Gloria Miller v. Advantage Behavioral Health Sy

Filing

Opinion issued by court as to Appellant Advantage Behavioral Health Systems. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 01/26/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15496
Non-Argument Calendar
________________________
D.C. Docket No. 3:14-cv-00045-CDL

GLORIA JANE MILLER,
Plaintiff - Appellee,
versus
ADVANTAGE BEHAVIORAL HEALTH SYSTEMS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(January 26, 2017)

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Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Plaintiff Gloria Jane Miller alleges that Defendant Advantage Behavioral
Health Systems terminated her employment because of her age in violation of the
Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”).
Advantage, a Georgia “community service board,” moved to dismiss on grounds of
Eleventh Amendment immunity. The district court denied Advantage’s motion,
finding that Advantage is not an “arm of the State” for federal sovereign immunity
purposes with respect to Miller’s suit. Advantage appeals from the district court’s
denial. We affirm.
BACKGROUND
Advantage is a community service board (“CSB”) providing mental health,
substance abuse, and developmental disability services in the State of Georgia.
CSBs are creatures of Georgia state law, see generally O.C.G.A. § 37-2-6, and may
receive funding from the State to support their services. While they are subject to
some high-level oversight by Georgia’s Department of Behavioral Health and
Developmental Disabilities (the “DBHDD”), daily operations and personnel

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matters are managed by locally elected boards and supporting staff. See O.C.G.A.
§ 37-2-6(a)–(b).
Miller worked as a nurse at Advantage for several years until her
employment was terminated in 2010. Miller contends that Advantage
discriminated against her and ultimately fired her as a result of her age. She filed
suit against Advantage under the ADEA in the United States District Court for the
Middle District of Georgia in 2014. After a year of discovery, and on the eve of
the parties’ pretrial conference, Advantage moved to dismiss the suit on grounds of
Eleventh Amendment immunity. The district court made note of the “perplexing”
tardiness of Advantage’s motion but declined to find that Advantage had waived
its right to assert a federal immunity defense. The court proceeded to reject
Advantage’s argument that it qualifies as an “arm of the State” for Eleventh
Amendment purposes and denied Advantage’s motion to dismiss. We affirm.
STANDARD OF REVIEW
We review the district court’s denial of Advantage’s sovereign immunity
defense de novo. Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d
1288, 1290 (11th Cir. 2003). We may affirm the district court’s decision on any
ground supported by the record. Ironworkers Local Union 68 v. AstraZeneca

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Pharm., LP, 634 F.3d 1352, 1360 (11th Cir. 2011).
DISCUSSION
I.

Eleventh Amendment Immunity
The Eleventh Amendment to the federal Constitution “protects a State from

being sued in federal court without the State’s consent.” Manders v. Lee, 338 F.3d
1304, 1308 (11th Cir. 2003) (en banc).1 Eleventh Amendment immunity extends
to “arms of the State,” or public entities acting as state agents or instrumentalities.
Id.
A defendant’s status as an arm of the State “must be assessed in light of the
particular function in which the defendant was engaged when taking the actions
out of which liability is asserted to arise.” Id.; see also Shands Teaching Hosp. &
Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308, 1311 (11th Cir. 2000) (establishing
that arm-of-the-State status relates not to the entity’s “status in the abstract” but to
its “function or role in a particular context.”).

1

It is well settled that Congress did not properly abrogate the states’ Eleventh Amendment
immunity with respect to age-discrimination claims in enacting the ADEA. See Kimel v. Fla.
Bd. of Regents, 528 U.S. 62, 66–67 (2000); Stroud v. McIntosh, 722 F.3d 1294, 1303 (11th Cir.
2013) (“The Supreme Court has made it clear that the ADEA is unconstitutional as applied to the
states . . . .”). Accordingly, there is no dispute in this appeal that Advantage would be entitled to
immunity from Miller’s ADEA claim if Advantage were deemed to have acted as an arm of the
State when it terminated Miller.

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Once the relevant context is defined, this Court balances four factors (the
“Manders factors”) to determine whether the defendant acted as an arm of the
State: “(1) how state law defines the entity; (2) what degree of control the State
maintains over the entity; (3) where the entity derives its funds; and (4) who is
responsible for judgments against the entity.” Manders, 338 F.3d at 1309. The
entity invoking Eleventh Amendment immunity bears the burden of demonstrating
that the Manders factors weigh in its favor. See, e.g., Woods v. Rondout Valley
Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 237 (2d Cir. 2006) (joining its sister
circuits to hold that an entity seeking refuge in the Eleventh Amendment “bears the
burden of demonstrating that it qualifies as an arm of the state”).
Miller’s ADEA discrimination claim arises from her allegedly wrongful
termination by Advantage. As such, the question presented is whether Advantage
acts as an arm of the State in making hiring and firing decisions in the ordinary
course of business. With this context in mind, we review de novo Advantage’s
arguments as to each of the four Manders factors. We find that, under the evidence
Advantage presents, three of the four factors weigh against finding immunity with
respect to Miller’s claim.

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A.

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Georgia Law’s Definition of Community Service Boards

The first Manders factor considers how Georgia law defines CSBs. As we
have noted, “federal law, not state law, [ ] ultimately governs whether an entity is
immune under the Eleventh Amendment,” Lightfoot v. Henry County School
District, 771 F.3d 764, 771 (11th Cir. 2014), but the manner in which state law
treats a public entity serves to guide our Eleventh Amendment analysis. See id. at
769–71 (considering Georgia statutory framework, Georgia constitution, and
related state case law to assess first Manders factor).
We first consider the language with which the relevant Georgia statute
characterizes CSBs. The opening section of the CSB enabling statute states that
the entities “shall be considered public agencies” and that each individual CSB
“shall be a public corporation and an instrumentality of the state.” O.C.G.A. § 372-6(a). While the terms “public agency” and “public corporation” are too vague to
tip the balance toward arm-of-the-State status, entities considered
“instrumentalities” of the State presumptively share in the State’s Eleventh
Amendment immunity. See Manders, 338 F.3d at 1308 (noting that the phrase
“arm of the State” encompasses “agents and instrumentalities of the State”).

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The Georgia legislature, however, clouded this presumption later in the same
statutory section by declaring that CSBs “shall not be considered agencies of the
state” and shall “have the same immunity as provided for counties.” O.C.G.A.
§ 37-2-11.1(c)(1). Georgia law—unlike federal law—grants counties sovereign
immunity along with state agencies, but it defines county immunity and stateagency immunity differently. Compare Stewart v. Baldwin Cty. Bd. of Educ., 908
F.2d 1499, 1509 (11th Cir. 1990) (noting that Eleventh Amendment immunity
“does not extend to counties”) with Toombs Cty., Ga. v. O’Neal, 330 S.E.2d 95, 97
(Ga. 1985) (holding that sovereign immunity under Georgia constitution “is
extended to the counties of the State of Georgia” but that state legislature may
waive that immunity by law). This provision thus runs counter to the statute’s
opening language, suggesting that the legislature intended CSBs to function as
analogues of counties even if the statute nominally deemed them state
“instrumentalities.”
At best, the plain language of the relevant statutory provisions cuts only
weakly in favor of finding that Georgia law views CSBs as arms of the State. And
because Georgia law grants immunity to counties as well as state agencies, we

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cannot easily import its statutory language into a federal immunity framework that
draws a sharp distinction between these two types of entities.
Georgia case law helps clarify this picture. In Youngblood v. Gwinnett
Rockdale Newton Cmty. Serv. Bd., 545 S.E.2d 875 (Ga. 2001), the Georgia
Supreme Court unambiguously held that CSBs are arms of the State for purposes
of state constitutional immunity, looking beyond the statutory language to find that
the Georgia legislature designed CSBs to function as state entities rather than as
independent political subdivisions. Id. at 877 & n.2. The legal effect of
Youngblood was to invalidate the statutory provision that purported to grant CSBs
“the same immunity as provided for counties.” O.C.G.A. § 37-2-11.1(c)(1). The
effect of Youngblood in our analysis is to tip the balance toward a finding that
Georgia state law views CSBs like Advantage as arms of the State. 2

2

Advantage makes a broader inference: “[W]hen the court in Youngblood ruled that CSBs are
the ‘state’ for the purpose of suit under [Georgia law], it was necessarily holding that . . . the
State of Georgia considers them to be entitled to Eleventh Amendment immunity.” Advantage’s
reading of Youngblood goes too far. The court made no assertions as to the status of Georgia’s
CSBs under the Eleventh Amendment, and indeed the court had no occasion in that case to opine
about federal immunity law. And as the Georgia Supreme Court has acknowledged, state
immunity analysis need not align with federal immunity analysis. Hines v. Ga. Ports Auth., 604
S.E.2d 189, 195 (Ga. 2004). Furthermore, the first Manders factor asks us to consider whether
state law treats an entity more like a state agency or more like a political subdivision—it does not
require us to discern how state courts believe federal courts should treat the entity under the
Eleventh Amendment. Our conclusion on the first Manders factor is, therefore, narrow: In light
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Because the Georgia Supreme Court’s classification of CSBs as state
agencies is clear and definitive, we reserve our analysis of the practical function of
CSBs under the state’s statutory scheme for the remaining Manders factors.
B.

Where Georgia Law Vests Control

The second Manders factor requires us to determine the degree of control
the State maintains over the activity from which the defendant’s alleged liability
arises. The question in this case is whether the State of Georgia exercises
meaningful control over Advantage’s hiring and firing practices in the ordinary
course of business. We find that it does not.
As a general matter, CSBs in Georgia are managed at the local level and
without significant state involvement. The operations of each CSB are controlled
by a local Governing Board, whose members are appointed by authorities of the
communities the CSB serves. See O.C.G.A. § 37-2-6(b). While state law defines
the mechanism by which Board members are appointed and provides guidance
regarding the selection of members, the State is not entitled to oversee or control

of Youngblood, Georgia state law views CSBs as state agencies entitled to immunity under state
law.

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the appointment process in any capacity. See O.C.G.A. § 37-2-6(b)(1) (outlining
Board appointment process); O.C.G.A. § 37-2-6(c) (encouraging local authorities
to ensure diversity in Board membership).
The Governing Board is, in turn, empowered to appoint an Executive
Director to “direct[] the day-to-day operations” of the CSB. The Board may
delegate “any power, authority, duty, or function” to the Director or other CSB
staff members as it deems appropriate. O.C.G.A. § 37-2-6.1(a)(1). Appointment
and compensation of the Executive Director are subject to approval by the
Commissioner of the DBHDD, but the Governing Board retains sole authority to
remove and replace the Director. See O.C.G.A. § 37-2-6.1(a)(1); O.C.G.A. § 37-11(3). The Executive Director is directly responsible for hiring and firing CSB
staff, O.C.G.A. § 37-2-6.1(a)(1), while the Board (or the Director, if the Board so
delegates) sets the terms of compensation for CSB personnel, O.C.G.A. § 37-26.1(b)(9), and determines whether and how to provide employee benefits.
O.C.G.A. § 37-2-6.1(b)(7). The State has no authority to review staff hiring or
firing activity or to alter the CSB’s provision of compensation or benefits. 3 Nor is

3

Advantage additionally argues that CSB personnel practices are governed by the
antidiscrimination provision of the Rules of the State Personnel Board, Ga. Comp. R. & Regs.
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the State empowered to train, discipline, or terminate CSB staff, to dismiss a CSB
Executive Director, or to replace locally appointed Governing Board members.
Cf., e.g., Lake v. Skelton, 840 F.3d 1334, 1343 (11th Cir. 2016) (noting that the
State’s direct involvement in “training and discipline of deputies [within sheriff’s
office] provides further evidence of control by the state”).
Advantage contends that, because the Commissioner approves the selection
and compensation of the Executive Director, and because the Director controls the
hiring and firing of CSB staff, it follows that “the state has a great deal more
control over personnel decisions than does any local authority.” We disagree.
There is no question that Georgia law dictates the operational structure of each

478-1, and thus the decision to terminate Miller was subject to substantial state control. See Ga.
Comp. R. & Regs. 478-1-.03; O.C.G.A. § 45-20-2(6) (defining “agency” for purposes of
application of Rules of the State Personnel Board to include CSBs). Miller counters with
reference to a letter that Advantage transmitted to her upon her termination. In that letter,
Advantage informs Miller that “the Rules and Regulations of the State Personnel Board do not
cover you.” As the district court identified, there was further ambiguity in the record below as to
whether state personnel standards apply to Advantage employees in general, and the parties have
not successfully clarified this issue on appeal.
In light of this ambiguity and Advantage’s own admission, we conclude that Advantage has
failed to show that state personnel standards applied to Miller’s employment. We also note that
applicability of state personnel standards would still not be sufficient to tilt the second Manders
factor in favor of immunity in light of the evidence we highlight above.

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CSB, but CSBs retain substantial autonomy over day-to-day operations and
ordinary personnel management, signaling meaningful local control. We came to a
similar conclusion in Lightfoot, 771 F.3d at 771–75, in which we declined to find a
local Georgia school district entitled to federal immunity under Manders. In
assessing the second Manders factor, we found that control of the school district
was locally oriented because it was “subject to the . . . management of county
boards of education,” which were, in turn, composed of locally elected county
residents. Lightfoot, 771 F.3d at 771 (internal quotation marks omitted). We
acknowledged that the State of Georgia crafted certain aspects of the school
board’s operations by setting school-board regulations, specifying the manner in
which board members would be elected, and setting employee evaluation
standards, but we ultimately concluded that “[e]stablishing minimum
requirements” for the operation of the school district was “not sufficient to
demonstrate [state] control.” Id. at 773.
Our analysis in Pellitteri v. Prine, 776 F.3d 777 (11th Cir. 2015), presents a
useful contrast. In that case, we considered the immunity of a local Georgia
sheriff’s office in the exercise of employment procedures. We concluded that the
second Manders factor weighed in favor of immunity, highlighting several crucial

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limitations on the sheriff’s autonomy in personnel management: the State strictly
regulated the sheriff’s power to hire deputies and peace officers by requiring Stateadministered background checks, physical and mental examinations, and an
entrance examination for all candidates; the State retained the power to
“functionally terminate” deputy sheriffs through disciplinary measures without the
sheriff’s consent; and the Governor of Georgia held ultimate authority to discipline
or suspend the sheriff himself for incidents of misconduct. Id. at 781–82. See also
Stanley v. Broward Cty. Sheriff, 2016 WL 7229745 (11th Cir. Dec. 14, 2016)
(noting that, while the State was empowered to remove local sheriff for
misconduct, the State had no control over the appointment or removal of deputies
hired by the sheriff; this fact weighed against finding state control); Lake, 840 F.3d
at 1343 (following Pellitteri to conclude that State’s direct involvement in sheriff
training and discipline evidenced state control). The State of Georgia retains no
such control over CSB personnel decisions, is powerless to remove the Executive
Director or Board members, and does not limit the Governing Board’s discretion to
manage personnel matters in the service of local concerns. Cf. Pellitteri, 743 F.3d
at 782 (noting that the sheriff was primarily accountable to the State—rather than

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to local authorities—in discharging his duties, and citing this fact as further
evidence of substantial state control).
We find our analysis in Lightfoot persuasive in this case, especially as
contrasted with our conclusion in Pellitteri. 4 The existence of state guidelines
regarding the appointment of CSB Governing Boards and state standards for the
provision of CSB services is not sufficient to demonstrate substantial state control
over Advantage in this case, especially in light of the significant autonomy state
law grants to locally appointed Governing Boards. Advantage has not met its
burden of demonstrating that the DBHDD’s limited, high-level involvement in the
structure and function of CSBs justifies a finding that Advantage is an arm of the
State. Thus, we concur with the district court that the second Manders factor
weighs against Eleventh Amendment immunity.

4

Advantage urges that any reference to our reasoning in Lightfoot would be misplaced in this
case. To advance this argument, Advantage lists the various ways in which CSBs are unlike
state school districts, implicitly asking us to make the following deduction: Because school
districts are not arms of the State, and because CSBs are unlike school districts, it follows that
CSBs must be arms of the State. There are, indeed, many distinctions to be drawn between
Georgia-state school districts and CSBs—but there are useful similarities to consider as well.
We decline to ratify Advantage’s faulty reasoning, and we therefore consider Lightfoot and other
Circuit opinions wherever they illuminate the proper application of the Manders factors in this
case.

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C.

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Source of Defendant’s Funding

We next ask where the defendant derives its funding. In answering this
question, we focus primarily on the quantum of funding the State provides to the
defendant entity. See Stanley, 2016 WL 7229745, at *8 (citing Abusaid v.
Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1311 (11th Cir. 2005)).
Where relevant, we may also consider the level of control the State exercises over
the entity’s funding structure, budget, and overall financial autonomy. See, e.g.,
Pellitteri, 776 F.3d at 782–83 (finding that, although sheriff’s office was funded
primarily by the county rather than the State, the third Manders factor weighed in
favor of immunity because the State dictated the office’s funding structure);
Williams v. Dist. Bd. of Trs. of Edison Cmty. Coll., Fla., 421 F.3d 1190, 1194 (11th
Cir. 2005) (noting in analysis of third Manders factor that “state approval of
institutional budgets evidences state control,” which weighed in favor of finding
immunity); Lightfoot, 771 F.3d at 776–77 (concluding that school board’s receipt
of “significant funding from the State” was not sufficient to tip the balance toward
immunity on third Manders factor, as the school board itself retained substantial
local control over its own budget).

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Advantage asserts that the State funds a substantial portion of its operations,
but it fails to provide any evidence demonstrating (or even estimating) the actual
proportion of state to non-state funding on which it relies. This dearth of evidence
is surprising: Advantage’s argument relies heavily on the proposition that the State
is its primary funder, and Advantage is, of course, uniquely positioned to prove the
truth of this assertion. In the absence of such evidence, we also consider the
State’s involvement in Advantage’s financial operations. We ultimately conclude
that Advantage has failed to carry its burden of demonstrating that the State
exercises meaningful control over the source of its funding or the nature of its
budget.
In support of its argument that “the state controls the sources of funds to
CSBs,” Advantage cites to a single provision of Georgia’s enabling statute, under
which the State forbids CSBs to tax, to issue bonds, and to “financially obligate the
state.” O.C.G.A. § 37-2-6.1(e). But Advantage neglects several key elements of
the CSB funding structure that weigh against a finding of immunity. As discussed
supra, CSBs like Advantage are managed locally by Governing Boards, whose
members are appointed by county authorities. O.C.G.A. § 37-2-6(b). Each CSB’s
Governing Board chooses whether to contract with the DBHDD or other state

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departments to provide health services. O.C.G.A. § 37-2-6(a). The State does not
mandate that CSBs contract with it, nor does it require them to contract with
parallel local or federal healthcare programs.
The Governing Board also has authority to cease operations of the CSB
altogether, O.C.G.A. § 37-2-6.5, or to end its contractual relationship with the State
by converting the CSB to a private nonprofit, a unit of a local county, or an arm of
a hospital. O.C.G.A. § 37-2-6.4(a). The State has no authority to approve or reject
such changes. And as Advantage has made clear, its state funding is servicebased—that is, Advantage receives no funding from the State if it does not contract
with the State and bill its services to the State under the terms of that contract.
Upon review of this statutory framework, is clear to us that the Governing
Board holds unfettered discretion to design its own funding mix. It can, for
example, choose to rely primarily on state funds, to contract only with private
organizations, or to diversify its funding sources by contracting with private or
local organizations in addition to the State. This level of autonomy precludes the
State from dictating Advantage’s funding portfolio and limits the State’s control
over Advantage’s financial decision-making.

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Furthermore, Governing Boards enjoy broad autonomy to allocate funds on
personnel matters. The Board of each CSB is entitled to review and approve the
CSB’s annual budget, which “shall provide for securing . . . professionals
necessary for the provision of disability and health services.” O.C.G.A. 37-26.1(b)(2); O.C.G.A. 37-2-6.1(a). The Board is further empowered to determine
when and how to provide employment benefits, O.C.G.A. § 37-2-6.1(b)(7); to fix
employee compensation, O.C.G.A. § 37-2-6.1(b)(9); and to raise revenues to
support daily operations. O.C.G.A. § 37-2-6.1(f)(2). The only personnel-related
matter the State is entitled to oversee relates to the employment of the CSB’s
Executive Director, who exercises daily managerial authority as delegated by the
Governing Board. O.C.G.A. § 37-2-6.1(a)(1) (permitting commissioner of
DBHDD to review and approve Governing Board’s offer of employment to
Executive Director and any substantial alterations to terms of compensation but
omitting to empower commissioner to remove Director at his discretion).
The fact that the Governing Board, not the State, exercises primary control
over Advantage’s financial decision-making—especially in the arena of personnel
management—weighs against immunity. Cf., e.g., Ross v. Jefferson Cty. Dep’t. of
Health, 701 F.3d 655, 660 (11th Cir. 2012) (finding the fact that health department

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was funded by county insufficient to “‘tip the balance’ against immunity” because
there was no evidence that county exerted control over the department); Manders,
338 F.3d at 1323 (finding that relevant funding of sheriff’s office was derived from
the State, even though county bore “the major [funding] burden,” because State
mandated the source of funding, set sheriff’s compensation, and limited county’s
autonomy over sheriff’s spending decisions).
D.

Liability for Judgments against Defendant

Under the final Manders factor, we consider “whether the State would bear
ultimate responsibility for an adverse judgment” against the defendant entity.
Lightfoot, 771 F.3d at 777. Georgia law speaks directly to this factor, establishing
that “the liabilities, debts, and obligations of a community service board shall not
constitute liabilities, debts, or obligations of the state or any county or municipal
corporation and neither the state nor any county or municipal corporation shall be
liable for any liability, debt, or obligation of a community service board.”
O.C.G.A. § 37-2-6(a). The United States Supreme Court does not require “an
actual drain on the state treasury as a per se condition of Eleventh Amendment
immunity,” Manders v. Lee, 338 F.3d 1304, 1327 (11th Cir. 2003), but the

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statutory limitation of state liability for any judgment against Advantage weighs
strongly against finding it an arm of the State.
Advantage acknowledges this statutory limitation but argues that the
Georgia state treasury would be meaningfully and unavoidably impacted in the
event of an adverse judgment against Advantage. We disagree.
In support of this argument, Advantage attempts to analogize itself to the
sheriff’s office at issue in Manders and the public water utility we considered in
U.S. ex rel. Lesinski v. South Fla. Water Mgmt. Dist., 739 F.3d 598 (11th Cir.
2014). In both cases, we found the state treasury indirectly implicated in the
defendant entity’s liabilities, which cut in favor of immunity. But both cases are
distinguishable. In Manders, we concluded that the local sheriff’s office was
subject to direct state control, was financially dependent on the State, and would
have been unable shrink its law-enforcement budget in the event of an adverse
judgment. 338 F.3d at 1328. By contrast, we find Advantage independent from
state control and financially self-sufficient, especially in light of its ability to
contract freely and raise its own revenue. See O.C.G.A. § 37-2-6(a); O.C.G.A.
§ 37-2-6.1(f)(2). And in Lesinski, we explained that, if judgment creditors
“deplete[d] the [water district’s] funds, . . . the State would ultimately have to

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choose between increasing its appropriation to make up the shortfall or shirking its
constitutionally mandated duty to ‘conserve and protect [the State’s] natural
resources and scenic beauty.’” 739 F.3d at 605. Advantage concedes that the State
of Georgia is under no constitutional duty to provide mental health, developmental
disability, or addictive disease services. Our reasoning in Lesinski is, therefore,
inapposite.
Most significantly, Advantage has failed to present evidence that the State of
Georgia would be obligated or incentivized to prop up Advantage in the event of
its financial distress or insolvency. Advantage asserts that “CSBs are formed with
geographical limitations” set by the State and that, as a result, “[t]here is no legal
basis for the state to simply choose to work with another CSB” in a given region if
the preexisting CSB were forced to liquidate. This assertion is not supported by
Georgia law, which expressly provides that the State may alter and merge the
boundaries of each CSB’s service area as it deems necessary. O.C.G.A. § 37-23(a)–(b). And Advantage provides no evidence that the State could not contract
with a private provider if Advantage ceased its operations and neighboring CSBs
were unable to absorb its patient base. To be sure, such a service transition would
not be costless for the State. But it is not the case—as it was in Manders and

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Lesinski—that a judgment against Advantage would require the State to make the
difficult choice between footing Advantage’s bill and leaving vulnerable citizens
without needed care.
We concur with the district court that Advantage has not carried its burden
of showing that the state treasury is meaningfully implicated in Advantage’s legal
liabilities. The final Manders factor weighs decisively against finding Advantage
an arm of the State for federal immunity purposes.
II.

Waiver of Eleventh Amendment Immunity
Because we find that Advantage is not entitled to Eleventh Amendment

immunity on the evidence presented, we need not consider whether Advantage
waived its right to assert this defense by failing to move for dismissal in a timely
manner. In so concluding, we echo the district court’s observation that “[t]he test
to determine [whether] a state has waived its sovereign immunity ‘is a stringent
one.’” Barnes v. Zaccari, 669 F.3d 1295, 1308 (11th Cir. 2012) (quoting Coll.
Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675
(1999)).

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Case: 15-15496

Date Filed: 01/26/2017

Page: 23 of 23

CONCLUSION
We conclude that three of the four Manders factors weigh strongly against
finding that Advantage acted as an “arm of the State” for purposes of Eleventh
Amendment immunity with respect to Miller’s termination. Under this Court’s
precedent, Advantage has therefore failed to meet its burden of proving its
entitlement to immunity from Miller’s suit. The district court’s denial of
Advantage’s motion to dismiss is AFFIRMED.

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