MILLER v. ADVANTAGE BEHAVIORAL HEALTH SYSTEMS

Filing 50

ORDER denying 34 Motion to Dismiss for Lack of Jurisdiction. Ordered by US DISTRICT JUDGE CLAY D LAND on 11/10/15. (nmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
GLORIA JANE MILLER,

*

Plaintiff,

*

vs.

*

ADVANTAGE BEHAVIORAL HEALTH
SYSTEMS,

*

CASE NO.3:14-CV-45 (CDL)
*
Defendant.
O R D E R
Plaintiff

Gloria

Jane

Miller

Advantage Behavioral Health Systems

alleges

that

Defendant

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 seeks

dismissal

subject

of

this

action

jurisdiction,

contending

Georgia

thus

and

based

that

entitled

it
to

on
is

lack
an

immunity

of

arm

of

the

under

the

Amendment to the United States Constitution.

matter

state

of

Eleventh

For the reasons

explained in the remainder of this Order, the Court finds that
Advantage is not an arm of the state for Eleventh Amendment
purposes, and therefore, its motion to dismiss (ECF No. 34) is
denied.1

1

Advantage relies on evidence beyond Miller’s complaint. Although the
Court’s decision is based on the factual record, the Court notes that
the facts upon which the Court’s decision is based are not in dispute.

BACKGROUND
The relevant facts, which are largely undisputed, are as
follows:
Advantage

is

a

community

service

board

that

receives

funding from the state of Georgia to provide mental health,
substance
clinics

abuse,

and

throughout

developmental

Georgia.

disabilities

Georgia

law

services

creates

at

community

service boards and describes them as “public” entities.

See

generally O.C.G.A. § 37-2-6.
Miller’s

relevant

employment

with

Advantage

began

as

a

part-time nurse in 2002.

Shortly thereafter, Miller became a

full-time

Miller

employee.

contends

discriminated against her because of her age.
Advantage

intentionally

placed

her

in

a

that

Advantage

She alleges that

situation

where

she

could not succeed at her job to set her up for termination.
After

compiling

a

record

of

performance

deficiencies

against

Miller, Advantage terminated her employment in January 2010.
In

May

2014,

Miller

filed

the

present

action.

In

its

answer, Advantage asserted that Miller’s “claims may be barred
by

Eleventh

Amendment

immunity

Def.’s Answer 2, ECF No.
of

Miller’s

claims.

In

4.

and/or

sovereign

immunity.”

Advantage also disputed the merits

response

to

Miller’s

first

set

of

interrogatories, Advantage again stated that it was immune from

2

suit and disputed the merits of Miller’s claims.

Def.’s Suppl.

Br. in Supp. of Mot. to Dismiss Ex. A, at 8-9, ECF No. 47-1.
Although
jurisdiction

it

timely

based

on

raised

Eleventh

lack

of

Amendment

subject
immunity

matter
in

its

pleadings and during discovery, Advantage inexplicably failed to
promptly

file

a

motion

to

dismiss

based

upon

this

defense.

Instead, the parties engaged in nearly a year of discovery on
the merits of the age-based discrimination claim.

At the close

of discovery, Advantage filed a motion for summary judgment on
that claim, but even more perplexing still did not file a motion
based on its Eleventh Amendment defense.
Mem.

in

Supp.

substantial

of

time

Summ.

J.,

reviewing

ECF

the

No.

See generally Def.’s

14-1.

detailed

After

factual

spending

record,

the

Court found that a genuine factual dispute existed as to whether
Advantage terminated Miller because of her age. Order Den. Mot.
for Summ. J., ECF No. 30.
summary

judgment,

the

After denying Advantage’s motion for

Court

scheduled

the

final

pretrial

conference in anticipation of a jury trial.
A week before the scheduled final pretrial conference, it
apparently dawned on Advantage that it had not moved to dismiss
the action based on Eleventh Amendment immunity, and it filed
its tardy motion.

ECF No. 34.

Concluding that any ruling on

the motion would likely be subject to interlocutory appellate

3

review, the Court reluctantly continued the pretrial conference
and jury trial in order to decide the late-filed motion.
DISCUSSION
I.

Waiver of Eleventh Amendment Immunity
Miller argues that by delaying the filing of its motion

until

the

eve

scheduling

of

order,

immunity defense.
argument.

trial

and

Advantage

in

violation

waived

its

of

the

Eleventh

Advantage’s

test

to

Amendment

The Court is naturally sympathetic to this
conduct

wasted

judicial

resources

arguably violated the Court’s scheduling order.
“[t]he

Court’s

determine

whether

a

state

sovereign immunity ‘is a stringent one.’”

has

and

Nevertheless,
waived

its

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)).

Accordingly, the Court finds it prudent to address the

merits of Advantage’s Eleventh Amendment immunity defense.
II.

Eleventh Amendment Immunity
“The Eleventh Amendment protects a State from being sued in

federal court without the State’s consent.”

Manders v. Lee, 338

F.3d 1304, 1309 (11th Cir. 2003)(en banc).

This protection not

only applies to actions directly against the state itself but
includes actions against “arms of the state.”

Id.

It has been

observed that “the jurisdictional bar embodied in the Eleventh
Amendment is a ‘rather peculiar kind of jurisdictional issue.’”

4

McClendon v. Ga. Dep’t of Comty. Health, 261 F.3d 1252, 1257
(11th

Cir.

Inst.,

2001)(quoting

Inc.,

173

F.3d

United
890,

States

892

v.

(D.C.

SCS

Cir.

Bus.

&

1999)).

Tech.
“[T]he

Eleventh Amendment grants the State a legal power to assert a
sovereign
(quoting

immunity
Wis.

(1998)).

defense

Dep’t

of

should

Corr.

v.

it

choose

Schacht,

to

so.”

Id.

U.S.

524

do

381,

389

The entity invoking Eleventh Amendment immunity “bears

the burden of demonstrating that it qualifie[s] as an arm of the
state entitled to share in its immunity.”
of

Three

Rivers

Reg’l

Library

Sys.,

Haven v. Bd. of Trs.

No.

15-11064,

2015

WL

5040174, (11th Cir. Aug. 27, 2015)(per curiam)(quoting Woods v.
Rondout Valley Ctr. Sch. Dist. Bd. of Educ., 466 F.3d 232, 237
(2d Cir. 2006)); see Misener Marine Constr., Inc. v. Ga. Ports
Auth.,

199

F.

App’x

899,

900

(11th

Cir.

2006)(per

curiam)(upholding the district court’s determination that the
defendant “failed to satisfy its burden of establishing Eleventh
Amendment immunity”); see also Hutto v. S.C. Ret. Sys., 773 F.3d
536, 543 (4th Cir. 2014)(noting that every circuit to address
the issue has concluded that the defendant bears the burden of
demonstrating

that

it

is

entitled

to

Eleventh

Amendment

immunity).
The
whether

central

issue

Advantage

Amendment purposes.

is

presented
an

“arm

of

by
the

Advantage’s
state”

motion

for

is

Eleventh

To help define whether a public entity is

5

an

“arm

of

the

state,”

courts

have

distinguished

between

entities that constitute “arms of the state” and entities that
constitute political subdivisions of the state.
which

includes

political

counties,

subdivisions

of

municipal
the

Eleventh Amendment immunity.

The latter,

corporations,

state,

typically

do

or

similar

not

enjoy

See Lightfoot v. Henry Cty. Sch.

Dist., 771 F.3d 764, 768 (11th Cir. 2014).

Thus, to determine

whether a state-law public entity like Advantage is entitled to
Eleventh

Amendment

Advantage

“should

immunity,
be

treated

the
as

Court

an

‘arm

considers
of

the

whether

State’

Georgia, or as a county or similar political subdivision.”

of
Id.

(quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 280 (1977)).
This

determination

must

be

“made

‘in

light

of

the

particular function in which [Advantage] was engaged when taking
the actions out of which liability is asserted to arise.’”
(quoting
potential

Manders,
liability

Miller’s employment.

338

F.3d

arises

at
from

1308).
its

Here,

decision

Id.

Advantage’s
to

terminate

The Court therefore analyzes Advantage’s

claim of Eleventh Amendment immunity in light of Advantage’s
function as an employer.

Specifically, the Court must determine

6

whether the present record establishes that Advantage acts as an
“arm of the state” when it terminates employees like Miller.2
Four factors guide the Court’s analysis: (1) how state law
defines community service boards; (2) what degree of control the
state maintains over the community service board; (3) where the
community

service

board

derives

its

funds;

and

(4)

who

is

responsible for judgments against the community service board.
Manders,

338

F.3d

at

1309.

Advantage has failed to

Based

on

the

present

record,

establish that any of these

Manders

factors weigh in favor of granting Eleventh Amendment immunity.
A.

Georgia Law Defining Community Service Boards

Georgia law establishes community service boards as part of
a

legislative

developmental

policy

“to

disability,

provide

adequate

addictive

mental

disease,

disability services to all its citizens.”

and

health,
other

O.C.G.A. § 37-2-1(b).

The applicable statute provides that “[e]ach community service
board shall be a public corporation and an instrumentality of
the state . . . .”
record,

as

O.C.G.A. § 37-2-6(a).

indicated

by

provisions

the

But the legislative
Georgia

legislature

enacted, supports the conclusion that the legislature did not
2

Advantage argues that it fired Miller due to her failure to complete
state required Multi-Information Consumer Profiles.
Thus, Advantage
contends that the relevant function for determining Eleventh Amendment
immunity is its compliance with the state mandated Profiles.
Def.’s
Supp. Br. in Supp. of Mot. to Dismiss 5-6, ECF No. 47. This argument
is meritless because Advantage’s potential liability does not arise
from its compliance with the state requirements.
It arises from the
fact that it terminated Miller.

7

intend for community service boards to be “arms of the state.”
The legislature expressly provided:
The community service boards shall be public bodies
but shall not be considered agencies of the state or
any specific county or municipality. Such community
service boards are public agencies in their own right
and shall have the same immunity as provided for
counties.
O.C.G.A. § 37-2-11.1(c)(1)(emphasis added).
If this provision were the entire record on the issue of
how

Georgia

factor

for

Eleventh

law

treats

determining

Amendment

community
whether

immunity

against finding immunity.
The

Georgia

Supreme

service

such

would

boards,

boards

decisively

are

this

first

entitled

tilt

the

to

scales

But the issue is more complicated.

Court

has

ruled

that

the

legislature’s

attempt to statutorily define community service boards as having
the state-law immunity of counties conflicts with the Georgia
Constitution.

Youngblood

v.

Gwinnett

Rockdale

Newton

Comty.

Serv. Bd., 273 Ga. 715, 716, 545 S.E.2d 875, 877 (2001).

The

Georgia Supreme Court, therefore, disregarded the legislature’s
attempt

and

held

department[s]
immunity.

or

Id.

that

community

agenc[ies]”
This

service

entitled

holding

boards

are

“state

to

state-law

sovereign

arguably

conflicts

with

the

legislature’s intent, but it is not inconsistent with a finding
that these community service boards are not entitled to federal
Eleventh Amendment immunity.

8

In Youngblood, the Georgia Supreme Court held that O.C.G.A.
§ 37-2-11.1(c)(1)
Constitution.
77.

is

unconstitutional

under

the

Georgia

Youngblood, 273 Ga. at 715-16, 545 S.E.2d at 876-

The court reasoned that community service boards function

as “state agencies” under Georgia law.
at 877.

Id. at 716, 545 S.E.2d

Thus, it violates the Georgia Constitution for the

General Assembly to equate them with counties for state immunity
purposes.
Supreme
which

Id. at 715-16, 545 S.E.2d at 876-77.

Court

enjoy

has

recognized

state-law

that

sovereign

not

all

immunity,

state” for Eleventh Amendment immunity.

But the Georgia

“state
are

agencies,”

“arms

of

the

See Hines v. Ga. Ports

Auth., 278 Ga. 631, 636-37, 604 S.E.2d 189, 194-95 (2004)(“A
state court decision that an organization is an ‘agency’ of the
state for purposes of state-conferred immunity is different from
a determination under federal law as to whether an organization
is an ‘arm of the state’ for Eleventh Amendment purposes.”).
Particularly relevant here is the distinction between Georgia
state-law

immunity

and

Eleventh

Amendment

immunity

regarding

political subdivisions of the state: Georgia considers political
subdivisions “state agencies” entitled to state-law immunity,
but

federal

Eleventh

Amendment

immunity

political subdivisions of the state.
770

&

778

counties,

(noting

which

are

that

does

not

9

protect

See Lightfoot, 771 F.3d at

“Georgia . . . extends

clearly

not

immune

under

immunity
the

to

Eleventh

Amendment” and holding that Georgia school districts are not
entitled to Eleventh Amendment immunity, even though they are
entitled to Georgia state-law immunity).

Thus, Georgia law’s

classification of community service boards as “state agencies”
does not indicate whether Georgia considers community service
boards “arms of the state” or political subdivisions.
Georgia’s statutory
community

service

governance

boards

share

scheme
more

also

suggests

that

characteristics

with

political subdivisions than with entities that are treated as
“arms of the state.”

For example, community service boards are

governed by governing boards whose members are appointed by the
county

authorities

in

the

area

serves, not by state officials.

the

community

service

board

See O.C.G.A. § 37-2-6(b); cf.

United States ex rel. Lesinski v. S. Fla. Water Mgmt. Dist., 739
F.3d 598, 603 (11th Cir. 2014)(holding that the water management
district functioned as an “arm of the state” where the state,
through a board appointed by the Governor, directly governed the
water management district).
over

community

indicates

that

service
Georgia

Georgia’s delegation of authority

boards
created

to

local

community

political
service

bodies

boards

to

function as political subdivisions, which are not entitled to
Eleventh Amendment immunity.

See Lightfoot, 771 F.3d at 771

(“[T]he Eleventh Amendment shields an entity . . . only when it
is . . . the

direct

means

by

which

10

the

State

acts . . . .”

(alterations in original)(quoting Port Auth. Trans-Hudson Corp.
v. Feeney, 495 U.S. 299, 313 (1990)(Brennan, J., concurring in
part and concurring in the judgment))).
The Court also observes that the Georgia Supreme Court in
Youngblood

did

not

hold

that

community

entitled to Eleventh Amendment immunity.

service

boards

were

And other district

court decisions since Youngblood have not found that decision to
be an obstacle to finding that community service boards are not
“arms

of

the

state”

for

Eleventh

Amendment

immunity.

See

Johnson v. Ogeechee Behavioral Health Servs., 479 F. Supp. 2d
1357,

1362-66

(S.D.

Ga.

2007);

Peery

v.

Serenity

Behavioral

Health Sys., No. CV106-172, 2009 WL 1228446 (S.D. Ga. May 4,
2009); see also Lightfoot, 771 F.3d at 771 (“[I]t is federal
law, not state law, that ultimately governs whether an entity is
immune under the Eleventh Amendment.”).
Considering the entire body of law regarding how Georgia
defines its community service boards, the Court concludes that
they are not deemed to be “arms of the state” but are more
closely akin to political subdivisions.

Thus,

this factor

should weigh against a finding that Advantage is entitled to
Eleventh Amendment immunity based on the present record.

But

even giving Advantage the benefit of the doubt that the law is
somewhat

unclear

on

this

point,

this

factor

is

inconclusive and thus neutral in the Court’s evaluation.

11

at

best

B.

Where Georgia Law Vests Control

The Court next examines where state law vests control over
the community service board.
record

establishes

authority

of

that

their

Manders, 338 F.3d at 1320.

community

governing

independence from state control.

service

boards,

boards,

maintain

The

under

the

substantial

Specifically, Advantage offers

no evidence that the state exercises control over Advantage’s
employment

termination

decisions.

And

the

Court

finds

Advantage’s argument that the state exercises general control
over Advantage unpersuasive.
below,

the

Court

concludes

Thus, as explained more thoroughly
that

the

control

factor

weighs

heavily against granting Eleventh Amendment immunity.
1.

Community
Autonomy

Service

Board

and

Governing

Board

Under Georgia law, community service boards are subject to
the control of governing boards whose members are appointed by
the county authorities of the area that the community service
board serves.

O.C.G.A. § 37-2-6(b).

the

to

authority

delegate

“any

The governing boards have

power,

authority,

duty,

or

function” to the community service board executive director or
staff.

O.C.G.A.

§ 37-2-6.1(a)(1).

Thus,

community

service

boards operate primarily under local control or autonomously.
For

example,

the

community

service

board’s

relationship

with the state is a voluntary contractual relationship.

12

See

O.C.G.A. § 37-2-6(a)(“[C]ommunity service boards may enroll and
contract

with

the

[Department

of

Behavioral

Developmental Disabilities] . . . .”).

Health

and

Community service boards

may change or end this contractual relationship by converting to
a

private

nonprofit,

a

unit

of

the

county

government,

a

component part of a hospital authority, or ceasing operations
without

state

approval.

See

O.C.G.A.

§ 37-2-6.4(a)(indicating

that the community service board may convert with the approval
of their governing board and county authorities only); O.C.G.A.
§ 37-2-6.5(a)(indicating that the community service board may
cease operations by a joint act of the community service board,
the governing board, and the county authorities in the area the
community service board serves).
Additionally, Georgia law grants community service boards,
under the authority of their governing boards, the power to:
make

and

enter

contracts;

acquire,

sell,

convey,

lease,

or

otherwise dispose of real and personal property; fix employee
compensation; receive and administer grants and gifts; establish
fees; accept appropriations and loans; establish a seal; and
incur

debts.

O.C.G.A

§ 37-2-6.1(b).

This

broad

grant

of

authority demonstrates the state’s lack of direct control over
community

service

boards.

See

Lightfoot,

771

F.3d

at

772

(considering the fact that “school board may purchase property,
borrow money, enter contracts, and issue bonds” as evidence of

13

the

school

districts’

“substantial

autonomy

over

their

affairs”).
2.

Advantage Fails to Establish that the State
Controls Its Employment Termination Decisions

Community service boards also retain autonomy over their
employment practices.
choose

whether

O.C.G.A.

and

For example, community service boards may
how

to

provide

§ 37-2-6.1(b)(7)(stating

employee

that

the

benefits.

community

board “may provide” certain employee benefits).
expressly

provides

that

employees

working

for

See

service

Georgia law
the

community

service board are “community service board employees,” not state
employees.

O.C.G.A. § 37-2-11.1(c)(1).

Regarding
community

service

employees”
system.
1.

employment

for

the

board

termination,
employees

purposes

of

Advantage

are

the

“deemed

state

of

claims
to

that

be

state

Georgia

merit

Def.’s Mem. in Supp. of Mot. to Dismiss 7, ECF No. 34-

Advantage also notes that “classified employees” under the

state merit system are “employed and dismissed in accordance
with the rules and regulations of the State Personnel Board.”
O.C.G.A. § 37-2-6.2(a)(2).

Advantage, however, does not point

to evidence that Miller was covered by the state merit system.
Additionally, Georgia law indicates that, even if Miller was
covered by the state merit system, she was not a “classified
employee.”

Thus, the Court finds that Advantage fails to show

14

that

the

state

controls

Advantage’s

termination

of

employees

like Miller.
In support of its contention that Miller was covered by the
state

merit

system,

Advantage

cites

O.C.G.A.

§ 37-2-6.2

and

Youngblood’s citation of O.C.G.A. § 37-2-6.2(a)(2) and O.C.G.A.
§ 37-2-6.1(b)(7).

Def.’s Mem. in Supp. of Mot. to Dismiss 7,

ECF No. 34-1; Def.’s Supp. Br. in Supp. of Mot. to Dismiss 7,
ECF

No.

47.

None

of

these

provisions

support

Advantage’s

argument.
First, O.C.G.A. § 37-2-6.2 governs state employees who were
transferred to community service boards in 1994 and instructs
that they “shall retain all existing rights under [the rules of
the State Personnel Board].”
in

the

record

indicates

O.C.G.A. § 37-2-6.2(a).

that

Miller

employment to Advantage in 1994.

transferred

Nothing

from

state

Thus, O.C.G.A. § 37-2-6.2 is

irrelevant to Advantage’s employment of Miller.
Second, the current version of O.C.G.A.
says

nothing

about

the

state

merit

system.3

§ 37-2-6.1(b)(7)
In

2001,

when

Youngblood was decided, a former version of O.C.G.A. § 37-26.1(b)(7) expressly included community service board employees
in the state personnel merit system:

3

The provision currently states that community service boards “may
provide, either independently or through contract with appropriate
state or local government entities” certain employee benefits.
O.C.G.A. § 37-2-6.1(b)(7).

15

Each community service board shall comply with the
provisions of Chapter 20 of Title 45, relating to the
state personnel administration, and each employee of
such board shall be a covered employee . . . , subject
to the rules and regulations of the state merit
system.
O.C.G.A. § 37-2-6.1(7)(2003).
Today, however, the provision governing whether community
service board employees are subject to the state merit system is
found at O.C.G.A. § 37-2-6.1(b)(9) which states:
Each community service board shall establish and
maintain a personnel program for its employees and fix
the compensation and terms of compensation of its
employees; provided however, that each community
service board shall comply with the provisions of [the
code
chapter
governing
state
personnel
administration], for so long as and to the extent that
each employee of such board remains subject to the
rules and regulations of the State Personnel Board.
O.C.G.A. § 37-2-6.1(b)(9)(emphasis added).
In fact, the express inclusion of community service board
employees in the state merit system has not been a part of the
statute since July 2006.
2006).

See O.C.G.A. § 37-2-6.1(7)(July 1,

Thus, Advantage’s citations are irrelevant, outdated,

and do not support its claim that Miller was covered by the
state merit system.

Considering the statutory amendment, Miller

may have been covered by the state merit system when she was
initially employed in 2002, but the statutory revision in 2006
indicates that her coverage may have been phased out.
Even if the Court assumes that Miller “remain[ed] subject
to the rules and regulations of the State Personnel Board” under
16

the current statute, O.C.G.A. § 37-2-6.1(b)(9), that alone is
insufficient

to

show

that

the

state

exercises

control

Advantage’s termination of employees like Miller.

over

Under the

state merit system, only “classified employees” are subject to
special termination procedures.
(14);

see

also

Att’y

Gen.

See O.C.G.A. § 45-20-2(13) &

Op.

No.

20-03-2,

Employees

of

Community Service Boards Hired After July 1, 1996 Are Not in the
Classified Service of the State Merit System, 2003 WL 136235, at
*1 (Jan. 10, 2003)(“[T]he most significant distinguishing factor
between employees in the classified and unclassified service is
that only employees in the classified service are provided a
formal statutory review process . . . upon dismissal . . . .”).
And,

under

Georgia

“classified

law,

no

employee.”

employee

O.C.G.A.

hired

after

§ 45-20-2(2);

1996

is

Att’y

a

Gen.

Opinion No. 03-2, at *3.4

Here, Miller’s relevant tenure with

Advantage

and,

began

in

2002

“classified employee.”

therefore,

she

was

not

a

Thus, even if the Court assumes that

Miller’s state merit system coverage was not phased out, Miller
was at most an “unclassified” employee” employed “at will.”

See

O.C.G.A. § 45-20-2(13) & (14).
Advantage
exercises

fails

control

to

over

offer

any

termination

4

evidence

that

the

state

decisions

for

“at

will”

This Georgia Attorney General Opinion relies on the former version of
O.C.G.A. § 37-2-6.1(b)(7).

17

employees.

Additionally,

Advantage
Miller.

complied

with

the

record

state

does

procedures

not

indicate

when

it

that

terminated

Advantage has simply failed to establish that the state

exercises control of Advantage’s termination of employees like
Miller.
3.
In

State Control of Advantage’s Operations Generally

its

initial

brief,

Advantage

argued

that

the

exercises control over Advantage’s operations generally.

state
As the

previous discussion has established, the present record does not
support this conclusory allegation.

Advantage’s reliance upon

O.C.G.A. § 37-2-6.1(d) is misplaced.
declares

that

property

and

demonstrate

community
thus

not

sufficient

service

subject
state

to

Although this provision

board
state

control

property
taxes,

over

that

is

it

public

does

property

not
to

warrant a finding that community service boards are “arms of the
state.”
way.

At best, this fact does not tilt the balance either
See

Peery,

2009

WL

1228446,

*6

n.11

(dismissing

an

assertion that each community service board’s property is public
property as too vague to show control).
O.C.G.A.
cause.

§ 37-1-40

likewise

does

not

help

Advantage’s

That provision requires the Department of Behavioral

Health and Developmental Disabilities to “adopt and promulgate
written rules, regulations, and standards . . . which shall be
the basis of state financial participation in mental health,

18

developmental

disabilities,

and

addictive

diseases

programs.”

In light of Advantage’s autonomy over the function at issue in
this case, compliance with state regulation to receive state
funds is insufficient to show that the state controls Advantage
as an “arm of the state.”
(concluding

that

insufficient

to

state
show

See Lightfoot, 771 F.3d at 773-74

regulation
the

to

requisite

receive
control

funding
for

was

Eleventh

Amendment immunity when the school districts at issue retained
substantial autonomy).
Advantage also points to Youngblood’s citation of O.C.G.A.
§ 37-2-6(h)
however,

as

that

evidence
the

of

control.

governing

This

provision

states,

board

each

community

service

of

board must adopt bylaws and operational policies and guidelines
to

address

board

appointment

statutory requirements.

procedures,

terms,

O.C.G.A. § 37-2-6(h).

and

other

The fact that

the state determines the process for appointing the governing
board is insufficient state control for this factor to favor
Eleventh Amendment immunity.
(finding

that

the

fact

See Lightfoot, 771 F.3d at 772

that

the

state

established

the

qualifications for school board members, the manner in which
they are elected, their terms of office, and the procedures for
their meetings was insufficient to show state control of the
school districts).

19

Finally, Advantage cites O.C.G.A. § 37-2-10 as evidence of
state

control.

This

provision

permits

the

state

to

assume

responsibility for the community service board’s operations upon
notification
services.

of

the

board’s

inability

to

provide

adequate

Other courts have relied on this provision to support

a finding that the state maintains some control over community
service

boards.

See

Peery,

2009

WL

1228446,

at

*6-*7

(determining that the control factor was “at best a wash”).

The

Eleventh Circuit has held, however, that similar emergency state
removal provisions are insufficient to show the requisite state
control

for

Eleventh

Amendment

immunity.

See

Abusaid

v.

Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1306-1310
(11th

Cir.

2005)

(holding

that

the

Florida

sheriff

was

not

controlled by the state when enforcing a county ordinance even
though the Governor retained authority to remove or enlist the
sheriff under extraordinary circumstances); see also Lightfoot,
771 F.3d at 772 (finding that the school district failed to
establish

the

purposes”

even

“requisite
though

the

control
Governor

for
had

Eleventh
authority

Amendment
to

suspend

school board members if a school became at risk of losing its
accreditation).
Additionally, no evidence exists in the present record that
Advantage was facing a crisis or that the state had taken over
operations of Advantage at the time of Miller’s termination.

20

The

mere

whether

possibility
the

state

of
had

a

state

meaningful

decision to terminate Miller.
any

evidence

control.

that

takeover

Miller’s

has

control

no

over

bearing

on

Advantage’s

Advantage has failed to point to
termination

was

subject

to

state

Instead, the record indicates that community service

boards function primarily independently and under the authority
of their governing boards.

Accordingly, the Court finds that

the control factor weighs against granting Advantage Eleventh
Amendment immunity.
C.

Source of Funding

Advantage argues that the source of its funding supports
extending Eleventh Amendment immunity to it in this action.

In

support of this argument, Advantage cites the deposition of Fred
Eckhardt
funding

for

the

from

the

proposition
state.

that

But

it

that

receives

testimony

most

does

of

not

its

quite

support the proposition for which it is cited.
In

response

to

a

question

asking

about

Advantage’s

“external funders,” Eckhardt replies, “Primarily—well, the state
though

their

fee

for

service

Medicare, commercial insurance.”
27.5

This

testimony

is

and

Eckhardt Dep. 39:5-8, ECF No.

ambiguous

5

grant. . . . Medicaid,

as

to

whether

the

word

Eckhardt also states that the state grant-in-aid method was the
“primary funding source for community mental health in Georgia” until
the state switched to the fee-for-service system under which it now
operates. Id. at 40:14-21. This statement is irrelevant because the

21

“primarily” refers to the state funding or to all of the funding
methods that Eckhardt lists.
Advantage

receives

Even assuming that Eckhardt meant

“primarily”

state

funding

alone,

this

statement is too vague and subjective to determine that this
factor weighs in favor of granting Eleventh Amendment immunity.6
Thus, the Court concludes that Advantage has failed to show that
it receives most of its funding from the state.
the

third

factor

immunity.

weighs

against

granting

Consequently,

Eleventh

Amendment

The Court hastens to add that even if Advantage had

established that most of its funding came from the state, this
would not have been sufficient, in light of the other factors,
to tilt the balance in favor of a conclusion that Advantage is
an “arm of the state” for Eleventh Amendment immunity purposes.
D.

Liability for Judgments

The

state

Advantage.
factor

is

not

directly

liable

for

judgments

O.C.G.A. §§ 37-2-6(a); 37-2-11.1(c)(1).

weighs

strongly

against

granting

Eleventh

against

Thus, this
Amendment

grant-in-aid method was being phased out during Miller’s employment.
Id. at 41:23-42:6.
6
Advantage is in the best position to offer evidence of its funding
percentages.
Advantage in fact attached two exhibits to its
supplemental brief in support of the present motion.
Instead of
submitting an affidavit stating the percentages of funding Advantage
receives from each source, however, Advantage relies on the facts from
previous cases involving other community service boards to establish
that it receives most of its funding from the state. The Court cannot
make a factual determination about Advantage’s funding based on the
funding of different community service boards in previous cases. This
is particularly true when, as here, the state funding model for
community service boards recently changed.

22

immunity.

Adusaid, 405 F.3d at 1313 (“[T]he fact that the state

is not liable . . . weighs heavily against extending the state’s
Eleventh Amendment immunity to the challenged conduct . . . .”).
Nevertheless, Advantage argues that a judgment against it
would be costly for the state because Advantage relies heavily
on state funds to support its operations.

But Advantage does

not point to any evidence to support this assertion.
cannot

speculate

about

affect the state.

how

a

judgment

against

The Court

Advantage

may

Instead of explaining how a judgment against

Advantage might affect the state, Advantage cites Manders and
Lesinski for support.

Both cases are distinguishable.7

In Manders, the three Eleventh Amendment factors besides
liability weighed in favor of granting immunity.
F.3d at 1328.

Manders, 338

Thus, the Eleventh Circuit concluded that the

fact that the state was not liable for judgments against the
sheriff “d[id] not defeat [the sheriff’s] immunity claim.”
id. at 1328.

See

Here, contrary to Manders, the first factor is

7

Advantage also argues that the state is implicated by a judgment
against it because Advantage is insured by the Georgia Department of
Administrative Services.
Def.’s Br. in Supp. of Mot. to Dismiss 9,
ECF No. 34-1; see also Pl.’s Mot. in Limine Ex. A, Def.’s Initial
Disclosure III, ECF No. 42-1 (indicating that Advantage maintains
insurance). It appears, however, that Advantage pays premiums to the
Department to maintain this insurance.
See O.C.G.A § 45-91(c)(providing for the streamlining of community service board premium
payments). Thus, this insurance relationship does not establish that
the state’s treasury is directly liable for a judgment against
Advantage.
To the contrary, it shows that Advantage purchases
insurance to cover its liabilities.

23

inconclusive and the other two factors weigh against granting
immunity.
Lesinski

is

also

distinguishable.

In

Lesinski,

Florida

created water management districts to comply with its obligation
under the Florida Constitution to “conserve and protect [the
State’s] natural resources and scenic beauty.”

Lesinski, 739

F.3d at 605 (alteration in original)(quoting Fla. Const. art.
II,

§ 7(a)).

The

Lesinski

court

reasoned

that,

if

a

water

management district accrued a substantial judgment, the state of
Florida would have to either pay the judgment for the district
or “shirk[] its constitutionally mandated duty.”

Id.

Thus, the

court concluded that Florida’s treasury was directly implicated
by a judgment against the water management district.

Id.

Here, Georgia did not create community service boards to
fulfill

a

specific

constitutional

obligation.

Thus,

Georgia

will not have to choose between paying a judgment for Advantage
and “shirking its constitutionally mandated duty.” Additionally,
community service boards’ flexible contractual relationship with
the state suggests that Georgia would not have to choose between
paying

a

judgment

for

Advantage

services to its citizens either.

and

providing

mental

health

It appears that if a community

service board was unable to survive a judgment against it, the
state

could

contract

with

a

new

board

to

take

its

place.

Advantage has presented no evidence or argument to the contrary.

24

Thus, the Court cannot conclude that Advantage has established
that

Georgia’s

treasury

would

judgment against Advantage.
the

fourth

factor

weighs

be

directly

implicated

by

a

Accordingly, the Court finds that
against

granting

Eleventh

Amendment

immunity.
CONCLUSION
Balancing

the

Manders

factors,

the

Court

finds

that

Advantage is not an “arm of the state” for Eleventh Amendment
purposes.

Therefore, it is not entitled to immunity and is

subject to the jurisdiction of this Court.

Accordingly, its

motion to dismiss (ECF No. 34) is denied.
IT IS SO ORDERED, this 10th day of November, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

25