Case 1:21-cv-00184-MW-GRJ Document 46 Filed 01/03/22 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT

SHARON WRIGHT AUSTIN,

Plaintiffs,

v. Case No.: 1:21cv184-MW/GRJ

UNIVERSITY OF FLORIDA BOARD

Defendants.
__________________________________/

ORDER DENYING MOTION TO DISMISS 1

This is a First Amendment case. Plaintiffs are professors at the University of

Florida. Their one-count amended complaint alleges that the University of Florida’s

policy on conflicts of interest violates the First Amendment because it discriminates

based on viewpoint and content and because it is an unconstitutional prior restraint

on speech. Plaintiffs seek declaratory and injunctive relief “preventing Defendants

from enforcing any policy or practice that provides the University discretion to limit

Plaintiffs’ ability to undertake outside activities, on a paid or unpaid basis, on the

1
Defendants’ reply brief is due January 5, 2022. Oral argument is set in this case for
January 7, 2022. In their briefs on Plaintiffs’ motion for preliminary injunction, both parties discuss
mootness, ripeness, and standing at length. This Court has considered those arguments and decides
the issue now because it finds that further argument is unnecessary. Because this Court decides
threshold justiciability issues here, it also limits the scope of the pending oral argument solely to
the merits of Plaintiffs’ claims and the application of the preliminary injunction factors.
Defendants need not file a reply brief in support of their motion to dismiss.
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ground that the proposed activity is not aligned with the ‘interests’ of the State of

Florida or any of its entities or instrumentalities.” ECF No. 19 at 26.

Plaintiffs also move for a preliminary injunction “enjoin[ing] defendants from

enforcing the University’s unconstitutional Policy . . . . to the extent it applies to any

faculty member’s participation, whether by providing expert testimony or otherwise,

in litigation involving the State of Florida.” ECF No. 30 at 40 (emphasis added).

Defendants move to dismiss, asserting that Plaintiffs lack standing and that

their claims are moot and unripe. On the merits, Defendants argue that Plaintiffs

have failed to state a claim for relief because they have not completed the grievance

process set out in their collective bargaining agreement (“CBA”) and because they

have otherwise waived their First Amendment claim. This Court addresses each

point in turn. But first, it briefly recites Plaintiffs’ allegations, with which both sides

are already familiar.

Plaintiffs are professors at the University of Florida who have participated as

expert witnesses in past and pending litigation. ECF No. 19 ¶¶ 7–12. Over the past

two years, the University at some point either denied or limited at least one request

by each Plaintiff to participate in litigation because it considered Plaintiffs’

participation to be adverse to the State of Florida or the “executive branch of the

State of Florida.” Id. ¶¶ 26–68. In the face of recent public criticism, and before this

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Court reviewed its conflict-of-interest policies, the University of Florida reversed its

decision denying three Plaintiffs’ requests to participate in a pending voting-rights

case. Id. ¶¶ 72–77.

Defendant Fuchs has since accepted recommendations—submitted by a hand-

picked “task force”—to change the University of Florida’s conflict-of-interest policy

to impose a “strong presumption that the university will approve faculty or staff

requests to testify as expert witnesses, in their capacities as private citizens, in all

litigation in which the State of Florida is a party.” ECF No. 23-1 ¶¶ 16–17. The

University may deny a request to testify as an expert witness based only on “clear

and convincing evidence” that such testimony conflicts with “an important and

particularized interest of the university, which the university must set forth and

explain in writing.” Id. ¶ 17. But the proposed revisions to the policy do not identify

in advance which interests suffice as “important and particularized,” nor does the

policy set any time limits on the approval process. See ECF No. 23-1 at 221. Even

with the approved revisions, the challenged policy leaves it in the University’s “sole

discretion” to approve or deny such requests. Id.; see also ECF No. 44-1 at 3.

Plaintiffs mount what appear to be facial and as-applied challenges against the

policy, asserting that it violates the First Amendment. Plaintiffs allege that the policy

grants the University of Florida “unlimited discretion to block speech that it

dislikes,” and “it will continue to impede Plaintiffs from participating in litigation or

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other forms of advocacy that challenge State policies[.]” ECF No. 19 ¶ 86. Plaintiffs

also allege that the policy is impermissibly vague and overbroad. Id. ¶¶ 94–95.

II

As it must, this Court first addresses threshold jurisdictional issues.

Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(1). A Rule

12(b)(1) motion to dismiss for lack of subject matter jurisdiction “can be asserted on

either facial or factual grounds.” Carmichael v. Kellogg, Brown & Root Servs., Inc.,

572 F.3d 1271, 1279 (11th Cir. 2009) (citation omitted). In this case, Defendants

raise a factual attack as to whether this Court has jurisdiction to hear Plaintiffs’ claim.

Thus, this Court “may consider extrinsic evidence such as deposition testimony and

affidavits,” in determining whether it has subject matter jurisdiction. Id.

Defendants make two jurisdictional arguments. First, Defendants assert that

Plaintiffs lack standing—and, relatedly, that Plaintiffs’ claims are not ripe. Second,

Defendants argue that Plaintiffs’ case is moot. This Court will address each argument

in turn, starting with standing and ripeness.

To establish standing, Plaintiffs must show (1) that they have suffered an

injury-in-fact that is (2) traceable to Defendants and that (3) can likely be redressed

by a favorable ruling. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

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Defendants argue both that Plaintiffs are not injured and that this case is not ripe

because there is no credible threat of enforcement.

The injury-in-fact requirement applies “most loosely where First Amendment

rights are involved, lest free speech be chilled even before the law or regulation is

enforced.” Harrell v. Fla. Bar, 608 F.3d 1241, 1254 (11th Cir. 2010). And ripeness—

which seeks to prevent the premature adjudication of inchoate disputes—requires

this Court to evaluate (1) whether this case is fit “for judicial decision and (2) the

hardship to the parties of withholding court consideration.” Nat’l Park Hosp. Ass’n

v. Dep’t of Interior, 538 U.S. 803, 808 (2003).2

This is a pre-enforcement challenge. 3 And thus, as to the injury-in-fact inquiry,

“[t]his is one of those cases where ‘the Article III standing and ripeness issues . . .

2
The “hardship prong” of the ripeness analysis “is not an independent requirement
divorced from the consideration of the institutional interests of the court and agency.” Harrell, 608
F.3d 1241, 1259 (quoting AT&T Corp. v. FCC, 349 F.3d 692, 700 (D.C. Cir. 2003). “Where there
are no significant agency or judicial interests militating in favor of delay, lack of hardship cannot
tip the balance against judicial review.” Id. (cleaned up) (quoting Consol. Rail Corp. v. United
States, 896 F2d 574, 577 (D.C. Cir. 1990)). As the Eleventh Circuit has previously noted, “since
the very existence of censorial power is unacceptable, there is little reason for a court to forbear
entertaining an anticipatory challenge in order to allow that power to be exercised.” Id. (cleaned
up) (quoting Intern. Soc. for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 823 (5th
Cir. 1979)). Here, Plaintiffs have demonstrated that they will suffer hardship if this Court delays
review of their claim. See, e.g., ECF No. 30-1 ¶¶ 22-28; ECF No. 30-2 ¶¶ 12-15; ECF No. 30-3
¶¶; ECF No. 30-4 ¶ 14; ECF No. 30-5 ¶¶ 12-13. Accordingly, the relevant institutional
considerations favor immediate review of Plaintiffs’ First Amendment claim.
3
Though the University’s policy has been enforced against each Plaintiff in a manner that
allegedly violates their First Amendment rights, the revised policy has not been enforced against
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boil down to the same question.’ ” Wollschlaeger v. Governor, Fla., 848 F.3d 1293,

1304 (11th Cir. 2017) (en banc) (quoting Susan B. Anthony List v. Driehaus, 573

U.S. 149, 157 n.5 (2014)). That question is, “when [does] the threatened enforcement

of a law create[] an Article III injury[?]” Driehaus, 573 U.S. at 158. As the Supreme

Court has often done, in addressing this issue, this Court will use the term “standing”

to describe both standing and ripeness. Id. at 157 n.5. “A person can bring a pre-

enforcement suit when he has alleged an intention to engage in a course of conduct

arguably affected with a constitutional interest, but proscribed by a statute, and there

exists a credible threat of prosecution.” Wollschlaeger, 848 F.3d at 1304 (quoting

Driehaus, 573 U.S. at 159) (cleaned up).

Plaintiffs allege that they have each been asked to offer their expertise in past

and pending litigation involving issues of public concern, and that Defendants have

prevented them from doing so by applying the conflict-of-interests policy to

litigation adverse to the State of Florida. Plaintiffs also allege, in their amended

complaint and in supporting affidavits, that they intend to participate in future

litigation adverse to the State. Plus, Plaintiffs attest to their fears, based on the

revised policy, both of repercussions if they participate in litigation and that the

University will delay the approval process to thwart their participation in time-

them. Even so, Plaintiffs assert that they suffer the ongoing harm of self-censorship stemming from
the policy’s terms and the recent enforcement of the unrevised policy against them.
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sensitive cases. See, e.g., ECF No. 19 ¶¶ 82–86; ECF No. 30-1; ECF No. 30-2; ECF

No. 30-3; ECF No. 30-4; ECF No. 30-5; ECF No. 30-6. Plaintiffs also express their

concerns that the revised policy does not remedy the University’s allegedly

unbridled discretion to approve or deny requests to participate in outside activities,

including testifying as expert witnesses in litigation challenging state law. See ECF

Nos. 30-1 and 30-2.

There is no doubt Plaintiffs’ intended course of conduct, participating in

litigation as expert witnesses, is affected with a constitutional interest. See Rainey v.

Jackson State Coll., 481 F.2d 347, 350 (5th Cir. 1973) (noting where college

allegedly breached one-year contract because of professor’s participation as defense

expert in obscenity trial “make out what appear to us to be a clear case of

impermissibly freighting plaintiff’s contract with a deprivation of the First

Amendment right to free speech”). And Plaintiffs have demonstrated that, for fear

of repercussion or retaliation, they are self-censoring from such participation. An

“alleged danger of this [policy] is, in large measure one of self-censorship; a harm

that can be realized without an actual prosecution.” ACLU v. Fla. Bar, 999 F.2d

1486, 1493 (11th Cir. 1993) (emphasis in original) (quoting Virginia v. Am.

Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988)).

That said, the question remains as to whether a credible threat of

enforcement—of denying permission to participate in such litigation or other

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punitive action—exists. In the First Amendment context, the Eleventh Circuit has

described the analysis for determining whether a credible threat of enforcement

exists as “quite forgiving.” Wilson v. State Bar of Ga., 132 F.3d 1422, 1428 (11th

Cir. 1998) (citation omitted). Indeed, “[i]f a challenged law or rule was recently

enacted, or if the enforcing authority is defending the challenged law or rule in court,

an intent to enforce the rule may be inferred.” Harrell, 608 F.3d at 1257. The

conflict-of-interest policy here is newly “revised,” based on the Task Force’s

recommendations and Defendant Fuchs’s “adoption” of them, and all Defendants

are defending the policy. On that basis alone, this Court finds that a credible threat

of enforcement exists.

But even if that were not enough, public statements by the Chairman of the

University’s Board of Governors leave this Court with little doubt that the University

of Florida intends to enforce its conflict-of-interest policy in the manner Plaintiffs

fear. Speaking only ten days after Defendant Fuchs’s “adoption” of the proposed

changes to the conflict-of-interest policy supposedly mooted this case, Chairman

Hosseini struck a different tone. According to Chairman Hosseini, faculty members

had “taken advantage of their positions” by using those positions “to improperly

advocate personal political viewpoints to the exclusion of others.” ECF No. 45-4 at

12. “This. Will. Not. Stand.” he remarked, “[i]t must stop, and it WILL stop.” Id. at

13–14. Chairman Hosseini also made explicit what was implicit in the University’s

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earlier denials. “Think of everything we’ve been able to accomplish during the past

five years” he said. Id. at 15. “These things were all made possible through the

support of our state leaders.” Id. at 16. And those leaders, he explained, “are fed up

with the waste of [state] dollars by the few who are misusing their positions.” Id. at

18. So, he closed, “[i]t is time to stand up for what is right and to put a stop to what

is wrong.” Id. In short, Plaintiffs’ activities anger Tallahassee, that threatens the

University’s funding, and so the University must halt Plaintiffs’ activities. 4 See also

ECF No. 45-5 at 26 (“It is evident that faculty throughout UF are feeling greater and

greater pressure to conform to political pressures and to stifle or modify their speech

and research to avoid retaliation. It is also clear that this pressure is coming from the

senior UF administration and not just from the COI office.”).

In a different context, the Eleventh Circuit explained that, when plaintiffs

“can’t show that they’ve been threatened with prosecution . . . by either the

[defendants] or anyone under [their] control. . . . that’s a problem.” Support Working

Animals, Inc. v. Governor of Fla., 8 F.4th 1198, 1204 (11th Cir. 2021). Here, the

threat is explicit, and so Defendants have “a problem.” The threat of enforcement is

credible, and thus Plaintiffs have sufficiently alleged an Article III injury.

4
Of course, some might interpret Hosseini’s statement differently, but, at the motion-to-
dismiss stage, this Court must draw “all reasonable inferences . . . in the light most favorable to”
Plaintiffs. Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1198 n.2 (11th Cir. 2001).
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Next, causation. Plaintiffs must establish causation by showing that “their

injuries are connected with” Defendants’ conduct. Wilding v. DNC Servs. Corp., 941

F.3d 1116, 1125 (11th Cir. 2019) (cleaned up) (quoting Trump v. Hawaii, 138 S. Ct.

2392, 2416 (2018)). In other words, Plaintiffs must show that their injury—self-

censorship—is “fairly traceable to the challenged action of the defendant, and not

the result of the independent action of some third party not before the court.” Lujan,

504 U.S. at 560.

To do so, Plaintiffs need only show “that there is a substantial likelihood of

causation.” Duke Power Co. v. Env’t Study Grp., 438 U.S. 59, 75 n.20 (1978). This

is not an exacting standard; “[p]roximate causation is not a requirement of Article

III standing.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

134 (2014). And thus “[a] plaintiff . . . need not show (or, as here, allege) that ‘the

defendant’s actions are the very last step in the chain of causation.’ ” Wilding, 941

F.3d at 1126 (quoting Bennett v. Spear, 520 U.S. 154, 168–69 (1997)). “[E]ven harms

that flow indirectly from the action in question can be said to be ‘fairly traceable’ to

that action for standing purposes.” Focus on the Fam. v. Pinellas Suncoast Transit

Auth., 344 F.3d 1263, 1273 (11th Cir. 2003).

Defendants do not challenge Plaintiffs on this point. And after reviewing the

allegations and attachments in the record, this Court concludes that Plaintiffs have

established that their injuries are fairly traceable to Defendants’ conduct. This is

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because each Defendant has a role in enforcing the challenged policy. The University

of Florida Board of Trustees “sets policy for the institution and serves as the

institution’s legal owner and governing board.” ECF No. 19 ¶ 13. Kent Fuchs is the

President of the University of Florida, who, in his official capacity, “is responsible

for the general administration of all University activities.” Id. ¶ 14. As shown by his

own actions, Defendant Fuchs can unilaterally reverse a conflicts decision without

explanation and unilaterally change the conflict-of-interest policy. See, e.g., id. ¶ 68;

ECF No. 23-1 ¶¶ 11–12, 16. Joseph Glover is the Provost of the University of Florida

who is responsible for, among other things, “overseeing the University’s Conflicts

of Interest Office,” and “establishing the University’s policy with respect to

employment, promotion, and tenure of academic faculty.” ECF No. 19 ¶ 15. And

Laura Rosenbury, as Dean of the University of Florida’s law school, enforces the

conflict-of-interest policy as it applies to law professors, including Plaintiffs Nunn

and Reid. Id. ¶ 16. In short, this Court can easily trace Plaintiffs’ injuries to each

Defendant.

Next, redressability. The redressability prong “focuses . . . on whether the

injury that a plaintiff alleges is likely to be redressed through the litigation.” Sprint

Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 287 (2008) (emphasis

removed). A “substantial likelihood” of redressability will satisfy this prong. Duke

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Power, 438 U.S. at 79. Plaintiffs have shown that a court order enjoining Defendants

from enforcing the University’s policy in a manner that forbids participation in

litigation adverse to the State would redress Plaintiffs’ asserted self-censorship

injuries.

* * *

In sum, for standing and ripeness, the record establishes that Plaintiffs are

subject to the policy requiring pre-approval to participate as expert witnesses in

litigation challenging state law. Plaintiffs also assert that the revised conflict-of-

interest policy continues to grant the University “unbridled discretion” to grant or

deny a request to testify as an expert witness. Plus, Plaintiffs have submitted requests

for approval in the past and intend to do so in the future. Because Plaintiffs will be

subject to the challenged policy when they apply for approval in the future, they

have standing to mount the challenge in this case. See CAMP Legal Def. Fund, Ind.

v. City of Atlanta, 451 F.3d 1257, 1274–75 (11th Cir. 2006) (“That city officials have

not yet exercised their discretion to refuse CAMP’s proposed festivals is immaterial

because it is the existence, not the imposition, of standardless requirements that

causes CAMP injury. Where a plaintiff alleges that a statute grants unbridled

discretion, a plaintiff need only be ‘subject to’ the provision to establish a

constitutional injury.” (citations omitted)). Moreover, Plaintiffs’ claims are

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otherwise fit for judicial review. See Club Madonna, Inc. v. City of Miami Beach,

924 F.3d 1370, 1380–81 (11th Cir. 2019).

Having determined that Plaintiffs have standing and that their claims are ripe,

this Court next addresses Defendants’ argument that their post-suit actions have

mooted this case. Defendants argue that this case is moot because (1) the University

retroactively approved Plaintiffs’ requests to participate in litigation against the state

and (2) the University “adopted” new policy requirements applying a heightened

evidentiary standard and a strong presumption in favor of permitting faculty and

staff to testify as expert witnesses in litigation against the state.

A case is moot when it is “impossible for a court to grant any effectual relief

whatever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567

U.S. 298, 307 (2012) (cleaned up). But even when a defendant voluntarily ceases

the activity at issue in a case, the case “does not necessarily” become moot. Cook v.

Bennett, 792 F.3d 1294, 1299 (11th Cir. 2015). Faced with voluntary cessation, a

court can find a case moot only if it is “absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.” Id. (quoting United States v.

Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968)). Ordinarily,

the burden rests with the defendant to show that the wrongful behavior will not recur

and—relevant here—because this Court presumes the government acts in good faith,

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“government actors carry a lesser burden than others.” Rich v. Sec’y, Fla. Dep’t of

Corr., 716 F.3d 525, 531 (11th Cir. 2013). With these principles in mind, this Court

addresses Defendants’ arguments.

Defendants’ first argument—that this case is moot because the University

retroactively reversed its decisions prohibiting Plaintiffs from testifying against the

state—fails because it contorts Plaintiffs’ claim into something it is not. This case is

not about what has happened; this case is about what will happen. Plaintiffs seek

only prospective relief. ECF No. 19 at 26. Further, Plaintiffs contend that the

University reversed course on its earlier denials to try to ride out the firestorm of

criticism those denials triggered. Once that storm is over, Plaintiffs say, the

University will pick up right where it left off. And that renewed application of the

conflict-of-interest policy is what Plaintiffs sue to prevent. Cf. Beta Upsilon Chi

Upsilon Chapter at the Univ. of Fla. v. Machen, 586 F.3d 908, 917 (11th Cir. 2009)

(holding when the plaintiff did not “mount a facial challenge to the text of the

Regulation,” but “merely challenged UF’s refusal to register the [plaintiff] chapter

as an RSO,” the case was moot once “[t]he chapter [was] registered”).

In short, Defendants’ first argument attacks the claims Defendants wish

Plaintiffs had made, not the claims Plaintiffs make. This case is not moot just because

the University reversed its past decisions.

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Though a closer call, Defendants’ second argument fairs no better. Defendants

argue that, because the University revised its conflicts policy after Plaintiffs filed

their amended complaint—requiring “clear and convincing evidence” of a conflict

of interest and imposing a “strong presumption” that professors be permitted to

testify against the state—this case is moot. Defendants are mistaken.

To be sure, the presumption favoring government actors “is particularly

warranted in cases where the government repealed or amended a challenged

. . . policy—often a clear indicator of unambiguous termination.” Doe v. Wooten,

747 F.3d 1317, 1322 (11th Cir. 2014). So “the enactment of new legislation which

repeals or materially amends the law being challenged . . . renders [a] lawsuit . . .

moot.” United States v. Georgia, 778 F.3d 1202, 1204 (11th Cir. 2015). But the

keyword is “materially.” When an amendment to a challenged policy does not

address the issue the plaintiff has identified with the policy, the amendment “does

not moot a request for prospective relief.” 13C Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 3533.6, Westlaw (database updated Apr.

2021). The classic example is when, as here, “the amendment changes only other

parts of ” the policy and leaves the challenged “provision unchanged.” Id.

For example, the Supreme Court confronted a similar shift in policy in a

challenge to a Jacksonville ordinance that gave “preferential treatment to certain

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minority-owned businesses in the award of city contracts.” Ne. Fla. Chapter of

Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 658

(1993). While the case was before the Court, Jacksonville repealed the challenged

ordinance and replaced it with a similar, but narrower, ordinance. Id. at 661. Having

replaced the challenged ordinance, Jacksonville then asked the Court to dismiss the

case as moot. Id.

The Court declined to do so. Rejecting Jacksonville’s argument, the Court

explained that “[t]here [was] no mere risk that Jacksonville will repeat its allegedly

wrongful conduct;” by implementing the new ordinance, “it ha[d] already done so.”

Id. at 662. It made no difference “that the new ordinance differ[ed] in certain respects

from the old one.” Id. If the imposition of a new ordinance could always moot a case,

the Court explained, “a defendant could moot a case by repealing the challenged

statute and replacing it with one that differs only in some insignificant respect.” Id.

Finally, the Court explained that the case before it was not moot because the new

ordinance “disadvantage[d] [the plaintiffs] in the same fundamental way” as the old

ordinance. Id. See also Seay Outdoor Advert., Inc. v. City of Mary Esther, Fla., 397

F.3d 943, 947 (11th Cir. 2005) (“The Supreme Court cautions against holding a

challenge to a repealed law moot if the law is . . . replaced by another constitutionally

suspect law.”).

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So too here. Defendants have already repeated their allegedly wrongful

conduct by implementing the new policy. That policy, like the old policy, sets no

time limit within which the University must decide a request to testify. Allowing it,

Plaintiffs say, to run out the clock on any request. More to the point, the new policy

does not repudiate the premise that the University may reject a request to testify not

because testifying would interfere with the professor’s duties, but because the

testimony the professor intends to deliver would so infuriate Florida’s political

leaders that it would harm the University’s bottom line. And it is that premise that

Plaintiffs contend violates the Constitution.

Because the new policy retains the features Plaintiffs challenge, it harms

Plaintiffs in the same fundamental way as the old policy. See CAMP, 451 F.3d at

1275 (“[I]t is the existence, not the imposition, of standardless requirements that

causes [Article III] injury.”). In short, even under the new policy, the harm alleged

in Plaintiffs’ amended complaint continues unabated. This case is not moot.

III

Next, this Court considers Defendants’ 12(b)(6) arguments for dismissal based

on the collective bargaining agreement. In evaluating Defendants’ motion, this Court

accepts the allegations in the amended complaint as true and construes them in the

light most favorable to Plaintiffs. See Hunt v. Amico Props., L.P., 814 F.3d 1213,

1221 (11th Cir. 2016). “To withstand a motion to dismiss under Rule 12(b)(6), a

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complaint must include ‘enough facts to state a claim to relief that is plausible on its

face.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A ‘claim

has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Plaintiff’s

allegations must amount to ‘more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly,

550 U.S. at 555).

In moving to dismiss for failure to state a claim, Defendants make two

arguments. First, they assert that Plaintiffs Austin, McDonald, and Smith failed to

grieve or arbitrate their disputes under their CBA, and therefore their claims are

barred. Second, Defendants assert these same Plaintiffs waived their First

Amendment claims under the CBA. This Court addresses each argument in turn.

First, Defendants assert that Plaintiffs Austin, McDonald, and Smith’s failure

to grieve under their CBA the University’s denial of their request to participate in

voting-rights litigation bars them from pursuing their claims. Defendants point to

Article 28 of the CBA, which sets out a three-part “mandatory” grievance process

and—according to Defendants—controls over Article 23’s specific carve-out for

asserting constitutional claims in court. ECF No. 23 at 31, 34–35. Not so.

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Defendants attach the CBA to their motion to dismiss. See ECF No. 23-1 at

7. 5 Article 28 of the CBA specifically provides that “[t]he procedures in this Article

shall be the sole and exclusive method for resolving the grievances of faculty

members except where explicitly specified elsewhere in this Agreement.” ECF No.

23-1 at 128 (emphasis added). Article 28 defines a “grievance” as “a dispute

concerning the interpretation or application of a specific term or provision of this

Agreement, subject to specific exclusions appearing in other articles of this

Agreement.” Id. (emphasis added). Article 28 also explains the process for filing a

grievance this way: “Except as explicitly specified elsewhere in this Agreement, this

grievance procedure shall be the sole review mechanism for resolving disputes

regarding rights or benefits that are provided exclusively by this Agreement.” Id. at

129 (emphasis added).

Accordingly, Article 28 recognizes that the CBA identifies some disputes

elsewhere in the agreement that are not subject to Article 28’s grievance

requirements. Relevant here is Article 23, which provides that “[a]ny alleged

violation of [faculty members’ constitutional] rights shall not be subject to the

grievance and arbitration procedure of this Agreement, but shall be subject to

5
In ruling on Defendants’ motion to dismiss, this Court may consider the CBA’s terms
without converting Defendants’ motion into a motion for summary judgment. This is because, “[i]n
ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is (1)
central to the plaintiff’s claim, and (2) its authenticity is not challenged.” SFM Holdings, Ltd. v.
Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). Both requirements are met here.
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vindication only by a court of competent jurisdiction.” ECF No. 23-1 at 104

(emphasis added). The plain language of the CBA thus “explicitly specifies” that any

alleged constitutional violations—like Plaintiffs’ First Amendment challenge—are

not subject to the grievance procedure under Article 28.

Moreover, a recent Eleventh Circuit case addressing a similar issue provides

little help for Defendants’ argument. Citing Tracy v. Florida Atlantic University

Board of Trustees, 980 F.3d 799 (11th Cir. 2020), Defendants claim that the CBA’s

mandatory grievance procedures apply to Plaintiffs’ claims and that their failure to

timely grieve their disputes means that Plaintiffs have forfeited their claims. But, in

Tracy, the Eleventh Circuit differentiated between the professor’s contract claim—

which was subject to the CBA’s grievance requirements—and the professor’s

constitutional claims. The Eleventh Circuit ultimately disposed of the professor’s

constitutional claims on the merits after assuming without deciding that the

grievance procedures under her CBA did not apply to bar her section 1983 claim.

See Tracy, 980 F.3d at 806 (listing cases “indicating that § 1983 claims generally

need not be exhausted and that collective bargaining agreements are not immune to

constitutional challenges”); see also Hochman v. Bd. of Ed. of City of Newark, 534

F.2d 1094, 1097 (3d Cir. 1976) (“When appropriate federal jurisdiction is invoked

alleging violation of First Amendment rights, . . . we may not insist that he first seek

his remedies elsewhere no matter how adequate those remedies may be.”).

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In sum, the plain language of the CBA explicitly specifies an exception to

Article 28’s grievance requirements for “any alleged violation” of a faculty

member’s constitutional rights. And myriad case law confirms that such section 1983

claims are not subject to exhaustion of state administrative remedies—including

union grievance procedures. See Narumanchi v. Bd. of Trs. of Conn. State Univ., 850

F.2d 70, 73 (2d Cir. 1988) (“Nor is it permissible in light of Patsy v. Board of Regents,

. . . to require initial recourse to available state proceedings, including union

grievance proceedings, for the enforcement of First Amendment rights protectable

in federal court pursuant to section 1983.” (citing Patsy v. Bd. of Regents, 457 U.S.

496 (1982))). For these reasons, Plaintiffs Austin, McDonald, and Smith may

proceed with their claims in federal court despite their failure to grieve their disputes

under the CBA.

Lastly, Defendants assert that Plaintiffs Austin, McDonald, and Smith agreed

to grieve any denial to participate in outside activities as an “impermissible conflict”

under Article 26 of the CBA and therefore waived their First Amendment claims.

ECF No. 23 at 36–38. To support this proposition, Defendants heavily rely on the

Third Circuit’s unpublished decision in Barnard v. Lackawanna County, 696 F.

App’x 59 (3d Cir. 2017). In Barnard, the Third Circuit affirmed the district court’s

dismissal of a union member’s First Amendment retaliation claim based on her

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suspension for participating in a sympathy strike when her collective bargaining

agreement specifically waived her First Amendment right to participate in sympathy

strikes. The district court noted that “[t]he Supreme Court has long recognized that

a party may waive constitutional rights if there is ‘clear’ and ‘compelling’ evidence

of waiver and that waiver is voluntary, knowing, and intelligent.” Barnard v.

Lackawanna Cnty., 194 F. Supp. 3d 337, 343 (M.D. Pa. 2016) (quoting Democratic

Nat’l Comm. v. Republican Nat’l Comm., 673 F.3d 192, 205 (3d Cir. 2012)). In

dismissing Barnard’s First Amendment claim, the district court cited relevant

portions of her CBA that explicitly and specifically defined a “strike” and “sympathy

strike” and waived the right to engage in such activities for the rest of the agreement.

Id. at 344 (“The terms of the CBA unambiguously waive the plaintiff’s ability to

participate in strikes or sympathy strikes. The court need not interpret the contract

to come to this conclusion.”).

Here, on the other hand, Plaintiffs’ CBA explicitly reaffirms their

constitutional rights and their ability to challenge “any alleged violation” of such

rights in court. See ECF No. 23-1 at 104. And Defendants cite no provision of the

CBA that waives Plaintiffs’ First Amendment right to be free from content- or

viewpoint-based discrimination in the conflict-of-interest approval process. A

dispute arising from the CBA that is not grounded in an alleged constitutional

violation must be grieved in accordance with the CBA. But the CBA explicitly

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carved out “any alleged [constitutional] violation” from such grievance

procedures—as discussed above. Accordingly, at this point, this Court cannot agree

that Plaintiffs waived their First Amendment claim through the CBA. For these

reasons, Defendants’ motion to dismiss, ECF No. 23, is DENIED.

SO ORDERED on January 3, 2022.

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