May 29, 2015
Ex parte University of South Alabama
Amber Bartlett et al. In re: Azin Agah Ex parte Amber Bartlett In re: Azin Agah
Amber Bartlett et al.
(Mobile Circuit Court, CV-11-901689).
-- Moore, C.J., and Bolin, Parker, Murdock, Shaw, Main, and
Bryan, JJ., concur. Stuart, J., recuses herself. 1140441 --
Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur.
Moore, C.J., dissents. Stuart, J., recuses herself.
FOR WRIT OF MANDAMUS
University of South Alabama (" USA" ), a state
institution of higher learning, see § 16-55-1 et seq.,
Ala. Code 1975, contends that it is immune from civil actions
and petitions this Court for a writ of mandamus directing the
Mobile Circuit Court to dismiss it from an action filed by
Azin Agah, a former USA employee. Additionally, Amber
Bartlett, a student who worked under Agah's supervision
in USA's research laboratory and a defendant in the same
underlying action, petitions this Court for a writ of
mandamus directing the Mobile Circuit Court to issue an order
quashing the subpoena issued to Alabama Psychiatric Services,
P.C. (" APS" ), ordering production of her
mental-health records. We grant the petitions and issue the
and Procedural History
about August 1, 2006, USA hired Agah, a cell biologist, as a
tenure-track employee, to teach biochemistry and to research
the abnormalities in the extracellular matrix and
angiogenesis associated with the pathogenesis of scleroderma.
In 2010, USA did not reappoint Agah based on alleged research
2011, Agah sued Bartlett and Julio F. Turrens, associate dean
of the College of Allied Health Professions at USA and
chairman of the two ad hoc committees that evaluated Agah,
and other fictitiously named parties, alleging theft of
electronic computer data and her research logbook and
intentional and malicious interference with her contractual
relationship with USA and seeking recovery of chattels in
specie for the electronic data and her research logbook.
2012, Agah served a notice of intent to subpoena APS to
obtain " all records pertaining to the care and
treatment of Amber Leigh Bartlett." In July 2012,
Bartlett objected to the subpoena, arguing that the records
were subject to the psychotherapist-patient privilege, see
Rule 503, Ala. R. Evid., and § 34-26-2, Ala. Code 1975.
Bartlett and APS moved to quash the subpoena and for an order
declaring that the records of APS with regard to Bartlett
remain confidential. On August 9, 2012, the trial court
denied the motion filed by Bartlett and APS to quash the
subpoena and to enter a protective order and ordered the
production of the documents for an in camera review. On
August 14, 2012, Bartlett moved the trial court to reconsider
its orders directing the production of her records from APS
and denying a protective order.
March 21, 2013, Agah amended her complaint adding USA and
others as defendants and adding various claims. The only
claim in her amended complaint that specifically names USA as
a defendant " seeks a declaratory judgment, injunctive
relief, and monetary damages against USA for the breach by
USA of [her] tenure track employment contract with USA."
Against Bartlett and the other " defendants" Agah
alleged tortious interference with contractual rights, "
tortious violation of [her] rights guaranteeing her
substantive and procedural due process," suppression,
defamation of character, intentional
infliction of emotional distress, negligent infliction of
emotional distress, administrative abuse of process,
conversion and detinue, and invasion of
privacy. She requests a judgment of
$10,000,000, an order appointing a special master to conduct
a fair and impartial investigation into the allegations
against her of research misconduct, and an order requiring
the return of her research logbook undamaged.
August 13, 2013, before the trial court ruled on
Bartlett's motion to reconsider, Agah issued a subpoena
for Bartlett's mental-health records from APS. On August
14, 2013, Bartlett again moved the trial court to quash the
subpoena and to enter a protective order.
August 30, 2013, USA moved to dismiss Agah's claims
against it, arguing, among other grounds, that it had
absolute immunity from civil actions under § 14 of the
Alabama Constitution 1901. With its motion, USA submitted
evidentiary support for the trial court's consideration.
January 28, 2015, the trial court entered an order denying
USA's motion to dismiss and Bartlett's motion to
reconsider its order refusing to quash Agah's subpoena
for her mental-health records from APS and to enter a
protective order. On February 5, 2015, USA petitioned this
Court for a writ of mandamus directing the trial court to
vacate its order denying its motion to dismiss and to enter
an order, based on § 14 immunity, dismissing USA from
Agah's action. On March 2, 2015, Bartlett petitioned this
Court for a writ of mandamus directing the trial court to
quash the subpoena issued to APS seeking production of her
" 'The writ of mandamus is an extraordinary legal
remedy. Ex parte Mobile Fixture & Equip. Co., 630
So.2d 358, 360 (Ala. 1993). Therefore, this Court will not
grant mandamus relief unless the petitioner shows: (1) a
clear legal right to the order sought; (2) an imperative duty
upon the trial court to perform, accompanied by its refusal
to do so; (3) the lack of another adequate remedy; and (4)
the properly invoked jurisdiction of the Court. See Ex
parte Wood, 852 So.2d 705, 708 (Ala. 2002).'
Ex parte Davis, 930 So.2d 497, 499 (Ala.
2005)." Ex parte Troy Univ., 961 So.2d 105,
107-08 (Ala. 2007).
contends in its petition that it is entitled to absolute
immunity from the claims asserted against it in Agah's
complaint; therefore, it says, it has a clear, legal right to
a writ of mandamus directing the Mobile Circuit Court to
dismiss USA from Agah's action.
" A petition for a writ of mandamus is the proper
vehicle by which to seek review of the denial of a motion to
dismiss based on the ground of State immunity:
" 'The denial of a motion to dismiss or a motion for
a summary judgment generally is not reviewable by a petition
for writ of mandamus, subject to certain narrow exceptions,
such as the issue of immunity. Ex parte Liberty Nat'l
Life Ins. Co., 825 So.2d 758, 761-62 (Ala. 2002).'
" Ex parte Haralson, 853 So.2d 928, 931 n. 2
Drummond Co. v. Alabama Dep't of Transp., 937
So.2d 56, 57 (Ala. 2006).
maintains that it is entitled, as a matter of law, to
absolute immunity from Agah's action under § 14,
Ala. Const. 1901. " [T]he State of Alabama shall never
be made a defendant in any court of law or equity."
Article I, § 14, Ala. Const. 1901. This Court has
recognized that § 14 immunity has been extended to the
" 'state's institutions of higher learning'
and has held those institutions absolutely immune from suit
as agencies of the State." Ex parte Troy Univ.,
961 So.2d at 109 (quoting Taylor v. Troy State
Univ., 437 So.2d 472, 474 (Ala. 1983), and citing
Hutchinson v. Board of Trs. of Univ. of Ala., 288
Ala. 20, 256 So.2d 281 (1971), and Harman v. Alabama
Coll., 235 Ala. 148, 177 So. 747 (1937)).
in her answer filed in this Court, maintains that, because
she seeks a declaratory judgment against USA concerning her
employment contract and the rules and procedures used to
investigate an allegation against her of research misconduct
and because declaratory-judgment actions are excepted from
§ 14 immunity, USA is not entitled to immunity from her
action. Agah's request for a declaratory judgment against
USA, however, does not disqualify USA from § 14
immunity. The declaratory-judgment exception to § 14
sovereign immunity is applicable to actions against State
officials, not to actions against the State or State
agencies. As we explained in Ex parte Alabama Department
of Finance, 991 So.2d 1254, 1256-57 (Ala. 2008):
" [C]ertain actions are not barred by § 14. There
are six general categories of actions that do not come within
the prohibition of § 14: (1) actions brought to compel
State officials to perform their legal duties; (2) actions
brought to enjoin State officials from enforcing an
unconstitutional law; (3) actions to compel State officials
to perform ministerial acts; (4) actions brought against
State officials under the Declaratory Judgments Act, Ala.
Code 1975, § 6-6-220 et seq., seeking construction of a
statute and its application in a given situation; (5) valid
inverse condemnation actions brought against State officials
in their representative capacity; and (6) actions for
injunction or damages brought against State officials in
their representative capacity and individually where it was
alleged that they had acted fraudulently, in bad faith,
beyond their authority, or in a mistaken interpretation of
law. See Drummond Co. v. Alabama Dep't of
Transp., 937 So.2d 56, 58 (Ala. 2006)(quoting Ex parte
Carter, 395 So.2d 65, 68 (Ala. 1980)); Alabama Dep't
of Transp. v. Harbert Int'l, Inc., 990 So.2d 831
(Ala. 2008) (holding that the exception for
declaratory-judgment actions applies only to actions against
State officials). As we confirmed in Harbert, these
'exceptions' to sovereign immunity apply only to
actions brought against State officials; they do not apply to
actions against the State or against State agencies. See
Alabama Dep't of Transp., 990 So.2d at 840-41."
(Emphasis added.) Agah's declaratory-judgment action
against USA does not fall within the declaratory-judgment
exception to § 14 immunity.
a State institution of higher learning and, as a matter of
law, is a State agency entitled to the absolute immunity of
§ 14. Therefore, USA has established that it has a clear
legal right to the dismissal of the claims against it.
contends that she has a clear, legal right to a writ of
directing the trial court to enter an order quashing the
subpoena issued to APS seeking the production of
Bartlett's mental-health records.
" '" Discovery matters are within the trial
court's sound discretion, and this Court will not reverse
a trial court's ruling on a discovery issue unless the
trial court has clearly exceeded its discretion. Home
Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala. 1991).
Accordingly, mandamus will issue to reverse a trial
court's ruling on a discovery issue only (1) where there
is a showing that the trial court clearly exceeded its
discretion, and (2) where the aggrieved party does not have
an adequate remedy by ordinary appeal. The petitioner has an
affirmative burden to prove the existence of each of these
" 'Ex parte Ocwen Fed. Bank, FSB, 872 So.2d
810, 813 (Ala. 2003).
" 'Moreover, this Court will review by mandamus only
those discovery matters involving (a) the disregard of a
privilege, (b) the ordered production of 'patently
irrelevant or duplicative documents,' (c) orders
effectively eviscerating 'a party's entire action or
defense,' and (d) orders denying a party the opportunity
to make a record sufficient for appellate review of the
discovery issue. 872 So.2d at 813-14. ...'
" Ex parte Meadowbrook Ins. Group, Inc., 987
So.2d 540, 547 (Ala. 2007)."
Ex parte Mobile Gas Serv. Corp., 123 So.3d 499, 504
we must determine whether the trial court exceeded its
discretion by disregarding a privilege when it refused to
quash the subpoena and to enter a protective order.
503, Ala. R. Evid., " Psychotherapist-Patient
Privilege," provides, in pertinent part:
" (b) General Rule of Privilege.
A patient has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential
communications, made for the purposes of diagnosis or
treatment of the patient's mental or emotional
condition, including alcohol or drug addiction, among the
patient, the patient's psychotherapist, and persons who
are participating in the diagnosis or treatment under the
direction of the psychotherapist, including member's of
the patient's family.
" (c) Who May Claim the Privilege.
The privilege may be claimed by the patient, the
patient's guardian or conservator, or the personal
representative of a deceased patient. The person who was
the psychotherapist at the time of the communication is
presumed to have authority to claim the privilege but only
on behalf of the patient.
" (d) Exceptions.
" (1) Proceedings for Hospitalization.
There is no privilege under this rule for communications
relevant to an issue in proceedings to hospitalize the
patient for mental illness, if the psychotherapist has
determined, in the course of diagnosis or treatment, that
the patient is in need of hospitalization.
" (2) Examination by Order of Court.
If the court orders an examination of the mental or
emotional condition of a patient, whether a party or a
witness, communications made in the course thereof are not
privileged under this rule with respect to the particular
purpose for which the examination is ordered unless the
court orders otherwise.
" (3) Accused in Criminal Case. There is no
privilege under this rule as to an
accused in a criminal case who raises the defense of
" (4) Breach of Duty Arising Out of
Psychotherapist--Patient Relationship. There is no privilege
under this rule as to an issue of breach of duty by the
psychotherapist to the patient or by the patient to the
" (5) Child Custody Cases. There is no privilege under
this rule for relevant communications offered in a child
custody case in which the mental state of a party is clearly
an issue and a proper resolution of the custody question
510, Ala. R. Evid., provides that a party may waive a
privilege by voluntarily disclosing or consenting to the
disclosure of the privileged matter.
Ex parte Rudder, 507 So.2d 411 (Ala. 1987), this
Court recognized that the psychotherapist-patient privilege
gives the patient the right to refuse to disclose
confidential communications, including notes or records made
by the psychotherapist, and to prevent others from disclosing
confidential communications made during the assessment and/or
treatment of the patient's mental condition. We stated
that the psychotherapist-patient privilege rested on the need
" inspire confidence in the patient and encourage him in
making a full disclosure to the physician as to his symptoms
and condition, by preventing the physician from making public
information that would result in humiliation, embarrassment,
or disgrace to the patient, and [is] thus designed to promote
the efficacy of the physician's advice or treatment. The
exclusion of the evidence rests in the public policy and is
for the general interest of the community."
507 So.2d at 413. Acknowledging the public policy supporting
the psychotherapist-patient privilege, this Court in Ex
parte Pepper, 794 So.2d 340, 343 (Ala. 2001), refused to
create " an exception to the privilege applicable when a
party seeks information relevant to the issue of the
proximate cause of another party's injuries." In Ex
parte Northwest Alabama Mental Health Center, 68 So.3d 792,
799 (Ala. 2011), this Court refused to create " an
exception to the privilege that would narrow those parameters
by making the privilege inapplicable when a plaintiff
establishes that privileged information is
'necessary' to proving a cause of action."
contends that the trial court exceeded its discretion in
ordering the production of her APS records because, she says,
those records are protected from production by the
psychotherapist-patient privilege, the records do not fall
within one of the recognized exceptions to the privilege, and
she has not waived the privilege. In her answer to this
Court, Agah appears to recognize that the requested records
are subject to the psychotherapist-patient privilege. Agah
does not address Bartlett's arguments that the production
of those records for in camera review is improper; instead,
she argues that the production of the records for in camera
review is in accordance with Ex parte Etherton, 773
So.2d 431 (Ala. 2000).
parte Etherton, this Court addressed the petitioner's
request for a writ of mandamus directing the trial court to
quash subpoenas for the production of his records relating to
his treatment for chemical dependency. The petitioner
maintained that the trial court exceeded the scope of its
discretion in ordering the production of his records because,
he said, the records were privileged under Rule 503, Ala. R.
Evid., and he had not waived the privilege. This Court held
that the trial court had not exceeded the scope of its
discretion in ordering the production of the documents for an
in camera review, permitting review of the documents to
determine whether they were discoverable while protecting the
petitioner from unauthorized disclosures. Justice Cook, with
three Justices concurring, wrote in the main opinion that
production of the documents for in camera review was proper
because the records were perhaps the plaintiff's "
only source of relevant evidence, or information that [would]
lead to admissible evidence, in support of her claims."
773 So.2d at 436. Justice Lyons, in a writing concurring in
the result joined by three Justices, rejected the main
opinion's creation of an exception authorizing the trial
court to disclose records upon a showing of necessity and
refused to apply that exception to the
psychotherapist-patient privilege. Justice Lyons stated that
production of the petitioner's records for in camera
review, however, was proper because the materials before the
Court indicated that some of the records might not be
confidential communications protected by the
psychotherapist-patient privilege and, consequently, would be
reliance on Ex parte Etherton is misplaced for several
reasons. First, no writing in Ex parte Etherton received a
majority of the votes; therefore, the reasoning in neither
the main opinion nor Justice Lyons's special writing has
precedential value. Moreover, even if the main opinion in Ex
parte Etherton had precedential value, the materials before
us do not establish that Agah demonstrated a showing of
necessity for the production of Bartlett's mental- health
records for in camera review. Furthermore, the materials
before us do not establish that Agah demonstrated that
Bartlett's mental-health records contained information
outside the parameters of the privileged
psychotherapist-patient communications that might be
discoverable. Finally, this Court in Ex parte Northwest
Alabama Mental Health Center, supra, specifically refused to
create an exception to the psychotherapist-privilege "
that would narrow those parameters by making the privilege
inapplicable when a plaintiff establishes that privileged
information is 'necessary' to proving a cause of
action." 68 So.3d at 799. For all these reasons, Ex
parte Etherton has no application to this case.
Bartlett has demonstrated that her mental-health records are
privileged and because Agah has not demonstrated that the
records fall within an exception to the privilege, that
Bartlett waived the privilege, or that the records may
contain information not protected by the privilege, Bartlett
has established that the trial court exceeded the scope of
its discretion in ordering the production of her
mental-health records for in camera review.
Bartlett have established that they have a clear, legal right
to the relief they have requested. USA is entitled to
absolute sovereign immunity from Agah's
civil action, and we direct the trial court to enter a
judgment of dismissal for USA. Bartlett is entitled to
confidentiality of her mental-health records, and we direct
the trial court to enter an order quashing Agah's
subpoena for Bartlett's mental-health records from APS.
-- PETITION GRANTED; WRIT ISSUED.
C.J., and Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ.,
J., recuses herself.
-- PETITION GRANTED; WRIT ISSUED.
Parker, Murdock, Shaw, Main, and Bryan, JJ., concur.
J., recuses herself.
In her answer to USA's petition for a
writ of mandamus, Agah states that she seeks no monetary
damages from USA, that she requests only a judgment declaring
that the express and implied tenure-track contractual
requirements contained in the 2007 USA faculty handbook,
which, she says, incorporated procedures provided in the Code
of Federal Regulations when investigating alleged research
misconduct, should have been applied during the investigation
into her alleged research misconduct.
To the extent that Agah's complaint can
be read as alleging these claims against USA also, as
previously noted, in her answer to USA's petition for a
writ of mandamus, Agah states that with regard to USA she
requests only a declaratory judgment and in relief "
[a]n order appointing a special master to conduct a fair and
impartial investigation as to the allegations of research
misconduct [against her] pursuant to Code of Federal
Regulations, C.F.R. § 93.306; and make such report of
findings to the Court."
Agah also maintains that Bartlett's
petition for a writ of mandamus is untimely because, she
says, the judgment Bartlett challenges, the denial of her
motion to reconsider, was denied by operation of law,
pursuant to Rule 59.1, Ala. R. Civ. P., 90 days after it was
filed on August 14, 2012. She reasons that because Bartlett
did not file her petition for a writ of mandamus until some
two and a half years after the denial of the motion by
operation of law, the petition is untimely. As this Court
recognized in Ex parte Ferrari, [Ms. 1130679, Feb.
6, 2015] 171 So.3d 631 (Ala. 2015), because a trial
court's order granting discovery is not a final order, a
motion to reconsider that order is not a postjudgment motion
under Rule 59, Ala. R. Civ. P., subject to Rule 59.1.
Bartlett timely filed her petition following the trial
court's denial of her motion to reconsider and for a
protective order on January 28, 2015.