Case: 10-31241 Document: 00511654439 Page: 1 Date Filed: 11/03/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 3, 2011
No. 10-31241 Lyle W. Cayce
Clerk
UNION PACIFIC RAILROAD COMPANY,
Plaintiff-Appellant
v.
LOUISIANA PUBLIC SERVICE COMMISSION; ERIC SKRMETTA, In his
capacity as Commissioner; JAMES M. FIELD, In his capacity as
Commissioner; LAMBERT C. BOISSIERE, III, In his capacity as
Commissioner; CLYDE C. HOLLOWAY, In his capacity as Commissioner;
FOSTER L. CAMPBELL, In his capacity as Commissioner; STATE OF
LOUISIANA,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:
In this case, Plaintiff-Appellant Union Pacific Railroad Company (“Union
Pacific”) appeals the district court’s grant of summary judgment in favor of
Defendants-Appellees Louisiana Public Service Commission, Eric Skrmetta,
James M. Field, Lambert C. Boissiere, III, Clyde C. Holloway, Foster L.
Campbell, and the State of Louisiana (collectively “the State of Louisiana” or
“the State”). We conclude that the State of Louisiana is entitled to immunity
and REMAND to the district court with instructions to dismiss.
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No. 10-31241
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2008, the Louisiana Legislature passed Act No. 530, codified at
Louisiana Revised Statutes Section 48:394, which requires that all railroad
companies obtain permission from the Louisiana Public Service Commission
(“LPSC”) before closing or removing private railroad crossings. La. Rev. Stat. §
48:394. During the pendency of this litigation, in 2010, the Louisiana
Legislature adopted Act 858, amending Section 48:394 in light of our decision in
Franks Investment Co. v. Union Pacific Railroad Co., 593 F.3d 404 (5th Cir.
2010) (en banc).
As amended, Section 48:394 sets forth a procedure that railroads must
follow when closing private railway crossings. Under this Section, if a railroad
wants to close a private crossing, it must provide a written request to the LPSC
and the owner(s) of the crossing. La. Rev. Stat. § 48:394(A)(1). In the request,
the railroad company must “state the manner in which [the] private railroad
crossing unreasonably burdens or substantially interferes with rail
transportation.” La. Rev. Stat. § 48:394(A). Upon publication of this written
request, the LPSC must then hold a public hearing, after which it determines
whether the crossing may be closed. La. Rev. Stat. § 48:394(A)–(C).1
1
The statute, in its current form, provides:
A. (1) Any railroad company operating in this state which desires
to close or remove a private crossing shall, no less than one
hundred eighty days prior to the proposed closing or removal,
provide a written request by registered or certified mail to the
Louisiana Public Service Commission and to the owner or owners
of record of the private crossing traversed by the rail line. The
written request shall state the manner in which such private
railroad crossing unreasonably burdens or substantially
interferes with rail transportation.
(2) The Louisiana Public Service Commission shall publish the
written request from the railroad company in the commission’s
official bulletin for no less than twenty-five days.
2
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On June 25, 2009, Plaintiff-Appellant Union Pacific filed the instant action
against the LPSC and its commissioners in their official capacity, seeking a
declaration that Section 48:394 is preempted by federal law, and both
preliminary and permanent injunctions against the enforcement of that Section.
On July 7, 2010, the district court denied a motion for summary judgment filed
by Union Pacific, ruling that Section 48:394 was not preempted by federal law.
Then, on July 30, 2010, after Section 48:394 was amended by the Louisiana
Legislature, Union Pacific filed a second amended complaint, adding the State
of Louisiana as a defendant and asserting additional claims under both the
B. No private crossing shall be closed or removed by any railroad
company until after a public hearing by the Louisiana Public
Service Commission at which parties in interest have had an
opportunity to be heard. Notice of the time and place of the
hearing shall be published in the official journal of the parish and
the commission’s official bulletin and at least fifteen days shall
elapse between the publication and the date of the hearing. In
addition to notice by publication, and at least ten days prior to
the hearing, a good faith attempt to notify the owner or owners
of record of the property where the private crossing is located
shall be made by the commission by sending an official notice by
registered or certified mail of the time and place of the hearing
to the address or addresses indicated in the mortgage and
conveyance records of the parish. The public hearing shall be
held not less than sixty days after receipt of request of the
railroad company as provided in Subsection A of this Section.
C. If, after such public hearing, the commission determines that
the private railroad crossing unreasonably burdens or
substantially interferes with rail transportation, the commission
shall publish in the official journal of the parish where such
crossing is located and in the commission’s official bulletin a
notice stating the manner in which such closure or removal shall
be made and the date of such.
D. The provisions of this Section shall not apply when a private
landowner or landowners and a railroad company enter into a
consensual or negotiated written agreement or agreements to
close a private railroad crossing.
La. Rev. Stat. § 48:394.
3
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federal and Louisiana constitutions. The State did not assert an Eleventh
Amendment immunity defense in the district court. On November 18, 2010, the
district court granted a motion for summary judgment filed by the State,
dismissing all of Union Pacific’s claims. In reaching this judgment, the district
court ruled that Section 48:394 is constitutional under both Louisiana and
federal law, and it also ruled that the Section is not preempted by federal law.
On December 17, 2010, Union Pacific filed a notice of appeal, appealing
only the district court’s ruling that Section 48:394 does not authorize an
unconstitutional taking in violation of Article I, Section 4(B)(1) of the Louisiana
Constitution. Specifically, Union Pacific argues that Section 48:394 takes
property without a public purpose because it interferes with the fundamental
property right of exclusion. In response, the State of Louisiana, for the first time
on appeal, asserts that it is entitled to Eleventh Amendment immunity and
argues that this action should be dismissed for lack of subject matter
jurisdiction.2
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo. Holt v.
State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010); Fed. R. Civ. P.
56(a). We also review issues of law, such as whether a state is entitled to
sovereign immunity, de novo. Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011).
III. ANALYSIS
In resolving this appeal, the Court must first determine whether the State
of Louisiana is entitled to immunity from suit, even though it litigated this
action on the merits before the district court and did not raise Eleventh
Amendment immunity until appeal. United States v. Tex. Tech Univ., 171 F.3d
2
In their briefing, Defendants-Appellees also argue that we should abstain from
exercising jurisdiction under Burford v. Sun Oil Co., 319 U.S. 315 (1943), and, on the merits,
that we should rule that the Act is constitutional under Louisiana law.
4
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279, 285–86 (5th Cir. 1999) (stating that Eleventh Amendment immunity must
be resolved prior to reaching merits). We conclude that the State did not
unequivocally waive its immunity and that this appeal must, therefore, be
dismissed.3
“The Eleventh Amendment grants a State immunity from suit in federal
court by citizens of other States, and by its own citizens as well.” Lapides v. Bd.
of Regents, 535 U.S. 613, 616 (2002) (citation omitted); see also Meyers ex rel.
Benzing v. Texas, 410 F.3d 236, 240–41 (5th Cir. 2005).4 The state sovereign
immunity doctrine is unique because it acts as an affirmative defense, while also
containing traits more akin to a limitation on subject-matter jurisdiction. See,
e.g., Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 237–38
(2d Cir. 2006) (describing the underlying tension in Supreme Court
jurisprudence in this area). For example, Eleventh Amendment immunity
operates like a jurisdictional bar, depriving federal courts of the power to
adjudicate suits against a state. Cozzo v. Tangipahoa Parish Council–President
Gov’t, 279 F.3d 273, 280 (5th Cir. 2002); Skelton v. Camp, 234 F.3d 292, 295–96
(5th Cir. 2000). Unlike subject matter jurisdiction, however, this immunity may
be waived by the state, like an affirmative defense. Lapides, 535 U.S. at 618;
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267 (1997) (“The [Eleventh]
Amendment, in other words, enacts a sovereign immunity from suit, rather than
3
State immunity “extends to any state agency or entity deemed an ‘alter ego’ or ‘arm’
of the state.” Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002).
Additionally, as is well established, “a suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit against the official’s office.” Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus, here, there is no dispute that all of the
Defendants-Appellees are functionally the State of Louisiana and are entitled to Eleventh
Amendment immunity, if it has not already been waived.
4
As we explained in Benzing, the terms “state sovereign immunity” and “Eleventh
Amendment immunity” are often used interchangeably to mean the same thing. 410 F.3d at
240, 251–52; see also Watson v. Texas, 261 F.3d 436, 440 n.4 (5th Cir. 2001).
5
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a nonwaivable limit on [federal] subject-matter jurisdiction. The immunity is
one the States enjoy save where there has been a surrender of this immunity
. . . .” (internal quotation marks and citation omitted)).
As noted, a state’s immunity from suit is not absolute, and the Supreme
Court has recognized a handful of circumstances in which an individual may sue
a state in federal court. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 670 (1999). First, Eleventh Amendment immunity
may be abrogated by Congress as a means of enforcing the Fourteenth
Amendment. Id. Second, a state may waive its immunity by voluntarily
consenting to suit. Id.; Benzing, 410 F.3d at 241.5 In this second situation,
waiver is present if the state voluntarily invokes federal-court jurisdiction or if
it makes a “clear declaration” that it intends to submit to federal jurisdiction.
Coll. Sav. Bank, 527 U.S. at 675–76.
At issue on this appeal is the second exception—specifically, whether the
State of Louisiana waived its Eleventh Amendment immunity by not raising it
as a defense in the district court. In Benzing, we analyzed whether the removal
by a state of federal claims to federal court constitutes a voluntary waiver of
sovereign immunity. 410 F.3d at 242–50. Relying upon the Supreme Court’s
decision in Lapides, we noted that the central inquiry in determining a waiver
of Eleventh Amendment immunity was whether the state’s litigation conduct
constituted a voluntary invocation of federal jurisdiction. In that case we found
that removal by the state was a voluntary invocation of federal jurisdiction and
was thus a waiver of immunity. In reaching that decision, we also noted that
this “voluntary invocation principle” should apply “generally in all cases,” and
5
The Supreme Court has also recognized that the Eleventh Amendment does not bar
a private party from suing a state officer in his official capacity for injunctive relief. Ex Parte
Young, 209 U.S. 123, 159–60 (1908); Aguilar v. Tex. Dep’t of Crim. Justice, 160 F.3d 1052, 1054
(5th Cir. 1998).
6
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not just in cases where a state removes to federal court. Id. at 249; see also
Lapides, 535 U.S. at 619–24; Bd. of Regents of Univ. of Wis. Sys. v. Phx. Intern.
Software, Inc., 653 F.3d 448, 461–62 (7th Cir. 2011) (citing Benzing and stating
that the voluntary invocation principle should apply in all cases of waiver
through litigation conduct). Thus, here, the relevant inquiry is whether the
State of Louisiana voluntarily invoked or submitted to federal jurisdiction
through its conduct in the district court.
Under the facts of this case—where the State of Louisiana was
involuntarily haled into federal court as a defendant—we conclude that there
was never a voluntary invocation of or unequivocal submission to federal
jurisdiction. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n.1 (1985)
(stating that an “unequivocal indication” is generally required before a waiver
of immunity will be found). While the State may have defended on the merits
below, it never chose to litigate this suit in a federal forum. See Phx. Intern.
Software, 653 F.3d at 462 (stating that the crucial consideration is the
“voluntariness of the state’s choice of forum”); Union Elec. Co. v. Mo. Dep’t of
Conservation, 366 F.3d 655, 660 (8th Cir. 2004) (holding that state did not waive
immunity, even though it defended on the merits in federal court). The State’s
conduct in the district court in the present case is insufficient to constitute an
unequivocal or clear declaration of waiver.
Further, the circumstances surrounding the State of Louisiana’s decision
not to assert Eleventh Amendment immunity until appeal assuage any fears of
gamesmanship. Lapides, 535 U.S. at 621 (worrying that states will use
immunity to “achieve unfair tactical advantages”); Benzing, 410 F.3d at 248–50
(discussing fear that states will selectively invoke immunity to gain a tactical
advantage). The State was successful in the district court and it is not
attempting to use immunity to void an unfavorable judgment. Further,
immunity was not raised by the State in the district court because the primary
7
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challenge to Section 48:394 below was on federal preemption grounds, a claim
over which the district court had jurisdiction. See Shaw v. Delta Air Lines, Inc.,
463 U.S. 85, 96 n.14 (1983) (stating that federal courts have jurisdiction over
equitable suits against state arguing federal preemption).6 Thus, because the
State of Louisiana has not waived its Eleventh Amendment immunity, it may
still properly assert this defense on appeal. See Calderon v. Ashmus, 523 U.S.
740, 745 n.2 (1998) (stating that Eleventh Amendment immunity may be raised
for the first time on appeal); Edelman v. Jordan, 415 U.S. 651, 677–78 (1974)
(same).
This outcome is consistent with our earlier case law, in which we found
that participation by the state in an action does not necessarily preclude a later
assertion of Eleventh Amendment immunity. See, e.g. Sullivan v. Univ. of Tex.
Health Sci. Ctr. at Hous. Dental Branch, 217 F. App’x 391, 393 (5th Cir. 2007)
(per curiam) (holding that state did not waive immunity by participating in
EEOC process and stating that failure to raise immunity defense is not a “clear
declaration” of waiver); Neinast v. Texas, 217 F.3d 275, 279–80 (5th Cir. 2000)
(holding that litigating a motion to dismiss for failure to state a claim is not a
voluntary waiver of immunity); Skelton, 234 F.3d at 295–96 (stating that issues
of immunity under the Eleventh Amendment need not be raised in the trial
court); Evans v. City of Bishop, 238 F.3d 586, 589 n.6 (5th Cir. 2000) (same).
Additionally, although the law in other circuits has been less than clear, our
conclusion that immunity has not been waived here is supported by that case
6
Justice Kennedy’s concurrence in Wisconsin Department of Corrections v. Schacht
argues, in part, that Eleventh Amendment immunity should be treated more like personal
jurisdiction. 524 U.S. 381, 394–95 (1998) (Kennedy, J., concurring). Justice Kennedy was
particularly concerned with states gaining an unfair advantage by raising Eleventh
Amendment immunity for the first time on appeal. Id. at 394. Although the Supreme Court
favorably cited Justice Kennedy’s Schacht concurrence in Lapides, Lapides’ narrow holding
did not fundamentally alter Eleventh Amendment immunity. 535 U.S. at 623–24. In
particular, Lapides does not purport to alter the longstanding rule that sovereign immunity
may be raised on appeal so long as it has not already been waived.
8
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law, which generally has held that Eleventh Amendment immunity may be
raised for the first time on appeal. See, e.g., United States ex rel. Burlbaw v.
Orenduff, 548 F.3d 931, 941–42 (10th Cir. 2008) (stating that Eleventh
Amendment immunity “may be raised at any time, even on appeal for the first
time”); Lombardo v. Penn., Dep’t of Pub. Welfare, 540 F.3d 190, 197 n.6 (3d Cir.
2008) (same); Doe v. Moore, 410 F.3d 1337, 1349 (11th Cir. 2005) (same); State
Contracting & Eng’g Corp. v. Florida, 258 F.3d 1329, 1336 (Fed. Cir. 2001)
(noting that state may raise immunity after defending on merits); Torres v. P.R.
Tourism Co., 175 F.3d 1, 4 (1st Cir. 1999) (stating that immunity may be raised
on appeal); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
131 F.3d 353, 365 (3d Cir. 1997) (same), aff’d 527 U.S. 666 (1999)); Suarez Corp.
Indus. v. McGraw, 125 F.3d 222, 226–27 (4th Cir. 1997) (same); but see Johnson
v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1021–22 (9th Cir. 2010)
(stating that defending on merits evidences an intent to waive immunity); Ku v.
Tennessee, 322 F.3d 431, 435 (6th Cir. 2003) (same).
Thus, given the involuntary nature of the State’s participation in this suit,
we conclude that Louisiana has not waived its Eleventh Amendment immunity.
Additionally, because the parties agree that if the State is entitled to immunity
the case should be dismissed, we dismiss this appeal and remand to the district
court with instructions to dismiss this action.
IV. CONCLUSION
For the foregoing reasons, we conclude that the State of Louisiana is
entitled to immunity and REMAND to the district court with instructions to
dismiss.
9