REVISED November 25, 2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11092

KATHIE CUTRER, 

 Plaintiff - Appellant,

v.

TARRANT COUNTY LOCAL WORKFORCE DEVELOPMENT BOARD, 

doing business as Tarrant County Workforce Solutions; 

INSPERITY INCORPORATED, 

 Defendants - Appellees.

Appeal from the United States District Court

for the Northern District of Texas

Before WIENER, GRAVES, and OLDHAM, Circuit Judges.*

ANDREW S. OLDHAM, Circuit Judge:

Kathie Cutrer worked for the Tarrant County Workforce Development 

Board d/b/a “Workforce Solutions” for 17 years. Workforce Solutions fired 

Cutrer six months before she would’ve been eligible for retirement. Cutrer sued 

for discrimination. Workforce Solutions says it’s basically the State of Texas 

and hence enjoys state sovereign immunity. We disagree.

 * Judges Wiener and Graves concur in the judgment only.

United States Court of Appeals

Fifth Circuit

FILED

November 22, 2019

Lyle W. Cayce

Clerk

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I.

The Texas Workforce Investment Act establishes a multi-tiered 

workforce development system. See TEX. GOV’T CODE §§ 2308.001–.403; Arbor 

E & T, LLC v. Lower Rio Grande Valley Workforce Dev. Bd., Inc., 476 S.W.3d 

25, 31 (Tex. App.—Corpus Christi 2013, no pet.). The top tier is the Texas 

Workforce Commission (“TWC”). TWC is “a state agency established to operate 

an integrated workforce development system in [Texas] . . . and to administer 

the unemployment compensation insurance program in [the] state.” TEX. LAB.

CODE § 301.001(a). The bottom tier is comprised of local workforce 

development boards, like Workforce Solutions. Such local boards “plan and 

oversee the delivery of workforce training and services,” and “evaluate 

workforce development in [their respective] workforce development area[s].” 

TEX. GOV’T CODE § 2308.253(a).

Under Texas law, the political leaders in a “workforce development area” 

can agree to create a local workforce development board. See ibid. Here, the 

“workforce development area” is Tarrant County, Texas. In 1996, three local 

government leaders in Tarrant County—the mayor of Fort Worth, the mayor 

of Arlington, and the county judge of Tarrant1—agreed to create such a board. 

Today, that board does business as “Workforce Solutions.” All or almost all of 

Workforce Solutions’ employees are co-employed by a for-profit company called 

Insperity, Inc.

 1 The position of county judge is a remnant of Texas’s time as part of Mexico. Title II, 

Section VII of the 1827 Constitution of the State of Coahuila and Texas established 

Ayuntamientos (town councils), charged with municipal administration. And under Article 

159 of the 1827 Constitution, the council was to include “Alcades.” “Alcade” is a Spanish term 

for a magistrate who performs both executive and judicial functions. Today, the county judge 

principally serves as the chief executive of a Texas county. See TEX. CONST. art. V, §§ 16, 18. 

But in keeping with the historical pedigree of the office, a county judge still performs some 

judicial functions. See, e.g., TEX. EST. CODE § 1002.008(a)(1); TEX. HEALTH & SAFETY CODE

§§ 571.012, 573.012.

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Workforce Solutions hired Cutrer on May 29, 2000. (It is unclear from 

the record whether Cutrer was co-employed by Insperity.) Sometime around 

August 22, 2000, Cutrer was injured in a car accident. Those injuries included 

a broken neck, which required multiple surgeries and a double spinal fusion. 

For a time, Workforce Solutions accommodated Cutrer’s well-documented 

disabilities. It stopped doing so in 2016. The same year, Workforce Solutions 

and Cutrer’s supervisor allegedly engaged in various acts of discrimination. 

Then Workforce Solutions fired Cutrer. The parties agreed in writing to 

settle Cutrer’s various complaints for $33,750. But, adding insult to injury, 

Workforce Solutions reneged on the settlement agreement, retroactively 

changed Cutrer’s employment status from “voluntary termination” to 

“termination for poor job performance,” and used her personal information in 

violation of the Fair Credit Reporting Act (“FCRA”). 

Cutrer sued both Workforce Solutions and Insperity for discrimination, 

retaliation, post-employment retaliation under the Americans with 

Disabilities Act (“ADA”), and for violations of the FCRA. Workforce Solutions 

moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) on the ground

that it enjoys “sovereign immunity.” The district court granted the motion. 

Cutrer timely appealed.2

II.

Sovereign immunity has ancient origins. It dates at least as far back as 

Bracton in the thirteenth century. See, e.g., 2 BRACTON, DE LEGIBUS ET 

CONSUETUDINIBUS ANGLIAE 33 (George Woodbine ed., Samuel Thorne trans. 

 2 The district court also granted Insperity’s motion to dismiss under Rule 12(b)(6). 

Cutrer’s opening brief says nothing about Insperity. So her claims against Insperity are 

forfeited. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (“It has long 

been the rule in this circuit that any issues not briefed on appeal are [forfeited].”); see also 

Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 561 (5th Cir. 1997). We address 

only her claims against Workforce Solutions.

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1968) (London 1569 ed., folio 5b, Bk. I, ch. 8); Louis L. Jaffe, Suits Against 

Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1, 2 (1963) 

(“By the time of Bracton (1268) it was settled doctrine that the King could not 

be sued eo nomine in his own courts.”). And it derives from the sovereignty of 

the King: “[T]he law ascribes to the king the attribute of sovereignty, or preeminence,” which means he is “accountable to no man,” and “no suit or action 

can be brought against [him], even in civil matters, because no court can have 

jurisdiction over him.” 1 WILLIAM BLACKSTONE, COMMENTARIES *241–42; see 

also RICHARD H. FALLON, JR. ET AL., HART & WECHSLER’S THE FEDERAL 

COURTS AND THE FEDERAL SYSTEM 877–80 (7th ed. 2015) [hereinafter HART &

WECHSLER].

At our Nation’s Founding, one of the Anti-Federalists’ concerns was 

whether the States would enjoy sovereign immunity in the new Article III 

courts. The States were laboring under more than $200 million in 

Revolutionary War debt. That made the Anti-Federalists worry that the StateCitizen Clause in Article III, § 2 would allow out-of-state citizens to use the 

federal courts to sue States and collect the debts. For example, Brutus said the 

State-Citizen Clause was “improper, because it subjects a state to answer in a 

court of law, to the suit of an individual.” Brutus XIII (Feb. 21, 1788), in 2 THE 

COMPLETE ANTI-FEDERALIST 429 (Herbert Storing ed. 1981). Federal Farmer 

was blunter:

How far it may be proper to admit a foreigner or the citizen of 

another state to bring actions against state governments, which 

have failed in performing so many promises made during the war, 

is doubtful: How far it may be proper so to humble a state, as to 

bring it to answer to an individual in a court of law, is worthy of 

consideration; the states are now subject to no such actions, and 

this new jurisdiction will subject the states, and many defendants 

to actions, and processes, which were not in the contemplation of 

the parties, when the contract was made; all engagements existing 

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between . . . states and citizens of other states were made [with] 

the parties contemplating the remedies then existing on the laws 

of the states—and the new remedy proposed to be given in the 

federal courts, can be founded on no principle whatever.

Letters from the Federal Farmer III (Oct. 10, 1787), in 2 THE COMPLETE ANTIFEDERALIST, supra, at 245.

As with so many of the Anti-Federalists’ concerns, Hamilton tried to 

dismiss this one as “a supposition which has excited some alarm upon very 

mistaken grounds.” THE FEDERALIST NO. 81, at 487 (Alexander Hamilton) 

(Clinton Rossiter ed., 1961). And Hamilton insisted the federal courts wouldn’t 

dare entertain individuals’ suits against the States: “It is inherent in the 

nature of [a State’s] sovereignty not to be amenable to the suit of an individual 

without its consent.” Ibid. It took less than five years to prove Hamilton wrong. 

See Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).

That’s how we got the Eleventh Amendment. Principality of Monaco v. 

Mississippi, 292 U.S. 313, 325 (1934) (noting the Chisholm “decision created 

such a shock of surprise that the Eleventh Amendment was at once proposed 

and adopted”). That Amendment prohibits an individual from suing a foreign

state in federal court (as Chisholm had). Shortly after Congress gave the courts 

federal question jurisdiction in 1875, the Supreme Court held that sovereign 

immunity also prohibits an individual from suing his home state in federal 

court. See Hans v. Louisiana, 134 U.S. 1 (1890). From Hans to today, the 

Supreme Court has extended a broad host of immunities to States haled into 

federal court. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67–72 

(1996); Monaco, 292 U.S. at 329–30.3

 3 The text of the Eleventh Amendment provides: “The Judicial power of the United States 

shall not be construed to extend to any suit in law or equity, commenced or prosecuted against 

one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign 

State.” U.S. CONST. amend XI. That text says nothing about a suit brought by a citizen 

against her home state. See, e.g., William Baude, Sovereign Immunity and the Constitutional 

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But on the very same day the Court decided the canonical Hans case, it 

emphasized that state sovereign immunity does not protect a political 

subdivision of the State. See Lincoln County v. Luning, 133 U.S. 529 (1890). In 

that case, a federal court rendered judgment against a county and forced it to 

honor certain bonds and coupons. That’s the very thing Brutus and Federal 

Farmer worried federal courts would do to States under Article III. But Lincoln 

County held that only the State is immune from suit in federal court:

[W]hile the county is territorially a part of the state, yet politically 

it is also a corporation created by, and with such powers as are 

given to it by, the state. In this respect, it is a part of the state only 

in that remote sense in which any city, town, or other municipal 

corporation may be said to be a part of the state. 

Id. at 530. The same rule has endured ever since. See HART & WECHSLER,

supra, at 921.

Lincoln County makes this an open-and-shut case: Because Tarrant 

County, the City of Arlington, and the City of Fort Worth are not the State of 

Texas, they obviously cannot confer the State’s sovereign immunity upon a 

board by interlocal agreement. They can’t give what they don’t have.

III.

Workforce Solutions nonetheless insists it should be treated like the 

sovereign State of Texas—even though it’s in no sense the sovereign. It rests 

 

Text, 103 VA. L. REV. 1, 6–7 (2017); John F. Manning, The Eleventh Amendment and the 

Reading of Precise Constitutional Texts, 133 YALE L.J. 1663, 1666 (2004). But a long line of 

precedent holds that “the Eleventh Amendment accomplished much more: It repudiated the 

central premise of Chisholm that the jurisdictional heads of Article III superseded the 

sovereign immunity that the States possessed before entering the Union.” College Sav. Bank 

v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669 (1999); see also Alden v. 

Maine, 527 U.S. 706, 736 (1999) (“[T]he bare text of the Amendment is not an exhaustive 

description of the States’ constitutional immunity from suit.”). That immunity extends to 

States haled into state courts, see Alden, 527 U.S. at 759–60, and federal non-courts (like 

administrative agencies), see Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 747

(2002).

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that counterintuitive argument on the so-called “Clark factors,” which derive 

from our decision in Clark v. Tarrant County, 798 F.2d 736 (5th Cir. 1986).

Here too Workforce Solutions falls far short.

In Clark, we held that sovereign immunity applies not only to the State 

itself but also to “an arm of the state.” Id. at 744. Then we identified six 

“factors” that influence our determination of whether something is an “arm of 

the state.” Ibid. Those “factors” are:

(1) “whether the state statutes and case law view the [entity] as an 

arm of the state”; 

(2) “the source of the entity’s funding, since an important goal of 

the Eleventh Amendment is the protection of state treasuries”;

(3) “the entity’s degree of local autonomy”; 

(4) “whether the entity is concerned primarily with local, as 

opposed to statewide, problems”; 

(5) “whether the entity has the authority to sue and be sued in its 

own name”; and 

(6) “whether [the entity] has the right to hold and use property.”

Id. at 744–45. No factor or combination of them is necessary. None is sufficient. 

And Clark says nothing about how to “balance” them. As Justice Scalia once 

pointed out in similar circumstances, “the scale analogy is not really 

appropriate, since the interests on both sides are incommensurate. It is more 

like judging whether a particular line is longer than a particular rock is heavy.”

Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) 

(Scalia, J., concurring in judgment). Such “tests” have all the precision of a 

blunderbuss.

Still, we’ve made two things clear. First, an entity that asserts sovereign 

immunity under Clark bears the burden of demonstrating that it’s an “arm of 

the state.” See, e.g., Skelton v. Camp, 234 F.3d 292, 297 (5th Cir. 2000) 

(collecting cases). And second, Clark’s money factor deserves “the most 

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weight.” Black v. N. Panola Sch. Dist., 461 F.3d 584, 596 (5th Cir. 2006). So 

we’ve given Workforce Solutions multiple opportunities to carry its burden.4

And we’ve endeavored at length to identify where Workforce Solutions would 

get the money to pay an adverse judgment in this case. That endeavor has been 

frustrating, to put it mildly.

In its brief on the merits, Workforce Solutions insists it is “wholly

dependent on public funding.” But it doesn’t specify that “public funding” 

means state funds (as opposed to, say, local funds). And Workforce Solutions’ 

annual report suggests it receives $486,185 in “Other Fund Sources” that are 

not tethered to any public fisc (federal, state, or local).

Workforce Solutions also relies upon a declaration from its general 

counsel. The declaration says: “Any judgment against Workforce Solutions 

could put funds from the state treasury at risk.” That’s a bold claim. And you 

might wonder how or why it’s true. Unfortunately, the general counsel does 

not elaborate. And it’s not self-evident from the record how or why a judgment 

against a local board formed by interlocal agreement could or would be passed 

through to the State. Workforce Solutions concedes the State appropriates zero 

dollars directly to it or any other local development board. Workforce Solutions 

 4 Workforce Solutions moved to dismiss Cutrer’s complaint for lack of subject-matter 

jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and it contends Cutrer bears the 

burden of proving Workforce Solutions is not entitled to sovereign immunity. It’s unclear 

whether and to what extent the Eleventh Amendment deprives a federal court of subjectmatter jurisdiction to hear a case that arises under a federal statute. Compare Caleb Nelson, 

Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559, 1615–

17 (2002) (arguing that the Eleventh Amendment deprives federal courts of subject-matter 

jurisdiction only over diversity cases against States, and that sovereign immunity should be 

available as a personal-jurisdiction defense in all other cases), with Lawrence C. Marshall, 

Fighting the Words of the Eleventh Amendment, 102 HARV. L. REV. 1342, 1347 (1989) (arguing 

that the Eleventh Amendment stripped the courts of the power to hear all suits between the 

categories of parties listed in the Amendment, including those cases relying on federalquestion jurisdiction). Regardless of which party bears the burden, however, Workforce 

Solutions is not entitled to sovereign immunity for the reasons explained below. 

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does not identify a single instance in the past where the State appropriated

more than zero dollars to pay a judgment against a local board. Nor does 

Workforce Solutions explain how or why the State would or could do so in the 

future.

Given these ambiguities, we gave Workforce Solutions a final 

opportunity to explain its avowed entitlement to sovereign immunity. After 

argument, we asked for a supplemental brief explaining, inter alia, where 

Workforce Solutions would get the money to pay a judgment for Cutrer. 

Workforce Solutions filed a supplemental brief. But again, it raises more 

questions than it answers. For example, Workforce Solutions says: “Potential

funding sources to pay an adverse judgment might include: A special 

appropriation of the Texas Legislature; or Execution on the judgment by the 

judgment-creditor-plaintiff on local bank accounts maintained by the Board.” 

(emphases added). Might they include something else? What basis is there for 

speculating that they include these two potentialities? Heaven only knows.

All of this is made more bewildering by the fact that Workforce Solutions 

previously agreed in writing to pay Cutrer $33,750. Where did it plan to get 

that money? If all of its money somehow really belongs to the State of Texas, 

did the State have to agree to that payment? And regardless, what law would 

give Workforce Solutions the power to move its purportedly public money from 

the State treasury to Cutrer’s bank account in the absence of a judgment? 

Again, Workforce Solutions won’t say.5 “It is a riddle, wrapped in a mystery, 

 5 Workforce Solutions simply insists the State would, if necessary, readily pay a judgment 

or settlement in this case. But, as far as we know, that’s not how Texas government works. 

The General Appropriations Act requires every penny that leaves the State treasury to be 

spent according to authorized purposes. See GENERAL APPROPRIATIONS ACT, 85th Leg., R.S.,

art. IX-1, § 1.01, Legislative Intent (“It is the purpose of the Legislature in enacting this bill 

only to appropriate funds and to restrict and limit by its provisions the amount and conditions 

under which the appropriations can be expended.”). Judgments and settlements are no 

exception. See id., art. IX-77, § 16.04, Judgments and Settlements. For one, both the Governor 

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inside an enigma.” Winston Churchill, The Russian Enigma (BBC Broadcast, 

Oct. 1, 1939). 

But when it comes to satisfying a burden of proof, enigmas won’t cut it. 

A local board cannot invoke the ancient and august protections reserved to the 

sovereign while steadfastly refusing to explain or identify how or why a money 

judgment would in fact affect the sovereign. A party cannot carry its burden of 

proof with equivocation and obfuscation. 

* * *

Workforce Solutions is not the State of Texas. It’s a local board in Tarrant 

County. We suppose it’s possible that judgments against such a local entity 

could implicate the State’s treasury. But it’s not possible for such a local entity 

to hide behind sovereign immunity when its briefs and the record reveal no 

basis for it. If Workforce Solutions wants to be treated like the State of Texas, 

it must explain why it is (for present purposes) the State of Texas.

The judgment of the district court is REVERSED, and the case is 

REMANDED for further proceedings consistent with this opinion.

 

and the Attorney General must authorize the payment. Id. § 16.04(b)(1). And the Attorney 

General must be satisfied that there was a valid “waiver of sovereign immunity or [a] 

legislative resolution granting [the] litigant permission to sue.” Id. § 16.04(e)(8). We have no 

evidence that the Attorney General approved the later-withdrawn settlement with Cutrer, 

or that any state official thinks Workforce Solutions is entitled to pay its judgments with 

appropriated funds. If there’s another way to pay the settlement with the State’s money, 

again, Workforce Solutions doesn’t tell us.

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