Kourtney Rodgers v. State of LA Board of Nursing

Case: 16-30023 Document: 00513750657 Page: 1 Date Filed: 11/08/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-30023 FILED
November 8, 2016
Lyle W. Cayce
KOURTNEY S. RODGERS, Clerk

Plaintiff - Appellant

v.

STATE OF LOUISIANA BOARD OF NURSING,

Defendant - Appellee

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:15-CV-615

Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Louisiana charges the State of Louisiana Board of Nursing (“Board”)
with regulating the practice of nursing, licensing nurses, and accrediting
nursing schools. In carrying out these functions, the Board has established
criteria for accrediting and terminating the accreditation status of Louisiana
nursing schools.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-30023
One of the Board’s criteria is that each nursing program must maintain
an eighty percent first time passage rate by its candidates on the National
Council Licensure Examination for Registered Nurses. If a program fails to
achieve this passage rate, it is placed on conditional approval. A program
exhausts its ability to continue on a probationary status after three consecutive
years of conditional approval. And, at any time during this probationary
period, the Board may order a program to cease admitting new nursing
students and/or begin involuntary termination.
As of February 2015, the Grambling State University School of Nursing
(“Grambling”) had been on conditional approval for three consecutive years.
Consequently, when the Board verified that Grambling’s pass rate for 2014
and the first quarter of 2015 was again below the eighty percent threshold
requirement, the Board instructed Grambling to cease admitting new students
and involuntarily terminate its program.
Kourtney Rodgers, a Grambling student, filed a complaint against the
Board. She claimed that the Board violated the Sherman Act, 15 U.S.C. § 1,
and the Clayton Antitrust Act, 15 U.S.C. § 15(a), by restraining trade and
commerce with respect to nursing education because the Board singularly
relied upon an eighty percent passage rate to terminate Grambling’s program.
On September 15, 2015, the district court held a telephone status
conference related to Rodgers’ motion for a temporary restraining order
(“TRO”). The court set deadlines and page limits for opposition to the TRO, as
well as for any other responsive motions in the case. It then ordered the parties
to file opposition to the latter within ten days of the filing of the original
motion, setting a ten-page limit for opposition briefs. These instructions were
orally given and put into the text of a Briefing Notice and a docket entry.
On September 25, 2015, the Board filed a motion to dismiss under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). To the point, the Board
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No. 16-30023
contended that the court lacked subject matter jurisdiction because it was
entitled to Eleventh Amendment immunity (“sovereign immunity”) as an arm
of the state under the test in Earles v. State Bd. of Certified Pub. Accountants,
139 F.3d 1033 (5th Cir. 1998). The Board also averred that Rodgers failed to
state a claim because it was entitled to state action immunity (“Parker
immunity”) given that N.C. State Bd. of Dental Exam’rs v. F.T.C., 135 S. Ct.
1101 (2015) (“N.C. Dental Board”), asserted by Rodgers, was distinguishable.
Pursuant to the district court’s instructions, Rodgers was allowed a ten-
page opposition to the Board’s motion to dismiss, which was due on October 5,
2015. She filed a twenty-page response on October 9, 2015. The Board
immediately filed a motion to strike the response.
The district court granted the Board’s motion to strike on October 26,
2015. The court explained that not only was Rodgers’ response double the page
limit, it was also four days late. Moreover, Rodgers failed to file a timely
request for an extension of time or to seek leave to exceed page limits before
filing, as local rules required.
On December 18, 2015, the district court granted the Board’s motion to
dismiss the complaint. Because Rodgers had no substantive response to the
Board’s motion, the court independently researched and analyzed the legal
issues and objectively formulated arguments that Rodgers was attempting to
make in her brief. 1 The court properly began its analysis by assessing the
Board’s challenge to subject matter jurisdiction. 2 It found that sovereign
immunity and Parker immunity are distinct defenses and held that it had no

1Rodgers’ brief is found in the record as an exhibit attached to her combined motion
of October 16, 2015. It is clear that although the district court did not formally allow Rodgers’
brief, the court was familiar with the arguments that it contained, referencing them in its
dismissal order.

2 E.g., United States v. Tex. Tech. Univ., 171 F.3d 279, 286−87 (5th Cir. 1999).

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No. 16-30023
subject matter jurisdiction because the Board was entitled to sovereign
immunity under the Earles test.
Rodgers has timely appealed. She contends that the district court erred
because it: (1) abused its discretion in striking her response to the Board’s
motion to dismiss; and (2) used the wrong standard for sovereign immunity. 3
I.
A.
Because Rodgers seems to make it a cornerstone of her appeal, we begin
by considering whether the district court erred by striking Rodgers’ response
to the Board’s motion to dismiss. We review the grant of a motion to strike for
an abuse of discretion. Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d
169, 178 (5th Cir. 2007) (citations omitted).
Rodgers asserts that the district court erred in striking her response—
which was admittedly four days late and twice the page limit—because there
is no evidence that her failure to comply with the court’s directives prejudiced
the Board or caused undue delay of the proceedings.
Taking all of Rodgers’ arguments into account, we hold that the district
court did not abuse its discretion in granting the Board’s motion to strike. As
Rodgers points out, case law is clear: federal judges have the inherent power
to manage their own proceedings and control the conduct of those who appear
before them. E.g., Chambers v. NASCO, Inc., 501 U.S. 32, 43–44 (1991)
(citations omitted); Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir.
1995) (citations omitted). The court clearly and unambiguously established
page limits and deadlines both through oral instructions and in the Briefing

3 As Rodgers’ counsel clarified at oral argument, she is not challenging whether the
district court erred in: (1) applying sovereign immunity instead of Parker immunity; or (2)
analyzing sovereign immunity, if we find that the court used the proper test.

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No. 16-30023
Notice and a docket entry. Local rules explained how to proceed if Rodgers’
counsel sought additional time and pages. Furthermore, Rodgers was not
prejudiced by the district court’s dismissal. The court independently
researched and analyzed the legal issues, going so far as to attempt to
formulate arguments on Rodgers’ behalf. And nothing indicates that the court
would have altered its judgment if it had not stricken Rodgers’ response. See
Soliz v. Bennett, 150 F. App’x 282, 284–85 (5th Cir. 2005). Accordingly, the
court did not abuse its discretion in striking Rodgers’ brief.
B.
Rodgers further argues that the district court erred because it did not
import the second prong of the N.C. Dental Board test 4 from Parker immunity
to determine whether the Board was shielded by sovereign immunity. We
review a district court’s grant of a motion to dismiss under Rule 12(b)(1) de
novo. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citation
omitted).
In the context of antitrust suits, courts have recognized that both Parker
immunity and sovereign immunity are potential defenses for state entities.
E.g., Earles, 139 F.3d at 1034, 1044 (holding a state regulatory board immune
from federal and state antitrust laws under both sovereign immunity and
Parker immunity and its members immune from state antitrust laws under
sovereign immunity and federal antitrust laws under Parker immunity). We
conclude that sovereign immunity and Parker immunity are distinct doctrines,

4 Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., established a two-prong
test for Parker immunity: (1) “the challenged restraint must be ‘one clearly articulated and
affirmatively expressed as state policy’”; and (2) “the policy must be ‘actively supervised’ by
the State itself.” 445 U.S. 97, 105 (1980) (citation omitted). N.C. Dental Board clarified when
“[a] nonsovereign actor controlled by market participants” would be “cloaked with Parker
immunity” under the Midcal test. N.C. Dental Board, 135 S. Ct. at 1110–12. Consequently,
we refer to this test as the N.C. Dental Board test.
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providing different—if sometimes overlapping—spheres of protection from
private federal antitrust claims. Thus, their tests are not coterminous.
First, the doctrines differ in that they derive from different sources.
Sovereign immunity is derived primarily from the Eleventh Amendment. E.g.,
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 64 (1996). Parker immunity is
derived from statutory construction, legislative intent, and judicial deference
to federalism. Cmty. Commc’ns Co. v. City of Boulder, Colo., 455 U.S. 40, 53
(1982); Parker v. Brown, 317 U.S. 341, 350–51 (1943).
Second, the doctrines differ in that Congress cannot abrogate sovereign
immunity through antitrust legislation. Federal antitrust laws are
promulgated under the authority of the Commerce Clause. E.g., Parker, 317
U.S. at 348–49. Congress may not abrogate states’ sovereign immunity
through federal legislation under the Commerce Clause. Seminole Tribe, 517
U.S. at 64–66.
Third, case law implicitly recognizes that sovereign immunity and
Parker immunity are separate and independent sources of immunity from
private federal antitrust claims. E.g., Goldfarb v. Va. State Bar, 421 U.S. 773,
791–92, 792 n.22 (1975). In N.C. Dental Board, for example, the Supreme
Court held that a state regulatory board with a majority of members who
“engaged in the active practice of the profession it regulate[d]” was not
protected from Sherman Act liability by Parker immunity because it was not
actively supervised by the state. N.C. Dental Board, 135 S. Ct. at 1107, 1114,
1116–17. Importantly, the Court clarified that its decision was limited:
“members of regulated occupations” who “participat[ed] in state government”
could sometimes look beyond Parker immunity to sovereign immunity as a
defense. Id. at 1115 (citing Goldfarb, 421 U.S. at 792 n.22).
Fifth Circuit case law also demonstrates that sovereign immunity and
Parker immunity are independent doctrines. In Earles, this Court held that
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No. 16-30023
sovereign immunity and Parker immunity insulated a state regulatory board
and its members from “scrutiny . . . under federal [and state] antitrust laws.”
Earles, 139 F.3d at 1034, 1044. The Court first analyzed sovereign immunity,
holding that it protected the board from all claims and its members from state
law claims, but not federal antitrust laws. Id. at 1039–40. The Court then
analyzed Parker immunity, holding that it shielded the board and its members
“from federal antitrust laws.” Id. at 1034, 1044.
Because sovereign immunity and Parker immunity are distinct
doctrines, we reject Rodgers’ argument, which seeks to merge their respective
tests. Rodgers repeatedly points to N.C. Dental Board for the proposition that
the sovereign immunity analysis is now governed by N.C. Dental Board’s two-
prong test. But, in N.C. Dental Board, the Supreme Court did not address
sovereign immunity except to point out that sovereign immunity may provide
an alternative defense in some cases. N.C. Dental Board, 135 S. Ct. at 1115
(citing Goldfarb, 421 U.S. at 792 n.22). And Rodgers, who bears the burden of
showing that jurisdiction exists, has never pointed to any other authority
holding that, in the wake of N.C. Dental Board, the two-prong test for Parker
immunity should be superimposed on the sovereign immunity analysis.
Ramming, 281 F.3d at 161 (citation omitted). Because the tests for sovereign
immunity and Parker immunity are not coterminous, the district court did not
err in analyzing the Board’s sovereign immunity claim using the Earles test
unmodified by N.C. Dental Board.
II.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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