IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JOANNA DYKES, et al.,

Plaintiffs,

vs. CASE NO. 4:11cv116/RS-WCS

ELIZABETH DUDEK in her

official capacity as Secretary of the 

Florida Agency for Health Care

Administration, et al., 

Defendants.

__________________________________

ORDER

Before me are the Governor‟s Motion to Dismiss (Doc. 46), and Plaintiffs‟ 

Response in Opposition (Doc. 51). Plaintiffs have not filed an amended response even 

though they were granted leave to do so (See Doc. 55). 

Standard of Review

To survive a motion to dismiss, a complaint must contain sufficient facts, which 

accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 

S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569, 127 S. Ct. 

1955, 1974 (2007). Granting a motion to dismiss is appropriate if it is clear that no relief 

could be granted under any set of facts that could be proven consistent with the 

allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 

2229, 2232 (1984). In making this determination, the court must accept all factual 

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allegations in the complaint as true and in the light most favorable to Plaintiff. 

Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 2182 (2003).

Analysis

“The ultimate guarantee of the Eleventh Amendment is that nonconsenting States 

may not be sued by private individuals in federal court.” Bd. of Trs. of the Univ. of Ala. 

v. Garrett, 531 U.S. 356, 363 (2001). The Amendment‟s protections extend to state 

officials where the suit is in fact a suit against a state. Pennhurst State Sch. & Hosp. v. 

Halderman, 465 U.S. 89, 101-102 (1984). 

There are several exceptions to Eleventh Amendment immunity. First, a state may 

consent to being sued. Florida has not consented to suit in this case. See Fla. Stat. § 

768.28(18). Second, Congress may abrogate the states‟ sovereign immunity by 

“unequivocally express[ing]” its intent to do so. Plaintiffs do not assert that Congress has

waived Florida‟s immunity. See Quern v. Jordan, 440 U.S. 332, 345 (1979) (holding 

that Congress did not intend Section 1983 to override state immunity). Here, the real 

dispute is over the third exception to Eleventh Amendment immunity; that established by 

Ex parte Young, 209 U.S. 123 (1908). 

The Ex Parte Young exception to the Eleventh Amendment allows a federal court 

to grant prospective relief against state officials in order to vindicate federal rights. 

Armstead v. Coler, 914 F.2d 1464, 1467 (11th Cir. 1990) (citing Ex Parte Young, 209 

U.S. 123). The Eleventh Circuit has “interpreted Ex Parte Young to permit suits against 

state officers only when those officers are „responsible for‟ a challenged action and have 

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„some connection‟ to the unconstitutional act at issue. Women's Emergency Network v. 

Bush, 323 F.3d 937, 949-950 (11th Cir. 2003) (citing Luckey v. Harris, 860 F.2d 1012, 

1015-16 (11th Cir. 1988)). Where the enforcement of a state statute is the responsibility 

of parties other than the governor, the governor's general executive power is insufficient 

to confer jurisdiction under Ex Parte Young. Id.

Here, the Governor asserts that he is an improper party because the Governor 

merely has “„supervisory power‟ over the state agencies‟ enforcement of the challenged 

programs, their directors, and their rulemaking.” (Doc. 46, p. 6). Plaintiffs acknowledge 

that Defendant Elizabeth Dudek, the Secretary of Florida‟s Agency for Health Care 

Administration, is “responsible for administering Florida‟s Medicaid Program.” (Doc. 

30, ¶ 91). They also acknowledge that Defendant Brian Vaughan, the Interim Director of 

Florida‟s Agency for Persons with Disabilities, is “responsible for providing all services 

to persons with developmental disabilities.” Id. However, Plaintiffs also allege that the 

Governor is a proper party. 

Plaintiffs rely on the Governor‟s issuance of Executive Order 11-72. Plaintiffs

allege that the Executive Order prohibits Defendants Vaughan and Dudek from 

proposing, repealing, or making changes to administrative rules without first obtaining 

approval of the Governor though his designee, the Office of Fiscal Accountability and 

Regulatory Reform (“OFARR”). 

The Florida Supreme Court has recently considered Executive Order 11-72. 

The Legislature retains the sole right to delegate 

rulemaking authority to agencies, and all provisions in . . . 

Executive Order 11-72 that operate to suspend rulemaking 

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contrary to the APA constitute an encroachment upon a 

legislative function. . . We trust that any provision in 

Executive Order 11-72 suspending agency compliance with 

the APA, i.e., rulemaking, will not be enforced against an 

agency at this time, and until such time as the Florida 

Legislature may amend the APA or otherwise delegate such 

rulemaking authority to the Executive Office of the Governor.

Whiley v. Scott, 2011 Fla. LEXIS 1900, 37-38 (Fla. Aug. 16, 

2011). 

Because Executive Order 11-72 is no longer in effect, the Governor‟s 

responsibility over the agencies in question amounts to general executive power which is 

not sufficient to permit jurisdiction over him. The Governor‟s other actions including

investigating and reviewing rules are part of his normal functions of administration. The 

Governor is entitled to Eleventh Amendment immunity. He is therefore dismissed with 

prejudice.

1

 

ORDERED on September 19, 2011.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

 

1 Whiley is not final until the time expires to file and consider a rehearing motion. Should such a motion be granted 

by the Florida Supreme Court, I will revisit this decision. 

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