Unempl.ins.rep. Cch 21,803richard L. Fincher, Plaintiff-appellant, v. State of Florida Dept. of Labor and Employmentsecurity--unemployment Appeals Commission,defendants-appellees, 798 F.2d 1371 (11th Cir. 1986)

Appellant Richard Fincher brought this 42 U.S.C. § 1985 civil rights action against the State of Florida, Department of Labor and Employment Security, Unemployment Appeals Commission (Commission) alleging that the Commission violated the due process and equal protection clauses of the fourteenth amendment when it denied him unemployment compensation benefits. The district court dismissed the suit, holding that the Eleventh Amendment barred the 42 U.S.C. § 1985 claim. We affirm.

Whether an entity is an arm of the state protected by the Eleventh Amendment "turns on its function and character as determined by state law." Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069 (5th Cir. 1981). Significant in this determination are the definitions of "state," the state's degree of control over the entity, and the fiscal autonomy of the entity. United Carolina Bank v. Board of Regents, 65 F.2d 553 (5th Cir. 1982). Application of these factors reveals that the Commission falls within the purview of Eleventh Amendment immunity.

The Florida Unemployment Appeals Commission is a creature of Florida statute, operating as an agency within the executive branch of the Florida state government. See Fla.Stat. Secs. 20.03(11); 20.171. Though the Commission receives financial support from a federal agency, the Bureau of Employment Security, Florida exercises a degree of administrative and fiscal control over the Commission. The Commission must submit any requests or budgets for federal funds to the Executive Office of the Governor for approval unless otherwise specifically authorized, and once federal money is appropriated by Congress, it may not be expended unless appropriated by the Florida legislature. Fla.Stat. Secs. 216.212; 443.191. Further, the funds by which Commission members are paid reside in the state treasury, and include all monies appropriated by the State of Florida, the United States Government, and other states. Fla.Stat. Sec. 443.211.

Fincher's claim that any recovery would not come from state funds is unavailing. Because the Commission's budget is submitted to the Florida legislature, it is presumed the state would be responsible for any debts that could not be paid out of the Commission's revenues. Fouche v. Jekyll Island-State Park Authority, 713 F.2d 1518, 1521 (11th Cir. 1983). Further, while Fla.Stat. Sec. 443.201(1) limits Florida's liability for unemployment compensation benefits to the amount of money received from the Bureau of Employment Security or other federal agencies, it is not specified whether the Commission's other debts are those of the state. The fact that Florida has limited liability for unemployment benefits does not preclude or foreclose the state from appropriating money to pay the Commission's other debts, including Fincher's claim for $6000 in expenses. See Fouche, 713 F.2d at 1521. Fincher has failed to sufficiently demonstrate that the monetary relief sought would not be extracted from the state's treasury.

Therefore, we conclude that the Eleventh Amendment bars Fincher's claim unless Florida has waived its immunity. "Absent a legitimate abrogation of immunity by Congress or a waiver of immunity by the state being sued, the Eleventh Amendment is an absolute bar to suit by an individual against a state or its agencies in federal court." Gamble v. Florida Department of Health and Rehabilitative Services, 779 F.2d 1509 (11th Cir. 1986). We find no express congressional abrogation of the state's Eleventh Amendment immunity with respect to 42 U.S.C. § 1985 actions. Nor has the state of Florida waived its Eleventh Amendment immunity in federal civil rights actions. See Ostroff v. Florida, Department of Health and Rehabilitative Services, 554 F. Supp. 347, 355-56 (M.D. Fla .1983). The district court properly dismissed appellant's claim.

AFFIRMED.