Case: 12-16192    Date Filed: 11/24/2014   Page: 1 of 7


                                                                      [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                     ___________________________

                             No. 12-16192
                         Non-Argument Calendar
                     ___________________________

                      Docket No. 4:11-cv-00883-KOB


EDWARD R. LANE,

                                                              Plaintiff-Appellant,

                                    versus

CENTRAL ALABAMA COMMUNITY COLLEGE,
STEVE FRANKS, in His Individual Capacity, and
SUSAN BURROW, in Her Official Capacity as Acting
President of Central Alabama Community College,

                                                          Defendants-Appellees.


                    ______________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                  _______________________________

                             (November 24, 2014)


ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
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Before MARTIN, FAY, and EDMONDSON, Circuit Judges.



PER CURIAM:


      The Court hereby vacates its prior opinion, issued on 8 October 2014, and

substitutes this corrected opinion.

      In Lane v. Cent. Ala. Cmty. Coll., 523 Fed. Appx. 709 (11th Cir. 2013) (per

curiam), we affirmed the district court’s grant of summary judgment in favor of

Steve Franks, former president of Central Alabama Community College

(“CACC”), in Lane’s 42 U.S.C. § 1983 civil action alleging retaliation in violation

of the First Amendment. We concluded -- based on existing Eleventh Circuit

precedent -- that Lane’s subpoenaed testimony at a federal criminal trial about acts

that he performed as part of his official duties as a CACC employee was not

speech made “primarily in [Lane’s] role as a citizen” and, thus, was not protected

by the First Amendment. 

We also said that, even if a First Amendment

violation had occurred, Franks would be entitled to qualified immunity from the

claim against him individually because Lane’s First Amendment right was not

clearly established under then-existing law. 

n.2. Because we determined

that no First Amendment violation occurred, we had no need to decide whether




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Franks was entitled to sovereign immunity from Lane’s claim against him in his

official capacity. 1 

.

       The United States Supreme Court granted certiorari and, in Lane v. Franks,

(2014), affirmed in part and reversed in part our decision and

remanded the case for further proceedings. The Supreme Court concluded that

Lane’s subpoenaed trial testimony was protected by the First Amendment. The

Supreme Court said that “[t]ruthful testimony under oath by a public employee

outside the scope of his ordinary job duties is speech as a citizen for First

Amendment purposes . . . even when the testimony relates to his public

employment or concerns information learned during that employment.” 

Because Lane testified about a matter of public concern, and because CCAC

offered no justification for treating Lane differently from other members of the

general public, Lane’s testimony was protected under the First Amendment. 

       Although the Supreme Court ruled that Lane’s speech was protected by the

First Amendment, the Court determined that the constitutional question had not

been “beyond debate” when Franks terminated Lane’s employment. 

As a result, Franks was entitled to qualified immunity from the claim made against



1
 Lane’s claim against Franks in his official capacity is now a claim against Susan Burrow, in her
official capacity as CACC’s acting President.
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him in his individual capacity. 

Court affirmed the dismissal

of Lane’s claim against Franks individually. 

had declined to decide -- and the parties had failed to argue on

certiorari review -- whether Franks (now Burrow) was entitled to sovereign

immunity from Lane’s official capacity claim seeking equitable relief, 2 the

Supreme Court remanded the case for further proceedings. 

address

the sovereign immunity issue.

       The district court concluded that Lane’s official-capacity claim against

Franks for equitable relief was barred by the Eleventh Amendment. We review the

district court’s ruling de novo. See Summit Med. Assocs., P.C. v. Pryor, 

, 1334 (11th Cir. 1999).

       Generally speaking, the Eleventh Amendment bars civil actions against state

officials in their official capacity “when the state is the real, substantial party in

interest.” Pennhurst State Sch. & Hosp. v. Halderman, 

, 908 (1984).

Pursuant to the exception established in Ex parte Young, 

(1908),

official-capacity suits against state officials are permissible, however, under the

Eleventh Amendment when the plaintiff seeks “prospective equitable relief to end

continuing violations of federal law.” See Summit Med. 

(emphasis in original).

2
 Lane has abandoned expressly his claim for money damages against Franks in his official
capacity. See Lane, 523 Fed. Appx. at 710 n.1.
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      Here, Lane seeks equitable relief in the form of reinstatement of his

employment. We have determined previously that requests for reinstatement

constitute prospective injunctive relief that fall within the scope of the Ex parte

Young exception and, thus, are not barred by the Eleventh Amendment. See Cross

v. Ala. State Dep’t of Mental Health & Mental Retardation, 

, 1503

(1995); Lassiter v. Ala. A & M Univ., Bd. of Trs., 

, 1485 (11th Cir.

1993), vacated on other grounds, 

(11th Cir. 1994).

      And given our precedents, nothing demonstrates to us that Lane’s requested

reinstatement is considerably different, implicating Alabama’s sovereignty

interests and funds so significantly that the Ex parte Young exception would be

inapplicable. In Idaho v. Coeur d’Alene Tribe, 

(1997), the

Supreme Court concluded that a state was entitled to Eleventh Amendment

protection from a suit asserting ownership in certain submerged land and navigable

waterways within the state. The Supreme Court noted that the relief sought was

“functional[ly] equivalent” to a quiet title action barred by the Eleventh

Amendment. 

Moreover, the requested relief would “diminish, even

extinguish, the State’s control [not just state ownership but the power to regulate or

affect in any way] over a vast reach of land and waters long deemed by the State to

be an integral part of its territory.” 

“particular and special

circumstances” of the case -- where the state’s sovereign interests “would be

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affected in a degree fully as intrusive as almost any conceivable retroactive levy

upon funds in its Treasury” -- the state was entitled to Eleventh Amendment

protection. 

      This case is not like Coeur d’Alene. Here, the special sovereignty interest is

lacking: this case does not involve land; Lane’s requested reinstatement is not the

“functional equivalent” of a form of relief otherwise barred by the Eleventh

Amendment. Cf. Summit Med. 

(distinguishing Coeur

d’Alene).

      That Lane’s reinstatement would require the State to pay Lane’s salary does

not trigger Eleventh Amendment protection. The Supreme Court has recognized

that compliance with the terms of prospective injunctive relief will often

necessitate the expenditure of state funds. See Edelman v. Jordan, 

,

1358 (1974). And “[s]uch an ancillary effect on the state treasury is a permissible

and often an inevitable consequence of the principle announced in Ex parte

Young.” 

light of our reinstatement precedents, we conclude that the district

court erred in dismissing Lane’s official-capacity claim against Franks as barred by

the Eleventh Amendment.




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       We affirm in part and vacate in part; and we remand the case for further

proceedings consistent with this opinion and with the Supreme Court’s decision in

Lane v. Franks, 

(2014). 3

       AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR

FURTHER PROCEEDINGS.




3
  We acknowledge that the C.I.T.Y. Program for which Lane served as Director is no longer in
existence. We are unconvinced that this fact, in and of itself, renders Lane’s request for
reinstatement moot, particularly where Lane has alleged that the program was merely
reorganized and renamed. But, should the district court determine that a constitutional violation
occurred, we suggest that it might be necessary for the district court to engage in additional
factfinding on this issue to determine what form of equitable relief is available to Lane.
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