“If the injunctive relief sought by the plaintiff is truly prospective non-monetary relief, sovereign immunity will not bar the suit simply because the state may be required to make incidental expenditures in complying with the injunction.”
How later courts described this case
- “If the injunctive relief sought by the plaintiff is truly prospective non-monetary relief, sovereign immunity will not bar the suit simply because the state may be required to make incidental expenditures in complying with the injunction.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
DR. JULIA GRUBER and )
ANDREW SMITH , )
)
Plaintiffs, )
)
v. ) No. 2:21-CV-00039
)
TENNESSEE BOARD OF TRUSTEES )
d/b/a TENNESSEE TECH )
UNIVERSITY, DR. LORI BRUCE, in )
her official and individual capacity, and )
DR. PHILIP OLDHAM, in his individual )
and official capacity, )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
In this suit under 42 U.S.C. § 1983, Dr. Julia Gruber, an Associate Professor of German, and
Andrew Smith, a Senior Instructor of English, sue their employer, Tennessee Board of Trustees d/b/a
Tennessee Tech University, along with Dr. Philip Oldham, its President, and Dr. Lori Bruce, its
Provost and Vice President for Academic Affairs. Plaintiffs allege retaliation in violation of the First
Amendment for their exercise of free speech and the denial of due process in violation of the
Fourteenth Amendment to the United States Constitution. By way of this lawsuit, Plaintiffs seek to
enjoin certain sanctions that have been imposed against them, such as “1) Not being allowed to serve
as a faculty advisor to any student organization at the university, including student clubs, student
chapters of professional societies, and student honor societies, 2) Not being allowed to participate
in study abroad activities, including faculty-led trips with students, 3) Not being eligible for
non-instructional faculty assignments, including university level awards of non-instructional faculty
assignments or release from teaching duties for the purpose of administrative duties, 4) The
revocation of Dr. Gruber’s grant, 5) Requiring meetings to discuss their classroom behavior, 6)
Subjecting them to unnecessary observation in the classroom, and 7) The threat of termination for
further disciplinary actions.” (Doc. No. 40 at 2).
Defendants have filed a “Motion for Partial Dismissal” in which they request dismissal of
“Plaintiffs’ claims against Tennessee Technological University, Dr. Gruber in her official capacity,
and Dr. Oldham, in his official capacity.” (Doc. No. 34 at 1). Defendants also request that they be
allowed fourteen days from this Court’s ruling on the motion within which to file an Answer
because, while Rule 12(a)(4) automatically extends the period for responding to a complaint when
a motion to dismiss is filed, the rule does not indicate whether that extension applies to partial
motions as well.
Turning to the procedural issue first, although “there is limited authority on the point, . . .
the majority of federal courts that have addressed the issue have held that filing a partial motion to
dismiss does indeed extend the time to file a responsive pleading with respect to all claims, including
those not addressed in the motion.” Compton v. City of Harrodsburg, 287 F.R.D. 401, 402 (E.D. Ky.
2012) (citing 5B Wright & Miller, FEDERAL PRACTICE AND PROCEDURE § 1346 (3d ed.)). As one
court has explained, not permitting an extension for partial motions to dismiss could result in dual-
track litigation whereby discovery is allowed on some but not all claims, and this could run afoul of
Rule 1’s command that the Federal Rules be construed to “‘secure the just, speedy, and inexpensive
determination of every action and proceeding.’” Kent Int’l, Inc. v. United States, 161 F. Supp. 3d
1340, 1342 (Ct. Int’l Trade 2016) (quoting Fed. R. Civ. P. 1). Many decades ago, the district court
in Gerlach v. Mich. Bell Tel. Co., 448 F. Supp. 1168, 1174 (E.D. Mich.1978) held otherwise, but
that case seemingly “stands alone like an Appaloosa in a herd of Thoroughbreds, and this Court
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declines to follow its lead.” Compton, 287 F.R.D. at 402.
Resolution of the substantive issue is also relatively straightforward given the governing law.
In their response, “Plaintiffs agree that their claims against Tennessee Tech should be dismissed”
but argue that “the claims against Dr. Lori Bruce and Dr. Philip Oldham in their official capacities
must remain.” (Doc. No. 40 at 1, 4).
By its very terms, an official capacity claim as permitted by the Ex Parte Young doctrine
means that “a federal court can issue prospective injunctive and declaratory relief compelling a state
official to comply with federal law” even if that “compliance might have an ancillary effect on the
state treasury[.]” S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507–08 (6th Cir. 2008) (internal
citations omitted). The difference between improper retroactive damages and those ancillary to a
prospective relief claim has been described as follows:
In distinguishing between forbidden monetary relief and permissible injunctive relief,
the Supreme Court has explained that “[r]elief that in essence serves to compensate
a party injured in the past by an action of a state official in his official capacity that
was illegal under federal law is barred even when the state official is the named
defendant.” Papasan v. Allain, 478 U.S. 265, 278, 106 S. Ct. 2932, 92 L. Ed.2d 209
(1986). “On the other hand, relief that serves directly to bring an end to a present
violation of federal law is not barred by the Eleventh Amendment even though
accompanied by a substantial ancillary effect on the state treasury.” Id. The
ancillary-effect exception, we have explained, “is a narrow one.” Kelley v. Metro.
County Bd. of Educ., 836 F.2d 986, 992 (6th Cir.1987). “The dividing line” between
ancillary relief and essentially compensatory relief, we have also explained, “is
whether the money or the non-monetary injunction is the primary thrust of the suit.”
Barton v. Summers, 293 F.3d 944, 949 (6th Cir.2002); id. (“If the injunctive relief
sought by the plaintiff is truly prospective non-monetary relief, sovereign immunity
will not bar the suit simply because the state may be required to make incidental
expenditures in complying with the injunction.”). We consider Eleventh Amendment
immunity, as well as any exceptions to it, on a claim-by-claim basis.
Ernst v. Rising, 427 F.3d 351, 367–68 (6th Cir. 2005).
Given this authority, Plaintiffs’ claim against Dr. Oldham in his official capacity is clearly
3
subject to dismissal.1 As to that Defendant, they simply allege:
132. Dr. Oldham, the President of Tennessee Tech, unilaterally decided that anyone
at Tennessee Tech who had been disciplined in the past year would not be eligible
for the $1,000 bonus normally received.
133. Accordingly [because they were sanctioned by Dr. Bruce], Plaintiffs were both
denied a $1,000 bonus in May of 2021 due to the Sanctions and decisions of Dr.
Oldham.
(Doc. No. Amended Complaint ¶¶ 132-33). A claim for the retroactive payment of a one-time
$1,000 bonus that was not awarded for a prior year’s service is simply not a claim for prospective
injunctive relief of which the money would be ancillary. Rather, it is a request for relief that would
serve to compensate plaintiff for a past injury and is barred by the Eleventh Amendment. Papasan,
478 U.S. at 278. Plaintiffs present no real arguments to the contrary.
The “thrust” of the complaint against Dr. Bruce is entirely different, however. She is the one
who imposed the sanctions identified at the start of this opinion that include non-monetary
punishment, and she allegedly did so in violation of Plaintiffs’ free speech right and without due
process. While the Amended Complaint’s prayer for relief contains the phrase “monetary losses,”
it does do in the context of requesting that “the Court permanently enjoin Defendants from violating
Plaintiffs’ rights or grant them other equivalent equitable relief, including monetary losses, and order
Defendants to revoke all of the Sanctions imposed on Plaintiffs and reinstate Plaintiffs to their full
teaching duties.” (Am. Cmpt. at 21). “[C]laims for reinstatement are prospective in nature and
1Plaintiffs’ claim against Dr. Oldham in his individual capacity may be subject to dismissal as well.
An individual “is only liable for his or her own misconduct,” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009),
and “case law teaches that in order to impose individual liability upon a [government official] for engaging
in unconstitutional misconduct, it is a plaintiff's burden to specifically link the [official’s] involvement to
the constitutional infirmity,” Burley v. Gagacki, 834 F.3d 606, 615 (6th Cir. 2016). However, Defendants
have not moved to dismiss the individual capacity claim against Dr. Oldham because, at the time of the filing
of the motion to dismiss, he had not been served in his individual capacity. (Doc 34 at 1).
4
appropriate subjects for Ex parte Young actions.” Carten v. Kent State Univ., 282 F.3d 391, 396 (6th
Cir. 2002)(citing Turker v. Ohio Dep’t. of Rehab. and Corrs., 157 F.3d 453, 459 (6th Cir.1998)).
Because the “thrust” of Plaintiffs real claim against Dr. Bruce is to right the alleged wrongs and
those include non-monetary damages, the Court cannot dismiss the official capacity claim against
her.
Accordingly, Defendants’ Motion for Partial Dismissal (Doc. No. 34) is GRANTED IN
PART and DENIED IN PART as follows: (1) The Motion is GRANTED with respect to
Tennessee Board of Trustees d/b/a/ Tennessee Tech University, and that Defendant is hereby
DISMISSED; (2) The Motion is GRANTED with respect to the official capacity claim against Dr.
Philip Oldham, and that claim is DISMISSED; and (3) The Motion is DENIED with respect to the
official capacity claim against Dr. Lori Bruce. Within fourteen (14) days of the date of entry of this
Order and Memorandum Opinion, the remaining Defendants shall file an Answer (or Answers) to
the Amended Complaint.
IT IS SO ORDERED.
WobS. 2ushe
CHIEF UNITED STATES DISTRICT JUDGE