         Case: 15-15496   Date Filed: 01/26/2017   Page: 1 of 23




                                                    [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 15-15496
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 3:14-cv-00045-CDL




GLORIA JANE MILLER,

                                            Plaintiff - Appellee,

versus

ADVANTAGE BEHAVIORAL HEALTH SYSTEMS,

                                            Defendant - Appellant.

                      ________________________

              Appeal from the United States District Court
                  for the Middle District of Georgia
                    ________________________

                          (January 26, 2017)
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Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Plaintiff Gloria Jane Miller alleges that Defendant Advantage Behavioral

Health Systems 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, a Georgia “community service board,” moved to dismiss on grounds of

Eleventh Amendment immunity. The district court denied Advantage’s motion,

finding that Advantage is not an “arm of the State” for federal sovereign immunity

purposes with respect to Miller’s suit. Advantage appeals from the district court’s

denial. We affirm.

                                 BACKGROUND

      Advantage is a community service board (“CSB”) providing mental health,

substance abuse, and developmental disability services in the State of Georgia.

CSBs are creatures of Georgia state law, see generally O.C.G.A. § 37-2-6, and may

receive funding from the State to support their services. While they are subject to

some high-level oversight by Georgia’s Department of Behavioral Health and

Developmental Disabilities (the “DBHDD”), daily operations and personnel




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matters are managed by locally elected boards and supporting staff. See O.C.G.A.

§ 37-2-6(a)–(b).

      Miller worked as a nurse at Advantage for several years until her

employment was terminated in 2010. Miller contends that Advantage

discriminated against her and ultimately fired her as a result of her age. She filed

suit against Advantage under the ADEA in the United States District Court for the

Middle District of Georgia in 2014. After a year of discovery, and on the eve of

the parties’ pretrial conference, Advantage moved to dismiss the suit on grounds of

Eleventh Amendment immunity. The district court made note of the “perplexing”

tardiness of Advantage’s motion but declined to find that Advantage had waived

its right to assert a federal immunity defense. The court proceeded to reject

Advantage’s argument that it qualifies as an “arm of the State” for Eleventh

Amendment purposes and denied Advantage’s motion to dismiss. We affirm.

                            STANDARD OF REVIEW

      We review the district court’s denial of Advantage’s sovereign immunity

defense de novo. Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d

1288, 1290 (11th Cir. 2003). We may affirm the district court’s decision on any

ground supported by the record. Ironworkers Local Union 68 v. AstraZeneca


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Pharm., LP, 634 F.3d 1352, 1360 (11th Cir. 2011).

                                         DISCUSSION

I.     Eleventh Amendment Immunity

       The Eleventh Amendment to the federal Constitution “protects a State from

being sued in federal court without the State’s consent.” Manders v. Lee, 338 F.3d

1304, 1308 (11th Cir. 2003) (en banc).1 Eleventh Amendment immunity extends

to “arms of the State,” or public entities acting as state agents or instrumentalities.

Id.

       A defendant’s status as an arm of the State “must be assessed in light of the

particular function in which the defendant was engaged when taking the actions

out of which liability is asserted to arise.” Id.; see also Shands Teaching Hosp. &

Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308, 1311 (11th Cir. 2000) (establishing

that arm-of-the-State status relates not to the entity’s “status in the abstract” but to

its “function or role in a particular context.”).


1
  It is well settled that Congress did not properly abrogate the states’ Eleventh Amendment
immunity with respect to age-discrimination claims in enacting the ADEA. See Kimel v. Fla.
Bd. of Regents, 528 U.S. 62, 66–67 (2000); Stroud v. McIntosh, 722 F.3d 1294, 1303 (11th Cir.
2013) (“The Supreme Court has made it clear that the ADEA is unconstitutional as applied to the
states . . . .”). Accordingly, there is no dispute in this appeal that Advantage would be entitled to
immunity from Miller’s ADEA claim if Advantage were deemed to have acted as an arm of the
State when it terminated Miller.


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      Once the relevant context is defined, this Court balances four factors (the

“Manders factors”) to determine whether the defendant acted as an arm of the

State: “(1) how state law defines the entity; (2) what degree of control the State

maintains over the entity; (3) where the entity derives its funds; and (4) who is

responsible for judgments against the entity.” Manders, 338 F.3d at 1309. The

entity invoking Eleventh Amendment immunity bears the burden of demonstrating

that the Manders factors weigh in its favor. See, e.g., Woods v. Rondout Valley

Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 237 (2d Cir. 2006) (joining its sister

circuits to hold that an entity seeking refuge in the Eleventh Amendment “bears the

burden of demonstrating that it qualifies as an arm of the state”).

      Miller’s ADEA discrimination claim arises from her allegedly wrongful

termination by Advantage. As such, the question presented is whether Advantage

acts as an arm of the State in making hiring and firing decisions in the ordinary

course of business. With this context in mind, we review de novo Advantage’s

arguments as to each of the four Manders factors. We find that, under the evidence

Advantage presents, three of the four factors weigh against finding immunity with

respect to Miller’s claim.




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      A.     Georgia Law’s Definition of Community Service Boards

      The first Manders factor considers how Georgia law defines CSBs. As we

have noted, “federal law, not state law, [ ] ultimately governs whether an entity is

immune under the Eleventh Amendment,” Lightfoot v. Henry County School

District, 771 F.3d 764, 771 (11th Cir. 2014), but the manner in which state law

treats a public entity serves to guide our Eleventh Amendment analysis. See id. at

769–71 (considering Georgia statutory framework, Georgia constitution, and

related state case law to assess first Manders factor).

      We first consider the language with which the relevant Georgia statute

characterizes CSBs. The opening section of the CSB enabling statute states that

the entities “shall be considered public agencies” and that each individual CSB

“shall be a public corporation and an instrumentality of the state.” O.C.G.A. § 37-

2-6(a). While the terms “public agency” and “public corporation” are too vague to

tip the balance toward arm-of-the-State status, entities considered

“instrumentalities” of the State presumptively share in the State’s Eleventh

Amendment immunity. See Manders, 338 F.3d at 1308 (noting that the phrase

“arm of the State” encompasses “agents and instrumentalities of the State”).




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      The Georgia legislature, however, clouded this presumption later in the same

statutory section by declaring that CSBs “shall not be considered agencies of the

state” and shall “have the same immunity as provided for counties.” O.C.G.A.

§ 37-2-11.1(c)(1). Georgia law—unlike federal law—grants counties sovereign

immunity along with state agencies, but it defines county immunity and state-

agency immunity differently. Compare Stewart v. Baldwin Cty. Bd. of Educ., 908

F.2d 1499, 1509 (11th Cir. 1990) (noting that Eleventh Amendment immunity

“does not extend to counties”) with Toombs Cty., Ga. v. O’Neal, 330 S.E.2d 95, 97

(Ga. 1985) (holding that sovereign immunity under Georgia constitution “is

extended to the counties of the State of Georgia” but that state legislature may

waive that immunity by law). This provision thus runs counter to the statute’s

opening language, suggesting that the legislature intended CSBs to function as

analogues of counties even if the statute nominally deemed them state

“instrumentalities.”

      At best, the plain language of the relevant statutory provisions cuts only

weakly in favor of finding that Georgia law views CSBs as arms of the State. And

because Georgia law grants immunity to counties as well as state agencies, we




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cannot easily import its statutory language into a federal immunity framework that

draws a sharp distinction between these two types of entities.

       Georgia case law helps clarify this picture. In Youngblood v. Gwinnett

Rockdale Newton Cmty. Serv. Bd., 545 S.E.2d 875 (Ga. 2001), the Georgia

Supreme Court unambiguously held that CSBs are arms of the State for purposes

of state constitutional immunity, looking beyond the statutory language to find that

the Georgia legislature designed CSBs to function as state entities rather than as

independent political subdivisions. Id. at 877 & n.2. The legal effect of

Youngblood was to invalidate the statutory provision that purported to grant CSBs

“the same immunity as provided for counties.” O.C.G.A. § 37-2-11.1(c)(1). The

effect of Youngblood in our analysis is to tip the balance toward a finding that

Georgia state law views CSBs like Advantage as arms of the State. 2




2
  Advantage makes a broader inference: “[W]hen the court in Youngblood ruled that CSBs are
the ‘state’ for the purpose of suit under [Georgia law], it was necessarily holding that . . . the
State of Georgia considers them to be entitled to Eleventh Amendment immunity.” Advantage’s
reading of Youngblood goes too far. The court made no assertions as to the status of Georgia’s
CSBs under the Eleventh Amendment, and indeed the court had no occasion in that case to opine
about federal immunity law. And as the Georgia Supreme Court has acknowledged, state
immunity analysis need not align with federal immunity analysis. Hines v. Ga. Ports Auth., 604
S.E.2d 189, 195 (Ga. 2004). Furthermore, the first Manders factor asks us to consider whether
state law treats an entity more like a state agency or more like a political subdivision—it does not
require us to discern how state courts believe federal courts should treat the entity under the
Eleventh Amendment. Our conclusion on the first Manders factor is, therefore, narrow: In light

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       Because the Georgia Supreme Court’s classification of CSBs as state

agencies is clear and definitive, we reserve our analysis of the practical function of

CSBs under the state’s statutory scheme for the remaining Manders factors.

       B.     Where Georgia Law Vests Control

       The second Manders factor requires us to determine the degree of control

the State maintains over the activity from which the defendant’s alleged liability

arises. The question in this case is whether the State of Georgia exercises

meaningful control over Advantage’s hiring and firing practices in the ordinary

course of business. We find that it does not.

       As a general matter, CSBs in Georgia are managed at the local level and

without significant state involvement. The operations of each CSB are controlled

by a local Governing Board, whose members are appointed by authorities of the

communities the CSB serves. See O.C.G.A. § 37-2-6(b). While state law defines

the mechanism by which Board members are appointed and provides guidance

regarding the selection of members, the State is not entitled to oversee or control




of Youngblood, Georgia state law views CSBs as state agencies entitled to immunity under state
law.


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the appointment process in any capacity. See O.C.G.A. § 37-2-6(b)(1) (outlining

Board appointment process); O.C.G.A. § 37-2-6(c) (encouraging local authorities

to ensure diversity in Board membership).

       The Governing Board is, in turn, empowered to appoint an Executive

Director to “direct[] the day-to-day operations” of the CSB. The Board may

delegate “any power, authority, duty, or function” to the Director or other CSB

staff members as it deems appropriate. O.C.G.A. § 37-2-6.1(a)(1). Appointment

and compensation of the Executive Director are subject to approval by the

Commissioner of the DBHDD, but the Governing Board retains sole authority to

remove and replace the Director. See O.C.G.A. § 37-2-6.1(a)(1); O.C.G.A. § 37-1-

1(3). The Executive Director is directly responsible for hiring and firing CSB

staff, O.C.G.A. § 37-2-6.1(a)(1), while the Board (or the Director, if the Board so

delegates) sets the terms of compensation for CSB personnel, O.C.G.A. § 37-2-

6.1(b)(9), and determines whether and how to provide employee benefits.

O.C.G.A. § 37-2-6.1(b)(7). The State has no authority to review staff hiring or

firing activity or to alter the CSB’s provision of compensation or benefits. 3 Nor is



3
  Advantage additionally argues that CSB personnel practices are governed by the
antidiscrimination provision of the Rules of the State Personnel Board, Ga. Comp. R. & Regs.

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the State empowered to train, discipline, or terminate CSB staff, to dismiss a CSB

Executive Director, or to replace locally appointed Governing Board members.

Cf., e.g., Lake v. Skelton, 840 F.3d 1334, 1343 (11th Cir. 2016) (noting that the

State’s direct involvement in “training and discipline of deputies [within sheriff’s

office] provides further evidence of control by the state”).

       Advantage contends that, because the Commissioner approves the selection

and compensation of the Executive Director, and because the Director controls the

hiring and firing of CSB staff, it follows that “the state has a great deal more

control over personnel decisions than does any local authority.” We disagree.

There is no question that Georgia law dictates the operational structure of each




478-1, and thus the decision to terminate Miller was subject to substantial state control. See Ga.
Comp. R. & Regs. 478-1-.03; O.C.G.A. § 45-20-2(6) (defining “agency” for purposes of
application of Rules of the State Personnel Board to include CSBs). Miller counters with
reference to a letter that Advantage transmitted to her upon her termination. In that letter,
Advantage informs Miller that “the Rules and Regulations of the State Personnel Board do not
cover you.” As the district court identified, there was further ambiguity in the record below as to
whether state personnel standards apply to Advantage employees in general, and the parties have
not successfully clarified this issue on appeal.

In light of this ambiguity and Advantage’s own admission, we conclude that Advantage has
failed to show that state personnel standards applied to Miller’s employment. We also note that
applicability of state personnel standards would still not be sufficient to tilt the second Manders
factor in favor of immunity in light of the evidence we highlight above.


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CSB, but CSBs retain substantial autonomy over day-to-day operations and

ordinary personnel management, signaling meaningful local control. We came to a

similar conclusion in Lightfoot, 771 F.3d at 771–75, in which we declined to find a

local Georgia school district entitled to federal immunity under Manders. In

assessing the second Manders factor, we found that control of the school district

was locally oriented because it was “subject to the . . . management of county

boards of education,” which were, in turn, composed of locally elected county

residents. Lightfoot, 771 F.3d at 771 (internal quotation marks omitted). We

acknowledged that the State of Georgia crafted certain aspects of the school

board’s operations by setting school-board regulations, specifying the manner in

which board members would be elected, and setting employee evaluation

standards, but we ultimately concluded that “[e]stablishing minimum

requirements” for the operation of the school district was “not sufficient to

demonstrate [state] control.” Id. at 773.

      Our analysis in Pellitteri v. Prine, 776 F.3d 777 (11th Cir. 2015), presents a

useful contrast. In that case, we considered the immunity of a local Georgia

sheriff’s office in the exercise of employment procedures. We concluded that the

second Manders factor weighed in favor of immunity, highlighting several crucial


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limitations on the sheriff’s autonomy in personnel management: the State strictly

regulated the sheriff’s power to hire deputies and peace officers by requiring State-

administered background checks, physical and mental examinations, and an

entrance examination for all candidates; the State retained the power to

“functionally terminate” deputy sheriffs through disciplinary measures without the

sheriff’s consent; and the Governor of Georgia held ultimate authority to discipline

or suspend the sheriff himself for incidents of misconduct. Id. at 781–82. See also

Stanley v. Broward Cty. Sheriff, 2016 WL 7229745 (11th Cir. Dec. 14, 2016)

(noting that, while the State was empowered to remove local sheriff for

misconduct, the State had no control over the appointment or removal of deputies

hired by the sheriff; this fact weighed against finding state control); Lake, 840 F.3d

at 1343 (following Pellitteri to conclude that State’s direct involvement in sheriff

training and discipline evidenced state control). The State of Georgia retains no

such control over CSB personnel decisions, is powerless to remove the Executive

Director or Board members, and does not limit the Governing Board’s discretion to

manage personnel matters in the service of local concerns. Cf. Pellitteri, 743 F.3d

at 782 (noting that the sheriff was primarily accountable to the State—rather than




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to local authorities—in discharging his duties, and citing this fact as further

evidence of substantial state control).

       We find our analysis in Lightfoot persuasive in this case, especially as

contrasted with our conclusion in Pellitteri. 4 The existence of state guidelines

regarding the appointment of CSB Governing Boards and state standards for the

provision of CSB services is not sufficient to demonstrate substantial state control

over Advantage in this case, especially in light of the significant autonomy state

law grants to locally appointed Governing Boards. Advantage has not met its

burden of demonstrating that the DBHDD’s limited, high-level involvement in the

structure and function of CSBs justifies a finding that Advantage is an arm of the

State. Thus, we concur with the district court that the second Manders factor

weighs against Eleventh Amendment immunity.




4
  Advantage urges that any reference to our reasoning in Lightfoot would be misplaced in this
case. To advance this argument, Advantage lists the various ways in which CSBs are unlike
state school districts, implicitly asking us to make the following deduction: Because school
districts are not arms of the State, and because CSBs are unlike school districts, it follows that
CSBs must be arms of the State. There are, indeed, many distinctions to be drawn between
Georgia-state school districts and CSBs—but there are useful similarities to consider as well.
We decline to ratify Advantage’s faulty reasoning, and we therefore consider Lightfoot and other
Circuit opinions wherever they illuminate the proper application of the Manders factors in this
case.


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      C.     Source of Defendant’s Funding

      We next ask where the defendant derives its funding. In answering this

question, we focus primarily on the quantum of funding the State provides to the

defendant entity. See Stanley, 2016 WL 7229745, at *8 (citing Abusaid v.

Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1311 (11th Cir. 2005)).

Where relevant, we may also consider the level of control the State exercises over

the entity’s funding structure, budget, and overall financial autonomy. See, e.g.,

Pellitteri, 776 F.3d at 782–83 (finding that, although sheriff’s office was funded

primarily by the county rather than the State, the third Manders factor weighed in

favor of immunity because the State dictated the office’s funding structure);

Williams v. Dist. Bd. of Trs. of Edison Cmty. Coll., Fla., 421 F.3d 1190, 1194 (11th

Cir. 2005) (noting in analysis of third Manders factor that “state approval of

institutional budgets evidences state control,” which weighed in favor of finding

immunity); Lightfoot, 771 F.3d at 776–77 (concluding that school board’s receipt

of “significant funding from the State” was not sufficient to tip the balance toward

immunity on third Manders factor, as the school board itself retained substantial

local control over its own budget).




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      Advantage asserts that the State funds a substantial portion of its operations,

but it fails to provide any evidence demonstrating (or even estimating) the actual

proportion of state to non-state funding on which it relies. This dearth of evidence

is surprising: Advantage’s argument relies heavily on the proposition that the State

is its primary funder, and Advantage is, of course, uniquely positioned to prove the

truth of this assertion. In the absence of such evidence, we also consider the

State’s involvement in Advantage’s financial operations. We ultimately conclude

that Advantage has failed to carry its burden of demonstrating that the State

exercises meaningful control over the source of its funding or the nature of its

budget.

      In support of its argument that “the state controls the sources of funds to

CSBs,” Advantage cites to a single provision of Georgia’s enabling statute, under

which the State forbids CSBs to tax, to issue bonds, and to “financially obligate the

state.” O.C.G.A. § 37-2-6.1(e). But Advantage neglects several key elements of

the CSB funding structure that weigh against a finding of immunity. As discussed

supra, CSBs like Advantage are managed locally by Governing Boards, whose

members are appointed by county authorities. O.C.G.A. § 37-2-6(b). Each CSB’s

Governing Board chooses whether to contract with the DBHDD or other state


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departments to provide health services. O.C.G.A. § 37-2-6(a). The State does not

mandate that CSBs contract with it, nor does it require them to contract with

parallel local or federal healthcare programs.

      The Governing Board also has authority to cease operations of the CSB

altogether, O.C.G.A. § 37-2-6.5, or to end its contractual relationship with the State

by converting the CSB to a private nonprofit, a unit of a local county, or an arm of

a hospital. O.C.G.A. § 37-2-6.4(a). The State has no authority to approve or reject

such changes. And as Advantage has made clear, its state funding is service-

based—that is, Advantage receives no funding from the State if it does not contract

with the State and bill its services to the State under the terms of that contract.

      Upon review of this statutory framework, is clear to us that the Governing

Board holds unfettered discretion to design its own funding mix. It can, for

example, choose to rely primarily on state funds, to contract only with private

organizations, or to diversify its funding sources by contracting with private or

local organizations in addition to the State. This level of autonomy precludes the

State from dictating Advantage’s funding portfolio and limits the State’s control

over Advantage’s financial decision-making.




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      Furthermore, Governing Boards enjoy broad autonomy to allocate funds on

personnel matters. The Board of each CSB is entitled to review and approve the

CSB’s annual budget, which “shall provide for securing . . . professionals

necessary for the provision of disability and health services.” O.C.G.A. 37-2-

6.1(b)(2); O.C.G.A. 37-2-6.1(a). The Board is further empowered to determine

when and how to provide employment benefits, O.C.G.A. § 37-2-6.1(b)(7); to fix

employee compensation, O.C.G.A. § 37-2-6.1(b)(9); and to raise revenues to

support daily operations. O.C.G.A. § 37-2-6.1(f)(2). The only personnel-related

matter the State is entitled to oversee relates to the employment of the CSB’s

Executive Director, who exercises daily managerial authority as delegated by the

Governing Board. O.C.G.A. § 37-2-6.1(a)(1) (permitting commissioner of

DBHDD to review and approve Governing Board’s offer of employment to

Executive Director and any substantial alterations to terms of compensation but

omitting to empower commissioner to remove Director at his discretion).

      The fact that the Governing Board, not the State, exercises primary control

over Advantage’s financial decision-making—especially in the arena of personnel

management—weighs against immunity. Cf., e.g., Ross v. Jefferson Cty. Dep’t. of

Health, 701 F.3d 655, 660 (11th Cir. 2012) (finding the fact that health department


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was funded by county insufficient to “‘tip the balance’ against immunity” because

there was no evidence that county exerted control over the department); Manders,

338 F.3d at 1323 (finding that relevant funding of sheriff’s office was derived from

the State, even though county bore “the major [funding] burden,” because State

mandated the source of funding, set sheriff’s compensation, and limited county’s

autonomy over sheriff’s spending decisions).

      D.     Liability for Judgments against Defendant

      Under the final Manders factor, we consider “whether the State would bear

ultimate responsibility for an adverse judgment” against the defendant entity.

Lightfoot, 771 F.3d at 777. Georgia law speaks directly to this factor, establishing

that “the liabilities, debts, and obligations of a community service board shall not

constitute liabilities, debts, or obligations of the state or any county or municipal

corporation and neither the state nor any county or municipal corporation shall be

liable for any liability, debt, or obligation of a community service board.”

O.C.G.A. § 37-2-6(a). The United States Supreme Court does not require “an

actual drain on the state treasury as a per se condition of Eleventh Amendment

immunity,” Manders v. Lee, 338 F.3d 1304, 1327 (11th Cir. 2003), but the




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statutory limitation of state liability for any judgment against Advantage weighs

strongly against finding it an arm of the State.

       Advantage acknowledges this statutory limitation but argues that the

Georgia state treasury would be meaningfully and unavoidably impacted in the

event of an adverse judgment against Advantage. We disagree.

       In support of this argument, Advantage attempts to analogize itself to the

sheriff’s office at issue in Manders and the public water utility we considered in

U.S. ex rel. Lesinski v. South Fla. Water Mgmt. Dist., 739 F.3d 598 (11th Cir.

2014). In both cases, we found the state treasury indirectly implicated in the

defendant entity’s liabilities, which cut in favor of immunity. But both cases are

distinguishable. In Manders, we concluded that the local sheriff’s office was

subject to direct state control, was financially dependent on the State, and would

have been unable shrink its law-enforcement budget in the event of an adverse

judgment. 338 F.3d at 1328. By contrast, we find Advantage independent from

state control and financially self-sufficient, especially in light of its ability to

contract freely and raise its own revenue. See O.C.G.A. § 37-2-6(a); O.C.G.A.

§ 37-2-6.1(f)(2). And in Lesinski, we explained that, if judgment creditors

“deplete[d] the [water district’s] funds, . . . the State would ultimately have to


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choose between increasing its appropriation to make up the shortfall or shirking its

constitutionally mandated duty to ‘conserve and protect [the State’s] natural

resources and scenic beauty.’” 739 F.3d at 605. Advantage concedes that the State

of Georgia is under no constitutional duty to provide mental health, developmental

disability, or addictive disease services. Our reasoning in Lesinski is, therefore,

inapposite.

      Most significantly, Advantage has failed to present evidence that the State of

Georgia would be obligated or incentivized to prop up Advantage in the event of

its financial distress or insolvency. Advantage asserts that “CSBs are formed with

geographical limitations” set by the State and that, as a result, “[t]here is no legal

basis for the state to simply choose to work with another CSB” in a given region if

the preexisting CSB were forced to liquidate. This assertion is not supported by

Georgia law, which expressly provides that the State may alter and merge the

boundaries of each CSB’s service area as it deems necessary. O.C.G.A. § 37-2-

3(a)–(b). And Advantage provides no evidence that the State could not contract

with a private provider if Advantage ceased its operations and neighboring CSBs

were unable to absorb its patient base. To be sure, such a service transition would

not be costless for the State. But it is not the case—as it was in Manders and


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Lesinski—that a judgment against Advantage would require the State to make the

difficult choice between footing Advantage’s bill and leaving vulnerable citizens

without needed care.

      We concur with the district court that Advantage has not carried its burden

of showing that the state treasury is meaningfully implicated in Advantage’s legal

liabilities. The final Manders factor weighs decisively against finding Advantage

an arm of the State for federal immunity purposes.

II.   Waiver of Eleventh Amendment Immunity

      Because we find that Advantage is not entitled to Eleventh Amendment

immunity on the evidence presented, we need not consider whether Advantage

waived its right to assert this defense by failing to move for dismissal in a timely

manner. In so concluding, we echo the district court’s observation that “[t]he test

to determine [whether] a state has waived its sovereign immunity ‘is a stringent

one.’” 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)).




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             Case: 15-15496    Date Filed: 01/26/2017   Page: 23 of 23


                                 CONCLUSION

      We conclude that three of the four Manders factors weigh strongly against

finding that Advantage acted as an “arm of the State” for purposes of Eleventh

Amendment immunity with respect to Miller’s termination. Under this Court’s

precedent, Advantage has therefore failed to meet its burden of proving its

entitlement to immunity from Miller’s suit. The district court’s denial of

Advantage’s motion to dismiss is AFFIRMED.




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