Tufaro v. Board of Regents of the University of Oklahoma
Citation107 F.4th 1121
Date Filed2024-07-09
Docket23-6039
Cited33 times
StatusPublished
Full Opinion (html_with_citations)
Appellate Case: 23-6039 Document: 010111076876 Date Filed: 07/09/2024 Page: 1
FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
July 9, 2024
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ANTHONY P. TUFARO, D.D.S.,
M.D., F.A.C.S.,
Plaintiff - Appellant,
v. No. 23-6039
THE STATE OF OKLAHOMA EX
REL. BOARD OF REGENTS OF
THE UNIVERSITY OF
OKLAHOMA; JASON R. SANDERS,
M.D., MBA, in his individual and
official capacities as the Senior Vice
President and Provost; JOHN P.
ZUBIALDE, M.D., in his individual
and official capacities as the
Executive Dean of the College of
Medicine; BARISH H. EDIL, M.D.,
F.A.C.S., in his individual and official
capacities as Chair of the
Department of Surgery,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:20-CV-01138-J)
_________________________________
Shannon F. Davies, Spencer Fane, LLP (Courtney D. Powell, with her on the
briefs), Oklahoma City, Oklahoma, for Appellant.
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M. Daniel Weitman, University of Oklahoma Office of Legal Counsel (Tina S.
Ipka and John C. Curtis, III, with him on the brief), Norman, Oklahoma, for
Appellees.
_________________________________
Before HARTZ, McHUGH, and FEDERICO, Circuit Judges.
_________________________________
FEDERICO, Circuit Judge.
From 2017 to 2019, Dr. Anthony Tufaro served as Chief of Plastic &
Reconstructive Surgery and Professor of Medicine at the University of
Oklahoma (âOUâ). In 2019, OU gave Tufaro notice that his contract would not
be renewed. Following his departure from OU, Tufaro filed a wrongful
termination lawsuit in state court against OU and three OU doctors in his
chain of command (the âIndividual Defendantsâ; together with OU,
âDefendantsâ). Generally, he alleges that Defendants terminated him because
he was exposing a range of discrepancies and misconduct within OUâs Medical
and Dental Colleges.
Tufaroâs case was removed to federal court and, ultimately, none of his
claims advanced past summary judgment. Tufaro now appeals several of the
district court rulings that ended his case against Defendants.
I
In March 2017, OU offered Tufaro a âconsecutive termâ faculty position
to serve as Professor of Surgery and Chief of Plastic and Reconstructive
Surgery. His offer letter, which he and OU both signed, stated that he would
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be responsible for a range of research, teaching, clinical, supervisory, and
administrative duties.
In September 2017, OUâs Board of Regents formally approved Tufaroâs
appointment and sent him a contract for employment as a non-tenured faculty
member. Under the contract terms, Tufaro was âeligibleâ for consecutive
annual term appointments with no restriction on the number of terms he could
serve. Aplt. Appâx III at 128-29. Tufaro signed the contract on October 3, 2017.
Tufaroâs contract also specifically incorporated and made Tufaroâs
employment subject to the OU Health Sciences Faculty Handbook (the
âHandbookâ). The 2017 Handbook, which was in effect at the time, stated that
â[c]onsecutive term appointments are automatically renewed for the next fiscal
year unless notification of non-renewal is given[.]â Aplt. Appâx I at 39. The
Handbook also included a notice period for any ânon-renewalâ that increased
upon each year of employment at OU. For example, in year one, the Handbook
guaranteed Tufaro 90 daysâ notice before any non-renewal could take effect
and, in year two, guaranteed at least 180 daysâ notice.
Under Tufaroâs OU employment agreement, Tufaroâs appointment
renewed automatically in October 2018. In January 2019, he began to voice
internal complaints regarding the following topics:
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1. billing for unperformed surgical procedures;
2. unsupervised resident surgical procedures;
3. surgical procedures performed outside clinic hours;
4. failing to properly secure medications and drugs;
5. breaches of patient confidentiality; and
6. improper billing and referral protocols by the affiliated oral surgeons
employed by OUâs College of Dentistry.
Aplt. Appâx V at 93.
Throughout early 2019, Tufaro voiced these complaints within OU by
writing emails and engaging with OUâs compliance department. All of Tufaroâs
complaint emails were sent from his official OU email address to other official
OU email addresses (i.e., OU medical executives, compliance officials, and oral
surgeons affiliated with OUâs Dental College), and none of Tufaroâs complaints,
whether by email or in person, traveled outside OUâs campus.
Tufaroâs immediate supervisor, Dr. Barish Edil, was the Chair of Surgery
at OU. Edil raised issues with Tufaroâs performance in the written portion of
Tufaroâs 2019 annual review, written by hand in a box titled âDepartment
Chair action items.â Aplt. Appâx IV at 225. Tufaro claims these comments were
backfilled after his review to justify his termination. Around this time, Edil
consulted with an OU in-house lawyer who suggested that OU could end
Tufaroâs employment using the non-renewal path set forth in the Handbook.
Edil recommended this path in a letter to his supervisor, Dr. John Zubialde,
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the Dean of OUâs Medical College. Edilâs letter listed four reasons to support
non-renewal, citing issues with Tufaroâs â[l]ack of professionalism and
collegiality[,]â â[i]nsufficient clinical productivity and faculty oversight[,]â
â[p]oor leadership in recruitment[,]â and â[d]isregard for proper financial &
fiduciary management of his division causing extensive losses to the
Department and the Division since he began his term.â Id at 219.
Zubialde agreed with Edilâs suggestion and, in turn, recommended
Tufaroâs non-renewal to his supervisor, Dr. Jason Sanders. As OUâs Senior Vice
President and Provost of the Health Sciences Center, Sanders was OUâs
decisionmaker on this matter. He sent Tufaro a letter in May 2019 providing
timely notice of non-renewal of Tufaroâs contract. Sanders did not provide any
reason or justification to Tufaro, but he did inform him that his employment
would end in 180 days, on November 14, 2019, in accord with the notice
provision required by the Handbook, § 3.2.7(b). Around six months later, in
November 2019, Tufaro exited OU.
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To recap, here is the sequence of Tufaroâs hiring and departure from OU:
1. Hiring. OU hires Tufaro in October 2017.
2. Internal Complaints. In January 2019, Tufaro raises complaints on
six topics.
3. Annual Review. Tufaroâs annual review in March 2019 is positive,
although Tufaro alleges that Edil backfilled negative comments.
4. Chair Suggestion. In March 2019, the Chair of Surgery
recommends Tufaroâs non-renewal to the Medical College Dean.
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5. Dean Suggestion. The Dean agrees, and that same month, he
recommends Tufaroâs non-renewal to the Provost.
6. Notice of Non-Renewal. The Provost sends notice of non-renewal to
Tufaro in May 2019, providing him 180 daysâ notice.
7. Exit from OU. In November 2019, Tufaro departs OU.
Tufaro further claims that, even after he departed, OU continued to
retaliate against him. Tufaro alleges his replacement at OU told Tufaroâs
subsequent employer that his work was subpar and that he was no longer
allowed to work with any OU medical residents. He alleges these two
comments smeared his professional reputation and caused him harm.
II
The next year, Tufaro filed a lawsuit in Oklahoma state court, asserting
he was wrongfully terminated. 1 He named as defendants: (1) OU; (2) the
Individual Defendants (Edil, Zubialde, and Sanders) in both their official and
personal capacities; and (3) three oral surgeons (the âOral Surgeon
Defendantsâ) affiliated with OUâs College of Dentistry (who are not at issue in
this appeal). Tufaroâs Complaint alleged several claims for relief, including
federal claims under 42 U.S.C. § 1983 (the § 1983 claims) and Oklahoma state
law claims. Four claims from the Complaint are at issue on appeal:
1 The federal district court referred to Tufaroâs Oklahoma state court
pleading as the âComplaintâ (although it was a Petition) because the case
was removed to federal court. For consistency, we do the same.
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1. First Amendment retaliation under § 1983 (against all
Defendants);
2. Fourteenth Amendment deprivation of property and liberty under
§ 1983 (against all Defendants);
3. Breach of contract (against OU); and
4. Violation of the Oklahoma Constitution, including a Burk tort, 2
and a freedom of speech claim under Article 2, § 22 (against OU).
After a notice of removal, the case was transferred to federal court, in
the United States District Court for the Western District of Oklahoma.
A
Once in federal court, Defendants filed a combined motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), which the district court granted
in part and denied in part. Regarding the claims against OU at issue on appeal,
the district court dismissed:
⢠all the § 1983 claims, because OU is not a âpersonâ;
⢠the breach of contract claim, because OU followed the Handbook; and
⢠the freedom of speech claim under Article 2, § 22, of the Oklahoma
Constitution, because it does not create a private cause of action.
Tufaroâs Burk tort claim, however, survived against OU.
Regarding the claims against the Individual Defendants at issue on
appeal, the district court dismissed:
2 A Burk tort claim for wrongful termination in violation of public
policy was recognized in Burk v. KâMart Corp., 770 P.2d 24 (Okla. 1989).
We explore the mechanics of this claim in more detail, infra, in section
IV.B.2.
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⢠all the § 1983 claims against the Individual Defendants in their
official capacities, because they, too, are not âpersonsâ;
⢠the § 1983 First Amendment retaliation claim against Dr. Sanders in
his personal capacity, because there was no allegation he was aware
of Tufaroâs complaints and therefore could not have retaliated based
upon them; and
⢠the § 1983 liberty and property claims against all the Individual
Defendants in their personal capacities, for failure to plead an
entitlement (property claim) or the elements needed to show harm to
reputation (liberty claim).
The § 1983 First Amendment retaliation claim against Zubialde and Edil
(two of the three Individual Defendants) in their personal capacities survived
the motion to dismiss, and the district court rejected their qualified immunity
defenses.
The motion to dismiss order granted Tufaro leave to amend his
complaint, and Tufaro filed a First Amended Complaint. Two claims alleged in
the First Amended Complaint are now at issue on appeal:
⢠the § 1983 First Amendment retaliation claim against Dr. Edil and
Dr. Zubialde; and
⢠the Burk tort claim against OU.
In the First Amended Complaint, Tufaro omitted, among other claims,
the § 1983 liberty claim. In other words, he did not attempt to cure the pleading
defects identified by the district court.
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B
The parties then conducted discovery. Tufaro does not allege he was
denied any discovery, other than a challenge to a discovery ruling that upheld
a deposition objection based on attorney-client privilege. 3
After discovery, Defendants filed a combined motion for summary
judgment. The district court granted that motion and entered summary
judgment in favor of Defendants on the § 1983 First Amendment and Burk tort
claims (along with other claims not at issue on appeal). On the §1983 claim, it
ruled that Tufaroâs complaints fell outside the scope of the First Amendment
because they were made during his employment as part of his official duties
(as opposed to a private citizen). On the Burk tort claim, it held that Tufaro
failed to demonstrate he was an âat-willâ employee, an essential element.
3 The deposition question asked Edil about guidance he received
regarding Tufaroâs non-renewal from an in-house OU lawyer. Although raised
by Tufaro as error, we do not reach the merits of this issue. Tufaro fails to
connect the discovery ruling or the answer he hoped to obtain in the deposition
to any of his claims for relief. He also does not explain how the deposition
answer would have affected any of his claims. Without more, Tufaroâs
argument fails to get out of the starting block. See Cahill v. Am. Fam. Mut. Ins.
Co., 610 F.3d 1235, 1238 (10th Cir. 2010) (explaining that we will not
âconstruct argumentsâ or âfill the gaps in undeveloped argumentsâ).
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Following the entry of summary judgment on all remaining claims, the
district court entered final judgment, ending Tufaroâs case.
Tufaro filed a timely notice of appeal. We have jurisdiction under 28
U.S.C. § 1291.
III
âWe review de novo a district courtâs grant of a 12(b)(6) motion to
dismiss,â Johnson v. Reyna, 57 F.4th 769, 774(10th Cir. 2023), and apply âthe same legal standard as the district court.â JordanâArapahoe, LLP v. Bd. of Cnty. Commârs,633 F.3d 1022, 1025
(10th Cir. 2011).
In reviewing a Rule 12(b)(6) motion, â[w]e accept as true all well-pleaded
factual allegations in the complaint and view them in the light most favorableâ
to the nonmovant. Johnson, 57 F.4th at 774. To survive a motion to dismiss, a complaint must include âenough facts to state a claim to relief that is plausible on its face.âId.
(quoting Bell Atl. Corp. v. Twombly,550 U.S. 544, 570
(2007)). âA claim is plausible on its face âwhen the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.ââId.
at 774-75 (quoting Ashcroft v. Iqbal,556 U.S. 662, 678
(2009)). In contrast, â[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.â Ashcroft,556 U.S. at 678
.
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We also review the grant of summary judgment de novo and apply the
same standard that applies in the district court. Chase Mfg., Inc. v. Johns
Manville Corp., 84 F.4th 1157, 1168 (10th Cir. 2023). Under Rule 56, summary judgment is appropriate if there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant bears the initial burden to show the absence of a genuine issue of material fact, and, if successful, the burden then shifts to the nonmovant to âset forth specific facts showing that there is a genuine issue for trial.â Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 256
(1986). At summary judgment, a court does not weigh the evidence or make credibility determinations, Forth v. Laramie Cnty. Sch. Dist. No. 1,85 F.4th 1044
, 1052 (10th Cir. 2023), and all facts and reasonable inferences are viewed âin the light most favorable to the nonmoving party[.]â In re EpiPen Mktg., Sales Pracs. & Antitrust Litig.,44 F.4th 959
, 980 (10th Cir. 2022).
IV
A
We first review the Rule 12(b)(6) rulings against Tufaro. The district
court granted in part and denied in part the motions to dismiss. Tufaro seeks
reversal on the § 1983 claims against Defendants and two state law claims
against OU (breach of contract and the Burk tort claim). We begin with the
state law claims against OU.
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1
On the claim for breach of contract, Tufaro contends that OU breached
his contract by âterminatingâ him in violation of the Handbook.
However, before we reach the elements of the breach of contract claim,
we first take a detour to address Tufaroâs argument about the contract itself.
In the Complaint, Tufaro identified by name, cited, and discussed the
Handbook. Tufaroâs employment contract with OU, signed in October 2017,
included a link to an online copy of the Handbook and stated that, by signing
the contract, Tufaro acknowledged receipt of the Handbook. However, despite
its centrality to this claim, Tufaro did not attach the Handbook to his
Complaint.
Nor did Defendants attach the Handbook to their motion to dismiss.
Requiring the Handbook to analyze the claim, the district court took judicial
notice of an online 2017 version of the Handbook. Tufaro argues this was error.
We disagree. A district court may consider a document outside the four
corners of a complaint in deciding a Rule 12(b)(6) motion if the document is (1)
âcentralâ to the plaintiffâs claim, (2) âreferred toâ in the complaint, and (3) free
of any genuine dispute over its âauthenticity[.]â Utah Gospel Mission v. Salt
Lake City Corp., 425 F.3d 1249, 1253â54 (10th Cir. 2005).
The Handbook meets all three factors. First, the OU Handbook was
âcentralâ to Tufaroâs breach of contract claim; indeed, he relied on the language
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of the Handbook repeatedly. Next, the Handbook was âreferred toâ repeatedly
by name, cited, and discussed in the Complaint. And, finally, Tufaro concedes
the authenticity of the Handbook: âDr. Tufaro is not challenging the
authenticity of all Faculty Handbooks used throughout this litigation. Dr.
Tufaro is challenging the application of provisions from a Faculty Handbook
that may not contain the same provisions as the one at issue.â Reply Br. at 16.
Tufaro says the district court improperly corrected his version of the
Handbookâs language because, at the Rule 12(b)(6) stage, all facts alleged in
the Complaint must be taken as true. But as we have explained, â[f]actual
allegations that contradict . . . a properly considered document are not well-
pleaded facts that the court must accept as true.â Matney v. Barrick Gold of N.
Am., 80 F.4th 1136, 1145 (10th Cir. 2023) (quoting GFF Corp. v. Associated Wholesale Grocers, Inc.,130 F.3d 1381, 1385
(10th Cir. 1997)).
Tufaro used ellipses to selectively quote portions of the Handbook, which
erased the distinction between termination and non-renewal, and we affirm
the district courtâs corrections to this language. It was Tufaro who first
introduced the Handbook by naming, citing, and discussing it in the Complaint
to bolster his claim. In supplying the full language, the district court did not
draw inferences in favor of OU; it simply provided the text of the Handbook
that Tufaroâs ellipses had omitted. Notably, Tufaro does not argue that the
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language supplied by the district court is inaccurate or not included in the
Handbook.
In any event, Tufaroâs evidentiary challenge never moves beyond a
hypothetical possibility. The parties conducted full discovery and Tufaro never
claims he was unable to obtain other copies of the Handbook. Yet at oral
argument, Tufaro admitted that he has not put forward any other version of
the Handbook for us to compare, nor could he point to any material difference
in the language of any of the Handbooks; he raises only the possibility that
different versions of the Handbook might have contained different language
regarding termination and non-renewal. That is not sufficient.
There may be circumstances where judicial internet searches for
relevant evidence may lead a court astray; however, there is no reason to
conclude that happened here. We affirm the district courtâs decision to use â
and accurately quote â the Handbook in its Rule 12(b)(6) analysis of the breach
of contract claim.
Returning to the merits of the breach of contract claim, Tufaro contends
his âterminationâ breached the terms of the Handbook and that the district
court failed to construe the facts alleged in his favor. Under Oklahoma law,
this claim has three elements: â(1) formation of a contract; (2) breach of the
contract; and (3) damages as a result of that breach.â Morgan v. State Farm
Auto. Ins. Co., 488 P.3d 743, 748 (Okla. 2021). A breach of a contract âoccurs
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when a party fails to perform a duty arising under or imposed by agreement.â
Sharp v. State Farm Mut. Auto Ins. Co., No. 23-6067, 2024 WL 657980, at *5 (10th Cir. Feb. 16, 2024) (quoting Fretwell v. Prot. Alarm Co.,764 P.2d 149, 151
(Okla. 1988)).
The district court held that OU did not breach the terms of the
Handbook. In reaching this conclusion, it walked through each procedural step
of non-renewal in the Handbook, explaining with citations to the Handbook
how OU followed the process afforded to Tufaro. The district court explained
that Tufaro was provided the requisite 180 daysâ notice of non-renewal, in
contrast to termination, which could occur immediately with different notice
and appeal procedures.
We agree with the district court that Tufaro was not âterminatedâ under
the terms of the Handbook. And Tufaroâs dogged, yet unsupported, insistence
otherwise runs contrary to fundamental canons of Oklahoma contract law.
In interpreting the Handbook, our primary goal is to ascertain âthe
partiesâ mutual intentions from the four corners of the contract.â Walker v.
Builddirect.Com Techs. Inc., 349 P.3d 549, 554(Okla. 2015). We acknowledge that âthe paramount objective of contract interpretation is to effectuate the intent of the parties as expressed by the terms of the contract.âId. at 552
. We
determine the partiesâ intent âfrom the entire agreement[,]â and â[i]f a contract
is complete in itself and viewed in its entirety is unambiguous, its language is
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the only legitimate evidence of what the parties intended.â Patel v. Tulsa Pain
Consultants, Inc., P.C., 511 P.3d 1059, 1062(Okla. 2022) (quoting Whitehorse v. Johnson,156 P.3d 41, 47
(Okla. 2007)); see also In re Estate of Metz,256 P.3d 45
, 50â51 (Okla. 2011) (same). Here, Tufaro never argues the Handbook
language is ambiguous, and we find the language plain and easy to interpret.
As a result, we consider only the express language in the Handbook.
Tufaro insists that we must consider all the facts and circumstances
surrounding the creation of his contract, including implied promises by OU
officials that his contract would be renewed. But âa court may neither make a
new contract to benefit a party nor rewrite the existing one.â Bonner v. Okla.
Rock Corp., 863 P.2d 1176, 1183(Okla. 1993) (emphasis removed). Tufaro could have bargained to have these implied promises included in his OU employment agreement, but he did not do so. In addition, the express language of the Handbook squarely addresses the disputed subject matter of non- renewal versus termination, and under Oklahoma law, â[a]n express contract excludes the possibility of an implied contract of a different or contradictory nature.â Jones v. Univ. of Cent. Okla.,910 P.2d 987, 990
(Okla. 1995); see also Musket Corp. v. Star Fuel of Okla., LLC,606 F. Appâx 439
, 450 n.5 (10th Cir.
2015) (same).
Tufaro also faults the district court for not crediting the allegation in his
pleading that OU âroutinely renews similar appointments unless there is a just
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basis for terminating the appointment.â Aplt. Br. at 30 (quoting Aplt. Appâx I
at 46, Compl. Âś 67). Even if true, however, Tufaro offers no authority that OUâs
routine renewal of other appointments bound OU to perpetually renew his. The
Handbook afforded OU discretion to end Tufaroâs employment, so long as it
provided the requisite notice of 180 days.
Tufaro tries to blur the Handbookâs dual tracks of termination and non-
renewal, but a contract must be âconstrued as a whole, giving effect to each of
its parts, and not construed so as to make a provision meaningless, superfluous
or of no effect.â Patel, 511 P.3d at 1062(quoting McGinnity v. Kirk,362 P.3d 186, 199
(Okla. 2015)); see also Husky Ventures, Inc. v. B55 Invs., Ltd.,911 F.3d 1000, 1015
(10th Cir. 2018) (citing 15 Okla. Stat. § 157) (same). The Handbook
draws repeated, clear contrasts between non-renewal and termination,
including:
⢠Notice. The Handbook states that âterminationâ for certain categories
requires more notice than is required for ânon-renewalâ while
âterminationâ for other categories does not require any notice to the
faculty member.
⢠Timing. Certain âimproper actsâ listed in § 3.16.1 âmay result in
immediate termination of employment.â In contrast, for non-renewal, at
least 90 days of notice is always required.
⢠Appeal Rights. The appeal rights for non-renewal are limited, while the
appeal rights for termination are broader, especially if terminated for
one of the improper conduct listed in § 3.16.1(a)-(d).
⢠Headings. The headings distinguish between non-renewal and
termination. The heading in § 3.2.7 uses both terms, âNon-Renewalâ and
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âTermination.â The heading in § 3.16(b) uses the term âTerminationâ but
does not mention âNon-Renewal.â
Aplt. Appâx IV at 140â43.
Tufaroâs interpretation of the Handbook would eliminate all these
distinctions and render ânon-renewalâ superfluous. That, in turn, would
collapse an essential purpose of the contract: to allow OU discretion to end
Tufaroâs employment without being required to proceed with â and later justify
â a formal termination. The district courtâs plain reading of the Handbook
upholds this distinction between termination and non-renewal and rightly
âgives effect to both provisions[.]â Husky Ventures, 911 F.3d at 1018 (applying
Oklahoma contract law).
Other courts have reached the same result we reach here, enforcing the
distinction between non-renewal and termination in employment agreements.
See, e.g., Sullivan v. etectRx, Inc., 67 F.4th 487, 492(1st Cir. 2023) (ââ[N]on- renewalâ and âterminationâ are distinct terms having different meanings[.]â) (quoting Mason v. Telefunken Semiconductors Am., LLC,797 F.3d 33, 42
(1st Cir. 2015)); Mason,797 F.3d at 42
(observing that âthe structure of the Agreement makes it nose-on-the-face plain that the contracting parties never intended to use those distinct terms synonymouslyâ); Paladyne Corp. v. Weindruch,867 So. 2d 630, 633
(Fla. Dist. Ct. App. 2004) (âThere would be no
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point in having a non-renewal provision if the effect of not renewing the
contract is identical to the effect of terminating the contract[.]â).
We affirm the district courtâs correct interpretation of the contractâs
terms.
2
The district court also dismissed Tufaroâs state law claim under Article
2, § 22 of the Oklahoma Constitution because Tufaro failed to establish that a
violation of § 22 creates a private right of action. The district court incorporated
§ 22 into the Burk tort claim, however, ruling that OUâs alleged violation of
Tufaroâs freedom of speech could be used as the underlying public policy
violation for a Burk tort.
We affirm the dismissal of the standalone § 22 claim. Section 22 states,
in relevant part, that â[e]very person may freely speak, write, or publish his
sentiments on all subjects, being responsible for the abuse of that right; and no
law shall be passed to restrain or abridge the liberty of speech or of the press.â
Art. 2 § 22, Okl. Const. This language, however, does not include a remedies
provision or a standard of care, which points away from any private right of
action. See Matthews v. LaBarge, Inc., 407 F. Appâx 277, 283 (10th Cir. 2011)
(rejecting for these reasons the suggestion that an Oklahoma statute created
a private right of action).
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The Oklahoma courts have further advised that any tort claims against
the state of Oklahoma (or its entities or employees) must proceed under the
framework created by the Oklahoma Governmental Tort Claims Act, 51 Okla.
Stat. Ann. § 162. See Rowell v. Bd. of Cnty. Commârs, 485 P.3d 879, 883(Okla. Civ. App. 2020) (discussing Oklahoma Supreme Court pronouncements and recent legislative enactments further limiting the expansion of constitutional torts under Oklahoma law). Ultimately, Tufaro fails to even attempt to overcome the strong cautionary language against recognizing new private causes of action, regardless of sovereign immunity, based on separation of powers and other concerns. See Barrios v. Haskell Cnty. Pub. Facilities Auth.,432 P.3d 233
, 239â40 (Okla. 2018) (describing the role of the courts in recognizing new private rights of action for constitutional torts as a âdisfavored judicial activityâ) (quoting Ziglar v. Abbasi,582 U.S. 120, 135
(2017)).
3
We now turn to the § 1983 claims dismissed under Rule 12(b)(6). To
proceed on a claim for money damages under § 1983, 4 a plaintiff must show
4 Although Tufaro nominally sought prospective injunctive relief in
the form of reinstatement of his job as an alternative form of relief, see
Frank v. Lee, 84 F.4th 1119, 1131 (10th Cir. 2023) (explaining that âa state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because âofficial-capacity actions for prospective relief are not treated as actions against the Stateââ) (quoting Will v. Mich. Depât of State Police,491 U.S. 58
, 71 n.10 (1989)), he failed to pursue this
form of relief before the district court or as part of this appeal.
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the deprivation of a federally protected right along with causation and
damages. See Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210
(10th Cir. 2000). Tufaro challenges the district courtâs rulings on his claims
that OU and the Individual Defendants violated his rights under the First and
Fourteenth Amendments.
We first address the § 1983 claims against OU and the Individual
Defendants in their official capacities and affirm the ruling that none of the
defendants are a âpersonâ under § 1983. It has long been settled that â[n]either
states nor state officers sued in their official capacity are âpersonsâ subject to
suit under section 1983â for monetary damages. Duncan v. Gunter, 15 F.3d
989, 991(10th Cir. 1994). OU is a state university created by state law, and â[o]ur cases have consistently found state universities are arms of the state.â Watson v. Univ. of Utah Med. Ctr.,75 F.3d 569
, 575 (10th Cir. 1996). Likewise, state officials sued in their official capacities are treated as extensions of the state rather than âpersonsâ subject to § 1983. Will v. Mich. Depât of State Police,491 U.S. 58, 71
(1989); Ruiz v. McDonnell,299 F.3d 1173, 1182
(10th Cir. 2002).
Tufaro contends that Defendants are properly treated as âpersonsâ under
§ 1983 because they waived their sovereign immunity by removing his case to
federal court. In response, OU explains that it did not raise sovereign
immunity in the district court. Rather, the district court dismissed the § 1983
because â whether sovereign immunity applies or not â a state and state
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actors are not âpersonsâ who can be named as defendants for monetary
damages. We agree. The Supreme Court has suggested that a stateâs sovereign
immunity and the scope of § 1983 are âseparateâ issues. Will, 491 U.S. at 66. In line with Will, our case law has recognized that the definition of âpersonâ under § 1983 is not dependent on sovereign immunity. See Sutton v. Utah State Sch. for Deaf and Blind,173 F.3d 1226, 1237
(10th Cir. 1999) (dismissing
official capacity claims even though state actors had waived sovereign
immunity). Following our precedent, we affirm the district courtâs dismissal.
Tufaro also pursues claims against the Individual Defendants in their
personal capacities for violations of § 1983. We first analyze the § 1983
deprivation of property claim. The Fourteenth Amendment prohibits any state
from âdepriv[ing] any person of life, liberty, or property, without due process of
law.â U.S. Const. amend. XIV, § 1; see also Teigen v. Renfrow, 511 F.3d 1072, 1078â79 (10th Cir. 2007) (examining § 1983 claim for property deprivation). To state a plausible claim, a plaintiff must establish (1) âthat it has a protected property interestâ and (2) âthat defendantsâ actions violated that interest.â Crown Point I, LLC v. Intermountain Rural Elec. Assân,319 F.3d 1211, 1216
(10th Cir. 2003).
Tufaro relies on his subjective expectations that he was entitled to have
his contract renewed. But under Oklahoma law, an untenured professor lacks
a property interest in continued employment âabsent a specific contractual
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guarantee to that effect.â Bunger v. Univ. of Okla. Bd. of Regents, 95 F.3d 987,
990(10th Cir. 1996). As we have explained, â[a] property interest includes a âlegitimate claim of entitlementâ to some benefit created and defined by âexisting rules or understandings that stem from an independent source such as state law.ââ Crown Point I, LLC,319 F.3d at 1216
(quoting Bd. of Regents v. Roth,408 U.S. 564, 577
(1972)). Thus, âit is only after the plaintiff first demonstrates the existence and deprivation of a protected property interest that the plaintiff is constitutionally entitled to an appropriate level of process.â Teigen,511 F.3d at 1078
. Missing here was a specific contractual guarantee.
As we held, supra, OU followed the 180-day notice requirement set forth
in the Handbook for non-renewal of his contract. Tufaro was not improperly
terminated; his contract was not renewed. The Handbook states that a non-
tenured professor is merely eligible for renewal of a contract. In this context,
however, âeligible forâ is not the same as âentitled to.â This claim, therefore,
fails because Tufaro has not properly alleged an underlying property interest.
Tufaro also asserts his liberty claim should have proceeded against the
Individual Defendants in their personal capacities. A § 1983 claim for
deprivation of liberty based on harm to a professional reputation requires that
the statements at issue: (1) âimpugn the good name, reputation, honor, or
integrity of the employeeâ; (2) âbe falseâ; (3) âoccur in the course of terminating
the employeeâ and âmust foreclose other employment opportunitiesâ; and (4)
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âbe published.â Renaud v. Wyo. Depât of Fam. Servs., 203 F.3d 723, 727(10th Cir. 2000) (quoting Workman v. Jordan,32 F.3d 475, 481
(10th Cir. 1994)). 5
Tufaro alleges he suffered injury to his reputation from false comments
made by his successor, who told his then-current employer that his work at OU
was âsubparâ and that he was not permitted to interact with OUâs medical
residents after departing from OU. Opening Br. at 32. The district court held
that the Complaint did not coherently state these alleged comments, including
the speakerâs name and the recipient of the alleged false statements. We share
the district courtâs confusion in reading Tufaroâs description of who said what,
as set forth in his Complaint. And on appeal, Tufaro does not address the
district courtâs ruling that the person who allegedly spoke to his then-current
employer is neither identified by name nor named as a defendant in the case.
These gaps, especially when taken together, are fatal.
Because vicarious liability does not apply to § 1983, âa plaintiff must
plead that each Government-official defendant, through the officialâs own
individual actions, has violated the Constitution.â Iqbal, 556 U.S. at 676. As a
result, a § 1983 plaintiff must show an âaffirmative linkâ between each
defendant and ââthe constitutional violation,â which requires proof of three
5We restate here what we previously corrected from our case law
about the third element, that it must be phrased conjunctively. See
McDonald v. Wise, 769 F.3d 1202, 1212 n.3 (10th Cir. 2014).
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interrelated elements: (1) personal involvement; (2) causation; and (3) state of
mind.â Keith v. Koerner, 843 F.3d 833, 838(10th Cir. 2016) (quoting Schneider v. City of Grand Junction Police Depât,717 F.3d 760, 767
(10th Cir. 2013)).
Tufaro does not satisfy any of these elements. He says he was not
required to notify each defendant of their alleged role, citing Robbins v.
Oklahoma, 519 F.3d 1242 (10th Cir. 2008). Tufaro was correct to cite Robbins,
but wrong to suggest it relieves him of adequate pleading obligations. In
Robbins, in fact, we reversed the denial of a Rule 12(b)(6) motion and
admonished that âcomplaints in § 1983 cases against individual government
actors pose a greater likelihood of failures in notice and plausibility because
they typically include complex claims against multiple defendants.â Id. at
1249. There, as here, the plaintiff sued a list of government-actor defendants
without providing notice of each defendantâs alleged role in causing the alleged
damages. For the same reasons we affirmed the Rule 12(b)(6) dismissals in
Robbins, we also affirm here.
Ultimately, â[w]hile we do not mandate the pleading of any specific facts
in particular, there are certain details the Plaintiff should know and could
properly plead to satisfy the plausibility requirement.â Khalik v. United Air
Lines, 671 F.3d 1188, 1194 (10th Cir. 2012). In this case, Tufaro failed to
provide notice to each defendant of their alleged role in violating his liberty
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interest, and he failed to identify the speaker or the recipient of the allegedly
false comments, so the claim was properly dismissed.
Although the district court dismissed this claim, Tufaro was granted
leave to amend so he could cure these pleading defects. He declined to do so
and omitted the § 1983 liberty claim from the First Amended Complaint. Citing
Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517(10th Cir. 1991), Tufaro argues that a plaintiff is permitted to appeal a claim dismissed on a Rule 12(b)(6) ruling, even if the plaintiff is given leave to amend and then refiles an amended complaint that does not include the claim. That is inaccurate. In fact, â[a]n amended complaint supersedes a prior complaint âand renders it of no legal effect.ââ Mooring Cap. Fund, LLC v. Knight,388 F. Appâx 814, 823
(10th Cir. 2010) (quoting Davis,929 F.2d at 1517
). Failing to replead a claim, when given leave to do so, ordinarily constitutes abandonment when an amended complaint is filed. Seeid.
at 823â24 (citing Davis, 929 F.2d at 1517â18). Thus,
by failing to replead it in the First Amended Complaint, Tufaro abandoned the
§ 1983 liberty claim.
B
We next review the summary judgment rulings against Tufaro on the
two claims alleged in the First Amended Complaint: the § 1983 First
Amendment retaliation claim against Dr. Edil and Dr. Zubialde and the Burk
tort claim against OU.
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1
The § 1983 First Amendment claim against Zubialde and Edil in their
personal capacities stalled at summary judgment. The district court held that
the speech at issue (i.e., the complaints Tufaro made to OU officials) was not
protected because it was made as part of Tufaroâs official duties as Chief of
Plastic Surgery and Professor at OUâs Medical College.
As a public employee, Tufaro âenjoyed First Amendment rights, but not
to the same extent as a private citizen.â Seifert v. Unified Govât of Wyandotte
Cnty., 779 F.3d 1141, 1151(10th Cir. 2015). â[T]he First Amendment protection of a public employeeâs speech depends on a careful balance âbetween the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.ââ Lane v. Franks,573 U.S. 228
, 231 (2014) (quoting Pickering v. Bd. of Ed.,391 U.S. 563, 568
(1968)).
To accommodate this balancing, we apply the Garcetti/Pickering test
that âgoverns First Amendment retaliation claims.â Nixon v. City & Cnty. of
Denver, 784 F.3d 1364, 1367(10th Cir. 2015) (quoting Trant v. Oklahoma,754 F.3d 1158, 1165
(10th Cir. 2014)); see Garcetti v. Ceballos,547 U.S. 410
(2006); Pickering,391 U.S. 563
. This test includes the following five factors:
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1. whether the speech was made pursuant to an employeeâs official
duties;
2. whether the speech was on a matter of public concern;
3. whether the governmentâs interests, as employer, in promoting
the efficiency of the public service are sufficient to outweigh the
plaintiffâs free speech interests;
4. whether the protected speech was a motivating factor in the
adverse employment action; and
5. whether the defendant would have reached the same
employment decision in the absence of the protected conduct.
Helget v. City of Hays, 844 F.3d 1216, 1221 (10th Cir. 2017) (cleaned up).
The first three factors âare ordinarily matters of law for a court to decide,
and the final two steps are ordinarily questions of fact.â Singh v. Cordle, 936
F.3d 1022, 1034 (10th Cir. 2019). And although we call these factors, they are also essential elements: â[t]o prevail, a plaintiff must establish all five elements.â Knopf v. Williams,884 F.3d 939, 945
(10th Cir. 2018).
Under the first factor (âofficial dutiesâ), the district court concluded that
the six topics raised by Tufaro were made within the scope of his official duties
at OU. In repeated cases, we have âtaken a broad view of the meaning of speech
that is pursuant to an employeeâs official duties.â Chavez-Rodriguez v. City of
Sante Fe, 596 F.3d 708, 713(10th Cir. 2010) (quoting Thomas v. City of Blanchard,548 F.3d 1317, 1324
(10th Cir. 2008)). This creates a âheavy barrierâ to overcome. Rohrbough v. Univ. of Colo. Hosp. Auth.,596 F.3d 741
,
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746 (10th Cir. 2010) (quoting Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d
1323, 1331 (10th Cir. 2007)).
In applying the first factor, we take âa case-by-case approach, looking
both to the content of the speech, as well as the employeeâs chosen audience, to
determine whether the speech is made pursuant to an employeeâs official
duties.â Id.Our focus is on âthe context of the speech[.]â Singh, 936 F.3d at 1035. In looking at context, â[m]any facts may be relevantâthe tasks in an employeeâs job description, the frequency with which an employee performs a task, the subject matter of the employeeâs speech, the recipient of the employeeâs speech, the legal obligation for the employee to speakâbut no one fact is determinative.â Knopf,884 F.3d at 945
.
Tufaro argues that of all the complaints he raised, topic six, the refusal
of the affiliated oral surgeons to treat patients without insurance, especially
involved patient safety that landed outside of his official duties. âIt is not
enough, however, that the public interest was part of the employeeâs
motivation. In several cases we have described the relevant legal question as
whether the employeeâs primary purpose was to raise a matter of public
concern.â Singh, 936 at 1035.
In Singh, a government worker complained about internal work issues
that also affected the public. We held that âif we find that the employeeâs
personal interestâ as an âemployee predominates over any interest he might
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have as a member of the general public, we are not to intercede.â Singh, 936
F.3d at 1035 (citation omitted).
Here, Tufaroâs critical comments on topic six were directed at internal
scheduling and patient access issues he faced within his scope of employment.
Tufaro was complaining about the refusal of the oral surgeons to treat
uninsured patients, which is a serious allegation to be investigated. But Tufaro
raised these issues at this specific time because the gap in coverage was falling
on him; he personally was forced to treat these otherwise-neglected patients.
He focused on the internal effect the oral surgeonsâ alleged refusals to treat
certain patients had on his schedule while fulfilling his high-ranking duties as
Professor and Chief of Plastic and Reconstructive Surgery at OU. He said:
⢠â[T]his is the third time this has happened to me[.]â Aplt. Appâx II at
17.
⢠âHere is a patient with a complicated injury coming to the state
hospital for care and rejected because he doesnât have enough cash. I
am seeing him in clinic tomorrow.â Aplt. Appâx V at 96.
⢠â[I]t impacted my life because I was now seeing patients that they
initially saw and rejected treatment, rejected care.â Id. at 97.
As these comments clarify, even viewed in the light most favorable to
him, Tufaro was âengaging in speech that âcontribute[d] to or facilitate[d]ââ his
performance of job functions. Chavez-Rodriguez, 596 F.3d at 714(quoting Brammer-Hoelter v. Twin Peaks Charter Acad.,492 F.3d 1192, 1203
(10th Cir.
2007)). Although not every complaint was raised by email, all of Tufaroâs email
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criticisms were sent from his official OU email account to other OU email
accounts. And Tufaroâs comments never reached beyond the OU campus.
These issues confronted Tufaro only because of his official position. As
we have observed, ââeven if not explicitly required as part of [their] day-to-day
job responsibilities,â an employeeâs statements are made pursuant to official
duties when they âstemmed from and were the type of activities that [they
were] paid to do.ââ Id.at 716 (quoting Green v. Bd. of Cnty. Commârs,472 F.3d 794
, 800â01 (10th Cir. 2007)). In this case, as Professor and Chief of Plastic
and Reconstructive Surgery, Tufaroâs complaints fell within the range of his
job duties, which included administrative, supervisory, and clinical roles. See
Rohrbough, 596 F.3d at 747â49 (concluding that complaints about
âsubstandardâ hospital care for patients fell within the plaintiffâs zone of job
duties even if not expressly part of day-to-day job duties, especially because
complaints stayed within chain of command).
The first factor (the âofficial dutiesâ factor) was added to the balancing
test by the Supreme Courtâs decision in Garcetti, which held that âwhen public
employees make statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer
discipline.â 547 U.S. at 421. In Garcetti, a deputy district attorney acting as a
supervisor wrote a memo that âdemanded the attention of his supervisors and
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led to a heated meeting with employees from the sheriff's department.â Id. at
423. Critical to the âofficial dutiesâ holding was the âcontrastâ between the facts in that case and âthe expressions made by the speaker in Pickering, whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day.âId. at 422
.
The same logic applies here. When Tufaro complained about the six
topics at issue, he was acting as an OU official with multiple duties and
supervisory responsibilities. See, e.g., Knopf, 884 F.3d at 949 (emphasizing the
distinction between âa rank-and-file detective without supervisory
responsibilitiesâ and an official âtasked [] with a broad oversight roleâ when
determining whether an employee was acting pursuant to their âofficial
dutiesâ).
In Garcetti, the Supreme Court also emphasized the public policy
reasons that dictate deference from the courts to the day-to-day decision-
making of state officials. 547 U.S. at 422â23 (âOfficial communications have
official consequences, creating a need for substantive consistency and clarity.
Supervisors must ensure that their employeesâ official communications are
accurate, demonstrate sound judgment, and promote the employerâs mission.â).
It also provided reassurance that other protections are in place to ensure
that public employees continue to speak out against âgovernmental inefficiency
and misconduct[,]â including a âpowerful network of legislative enactments â
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such as whistle-blower protection laws and labor codes â available to those who
seek to expose wrongdoing.â Id. at 425. These legislative protections, âas well
as obligations arising from any other applicable constitutional provisions and
mandates of the criminal and civil laws, protect employees and provide checks
on supervisors who would order unlawful or otherwise inappropriate actions.â
Id. at 425â26. Thus, we do not suggest that Tufaroâs criticisms were unfounded
or that OU should have ignored them. But at the same time, he could have
pursued other avenues, including a letter to the editor of a newspaper or a
complaint under the Oklahoma Whistleblower Act, which was in effect in 2019
at the time of Tufaroâs complaints. 6
In sum, we affirm the district courtâs entry of summary judgment for the
Individual Defendants (Edil and Zubialde) on the First Amendment retaliation
claim under § 1983.
2
The district court also entered summary judgment on the final
remaining claim at issue, the Burk tort claim. The protection of a Burk tort
6 âThe Oklahoma Whistleblower Actâs purpose is to encourage and
protect the reporting of wrongful governmental activities and to deter
retaliation against state employees for reporting those activities[,]â and âa
Burk tort claim is not cognizable for claims that would be covered by the
Whistleblower Act.â Poff v. Okla. ex rel. Okla. Depât of Mental Health and
Substance Abuse Servs., 683 F. Appâx 691, 695(10th Cir. 2017) (quoting Shephard v. CompSource Oklahoma,209 P.3d 288
, 290â91 (Okla. 2008)).
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operates as a counterbalance to Oklahomaâs default âemployment-at-will
doctrine.â Booth v. Home Depot, U.S.A., Inc., 504 P.3d 1153, 1156(Okla. 2022). Without limitation or liability, the at-will doctrine permits an employer to âdischarge an employee for good cause, no cause, or even for a morally wrong cause[.]âId.
(quoting Reynolds v. Advance Alarms, Inc.,232 P.3d 907, 909
(Okla. 2009)).
Yet a narrow exception to this rule exists in Oklahoma. In Burk, 770 P.2d
at 29, the Oklahoma Supreme Court held that âat-will contractual rights may be limited by the public policy of the State of Oklahoma.â Booth,504 P.3d at 1156
. Burk recognized a private right of action tort claim for an at-will employee discharged âfor refusing to act in violation of an established and well- defined public policy or for performing an act consistent with a clear and compelling public policy.â770 P.2d at 29
. To pursue a Burk tort claim, a
plaintiff must establish:
1. an actual or constructive discharge[;]
2. of an at-will employee[;]
3. in significant part for a reason that violates an Oklahoma public
policy goal[;]
4. that is found in Oklahomaâs constitutional, statutory, or
decisional law or in a federal constitutional provision that
prescribes a norm of conduct for Oklahoma[;] and
5. no statutory remedy exists that is adequate to protect the
Oklahoma policy goal.
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Booth, 504 P.3d at 1156. We also note the directive that Burk âapplies to only a narrow class of cases and must be tightly circumscribed.â McCrady v. Okla. Depât of Pub. Safety,122 P.3d 473, 475
(Okla. 2005).
The facts of Tufaroâs case fall outside the orbit of Burk. Even with the
benefit of discovery, Tufaro did not establish that he was an âat-willâ employee.
Protected by the Handbookâs rights and procedures and, in fact, afforded 180
days of notice prior to his departure from OU, his employment could not be
terminated at any point for any reason, as Oklahoma has defined at-will
employee status. Ho v. Tulsa Spine & Specialty Hosp., L.L.C., 507 P.3d 673,
677 (Okla. 2021) (observing that âindefinite employment contracts are deemed
terminable-at-will a/k/a employment-at-willâ).
Failure to satisfy this element defeats this claim. Because Tufaro was
ânot an employee-at-will, he is not within the class of persons who may bring
a claim in tort for wrongful discharge based on the public policy exceptionâ
created by Burk. McCrady, 122 P.3d at 476.
3
As a final matter, Tufaro argues for the first time on appeal, and only in
passing in his Opening Brief (without any retort to OUâs arguments in his
Reply Brief), that the district court erred by not remanding the Burk tort claim
back to the state court. Opening Br. at 46. His passing mention of error for
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failing to remand was an alternative argument in a section of his Brief wherein
he primarily argued the district court committed error by granting summary
judgment on the Burk tort claim because a question of fact existed. Id. at 44-
46.
Congress enacted 28 U.S.C. § 1367to combine âthe doctrines of pendent and ancillary jurisdiction under a common heading[,]â now referred to as âsupplemental jurisdiction.â City of Chicago v. Intâl College of Surgeons,522 U.S. 156, 165
(1997). Under § 1367, a district court may decline to exercise supplemental jurisdiction over a state law claim if, among other reasons, it has âdismissed all claims over which it has original jurisdiction.â Id. at § 1367(c)(3). In making this determination, the district court must consider the ânature and extent of pretrial proceedings, judicial economy, convenience, and fairness.â Foxfield Villa Assocs., LLC v. Robben,967 F.3d 1082, 1102-03
(10th Cir. 2020). And although it often makes sense on comity and federalism grounds to remand state law claims if all the federal claims have been dismissed, âwe have [also] suggested that it is appropriate, perhaps even advisable, for a district court to retain supplemented state claims after dismissing all federal questions when the parties have already expended a great deal of time and energy on the state law claims.âId. at 1103
(alteration in original) (quoting United States v. Botefuhr,309 F.3d 1263, 1273
(10th Cir. 2002)).
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We review a district courtâs decision to retain supplemental jurisdiction
over state law claims for abuse of discretion. Id.at 1102â03. âThe deferential abuse of discretion standard enhances the goal of judicial economy and serves to maintain the integrity of the trial and appellate courts.â Hughes v. City of Fort Collins,926 F.2d 986, 988
(10th Cir. 1991). Thus, â[t]he watchword of our abuse of discretion review is deference.â In re Sygenta AG MIR 162 Corn Litigation,61 F.4th 1126, 1177
(10th Cir. 2023) (emphasis in original).
We find no abuse of discretion here. As OU correctly points out, Tufaro
waived the remand argument by never presenting it below. See Rocky
Mountain Wild, Inc. v. United States Forest Serv., 56 F.4th 913, 927 (10th Cir.
2022) (explaining that a plaintiff waives an argument by failing to present it
to the district court). By not raising it below, Tufaro never put the § 1367
factors in play for the district court to analyze and explain in its decision.
The dissent is concerned that we will be haunted in future cases by our
holding. However, this concern fails to credit that the decision to exercise
supplemental jurisdiction is âpurely discretionary[,]â Carlsbad Tech., Inc. v.
HIF Bio, Inc., 556 U.S. 635, 639-40 (2009), and ânot a jurisdictional matter.â
Id.; § 1367(c) (âThe district courts may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has dismissed all claims
over which it has original jurisdiction.â) (emphasis added). Our review is for
abuse of discretion because the decision to exercise supplemental jurisdiction
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âmay not be raised at any time as a jurisdictional defect.â Id. In this context,
the distinction between a discretionary decision and a jurisdictional
requirement is dispositive.
The dissent also finds fault that we do not cite any opinion of this circuit
holding that remand to state court of state-law claims is dependent on the
plaintiffâs moving for a remand or dismissal in district court. Our holding here
is of a different sort â that we cannot find an abuse of discretion when a
plaintiff never requests a remand to state court before the district court but
instead complains about it for the first time on appeal. The application of
waiver preserves the integrity of appellate review. Cummings v. Norton, 393
F.3d 1186, 1190 (10th Cir. 2005) (â[T]o preserve the integrity of the appellate
structure,â we apply the waiver doctrine to avoid reviewing new arguments
ânot presented to the district court â especially when an appeal is of a summary
judgment[.]â) (cleaned up).
Tufaro ânever gave the district court an opportunity to exercise its
discretion[.]â United States v. Morgan, 748 F.3d 1024, 1044(10th Cir. 2014) (Holmes, J., concurring); seeid.
(cautioning that a reversal based on arguments never raised below would improperly âsuggest that district courts should act as advocatesâ bound to construct arguments on behalf of litigants). Indeed, â[a] trial court cannot be expected to read litigantsâ minds.â Nulf v. Intâl Paper Co.,656 F.2d 553, 563
(10th Cir. 1981). âWe would be opening Pandoraâs boxâ if we
39
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agreed with the dissent and reversed the district court, because â[a]ny litigant
would then be free to claim after-the-fact that she had intended toâ seek
remand without ever requesting that relief. Id.
Additionally, the dissent suggests the district court was required to sua
sponte identify a remand argument on Tufaroâs behalf and then exercise its
discretion to remand the state law claim after weighing the factors in Tufaroâs
favor. But the district court is âunder no obligation to raise the possibility of
dismissal under § 1367(c) sua sponte.â 13D C. Wright, A. Miller, and R. Freer,
Federal Practice and Procedure Jurisdiction § 3567.3 (3d ed.). Seven of our
sister Circuits have held that a remand request is waived if not argued by the
plaintiff and that a district court owes no duty to sua sponte review and explain
the § 1367(c) factors. Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9,
20(1st Cir. 2018); Sarpolis v. Tereshko,625 F. App'x 594, 600
(3d Cir. 2016); Powers v. United States,783 F.3d 570
, 576â77 (5th Cir. 2015) (same); Alternate Fuels, Inc. v. Cabanas,435 F.3d 855
, 857 n.2 (8th Cir. 2006); Voelker v. Porsche Cars N. Am., Inc.,353 F.3d 516
, 522 (7th Cir. 2003); New Jersey Turnpike Auth. v. PPG Indus.,197 F.3d 96
, 113 (3d Cir. 1999); Acri v. Varian Associates, Inc.,114 F.3d 999
, 1000â01 (9th Cir. 1997) (en banc); Doe v. District of Columbia,93 F.3d 861, 871
(D.C. Cir. 1996). The dissentâs position would put this court
on an island of a circuit split, a place and position where we decline to take up
residence.
40
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In addition, as OU argues, the parties can be fairly said to âhave already
expended a great deal of time and energy on the state law claims.â Foxfield
Villa Assocs., LLC, 967 F.3d at 1103. The dissent disagrees with this finding
and concludes that very little effort was expended on the Burk tort claim in
district court. We have a different view.
There were two years of heavy activity in federal court post-removal, and
the docket sheet in the district court shows that Tufaro engaged in wide-
ranging discovery and briefing and that the district court devoted significant
time and resources to preparing the case for trial. As OU recounts:
[Tufaro] participated in over two years of litigationâfrom the date
of removal to his notice of appealâby opposing motions to dismiss,
amending his complaint, attending a scheduling conference, filing
a joint status report and discovery plan, exchanging initial
disclosures and written discovery, taking and presenting
witnesses for depositions, filing a motion to compel certain
discovery and deposition testimony, submitting an expert report,
and engaging in extensive motion practice leading up to the
discovery deadline including the motion for summary judgment he
lost and now appeals. Instead of asking the District Court to
remand his Burk tort claim to state court, Tufaro opposed
summary judgment by arguing on the merits that his employment
contract did not have a definite term [App. Vol. 5 at 1145], an
argument considered and rejected by the District Court [App. Vol.
5 at 1202-1203].
Response Br. at 44-45; see also Aplât Appx. Vol. I at 14-25 (docket sheet showing
the district courtâs multiple scheduling orders and the partiesâ extensive
pretrial activity and wide-ranging discovery, and Tufaroâs numerous filings
and requests for relief in the district court).
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After he filed the First Amended Complaint, the case proceeded to
discovery in federal court. When Defendants moved for summary judgment,
Tufaro responded on the merits and fully briefed this claim at summary
judgment without ever requesting remand of the Burk claim to state court. The
Burk tort claim was dismissed at the same time as the remaining § 1983 First
Amendment claim, not afterward. In other words, the district court did not
retain jurisdiction over only the state law claim; rather, it dismissed the § 1983
federal claim and the Burk tort claim simultaneously at summary judgment.
Also significant is that Tufaroâs First Amended Complaint specifically
invoked the federal courtâs jurisdiction to seek federal and state law relief.
Aplt. Appâx I at 37, First Am. Compl. œœ 11â13. Doing just as Tufaro asked in
his First Amended Complaint, the district court exercised its authority to
resolve the two claims that Tufaro chose to allege in his First Amended
Complaint filed in federal court. When a plaintiff files an amended pleading in
federal court, this move is legally significant. See Akin v. Ashland Chemical
Co., 156 F.3d 1030, 1036(10th Cir. 1998) (holding that a plaintiff âcannot voluntarily invoke, and then disavow, federal jurisdictionâ). We long ago recognized that a âplaintiff acquiescesâ in removal by âseeking reliefâ in federal court and not challenging removal until after an adverse judgment is entered. Parks v. Montgomery Ward & Co.,198 F.2d 772, 774
(10th Cir. 1952); see also Lopata v. Handler,121 F.2d 938, 940
(10th Cir. 1941) (recognizing that a
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plaintiff waives the right to remand by pursing relief in federal court and
raising error for failure to remand the case only after losing in federal court).
We therefore agree with OU that reversing the district court and
remanding the Burk tort claim would be fundamentally unfair. Tufaro made
the strategic decision to seek a win in federal court on the merits at summary
judgment and, if he had defeated that motion, he would have sought to pursue
the Burk tort claim at trial in federal court. Allowing him to request remand
for the first time on appeal, and only in passing, would improperly reward his
failure to raise this remand argument below and incentivize future plaintiffs
to adopt this same wait-and-see approach. Reversing the district court would
allow Tufaro (and future plaintiffs) to litigate the same claim twice: once in
federal court and then, if unsuccessful, again in state court. See Mizuna, Ltd.
v. Crossland Fed. Sav. Bank, 90 F.3d 650, 657(2d Cir. 1996) (making this point); New Mexico v. Gen. Elec. Co.,335 F. Supp. 2d 1157, 1179
(D.N.M. 2003) (explaining the unfairness of allowing a plaintiff to file an amended pleading in federal court, lose on the merits at summary judgment, and only then seek remand) (citing Akin,156 F.3d at 1036
).
We conclude there was no abuse of discretion here by the district court
in retaining federal jurisdiction over the state law claim and disposing of it on
the merits.
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V
The judgment of the district court is AFFIRMED.
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23-6039, Tufaro v. Board of Regents
HARTZ, J., dissenting in part
I join all the panel opinion except the discussion rejecting remand to the state court
of Tufaroâs state-law Burk claim, which came to the federal court under the doctrine of
what is now termed supplemental jurisdiction in 28 U.S.C. § 1367.
The leading Supreme Court opinion on that doctrine (which the Court then
referred to as pendent jurisdiction) is United Mine Workers of America v. Gibbs, 383 U.S.
715(1966). See Wright & Miller, Federal Practice and Procedure § 3523.1, at 195 (§ 1367(a) and (c) codify Gibbs). Such jurisdiction arises when the âstate and federal claims . . . derive from a common nucleus of operative fact. . . . [I]f, considered without regard to their federal or state character, a plaintiffâs claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.â Gibbs,383 U.S. at 725
.
Relevant here, however, is that this âpower need not be exercised in every case in
which it is found to exist.â Id. at 726. In particular, â[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.âId.
Addressing the specific situation that arises in this case, the Court declared, âCertainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.âId.
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This âshould be dismissedâ statement in Gibbs was later qualified, but as a
practical matter not by much. Footnote 7 in Carnegie-Mellon Univ. v. & Cohill, 484 U.S.
343, 350 n.7 (1988), said that the Court after Gibbs had made âclear that this statement
does not establish a mandatory rule to be applied inflexibly in all cases.â Cohill also
made clear, however, that retaining jurisdiction over the state-law claims would be
exceptional. The text of the opinion to which footnote 7 was appended stated:
Under Gibbs, a federal court should consider and weigh in each case, and at
every stage of the litigation, the values of judicial economy, convenience,
fairness, and comity in order to decide whether to exercise jurisdiction over
a case brought in that court involving pendent state-law claims. When the
balance of these factors indicates that a case properly belongs in state court,
as when the federal-law claims have dropped out of the lawsuit in its early
stages and only state-law claims remain,7 the federal court should decline
the exercise of jurisdiction by dismissing the case without prejudice.
Id. at 350(emphasis added). Although there is some tension between the text and the footnote in Cohill, the footnote tries to explain as follows: âThe statement simply recognizes that in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrineâjudicial economy, convenience, fairness, and comityâwill point toward declining to exercise jurisdiction over the remaining state-law claims.âId.
at 350 n.7.
One should thus treat the seemingly mandatory language in Gibbs and
Cohill as creating a presumption, which can be overcome in persuasive
circumstances. See 15A Mooreâs Federal Practice - Civil § 106.66[1] (âThere is no
presumption in favor of dismissal unless all of the federal claims are dismissed
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before trial.â (emphasis added)); 13D Wright & Miller § 3567.3, at 429 (referring
to the âpresumptionâ that supplemental jurisdiction should be declined if the
claims underlying federal jurisdiction are dismissed before trial). As a result, this
court has regularly, and almost uniformly, ordered or affirmed dismissal or
remand of the state-law claims in that circumstance when we have addressed the
matter. For example, in the two opinions by this court cited by the majority
opinion on this issue, we affirmed the district courtâs declination of supplemental
jurisdiction after dismissal of the sole federal-law claim in Foxfield Villa Assoc.,
LLC v. Robben, 967 F.3d 1082at 1102â03 (10th Cir. 2020), and we reversed for abuse of discretion the district courtâs retention of supplemental jurisdiction after dismissal of the federal claims, United States v. Botefuhr,309 F.3d 1263
, 1273â74
(10th Cir. 2002); see also, infra p. 17 (listing cases where this court ordered
dismissal or remand although issue was not raised in district court).
One would think that this law would resolve what we should do with the
state-law Burk claim. All the federal-law claims were dismissed on pretrial
motions. The only state-law claim Tufaro wishes to pursue should therefore be
remanded to state court absent exceptional circumstances. No such circumstances
are present.
Yet the majority opinion says there is no abuse of discretion in failing to
remand. To be sure, supplemental jurisdiction is not mandatory, leaving its
exercise to the discretion of the court. But the abuse-of-discretion standard does
not mean âanything goes.â It is worth repeating that â[w]hen the balance of
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[several pertinent] factors indicates that a case properly belongs in state court, as
when the federal-law claims have dropped out of the lawsuit in its early stages and
only state-law claims remain, the federal court should decline the exercise of
jurisdiction by dismissing the case without prejudice.â Cohill, 484 U.S. at 350
(emphasis added). When the Supreme Court says what a lower court âshouldâ do,
I would infer that a failure to do that is an abuse of discretion, absent exceptional
circumstances. Put another way, given the presumption in favor of remanding
state-law claims when all the federal claims are dismissed before trial, it is an
abuse of discretion to act otherwise absent exceptional circumstances. Nothing in
the cases cited by the majority opinion for the proposition that our review is for
abuse of discretion in any way questions or detracts from the Supreme Court
opinions instructing how courts should proceed in the present circumstances.
One possible exceptional circumstance would be that the state-law claim is
frivolous. See 14D Wright & Miller § 3567.3, at 436â47 (â[T]he federal court may
also exercise supplemental jurisdiction when the resolution of the supplemental
claims on the merits is obvious.â). But that is not the ground on which the
majority opinion relies. And, in my view, Tufaroâs Burk claim is not frivolous.
Burk permits an at-will employee to sue an employer for terminating the employee
on grounds contrary to public policy. Tufaro contends that he is entitled to bring a
claim under the Burk doctrine on the ground that he was denied a renewal of his
contract for reasons contrary to public policy. Tufaroâs contract was to be
automatically renewed each year but the University could decide not to renew for
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any reason so long as proper notice was given. The district court rejected his claim
on the ground that Burk applies only to at-will employees and Tufaro had an
employment contract. I suspect that I would have ruled the same way were I a
judge in federal district court. But I do not think it is out of the question that the
Oklahoma courts would expand Burk beyond the discharge of at-will employees to
include the failure to renew a contract like Tufaroâs for reasons contrary to public
policy. As a matter of comity to the Oklahoma courts, it is appropriate to remand
to state court to get the Stateâs ruling on the issue. To repeat another earlier
quotation, âNeedless decisions of state law should be avoided both as a matter of
comity and to promote justice between the parties, by procuring for them a surer-
footed reading of applicable law.â Gibbs, 383 U.S. at 726.
What are the exceptional reasons relied on by the majority opinion to
justify the failure to remand? One is that the parties âhave already expended a
great deal of time and energy on the state law claims.â Maj. Op at 41 (internal
quotation marks omitted). This reason, however, must be examined closely. After
all, one would think that ordinarily by the time the district court has disposed of all
the federal-law claims, the parties have explored at some depth the various state-
law claims. If typical exploration sufficed to preclude remand, the presumption of
remand would be meaningless. The âjudicial economyâ and âconvenienceâ
concerns should instead focus on whether the time and effort devoted to the state-
law issue in federal court would need to be duplicated if the claim is sent to state
court. The less the duplication of effort resulting from remand, the less any
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considerations of efficiency argue against remand. See 15A Moore's Federal
Practice - Civil § 106.66 (âIn making the determination concerning the extent of
resources that had been invested, the court should consider whether those
resources may be used in the state forum.â). For example, even if there had been
extensive, time-consuming discovery regarding the state-law claims, that
discovery could be as useful in state court as in federal court. See id.
(âdiscovery . . . may be largely reusable in state courtâ); 14D Wright & Miller
§ 3567.3, at 435 (âif the parties may use discovery from the federal case in state
court proceedings . . . the federal court might decline jurisdictionâ). And usually
âinvestigation of facts and research of state law is the same whether the case
remains in federal court or is dismissed in favor of a state forum.â 15A Moore's
Federal Practice - Civil § 106.66.
In addition, one should not focus on all the claims presented in federal
court, but only those that are to be sent to state court. Time devoted in federal
court to the federal claims is irrelevant. As stated by a leading treatise, âAnother
factor to consider is whether the substantial pretrial activity (and the district
courtâs involvement in that activity) relates to the dismissed federal claims.â Id.;
see 14D Wright & Miller § 3567.3, at 434 (relevant consideration is investment of
resources âin the supplemental claimsâ). This proposition also applies, of course,
to state-law claims that are being abandoned by the plaintiff.
Here, the only state-law claim that Tufaro wishes to pursue in state court is
the Burk claim. How much effort was expended on that claim in district court?
6
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Very little. The only relevant âdiscoveryâ was to determine the language of the
employment contract. And the legal arguments on the claim in district court
consumed a little more than one page of Tufaroâs briefs and a little more than two
pages of defendantsâ. If that is the standard for expending a great deal of time and
energy, then the Supreme Court was wasting its breath in Gibbs and Cohill.
I am puzzled by the majority opinionâs reliance on the fact that âTufaro
engaged in wide-ranging discovery and briefing and . . . the district court devoted
significant time and resources to preparing the case for trial.â Maj. Op. at 41. What
is the relevance of this activity if it had nothing to do with the Burk claim? I see
none. What I do see is an argument that would eviscerate the presumption in favor
of remand whenever the federal claims are substantially disputed. Quite simply,
the majority opinion has pointed to no significant work by the parties that would
need to be duplicated on remand to state court, and the time spent by the federal
district court in resolving the Burk claim was trivial as these matters go.
An even less persuasive argument against remand is the following
statement in the majority opinion: âAlso significant is that Tufaroâs First Amended
Complaint specifically invoked the federal courtâs jurisdiction to seek federal and
state law relief. Aplt. Appâx. I at 37, First Am. Compl. Âś Âś 11â13.â Maj. Op. at 42.
The original complaint was filed in state court, and the First Amended Complaint
was filed in federal court after removal by the defendants. The three cited
paragraphs are in the First Amended Complaint under the heading âJurisdiction
and Venue.â The heading and paragraphs 11 and 12 are identical to the heading
7
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and the same paragraphs in the original complaint. Paragraph 11 states that some
claims are brought under 42 U.S.C. § 1983. Paragraph 12 states that other claims arise under Oklahoma law. Paragraph 13 in the state complaint states that the court had subject-matter jurisdiction over the claims. Paragraph 13 in the federal complaint merely states the undeniable fact that the federal court had jurisdiction over all Tufaroâs claims under â28 U.S.C. §§ 1331, 1367 and42 U.S.C. § 1983
.â
The only substantive change in the amended complaint filed in federal court was
the addition of a state-law claim, which would have no effect on the basis of
federal jurisdiction in the case. I fail to see how submission to the obvious and
inevitable fact that the federal court had jurisdiction over the case constitutes
âinvokingâ jurisdiction or has anything to do with whether the state-law claims
should now be remanded to state court. Clearly Tufaro preferred the state venue to
federal court; that is why he filed his claims there. But once the defendants
removed the case to federal court, he had no choice but to proceed in that venue.
He never âinvokedâ federal-court jurisdiction; he was stuck with it. Is it really an
exceptional circumstance for the plaintiff in a removed case to amend the
complaint and, in doing so, comply with the requirement of Federal Rule of Civil
Procedure 8(a)(1) by stating the ground of federal jurisdiction? I suspect such
action is quite common.
The majority opinion tries to support its puzzling analysis by stating:
âWhen a plaintiff files an amended pleading in federal court, this move is legally
significant. See Akin v. Ashland Chemical Co., 156 F.3d 1030, 1036 (10th Cir.
8
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1998) (holding that a plaintiff âcannot voluntarily invoke, and then disavow,
federal jurisdictionâ).â Maj. Op. at 42. But Akin says not a word about jurisdiction
under § 1367. The issue in Akin was whether the plaintiff in that case had waived
the right to challenge on appeal the propriety of the removal of the case from state
court to federal court when, after removal, the plaintiff amended the complaint to
add additional federal-law claims. Here, there is no challenge to the propriety of
the removal and plaintiff did not add any federal-law claims. It is no surprise that
the majority opinion does not cite any case, nor am I aware of any, that applies the
Akin reasoning in the context of a remand or dismissal under § 1367.
The other cases (from 1941 and 1952) cited on this point by the majority
opinion similarly consider whether there was waiver of any objection to the
original removal by failing to object until after entry of an adverse judgment.
(Since 1988, 28 U.S.C. § 1447(c) has required any nonjurisdictional objection to
removal to be filed within 30 days after filing of the notice of removal.) In sum, I
fail to see how Tufaroâs filing of an amended complaint amounted to some sort of
tactical or strategic maneuver that should change the calculus in assessing the
application of § 1367(c). Rather, he was merely doing what the defendants made
him doâpursuing his litigation in the defendantsâ chosen forum.
The majority opinionâs remaining ground for denying remand is that Tufaro
waived (forfeited? 1) the issue by not raising it in district court. I question the
1
Although the majority opinion and the cases it cites speak in terms of waiver of
the remand issue, this circuit has numerous opinions stating that the failure to raise an
9
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premise of this ground. The majority opinion does not explain when and how
Tufaro should have raised the issue. The issue did not arise until the district court
dismissed all the federal claims. And that dismissal was in the courtâs final
judgment. Tufaro could have filed a postjudgment motion for reconsideration, but
we ordinarily do not require a party to file a motion for reconsideration to correct
error at that stage of the proceeding instead of just appealing the error. See United
States v. Madrid, 633 F.3d 1222, 1228 (10th Cir. 2011) (Kelly, J., concurring) (âIn
the civil context, there is absolutely no authority that creates an obligation to raise
a motion to reconsider in order to preserve an argument for appeal.â (brackets and
internal quotation marks omitted)).
In any event, the majority opinion ignores that the decision to remand is
predicated in large part on fundamental issues of federalism not under the control
of the parties. As the Supreme Court stated in Gibbs, âNeedless decisions of state
law should be avoided both as a matter of comity and to promote justice between
the parties.â 383 U.S. at 726(emphasis added). When the Supreme Court speaks of comity, it is referring to the respect that federal courts should show to state judicial processes. Since the issue to be resolved is a matter of state law, we should let the state courts handle it. In my view, Tufaro raises a substantial issue in the district court is generally termed a forfeiture rather than a waiver. A forfeited issue can be raised on appeal and is reviewed for plain error. See, e.g., Richison v. Ernest Group, Inc.,634 F.3d 1123
, 1127â28 (10th Cir. 2011). An issue not pursued in district court is considered waived only if it was intentionally relinquished or abandoned. Seeid. at 1127
.
10
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question of state law when he suggests that he was in effect an at-will employee if
the University could refuse without cause to renew his contract. A federal court
might be most reluctant to extend state law in that direction, but the state courts
may think it appropriate. Tufaro should have the opportunity to make that
argument in state court. Even when the parties may have no particular interest in
comity, the federal courts do. As a result, waiver doctrine has a very limited role in
this sphere. It is worth noting that this limitation on waiver is not unique to the
comity context. â[W]hen a rule implicates judicial interests beyond those of the
parties, it may be appropriate for a court to invoke the rule sua sponte in order to
protect those interests.â United States v. Mitchell, 518 F.3d 740, 750 (10th Cir.
2008) (court of appeals may sua sponte raise time bar for filing notice of appeal).
A good example of where comity overrides what would otherwise be a
waiver (or forfeiture) is Granberry v. Greer, 481 U.S. 131(1987). In that case the Supreme Court considered whether an appellate court can and should dismiss a habeas claim challenging a state conviction under28 U.S.C. § 2254
for failure of the prisoner to exhaust state remedies when the State had not raised nonexhaustion in the district court. The Court began by noting that âas a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act.âId. at 133
(internal quotation marks
omitted). Hence, the Stateâs failure to raise exhaustion âmakes it appropriate for
the court of appeals to take a fresh look at the issue. The court should determine
whether the interests of comity and federalism will be better served by addressing
11
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the merits forthwith or by requiring a series of additional state and district court
proceedings before reviewing the merits of the petitioner's claim.â Id. at 134. The Court then briefly described some of the relevant considerations, such as whether the prisonerâs claim clearly lacks merit or whether the federal district court had conducted a full trial on the merits. Seeid.
at 134â36. The analysis to be
conducted by the court of appeals appears to be essentially the same as the
Supreme Court in Gibbs described in determining whether to remand the state-law
claims that were before the federal district court only under supplemental
jurisdiction. In particular, failure to preserve the issue in district court is largely
irrelevant.
A close analogue to the context before us is the practice of certifying a
state-law issue to a stateâs highest court. Such certification is a fairly modern
practice primarily designed to replace an earlier practice of the Supreme Court
designed to respect (that is, show comity to) state-court interpretation of state law.
In the old days, the Supreme Court created Pullman abstention, see Railroad
Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941), in which a federal district
court was to abstain from resolving a disputable issue of state law while the parties
proceeded to resolve the issue in a newly instituted state-court proceedingâ in
effect, a remand of part of the case to a state court. See Garner et al., the Law of
Judicial Precedent 618â22.
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Given the similarity between certification of a question of law to a state
supreme court and remand of a state-law issue to a state court under 28 U.S.C.
§ 1367, I think a passage in a dissent by Justice Sotomayor is instructive:
[C]ertification is not an argument subject to forfeiture by the parties.
It is a tool of the federal courts that serves to avoid friction-generating
error where a federal court attempts to construe a statute not yet
reviewed by the Stateâs highest court. This Court has certified
questions to a state court sua sponte, even though the parties had not
sought such relief and even though the district court and the court of
appeals previously had resolved the disputed point of state law.
Respondentsâ delay in asking for certification does nothing to alter
this Courtâs responsibility as a matter of state-federal comity to give
due deference to the state courts in interpreting their own laws.
Minnesota Voters Alliance v. Mansky, 585 U.S. 1, 29 (2018) (emphasis added;
citations and internal quotation marks omitted). 2
The majority opinion cites seven published opinions by other circuits in
support of its waiver ruling: Lawless v. Steward Health Care Sys., LLC, 894 F.3d
9, 20(1st Cir. 2018); Powers v. United States,783 F.3d 570
, 576â77 (5th Cir. 2015); Alternate Fuels, Inc. v. Cabanas,435 F.3d 855
, 857 n.2 (8th Cir. 2006); Voelker v. Porsche Cars N. Am., Inc.,353 F.3d 516
, 522 (7th Cir. 2003); New Jersey Turnpike Auth. v. PPG Indus.,197 F.3d 96
, 113 (3d Cir. 1999); Acri v. Varian Associates, Inc.,114 F.3d 999
, 1000â01 (9th Cir. 1997) (en banc); Doe v.
2
Of course, certification is a matter of discretion; and the Supreme Court majority
declined to certify the state-law issueâthe meaning of a state statute challenged on First
Amendment grounds. But there was not in that case, as here, a presumption in favor of
the state court hearing the matter, the federal courts had been litigating the matter for
more than seven years, and the Court majority said that the state defendants, unlike
Tufaro, had offered no interpretation of state law that would affect the Supreme Courtâs
conclusions.
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District of Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996). Acri is the only opinion
that discusses waiver at any length, and none of the opinions discusses the limits
that comity imposes on waiver doctrine. Nonetheless, it is worth giving these
opinions a closer look.
The Ninth Circuitâs short en banc opinion in Acri is quite limited in scope,
and is not inconsistent with my position in this case. The only holding in that case
is that a district court with supplemental jurisdiction under § 1367(a) is not
required to sua sponte (that is, without the issue being raised by a party) address
whether to decline jurisdiction under § 1367(c), nor is a court of appeals ârequired,
sua sponte, to decide whether the district court abused its discretion under
§ 1367(c) when neither party has raised the issue.â 114 F.3d at 1000. The opinion,
however, does not condemn an appellate court for sua sponte taking up the issue
of the propriety of declining jurisdiction under § 1367(c). It cites two recent
decisions by Ninth Circuit panels that sua sponte raised the issue, and the only
respect in which the en banc opinion rejects those panel decisions is that those
decisions might be read to suggest that the courts had an obligation to sua sponte
take up the issue. See id. Indeed, the concluding paragraphs of the opinion strongly
suggest that federal courts generally should consider sua sponte whether
jurisdiction should be, or should have been, declined under § 1367(e). See id. at
1001. Acri might be more persuasive if it had discussed why comity toward state
courts could be so ignored just because the parties did not raise the issue. But I
have no particular objection to the holding. Given the congestion in the federal
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courts these days, one could rarely justify requiring them to look for
nonjurisdictional issues not raised by a party. In any event, I see no need to debate
an issue not pertinent to this case since Tufaroâs opening brief clearly presented
the issue when it said, â[T]he District Court should have remanded Dr. Tufaroâs
Burk claim back to state court. No federal claims remained, and the District Court
should have declined to exercise jurisdiction over the claim. Koch v. City of Dell
City, 660 F.3d at 1248.â Aplt. Br. at 35 (internal quotation marks omitted).
Of the remaining six opinions cited by the majority opinion, the issue had
never been raised by a party in three of them: Lawless, 894 F.3d at 20(circuit court raised issue for the first time at oral argument and requested briefing; none of the briefs objected to retention of the state-law claims); Alternate Fuels,435 F.3d at 857
n.2; and Voelker, 353 F.3d at 522. These opinions are therefore fully consistent
with Acri and this partial dissent.
The other three cases do say that the remand-or-dismissal issue was waived
by failure to raise it in district court, but context matters and the decisions in those
cases did not address the circumstances before us. In Powers the district court had
conducted a three-day bench trial, see 783 F.3d at 576, which would argue strongly against remand. Moreover, after stating that the issue had been waived, the circuit court proceeded to address it anyway and stated that there was no abuse of discretion by the district court in not remanding the case to state court. Seeid. at 577
.
In New Jersey Turnpike the plaintiffâs argument was not, as here, that
dismissal of the state-law claims was proper because all the federal claims had
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been dismissed before trial, see 28 U.S.C. § 1367(c)(3), where there is a presumption in favor of dismissal or remand, but rather that the state-law claims should be dismissed because of their complexity, an issue under28 U.S.C. § 1367
(c)(1), where there is no such presumption. The court devoted just three
sentences to the waiver issue. See 197 F.3d at 113. It would not be surprising if the
circuit court would take action if a party on appeal showed that the circumstances
came within the requirements for a presumption of remand or dismissal.
Similarly, in Doe the claim was that the district court should not have
assumed supplemental jurisdiction because of the difficult issues of District of
Columbia law presented. See 93 F.3d at 871. The word comity does not appear in the opinion. (Perhaps the force of comity considerations was reduced because local District of Columbia law and general federal law derive from the same sovereign.) And, ironically, the circuit court accomplished much of the purpose of dismissal in favor of further state-court proceedings by certifying local-law issues to the District of Columbia court. Seeid.
at 872â75. As I mentioned above,
certification serves as a mechanism to avoid remand to a state court to resolve
state-law issues. The advantage of certification is efficiency. But remand can be a
superior mechanism if the state court would likely need more factual development
to feel comfortable taking on the state-law issue.
In sum, I question whether the circuits that handed down the opinions cited
by the majority opinion would rely on waiver to reject an argument for remand
like the one made here. Further, the persuasive force of the cited opinions is
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substantially diminished because none discussed the proposition addressed above
that matters of comity are not in the hands of the parties to the case and cannot be
waived by a party.
Accordingly, rather than rely on out-of-circuit opinions in distinguishable
contexts, which address waiver in rather summary fashion and totally ignore the
proposition that parties cannot waive the comity concerns so fundamental to our federal
system of government, I prefer to follow this circuitâs long-standing tradition of practice
in which we have repeatedly remanded state-law claims when all federal claims were
dismissed before trial, even when the issue had not been raised in district court. Five
examples of remand or dismissal when the issue was not raised in district court should
suffice: Barnett v. Hall, 956 F.3d 1228, 1239(10th Cir. 2020); VR Acquisitions, LLC v. Wasatch Cnty.,853 F.3d 1142, 1150
(10th Cir. 2017); Brooks v. Gaenzle,614 F.3d 1213, 1230
(10th Cir. 2010), abrogated on other grounds by Torres v. Madrid,592 U.S. 306
(10th Cir. 2021); Snyder v. Murray City Corp.,124 F.3d 1349
, 1354â1355 (10th Cir. 1997); Ball v. Renner,54 F.3d 664, 669
(10th Cir. 1995). The panel opinion does not cite,
nor am I aware of, any opinion of this circuit holding that remand to state court (or
dismissal without prejudice) of state-law claims is dependent on the plaintiffâs moving in
district court for such remand or dismissal. I would avoid creating such an unfortunate
precedent.
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