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Klaassen v. University of Kansas School of Medicine

United States District Court, D. Kansas

February 3, 2015

CURTIS KLAASSEN, Ph.D., Plaintiff,
v.
UNIVERSITY OF KANSAS SCHOOL OF MEDICINE, ET AL., Defendants

For Curtis Klaassen, Ph.D., Plaintiff: Jeremy K. Schrag, LEAD ATTORNEY, Alan L. Rupe, Kutak Rock LLP - Wichita, Wichita, KS.

For University of Kansas School of Medicine, The, University of Kansas, Barbara Atkinson, Gerald Carlson, Paul Terranova, Bruno Hagenbuch, Gregory Kopf, Steven Stites, Hartmut Jaeschke, Cody Tully, Robert Klein, Alan Rawitch, University of Kansas Medical Center, The, Douglas Girod, Defendants: Anthony F. Rupp, Tara S. Eberline, LEAD ATTORNEYS, Foulston Siefkin LLP - OP, Overland Park, KS; Sara L. Trower, LEAD ATTORNEY, University of Kansas, Office of the General Counsel, Lawrence, KS.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge.

The University of Kansas fired plaintiff Dr. Curtis Klaassen, a longtime medical professor at the school, on January 24, 2014. Plaintiff filed this lawsuit against the University of Kansas, the University of Kansas School of Medicine, and the University of Kansas Medical Center (collectively, " KUMC" ). Plaintiff also sued various KUMC officials in their official and individual capacities. Plaintiff alleges that defendants retaliated against him and violated various federal and state laws after he criticized KUMC for financial mismanagement, misuse of grant funds, and other misconduct.

Defendants filed an Answer (Doc. 79) and then filed two Motions for Judgment on the Pleadings (Docs. 80, 82) on June 17, 2014. On January 26, 2015, plaintiff filed a Motion for Leave to Amend the Complaint (Doc. 101). This Memorandum and Order addresses plaintiff's Motion fi vor Leave to Amend and both Motions for Judgment on the Pleadings. For the following reasons, the Court grants plaintiff's Motion for Leave to Amend and grants defendants' Motions for Judgment on the Pleadings in part and denies them in part. Specifically, the Court dismisses all claims asserted by plaintiff's Second Amended Complaint except:

o Counts 1, 6, and 7 -- First Amendment Retaliation, Procedural Due Process, and Substantive Due Process against defendant Girod in his official capacity;
o Count 1 -- First Amendment Retaliation against the Individual Defendants in their individual capacities;
o Count 6 -- Procedural Due Process against defendants Stites and Girod in their individual capacities;
o Count 12 -- Tortious Interference with a Prospective Business Relationship against defendants Terranova, Kopf, Jaeschke, Carlson, and Hagenbuch in their individual capacities;
o Count 13 -- Conversion against defendant Stites in his individual capacity;
o Count 14 -- Tortious Interference with Contract against defendant Stites in his individual capacity; and
o Count 15 -- Violations Pursuant to the Kansas Judicial Review Act against KUMC.

I. Motion for Leave to Amend

Plaintiff seeks leave amend his Complaint by filing the Second Amended Complaint (Doc. 101-1). The Second Amended Complaint is substantially similar to the Amended Complaint. However, it makes two sets of relevant changes: (1) it adds allegations to Counts 1, 6, 8, 9, and 11; and (2) it adds Count 15, a claim under the Kansas Judicial Review Act. Fed.R.Civ.P. 15(a)(2) instructs that the Court " should freely give leave [to amend the complaint] when justice so requires." The Court has not entered a scheduling order in this case, and the litigation is still in its early stages. Plaintiff asserts that he seeks to add allegations based on facts he discovered in a parallel state court lawsuit and to update the Court that he has exhausted his administrative remedies on his Kansas age discrimination claim. The Court concludes that this explanation is reasonable and therefore grants plaintiff's Motion for Leave to Amend.

The Second Amended Complaint supersedes the Amended Complaint. Nevertheless, the Court will still rule on defendants' two Motions for Judgment on the Pleadings--which attack the Amended Complaint--because the Second Amended Complaint is in large part identical to the Amended Complaint. However, where plaintiff had modified or added allegations in a way that prevents the Court from ruling on defendants' motions on a particular claim, defendants may file additional motions for judgment on the pleadings because they have not had a chance to challenge plaintiff's pleading of his Second Amended Complaint.

II. Factual Background

The following facts are taken from plaintiff's Second Amended Complaint and viewed in the light most favorable to him. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014).

Plaintiff served as a professor at KUMC from 1968 until the school fired him in 2014. Plaintiff's duties as a tenured KUMC medical professor involved applying for and winning research grants. Research grants funded not only his research, but also part of his salary and the salaries of the graduate students who worked with him. When plaintiff won a grant, he became the " principal investigator" for that grant. The principal investigator is responsible for the scientific and technical direction of a project funded by a research grant. During his time at KUMC, plaintiff was particularly successful at winning grants from the National Institutes of Health (" NIH" ). However, whenever plaintiff won an NIH grant, the NIH actually awarded the grant to KUMC, not plaintiff. In other words, KUMC always was the actual recipient of NIH grants.

The dispute that led to this lawsuit started in 2010, when plaintiff became dissatisfied with then-Dean of the School of Medicine Barbara Atkinson's leadership at KUMC. Plaintiff helped form a " Committee of Eight," made up of the Chairs of the basic sciences departments, which met with the University of Kansas' Chancellor to express concerns about KUMC's financial situation and lack of shared governance. In March 2011, the Committee of Eight met with Atkinson, during which plaintiff accused her and KUMC of taking money from the basic sciences programs to pay for other KUMC programs. In April 2011, one month after their meeting, Atkinson removed plaintiff from his position as Chair of the Pharmacology/Toxicology Department, a position he had held for nine years.

In October 2011, plaintiff met with members of the Pharmacology/Toxicology Department to discuss one of plaintiff's NIH grants. During the meeting, plaintiff accused KUMC and two KUMC officials of mismanaging federal grant money. On November 1, 2011, plaintiff also spoke with Dr. Gregory Kopf, Associate Vice Chancellor of Research Administration and Executive Director of the KUMC Research Institute, Inc. (" KUMCRI" ) about KUMC's mismanagement of federal grant money.

Following those meetings, Paul Terranova, Vice Chancellor for Research, directed KUMC to place plaintiff on administrative leave with pay from November 1, 2011 through December 15, 2011, citing his " belligerent behavior" and " mishandling [of] grant funds." Doc. 101-1 at ¶ ¶ 11, 55. Plaintiff asserts that the allegations of misconduct against him were pretextual and that KUMC placed him on administrative leave because he complained about KUMC's mismanagement of federal grant money, lack of shared governance, and financial mismanagement.

On November 21, 2011, at Terranova's direction, KUMC submitted requests to the NIH to remove plaintiff as the principal investigator for two grants and replace him with two other KUMC researchers. On January 10, 2012, KUMC reassigned plaintiff from the Department of Pharmacology/Toxicology to the Internal Medicine department and notified him it was moving his assigned office and research laboratory space to another building away from the Department of Pharmacology/Toxicology. That same day, KUMC administration told plaintiff he had overspent on his remaining NIH grants. Plaintiff maintains that the grants were overspent because Terranova and Kopf took money out of the accounts without plaintiff's permission.

In November 2011, while plaintiff was on leave, Terranova asked Allen Rawitch, Vice Chancellor for Academic Affairs at KUMC, to investigate plaintiff. Following his investigation, Rawitch prepared an Inquiry Report. This report outlined a number of incidents that KUMC officials considered evidence of plaintiff's unprofessional behavior. Plaintiff contends the Inquiry Report was a pretext and KUMC actually placed him on leave because he had criticized the school.

On May 29, 2012, Rawitch convened an ad hoc faculty committee to hear the allegations described in the Inquiry Report. The hearing committee recommended that KUMC publicly censure plaintiff and asked plaintiff to issue a general apology. Steven Stites, Chair of the Department of Internal Medicine and Vice Chancellor for Clinical Affairs, adopted the committee's recommendation.

In December 2012, plaintiff sent an e-mail to Stites, who was then Interim Dean and Executive Vice Chancellor of KUMC, and to another Internal Medicine department professor. This e-mail complained that KUMC had misappropriated NIH grant funds by transferring money from accounts for which plaintiff served as principal investigator to accounts not related to the grant's research. On May 1, 2013, plaintiff met with Stites and others in the Internal Medicine department to discuss the grants. Plaintiff told Stites during the meeting that KUMC had misappropriated $200,000 in grant funds for which plaintiff then served or previously had served as principal investigator. Plaintiff alleges Stites improperly suggested using money from new grants to cover deficits in old existing grants, which plaintiff said was unethical conduct.

On May 8, 2013, Stites placed plaintiff back on administrative leave. According to plaintiff, Stites did so because plaintiff objected to KUMC's handling of grant money. In September 2013, while plaintiff remained on administrative leave with pay, KUMC asked the NIH to remove plaintiff as principal investigator on another grant.

On November 13, 2013, KUMC held a hearing before a faculty committee at which it charged plaintiff with professional misconduct and requested his termination. Plaintiff alleges that Stites and other employees received promotions from KUMC for their testimony against him at this hearing. After the hearing, the faculty committee recommended that KUMC reinstate plaintiff immediately and give him only a written warning. However, Executive Vice Chancellor Douglas Girod rejected the committee's recommendation and instead terminated plaintiff, effective January 24, 2014.

Plaintiff brings fifteen counts of federal and state claims against KUMC and eleven current and former KUMC employees (the " Individual Defendants" ). Defendants seek judgment on the pleadings on all of plaintiff's federal claims and five of his seven state law claims.

III. Legal Standard -- Motion for Judgment on the Pleadings

Defendants seek judgment on the pleadings under Fed.R.Civ.P. 12(c). Courts evaluate a Rule 12(c) motion under the same standard as a Rule 12(b)(6) motion to dismiss. See Turner v. City of Tulsa, 525 F.App'x 771, 772 (10th Cir. 2013).

The Court will grant a motion for judgment on the pleadings only when the factual allegations in the complaint fail to " state a claim for relief that is plausible on its face," Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). " 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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556). " Under this standard, 'the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.'" Carter v. United States, 667 F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).

IV. Claims Against KUMC and the Individual Defendants in their official capacities

A. Defendants Are Entitled to Judgment on the Pleadings on Plaintiff's Federal Law Claim Against KUMC

1. Title 31 U.S.C. § 3730(h) Does Not Authorize Suits Against States

Defendants seek judgment on all federal claims asserted against the three institutional defendants, who this order collectively refers to as KUMC.[1] Defendants argue plaintiff asserts just one federal claim against KUMC, for violating the federal False Claims Act (Count 8). However, Count 1 asserts § § 1983 and 1988 claims against " All of the Individually Named Defendants." Doc. 101-1 at 20. While " Individually Named Defendants" arguably includes KUMC--each institution is individually named in the Second Amended Complaint--plaintiff concedes he has not sued KUMC on Count 1. In plaintiff's Opposition to Defendants' Motion for Judgment on the Pleadings (Doc. 91), plaintiff defends only its False Claims Act count against KUMC and devotes none of his arguments to saving Count 1. As a result, the Court concludes plaintiff brings just one federal law claim against KUMC, under the False Claims Act.

The False Claims Act (" FCA" ) serves to attack fraud in government-funded programs. Title 31 U.S.C. § § 3729(a) and 3730(b) authorize individuals (called " relators" ) to file a lawsuit in the name of the United States against " any person" who has defrauded federal government programs. The relator receives a share of any proceeds recovered in the action--generally ranging from 15 to 30 percent, depending on whether the government intervenes in the lawsuit--plus attorney's fees and costs. § § 3730(d)(1)-(2).

To prevent an employer from retaliating against an employee for investigating potential fraud or initiating an FCA action, the FCA contains an anti-retaliation provision. This provision, § 3730(h) of the FCA, provides:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.

Relief for violating § 3730(h) includes reinstatement, two times the amount of back pay, costs, and attorney's fees. § 3730(h)(2).

Plaintiff argues that KUMC violated § 3730(h) by placing him on administrative leave, transferring him to a different department, removing his status as a principal investigator on several NIH grants, preventing him from conducting research, and terminating his employment after he complained that defendants had misused federal grant funds. Plaintiff asserts that the Eleventh Amendment does not bar this claim because KUMC waived its sovereign immunity.

In response, defendants argue that the Court need not reach the sovereign immunity issue because the three KUMC institutions are considered states, and the statutory text of § 3730(h) does not provide for suits against states. In the alternative, defendants argue that even if § 3730(h) provided for such suits, the Eleventh Amendment nevertheless bars the claims because KUMC did not waive its sovereign immunity.

There is no dispute that the three institutional defendants are " arms of the State" and therefore are considered " states" here. Doc. 91 at 3-4 (" KUMC is an arm of the state . . . ." ); Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1195 (10th Cir. 1998) (holding that under Kansas law the University of Kansas and the University of Kansas Medical Center are arms of the State of Kansas). As a result, the Court must consider whether § 3730(h) creates a cause of action against states.

The Supreme Court has indicated that a federal court, when confronted with the question of whether a statute authorizes suits against states, should decide the statutory question before deciding whether the Eleventh Amendment bars the claim. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 780, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). " When these two questions are at issue, not only is the statutory question logically antecedent to the existence of the Eleventh Amendment question . . . but also there is no realistic possibility that addressing the statutory question will expand the Court's power beyond the limits that the jurisdictional restriction has imposed." Id. at 779 (internal citations omitted). Thus, the Court will first determine whether the text of § 3730(h) provides for a claim against states (and state agencies, like KUMC).

Courts do not determine whether a statute authorizes claims against states using the " ordinary method of statutory construction." Will v. Mich. Dep't of State Police, 491 U.S. 58, 72, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (Brennan, J. dissenting). Rather, two Supreme Court cases-- Will, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), and Stevens, 529 U.S. 765, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000)--make it clear that the Eleventh Amendment significantly influences the analysis.

In Will, the Supreme Court considered whether 42 U.S.C. § 1983 authorized suits against states or state officials acting in their official capacities. 491 U.S. at 60. The Court held that " [t]he language of § 1983 [] falls far short of satisfying the ordinary rule of statutory construction that if Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute.'" Id. at 65 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). The Court continued, holding that " Congress should make its intention 'clear and manifest' if it intends to pre-empt the historic powers of the States" --namely, the power to be free from facing lawsuits in federal courts. Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). The Court also noted that the scope of the Eleventh Amendment and the scope of § 1983 are " [c]ertainly" separate issues, but concluded that " in deciphering congressional intent as to the scope of § 1983, the scope of the Eleventh Amendment is a consideration, and we decline to adopt a reading of § 1983 that disregards it." Id. at 66-67.

In Stevens, the Supreme Court applied Will 's general scheme of analysis to evaluate whether a different provision of the FCA--§ 3729(a)--provides for suits against states. 529 U.S. at 779. At the time the Supreme Court decided Stevens,[2] § 3729(a) imposed liability on " [a]ny person" who, among other things, " knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval." The plaintiff in Stevens brought a qui tam action under § 3729(a) against the Vermont Agency of Natural Resources, a state agency. Stevens, 529 U.S. at 768. The Court wrote that the question in the case is whether § 3729(a) " itself permits the cause of action it creates to be asserted against States (which it can only do by clearly expressing such an intent)." Id. at 779 (emphasis in original). The Court concluded that the text of § 3729(a) contained nothing to overcome the " longstanding interpretive presumption that 'person' does not include the sovereign." Id. at 780, 782. Furthermore, the Court, citing Will, held that Congress failed to " make its intention . . . unmistakably clear" that § 3729(a) authorized suits against states. Id. at 787. For those reasons, among others, the Court concluded that the defendant Vermont Agency of Natural Resources was not liable under § 3729(a). Id. at 787-88.

Plaintiff argues that Will and Stevens are inapposite because the statutes at issue in those cases differ from § 3730(h). These two cases evaluated whether the word " person" in two statutes--§ § 1983 and 3729(a)--authorized lawsuits against states. Plaintiff points out that § 3730(h) never uses the word " person." However, the Court finds Will and Stevens valuable for the scheme of analysis they employ, not because the statutes in those cases are identical to the one at issue here. Together, they instruct that the text of § 3730(h) must make it " unmistakably clear" that Congress intended to authorize suits against states. Stevens, 529 U.S. at 787.

Section 3730(h) provides that private party " shall be entitled to all relief necessary" if that private party " is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment . . . ." The subsection does not limit whom the private party may sue as a defendant. However, such silence about who may be a defendant does not satisfy the requirement for a clear statutory statement of congressional intent waiving state sovereign immunity. Accord Bell v. Dean, No. 2:09-CV-1082-WKW, 2010 WL 1856086, at *4 (M.D. Ala. May 4, 2010). Furthermore, § 3730(h) gives employees a right to relief if their employer retaliates against them " in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter." It is anomalous, in the Court's view, to allow plaintiff to recover for retaliation against KUMC under § 3730(h) of the FCA when Stevens bars him from bringing an FCA claim against KUMC on behalf of the government under § 3729(a).

The Court's conclusion that § 3730(h) does not authorize suits against states is buttressed by decisions in other courts that have considered this precise issue. " Multiple federal courts have concluded that subsection 3730(h) does not reflect the requisite congressional intent to waive state sovereign immunity . . . ." Bell, 2010 WL 1856086, at *3; United States ex rel. Paris v. Tr. of Ind. Univ., No. 1:11-cv-1029-JMS-DKL, 2012 WL 2376088, at *1 (S.D. Ind. June 22, 2012) (" [T]he Court will follow the multiple other courts that have refused to find that individuals can make anti-retaliation actions against state entities." ); Huang v. Rector & Visitors of the Univ. of Va., No. 3:11-cv-50, 2011 WL 6329755, at *6 (W.D. Va. Dec. 19, 2011) (holding the plaintiff " has not demonstrated that Congress intended to waive state sovereign immunity in § 3730(h)." ).

Only one court has held to the contrary. In an unpublished per curiam opinion, the Fifth Circuit held that the 2009 amendments to § 3730(h) " prevent[ed]" it from holding that § 3730(h) does not cover suits against states. U.S. ex rel. King v. Univ. of Tex. Health Sci. Ctr.-Hous., 544 F.App'x 490, 499 (5th Cir. 2013). Before the 2009 amendments, § 3730(h) stated that " [a]ny employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer. . . shall be entitled to all relief necessary to make the employee whole" (emphasis added). The new version deleted the language that limited recovery to those discriminated against by " his or her employer." As a result, the current § 3730(h) is broader than the pre-2009 version. Even so, the Court fails to see how this change expresses a clear congressional intent to hold states liable for retaliation under the FCA. Consequently, the Court is not persuaded by King and declines to follow its approach. Instead, the Court follows those courts that have held § 3730(h) does not authorize suits against states, even after 2009. E.g., Bell, 2010 WL 1856086, at *4 (" [The plaintiff's] general assertion that the amendment was intended to broaden the statute cannot overcome the requirement for a clear statement that Congress meant to override states' sovereign immunity by permitting subsection 3730(h) suits against official-capacity defendants." ); Huang, 2011 WL 6329755, at *6 (rejecting argument that 2009 amendments to § 3730(h) subject states to liability).

In sum, the Court concludes that § 3730(h) does not authorize a retaliation cause of action against states. Because the three KUMC institutions are considered states, plaintiff cannot state a § 3730(h) claim against KUMC.[3] The Court dismisses Count 8's claim against KUMC.[4]

In addition, Count 8 asserts a claim against the Individual Defendants in their official capacities for violating § 3730(h). A suit against a state official in his official capacity is treated as a suit against the government entity he represents. Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (" Official-capacity suits . . . 'generally represent only another way of pleading an action against an entity of which an officer is an agent.'" (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978))). Because § 3730(h) does not provide for retaliation claims against states, the Court also dismisses plaintiff's § 3730(h) claim against the Individual Defendants in their official capacities.

B. The Eleventh Amendment Bars Plaintiff's State Law Claims Against KUMC and the Individual Defendants in Their Official Capacities

Plaintiff asserts five state law claims against KUMC and the Individual Defendants in their official capacities: violation of the Kansas Age Discrimination in Employment Act (Count 9), violation of the Kansas False Claims Act (Count 10), unlawful retaliation (Count 11), conversion (Count 13), and violations pursuant to the Kansas Judicial Review Act (Count 15). If the Eleventh Amendment did not exist, the supplemental-jurisdiction statute, 28 U.S.C. § 1367, would give the district court jurisdiction to hear plaintiff's state law claims. Section 1367(a) provides that a federal court with original jurisdiction over one claim may exercise " supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III or the United States Constitution." " A claim is part of the same case or controversy if it derives from a common nucleus of operative fact." Price v. Wolford, 608 F.3d 698, 702-03 (10th Cir. 2010) (internal citations omitted). Plaintiff's state law claims satisfy this standard because plaintiff premises his state law claims on the same acts relied on by his § 1983 claims.

But the Eleventh Amendment does exist, and it bars federal-court jurisdiction over private suits against a state by citizens of the state. Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 267-68, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). The bar extends to state law claims filed against states in federal court: " a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). " [T]his principle applies as well to state-law claims brought into federal court under pendent jurisdiction." Id. Because supplemental jurisdiction under § 1367 does not override the Eleventh Amendment's bar on suing a state in federal court, the Eleventh Amendment generally bars plaintiff's state law claims against KUMC and the Individual Defendants in their official capacities. Pettigrew v. Okla. ex rel. Okla. Dep't of Pub. Safety, 722 F.3d 1209, 1213 (10th Cir. 2013).

An exception exists to the Eleventh Amendment's bar on federal court suits against states: a state may waive its immunity and consent to be sued in federal court. Atascadero State Hosp., 473 U.S. at 238. " [A] State may effectuate a waiver of its constitutional immunity by a state statute or constitutional provision, or by otherwise waiving its immunity to suit in the context of a particular federal program." Id. at 238 n.1. Both means of waiving immunity " require an unequivocal indication that the State intends to consent to federal jurisdiction that otherwise would be barred by the Eleventh Amendment" Id. " The test for determining whether a State has waived immunity from federal-court jurisdiction is a stringent one." Id. at 241. A state is deemed to have waived its immunity " only where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction." Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (internal citation omitted).

As the Court mentioned previously, plaintiff contends that KUMC waived sovereign immunity against plaintiff's FCA claim; however, the Court did not reach that argument in the FCA context because it concludes that the FCA's ...


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