Miller v. Board of Trustees of The State Institutions of Higher Learning for the State of Mississippi et al

Filing 31

ORDER denying 23 Motion for Reconsideration. Signed by Magistrate Judge David A. Sanders on 9/12/18. (jcm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
SHERRY ANN MILLER
v.

PLAINTIFF
CIVIL ACTION NO. 1:18-CV-048-NBB-DAS

BOARD OF TRUSTEES OF THE INSTITUTE OF
HIGHER LEARNING FOR THE STATE OF MISSISSIPPI,
AND THE UNIVERSITY OF MISSISSIPPI

DEFENDANTS

ORDER DENYING MOTION TO RECONSIDER ORDER GRANTING DISCOVERY
LIMITED TO ELEVENTH IMMUNITY ISSUE
Before the Court is Defendants [23] Motion to Reconsider this Court’s [21] Order
Granting Discovery Limited to Eleventh Amendment Immunity Issue. Defendants argue this
Court committed a clear error of law by permitting the requested discovery, resulting in manifest
injustice.
Reconsideration may be granted to address “(1) an intervening change in controlling law,
(2) the availability of new evidence not previously available, or (3) the need to correct a clear
error of law or prevent manifest injustice.” Davis v. Louisville Mun. Sch. Dist., 2010 WL
1141097, *1 (N.D. Miss. Mar. 22, 2010). “Granting a motion for reconsideration, however, is ‘an
extraordinary remedy and should be used sparingly.’” Id. (quoting In re Pequeno, 240 Fed.
Appx. 634, 636 (5th Cir. 2007)).
First, Defendants argue this Court erred by granting Plaintiff discovery to determine
“whether the state has expressly and voluntarily waived its sovereign immunity, independent of
congressional condition,” because Plaintiff advanced a theory based solely on waiver
conditioned on the grant of federal funds. But, as this Court noted in its order, Plaintiff clarified
its position that, although the ADEA is not a statute by which Congress has exercised its powers
under the Spending Clause to condition receipt of federal funds on a waiver of Eleventh

Amendment immunity, “it does not mean that the State did not make some express waiver of its
Eleventh Amendment sovereign immunity.”1
Next, Defendants argue Plaintiff’s discovery requests “relate solely to immunity waiver
through acceptance of conditions in federal funding.” However, the Court does not read
Plaintiff’s requests so narrowly. Interrogatory No. 1 asks “whether or not Defendants are
currently receiving or have received in the past three (3) years any federal funds.” There is no
conditional limitation. Interrogatory No. 2 asks, if the answer to No. 1 is in the affirmative, to
“describe the amount and source of such funds.” Again, there is no conditional limitation.
Interrogatory No. 3 asks “whether, in connection with the receipt of any federal funds,
Defendants executed any contract document whereby they agreed to waive any immunities they
might have to employment discrimination suits” (emphasis added). Rather than being limited to a
Congressional condition, this interrogatory asks whether Defendants have executed any contract
whereby they agreed to waive any immunity they might have to employment discrimination
suits.
This is the heart of Plaintiff’s requested discovery. Either the State has agreed to waive its
immunity or it has not. There is a difference, subtle as it may be, in Congress conditioning
receipt of federal funds on the State’s waiver of immunity and the State voluntarily waiving that
immunity. See Watson v. Texas, 261 F.3d 436, 440 (5th Cir. 2001) ([U]nlike any other issue of
federal subject matter jurisdiction, [Eleventh Amendment immunity] can be waived by the
state.”).
A state’s waiver must be unequivocal, but it can be either express or implied. Where
Pl. Reply Br. [20] at 2. Defendants now argue that this was an impermissible “change in course” presented in
Plaintiff’s Reply. However, Defendants have waived and are barred from making that argument. See Df. Response
Br. [19] at n.2. (“If Miller’s rebuttal expands the scope of her arguments, Defendants advise the Court they will seek
leave to file a sur-rebuttal to address any new or non-briefed arguments.”). No sur-rebuttal was sought, and Plaintiff’s
clarification is deemed included in her original argument.
1

2

waiver is by express statement, the intent to waive immunity from suit in federal
court must be stated by the most express language or by such overwhelming
implications from the text as will leave no room for any other reasonable
construction.
Id. at 440-41 (internal citations omitted). Plaintiff seeks to determine whether the State has
voluntarily, expressly, and unequivocally waived its Eleventh Amendment immunity. The State
knows whether it has entered into such a contract.2
If Defendants executed a contract whereby they agreed to waive immunities to
employment discrimination suits, Request for Production No. 1 seeks copies of such contract.
Request for Production No. 2 seeks copies of all contracts between Defendants and any agency
of the United States “relating to any conditions that may be imposed upon Defendants as a
condition to receipt of federal funds.” While such a request is broader than Request for
Production No. 1, Request for Production No. 2 helps to ensure that a waiver does not go
undiscovered through a narrow interpretation of Request for Production No. 1.
Defendants bemoan that the granted discovery forces them to “prove a negative.” On the
contrary. If there is no waiver, there is no waiver. Defendants need only candidly answer the
requested discovery. The onus remains on the Plaintiff to show that Eleventh Amendment
immunity has been waived. The discovery responses will aid her in that quest.
Again, the Court notes that a waiver such as the one Plaintiff seeks to discover is highly
unlikely. The State’s Eleventh Amendment immunity is one that must be closely protected,
having both constitutional and jurisdictional implications. But this Court must know whether that
immunity applies to this case. Either it does, or it doesn’t. Either this Court has jurisdiction, or it

2

Defendants argue an express waiver must be by statute or by contract entered into by the parties to the suit.
Defendants’ cited authority does not support this argument, and the Court can find none that does. A contractual
agreement with the United States, or any of its agencies or departments, to waive Eleventh Amendment immunity is
an express waiver of Eleventh Amendment immunity.

3

doesn’t. That is the question this Court has to answer, and the requested discovery should aid this
Court in that inquiry.
The Motion for Reconsideration is DENIED. The parties shall have an additional
fourteen (14) days from the date of this Order to complete the limited discovery allowed herein.
SO ORDERED, this 12th day of September, 2018.

/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE

4