Magistrate Judge Carol B. Whitehurst of the U.S. District Court Western District has recommended that a federal lawsuit against the state psychology board filed by Dr. Eric Cerwonka, be dismissed based on lack of federal jurisdiction.
In August 2017, Cerwonka filed a lawsuit in federal court against the Louisiana State Board of Examiners of Psychologists (LSBEP) alleging violations of his Constitutional rights. This followed a July 2017 ruling by 19th Judicial District Court Judge Michael Caldwell negating a February 2017 LSBEP disciplinary decision against Cerwonka, on grounds that the board’s methods “… violated the Constitutional rights of Dr. Cerwonka.”

In Whitehurst’s “Report and Recommendation,” filed March 26, she finds that the Louisiana State Board of Examiners falls under the umbrella of state immunity provided by the Eleventh Amendment.
Dr. Cerwonka and his attorney have fourteen days from service of the Report and Recommendation to file specific, written objections.

In Whitehurst’s Report, she wrote, “The Eleventh Amendment bars an individual from suing a state in federal court unless the state consents or Congress has clearly and validly abrogated the state’s sovereign immunity,” wrote Whitehurst. Citing Fairley v. Louisiana, (5th Cir. 2007), a lawsuit involving the state medical board, Whitehurst wrote, “A suit against a state agency or department is considered a suit against the state under the Eleventh Amendment.”

Whitehurst recommends that the motion to dismiss for lack of federal jurisdiction be granted, and that the plaintiff’s claims against the Board be denied and dismissed without prejudice. (In a civil case, dismissal “without prejudice” is a dismissal that allows for refiling of the case.)

Since Whitehurst recommends dismissal on jurisdictional grounds, she explained that she makes no recommendation on the LSBEP’s request for a dismissal based on failure to state a claim.

“When a district court finds it lacks subject matter jurisdiction, its determination is not on the merits of the case, and does not bar the plaintiff from pursuing the claim in a proper jurisdiction,” she wrote.

In the Report, Whitehurst stated that the party asserting jurisdiction bears the burden of proof for a 12(b)(1) motion to dismiss, such that, “the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.”

“The plaintiff’s argument that the Board’s financial autonomy prohibits the Board from being a state agency is not persuasive,” wrote Whitehurst.

“A legally sufficient complaint must establish more than a ‘sheer possibility’ that plaintiffs’ claim is true. Id. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action.”

“Although acknowledging there is no jurisprudence directly finding that the Louisiana State Board of Examiners of Psychologists, which was created by the Louisiana Department of Health and Hospitals (“LDHH”), is a state agency, defendant argues the Board is similar to the Louisiana
State Board of Medical Examiners, which was also created by the LDHH, and which has been held to be a state agency entitled to Eleventh Amendment immunity. Because the Board argues it has not waived its immunity from suit, it asserts the plaintiff’s claims against it are barred.

In Fairley, the Fifth Circuit recognized that the Louisiana State Board of Medical Examiners is a state agency for purposes of Eleventh Amendment Immunity.

“The Louisiana State Board of Examiners of Psychologists argues that the statute creating its existence and the statute creating the Board of Medical Examiners are similar, with similar powers and rights being granted to each Board, and with each Board being subject to the provisions of La. Rev. Stat. 36:803.4. Each board is created within the Louisiana Department of Health and each is given oversight over their respective fields.”

Attorney for Cerwonka, Brown Sims attorney Mr. L. Lane Roy, had argued in the “Opposition of Plaintiff to Defendant’s Motion to Dismiss,” filed on November 30, 2017:

“An important case for this Court’s consideration on the issue of the Eleventh Amendment Immunity is the United States Supreme Court decision in the matter of North Carolina State Board of Dental Examiners vs. Federal Trade Commission, 135 Sup. Ct.1101(2015). While the North Carolina State Board case involves as one of its principal issues federal anti-trust laws, one of the main topics decided by the court was whether the State of North Carolina possessed Eleventh Amendment immunity from application of the federal law and its being subject to suit before the federal courts. In a lengthy discussion, the court found that North Carolina did not possess Eleventh Amendment immunity.” […]

“Here, there is absolutely no showing whatever that the State of Louisiana had active control over the Board in this matter and in fact, the exact opposite is correct.”

“The State has virtually no control of this agency as shown by the decisions that its rendered in this matter, not involving a state person but private attorneys hired for the persons, private investigators, private members of the community acting as judges at the hearing before the Board, private employees acting as persons, though illegally, who made decisions on interim suspension without a hearing whatsoever,” Mr. Roy wrote.

Counsel for the LSBEP, Attorney General Jeff Landry, signed for by Jeremiah Sams, Assistant Attorney General, wrote that, “Under the Eleventh Amendment of the United States Constitution, an unconsenting state is immune from any lawsuit seeking monetary damages or equitable relief brought in federal courts by her own citizens or by the citizens of another state …” And, he wrote, “The Board is an agency of the State of Louisiana.”

In another section of the Attorney General’s “Motion to Dismiss,” Sams wrote, “Alternatively, Plaintiff has failed to state a claim against the Board under 42 U.S.C. §1983, as the Board is not a “person” under the meaning of §1983.

“To state a claim under §1983, a plaintiff must establish that a person, acting under color of law, deprived him of some constitutional right.

“State agencies and state officials acting in their official capacity are not ‘persons’ within the meaning of the statute, and it is a well settled point of law that a state is not capable of being sued under 42 U.S.C. § 1983, as the state is not a “person” under 42 U.S.C. §1983.34” […] “Accordingly, Plaintiff’s §1983 claims against the Board should be dismissed.”

Cerwonka also filed an amendment to the complaint adding Ms. Jaime Monic, current Executive Director, to the lawsuit.

The matter of state supervison of the boards has been a topic for some legislators since the 2015 Supreme Court decision. In 2016 Senator Fred Mills put forth a measure creating the Task Force on Meaningful Oversight to help address compliance with the North Carolina v. FTC and minimize exposure to antitrust claims. In the Task Force’s report, in this case having to do with antitrust laws, authors wrote, “a board must satisfy two prongs in order to claim state action immunity.” One involves the “inherent, logical, or ordinary result of the exercise of authority delegated by the state legislature.” The second prong is “active supervision,” satisfied by having a state review and approval of board’s policies. Mills put forth legislation in 2017 to help remedy the supervision issue and also this year, in his SB 40.

According to a report by the Louisiana Legislative Auditor published in 2017, individuals can file general liability claims against the state because Louisiana waived sovereign immunity in the 1974 Constitution. State law limits damages to $500,000 for personal injury and wrongful death claims. However, there is no cap on economic damages or medical expenses, according to the report, “Types and Costs of General Liability Claims, Office of Risk Management.”

Between 2010 and 2015 the state paid over $42M in Constitutional and Civil Rights violations, the Auditor reported.