[Copyrighted Material Omitted]
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-15-5690],
HONORABLE TIMOTHY DAVIS FOX, JUDGE
Law Firm, PLLC, North Little Rock, by: Chris P. Corbitt, for
A. Curran, Little Rock, Office of the General Counsel, for
Justices James Crouch, Roger Rowe, and Doug Schrantz join.
DAN KEMP, Chief Justice
Appellant Robert Steinbuch appeals the Pulaski County Circuit
Courts dismissal of his action against appellees University
of Arkansas a/k/a University of Arkansas-Little Rock
("UALR"), the Trustees of the University of
Arkansas, Michael Schwartz in his official and individual
capacities, Theresa Beiner in her official and individual
capacities, JoAnn Maxey in her official capacity, John M.A.
DiPippa in his official capacity, and Velmer Burton in his
official capacity. On appeal, Steinbuch argues that the
circuit court erred by requiring him to pay for counsel of
the representatives of a class of students implicated in his
2015 Arkansas Freedom of Information Act ("FOIA")
request, by dismissing his claims for injunctive and monetary
relief against the official-capacity defendants based on
sovereign immunity, by dismissing individual-capacity claims
against Schwartz and Beiner, and that the University
affirmatively waived sovereign immunity on a claim under the
Arkansas Whistle-Blower Act ("AWBA"). Appellees
(collectively "the University") cross-appeal,
asserting that the circuit court erred in denying Schwartz
and Beiners dispositive motion asserting statutory immunity,
allowing the AWBA claim to go forward without cognizable
allegations of "adverse action," denying the
Universitys motion to dismiss UALR as a party that lacks
legal capacity to be sued, and allowing Steinbuch to pursue a
claim against JoAnn Maxey in her official capacity. We affirm
on direct appeal and dismiss the cross-appeal.
Steinbuch, a professor at the William H. Bowen School of Law
("Law School") made several FOIA requests between
2012 and 2015 in connection with research he was conducting.
His October 12, 2015 request consisted of spreadsheets, which
included the name, LSAT score, undergraduate GPA, law school
GPA, race, sex, full-time or part-time status, residency,
graduation month, graduation year, and bar-passage
information for every student over a ten-year period.
Claiming that a release of unredacted documents would violate
the students privacy rights, the Law School produced a
redacted version of the requested spreadsheet.
November 17, 2015, Steinbuch filed a complaint in the Pulaski
County Circuit Court alleging FOIA violations against UALR
and Schwartz in his official capacity as then dean of the Law
School. Steinbuch filed an amended complaint on November 23,
2015, in which he again claimed that UALR and Schwartz
violated FOIA and sought an order for the production of an
unredacted copy of the spreadsheet. He also added a claim
against UALR and Beiner, in her official capacity, alleging
violations of the AWBA, Ark. Code Ann. § § 21-1-601 et seq.
(Repl. 2016 & Supp. 2017), for retaliatory actions against
Steinbuch as a result of his original complaint.
Specifically, Steinbuch claimed that, on November 19, 2015,
Beiner, then associate dean of the Law School, contacted a
minority student from one of Steinbuchs classes and asked
the student whether Steinbuch
had discussed his race-related research with the class.
December 10, 2015, Steinbuch filed an ex parte petition for
temporary restraining order and petition for preliminary
injunction in which he alleged that on November 27, 2015, Law
School professors Adjoa Aiyetoro and Sarah Jenkins emailed
Beiner about Steinbuchs lawsuit and grading policies. In
response to the email from Aiyetoro, Beiner wrote,
Thank you for your e-mail about some of the concerns raised
by this. Ive been in touch with [Schwartz], and he and I are
discussing how best to proceed. One or both of us will be in
touch soon. In the meantime, if you, Sarah, or Ranko have any
further thoughts on this, I welcome hearing from you.
Schwartz then forwarded Aiyetoros and Jenkinss emails to
Steinbuch and others involved, writing, in pertinent part,
Normally, if I were to receive a message like the message
below, either Terri or I would forward the message to the
faculty member in question (in this case you, Rob), and we
would work through the issues with all involved. However,
because I am a named defendant in the referenced lawsuit, by
copy of this message to Dr. Toro, I am asking Dr. Toro to
investigate and resolve the issues.
Steinbuchs petition, he sought to "prevent[ ]
Defendants or their agents or representatives from any
further retaliation against Plaintiff," including, but
not limited to, his requested attendance by Zulma Toro, then
UALR provost, at an investigatory meeting. On December 29,
2015, Steinbuch filed a second ex parte petition for
temporary restraining order and petition for preliminary
injunction. That same day, Steinbuch filed a second amended
complaint, adding Toro and Maxey, an attorney in the
University of Arkansas Office of General Counsel, as
defendants in their official capacities.
January 25, 2016, the circuit court held a hearing on
Steinbuchs petitions for temporary restraining order and
preliminary injunction. It did not enter an order on those
petitions until April 8, 2016. In the meantime, Steinbuch
filed his third amended complaint on February 18, 2016. The
University moved to dismiss that complaint, arguing that the
requested records were exempt from FOIA, that the allegations
failed to demonstrate "adverse action" as required
under the AWBA, that neither Maxey nor Beiner was Steinbuchs
"public employer" under the AWBA, and that UALR was
not an entity amenable to suit. On April 8, 2016, the circuit
court denied the Universitys motion.
same day, the circuit court denied Steinbuchs petitions for
temporary restraining order and preliminary injunction and
found that both petitions were moot because Toro had
concluded the investigation one business day prior to the
January 25 hearing. The circuit court ruled sua sponte that
"the graduates of UALR Bowen School of Law, whose
records are implicated by Plaintiffs FOIA request that
underlies the instant litigation, are necessary parties in
this matter under Rule 19(a) of the Arkansas Rules of Civil
Procedure" because they may have constitutional privacy
rights implicated and their potential rights "are not
adequately represented by either party." Thus, Steinbuch
was ordered to file a class-action complaint that named one
or more of the students implicated by the 2015 data request
and pay the attorneys fees of class counsel.
August 19, 2016, Steinbuch filed his fourth amended
complaint, naming Beiner and Schwartz in their official and
individual capacities and adding a claim of tortious
interference with an employment contract. He also alleged
that his free-speech rights under the Arkansas Constitution
and United States Constitution, as well as his right to
academic freedom, had been violated. The case was removed to
federal district court on August 30, 2016, and then remanded
to state court on August 29, 2017, after Steinbuch dropped
his federal claim. On January 2, 2018, the circuit court
entered an order giving Steinbuch thirty days to file a fifth
amended complaint that complied with Ark. R. Civ. P. 8(a) and
sixty days to comply with its April 8, 2016 order regarding
Steinbuch filed his fifth amended complaint on February 2,
2018, and added as defendants John DiPippa
and Velmer Burton in their official capacities as the Law
School dean and UALR provost, respectively. He also added a
claim under the Arkansas Civil Rights Act ("ACRA")
and a claim of civil conspiracy. On February 20, 2018, the
University filed a motion for partial judgment on the
pleadings as to all the non-FOIA claims, arguing that the
institutional and official-capacity claims were barred by
sovereign immunity, that the equitable claims either were
barred by sovereign immunity or were moot, that the
individual-capacity claims were barred by statutory immunity,
and that he had not alleged cognizable claims for tortious
interference or conspiracy. In a sixth amended complaint,
Steinbuch supplemented his previous complaint by adding
Evelyn Gomez and Misty Peltz Steele as the representatives of
the law-school class of graduates whose data was being
14, 2018, the circuit court dismissed the FOIA claim (count
1) with prejudice because the parties had negotiated a
settlement on that claim. The court also found that
there is no longer a need for a class of graduates of UALR
Bowen School of Law to participate in this case. The putative
class representatives, Evelyn Gomez and Misty Peltz-Steele,
are hereby dismissed as separate defendants in this action.
In addition, there is no need for an attorney for a putative
class to participate as counsel in this case.
a hearing on the Universitys motion for partial judgment on
the pleadings, the circuit court entered an order granting
the motion, entering judgment on the pleadings, and
dismissing the remaining five claims on August 6,
2018. It also denied Schwartz and Beiners
claim to statutory immunity "because discovery is
required to develop the facts related to statutory
immunity." The circuit court then found that "[a]ny
official-capacity claims, individual-capacity claims, or
claims against UA/UALR that have not been specifically
addressed in this Order are dismissed with prejudice."
The Court GRANTS Defendants motion, enters JUDGMENT on the
in Defendants favor, and DISMISSES this civil action with
prejudice. It is SO ORDERED on this 6 day of August 2018.
timely appealed the dismissal of his case, and the University
filed a cross-appeal.
Standard of Review
motion for judgment on the pleadings is appropriate if the
pleadings show on their face that there is no merit to the
suit. See LandsnPulaski v. Ark. Dept of
Corr., 372 Ark. 40, 269 S.W.3d 793 (2007). When we
review the granting of judgment on the pleadings, we view the
facts alleged in the complaint as true and in the light most
favorable to the party seeking relief. See
Rhodes v. Kroger Co., 2019 Ark. 174, 575 S.W.3d 387.
standard of review for the granting of a motion to dismiss is
whether the circuit court abused its discretion.
Id., 575 S.W.3d at 390. An abuse of discretion is a
high threshold that requires not only error in the circuit
courts decision, but also that the ruling was made
improvidently, thoughtlessly, or without due consideration.
Id., 575 S.W.3d at 390.
Points on Direct Appeal
Attorneys Fees for the FOIA Lawsuit
first challenges the circuit courts April 8, 2016 finding
that he was required to pay for counsel for the
representatives of the class of students implicated by his
2015 data request. He asserts that there was "no basis
in law to impose such a burden on a FOIA plaintiff" and,
left unchecked, the ruling has the potential to have an
extinguishing effect on FOIA activity. Steinbuch argues that
attorneys fees are never recoverable against a plaintiff
under FOIA and that the courts fee ruling directly conflicts
with Ark. Code Ann. § 25-19-107(d)(2) (Repl. 2014).
circuit courts April 8, 2016 order states,
Accordingly, the Court orders that this case should include,
as a defendant class, graduates of UALR Bowen School of Law
whose privacy interests may be affected if UALR Bowen School
of Law were to release the data that Plaintiff has requested
under FOIA. Plaintiff shall file a class-action complaint
that names one or more of the graduates impacted by
Plaintiffs 2015 data request as a representative defendant.
Plaintiff is ordered to pay the fees of counsel for the
defendant class ...