II. 42 U.S.C. § 1983
Defendants next argue that plaintiff's claim under 42 U.S.C. § 1983
is barred by the Eleventh Amendment and by the statute of limitations.
A. The Eleventh Amendment
The Eleventh Amendment bars federal court suits that seek retrospective money damages against state agencies. See Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347, reh'g denied, 416 U.S. 1000, 40 L. Ed. 2d 777, 94 S. Ct. 2414 (1974). Defendants argue that all of the defendants are "state agencies" for purposes of the Eleventh Amendment, and thus that Mr. Clemes' claims against them are barred.
The school district is clearly a state agency. In Belanger v. Madera Unified School Dist., 963 F.2d 248 (9th Cir. 1992), cert. denied, U.S. , 122 L. Ed. 2d 674, 113 S. Ct. 1280 (1993), the Ninth Circuit squarely held that a school district in California was a state agency for eleventh amendment purposes.
Mr. Clemes argues that notwithstanding Belanger, the school district in this case is not a state agency, since one factor relevant to the question of whether an entity is an agency of the state -- namely whether a money judgment would be satisfied from state funds -- is different here than in Belanger. In fact, the Belanger court stated that whether one knew if the judgment would be paid from state funds or local funds or a combination of both was immaterial in California since the state's centralized school funding system commingles state and local revenues in a common fund under state control. Id. at 251-52.
The individual defendants also clearly fall within the scope of the Eleventh Amendment. State officials sued in their official capacity enjoy the same eleventh amendment protection as is afforded to states. Although literally persons, "a suit against a state official is not a suit against the official but rather is a suit against the official's office." Will v. Mich. Dept. State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989) (citing Brandon v. Holt, 469 U.S. 464, 471, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985)). "As such, it no different from a suit against the State itself." Will, 491 U.S. at 71. As the District is a state agency, to the extent to which Mr. Clemes seeks to sue the individually named defendants in their official capacity for retrospective relief, those claims are also barred by the eleventh amendment. On the basis of Mr. Clemes' complaint, this court finds that all defendants are sued in their official capacities.
Mr. Clemes argues that, even if the Eleventh Amendment does apply to these defendants, Congress has waived this immunity for actions under 42 U.S.C. § 1983. Mr. Clemes is correct in asserting that Congress may waive Eleventh Amendment immunity, but is incorrect in asserting that it has done so with respect to suits under section 1983. If Congress wishes to abrogate Eleventh Amendment immunity, it must do so unequivocally. See Dellmuth v. Muth, 491 U.S. 223, 227-28, 105 L. Ed. 2d 181, 109 S. Ct. 2397 (1989). Mr. Clemes argues that the 1987 Civil Rights Restoration Act, 100 Stat. 1845, provides such an unequivocal statement.
As part of that Act, Congress added the following amendment to the Rehabilitation Act:
A State shall not be immune under the Eleventh Amendment of the constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972 . . . title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
42 U.S.C. § 2000d. Because the Independent Studies Program receives federal funds, reasons Mr. Clemes, his suit under section 1983 may proceed.
The circuits which have considered whether this amendment abrogates immunity for suits under section 1983 have clearly found to the contrary. As stated in Kaimowitz v. Bd. of Trustees of Univ. of Ill., 951 F.2d 765 (7th Cir. 1991), "section 1983 is a different creature than the three statutes listed in [2000d-7] . . . unlike these statutes, § 1983 does not specifically prohibit discrimination by recipients of federal financial assistance . . . ." Id. at 768. The court thus held that section 2000d does not provide the type of clear congressional statement necessary to abrogate Eleventh Amendment immunity. See id.; see also Cone Corp. v. Florida Dep't of Transportation, 921 F.2d 1190, 1201 n.37 (11th Cir.) (affirming that Eleventh Amendment bars suit under 42 U.S.C. § 1983 but not under 42 U.S.C. § 2000d), cert. denied, U.S. , 111 S. Ct. 2238 (1991). This court agrees with those courts that have concluded that section 2000d-7 does not strip states of the immunity provided by the Eleventh Amendment for suits under 42 U.S.C § 1983.
Defendants are therefore correct that all of the defendants fall under the Eleventh Amendment. This fact alone is insufficient, however, to dismiss plaintiff's claims. The Eleventh Amendment bar extends only to suits for retrospective relief; injunctive relief is permissible since "official-capacity actions for prospective relief are not treated as actions against the State." Kentucky v. Graham, 473 U.S. 159, 167 n.14, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). Mr. Clemes seeks back pay, compensatory and punitive damages. These forms of relief are all retrospective and therefore are barred. Quern v. Jordan, 440 U.S. 332, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979); Sauceda v. Wash. Dept. of Labor & Ind., 917 F.2d 1216, 1218 (9th Cir. 1990). Mr. Clemes also seeks reinstatement, however, which is an equitable remedy and is therefore permissible.
The only appropriate defendants against whom Mr. Clemes may seek relief on this claim are defendant Edinger and defendant McCarthy.
Accordingly, Mr. Clemes' claim under 42 U.S.C. § 1983 against the District and against individual defendants Balzarini, Fosdick, and Marcum are dismissed in their entirety. Mr. Clemes is given leave to amend, however, in order to allege that these individually named defendants are liable in their individual capacity. Mr. Clemes is also given leave to amend his complaint in order to allege that defendants Edinger and McCarthy are liable in their individual capacity, should he so desire.
B. Statute of Limitations
Defendants have also moved this court to dismiss Mr. Clemes' section 1983 claim as barred by the statute of limitations. Where Congress has not established a time limitation for a federal cause of action, federal courts rely on state law to determine the length of the statute of limitations. Hoesterey v. City of Cathedral City, 945 F.2d 317, 318 (9th Cir. 1991) (citing Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985)), cert. denied, U.S. , 112 S. Ct. 1941 (1992). Applying relevant California law, the statute of limitations for plaintiffs' federal civil rights claims is one year. See McDougal v. County of Imperial, 942 F.2d 668, 672-74 (9th Cir. 1991).
While it is true that certain of the alleged discriminatory acts in Mr. Clemes' complaint occurred in January 1992, more than a year before the filing of the complaint on May 21, 1993, under California's equitable tolling doctrine the statute may be tolled pending the pursuit of a formal legal remedy. Donoghue v. Orange Co., 848 F.2d 926, 930 (9th Cir. 1987). The pursuit of an administrative hearing constitutes such a remedy. Id. at 931. If there is "timely notice [in filing the first claim], lack of prejudice to the defendant, and reasonable and good faith conduct on the part of the plaintiff," the statute is properly tolled. Donoghue, 848 F.2d at 931 (quoting Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983)).
As there is no dispute by the defendants that these criteria have not been met in the instant case, and as the administrative hearings took place from August 31, 1992 to November 4, 1992, less than a year from filing the complaint on May 23, 1993, this court declines to dismiss Mr. Clemes' section 1983 claim as time-barred.
III. False Claims Act
Mr. Clemes also seeks relief under 31 U.S.C. § 3730(h), a provision of the False Claims Act. The False Claims Act sets up an elaborate mechanism by which private citizens may bring so-called "qui tam suits" on behalf of the government against defendants who have defrauded the government. See 31 U.S.C. § 3729 et seq. Section 3730(h), the provision under which Mr. Clemes has filed, provides relief for any employee who is retaliated against "because of lawful acts done by the employee . . . in furtherance of an action under this section."
The relief available includes reinstatement, back pay and attorneys' fees.
Defendants argue that because Mr. Clemes has not met any of the procedural requirements set forth in section 3730(b) or filed a qui tam suit against defendants, he is therefore not covered by the protections of section 3730(h). This court does not believe that Congress intended for this section to be read so restrictively. To begin with, the language of section 3730(h) states broadly that it covers retaliation for acts done "in furtherance of an action under this section." There is certainly no requirement in the language of the statute itself that a plaintiff have exhausted all of the requirements of section 3730(b) or have actually filed a qui tam suit.
Furthermore, such a narrow reading would be inconsistent with the purposes of the False Claims Act. Congress enacted the False Claims Act in order to discourage fraud against the government and to encourage persons with knowledge of fraud to come forward. See H.R. Rep. No. 660, 99th Cong., 2d Sess., 22 (1986). It would be inconsistent with these dual goals to impose upon section 3730(h) some sort of exhaustion requirement, as defendants appear to urge. Whistleblower statutes have traditionally been broadly construed, see Neal v. Honeywell, Inc., 826 F. Supp. 266, 270 (N.D. Ill. 1993), and this court sees no reason to break from tradition in this instance in order to read the statute in a manner which its plain language does not support. Other courts to consider the issue have reached the same conclusion that the retaliation provisions of the False Claims Act are available to whistleblowers whether or not they have pursued a qui tam action or taken the steps outlined in 31 U.S.C. § 3730(b). See id.; see also United States ex rel. Kent v. Aiello, 836 F. Supp. 720 (E.D. Cal., 1993), 93 Daily Journal D.A.R. 16611.
For purposes of this motion, it is unnecessary to delineate the exact reach of section 3730(h). Mr. Clemes alleges that he brought evidence of fraud against the government to the attention of his immediate supervisors, as well as to state officials and the Department of Justice. On the basis of these facts, this court is unable to say that Mr. Clemes can prove no set of facts that would entitle him to relief under 31 U.S.C. § 3730(h). Therefore defendants' motion to dismiss must be denied.
IV. Writ of Mandamus
Mr. Clemes seeks in his complaint a writ of mandamus to review the administrative decision of the Commission on Professional Competence. California Code of Civil Procedure § 1094.5 unquestionably provides for the right to judicial review of a statutorily mandated administrative order or decision. Boren v. State Personnel Board, 37 Cal. 2d 634, 637, 234 P.2d 981 (1951). However, this is a state remedy, not a federal remedy. This court therefore has no jurisdiction to hear this claim.
V. Supplemental Jurisdiction
Apparently realizing that many of his claims are untenable in federal court, Mr. Clemes attempts to persuade this court to exercise its supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) in order to have these claims heard in this forum nonetheless.
Section 1367(c) sets forth the occasions when it is appropriate for a federal court to decline to exercise supplemental jurisdiction:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,