UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMI CLAIRE and KATHRYN LANE,

Plaintiffs, 

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

FLORIDA DEPARTMENT OF 

MANAGEMENT SERVICES; JONATHAN

SATTER, in his official capacity as 

Secretary of the Florida Department of

Management Services; UNIVERSITY OF 

FLORIDA BOARD OF TRUSTEES;

MORTEZA HOSSEINI, in his official

Capacity as Chair of the University of

Florida Board of Trustees; THOMAS

KUNTZ, DAVID BRANDON, JAMES 

HEAVENER, LEONARD JOHNSON,

MICHAEL MURPHY, DANIEL O’KEEFE,

RAHUL PATEL, MARSHA POWERS,

JASON ROSENBERG, ROBERT STERN,

RAY THOMAS, and ANITA ZUCKER, in

their official capacities as Members of the 

University of Florida Board of Trustees; 

and ANDY THOMAS, in his official capacity

as Public Defender of the Second Judicial

Circuit of Florida,

Defendants. 

__________________________________________/ 

DEFENDANT UNIVERSITY OF FLORIDA BOARD OF TRUSTEES AND

UNIVERSITY OF FLORIDA BOARD OF TRUSTEES MEMBERS’

MOTION TO DIMISS PLAINTIFF’S COMPLAINT

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Defendants, 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, 

moves this Court to dismiss Counts II, and V of the Complaint, with prejudice.

Introduction

The Complaint must be dismissed based on several fundamental grounds.

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 Count

V, 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 the State in determining

the appropriate level of healthcare for its employees.

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Count V, 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 relief sought is essentially retrospective and not 

prospective, and the UF Board Members lack the authority to implement the 

complained-of plan at issue. Both are factors that destroy the legal fiction that Ex 

Parte Young provides in very limited cases for litigants to obtain relief from states 

officials in federal courts in situations where such actions for relief would otherwise 

be barred.

Facts

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

favorable to the Plaintiff, Jami Claire. None of the facts recited herein should be 

deemed an admission on the part of the moving parties that they are true. That said, 

the facts as set forth herein and in the complaint, simply do not provide a basis for 

relief against the UF Defendants.

Plaintiff, Ms. Claire was born male, but identifies as female. (Doc. 1 p. 8 ¶ 20, 

p. 18 ¶ 63). Plaintiff was diagnosed with gender dysphoria at or before the alleged 

constitutional and statutory violations occurred. (Doc. 1, p.18 ¶ 66). According to 

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

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

the resulting distress caused by that incongruence. . ..” (Doc. 1 p. 8 ¶ 22). Plaintiff 

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alleges that her treating physician recommended she receive an orchiectomy and 

deemed it medically necessary to treat her gender dysphoria. (Doc. 1 p. 24 ¶ 89, 90). 

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

Veterinary Medicine at the University of Florida. (Doc. 1 p. 17 ¶ 60). As a state 

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

(Doc. 1, pp. 12-13 ¶ ¶ 36, 40, 41). 

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

1 pp. 12-13 ¶ ¶ 37, 38, 39). 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 

subject to certain coverage Limitations.” (Doc. 20-1 p. 57). Section VI then goes on 

to identify 39 different categories of limitations and exclusion in the plans, one of 

which is “gender reassignment or modification services supplies.” (Doc. 20-1 p. 57). 

While the Complaint does not include the AvMed 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

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Complaint is centered around the state-provided insurance plan and the gender 

reassignment exclusion is also referred to repeatedly. (Doc. 1 p. 15 ¶ 50). Obviously, 

the plan document is central to the complaint and their 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. 1 p. 25 ¶ 92). AvMed issued a letter 

to Claire denying authorization for the procedure because, according to AvMed, it 

fell under the gender reassignment or modification services or supplies coverage 

exclusion. (Doc 1 p. 25 ¶ 93). Plaintiff appealed the denial to AvMed pursuant to the 

plan and AvMed denied the appeal. (Doc. 1 p. 25 ¶ 94). Plaintiff then filed a second–

level appeal to the Division of State Group Insurance which also denied the appeal 

for the same basis as AvMed’s denial. (Doc. 1 p. 25 ¶ 96, 97). 

It is these denials upon which Plaintiff premises her Complaint, but 

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

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

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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 the 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 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). 

To be sure, litigants must establish standing to sue under Title VII, but the 

burden under Title VII is weightier than the Article III standard. Only a “person 

aggrieved” may file suit under Title VII. 42 U.S.C. § 2000e–5(b), (f)(1). Standing 

for those “aggrieved” under Title VII must be construed more narrowly than the 

outer boundaries of Article III. Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 

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

to dismiss, it is omitted.

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177-78 (2011). Instead of Article III standing, the proper test to determine standing 

under Title VII is the “zone of interests” test. Id. at 177. Under this test, review must 

be denied “if the plaintiff's interests are so marginally related to or inconsistent with 

the purposes implicit in the statute that it cannot reasonably be assumed that 

Congress intended to permit the suit.” Id. (quoting Clarke v. Secs. Indus. Assn., 479 

U.S. 388, 399–400 (1987)). Moreover, the plain terms of Title VII only make 

actionable instances where an employer, as defined by the statute, takes an adverse 

employment action against an employee. 42 U.S.C. § 2000e—2(a).

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

Article III standing requires “a causal connection between the injury and the 

conduct complained of—the injury has to be fairly traceable to the challenged action 

of the defendant, and not the result of the independent action of some third party.” 

Hollywood Mobile Estates, 641 F.3d at 1265 (quoting Lujan v. Defs. of Wildlife, 504 

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U.S. 555, 560 (1992)). 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 DMS by the Legislature include 

the “determination of health care benefits to be provided” and the “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. 1 

¶ 37-40). 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.

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Nowhere in the 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. Further, there is no allegation in the Complaint that the UF Defendants 

were in any way involved in the decision to deny the Plaintiff her requested 

procedure. The hands of state agencies are tied because those agencies must offer 

the health plans selected by DMS, exclusions and all.

It was solely DMS’s responsibility, both by statute and in practice, 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 Complaint.

Indeed, 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 

(1984) (holding that causation is a distinct requirement of standing apart from 

whether the 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” 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.

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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 that custody determination. 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 Fed. 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, abrogated in part on other grounds by Lexmark Intern., Inc. v. Static Control 

Components, Inc., 572 U.S. 118 (2014) (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 cognizable injury, “whatever 

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deficiencies exist in the opportunities for desegregated education for [plaintiffs'] 

children might not be traceable to IRS violations of law”).

If the bar for the “fairly traceable” element of Article III standing is as low as 

the facts of the Complaint suggest, then any denial of a benefit under the state plan 

by insurance providers such as AvMed, could lead to state agencies being hauled 

into court to defend an action it had nothing to do with. Just as in those situations, 

the decision to deny a particular claim for benefits, perhaps for cosmetic dentistry or 

laser eye surgery, that an employer is in no way a part of could lead to liability for a 

state agency even though it was in no way involved in that determination. 

This simply is not the bar for standing in this Circuit. As the Eleventh Circuit 

has noted, 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, you can substitute the UF Defendants for any state agency and the result would 

be the same because that result is compelled by DMS. Nothing is more probative of 

the lack of standing.

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

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, 504 

U.S. at 561. “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 and her Co-Plaintiff, Kathryn Lane, seek, 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 1 p. 51). Again, as DMS is the 

singular controlling entity as to the determination and administration of the state 

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health plans as provided pursuant to Chapter 110 Fla. Stat., a favorable decision 

against the UF Defendants will do absolutely nothing to redress the Plaintiff’s

alleged injuries. UF has no power to require DMS to alter the group health insurance 

plans already in effect. Moreover, UF Defendants cannot compel or require DMS, 

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

the Plaintiffs seek, nor do they have any inherent statutory authority to commit state 

funds for such use. 

In fact, UF is 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; see also §1001.706(6)(b), Fla. Stat. (“Unless specifically 

authorized by law, neither 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”). Accordingly, even 

if the Plaintiff is successful in Counts II or V, the harm suffered by Plaintiff cannot 

be redressed by the UF 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 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 

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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 V, Asserting Equal Protection Clause Violations is Barred by the 

Doctrine of Sovereign Immunity 

Count V, 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 

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

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

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U.S. 139, 143-46 (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. Indeed, 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 

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). 

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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. 

Public. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). However, only prospective 

injunctive or declaratory relief may be sought against a state official under Ex Parte 

Young. See Green v. Mansour, 474 U.S. 64, 68 (1985); Fla. Ass'n of Rehab. 

Facilities, Inc., 225 F.3d 1208, 1219 (11th Cir. 2000). The exception does not allow 

a plaintiff “to adjudicate the legality of past conduct.” Summit Med. Assocs., P.C. v. 

Pryor, 180 F.3d 1326, 1337-38 (11th Cir. 1999) (“Ex parte Young requires the 

allegation of an ongoing and continuous violation of federal law.”)

Moreover, 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.” Id. at 1341. 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.

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The Equal Protection Clause claim brought pursuant to Section 1983 against 

the UF Board Members in their official capacities must be dismissed because, while 

the counts are pled in a manner suggesting that Plaintiff seeks only prospective 

declaratory and injunctive relief to redress ongoing violations of the law, the 

Complaint’s allegations actually reflect an attempt to dress-up claims for the 

monetary redress of a past harm as a request for prospective injunctive relief. 

Further, as state law makes clear, the UF Board Members simply have no influence, 

effect, or authority to dictate the terms of the state health plan challenged by the 

Plaintiff.

a. Count V Against the UF Board Members in their Official Capacities 

is, in Essence, Brought Against the State and for Retrospective 

Monetary Relief

The Ex Parte Young fiction does not apply if the prospective relief sought by 

a plaintiff is the functional equivalent of money damages. In those situations, where 

the damages are "measured in terms of a monetary loss resulting from a past breach 

of a legal duty," sovereign immunity would bar a claim even brought against state 

officials in their official capacities. Edelman v. Jordan, 415 U.S. 651, 668 (1974). 

“[W]hen the action is in essence one for the recovery of money from the state, the 

state is the real, substantial party in interest and is entitled to invoke its sovereign 

immunity from suit even though individual officials are nominal defendants.” Ford 

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Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945) (overruled on other 

grounds). 

Here, while Plaintiff alleges she is seeking only prospective declaratory and 

injunctive relief to redress an ongoing violation of the law on the part of the UF 

Board Members, the Complaint cannot avoid the application of the doctrine of 

sovereign immunity merely through creative pleading. Contrary to the tenor of the 

Complaint, it is clear the Plaintiff is actually seeking a declaration that the denial of 

her requested procedures and the application of the gender-identity exclusion was 

unlawful. This is not a case where the Complaint pleads an ongoing violation of a 

federal law, or the entitlement to prospective injunctive relief against state officials 

in anything but a nominal sense.

Indeed, “cases in which that relief is intended indirectly to encourage 

compliance with federal law through deterrence or simply to compensate the victim” 

are not appropriate for Ex Parte Young actions. See Fla. Ass'n of Rehab. Facilities, 

Inc., 225 F.3d at 1219. Ex Parte Young actions are for those situations in which the 

remedies end a continuing violation of federal law and are necessary to vindicate 

federal interest in securing the supremacy of the law, but not where the interest is 

compensatory or deterrence. Id. at 1219-21. The instant matter is essentially an 

appeal of a past denial of claims for benefits under the plans, dressed up as a claim 

for prospective injunctive relief.

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Seminole Tribe of Fla. v. Fla. Dep't of Revenue, 750 F.3d 1238 (11th Cir. 

2014), is instructive. There, the Eleventh Circuit considered whether Ex Parte 

Young applied where a tribe sought a declaratory judgment that it was exempt from 

Florida’s fuel tax. The Eleventh Circuit found the State was the “real, substantial 

party in interest” because the suit was in essence “a suit for monetary relief to be 

financed by the Florida fisc.” Id. at 1244. The Court reasoned that the “relief that the 

Tribe seeks is equitable in name only[,]” because, due to the structure of Florida's 

tax laws, a “declaratory ruling that the Tribe is exempt from the tax would amount 

to a judgment that the Tribe is entitled to a refund under Florida law” money that 

necessarily would have to come from state coffers. Id. The Court noted the refund 

would amount to a money judgment against Florida. Id. The Court also noted that, 

even if the relief sought “could conceivably be described as prospective in 

nature[,]” the relief is nothing “other than an award of damages.” Id.

Just as in Seminole Tribe, the Plaintiff here seeks relief that is prospective and 

equitable in name only. The effect of finding that the terms of the state health plan 

or its application to the Plaintiff are unconstitutional, is to redress a past harm 

suffered by the Plaintiff and require the state to expend monies to fund the 

procedures Plaintiff contend were unlawfully denied. This is hardly akin to the 

proper cases for prospective injunctive relief appropriately brought against state 

officials in their official capacities to cease ongoing violations federal law, for 

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example, to require state officials to remove a display of the Ten Commandments 

from a state capitol building; Van Orden v. Perry, 545 U.S. 677 (2005); or to 

challenge state officials on the constitutionality of a statute concerning school 

prayer. Wallace v. Jaffree, 472 U.S. 38 (1985). The distinction makes a difference, 

and warrants dismissal of the claims as to the UF Board Members in their official 

capacities. See Fla. Ass'n of Rehab. Facilities, Inc., 225 F.3d at 1221 (“[T]he 

Eleventh Amendment's immunity is triggered when a declaration or injunction 

effectively calls for the payment of state funds as a form of compensation 

for past breaches of legal duties by state officials”)

b. The UF Board Members Lack any Authority to Enforce the State Health

Plan Exclusion

Just as the UF Defendants cannot redress any harm suffered by Plaintiff, they 

are not authorized to establish or enforce the terms of the exclusion in the state health 

plan, rendering an Ex Parte Young claim inappropriately pled against the UF Board 

Members in their official capacities. Under Ex Parte Young, a litigant must bring her

case “against the state official or agency responsible for enforcing the allegedly 

unconstitutional scheme.” Osterback v. Scott, 782 F. App'x 856, 858–59 (11th Cir. 

2019) (quoting ACLU v. The Florida Bar, 999 F.2d 1486, 1490 (11th Cir. 1993)). 

Indeed, unless the state officer sued in his official capacity has some 

responsibility to enforce the statute or provision at issue, the "fiction" of Ex parte 

Young cannot operate. Only if a state officer has the authority to enforce an 

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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., 180 F.3d at 

1341.

The fact of the matter is that the health insurance offered to the Plaintiff is not 

determined by UF. DMS is tasked by statute with establishing the health care plans, 

exclusions and all. The UF Board Members are not authorized in any way to solicit 

bids for health insurance plans, establish exclusions, or otherwise dictate to Plaintiff

the contours of healthcare coverage. That is DMS’s responsibility. Indeed, the UF 

Board Members were not involved in the decision to even deny the Plaintiff’s claim

for benefits.

Because the UF Board Members lack the authority to establish the state health 

plan or enforce any exclusion that Plaintiff alleged caused her harm, the fiction of 

Ex Parte Young simply does not hold water. See Osterback, 782 Fed. App'x at 858–

59 (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 

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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 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.

Conclusion

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

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

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Respectfully submitted this 27th day of February, 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 5,050 words, which includes the headings, footnotes, and 

quotations, but does not include the case style, signature block or Certificates of 

Word Count and Service.

/s/ Jeffrey D. Slanker

JEFFREY D. SLANKER

CERTIFICATE OF SERVICE

The undersigned certifies that on this 27th day of February, 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 20 Filed 02/27/20 Page 23 of 23