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Law360, San Francisco (October 5, 2020, 7:46 PM EDT) -- A California federal magistrate judge said during a hearing on Monday that she intends to dismiss a pair of proposed class actions accusing the Regents of the University of California of withholding campus fee refunds following coronavirus-related campus closures, finding that the students hadn't overcome the UC Regents' qualified immunity defense.
U.S. Magistrate Judge Sallie Kim expressed sympathy for students seeking campus fee reimbursements amid the COVID-19 pandemic, but said they hadn't shown sufficient precedent to back up their argument that the state-run university's regents and its former president Janet Napolitano lack entitlement to qualified immunity under the 11th Amendment of the U.S. Constitution.
Under the students' theory, anyone unhappy with the services provided could file suit against the government, Judge Kim said, and the 11th Amendment, which establishes the principle of state sovereign immunity, "would have no meaning" under such a theory.
"The door you are opening is huge in terms of takings and due process," Judge Kim told counsel for the students.
Judge Kim said she intends to grant the motion to dismiss, but that she hadn't yet made up her mind about whether to grant leave to amend the complaint.
"I'm just grappling with this issue about whether amendment would be futile or not, under the circumstances," Judge Kim said.
Counsel for the students, Adam J. Levitt of DiCello Levitt Gutzler LLC, urged the judge not to dismiss the case, arguing that unlawful taking is a constitutional violation and that the UC Regents "have taken hundreds of millions of dollars from class members."
"Qualified immunity is not applicable here," Levitt said.
The students argue that Napolitano knew or reasonably should have known that the actions she took would violate the students' constitutional rights. They also claim that qualified immunity does not bar claims for injunctive relief, which they seek.
But the UC Regents' attorney, Karen Johnson-McKewan of Orrick Herrington & Sutcliffe LLP, argued that the 11th Amendment is applicable here and bars the claims against the UC Regents and Napolitano.
Johnson-McKewan also argued that once the university collected the spring 2020 campus fees from students, those fees became the university's property.
The UC Regents said even if they were not immune from suit, the claims should still be dismissed because they fail as a matter of law.
The cases, filed separately in April by UC students Noah Ritter and Claire Brandmeyer, are among the dozens of suits launched in recent months against U.S. universities that moved classes online amid the pandemic but declined to refund a portion of the spring 2020 tuition or campus fees. UC students have also filed similar suits in state court.
The related suits against the UC Regents allege that they refused to reimburse students for services that they are no longer receiving and say the UC system should have refunded prorated portions of their campus fees, particularly in light of its $21 billion endowment.
A team of attorneys at Cowper Law PC, DiCello Levitt Gutzler LLC and Matthew S. Miller LLC are representing California students in lawsuits against the UC Regents, as well as the Regents of the California State University system.
The CSU Board of Trustees made the same argument as the UC Regents in July, telling the court that the university system was immune from the lawsuit under the 11th Amendment because it is an entity of the state rather than a "person."
Claire Doan, a representative of the University of California's Office of the President, told Law360 via email on Monday that the judge has indicated she will grant their motion to dismiss cases against the regents and Napolitano in federal court, where they "are immune from suit as a matter of federal constitutional law."
"We believe the interests of the plaintiffs in the two federal cases are adequately represented by the six class actions that are currently pending in California state court," Doan said.
Doan said the university "remains focused on its educational mission and supporting students as they progress toward their degrees, notwithstanding the many challenges from this pandemic."
Representatives for the students did not immediately respond to requests for comment.
Plaintiffs are represented by Eric M. Poulin and Roy T. Willey, IV of Anastopoulo Law Firm, John C. Bohren of Bohren Law, C. Moze Cowper and Noel E. Garcia of Cowper Law PC, Adam J. Levitt and Laura E. Reasons of DiCello Levitt Gutzler LLC and Matthew S. Miller of Matthew S. Miller LLC.
The University of California is represented by Karen Johnson-McKewan of Orrick Herrington & Sutcliffe LLP.
The case is Noah Ritter et al. v. The Regents of the University of California, case number 3:20-cv-02925, and related case, Claire Brandmeyer v. The Regents of the University of California, case number 4:20-cv-02886, both in the U.S. District Court for the Northern District of California.
--Editing by Nicole Bleier.
For a reprint of this article, please contact reprints@law360.com.
