United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
November 27, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-50626
Summary Calendar
ANDREA OGREY,
Plaintiff-Appellee,
v.
STATE OF TEXAS,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Texas
No. 3:05-CV-5
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Andrea Ogrey brought this suit against the State of Texas in
federal court alleging that portions of the Texas Transportation
Code are unconstitutional. Texas never waived its Eleventh
Amendment immunity to suit.
These are all the facts—facts that were never substantially
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
refuted—the district court needed to dismiss this claim.
Nevertheless, the court denied Texas’s summary judgment motion to
dismiss, apparently as a sanction for Texas’s repeated failures to
file its motions properly.
We DISMISS this suit because Texas is immune from it under the
Eleventh Amendment.1 We note that this disposition’s delay, and
the accompanying drain on resources for each party and the court
system, was caused in large part by Texas’s repeated and
inexplicable failures to comply with the district court’s standing
orders for filing motions. But the district court cannot exercise
jurisdiction where none properly exists as a sanction for such
behavior, so this suit must be dismissed.
I. BACKGROUND
Ogrey brought suit against Texas pro se seeking $100,000 in
damages and to have her driver’s license reinstated. She complains
that, having received two tickets and paid penalties for failure to
maintain automotive insurance, Texas continues to subject her to
residual and duplicative punishments. In addition to her initial
fines, she is allegedly required to maintain proof of insurance
1
The Eleventh Amendment reads, “The Judicial power of the
United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” U.S. CONST. amend. XI. While unapparent from the
text, it is well established that this immunity extends to suits
brought against a state by its own citizens. See Hans v.
Louisiana, 134 U.S. 1, 16-21 (1890).
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subject to monitoring for two years. She is also required to pay
$260 a year for the next three years as a surcharge for receiving
two such tickets within a 36-month window. Unable to pay the
surcharge, Ogrey’s license was revoked.
Texas responded with a motion to dismiss the complaint for
lack of jurisdiction and failure to state a valid claim, based on
its Eleventh Amendment immunity. See FED. R. CIV. PRO. 12(b)(2),
12(b)(6). Texas’s initial motion was denied for failure to comply
with one of the court’s standing orders. The subsequent properly
filed motion was denied as based on “one citation to general legal
authority” that the court found to be “in no way dispositive,”
although Ogrey at this point had yet to allege in any way that
Texas waived its sovereign immunity.
Texas next filed its motion for summary judgment. See FED. R.
CIV. PRO. 56(b). This motion contained significantly improved legal
analysis. Once again, it failed to comply with one of the court’s
standing orders, that read in relevant part, “[t]here shall be
annexed to a motion for summary judgment a document entitled
‘Proposed Undisputed Facts,’ which sets forth in separately
numbered paragraphs a concise statement of each material fact.”
Failure to comply could result in sanctions, “including . . . when
the opponent fails to comply, an order granting the motion.”
While all the facts necessary to dismiss were set forth in
Texas’s summary judgment motion, they were not presented in the
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appropriate annexed form. The district judge dismissed the motion
and began preparation for trial. Texas brought this interlocutory
appeal.
II. ANALYSIS
The Eleventh Amendment confers immunity upon a state from a
suit brought against it by one of its citizens. That immunity can
only be abrogated if (1) Congress, subject to limitations,
“expresse[s] in unmistakable statutory language its intention to
allow States to be sued in federal court,” Welch v. Tex. Dep’t of
Highways & Pub. Transp., 483 U.S. 468, 475 (1987), or (2) if the
state itself makes a “clear declaration that it intends to submit
itself to our jurisdiction.” Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense, 527 U.S. 666, 675-76 (1999).
Ogrey has been unable to point to any indication that
Congress has abrogated or Texas has waived its immunity. She
generally alleges that Texas has waived its immunity by entering
into activities regulated by Congress, but it’s unclear what
activities she is referring to and how they are tied to Congress’s
explicit abrogation of Texas’s immunity. Throughout her claim, she
relies on preemption analysis to assert that the Texas
Transportation Code obstructed federal legislation and was
therefore, in light of the Supremacy Clause, constitutionally
ineffective. U.S. CONST. art. VI cl. 2. Her argument is
impressive, especially considering she is a pro se plaintiff with
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no readily apparent legal background.
While she may be correct, that a law may be federally
preempted would not alone abrogate Eleventh Amendment immunity.
See Welch, 483 U.S. at 475-79. Unless she can point to specific
language explicitly abrogating or waiving Eleventh Amendment
immunity, any valid complaint she has will be against a different
defendant or in a different court. For instance, a suit to
reinstate her license brought against an individual official
responsible for revoking it, rather than the state, might survive
an Eleventh Amendment immunity claim. See generally Ex Parte
Young, 209 U.S. 123, 159-60 (1908).
Unfortunately, the district court never addressed whether
Texas was due Eleventh Amendment immunity from suit. Instead, this
case has gone on far too long because of Texas’s inability to
comply with the district court’s standing order for filing summary
judgment motions. Presumably, if Texas had annexed its “Proposed
Undisputed Facts” to its summary judgment motion to dismiss, it
would have been granted. Instead, the case continues as both
parties and the court system waste time and money.
Nonetheless, the district court cannot sanction a party by
exercising jurisdiction where it is lacking. Considering that
sovereign immunity is similar to a subject matter jurisdiction bar,
the district court should have considered the sovereign immunity
issue and reached a conclusion, even if technically improperly
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presented. The court could have considered the issue had it gone
entirely unraised. See Perez v. Region 20 Educ. Serv. Ctr., 307
F.3d 318, 333 n.8 (5th Cir. 2002) (“[W]e may consider this
[sovereign immunity] issue sua sponte because it bears on this
court’s subject matter jurisdiction.”).2 In either case we can
consider it here, as “[t]he Eleventh Amendment defense sufficiently
partakes of the nature of a jurisdictional bar so that it need not
be raised in the trial court.” Edelman v. Jordan, 415 U.S. 651,
678 (1974).
III. CONCLUSION
This suit is DISMISSED for want of jurisdiction because Texas
has Eleventh Amendment immunity.
2
That is not to say that a court must consider a sovereign
immunity issue on its own motion. See Patsy v. Board of Regents of
Fla., 457 U.S. 496, 516 n.19 (1982) (“[W]e have never held that
[the Eleventh Amendment] is jurisdictional in the sense that it
must be raised and decided by this Court on its own motion.”)
(emphasis added).
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