Nichols v. Alabama State Bar
MEMORANDUM OPINION AND ORDER For the reasons stated within, Nichols's motion to alter, amend, or vacate (Doc. 17) is DENIED. The parties shall bear their own respective costs. Signed by Judge William M Acker, Jr on 6/19/15. (SAC ) Modified on 6/19/2015 (SAC, ).
2015 Jun-19 PM 03:31
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
W. DAVID NICHOLS,
ALABAMA STATE BAR,
CIVIL ACTION NO.
MEMORANDUM OPINION AND ORDER
Before the court is a motion (Doc. 17), filed by plaintiff W.
David Nichols, to alter, amend, or vacate this court’s order of
April 15, 2015 (Doc. 16), which dismissed the above-entitled
action. For the reasons stated below, the motion will be denied.
newly-discovered evidence or manifest errors of law or fact.”
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). The movant “cannot
use a Rule 59(e) motion to relitigate old matters, raise argument
or present evidence that could have been raised prior to the entry
of judgment.” Michael Linet, Inc. v. Wellington, Fla., 408 F.3d
757, 763 (11th Cir. 2005).
Nichols advances several arguments in support of his position
reasoning) could have been raised before the court’s entry of final
judgment. There is no newly discovered evidence. The court should
A. ASB is a State Agency
Nichols’s first argument is that the Eleventh Amendment does
not bar his claims against defendant Alabama State Bar (“ASB”)
because ASB is not a state agency. “The Eleventh Amendment protects
the immunity of not only the states, but of state agencies and
entities that function as an ‘arm of the state.’” Ross v. Jefferson
Cty. Dep’t of Health, 701 F.3d 655, 659 (11th Cir. 2012). “In
determining whether the Eleventh Amendment provides immunity to a
particular entity, this court examines the following factors: (1)
how state law defines the entity; (2) what degree of control the
state maintains over the entity; (3) where the entity derives its
entity.” Miccosukee Tribe of Indians v. Fla. State Athletic Comm’n,
226 F.3d 1226, 1231 (11th Cir. 2000). Even though the Eleventh
Circuit in Versiglio v. Board of Dental Examiners, 686 F.3d 1290
exclusively on the characterization of the entity by state courts,
the court has since Versiglio held that the four-factor test is
still the law of the circuit. Walker v. Jefferson Cty. Bd. of
Educ., 771 F.3d 748, 754 (11th Cir. 2014). “Although state law is
considered, the question whether an entity is an arm of the state
is one of federal law.” Williams v. Dist. Bd. of Trs. of Edison
Cmty. Coll., Fla., 421 F.3d 1190, 1192 (11th Cir. 2005). After
consideration of the four factors, the court finds that ASB is an
arm of the state of Alabama and thus is entitled to the protections
of the Eleventh Amendment.
1. How state law defines ASB
Alabama law does not clearly define ASB’s status for immunity
purposes. No court decision has directly reached the issue, though
both parties cite various cases as supporting their positions.
Nichols repeatedly cites Ex parte Griffith, 178 So. 2d 169, 174
(Ala. 1965), which states: “Members of the bar of Alabama are
members of a private incorporated association.” ASB cites Simpson
v. Alabama State Bar, 311 So. 2d 307 (Ala. 1975), and
Commissioners of the Alabama State Bar v. State ex rel. Baxley, 324
So. 2d 256, 262 (Ala. 1975), for the proposition that ASB is an
“arm of [the Alabama Supreme C]ourt.” These statements, however,
were made in contexts far removed from ASB’s immunity from suit, so
they are of limited use. Whether ASB is a state agency for some but
not all purposes (the state-officer oath of office in Griffith and
the authority to discipline lawyers in Baxley and Simpson) “is a
separate and independent question from whether [ASB i]s a state
agency for Eleventh Amendment purposes.” Tuveson v. Fla. Governor’s
Council on Indian Affairs, Inc., 734 F.2d 730, 735 (11th Cir.
Alabama statutes, while illuminative of ASB’s functions, are
similarly inconclusive. ASB was created by statute in 1923, Ala.
Code § 34-3-40 (1975), as a mandatory bar to which all Alabama
lawyers must belong. ASB has authority to regulate the examination
and admission of applicants to ASB and the conduct, discipline, and
reinstatement of the lawyers it licenses, subject to the approval
of the Alabama Supreme Court. Ala. Code § 34-3-43(a) (1975). ASB’s
funds (from fees and licenses) are deposited into an account within
the state treasury. Ala. Code § 34-3-4 (1975). ASB may expend only
these funds as budgeted and appropriated by the state legislature.
Ala. Code § 34-3-44 (1975).
Because neither Alabama statutes nor caselaw define ASB, the
court will look to the test Alabama courts apply to determine
whether an entity is a state agency and immune from suit. Under
legislative enactment is a suit against the state depends on 
the character of power delegated to the body,  the relation of
the body to the state, and  the nature of the function performed
by the body.” Ex parte Bd. of Dental Exam’rs, 102 So. 3d 368, 374
(Ala. 2012) (quoting Armory Comm’n v. Staudt, 338 So. 2d 991, 993
a. Character of power delegated to ASB
This inquiry focuses on the powers and duties delegated to ASB
by the state legislature. In Dental Examiners, the court found that
the powers and duties delegated to the Dental Board prove that the
“affect[s] the public health.” Ala. Code § 34-9-2(a) (1975). The
Board of Dentistry has the authority to regulate (1) qualification
and licensing of dentists, (2) dental education, and (3) conduct of
practicing dentists, including the authority to discipline, Dental
Exam’rs, 102 So. 3d at 374-77.
determine qualifications to practice law in the state, Ala. Code §
34-3-43(a)(1), to examine applicants and certify applicants as
qualified, Ala. Code § 34-3-43(a)(2), to regulate the conduct of
43(a)(3), to discipline lawyers, Ala. Code § 34-3-43(a)(5), and to
regulate reinstatement of lawyers, Ala. Code § 34-3-43(a)(4). As in
Dental Examiners, because the delegated powers are public in nature
and would otherwise be held by the state (the Alabama Supreme
Court, in this case), this delegation supports a finding that ASB
is a state agency.
b. Relation of ASB to the state
In Dental Examiners, the court found a relation of the Board
to the state because the Board receives funds from the state, even
though the Board raises its own funds, which are never deposited
into the state treasury. Instead, the legislature authorized the
Board to collect fees and deposit them directly into the Board’s
bank accounts. Dental Exam’rs, 102 So. 3d at 382. According to the
court, “[O]nce the Board collects the funds established by the
legislature, those funds become State funds. The mere fact that the
legislature appropriates those funds before they reach the State
Similarly, in Mooneyham v. State Board of Chiropractic Examiners,
802 So. 2d 200, 204 (Ala. 2001), the court found a relation between
the Board and the state because, while the Board collects its own
fees, it is required to deposit them into a separate fund in the
ASB is similarly related to the state. While it generates its
own funds from fees, those fees are permitted by the state and must
be deposited into a separate account in the state treasury. Ala.
Code § 34-3-4, 44 (1975). Accordingly, they are state funds, just
as in Dental Examiners. Indeed, this case is stronger because the
funds are actually deposited into the treasury and cannot be spent
except as appropriated by the legislature. Id. Therefore, this
factor supports a finding that ASB is a state agency.
c. Nature of the function performed by ASB
The focus of this inquiry is whether the functions performed
by the entity are of a public or private nature. Dental Exam’rs,
102 So. 3d at 383-86. The court found the Dental Board to exercise
practice of dentistry, promulgates rules regulating the practice,
investigates and punishes violations of its rules, and receives its
funding from the state (broadly speaking). Id. ASB regulates the
practice of law in the same ways. Accordingly, this factor also
weighs in favor of finding ASB to be a state agency. Based on all
three factors, then, this court concludes that ASB would be deemed
a state agency under Alabama law.
2. Degree of control the state maintains over ASB
control over the entity for it to be considered a state agency. The
form such control takes is varied and context-specific. In Manders
v. Lee, 338 F.3d 1304, 1320-22 (11th Cir. 2003), the Eleventh
Circuit, when considering immunity of Georgia sheriffs, focused on
the training required by the state and the governor’s authority to
discipline them. In Miccosukee, 226 F.3d at 1232-33, the court
found the state of Florida’s authority over the Athletic Commission
sufficient because of its supervision of the commission’s rulemaking powers and the selection of commission members by the
governor and legislature.
Here, ASB functions as an arm of the Supreme Court of Alabama.
Baxley, 324 So. 2d at 262. Its authority to promulgate rules
regulating attorney conduct and discipline and to reinstate lawyers
is subject to the approval of the Supreme Court. Ala. Code § 34-343(a). It may not admit applicants on its own but may only certify
the names of qualified applicants to the Supreme Court. Ala. Code
§ 34-3-43(a)(1). It must deposit all funds into the state treasury
and may only spend them as appropriated by the state legislature.
Ala. Code § 34-3-44. ASB’s finances fall under the supervision of
the Alabama Department of Finance. Ala. Code § 41-4-2 (1975).
Because of the control exercised on ASB’s authority to regulate the
practice of law and on its finances, the court finds that this
factor weighs in favor of finding ASB to be a state agency.
3. Where ASB derives its funds
As stated above, ASB is authorized by the legislature to
collect fees, which are to be deposited into the state treasury.
Ala. Code §§ 34-3-3 to -5 (1975). Those funds may only be expended
as appropriated by the legislature. Ala. Code § 34-3-44. The
Department of Finance supervises ASB. Ala. Code § 41-4-2.
These facts are strikingly similar to Miccosukee, 226 F.3d at
1233, in which the Eleventh Circuit found this factor to weigh in
favor of agency status. In that case, the Athletic Commission
raised its own funds, but it was required to deposit its funds into
the state treasury and spend them only as appropriated by the state
legislature. From these facts, the court concluded that the state
“controls the Florida Commission’s fiscal life,” indicative of a
state agency. Id. As the pertinent facts are identical to this
case, this court readily concludes that the state controls ASB’s
fiscal life in such a way to support its status as a state agency.
4. Who is responsible for judgments against ASB
Nichols contends that this factor weighs in his favor, since
responsible for judgments against the entity, not responsibility in
the specific case. See, e.g., Miccosukee, 226 F.3d at 1234; see
also Manders, 338 F.3d at 1325 (“The focus of the Supreme Court .
. . was on ‘potential legal liability’ and ‘the risk of adverse
judgments,’ as opposed to requiring that state funds actually pay
the judgment.”) (quoting Regents of the Univ. of Cal. v. Doe, 519
U.S. 425, 431 (1997)). Examining the responsibility for judgments
generally, then, the court finds this factor to weigh in favor of
agency status. In Miccosukee, the commission’s judgments must have
been paid either from the commission’s separate treasury fund or
from Florida’s state self-insurance fund. The court found this to
support agency status, since the state would either directly pay
the judgments (through the self-insurance fund) or indirectly pay
them (through the commission’s treasury fund), as the legislature
budgeting and appropriation process. 226 F.3d at 1234. In Manders,
the Eleventh Circuit went further, finding state agency status for
a sheriff’s office even though the office would be forced to pay
judgments out of its own funds. The Eleventh Circuit found that
“this payment would reduce his budget, and the practical reality is
that Sheriff Peterson must recoup that money from somewhere.”
Manders, 338 F.3d at 1327.
ASB would pay any judgments out of its treasury fund, but no
such withdrawal is permitted “except as budgeted and allotted” by
the state legislature. Ala. Code § 34-3-44. Consequently, this
would effect a drain on the treasury, albeit to a separate fund.
Further, as in Manders, the money paid may need to be recouped from
Accordingly, this factor, as well as all others, weigh in favor of
agency status, so the court finds that ASB is a state agency or arm
of the state for purposes of Eleventh Amendment immunity.
B. Application of Eleventh Amendment Immunity
Nichols next argues that, even if ASB is a state agency, the
Eleventh Amendment offers no protection against his claims. The
court finds each of his arguments in this regard lacking in merit.
1. Section 1983 claim
In his motion and reply, Nichols makes various arguments
regarding his § 1983 claim, but only one such argument addresses
this court’s finding that his claim is barred by the Eleventh
injunctive relief, seemingly referring to the doctrine of Ex parte
Young, 209 U.S. 123 (1908). “State agencies, however, are never
subject to unconsented suit, even under the doctrine of Ex parte
Ex parte Young applies only when state officials are sued
for prospective relief in their official capacity. It does not
permit suit against state agencies or the state itself, even when
the relief is prospective.” Eubanks v. Leslie, 210 F. App’x 837,
844 (11th Cir. 2006). Further, to the extent he attempts to assert
a claim for a direct action under the Fourteenth Amendment in his
reply to the motion to alter, amend, or vacate (Doc. 22 at 9), that
assertion is improper, as he does not purport to state such a claim
in his complaint.
2. ADA claim
Nichols advances two arguments in an attempt to revive his ADA
claim. Neither of these arguments is meritorious.
a. Valid abrogation of immunity
In its opinion of April 15, 2015 (Doc. 15), this court found
that Congress did not abrogate the states’ Eleventh Amendment
conduct because the abrogation provision exceeds the scope of
Amendment. In performing the analysis, the court found Nichols’s
implicated rights to be narrow, and Congress’s identification of
evidence of unconstitutional discrimination in the regulation of
disabled attorneys’ conduct to be lacking, so the remedy created is
not sufficiently congruent and proportional to pass muster.
Nichols now argues that the court’s analysis is flawed because
contends that he possesses property and liberty interests in his
law license, so that the deprivation of that license by ASB is
subject to strict scrutiny. Nichols, however, cites no authority
for his proposition that the deprivation of any property and
liberty interest is subject to strict scrutiny. This is for good
reason, as this court also cannot locate any such authority. “If a
law treats individuals differently on the basis of race or another
suspect classification, or if the law impinges on a fundamental
right, it is subject to strict scrutiny. Otherwise, the law need
only have a rational basis — i.e., it need only be rationally
related to a legitimate government purpose.” Leib v. Hillsborough
Cty. Pub. Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009).
“[T]here is no fundamental right to practice law . . . .” Schwarz
v. Kogan, 132 F.3d 1387, 1390 n.2 (11th Cir. 1998).1 The disabled
are not a suspect class. Bd. of Trs. of the Univ. of Ala. v.
Garrett, 531 U.S. 356, 366 (2001). Accordingly, Nichols has failed
to show why his bare assertions of property and liberty interests
implicate heightened scrutiny, so their deprivation is only subject
to rational basis review.
Nichols quibbles with this court’s previous citation to
Kirpatrick v. Shaw, 70 F.3d 100, 103 (11th Cir. 1995) (per
curiam), which recites the same statement as Schwarz, because it
was given in the context of a bar applicant, not a licensed
lawyer. Schwarz, however, involved a practicing lawyer, yet the
Eleventh Circuit made no distinction between the contexts.
The Tenth Circuit’s opinion in Guttman v. Khalsa, 669 F.3d
1101 (10th Cir. 2012), is instructive. In Guttman, the plaintiff’s
medical license was revoked, and he sued the state of New Mexico
under Title II of the ADA. The court found the state immune from
practice in his chosen profession . . . does not invoke heightened
scrutiny.” Id. at 1118. The court continued: “Indeed, although ‘the
liberty component of the Fourteenth Amendment’s Due Process Clause
includes some generalized due process right to choose one’s field
government regulation.’” Id. (quoting Conn v. Gabbert, 526 U.S.
286, 291-92 (1999)). The court next found that “Congress did not
identify a history of irrational discrimination in professional
licensing when enacting Title II.” Id. at 1119. After considering
unconstitutional discrimination, the court held that Title II, “as
constitutionally required,’” id. at 1124 (quoting Garrett, 531 U.S.
at 372), so “Title II does not validly abrogate New Mexico’s
sovereign immunity in the area of professional licensing,” id. at
Guttman is substantially similar to this case and supports
this court’s determination (1) that Nichols’s implicated rights,
like Guttman’s, are narrow, (2) that Congress identified no history
of irrational disability discrimination in the area of regulating
professional conduct, and (3) that the remedy crafted is not
sufficiently congruent and proportional to be a proper exercise of
determination was not in error and will not be disturbed.
Finally, Nichols makes several arguments to the effect that
ASB has either waived immunity from ADA claims or is estopped from
asserting it. First, as to waiver, the Eleventh Circuit has made
The clearest of the three, known as express consent,
usually takes the form of legislative enactment. The
second form of consent derives from the states'
ratification of the Constitution. This “plan of the
convention” consent assumes that, by ratifying the
Constitution and joining the republic, each state ceded
certain powers to the federal system; implicit in this
cession is the understanding that the state necessarily
also consented to suit in certain cases. Thus, the Court
has held that, by ratifying the Constitution, the states
waived their immunity to suits by the United States and
by sister states. Finally, the Court has created a third,
extremely limited category of consent. This consent is
premised on the state's participation in a congressional
program which, as a prerequisite for participation,
mandates that the state consent to suit.
Seminole Tribe v. Florida, 11 F.3d 1016, 1021-22 (11th Cir. 1994)
(internal citations omitted). Nichols contends that ASB waived its
immunity by participating in another ADA case against it without
asserting immunity, Cox. v. Ala. State Bar, 330 F. Supp. 2d 1265
establishes waiver of immunity; they could only be construed as
forms of express consent, but such waiver “must be explicitly
decisions,’” Seminole Tribe, 11 F.3d at 1022 (quoting Silver v.
Baggiano, 804 F.2d 1211, 1214 (11th Cir. 1986)). ASB’s description
of itself on its website and its participation in an ADA suit
clearly do not amount to explicit authorization, so no waiver is
Neither is ASB estopped from asserting its immunity. Whether
the applicable form of estoppel is judicial or equitable, the
thrust of each is that “a party may not maintain inconsistent
convinced a court of the merit of his position in the first
action.” Tuveson, 734 F.2d at 735; see also Burnes v. Pemco
statement on its website does not estop it from asserting immunity
because it is not inconsistent with that assertion — as previously
discussed, both agency status and immunity are context-specific, so
ASB’s general description of itself as a private incorporated
association is not in conflict with its current claim. And while
ASB did not assert immunity in Cox, that decision did not cause its
success in that case, as ASB was granted summary judgment on other
grounds, and the immunity analysis might have been different in the
separate context of testing accommodations. Therefore, ASB is not
estopped from asserting Eleventh Amendment immunity in this case.
For the reasons stated above, Nichols’s motion to alter,
amend, or vacate (Doc. 17) is DENIED.
The parties shall bear their own respective costs.
DONE this 19th day of June, 2015.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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