UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50485
SOUTHWESTERN BELL TELEPHONE COMPANY,
Plaintiff-Appellee,
VERSUS
CITY OF EL PASO, et al.,
Defendants,
and
EL PASO COUNTY WATER IMPROVEMENT DISTRICT NO.1,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
El Paso Division
March 19, 2001
Before DUHÉ and PARKER, Circuit Judges, and LINDSAY,* District Judge.
ROBERT M. PARKER, Circuit Judge:
Appellant El Paso County Water Improvement District No. 1 appeals the district court’s
denial of its motion to dismiss on Eleventh Amendment grounds. Because we conclude that the
*
District Judge of the Northern District of Texas, sitting by designation.
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district court applied the proper legal standard in reviewing Appellant’s motion, we AFFIRM.
I.
Appellant is a water improvement district created pursuant to Article XVI, Section 59, of the
Texas Constitution. Appellant owns a series of irrigation ditches deeded from the United States
Bureau of Reclamation to Appellant in January 1996. Development in the area of the ditches has
resulted in the development of roads crossing the ditches and in an increase in the demand for
telephone service, which is provided by installing telephone lines along such roads. Appellant has
established certain application procedures for entities wanting to cross the canals, laterals, and
ditches–rights-of-way owned by Appellant. Such procedures require an entity to complete an
application, pay an application fee, and obtain a survey. The application must be preliminarily
approved by Appellant’s Board of Directors, which, upon completion of the survey, assesses a
payment against the entity based on the length of the crossing.
Appellee, a telecommunications services provider, brought this action seeking declaratory and
injunctive relief against the City of El Paso and Appellant for their alleged violation of the federal
Telecommunications Act of 1996 (“FTA”), the Texas Public Utilities Regulation Act (“PURA”), and
other state law. Appellee and the City of El Paso have settled their claims. Appellee’s claims against
Appellant allege, inter alia, that under the FTA and PURA, Appellant cannot demand payment and
a detailed application from Appellee for laying telephone lines that cross Appellant’s rights-of-way.
In response, Appellant counterclaimed against Appellee for trespass and/or taking property
for public use without compensation; more importantly, Appellant moved to dismiss Appellant’s
claims under the Eleventh Amendment, arguing that it was an arm of the State of Texas and thus
Appellee’s claims were barred by the Eleventh Amendment. The district court, applying our “arm-of-
the-state” analysis noted in Clark v. Tarrant County, 798 F.2d 736, 744-45 (5th Cir. 1986), held
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that Appellant was not an arm of the State of Texas, and thus was not entitled to Eleventh
Amendment immunity.
II.
We review the district court’s order denying a motion to dismiss on Eleventh Amendment
grounds as an appealable collateral order based on an issue of law, see Champagne v. Jefferson
Parish Sheriff’s Office, 188 F.3d 312, 313 (5th Cir. 1999) (per curiam), and we review the district
court’s conclusions of law de novo. Id.
The Eleventh Amendment provides:
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. “[T]he reference to actions ‘against one of the United States’ encompasses
not only actions in which a State is actually named as the defendant, but also certain actions against
state agents and st ate instrumentalities.” Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429
(1997). However, the Eleventh Amendment bar to suit in federal courts only extends to states, state
officials, and state instrumentalities in appropriate circumstances, and does not extend to counties,
similar municipal corporations, and other political subdivisions, even though such entities enjoy a
“slice of state power.” Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391,
400-01 (1979); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Moor v. County of
Alameda, 411 U.S. 693, 717-21 (1973); Lincoln County v. Luning, 133 U.S. 529, 530 (1890).
When determining whether a state agency or instrumentality may invoke the state’s immunity
as an arm of the state, courts must review the relationship between the state and the entity in
question, examining the essential nature of the proceeding, the nature of the entity created by state
law, and whether a money judgment against the instrument ality would be enforceable against the
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state. Doe, 519 U.S. at 429-30 (citing Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573,
576 (1946); Mt. Healthy City, 429 U.S. at 280; Hess v. Port Auth. Trans-Hudson Corp., 513 U.S.
30, 45-51 (1994)).
We have stated that this arm-of-the-state analysis requires the examination of “the powers,
characteristics and relationships created by state law in order to determine whether [a] suit is in reality
against the state itself.” Hander v. San Jacinto Junior Coll., 519 F.2d 273, 279 (5th Cir. 1975)
(citing Aerojet-General Corp. v. Askew, 453 F.2d 819 (5th Cir. 1971), cert. denied, 409 U.S. 892
(1972)); see also Laje v. R.E. Thomason Gen. Hosp., 665 F.2d 724, 727 (5th Cir. 1982); United
Carolina Bank v. Board of Regents, 665 F.2d 553, 557 (5th Cir. Unit A 1982); Jagnandan v. Giles,
538 F.2d 1166, 1173-74 (5th Cir. 1976), cert. denied, 432 U.S. 910 (1977). In conducting such
analysis, we have held that “comparisons [between like entities] cannot substitute for a careful
examination of the particular entity at issue.” McDonald v. Board of Miss. Levee Comm’rs, 832 F.2d
901, 908 (5th Cir. 1987); see also Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir.), cert.
denied sub nom. Connick v. Hudson, 528 U.S. 1004 (1999); Flores v. Cameron County, 92 F.3d 258,
268 (5th Cir. 1996).
We have refined the arm-of-the-state analysis to require examination of a variety of factors
concerning the particular entity in question. See Clark v. Tarrant County, 798 F.2d 736, 744-45 (5th
Cir. 1986). These factors include (1) whether the state statutes and case law view the entity as an
arm of the state; (2) the source of the entity’s funding; (3) the entity’s degree of local autonomy; (4)
whether the entity is concerned primarily with local, as opposed to statewide, problems; (5) whether
the entity has the authority to sue and be sued in its own name; and (6) whether it has the right to
hold and use property. Id. These factors are examined as a whole, and no single factor is dispositive.
Id. at 745; see also United Carolina Bank, 665 F.2d at 557. However, the second factor, the source
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of the entity’s funding, is “of considerable importance.” Doe, 519 U.S. at 904;
Jacintoport v. Greater Baton Rouge Port Comm’n, 762 F.2d 435, 440-41 (5th Cir. 1985), cert.
denied, 474 U.S. 1057 (1986); Laje, 665 F.2d at 727.
Appellant argues that the district court erred by applying the arm-of-the-state analysis
established in Clark because our prior decisions hold Appellant as an arm of the state entitled to
Eleventh Amendment immunity. Specifically, Appellant argues that our decision in Ysleta Del Sur
Pueblo v. El Paso County Water Improvement Dist., 222 F.3d 208 (5th Cir.), cert. denied, 121 S.
Ct. 177 (2000), which affirmed the district court’s finding of Eleventh Amendment immunity for
Appellant, controls this action. Appellant also argues that our prior decisions in Kamani v. Port of
Houston Authority, 702 F.2d 612 (5th Cir. 1983), and Pillsbury Co. v. Port of Corpus Christi
Authority, 66 F.3d 103 (5th Cir. 1995), cert. denied, 517 U.S. 1203 (1996), held that the entities at
issue in those cases were entitled to Eleventh Amendment immunity by virtue of their creation
pursuant to Article XVI, Section 59, of the Texas Constitution. Because Appellant is also created
under Article XVI, Section 59, Appellant argues that it is likewise entitled to immunity.
We disagree with both arguments. First, Ysleta is not controlling because it conflicts with our
prior decisions requiring a careful examination of the nature of an entity claiming immunity. Although
Ysleta affirmed the district court’s holding that Appellant was an arm of the state entitled to
immunity, it stated no reasons for the decision except to say that the plaintiff’s arguments in that
appeal “lack[ed] merit.” Ysleta, 222 F.3d at 208. In support of this conclusion, Ysleta cited Kamani
and Pillsbury without further explanation. Kamani was an admiralty action in which the court stated
without analysis that the Port of Houston Authority was “a ‘creature of state law and a political
subdivision of the State of Texas” entitled to Eleventh Amendment immunity. Kamani, 702 F.2d at
613. Pillsbury was a breach-of-contract action in which the court held that the Port of Corpus Christi
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Authority was factually and legally indistinguishable from the Port of Houston Authority, and was
thus entitled to immunity under Kamani. Pillsbury, 66 F.3d at 104.
Ysleta’s conflict with prior decisions establishing the arm-of-the-state analysis originates with
Kamani. Notwithstanding the arm-of-the-state analysis established by decisions such as Hander,
Jagnandan, United Carolina Bank, and Laje, Kamani relied on McCrea v. Harris County Ship
Channel Navigation Dist., 423 F.2d 605, 607 (5th Cir.), cert. denied, 400 U.S. 927 (1970), in
concluding that the Port of Houston Authority was entitled to immunity. However, McCrea involved
a wrongful death action under the Federal Employers’ Liability Act that did not involve the Eleventh
Amendment at all. In McCrea, the court simply observed that the Port of Houston Authority “is a
creature of state law and a political subdivision of the State of Texas operating terminal facilities at
the Port of Houston” in concluding that the port was not a “rail carrier” under the FELA. McCrea,
423 F.2d at 607. While McCrea did examine the port’s organizational and operational characteristics,
such examination is different from the arm-of-the-state analysis required to determine whether an
entity is entitled to Eleventh Amendment immunity. See Jacintoport, 762 F.2d at 440 (“It would be
inconsistent with this Circuit’s test for determining [Eleventh Amendment] immunity to rely on Miller
[v. Greater Baton Rouge Port Comm’n, 74 So.2d 387 (La. 1954)], because immunity of the [entity
at issue] was never an issue in that case.”). In light of our decisions requiring the application of the
arm-of-the-state analysis, Kamani’s quotation of McCrea’s statement that the Port of Houston is a
“creature of state law and a political subdivision of the State of Texas” does not automatically
support the conclusion that the Port of Houston Authority is entitled to Eleventh Amendment
immunity. An entity is not an arm of the state for Eleventh Amendment purposes simply because it
is a creature of state law and a political subdivision of a state. Such conclusion would entirely obviate
the arm-of-the-state analysis because every entity claiming Eleventh Amendment immunity is a
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“creature” of some state law. Moreover, political subdivisons of states are generally not entitled to
Eleventh Amendment immunity. See Lake Country Estates, 440 U.S. at 401; Lincoln County, 133
U.S. at 530-31. Kamani’s conclusion that the Port of Houston Authority was entitled to immunity
by virtue of its status as a creature of state law and a political subdivision of Texas conflicts with the
line of precedent beginning with at least Hander, Jagnandan, United Carolina Bank, and Laje.
Pillsbury continued the conflict by applying Kamani to hold that the Port of Corpus Christi
Authority was entitled to Eleventh Amendment immunity. This result is not surprising because the
Port of Corpus Christi Authority was held to be factually and legally indistinguishable from the Port
of Houston Authority in Kamani. While Pillsbury noted that a proper arm-of-the-state analysis
would result in the same conclusion, the conflict created by Kamani was not addressed. In addition,
the court suggested in dicta that its decision was controlled by Kamani because both ports were
created pursuant to Article XVI, Section 59.
Ysleta thus rests on holdings that conflict with our prior decisions requiring an arm-of-the-
state analysis for entities claiming Eleventh Amendment immunity, and the district court did not err
when it applied Clark’s six-fact or analysis. When two holdings or lines of precedent conflict, the
earlier holding or line of precedent controls. Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir.), cert.
denied sub nom. Billiot v. Anderson, 525 U.S. 966 (1998). In this action, although Kamani was
decided before Clark, Clark’s arm-of-the-state analysis is a consistent part of a line of precedent
including at least Hander, Jagnandan, United Carolina Bank, and Laje, which were all decided
before Kamani. Therefore, the district court properly applied Clark in denying Appellant’s Eleventh
Amendment argument. Moreover, even though Ysleta was decided before the district court issued
its decision, it was published after that decision and thus was not precedent for the district court. See
FIFTH CIR. R. 47.5.4.
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We also reject Appellant’s second argument that it is entitled to Eleventh Amendment
immunity by virtue of its creation pursuant to Article XVI, Section 59. Even if Kamani and Pillsbury
applied the proper arm-of-the-state analysis, they do not state that an entity is entitled to Eleventh
Amendment immunity simply because they are created under a particular state law. While Pillsbury
noted that both ports were created pursuant to Article XVI, Section 59, there is no suggestion in that
decision that the particular law under which an entity is created is the sole factor in determining the
issue of immunity. Our decisions clearly forbid such a result. See, e.g., Jacintoport, 762 F.2d at 439-
40. Moreover, even though Ysleta affirmed t he district court’s conclusion that we established a
“bright-line test” for determining whether an entity created pursuant to Article XVI, Section 59, is
entitled to immunity, such a test is contrary to our decisions requiring the application of the arm-of-
the-state analysis and to the principle that comparisons or analogies bet ween like entities cannot
substitute for a proper analysis of the particular entity claiming immunity. See, e.g., McDonald, 832
F.2d at 908. Indeed, such a test is no test at all.
Finally, because Appellant does not challenge the district court’s application of the individual
factors of the arm-of-the-state analysis, we will not address such application. While Appellant argues
in its reply brief that Appellee’s defense of the district court’s application of the factors is
“fundamentally flawed,” Appellant does not specifically challenge the district court’s analysis, and
we will not construe Appellant’s argument as such.
III.
Based on the reasons stated above, we AFFIRM the district court’s order denying Appellant’s
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motion to dismiss on Eleventh Amendment grounds.
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