Ex parte B.T. Roberts, in his capacity as a member of the Auburn University Board of Trustees PETITION FOR WRIT OF MANDAMUS (In re: Patti H. Northcutt and Walter M. Northcutt v. B.T. Roberts, in his capacity as a member of the Auburn University Board of Trustees) (Lee Circuit Court: CV-22-900114).

Rel: June 27, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections

may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2024-2025

_________________________

SC-2024-0804

_________________________

Ex parte B.T. Roberts, in his capacity as a member of the

Auburn University Board of Trustees, et al.

PETITION FOR WRIT OF MANDAMUS

(In re: Patti H. Northcutt and Walter M. Northcutt

v.

B.T. Roberts, in his capacity as a member of the Auburn

University Board of Trustees, et al.)

(Lee Circuit Court, CV-22-900114)

WISE, Justice.

The petitioners consist of the members of the Auburn University

Board of Trustees ("the Board") and various employees of Auburn

SC-2024-0804

University ("Auburn"), who are the defendants named in the complaint

filed by Patti Northcutt and her husband, Walter Northcutt. The Board

defendants consist of B.T. Roberts, Clark Sahlie, James W. Rane, Bob

Dumas, Jimmy Sanford, Caroline Aderholt, Zeke Smith, Elizabeth

Huntley, Sarah B. Newton, Michael A. DeMaioribus, James Pratt,

Wayne T. Smith, Walt Woltosz, 1 Charles D. McCrary, Quentin Riggins,

and Timothy Vines, who are members of the Board, and Kay Ivey, the

president of the Board and the Governor of the State of Alabama. The

employee defendants consist of Jay Gogue, Christopher Roberts, Yee

Ming Lee, Jennifer Kerpelman, Imran Rahman, George Flowers, Martin

O'Neill, Jaime Hammer, Linda Maxwell-Evans, and Karla McCormick.

The defendants petition this Court for a writ of mandamus directing the

Lee Circuit Court to grant their motion to dismiss Counts 3 through 8 of

the third amended complaint filed by the Northcutts, on the grounds of

federal qualified immunity and State immunity pursuant to Art. I, § 14,

of the Alabama Constitution, "to the extent [the Northcutts] seek

1According to the petitioners, Woltosz "now holds the Board seat

formerly held by Raymond J. Harbert, and Woltosz in is official capacity

is automatically substituted. Ala. R. Civ P. 25(d)." Petition, p. 9.

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retrospective equitable relief and/or money damages." Petition, p. 37. We

grant the petition in part, deny the petition in part, and issue the writ.

Facts and Procedural History

On March 29, 2022, the Northcutts sued the defendants in the Lee

Circuit Court, and they subsequently amended their complaint. On

March 22, 2023, the Northcutts filed their third amended complaint. In

that complaint, they alleged:

"42. Plaintiff Patti Northcutt previously worked in the

College of Human Sciences at Auburn University.

"43. Plaintiff Patti Northcutt previously filed an internal

grievance and civil lawsuits against the Auburn

University Board of Trustees and various Auburn

University employees alleging poor workplace

conditions, including but not limited to violations of the

FMLA, that were settled through then Auburn

University Executive Vice President Don Large.

"44. Plaintiff Patti Northcutt agreed to release her claims

and leave her position in the Auburn University College

of Human Sciences.

"45. In exchange for her promises, she was paid a sum of

money and the settlements mandated that Plaintiff

Patti Northcutt's personnel file maintained would not

have any mention of adverse action so as to not

negatively affect her applying for employment in the

future at Auburn University, and that after the

settlement of lawsuits, there would not be interference

by various Auburn University employees with her

finishing her doctoral degree."

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In the third amended complaint, the Northcutts further alleged

that a contract existed between Patti, as a student, and Auburn ("the

student/university contract"). Specifically, they asserted:

"51. When a student enrolls at a university, a contract arises

that if the student complies with the terms prescribed

by the university and completes the required courses,

the university must award the student a degree.

Implied in this contract is that the university must act

in good faith in dealing with the student. A degree may

not be refused arbitrarily or capriciously. Actions are

arbitrary or capricious if the university failed to adhere

to its own publish[ed] rules and guidelines.

"52. Thus, when Plaintiff Patti Northcutt was accepted into

her doctoral program, she entered into a contract

requiring her to comply with the terms prescribed by the

university and complete the required courses. If she did

these things, she must be awarded her degree. Good

faith in dealing with … her was required, and in regard

to her treatment as a student, the policies and procedure

of the institution must be followed."

With regard to Patti's doctoral program, the Northcutts alleged that

Martin O'Neill was the "Department Head of Human Sciences" and that

he was Patti's original major professor. They further alleged that O'Neill

had forced Patti "to change her dissertation topic because he wanted to

use the topic himself" even though Patti "had been working on her

dissertation topic for years at that point"; that, subsequently, and

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"without explanation," O'Neill told Patti he was withdrawing as her

major professor; that Patti was told that "she had to find a new major

professor on her own"; and that this forced Patti "to start her dissertation

over again, causing added expenses by prolonging the time to complete

her program; costing her the loss of years of research; and causing mental

anguish, distress, and frustration."

The Northcutts alleged that Yee Ming Lee subsequently agreed to

be Patti's major professor and that Patti's doctoral committee consisted

of Lee, Jennifer Kerpelman, Imran Rahman, and Maria Kraska. They

further alleged that Jaime Hammer, who was the general legal counsel

for Auburn, "worked with Defendants Lee and/or Kerpelman to set

academic standards and/or requirements regarding [Patti's] doctoral

program"; that Patti's doctoral committee had "discussed with the legal

department manners and/or methods that should be dealt with in the

pursuit of her doctoral degree including, but not limited to, papers,

projects and classes she should be made to take"; that Hammer had "told

Defendant Lee that the committee members should never speak to [Patti]

alone stating 'none of the committee should meet with her without at

least two of you present so that there is always a witness' "; that Lee had

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sent an email containing those instructions to Patti's committee

members; and that one of Patti's committee members had forwarded that

email to Patti. They further alleged that Lee and Kerpelman had worked

with Hammer "to come up with more stringent requirements for [Patti]

to complete than any other doctoral students" and that George Flowers,

the dean of the Auburn graduate school, had "allowed the Auburn

University legal department and/or general counsel, Defendant Hammer,

to be involved with approving [Patti's] committee to assign her extra

work not required of any other doctoral students."

With regard to Patti's doctoral committee, the Northcutts alleged:

"In a phone conversation, Defendant Lee and Defendant

Kerpelman told Dr. Kraska to resign from [Patti's] committee

and refused to give Kraska the reason why they wanted her

to resign. When Kraska refused to withdraw from [Patti's]

committee, Defendant Kerpelman asked Kraska to hang up

so she and Defendant Lee could continue to discuss [Patti]

without Kraska being involved. Kraska refused, and

Defendant Kerpelman instructed Defendant Lee to hang up

and they would discuss [Patti] together at another time when

Kraska was not on the phone."

They further alleged:

"a. Defendant Kerpelman instructed Defendant Lee that

she, as [Patti's] major professor, had to fail her out of the

doctoral program because she had been a problem to

Auburn before because she had sued the University.

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"b. Defendant Lee became visibly upset and indicated to the

committee that she did not know what to do regarding

the pressure Defendant Kerpelman was placing on her

to fail [Patti].

"c. Defendant Lee expressed to the committee that she was

worried about getting her tenure because this was her

first major professor role for a doctoral student so she

wanted to handle it right. Defendant Kerpelman

assured Defendant Lee that if she failed [Patti] out of

the doctoral program, she would get tenure.

"d. Defendant Lee was more worried about Defendant

Kerpelman helping her get tenured than she was about

treating [Patti] fairly and equitably. She failed to judge

[Patti] strictly upon her performance in her doctoral

requirements.

"e. Defendant Lee informed [Patti] that she had failed out

of the doctoral program after Defendant Kerpelman told

her to in exchange for Kerpelman agreeing to help Lee

obtain tenure.

"f. Defendants Lee and Kerpelman then asked [Patti] to go

pick up the forms that were needed to request a defense

of her dissertation and also the form Defendant Lee

needed to fail [Patti] from the doctoral program.

Defendants Lee and Kerpelman asked Plaintiff Patti

Northcutt if she would request the forms, pick them up,

backdate them, and sign them. [Patti] refused to do

these things."

The Northcutts further alleged:

"83. Defendants Lee and Kerpelman attempted to hold a

meeting that would be [Patti's] dissertation defense and

that would be the time they would fail her out of the

doctoral program.

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"84. However, when Defendant Lee called the meeting, she

failed to follow the proper University policies and

procedures to hold such a meeting. A professor cannot

call for the student to defend their dissertation. The

student has to fill out a form from the graduate school

requesting the defense of her dissertation. That was one

of the forms that Defendants Lee and Kerpelman tried

to get [Patti] to request from the graduate school, pick

up, and backdate.

"85. Committee member Kraska had gotten angry about the

way Defendants Lee, Kerpelman, and Rahman were

handling the meeting, so she left while the other

committee members continued to try to convince [Patti]

to go get the forms.

"86. At that point [Walter] was standing in the hall and

Kraska told him that what the other committee

members were doing [to] [Patti] was wrong and it was

against protocol for them to continue to meet with Patti

and make any decisions without Kraska present."

The Northcutts further asserted that Patti had not been given notice

"that the meeting was going to be her dissertation defense"; that "[s]he

was required to be given 14 days' notice"; and that Lee had told Patti that

"the sole purpose of the meeting was to answer a question Defendant

Kerpelman had concerning [Patti's] thesis and nothing more."

The Northcutts alleged that, at some point, Lee, Kerpelman, and

Rahman withdrew from her doctoral committee, which effectively

prevented her from completing her doctoral program. The Northcutts

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SC-2024-0804

further alleged that it was Flowers's "duty … to assist doctoral

candidates by providing them the necessary professors and committee

members to complete their doctoral degree"; that Flowers had told Patti

that "she would have to find replacements for her committee or 'just not

graduate' "; and that Flowers "both failed to and refused to attempt to aid

[Patti] in getting a new committee and/or a new major professor, as he

was required to do as per the bulletin." They also alleged:

"144. According to the Auburn University policy, a major

professor, as well as committee members, must come

from within the doctoral students' department, and if

they not [sic] from that department, then the individual

has to be approved by all members of the department.

"145. No other members of the College of Human Sciences, out

of fear of losing their jobs, would commit to serve as

[Patti's] major professor or be on her committee.

"146. [Patti] found a Ph.D. that was willing to be her major

professor, but that individual was from Extension

(which is closely aligned with the College [of] Human

Sciences).

"147. Defendant Flowers would not allow [Patti] to use the

individual from Extension as her major professor. He

did this knowing she could not find anyone in the

College of Human Sciences. Therefore, [Patti] was

effectively prevented from being able to complete her

doctoral program."

9

SC-2024-0804

The Northcutts also alleged that Patti did not receive consideration

for employment opportunities for which she was qualified. They alleged

that Christopher Roberts was the former dean of the School of

Engineering and is the current president of Auburn. The Northcutts

alleged that Patti had applied for a position in the College of Engineering;

that Patti had held the same position in another college at Auburn; that

Patti "held more than enough of the requirements for the job opening";

that Patti did not get an interview for that position; that "to the best of

[Patti's] knowledge and/or beliefs, no other applicant got an interview";

that that position was filled by the person who had previously worked as

the executive support assistant for Roberts; and that, "to the best of

[Patti's] knowledge, that person did not meet all the requirements for the

position that were posted." The Northcutts further alleged that neither

Patti nor any other qualified applicant was given a chance to compete for

that position, which "was in direct violation of the Auburn University

hiring policies and procedures." They went on to allege that Roberts

"knew or reasonably should have known that [by] not following the

proper procedures of considering multiple candidates and interviewing

10

SC-2024-0804

qualified candidates who had applied, he was violating Auburn

University hiring policies/procedures."

The Northcutts further alleged that Linda Maxwell-Evans was "the

Executive Director of Campus Relations for Human Resources at Auburn

University" and had acted on behalf of the Human Resources

Department in the previous civil actions that Patti had commenced,

which had been resolved through settlement agreements. They further

alleged:

"191. In the Settlement Agreements, [Patti] was supposed to

be allowed equal opportunities to apply for jobs at

Auburn University after a four‐year period. Also agreed

upon was [Patti's] personnel file maintained would not

have any mention of adverse action so as to not

negatively affect her applying for employment in the

future at Auburn University.

"192. Due to her role in the discussion for the Settlement

Agreements, Defendant Maxwell‐Evans knew or should

have reasonably known of Plaintiff Patti Northcutt's

right to be considered for employment at Auburn

University after the four‐year period and that nothing

was to be said negatively about her and no negative

information was to be placed in her personal records."

The Northcutts alleged that Karla McCormick was the associate vice

president for Human Resources at Auburn; that, even though McCormick

had not been directly involved in the discussions regarding the

11

SC-2024-0804

settlement agreements, she had access to them; and that McCormick

"knew or should have reasonably known of [Patti's] right to be considered

for employment at Auburn University after the four‐year period and that

nothing was to be said negatively about her and no negative information

was to be placed in her personal records." With regard to Maxwell-Evans

and McCormick, the Northcutts alleged that, after the four-year period

had expired, Patti had applied for numerous positions at Auburn and had

"not received consideration for any of those positions, despite the fact she

met or exceeded the requirements for all positions she applied for." They

also alleged that "[a] member of the Auburn University Human

Resources Department tried to help [Patti] apply for jobs at the

university that she qualified for"; that all communication between Patti

and that employee cut off "suddenly and without warning"; and that that

"employee would no longer return her calls or emails, which he previously

always did."

With regard to the Board defendants, the Northcutts alleged that

Patti had "contacted and met with Board of Trustee Defendants [Bob]

Dumas and [Elizabeth] Huntley about issues relating to breaches of both

the Settlement Agreements and the student/university contract. Both of

12

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them said that they would inquire into what was going on, but nothing

else was ever done."

The Northcutts alleged that Jay Gogue was president of Auburn

when the events described in the complaint took place. They also alleged

that Patti had contacted Gogue about alleged breaches of the settlement

agreements and alleged breaches of the student/university contract.

They further alleged

"68. Defendant Gogue did not instruct the employees, agents

and/or assigns of Auburn University to comply with the

terms of the Settlement Agreements.

"….

"74. Defendant Gogue did not instruct the employees, agents

and/or assigns of Auburn University to comply with

Auburn University rules, regulations and requirements

regarding the contract between the university and

Plaintiff Patti Northcutt as a student as he was required

to do. He knew that the student/university contract was

not being followed by the failure of university policies

and procedures to be applied in Plaintiff Patti

Northcutt's case. His position required him to act to

uphold the integrity of the institution, yet he failed to do

so. "

The Northcutts also alleged that Hammer had monitored Patti's private

emails sent through Auburn's email system and that he had done so at

Gogue's instruction.

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The Northcutts alleged that the defendants had "acted in

retaliation" for Patti's previous lawsuits. In Count 1 of the third

amended complaint, the Northcutts asserted that the defendants had

"retaliated against [Patti] because she took steps to enforce her lawful

rights under" the Family Medical Leave Act of 1983, 29 U.S.C. § 2601 et

seq. ("the FMLA"). The Northcutts brought Counts 2 through 4 of the

third amended complaint pursuant to 42 U.S.C. § 1983. In Count 2 of the

third amended complaint, the Northcutts asserted that the defendants

had "retaliated against [Patti] because [she] took steps to enforce her

lawful rights under the First Amendment's freedom of expression." In

Count 3 of the third amended complaint, the Northcutts asserted that

Patti's "rights under the equal protection clause were violated by the

Board Defendants and Defendants Gogue, Lee, Kerpelman, Flowers,

Hammer, Roberts, Maxwell-Evans, and McCormick." In Count 4 of the

complaint, the Northcutts asserted that Patti's "procedural due process

rights were violated by the Board Defendants and Defendants Gogue,

Lee, Kerpelman, Rahman, and Flowers."

Counts 5 through 9 of the third amended complaint asserted

various state-law claims. In Count 5, the Northcutts asserted that the

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Board defendants, Gogue, Lee, Kerpelman, Rahman, Flowers, Hammer,

Roberts, Maxwell-Evans, and McCormick had breached the terms of the

settlement agreements. In Count 6, the Northcutts asserted that the

Board defendants, Gogue, Lee, Kerpelman, Rahman, Flowers, Hammer,

Roberts, Maxwell-Evans, and McCormick had intentionally interfered

with the settlement agreements. In Count 7, the Northcutts asserted

that the Board defendants, Gogue, Lee, Kerpelman, Rahman, Flowers,

O'Neill, and Hammer had breached the student/university contract. In

Count 8, the Northcutts asserted that the Board defendants, Gogue, Lee,

Kerpelman, Rahman, Flowers, O'Neill, and Hammer had intentionally

interfered with the student/university contract. In Count 9, the

Northcutts asserted a claim of intentional infliction of emotional distress

against Lee, Kerpelman, Rahman, O'Neill, and Hammer. 2

The Northcutts stated:

"47. All Defendants are being sued in their official capacities

to the extent that the Plaintiffs are seeking injunctive

relief.

2Intentional infliction of emotional distress "is often referred to in

our cases as a tort-of-outrage claim. See Wilson v. University of Alabama

Health Servs. Found., P.C., 266 So. 3d 674, 675 n. 1 (Ala. 2017)." Deaton

v. South Highland Child Dev. Ctr., Inc., 405 So. 3d 244, 255 (Ala. 2024).

15

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"48. Employee Defendants (all Defendants, except the Board

of Trustee Defendants) are being sued in their

individual capacities for monetary damages.

"49. In the conduct complained of, the Employee Defendants,

in their individual capacities, were all either acting

beyond the scope of their official responsibilities; acting

with malicious purpose, bad faith, or in a wanton or

reckless manner; and/or their conduct violated clearly

established law rights that a reasonable person would

have known in the performance of their duties."

The Northcutts sought the following equitable relief:

"A. Direct the appropriate party(s) to confer on Plaintiff

Patti Northcutt the Ph.D. degree which she dutifully

earned and accomplished but for the malfeasance of the

Defendants.

"B. Direct the Auburn University Board of Trustees to

implement a procedural policy in which an aggrieved

student in the same or similar circumstance as Plaintiff

Patti Northcutt can easily and in a straightforward

fashion appeal the decision and/or seek a redress for

their aggrieved wrongs.

"C. Direct the Auburn University Board of Trustees to order

the appropriate person(s) to publicly censure the named

Defendants for the intentional wrongs committed

against Plaintiff Patti Northcutt. Such an action would

have a chilling effect on such wrongs from being

committed in the future by these or any other

employees.

"D. Plaintiff requests attorney fees mandated by the terms

of the Settlement Agreements and consistent with 42

U.S.C. § 1983 and the cases thereunder in the Eleventh

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Circuit as related to the requested injunctive relief in

this count.

"E. Other equitable relief as the Court sees fit."

With regard to monetary relief and damages, the Northcutts sought:

"F. Costs and expenditures made by Plaintiff Patti

Northcutt in pursuance of her doctoral degree from

Auburn University;

"G. Damages relating to Plaintiff Patti Northcutt's

emotional distress;

"H. Damages relating to Plaintiff Walter Northcutt's loss of

consortium;

"I. Punitive damages to deter similar conduct in the future;

"J. Attorneys' fees as mandated by the terms of the

Settlement Agreements, under the FMLA, [and] 42

U.S.C. § 1983; and

"K. Other monetary relief as the Court sees fit."

The defendants filed a motion to dismiss Counts 2 through 9 of the

third amended complaint on various grounds. The defendants asserted

that Counts 2 through 4 were due to be dismissed because they were

entitled to federal qualified immunity as to those claims. With regard to

the allegations in Count 5 of the complaint that the Board defendants

had breached the settlement agreements, the defendants asserted that

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that claim was barred by State immunity pursuant to Art. I, § 14, of the

Alabama Constitution. They further asserted:

"The breach of contract claim based on the settlement

agreement is due to be dismissed against Employee

Defendants Gogue, Lee, Kerpelman, Rahman, Flowers,

Hammer, Roberts, Maxwell-Evans, and McCormick because

none of them is or ever was a party to any settlement

agreement with Northcutt. These Defendants, in their

personal, individual capacities cannot be liable in damages for

breaching a contract to which they are not a party. See Childs

v. Pommer, 348 So. 3d 379, 387-88 (Ala. 2021). Likewise, they

cannot be liable in their 'official' capacities for injunctive relief

or specific performance for the same reason that the Board

Defendants cannot be liable as explained above."

With regard to Count 6, alleging intentional interference with the

settlement agreements, the defendants asserted that the Board

defendants were entitled to State immunity as to that claim. They

further asserted that Count 6 was due to be dismissed because "[a]ll of

the Defendants sued on this claim -- the Board Defendants as well as the

Employee Defendants -- are either officers, agents or employees of

Auburn and thus are not 'strangers' to the settlement agreement."

With regard to Count 7, alleging breach of the student/university

contract, the defendants argued:

"If any 'Student-University' contract such as the one

described by Northcutt existed, it was by definition between

Northcutt and Auburn. None of the Employee Defendants

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named in this breach of contract claim was a party to any such

contract, and thus cannot be individually liable in damages

for any breach. See Childs [v. Pommer], 348 So. 3d [379,] 387-

88 [(Ala. 2021)]."

They further argued that, to the extent this claim was brought against

the Board defendants and the employee defendants in their official

capacities,

"it is a claim against Auburn itself and likewise due to be

dismissed under § 14. See Ala. A&M Univ. v. Jones, 895 So.

2d [867,] 873 [(Ala. 2004)]. As discussed above regarding

Count 5, the law is clear that a plaintiff cannot evade § 14

immunity by suing officers or employees in their official

capacities when, as here, the claim is in effect against the

State -- in this instance Auburn University. If the plaintiff

seeks relief that would 'directly affect a contract or property

right of the State,' the claim is against the State and is barred

by § 14. See, e.g., Ex parte Moulton, 116 So. 3d [1119,] 1131

[(Ala. 2013)]. Here Northcutt seeks contract-based damages,

specific performance of the supposed Student-University

contract in the form of being awarded her degree, injunctive

relief relating to the contract, attorney's fees, and other relief.

… All the requested relief would affect Auburn's 'contract

rights' and thus this claim is, in effect, a claim against Auburn

that is barred by sovereign immunity."

With regard to Count 8, alleging intentional interference with the

student/university contract, the defendants initially argued that "an

intentional interference with contract claim presupposes the existence of

an enforceable contract, and the Student-University contract is not

enforceable against Auburn because of sovereign immunity, as explained

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above in the section discussing Count 7." The defendants further

asserted that none of them were strangers "to the Student-University

contract because each of them is an officer, agent, or employee of

Auburn."

The Northcutts filed a brief in opposition to the motion to dismiss,

and the defendants filed a reply brief in support of the motion to dismiss.

On October 21, 2024, the trial court entered an order in which it

granted the defendants' motion to dismiss the First Amendment claim in

Count 2 and the intentional-infliction-of-emotional-distress claim in

Count 9 of the third amended complaint. However, it denied the

defendants' motion to dismiss as to Counts 3 through 8 of the third

amended complaint. This petition followed.

Standard of Review

"In Ex parte Branch, 980 So. 2d 981 (Ala. 2007), this

Court stated:

" 'The denial of a motion for a summary

judgment or of a motion to dismiss grounded on

immunity is reviewable by a petition for a writ of

mandamus. Ex parte Rizk, 791 So. 2d 911, 912

(Ala. 2000). Ex parte Haralson, 853 So. 2d 928,

931 n.2 (Ala. 2003) ("The denial of a motion to

dismiss or a motion for a summary judgment

generally is not reviewable by a petition for writ of

mandamus, subject to certain narrow exceptions,

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such as the issue of immunity. Ex parte Liberty

Nat'l Life Ins. Co., 825 So. 2d 758, 761-62 (Ala.

2002)."). This Court has stated:

" ' "A writ of mandamus is an

extraordinary remedy available only

when there is: '(1) a clear legal right to

the order sought; (2) an imperative

duty upon the respondent to perform,

accompanied by a refusal to do so; (3)

the lack of another adequate remedy;

and (4) the properly invoked

jurisdiction of the court.' Ex parte BOC

Group, Inc., 823 So. 2d 1270, 1272 (Ala.

2001)."

" 'Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003).'

"980 So. 2d at 984.

" 'In reviewing the denial of a motion to

dismiss by means of a mandamus petition, we do

not change our standard of review. [Ex parte

Butts, 775 So. 2d 173, 176 (Ala. 2000)]; see also [Ex

parte] Wood, 852 So. 2d [705,] 709 [(Ala. 2002)]

(review of a denial of a summary-judgment motion

grounded on a claim of immunity by means of a

petition for a writ of mandamus does not change

the applicable standard of review). Under Rule

12(b)(6), Ala. R. Civ. P., a motion to dismiss is

proper when it is clear that the plaintiff cannot

prove any set of circumstances upon which relief

can be granted. Cook v. Lloyd Noland Found., Inc.,

825 So. 2d 83, 89 (Ala. 2001). " 'In making this

determination, this Court does not consider

whether the plaintiff will ultimately prevail, but

only whether [she] may possibly prevail.' " Id.

(quoting Nance v. Matthews, 622 So. 2d 297, 299

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(Ala. 1993) ). We construe all doubts regarding the

sufficiency of the complaint in favor of the

plaintiff. Butts, 775 So. 2d at 177.'

"Ex parte Haralson, 853 So. 2d 928, 931 (Ala. 2003)."

Ex parte Wilcox Cnty. Bd. of Educ., 285 So. 3d 765, 773 (Ala. 2019).

Discussion

The defendants argue that this Court should "grant the Petition,

issue the writ, and direct the Circuit Court of Lee County to dismiss

counts 3 through 8 against [the defendants] to the extent they seek

retrospective equitable relief and/or money damages." Petition, p. 37.

Specifically, they contend that they are entitled to qualified immunity as

to the federal claims against them and to State immunity pursuant to §

14, Alabama Const. 2022, as to the state-law claims against them. In the

third amended complaint, the Northcutts stated, "[a]ll Defendants are

being sued in their official capacities to the extent that the Plaintiffs are

seeking injunctive relief." They further stated, "Employee Defendants

(all Defendants, except the Board of Trustee Defendants) are being sued

in their individual capacities for monetary damages." (Emphasis added.)

I. Federal-Law Claims

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In Counts 3 and 4 of the third amended complaint, the Northcutts

asserted equal-protection and due-process claims against the defendants.

A. Claims for Injunctive Relief Against the Defendants in their Official

Capacities

In the third amended complaint, the Northcutts stated that all the

defendants were "being sued in their official capacities to the extent that

the Plaintiffs are seeking injunctive relief." In their petition, the

defendants argue that, to the extent that the Northcutts sought

retrospective equitable relief, those claims are barred by the doctrine of

federal qualified immunity. With regard to the equal-protection and due-

process claims against the Board defendants, the defendants argue that

"[p]rospective injunctive relief is not the subject of this Petition, although

there is no merit to the claim." Reply brief, p. 5. 3

In the third amended complaint, the Northcutts requested the

following equitable relief:

3The defendants also assert that "[p]rospective injunctive relief is

not available against [the employee defendants] in their individual

capacity." Reply brief, p. 5. However, to the extent that they were

seeking injunctive relief, the Northcutts sued the defendants only in their

official capacities. The defendants do not argue that the employee

defendants could not be sued for prospective injunctive relief in their

official capacities.

23

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"A. Direct the appropriate party(s) to confer on Plaintiff

Patti Northcutt the Ph.D. degree which she dutifully

earned and accomplished but for the malfeasance of the

Defendants.

"B. Direct the Auburn University Board of Trustees to

implement a procedural policy in which an aggrieved

student in the same or similar circumstance as Plaintiff

Patti Northcutt can easily and in a straightforward

fashion appeal the decision and/or seek a redress for

their aggrieved wrongs.

"C. Direct the Auburn University Board of Trustees to order

the appropriate person(s) to publicly censure the named

Defendants for the intentional wrongs committed

against Plaintiff Patti Northcutt. Such an action would

have a chilling effect on such wrongs from being

committed in the future by these or any other

employees.

"D. Plaintiff requests attorney fees mandated by the terms

of the Settlement Agreements and consistent with 42

U.S.C. § 1983 and the cases thereunder in the Eleventh

Circuit as related to the requested injunctive relief in

this count.

"E. Other equitable relief as the Court sees fit."

Thus, it appears that the only specific equitable relief the Northcutts

requested in the third amended complaint was prospective injunctive

relief. In fact, in their brief in opposition to the motion to dismiss, the

Northcutts stated that they are "seeking prospective injunctive relief for

[the] federal law claims against the Defendants in their official capacities

24

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in order to prevent future violation of [Patti's] federal constitutional

rights." The defendants have not presented any argument or authority

to establish that the Northcutts actually requested any retrospective

injunctive relief. Thus, we need not determine whether the defendants

would be entitled to qualified immunity as to any claims seeking

retrospective injunctive relief.

In this section of the complaint, the Northcutts also requested

attorneys' fees arising out of their claims for injunctive relief.

"[42 U.S.C. §] 1988 authorizes an award of attorney fees,

'payable by the States when their officials are sued in their

official capacities,' Hutto v. Finney, 437 U.S. 678, 693-94, 98

S. Ct. 2565, 2575, 57 L. Ed. 2d 522 (1978), and the action seeks

prospective relief, id. at 695, 98 S. Ct. at 2576, from

deprivations of rights guaranteed by the Constitution and

statutes of the United States."

James v. Alabama Coal. for Equity, Inc., 713 So. 2d 937, 947 (Ala. 1997)

(plurality opinion). Thus, any claim for attorneys' fees arising from the

Northcutts' request for prospective injunctive relief is not barred by the

doctrine of qualified immunity with regard to the Northcutts' federal-law

claims.

B. Claims for Monetary Damages Against the Employee Defendants in

their Individual Capacities

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The employee defendants argue that they are entitled to federal

qualified immunity as to the Northcutts' § 1983 claims for monetary

damages based on allegations that the defendants violated Patti's equal-

protection and due-process rights.4

"Section 1983 allows an injured person to seek damages

against an individual who has violated his or her federal

rights while acting under color of state law. 42 U.S.C. § 1983.

In such actions, public officials sued in their individual

capacities may assert the defense of qualified immunity,

which shields those officials 'from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.' Harlow v. Fitzgerald, 457 U.S.

800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). … A public

official asserting qualified immunity must first establish that

he or she was acting within the scope of his or her

discretionary authority at the time of the alleged

constitutional violation. Holloman ex rel. Holloman v.

Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). Once a public

official demonstrates that he or she was acting within the

scope of his or her discretionary authority, the burden shifts

to the plaintiff to show that the official was not entitled to

qualified immunity. Id. 'To overcome qualified immunity, the

plaintiff must satisfy a two-prong test; he must show that: (1)

the [public official] violated a constitutional right, and (2) this

right was clearly established at the time of the alleged

violation.' Id. If the plaintiff fails to satisfy either prong, the

public official is entitled to qualified immunity. Id. In other

words, it is unnecessary to address both prongs of the

4The Northcutts specifically excluded the Board defendants from

their claims for monetary damages. Thus, we do not discuss whether the

Board defendants would be entitled to federal qualified immunity as to

these claims.

26

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qualified-immunity analysis if addressing one is dispositive.

This Court may decide 'which of the two prongs of the

qualified immunity analysis should be addressed first in light

of the circumstances in the particular case at hand.' Pearson

v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d

565 (2009)."

Ex parte City of Vestavia Hills, 372 So. 3d 1143, 1148 (Ala. 2022).

" 'While the defense of qualified immunity is

typically addressed at the summary judgment

stage of a case, it may be, as it was in this case,

raised and considered on a motion to dismiss. See

Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir.

2001). The motion to dismiss will be granted if the

"complaint fails to allege the violation of a clearly

established constitutional right." Id. (citing

Williams v. Ala. State Univ., 102 F.3d 1179, 1182

(11th Cir. 1997)). Whether the complaint alleges

such a violation is a question of law that we review

de novo, accepting the facts alleged in the

complaint as true and drawing all reasonable

inferences in the plaintiff's favor. Id.'

"St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir.

2002) (emphasis added)."

Ex parte Alabama Dep't of Youth Servs., 880 So. 2d 393, 402-03 (Ala.

2003).

"A constitutional right is clearly established if

controlling precedent has recognized the right in a 'concrete

and factually defined context.' Lassiter[ v. Alabama A&M

Univ., Bd. of Trs.], 28 F.3d [1146,] 1149 [(11th Cir. 1994)]; see

also Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th

Cir. 1993) ('If case law, in factual terms, has not staked out a

bright line, qualified immunity almost always protects the

27

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defendant.'). A plaintiff cannot avoid the qualified immunity

defense 'by referring to general rules and to the violation of

abstract "rights." ' Lassiter, 28 F.3d at 1150. If the

constitutional right has been clearly established, the plaintiff

must demonstrate that a reasonable government actor would

have known that what he was doing infringed that right. See

Williams [v. Alabama State Univ.], 102 F.3d [1179,] 1182

[(11th Cir. 1997)]."

Chesser v. Sparks, 248 F.3d 1117, 1122 (11th Cir. 2001).

In Echols v. Lawton, 913 F.3d 1313, 1323-26 (11th Cir. 2019), the

United States Court of Appeals for the Eleventh Circuit discussed a

plaintiffs' burden of establishing that a defendant's conduct violated a

clearly established right as follows:

"To defeat Lawton's qualified immunity, Echols must

also prove that Lawton violated a constitutional right that

'was "clearly established" at the time of the challenged

conduct.' Plumhoff v. Rickard, 572 U.S. 765, 778, 134 S. Ct.

2012, 188 L. Ed. 2d 1056 (2014) (quoting [Ashcroft v.] al-Kidd,

563 U.S. [731,] 735, 131 S. Ct. 2074 [(2011)]). An official's

conduct violates clearly established law when 'the contours of

[the] right are sufficiently clear that every reasonable official

would have understood that what he is doing violates that

right.' al-Kidd, 563 U.S. at 741, 131 S. Ct. 2074 (alterations

adopted) (quoting Anderson v. Creighton, 483 U.S. 635, 640,

107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)). We consider the

official's conduct in 'the specific context of the case,' not as

'broad general proposition[s].' Bailey [v. Wheeler], 843 F.3d

[473,] 484 [(11th Cir. 2016)]; see also al-Kidd, 563 U.S. at 742,

131 S. Ct. 2074 ('We have repeatedly told courts ... not to

define clearly established law at a high level of generality.').

And we ask the 'salient question ... whether the state of law

at the time of [an official's conduct] provided "fair warning,"

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to every reasonable official that the conduct clearly violates

the Constitution. Mikko [v. City of Atlanta], 857 F.3d [1136,]

1146 [(11th Cir. 2017)].

"Echols can 'demonstrate that the contours of the right

were clearly established in one of three ways.' Loftus v. Clark-

Moore, 690 F.3d 1200, 1204 (11th Cir. 2012) (alteration

adopted) (citation and internal quotation marks omitted).

First, he can point us to a 'materially similar case [that] has

already been decided.' Id. (citation and quotation marks

omitted). Second, he can point us to 'a broader, clearly

established principle that should control the novel facts of the

situation.' Id. (alterations adopted). Third, 'the conduct

involved in the case may so obviously violate the

[C]onstitution that prior case law is unnecessary.' Id. at 1205

(alterations adopted). Echols's arguments fail under all of

these approaches.

"Echols contends that an assortment of decisions clearly

established Lawton's violation of his rights, but he cites no

controlling precedent that would have provided Lawton fair

notice that his conduct would violate the First Amendment.

Although '[w]e do not require a case directly on point, [some]

existing precedent must have placed the ... constitutional

question beyond debate.' al-Kidd, 563 U.S. at 741, 131 S. Ct.

2074. We look only to binding precedent at the time of the

challenged conduct -- that is, 'the decisions of the Supreme

Court, the Eleventh Circuit, or the highest court of the state.'

Bailey, 843 F.3d at 483-84. And a clearly established violation

of state law cannot put an official on notice that his conduct

would also violate the Constitution because 'section 1983

protects only against violations of federally protected rights.'

Casines v. Murchek, 766 F.2d 1494, 1501 n.10 (11th Cir.

1985).

"Echols relies either on precedents that are inapposite,

see, e.g., United States v. Noriega, 117 F.3d 1206, 1220 (11th

Cir. 1997) (discussing a prosecutor's duty not to present false

29

SC-2024-0804

evidence during a judicial proceeding), or on decisions that are

not precedential, see, e.g., Lucas v. Parish of Jefferson, 999 F.

Supp. 839 (E.D. La. 1998). And he relies on decisions from

other jurisdictions, some of which even postdate Lawton's

alleged violation, see, e.g., Whitlock v. Brueggemann, 682

F.3d 567, 581 (7th Cir. 2012). Although Lawton clearly would

have had fair notice that his alleged writing constituted libel

per se under state tort law, he would not have understood that

his alleged libel would have violated the First Amendment.

No controlling precedent put Lawton's alleged violation

beyond debate.

"Echols also relies on the broader principle 'that the act

of retaliation for the exercise of constitutional rights is clearly

established as a violation,' but this general principle is too

broadly stated to control our inquiry. '[S]ome broad

statements of principle in case law [that] are not tied to

particularized facts ... can clearly establish law applicable in

the future to different sets of detailed facts.' Vinyard v.

Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002). But the

principle must establish with 'obvious clarity' that 'in the light

of pre-existing law the unlawfulness [of the official's conduct

is] apparent.' Id. at 1353. True, 'it is "settled law"

that the government may not retaliate against citizens for the

exercise of First Amendment rights.' Bennett [v. Hendrix],

423 F.3d [1247,] 1256 [(11th Cir. 2005)]. But that general

principle does not resolve with 'obvious clarity' that

defamation may constitute retaliation in violation of the First

Amendment. See also Reichle v. Howards, 566 U.S. 658, 665,

132 S. Ct. 2088, 182 L. Ed. 2d 985 (2012) (rejecting the

argument that 'the general right to be free from retaliation for

one's speech' clearly establishes a violation of the First

Amendment).

"Echols also fails to persuade us that Lawton's conduct

'so obviously violate[d] the [C]onstitution that prior case law

is unnecessary.' Loftus, 690 F.3d at 1205. 'This narrow

category encompasses those situations where the official's

30

SC-2024-0804

conduct lies so obviously at the very core of what the relevant

constitutional provision prohibits that the unlawfulness of the

conduct was readily apparent to the official, notwithstanding

the lack of case law.' Id. (alteration adopted) (internal

quotation marks omitted) (quoting Terrell v. Smith, 668 F.3d

1244, 1257 (11th Cir. 2012)). '[I]n the absence of controlling

precedent, cases decided outside this Circuit can buttress our

view that the applicable law was not already clearly

established' because '[w]e must not hold [officials] to a higher

standard of legal knowledge than that displayed by the

federal courts in reasonable and reasoned decisions.'

Youmans v. Gagnon, 626 F.3d 557, 565 (11th Cir. 2010).

"Lawton's conduct does not fall within this 'narrow

category.' As we have explained, our sister circuits are

divided over whether an official's defamatory speech is

actionable as retaliation under the First Amendment. It has

certainly not been obvious to the federal courts that an

official's defamatory speech lies at the core of what the First

Amendment prohibits. '[W]here judges thus disagree on a

constitutional question,' we cannot 'expect that reasonable

[officials] know more than reasonable judges about the law.'

Id. (citations and quotation marks omitted). So we cannot

say that it would have been 'readily apparent' to every

reasonable official that Lawton's alleged defamation violated

the First Amendment. Id.

"Critics of the doctrine of qualified immunity condemn

'letting [an] official duck consequences for bad behavior.'

Zadeh v. Robinson, 902 F.3d 483, 498 (Willett, J., concurring

dubitante) (5th Cir. 2018); William Baude, Is Qualified

Immunity Unlawful?, 106 Calif. L. Rev. 45 (2018). And we too

condemn Lawton's alleged conduct. But the Supreme Court

has long ruled that qualified immunity protects a badly

behaving official unless he had fair notice that his conduct

would violate the Constitution, District of Columbia v. Wesby,

583 U.S. 48, 138 S. Ct. 577, 589-91, 199 L. Ed. 2d 453 (2018);

Kisela v. Hughes, 584 U.S. 100, 138 S. Ct. 1148, 1152, 200 L.

31

SC-2024-0804

Ed. 2d 449 (2018), though at least one justice may harbor

doubts, see Ziglar v. Abbasi, 582 U.S. 120, 137 S. Ct. 1843,

1872, 198 L. Ed. 2d 290 (2017) (Thomas, J., concurring in part

and in the judgment) ('In an appropriate case, we should

reconsider our qualified immunity jurisprudence.'). 'Because

the Constitution's general provisions can be abstract,' fair

notice protects an official from 'liab[ility] for conduct that [he

could] reasonably believe[] was lawful.' Aaron L. Nielson &

Christopher J. Walker, A Qualified Defense of Qualified

Immunity, 93 Notre Dame L. Rev. 1853, 1873 (2018). So even

when an official behaves badly, 'qualified immunity gives

government officials breathing room to make reasonable but

mistaken judgments about open legal questions.' al-Kidd, 563

U.S. at 743, 131 S. Ct. 2074.

"Recall that the Constitution does not provide the only

standard for redress for those wronged by public officials. For

example, Lawton's alleged conduct could have been reviewed

and sanctioned by the State Bar. See Ga. R. Prof'l Conduct

3.8(g), 8.4. Echols could have also filed a claim under state

tort law against Lawton. See Cottrell [v. Smith], [299 Ga.

517,] 788 S.E.2d [772,] 780-81 [(2016)]. But Echols chose to

frame his complaint as a federal case alleging a violation of

the Constitution, 42 U.S.C. § 1983.

"Section 1983 is not a 'font of tort law [that] converts

[every] state law tort claim[ ] into [a] federal cause[ ] of action.'

Waddell [v. Hendry Cnty. Sheriff's Off.], 329 F.3d [1300,] 1305

[(11th Cir. 2003)] (citation and internal quotation marks

omitted). When a plaintiff complains that a public official has

violated the Constitution, qualified immunity shields the

official from individual liability unless he had fair notice that

his alleged conduct would violate 'the supreme Law of the

Land.' U.S. Const. Art. VI. Because Lawton lacked that fair

notice, he enjoys qualified immunity from Echols's claim of

retaliation."

1. § 1983 Equal-Protection Claim

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SC-2024-0804

In Count 3 of the third amended complaint, the Northcutts asserted

a class-of-one equal-protection claim.

"In a 'class of one' claim, a plaintiff alleges not that it belongs

to a protected class, but that it is the only entity being treated

differently from all other similarly situated entities. Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145

L. Ed. 2d 1060 (2000) (per curiam). In order to prevail, a

plaintiff must show that it 'has been intentionally treated

differently from others similarly situated and that there is no

rational basis for the difference in treatment.' PBT Real Est.,

LLC v. Town of Palm Beach, 988 F.3d 1274, 1285 (11th Cir.

2021)."

Chabad Chayil, Inc. v. School Bd. of Miami-Dade Cnty., Fla., 48 F.4th

1222, 1233 (11th Cir. 2022).

The employee defendants argue that the trial court erred in

denying their motion to dismiss the Northcutts' equal-protection claim

seeking monetary damages, alleging, in pertinent part:

"Northcutt's equal protection claim is barred on the

merits by governing precedent, specifically by the U.S.

Supreme Court's holding in En[g]quist v. Oregon Department

of Agriculture.[, 553 U.S. 591 (2008),] that allowing class-of-

one equal protection claims, like Northcutt's, 'in the context of

public employment would impermissibly constitutionalize the

employee grievance.' 553 U.S. [at] 609 …; see DeFabio v. East

Hampton Union Free School Dist., 659 F. Supp. 2d 461, 494

(E.D.N.Y. 2009) ('Decisions that defendants make on a day-to-

day basis to ensure the safety and welfare of the students

under their care are necessarily discretionary ones. Because

defendants acted within their discretionary powers, plaintiffs'

"class of one" equal protection claims must fail.'); Yan v. Penn.

33

SC-2024-0804

State Univ., Case No. 10-00212 … (M.D. Pa. Aug. 13, 2010)

(holding that En[g]quist precluded the plaintiff from bringing

a class-of-one equal protection claim against the university for

her expulsion for a PhD program). And if there is no violation,

there can obviously be no clearly established violation."

Petition, pp. 23-24.

In their brief to this Court, the Northcutts state:

"The function of equal protection under the Fourteenth

Amendment 'is to secure every person within the State's

jurisdiction against intentional and arbitrary discrimination,

whether occasioned by express terms of a statute or by its

improper execution through duly constituted agents.' Village

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). In a 'class

of one' claim, a plaintiff needs to allege different treatment

from others that are similarly situated, and there is no

rational basis for the different treatment. Id. A government

action can be shown to lack a rational basis when the action

was 'irrational and wholly arbitrary.' See id. at 565. Public

university officials cannot act arbitrarily towards students.

Regents of University of Michigan v. Ewing, 474 U.S. 214,

223-25 (1985). An academic decision at a university is

arbitrary if the officials in making their decision: (1)

'concealed nonacademic or constitutionally impermissible

reasons,' (2) acted in bad faith, or (3) 'is such a substantial

departure from accepted academic norms as to demonstrate

that the person or committee responsible did not actually

exercise professional judgement.' Id. at 225.

"[Defendants] correctly point out that, class of one equal

protection claims do not have an application [in] the context

of public employment. (Exhibit B p.7-8 (discussing Engquist

v. Oregon Dept. of Agr., 553 U.S. 591 (2008)). However, this

case has further considerations than an at will employment

case does in Engquist. First, while a student can leave an

institution … for any reason, a public university cannot get

34

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rid of a student for any reason whatsoever. See Ewing, 474

U.S. at 223-25. A student cannot be arbitrarily removed by

the institution when they are adhering to the conditions (both

disciplinary and academic) that they agreed to when they

enrolled in the institution. See id.; Nash v. Auburn

University, 621 F. Supp. 948, 960 (M.D. Ala. 1985). Thus,

there is no power for employees of an institution to get rid of

a student for any reason like they could an at-will employee.

"….

"[The Northcutts] admit in good faith that this exact

factual scenario likely does not exist (a former public

university employee, who has previously settled a retaliation

suit, being retaliated against again as a student at that same

institution for the previous lawsuit) but the principles arising

from the cases on these subjects should still control, unless

the [defendants'] conduct so obviously violate[s] the

[constitution that] prior case law is unnecessary.

"It is a well settled and clearly established principle that

a government action can be shown to lack a rational basis

when the action was 'irrational and wholly arbitrary.' Olech,

528 U.S. at 565. The principle that public university officials

cannot act arbitrarily towards students is a matter of settled

law. Ewing, 474 U.S. at 223-25."

Northcutts' brief, pp. 17-20.

In this case, the Northcutts have failed to establish that the

employee defendants' conduct violated clearly established law.

In Engquist v. Oregon Department of Agriculture, 553 U.S. 591,

601-08 (2008), the United States Supreme Court stated:

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"Our equal protection jurisprudence has typically been

concerned with governmental classifications that 'affect some

groups of citizens differently than others.' McGowan v.

Maryland, 366 U.S. 420, 425 (1961). See, e.g., Ross v. Moffitt,

417 U.S. 600, 609 (1974) (' "Equal protection" ... emphasizes

disparity in treatment by a State between classes of

individuals whose situations are arguably indistinguishable');

San Antonio Independent School Dist. v. Rodriguez, 411 U.S.

1, 60 (1973) (Stewart, J., concurring) ('[T]he basic concern of

the Equal Protection Clause is with state legislation whose

purpose or effect is to create discrete and objectively

identifiable classes'). Plaintiffs in such cases generally allege

that they have been arbitrarily classified as members of an

'identifiable group.' Personnel Administrator of Mass. v.

Feeney, 442 U.S. 256, 279 (1979).

"Engquist correctly argues, however, that we recognized

in [Village of Willowbrook v.] Olech[, 528 U.S. 562 (2000),]

that an equal protection claim can in some circumstances be

sustained even if the plaintiff has not alleged class-based

discrimination, but instead claims that she has been

irrationally singled out as a so-called 'class of one.' In Olech,

a property owner had asked the village of Willowbrook to

connect her property to the municipal water supply. Although

the village had required only a 15-foot easement from other

property owners seeking access to the water supply, the

village conditioned Olech's connection on a grant of a 33-foot

easement. Olech sued the village, claiming that the village's

requirement of an easement 18 feet longer than the norm

violated the Equal Protection Clause. Although Olech had not

alleged that the village had discriminated against her based

on membership in an identifiable class, we held that her

complaint stated a valid claim under the Equal Protection

Clause because it alleged that she had 'been intentionally

treated differently from others similarly situated and that

there is no rational basis for the difference in treatment.' 528

U.S., at 564 (citing Sioux City Bridge Co. v. Dakota County,

36

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260 U.S. 441 (1923), and Allegheny Pittsburgh Coal Co. v.

Commission of Webster Cty., 488 U.S. 336 (1989)).

"Recognition of the class-of-one theory of equal

protection on the facts in Olech was not so much a departure

from the principle that the Equal Protection Clause is

concerned with arbitrary government classification, as it was

an application of that principle. That case involved the

government's regulation of property. Similarly, the cases

upon which the Court in Olech relied concerned property

assessment and taxation schemes. See Allegheny Pittsburgh,

supra; Sioux City Bridge, supra. We expect such legislative

or regulatory classifications to apply 'without respect to

persons,' to borrow a phrase from the judicial oath. See 28

U.S.C. § 453. As we explained long ago, the Fourteenth

Amendment 'requires that all persons subjected to ...

legislation shall be treated alike, under like circumstances

and conditions, both in the privileges conferred and in the

liabilities imposed.' Hayes v. Missouri, 120 U.S. 68, 71-72

(1887). When those who appear similarly situated are

nevertheless treated differently, the Equal Protection Clause

requires at least a rational reason for the difference, to ensure

that all persons subject to legislation or regulation are indeed

being 'treated alike, under like circumstances and conditions.'

Thus, when it appears that an individual is being singled out

by the government, the specter of arbitrary classification is

fairly raised, and the Equal Protection Clause requires a

'rational basis for the difference in treatment.' Olech, 528

U.S., at 564.

"What seems to have been significant in Olech and the

cases on which it relied was the existence of a clear standard

against which departures, even for a single plaintiff, could be

readily assessed. There was no indication in Olech that the

zoning board was exercising discretionary authority based on

subjective, individualized determinations -- at least not with

regard to easement length, however typical such

determinations may be as a general zoning matter. See id., at

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565 (BREYER, J., concurring in result). Rather, the

complaint alleged that the board consistently required only a

15-foot easement, but subjected Olech to a 33-foot easement.

This differential treatment raised a concern of arbitrary

classification, and we therefore required that the State

provide a rational basis for it.

"In Allegheny Pittsburgh, cited by the Olech Court, the

applicable standard was market value, but the county

departed from that standard in basing some assessments on

quite dated purchase prices. Again, there was no suggestion

that the 'dramatic differences in valuation' for similar

property parcels, 488 U.S., at 341, were based on subjective

considerations of the sort on which appraisers often rely, see

id., at 338-342, 345. Sioux City Bridge, also cited in Olech,

was the same sort of case, recognizing an equal protection

claim when one taxpayer's property was assessed at 100

percent of its value, while all other property was assessed at

55 percent, without regard to articulated differences in the

properties. See 260 U.S., at 445-447.

"There are some forms of state action, however, which

by their nature involve discretionary decisionmaking based

on a vast array of subjective, individualized assessments. In

such cases the rule that people should be 'treated alike, under

like circumstances and conditions' is not violated when one

person is treated differently from others, because treating like

individuals differently is an accepted consequence of the

discretion granted. In such situations, allowing a challenge

based on the arbitrary singling out of a particular person

would undermine the very discretion that such state officials

are entrusted to exercise.

"Suppose, for example, that a traffic officer is stationed

on a busy highway where people often drive above the speed

limit, and there is no basis upon which to distinguish them.

If the officer gives only one of those people a ticket, it may be

good English to say that the officer has created a class of

38

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people that did not get speeding tickets, and a 'class of one'

that did. But assuming that it is in the nature of the

particular government activity that not all speeders can be

stopped and ticketed, complaining that one has been singled

out for no reason does not invoke the fear of improper

government classification. Such a complaint, rather,

challenges the legitimacy of the underlying action itself -- the

decision to ticket speeders under such circumstances. Of

course, an allegation that speeding tickets are given out on

the basis of race or sex would state an equal protection claim,

because such discriminatory classifications implicate basic

equal protection concerns. But allowing an equal protection

claim on the ground that a ticket was given to one person and

not others, even if for no discernible or articulable reason,

would be incompatible with the discretion inherent in the

challenged action. It is no proper challenge to what in its

nature is a subjective, individualized decision that it was

subjective and individualized.

"This principle applies most clearly in the employment

context, for employment decisions are quite often subjective

and individualized, resting on a wide array of factors that are

difficult to articulate and quantify. As Engquist herself points

out, '[u]nlike the zoning official, the public employer often

must take into account the individual personalities and

interpersonal relationships of employees in the workplace.

The close relationship between the employer and employee,

and the varied needs and interests involved in the

employment context, mean that considerations such as

concerns over personality conflicts that would be

unreasonable as grounds for "arm's-length" government

decisions (e.g., zoning, licensing) may well justify different

treatment of a public employee.' Brief for Petitioner 48.

Unlike the context of arm's-length regulation, such as in

Olech, treating seemingly similarly situated individuals

differently in the employment context is par for the course.

39

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"Thus, the class-of-one theory of equal protection --

which presupposes that like individuals should be treated

alike, and that to treat them differently is to classify them in

a way that must survive at least rationality review -- is simply

a poor fit in the public employment context. To treat

employees differently is not to classify them in a way that

raises equal protection concerns. Rather, it is simply to

exercise the broad discretion that typically characterizes the

employer-employee relationship. A challenge that one has

been treated individually in this context, instead of like

everyone else, is a challenge to the underlying nature of the

government action.

"Of course, that is not to say that the Equal Protection

Clause, like other constitutional provisions, does not apply to

public employers. Indeed, our cases make clear that the

Equal Protection Clause is implicated when the government

makes class-based decisions in the employment context,

treating distinct groups of individuals categorically

differently. See, e.g., [New York City Transit Auth. v.]

Beazer, 440 U.S. [568,] 593 [(1979)] (upholding city's exclusion

of methadone users from employment under rational-basis

review); [Harrah Indep. Sch. Dist. v.] Martin, 440 U.S. [194,]

199-201 [(1979)] (classification between teachers who had

complied with a continuing-education requirement and those

who had not is rational and does not violate the Equal

Protection Clause); [Massachusetts Bd. of Ret. v.] Murgia, 427

U.S. [307,] 314-317 [(1976)] (upholding a mandatory

retirement age -- a classification based on age -- under

rational-basis review). The dissent's broad statement that we

'excep[t] state employees from the Fourteenth Amendment's

protection against unequal and irrational treatment at the

hands of the State,' post, at 610 (opinion of STEVENS, J.), is

thus plainly not correct. But we have never found the Equal

Protection Clause implicated in the specific circumstance

where, as here, government employers are alleged to have

made an individualized, subjective personnel decision in a

seemingly arbitrary or irrational manner.

40

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"….

"In concluding that the class-of-one theory of equal

protection has no application in the public employment

context -- and that is all we decide -- we are guided, as in the

past, by the 'common-sense realization that government

offices could not function if every employment decision

became a constitutional matter.' Connick [v. Myers, 366 U.S.

138,] 143 [(1983)]. If, as Engquist suggests, plaintiffs need

not claim discrimination on the basis of membership in some

class or group, but rather may argue only that they were

treated by their employers worse than other employees

similarly situated, any personnel action in which a wronged

employee can conjure up a claim of differential treatment will

suddenly become the basis for a federal constitutional claim.

Indeed, an allegation of arbitrary differential treatment could

be made in nearly every instance of an assertedly wrongful

employment action -- not only hiring and firing decisions, but

any personnel action, such as promotion, salary, or work

assignments -- on the theory that other employees were not

treated wrongfully. See [Engquist v. Oregon Dep't of Agric.,]

478 F.3d [985,] 995 [(9th Cir. 2007)]. On Engquist's view,

every one of these employment decisions by a government

employer would become the basis for an equal protection

complaint."

Engquist, 553 U.S. at 601-08 (emphasis added). In this case, the

Northcutts' class-of-one equal-protection claim based on allegations that

the employee defendants failed to consider Patti for various jobs at

Auburn would be barred by Engquist.

With regard to their class-of-one equal-protection claim arising out

of Patti's participation in the doctoral program, the Northcutts discount

41

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the employee defendants' reliance on Engquist because that case

involved public employment. However, courts in various jurisdictions are

split as to whether Engquist's limitation on class-of-one equal-protection

claims applies only in the public-employment context or whether it also

applies to other types of discretionary governmental conduct. In

Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135 (2d Cir. 2010), the

United States Court of Appeals for the Second Circuit discussed this split,

stating:

"Our Court has yet to address whether Engquist's

prohibition is limited to the public employment context, or

whether it extends to other types of discretionary government

behavior. Several district courts in this Circuit have extended

Engquist's holding to require that plaintiffs seeking to

establish a class-of-one claim must show the difference in

treatment flowed from non-discretionary action, but they

have done so without persuasive analysis. See, e.g., Dunlea

v. Federal Bureau of Prisons, No. 3:10-cv-214, 2010 WL

1727838, at *3-4 (D. Conn. April 26, 2010) (dismissing class-

of-one claim for prisoner denied use of prison email system);

Tarantino v. City of Hornell, 615 F. Supp. 2d 102, 116-17

(W.D.N.Y. 2009) (dismissing class-of-one claim challenging

discretionary decision to enforce city codes). Conversely, in

Alfaro v. Labrador, the Eastern District of New York rejected

other courts' findings that a class-of-one claim never can be

brought in a law enforcement context. No. 06-CV-1470, 2009

WL 2525128, at *8-11 (E.D.N.Y. Aug. 14, 2009). Rather,

Judge Seybert read Engquist and Olech to define

'discretionary decisions, for the purpose of barring class-of-

one claims, as those that involve discretion that is actually

exercised on a day-to-day basis, rather than decisions that are

42

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theoretically discretionary but -- as a practical matter --

actually depend on de facto standards.' Id. at *9. She allowed

Alfaro's claim that he was unconstitutionally singled out for

zoning violations to go forward.

"Our sister Circuits are equally split. In a nonbinding

decision, the Sixth Circuit held that Engquist likely was

limited to the public employment context and probably did not

control in a class-of-one claim in a denial of parole case.

Franks v. Rubitschun, 312 Fed. Appx. 764, 766 n.3 (6th Cir.

2009). Conversely, the Eleventh Circuit extended Engquist to

claims by government contractors, finding that '[j]ust as in the

employee context, and in the absence of a restricting contract

or statute, decisions involving government contractors

require broad discretion that may rest "on a wide array of

factors that are difficult to articulate and quantify." ' Douglas

Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1274 (11th Cir. 2008)

(citation omitted). Similarly, the Eighth Circuit found a police

officer's investigative decisions could not be challenged with a

class-of-one equal protection claim because such decisions are

inherently discretionary. Flowers v. City of Minneapolis, 558

F.3d 794, 799-800 (8th Cir. 2009).

"The Seventh Circuit issued several decisions expanding

Engquist beyond public employment. See Srail v. Village of

Lisle, 588 F.3d 940, 944-45 (7th Cir. 2009) (applying Engquist

to a municipality's 'subjective and individualized assessment'

to extend municipal water to some communities but not

others); United States v. Moore, 543 F.3d 891, 901 (7th Cir.

2008) (applying Engquist to bar class-of-one claims

challenging prosecutorial decisions). However, in Hanes v.

Zurick, the Seventh Circuit declined to apply Engquist to bar

a class-of-one claim alleging that the police defendants

repeatedly arrested plaintiff without cause. 578 F.3d 491,

495-96 (2009).

"The Hanes court looked at the reasons underlying the

Engquist decision:

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" 'First, the Court emphasized that the judgments

unsuited to a class-of-one claim are typically

"subjective and individualized, resting on a wide

array of factors that are difficult to articulate and

quantify." That describes employment decisions

because treating like individuals differently in the

employment context is "par for the course."

Second, the Court noted that the constitutional

constraints on government are much less onerous

when it acts as employer as compared to acting as

sovereign. Finally, the Court recognized that, in

the employment context, an uncabined class-of-

one theory risks making a constitutional case out

of every decision by a government employer.'

"Id. at 495 (citations omitted). However, the Hanes court

concluded, that does not mean every class-of-one claim

involving any discretionary state action is barred. Id. at 495-

96. Indeed, the Hanes court held Engquist did not bar

plaintiff's claim because not all discretionary activity is 'off-

limits from class-of-one claims.' Id. at 495.

"We join the Seventh Circuit in holding that Engquist

does not bar all class-of-one claims involving discretionary

state action. While there may be some circumstances where

Engquist is properly applied outside of the employment

context, the case before us is not one of them."

626 F.3d at 141-42.

In Carruth v. Bentley, 942 F.3d 1047 (11th Cir. 2019), the Eleventh

Circuit Court of Appeals addressed the validity of a class-of-one equal-

protection claim outside the public-employment context. In that case,

"John Dee Carruth, the former CEO of Alabama One Credit Union, sued

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former Governor of Alabama Robert Bentley and his legal advisor, David

Byrne, after Alabama One was taken into conservatorship by a state

agency and he was terminated." 942 F.3d at 1050. Carruth asserted

various claims under § 1983, including an equal-protection claim, and

three state-law claims. The United States District Court for the

Northern District of Alabama dismissed Carruth's civil-rights claims on

the ground of federal qualified immunity and declined to entertain

Carruth's state-law claims, and Carruth appealed the dismissal of his

civil-rights claims. With regard to Carruth's equal-protection claim, the

Eleventh Circuit Court of Appeals stated:

"The Supreme Court first explicitly recognized the 'class

of one' equal protection theory in Village of Willowbrook v.

Olech, 528 U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000)

(per curiam). In Olech, the plaintiff claimed that the Village

demanded a 33-foot easement as a condition of connecting her

property to the municipal water supply, while it only asked

for a 15-foot easement from similarly situated property

owners. She alleged that the difference was 'irrational and

wholly arbitrary,' and said that a 15-foot easement was

'clearly adequate.' Id. at 565, 120 S. Ct. 1073. The Supreme

Court held that the plaintiff's complaint stated a valid 'class

of one' equal protection claim. Id.

"In a later case, the Court explained that the class of one

theory applies when there is 'a clear standard against which

departures, even for a single plaintiff, [can] be readily

assessed.' Engquist v. Or. Dep't of Agr., 553 U.S. 591, 602, 128

S. Ct. 2146, 170 L. Ed. 2d 975 (2008). The Court went on:

45

SC-2024-0804

" 'There are some forms of state action, however,

which by their nature involve discretionary

decisionmaking based on a vast array of

subjective, individualized assessments. In such

cases the rule that people should be "treated alike,

under like circumstances and conditions" is not

violated when one person is treated differently

from others, because treating like individuals

differently is an accepted consequence of the

discretion granted. In such situations, allowing a

challenge based on the arbitrary singling out of a

particular person would undermine the very

discretion that such state officials are entrusted to

exercise.'

"Id. at 603, 128 S. Ct. 2146. Thus, the Supreme Court held

that the class of one theory 'has no application' in the context

of public employment decisions, since it would open up too

many discretionary governmental decisions to equal

protection claims. Id. at 607, 128 S. Ct. 2146.

"We conclude that the class of one equal protection

theory similarly has no application to the decision to place

Alabama One in conservatorship or to terminate Carruth as

its CEO. As the district court observed, it is difficult to

'envision a better example of discretionary decisionmaking

than whether to conserve a Credit Union and terminate

certain of its employees.' The decision to conserve a credit

union and depose its leadership is a major one, as Carruth

tells us, and it requires the [state agency] to make 'a vast

array of subjective, individualized assessments.' Id. at 603,

128 S. Ct. 2146. For a state regulatory agency to do its job

effectively, it must be able to take into account all of the

relevant facts and circumstances of the individual cases

before it. In Griffin Industries, Inc. v. Irvin, 496 F.3d 1189

(11th Cir. 2007), this Court held that state government

officials were entitled to qualified immunity from a similar

46

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class of one claim brought by a company that operated a

chicken rendering plant. Id. at 1207. The company claimed

that the officials subjected the plant to stricter environmental

regulation than other similarly situated facilities. Id. at 1194-

95. We rejected the claim, explaining that unlike in Olech,

the regulatory decisions involved were 'multi-dimensional,'

with 'varied decisionmaking criteria applied in a series of

discretionary decisions made over an extended period of time.'

Id. at 1203. When the challenged government action 'is not

the product of a one-dimensional decision' it is more difficult

to make out a class of one claim. Id. at 1203-04. The various

decisions made by the defendants and other state officials

leading up to the conservatorship of Alabama One are

similarly complex and multidimensional. Carruth has not

pointed to any 'one-dimensional decision' that shows that he

and Alabama One were treated arbitrarily or dissimilarly

from similarly situated entities."

Carruth v. Bentley, 942 F.3d at 1057-58. Thus, the Eleventh Circuit

Court of Appeals has applied Engquist's limitation on class-of-one claims

to cases involving discretionary governmental conduct other than those

cases involving public employment.

Additionally, in Yan v. Penn State University, No. 4:10-CV-00212,

Aug. 13, 2010 (M.D. Penn. 2010) (not reported in Federal Supplement),

the United States District Court for the Middle District of Pennsylvania

applied Engquist's limitation to a class-of-one equal-protection claim

arising out Yan Yan's removal from a graduate program. In that case,

Yan asserted a class-of-one equal-protection claim arising out of her

47

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expulsion from her Ph.D. program at Penn State University. In

addressing whether Engquist "prohibt[ed] her class-of-one claim in the

graduate student context," the United States District Court for the

Middle District of Pennsylvania stated:

"In a case similar to the instant matter, the Seventh

Circuit held that the rationale of Engquist applied to a

student's class-of-one Equal Protection claim for expulsion

from optometry school. Bissessur v. Indiana Univ. Bd. of

Trustees, 2008 U.S. Dist. LEXIS 69299, 2008 WL 4274451

(S.D. Ind. September 10, 2008) (Barker, J.), aff'd 581 F.3d 599

(7th Cir. 2009). That court stated that '[t]he Supreme Court's

rationale in Engquist effectively forecloses his claim ... [i]n

light of the Supreme Court's recent limitation on the

availability of class of one claims in the context of

discretionary decision making.' Id, at *27.

"We agree with the Southern District of Indiana and

hold that the class-of-one claim brought by Yan against

defendants for expelling her from the Ph.D. program is not

actionable. Counts V and VII will be dismissed."

"The United States Supreme Court noted in Wilson v. Layne, 526

U.S. 603, 617, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999), that the law was

not clearly established where the 'state of the law was … at best

undeveloped.' " Ex parte State Board of Education, 219 So. 3d 604, 616

(2016) (plurality opinion). Additionally, in Echols v. Lawton, 913 F.3d

at 1325, the Eleventh Circuit Court of Appeals stated:

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SC-2024-0804

"Echols also fails to persuade us that Lawton's conduct

'so obviously violate[d] the [C]onstitution that prior case law

is unnecessary.' Loftus [v. Clark-Moore], 690 F.3d [1200,]

1205 [(11th Cir. 2012)]. 'This narrow category encompasses

those situations where the official's conduct lies so obviously

at the very core of what the relevant constitutional provision

prohibits that the unlawfulness of the conduct was readily

apparent to the official, notwithstanding the lack of case law.'

Id. (alteration adopted) (internal quotation marks omitted)

(quoting Terrell v. Smith, 668 F.3d 1244, 1257 (11th Cir.

2012)). '[I]n the absence of controlling precedent, cases

decided outside this Circuit can buttress our view that the

applicable law was not already clearly established' because

'[w]e must not hold [officials] to a higher standard of legal

knowledge than that displayed by the federal courts in

reasonable and reasoned decisions.' Youmans v. Gagnon, 626

F.3d 557, 565 (11th Cir. 2010).

"Lawton's conduct does not fall within this 'narrow

category.' As we have explained, our sister circuits are

divided over whether an official's defamatory speech is

actionable as retaliation under the First Amendment. It has

certainly not been obvious to the federal courts that an

official's defamatory speech lies at the core of what the First

Amendment prohibits. '[W]here judges thus disagree on a

constitutional question,' we cannot 'expect that reasonable

[officials] know more than reasonable judges about the law.'

Id. (citations and quotation marks omitted). So we cannot say

that it would have been 'readily apparent' to every reasonable

official that Lawton's alleged defamation violated the First

Amendment. Id."

(Final emphasis added.) See also Badia v. City of Miami, 133 F.3d 1443

(11th Cir. 1998).

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Based on the unsettled caselaw regarding the validity of a class-of-

one equal-protection claim based on discretionary governmental conduct

outside the public-employment context, the Northcutts have not

demonstrated that their complaint alleged the violation of a clearly

established constitutional right. Therefore, the employee defendants

were entitled to federal qualified immunity as to the Northcutts' federal

equal-protection claim seeking monetary damages, and the trial court

erred when it denied the employee defendants' motion to dismiss as to

that claim.

2. § 1983 Due-Process Claims

Relying in part on Cotton v. Jackson, 216 F.3d 1328 (11th Cir.

2000), the employee defendants also argue that the Northcutts fail "to

plead a procedural due process claim on the merits or a violation of

clearly established law." Petition, p. 24. In Cotton, the Eleventh Circuit

Court of Appeals stated:

"In McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994)(en

banc), we said that 'only when the state refuses to provide a

process sufficient to remedy the procedural deprivation does

a constitutional violation actionable under section 1983 arise.'

It is the state's failure to provide adequate procedures to

remedy the otherwise procedurally flawed deprivation of a

protected interest that gives rise to a federal procedural due

process claim. See id.; see also Bass v. Perrin, 170 F.3d 1312,

50

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1319 (11th Cir. 1999); Harris v. Board of Educ., 105 F.3d 591,

596 (11th Cir. 1997). This rule (that a section 1983 claim is

not stated unless inadequate state procedures exist to remedy

an alleged procedural deprivation) recognizes that the state

must have the opportunity to 'remedy the procedural failings

of its subdivisions and agencies in the appropriate fora --

agencies, review boards, and state courts' before being

subjected to a claim alleging a procedural due process

violation. See McKinney, 20 F.3d at 1560; see also Horton v.

Board of County Comm'rs, 202 F.3d 1297, 1300 (11th Cir.

2000).

"Assuming a plaintiff has shown a deprivation of some

right protected by the due process clause, we -- when

determining if a plaintiff has stated a valid procedural due

process claim -- look to whether the available state procedures

were adequate to correct the alleged procedural deficiencies.

See McKinney, 20 F.3d at 1563; see also Bell v. City of

Demopolis, Alabama, 86 F.3d 191, 192 (11th Cir. 1996); Narey

v. Dean, 32 F.3d 1521, 1527-28 (11th Cir. 1994). If adequate

state remedies were available but the plaintiff failed to take

advantage of them, the plaintiff cannot rely on that failure to

claim that the state deprived him of procedural due process.

See McKinney, 20 F.3d at 1565 ('The fact that [McKinney]

failed to avail himself of the full procedures provided by state

law ... does not constitute a sign of their inadequacy.'); Bell,

86 F.3d at 192; Narey, 32 F.3d at 1528. And, to be adequate,

the state procedure need not provide all the relief available

under section 1983. See McKinney, 20 F.3d at 1564. Instead,

the state procedure must be able to correct whatever

deficiencies exist and to provide plaintiff with whatever

process is due."

216 F.3d at 1330-31 (footnotes omitted). As the Eleventh Circuit Court

of Appeals noted in Lambert v. Board of Trustees, 793 F. App'x 938, 943

(11th Cir. 2019):

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"In Alabama, a party may seek relief from the state courts,

which hear lawsuits involving claims by public university

students relating to arbitrary, capricious, or bad-faith

grading. See, e.g., Burch v. Moulton, 980 So. 2d 392, 398-99

(Ala. 2007) (recognizing 'that [public university officials] have

discretion in determining a student's academic status');

Hartman v. Bd. of Trustees of Univ. of Ala., 436 So. 2d 837,

840-41 (Ala. 1983)."

Additionally, in their third amended complaint, the Northcutts did not

allege that there were no adequate state remedies available to address

any alleged deprivation of Patti's right to procedural due process. "[A]

procedural due process claim can exist only if no adequate state remedies

are available." See Flagship Lake Cnty. Dev. No. 5, LLC v. City of

Mascotte, Fla., 559 F. App'x 811, 815 (11th Cir. 2014). Accordingly, the

Northcutts' complaint failed to allege a violation of a clearly established

constitutional right with regard to their federal due-process claim.

Therefore, the employee defendants were entitled to federal qualified

immunity as to the Northcutts' federal procedural-due-process claim

seeking monetary damages, and the trial court erred when it denied the

employee defendants' motion to dismiss as to that claim.

II. State-Law Claims

In Counts 5-8 of the third amended complaint, the Northcutts

asserted claims of breach of contract and intentional interference with

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contractual relations. In Count 5, the Northcutts alleged that the Board

defendants, Gogue, Lee, Kerpelman, Rahman, Flowers, Hammer,

Roberts, Maxwell-Evans, and McCormick breached the settlement

agreements arising out of Patti's previous lawsuits. In Count 6, the

Northcutts alleged that the Board defendants, Gogue, Lee, Kerpelman,

Rahman, Flowers, Hammer, Roberts, Maxwell-Evans, and McCormick

intentionally interfered with the settlement agreements. In Count 7, the

Northcutts alleged that the Board defendants, Gogue, Lee, Kerpelman,

Rahman, Flowers, O'Neill, and Hammer breached the student/university

contract. In Count 8, the Northcutts alleged that the Board defendants,

Gogue, Lee, Kerpelman, Rahman, Flowers, O'Neill, and Hammer

intentionally interfered with the student/university contract. The

defendants argue that they are entitled to dismissal of the Northcutts'

state-law claims on the ground of State immunity, pursuant to Art. I, §

14, Ala. Const. 2022.

"Alabama's Constitution codifies the longstanding legal

principle that sovereign States are immune from suit,

providing that 'the State of Alabama shall never be made a

defendant in any court of law or equity.' Ala. Const. 1901, Art.

I, § 14 (Off. Recomp.). Section 14's grant of State immunity

is a jurisdictional bar3 -- it strips courts of all power to

adjudicate claims against the State, even if the State has not

raised its immunity as a defense. Ex parte Alabama Dep't of

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Transp., 985 So. 2d 892, 894 (Ala. 2007); but see Ex parte

Moulton, 116 So. 3d 1119, 1131 (Ala. 2013) (listing several

types of actions not within the prohibition of § 14).

"Section 14 applies not only to suits against the State

and its agencies, but also to 'official-capacity' suits against

State officers, employees, and agents.4 § 36-1-12(b), Ala. Code

1975. That is because a suit against a State agent in his

'official capacity' is equivalent to a suit against the office itself.

Haley v. Barbour Cnty., 885 So. 2d 783, 788 (Ala. 2004). This

rule explains why claims filed against an officer in his 'official

capacity' run not just against the named official but against

all his successors in office. See Ex parte Alabama Dep't of

Mental Health & Mental Retardation, 937 So. 2d 1018, 1021

n.6 (Ala. 2006). It also explains why official-capacity claims

seeking money damages constitute an impermissible attempt

to reach 'the public coffers': damages awarded against a State

agent in his official capacity presumably would come from the

State treasury rather than the agent's personal assets.

Suttles v. Roy, 75 So. 3d 90, 98 (Ala. 2010).

"Unlike an official-capacity claim, an individual-

capacity claim seeks to hold a government official or employee

personally liable, and to the extent that it seeks monetary

recovery, it demands it from the individual himself rather

than from a 'governmental entity' or the State treasury. Id.

Because genuine individual-capacity claims run against

officers personally, not against the State, we have

traditionally held that such claims cannot trigger § 14's

jurisdictional bar. See [Ex parte] Sawyer, 984 So. 2d [1100,]

1108 [(Ala. 2007)].

"It sometimes happens, however, that a plaintiff will

label a claim an 'individual capacity' claim even though the

substance of that claim makes clear that the State is, in

reality, the adverse party. In such a circumstance, this Court

has long held that substance trumps form: the so-called

individual-capacity claim is functionally a claim against the

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State and therefore barred by § 14. See Glass v. Prudential

Ins. Co. of Am., 246 Ala. 579, 586, 22 So. 2d 13, 19 (1945).

"________________________

"3State immunity has sometimes been referred to as '§

14 immunity,' 'sovereign immunity,' or 'State-sovereign

immunity,' though this Court's recent jurisprudence does not

favor these terms.

"4For purposes of this case, we do not distinguish

between 'officers,' 'employees,' and 'agents'; those terms are

used interchangeably in this opinion."

Ex parte Pinkard, 373 So. 3d 192, 198-99 (Ala. 2022).

" 'Section 14 immunity, however, is not

always absolute; there are actions against State

officials that are not barred by the general rule of

sovereign immunity.

" ' "[C]ertain actions are not barred by §

14. There are six general categories of

actions that do not come within the

prohibition of § 14: (1) actions brought

to compel State officials to perform

their legal duties; (2) actions brought to

enjoin State officials from enforcing an

unconstitutional law; (3) actions to

compel State officials to perform

ministerial acts; (4) actions brought

against State officials under the

Declaratory Judgments Act, Ala. Code

1975, § 6-6-220 et seq., seeking

construction of a statute and its

application in a given situation; (5)

valid inverse condemnation actions

brought against State officials in their

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representative capacity; and (6) actions

for injunction or damages brought

against State officials in their

representative capacity and

individually where it was alleged that

they had acted fraudulently, in bad

faith, beyond their authority, or in a

mistaken interpretation of law. See

Drummond Co. v. Alabama Dep't of

Transp., 937 So. 2d 56, 58 (Ala. 2006)

(quoting Ex parte Carter, 395 So. 2d 65,

68 (Ala. 1980)); Alabama Dep't of

Transp. v. Harbert Int'l, Inc., 990 So.

2d 831 (Ala. 2008) (holding that the

exception for declaratory-judgment

actions applies only to actions against

State officials). As we confirmed in

Harbert, these 'exceptions' to sovereign

immunity apply only to actions brought

against State officials; they do not

apply to actions against the State or

against State agencies. See Alabama

Dep't of Transp., 990 So. 2d at 840-41."

" 'Ex parte Alabama Dep't of Fin., 991 So. 2d 1254,

1256-57 (Ala. 2008). In Ex parte Moulton, 116 So.

3d 1119 (Ala. 2013), this Court clarified and

restated the sixth exception to § 14 immunity set

forth in Drummond Co. v. Alabama Department of

Transportation, 937 So. 2d 56, 58 (Ala. 2006), by

holding that the exception applies only to the

following:

" ' "(6)(a) actions for injunction brought

against State officials in their

representative capacity where it is

alleged that they had acted

fraudulently, in bad faith, beyond their

56

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authority, or in a mistaken

interpretation of law, Wallace v. Board

of Education of Montgomery County,

280 Ala. 635, 197 So. 2d 428 (1967), and

(b) actions for damages brought against

State officials in their individual

capacity where it is alleged that they

had acted fraudulently, in bad faith,

beyond their authority, or in a

mistaken interpretation of law, subject

to the limitation that the action not be,

in effect, one against the State.

Phillips v. Thomas, 555 So. 2d 81, 83

(Ala. 1989)."

" '116 So. 3d at 1141.'

"Ex parte Wilcox Cnty. Bd. of Educ., 279 So. 3d [1135,] 1140-

42 [(Ala. 2018)]."

Ex parte Alabama Dep't of Youth Servs., 401 So. 3d 276, 283 (Ala. 2024).

"Auburn University is a public university and 'an

instrumentality of the state.' Rigby v. Auburn Univ., 448 So.

2d 345, 347 (Ala. 1984). The Auburn University Board of

Trustees has been organized to carry out the educational

mission of the university. See Ala. Const. 1901 (Off. Recomp.),

Art. XIV, § 266. Among other things, the board of trustees

has been empowered 'to organize [Auburn University] by

appointing a corps of instructors, who shall be styled the

faculty of the university and such other instructors and

officers as the interest of the university may require; ... to

prescribe courses of instruction ...; ... and to do whatever else

it may deem best for promoting the interest of the university.'

§ 16-48-4, Ala. Code 1975."

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Burton v. Hawkins, 364 So. 3d 962, 971 (Ala. 2022). Additionally, this

Court has held that "actions against officers, trustees, and employees of

state universities in their official capacities are likewise barred by § 14."

Alabama Agric. & Mech. Univ. v. Jones, 895 So. 2d 867, 873 (Ala. 2004).

A. Claims for Injunctive Relief Against the Defendants in their Official

Capacities

The defendants assert:

"Northcutt seeks contract-based damages, specific

performance of the supposed Student-University contract in

the form of being awarded her degree, injunctive relief

relating to the contract, attorney's fees, and other relief .… All

the requested relief (besides that seeking prospective relief),

would affect either Auburn's 'contract rights,' the state

treasury, or both, and thus this claim is, in effect, a claim

against Auburn barred by state immunity."

Petition, pp. 32-33 (emphasis added).5 As we noted in part I.A., the only

specific equitable relief requested by the Northcutts in the third amended

complaint was prospective injunctive relief. Because it does not appear

that the Northcutts requested any retrospective injunctive relief, we need

5The defendants also assert that any claim for specific performance

would be barred because it would affect a contract right of the State.

However, the Northcutts did not specifically request specific performance

of either the settlement agreements or the student/university contract.

Rather, they merely sought prospective injunctive relief.

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not determine whether the defendants would be entitled to State

immunity as to any such claim. 6

However, the Northcutts have also requested attorneys' fees in

connection with their state-law claims for injunctive relief. In Ex parte

Town of Lowndesboro, 950 So. 2d 1203 (Ala. 2006), the Town of

Lowndesboro and Lee Frazer commenced a declaratory-judgment action

against the Alabama Department of Environmental Management

("ADEM"). The circuit court entered a summary judgment in favor of the

Town of Lowndesboro and Frazer. It also awarded them interim

attorneys' fees and expenses. ADEM appealed the circuit court's

6In their reply brief, defendants assert:

"There should be no tortious interference claims, even for

injunctive relief, against the official capacity Board

Defendants. See Ex parte Pinkard, 373 So. 3d [192,] 199

[(Ala. 2022)]. Any injunctive relief against the Board

Defendants should be considered on the breach of contract

claims themselves, not on secondary claims of tortious

interference, which should simply be dismissed in their

entirety."

Reply brief, p. 19. However, the defendants raised this argument for first

time in their reply brief. " [A]rguments made for the first time in a reply

brief are 'waived, and will not be considered by this Court.' Perkins v.

Dean, 570 So. 2d 1217, 1220 (Ala. 1990)." Wiggins v. Mobile Greyhound

Park, LLP, 294 So. 3d 709, 729 (Ala. 2019).

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judgment. The Court of Civil Appeals reversed the circuit court's

judgment and held that the award of attorneys' fees and expenses against

ADEM violated § 14. The Town of Lowndesboro and Frazer filed a

petition for a writ of certiorari in this Court, and this Court granted the

petition. This Court ultimately held:

"Although the petitioners' underlying declaratory-

judgment action may not have been barred by § 14, it is clear

that an award of interim attorney fees and expenses impacts

the State treasury and divests it of funds in the very way

forbidden by § 14. Haley v. Barbour County, 885 So. 2d 783,

789 (Ala. 2004). Therefore, the Court of Civil Appeals

correctly held that the award of interim attorney fees was

barred."

Ex parte Town of Lowndesboro, 950 So. 2d at 1211-12 (footnote omitted).

In this case, the Northcutts stated their claims for injunctive relief

against the defendants in their official capacities. State immunity

" 'means not only that the state itself may not be sued, but

that this cannot be indirectly accomplished by suing its

officers or agents in their official capacity, when a result

favorable to plaintiff would be directly to affect the financial

status of the state treasury.' State Docks Comm'n v. Barnes,

225 Ala. 403, 405, 143 So. 581, 582 (1932) (emphasis added);

see also Southall v. Stricos Corp., 275 Ala. 156, 153 So. 2d 234

(1963)."

Patterson v. Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002). Therefore,

State immunity would bar the award of attorneys' fees related to the

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Northcutts' request for prospective injunctive relief arising out of the

Northcutts' state-law claims, and the defendants are entitled to a

dismissal of the request for attorneys' fees.

B. Claims for Monetary Damages Against the Employee Defendants in

their Individual Capacities

"Unlike an official-capacity claim, an individual-

capacity claim seeks to hold a government official or employee

personally liable, and to the extent that it seeks monetary

recovery, it demands it from the individual himself rather

than from a 'governmental entity' or the State treasury.

[Suttles v. Roy, 75 So. 3d 90, 98 (Ala. 2010)]. Because genuine

individual-capacity claims run against officers personally, not

against the State, we have traditionally held that such claims

cannot trigger § 14's jurisdictional bar. See [Ex parte]

Sawyer, 984 So. 2d [1100,] 1108 [(Ala. 2007)].

"It sometimes happens, however, that a plaintiff will

label a claim an 'individual capacity' claim even though the

substance of that claim makes clear that the State is, in

reality, the adverse party. In such a circumstance, this Court

has long held that substance trumps form: the so-called

individual-capacity claim is functionally a claim against the

State and therefore barred by § 14. See Glass v. Prudential

Ins. Co. of Am., 246 Ala. 579, 586, 22 So. 2d 13, 19 (1945).

"… [I]f a claim against an officer seeks relief that would

'directly affect a contract or property right of the State' -- such

as by demanding money from the State treasury, requesting

specific performance of the State's contractual obligations, or

asking the court to quiet title to State lands -- the claim is

against the State and barred by § 14. Mitchell v. Davis, 598

So. 2d 801, 806 (Ala. 1992)."

Ex parte Pinkard, 373 So. 3d at 199.

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1. Breach-of-Contract Claims

The employee defendants argue that the Northcutts' breach-of-

contract claims against them in their individual capacities are due to be

dismissed. With regard to Count 5, which alleges breach of the

settlement agreements, the employee defendants contend that "none of

them is, or ever was, a party to any settlement agreement with

Northcutt" and that they "cannot be liable in damages for breaching a

contract to which they are not a party. See Childs v. Pommer, 348 So. 3d

379, 387-88 (Ala. 2021); Ohio Valley Conf. [ v. Jones, 385 So. 3d 948 (Ala.

2023)]." Petition, p. 31 (emphasis in original). With regard to Count 7,

which alleges a breach of the student/university contract, the employee

defendants contend:

"If any 'Student-University' contract such as the one described

by Northcutt existed, it was by definition between Northcutt

and Auburn. None of the Employee Defendants named in this

breach of contract claim was a party to any such contract, and

thus cannot be individually liable in damages for any breach.

See Childs, 348 So. 3d at 387-88; Ohio Valley Conf., [supra]."

Petition, p. 32. However, these arguments go to the underlying merits of

the Northcutts' breach-of-contract claims, not the issue of State

immunity.

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"At the outset, we note that, although the parties discuss

the cognizability under Alabama law of the plaintiffs' bad-

faith claim in light of this Court's decision in City of

Montgomery v. Collins, 355 So. 2d 1111 (Ala. 1978), we do not

address that issue. ' "Subject to certain narrow exceptions, we

have held that, because an 'adequate remedy' exists by way of

an appeal, the denial of a motion to dismiss or a motion for a

summary judgment is not reviewable by petition for writ of

mandamus." ' Ex parte Kohlberg Kravis Roberts & Co., 78 So.

3d 959, 966 (Ala. 2011) (quoting Ex parte Liberty Nat'l Life

Ins. Co., 825 So. 2d 758, 761-62 (Ala. 2002)). One of the few

'narrow exceptions' we have recognized to the aforesaid

general rule is a petition for a writ of mandamus complaining

of the denial of a motion to dismiss grounded on a claim of

immunity. Ex parte Dickson, 46 So. 3d 468, 471 (Ala. 2010)

(citing Ex parte Simpson, 36 So. 3d 15, 22 (Ala. 2009)).

Accordingly, we limit our review of the claim of bad-faith

failure to pay legal fees and expenses to an examination of

whether the City is immune from such a suit, leaving aside

any questions as to the legal or factual merits of that claim."

Ex parte City of Bessemer, 142 So. 3d 543, 549 (Ala. 2013). Because the

employee defendants' argument that they are entitled to a dismissal of

the breach-of-contract claims on this ground go to the underlying merits

of those claims, we will not address that argument.

2. Tortious-Interference-with-Contractual-Relations Claims

The employee defendants argue that the Northcutts' intentional-

interference-with-contractual-relations claims against them in their

individual capacities are due to be dismissed. With regard to Count 6,

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which alleges interference with the settlement agreements, the employee

defendants assert:

"As discussed above in response to Count 5 (Breach of

Contract), Auburn’s sovereign immunity includes the Board

of Trustees, meaning that it and they can never be sued

directly or indirectly. This immunity may not be waived, and

the trial court lacked subject matter jurisdiction to entertain

a claim for monetary damages against Auburn or the Board

Defendants. See Patterson v. Gladwin Corp., 835 So. 2d 137,

142 (Ala. 2002). This means that the settlement agreement is

not enforceable against Auburn to the extent it seeks

monetary relief, nor can it be enforced indirectly through a

suit against the Board Defendants (or Employee Defendants)

because, as discussed above, the relief sought by Northcutt

would affect the State's contract rights and treasury.

"Under Alabama law, there can be no tortious

interference with a contract that is not enforceable. White

Sands Group, L.L.C. v. PRS II, L.L.C., 998 So. 2d 1042, 1054

(Ala. 2008). ('A claim of tortious interference with a

contractual relationship presupposes the existence of an

enforceable contract.'). Northcutt's tortious interference

claim based on the settlement agreement with Auburn, to the

extent it seeks monetary damages, fails as a matter of law

because at least as to money damages, the contract is

unenforceable due to Auburn's immunity. See Johnson v.

Sorensen, 914 So. 2d 830 (Ala. 2005) (discussing

unenforceable contract with public university based on

immunity).

"Count 8 is another claim for intentional interference

with a contractual relationship, this one based upon the

supposed 'Student-University' contract between Northcutt

and Auburn that Northcutt claims in Count 7 to have been

breached. (Appx. E, at ¶ 281). Northcutt sues Employee

Defendants Gogue, Lee, Kerpelman, Rahman, Flowers,

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O’Neill, and Hammer. See ibid., at 57-58, ⁋ 283. For the same

reasons discussed above regarding the other tortious

interference claim (Count 6), the tortious interference claim

based on the student-university contract, such that it seeks

monetary damages or retrospective relief, is also due to be

dismissed."

Petition, pp. 34-35. However, the employee defendants' argument in this

regard does not go to the issue whether they are entitled to State

immunity as to the tortious-interference claims against them. Rather, it

goes to the underlying merits of the tortious-interference claims. Thus,

we will not address the employee defendants' argument that they are

entitled to a dismissal of the tortious-interference claims on this ground.

See Ex parte City of Bessemer, supra.

Conclusion

Based on the foregoing, we grant the petition in part and direct the

trial court to dismiss the Northcutts' claims for monetary damages

against the employee defendants in Counts 3 and 4 of the third amended

complaint on the ground of federal qualified immunity. We also direct

the trial court to dismiss the Northcutts' request for attorneys' fees

arising out of their request for prospective injunctive relief as to the state-

law claims on the ground of State immunity.

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However, the defendants have not demonstrated that they have a

clear legal right to the dismissal of the Northcutts' request for attorneys'

fees arising out of their request for prospective injunctive relief as to the

federal-law claims. Additionally, the employee defendants have not

established that they have a clear legal right to the dismissal of the

Northcutts' request for monetary damages as to the state-law claims

asserted in Counts 5, 6, 7, and 8 on the ground of State immunity.

Accordingly, we deny the petition as to those claims.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT

ISSUED.

Shaw, Bryan, and McCool, JJ., concur.

Stewart, C.J., and Sellers and Mendheim, JJ., concur in the result.

Cook and Lewis, JJ., recuse themselves.

66