretary of State could not redress the injury caused by the decision to order 

candidate names on a ballot in a certain way because nonparty supervisors of 

election, over whom the Secretary did not have any pertinent control, were 

responsible for ballot ordering. 957 F.3d at 1193. No factual allegations have been 

pled to suggest such control exists in the instant matter.

Ultimately, even if the Plaintiff is successful in the counts against the UF 

Defendants, the harm suffered by the Plaintiff cannot be redressed by these 

defendants. As such, Plaintiff lacks Article III standing to sue the UF Defendants. 

See Doe, 344 F.3d at 1285–86 (holding that injuries suffered by plaintiff in custody 

proceeding by virtue of criminal statute would not be redressed through lawsuit 

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against the Alabama Attorney General where injunctive relief against the Attorney 

General would have done nothing to change the result the plaintiff suffered in the 

state court custody proceeding and nothing that the court could order the Attorney 

General refrain from doing would address the harm suffered); Hollywood Mobile 

Estates, 641 F.3d at 1265–67 (holding plaintiff could not establish standing against 

Secretary of the Interior because plaintiff failed to show how a judgment against the 

Secretary would redress the harm caused by a third party).

II. Count VI, Asserting Equal Protection Clause Violations, is Barred by the 

Doctrine of Sovereign Immunity 

Count VI, brought pursuant to Section 1983, is lodged against the UF Board 

Members in their official capacities, and alleges a deprivation of rights under the 

Equal Protection Clause of the Fourteenth Amendment. This claim however is

barred by the Eleventh Amendment, and, while technically styled as an Ex Parte 

Young claim, that legal fiction should not apply here. 

“Dual sovereignty is a defining feature of our Nation's constitutional 

blueprint.” Sossamon v. Texas, 563 U.S. 277, 283 (2011) (citation omitted). “Upon 

ratification of the Constitution, the States entered the Union ‘with their sovereignty 

intact.’” Id. (citation omitted). It is a fundamental concept of Federalism that states 

yield their sovereignty only with respect to matters exclusively assigned to the 

federal government. See Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 

(1991). This concept underlies the Eleventh Amendment of the Constitution which 

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limits the power of federal courts to hear certain lawsuits brought against states. See

U.S. Const. amend. XI; P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 

U.S. 139, 144-46 (1993). The Eleventh Amendment provides that “[t]he 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 . . ..” U.S. Const. Amend. XI.

The Amendment has been interpreted by the Supreme Court to forbid lawsuits 

brought by citizens of a state against their own state in federal courts under most 

circumstances. Congress may abrogate state sovereign immunity if it has 

unequivocally expressed its intent to abrogate the immunity and if it has acted 

pursuant to a valid exercise of power. Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 

55 (1996). The doctrine of sovereign immunity has been interpreted to bar suits 

against an unconsenting state brought by private parties regardless of the nature of 

the relief sought. See id.; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 

100 (1984).

Sovereign immunity, as embodied in the Eleventh Amendment, precludes 

actions brought pursuant to Section 1983 against state entities for money damages 

and for injunctive relief. State entities and state officials sued in their official 

capacities are not “persons” subject to suit under Section 1983. See Will v. Mich. 

Dep't of State Police, 491 U.S. 58, 70–71 (1989). The state of Florida has not waived 

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its immunity to suits under Section 1983. See Gamble v. Fla. Dep't of Health & 

Rehab. Servs., 779 F.2d 1509, 1513-20 (11th Cir. 1986). 

Nevertheless, the Eleventh Amendment and the doctrine of sovereign 

immunity does not preclude suits against state officers in their official capacity for 

prospective injunctive relief when the state officers’ alleged actions are in violation 

of federal law. Ex Parte Young, 209 U.S. 123 (1908); Grizzle v. Kemp, 634 F.3d 

1314, 1319 (11th Cir. 2011). This is because such suits, including suits under Section 

1983, are not treated as suits against the state itself. Will, 491 U.S. at 71 n. 10.

The Ex Parte Young doctrine creates a legal fiction allowing a claim against 

a state officer to redress continuing violations of federal law. Verizon Md. Inc. v. 

Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). However, Ex parte Young

cannot “operate as an exception to ... sovereign immunity where no defendant has 

any connection to the enforcement of the challenged law at issue.” Summit Med. 

Assocs., P.C. v. Pryor, 180 F.3d 1326, 1341 (11th Cir. 1999). Thus, before the 

exception applies, the “state officer [named as a defendant in his official capacity 

must have] the authority to enforce an unconstitutional act in the name of the state.” 

Id.

The Equal Protection Clause claim brought pursuant to Section 1983 against 

the UF Board Members must be dismissed because, as state law makes clear, the UF 

Board Members simply have no influence, effect, or authority to dictate the terms of 

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the state health plans challenged by the Plaintiff. Only if a state officer has the 

authority to enforce an unconstitutional act in the name of the state can the 

Supremacy Clause be invoked to strip the officer of his official or representative 

character and subject him to the individual consequences of his conduct. Summit 

Med. Assocs., P.C., 180 F.3d at 1341 (citing Ex Parte Young). Where the named 

defendant lacks any responsibility to enforce the statute or scheme at issue the real 

party in interest is the state and the suit remains barred by the Eleventh Amendment. 

Summit Med. Assocs. P.C., 180 F.3d at 1341.

The fact of the matter is that DMS is tasked by statute with establishing the 

health care plans for all state employees. The UF Board Members are not authorized 

in any way to solicit bids for health insurance plans, establish exclusions, enter into 

contracts to secure health insurance plans for state employees, or otherwise dictate 

to any state employee the contours of healthcare coverage. That is DMS’s 

responsibility. 

This case is unlike those that have found a connection sufficient to support an 

Ex Parte Young claim. For example, the Eleventh Circuit in Luckey v. Harris, 860 

F.2d 1012, 1016 (11th Cir. 1988) held that personal action by the defendants causing 

injury is not a necessary condition of injunctive relief against a state official in their 

official capacity, but that the official must still have been responsible for the action 

leading to the injury. While the defendants in that case contended that personal 

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action on the part of the official sued was required to defeat Eleventh Amendment 

immunity, the court held that all that was required was that the official was 

“responsible for the challenged action.” Id. at 1015. According to the Eleventh 

Circuit, the state officer sued must “‘by virtue of his office, ha[ve] some connection’

with the unconstitutional act or conduct complained of” whether that connection 

arises out of general law or is specifically created by the act itself. Id. at 1016. 

In relying on these holdings, the Eleventh Circuit found that the governor of 

Georgia and Georgia judges were proper official defendants in an Ex Parte Young

action challenging systemic deficiencies in the Georgia indigent criminal defense 

system resulting in constitutional deprivation. Id. at 1015-1016. This was because 

the governor was responsible for law enforcement in the state, charged with 

executing the laws faithfully, and had residual power to commence criminal 

prosecutions by state statute. Similarly, Judges were responsible for administering 

the system of representation for indigent criminally accused defendants by state 

statute. This made them appropriate defendants against whom prospective relief 

could be ordered. Id. at 1016.

But this is not a case where alleged deficiencies in a system are being 

challenged against those that are responsible for the system. By statute, the UF Board 

Members do not have any responsibility for the establishment of the state health 

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plans. Far from “some connection,” they have no connection to the harm alleged by 

the Plaintiff.

Due to this lack the authority to establish the state health plan or enforce any 

exclusion that Plaintiff alleges caused her harm, the fiction of Ex Parte Young simply 

does not hold water. See Osterback v. Scott, 782 F. App'x 856, 858–59 (2019)

(holding that suit against the Governor of Florida in his official capacity was barred 

by sovereign immunity and not subject to Ex Parte Young exception because, while 

the Governor had constitutional and statutory authority to enforce the law and 

oversee the executive branch, the responsibility for the enforcement of a challenged 

provision rested with the Division of Administrative Hearings). The non-fiction is 

that the Amended Complaint is a suit against the state, and the challenge lodged 

against the UF Board Members in their official capacities are barred by the doctrine 

of sovereign immunity. Accordingly, Count VI must also be dismissed with 

prejudice based on this independent ground.

Conclusion

For the foregoing reasons, the UF Defendants request that this Court dismiss

Count’s II and VI of the Amended Complaint, with prejudice.

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Respectfully submitted this 29th day of May, 2020. 

/s/ Jeffrey D. Slanker

JEFFREY D. SLANKER

Florida Bar No. 100391

E-mail: jslanker@sniffenlaw.com

MICHAEL P. SPELLMAN

Florida Bar No. 937975

E-mail: mspellman@sniffenlaw.com

MARK K. LOGAN

Florida Bar No. 0494208

E-mail: mlogan@sniffenlaw.com

SNIFFEN & SPELLMAN, P.A.

123 North Monroe Street

Tallahassee, Florida 32301

Telephone: (850) 205-1996

Facsimile: (850) 205-3004

Attorneys for the UF Defendants

WORD COUNT CERTIFICATION

This document complies with word limits set forth in N.D. Fla. Local Rule 

7.1(F), and contains 5470 words, which includes all portions of the motion including 

those permitted to be excluded by Local Rule.

/s/ Jeffrey D. Slanker

JEFFREY D. SLANKER

CERTIFICATE OF SERVICE

The undersigned certifies that on this 29th day of May, 2020, a true and correct 

copy of the foregoing was electronically filed in the U.S. District Court, Northern 

District of Florida, using the CM/ECF system which will send a notice of electronic 

filing to all counsel of record.

/s/ Jeffrey D. Slanker

JEFFREY D. SLANKER

Case 4:20-cv-00020-MW-MAF Document 58 Filed 05/29/20 Page 23 of 23