UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-30728
_______________________
ANTHONY L. VOGT, et al.
Plaintiffs-Appellants,
versus
BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT,
and JAMES HUEY,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans Division
_________________________________________________________________
June 14, 2002
Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
EDITH H. JONES, Circuit Judge:
In 1984, the Louisiana legislature passed an act ordering
the Orleans Levee District to return land it had expropriated in
1924 to build a spillway. The levee district’s board of
commissioners, however, stalled the return of the property and have
until this day fought not to repay mineral royalties that belong to
the landowners. In this litigation, the levee district persuaded
the district court to dismiss the landowners’ constitutional
takings claim. We reverse. The district is not immune under the
Eleventh Amendment, and the landowners’ pleadings state a takings
claim.
I. BACKGROUND
The Orleans Levee District was created by the Louisiana
legislature in 1890 for the purpose of protecting the City of New
Orleans from floods. In 1924, the state legislature authorized the
levee district’s Board of Commissioners (“the levee board”) to
acquire 33,000 acres of land on the east bank of the Mississippi
River about 50 miles south of New Orleans in order to build the
Bohemia Spillway between the River and the Gulf of Mexico. 1924
La. Acts 99. Approximately half of this land was public property
transferred from the state; the other half was either expropriated
or purchased under threat of expropriation from private owners.
1928 La. Acts 246; 1942 La. Acts 311.
In 1984, the Louisiana legislature decided to return the
land taken for the Bohemia Spillway. Act 233 declared
that the public and necessary purpose set forth in Act
No. 99 of 1924, which may have originally supported the
expropriation of property, or any right of ownership
thereto, on the east bank of the Mississippi River in the
parish of Plaquemines for the construction of a spillway,
known as the Bohemia Spillway, has ceased to exist
insofar as it ever may have affected the ownership of
property, including mineral rights. The Legislature of
Louisiana hereby orders the Board of Levee Commissioners
of the Orleans Levee District, the board, to return the
ownership of said property to the owners or their
successors from whom the property was acquired by
expropriation or by purchase under threat of
expropriation.
2
1984 La. Acts 233; LA. CONST., art. VII, § 14(B). Act 233 also
directed the levee board to “provide a thorough accounting . . .
concerning all revenues received from the affected property.” The
Act was signed by the governor and went into effect on June 29,
1984.
The levee board was reluctant to hand over the Bohemia
Spillway lands. The expropriated land had “proved to be useful for
more than just a spillway,” and by the mid-1980s, the levee
district was receiving about $3 million a year in mineral royalties
from the land the board had expropriated in 1924. Board of Levee
Commissioners of the Orleans Levee Dist. v. Huls, 852 F.2d 140, 141
(5th Cir. 1988). The levee board challenged the constitutionality
of Act 233, but both state and federal courts rejected the argument
that Act 233 was an unlawful taking of the levee district’s
property in violation of Article I, Section 4 of the Louisiana
Constitution as well as the Fifth and Fourteenth Amendments of the
United States Constitution. Board of Commissioners of the Orleans
Levee Dist. v. Dep’t of Natural Resources, 496 So.2d 281, 285 (La.
1986); Huls, 852 F.2d at 141-43.
Following these adverse judgments, the levee board issued
quitclaim deeds in 1991 and 1992, and title passed to the original
landowners or their successors. However, the levee board refused
to remit the mineral royalties that the levee district had received
between June 1984 and the time the land was returned.
3
A group of 24 landowners then filed suit in state court
requesting (1) a declaratory judgment confirming their ownership of
the disputed mineral royalties, (2) an accounting of all mineral
royalties paid to the levee board after June 29, 1984, and (3) a
money judgment for the royalties that the levee board had not
repaid. The Louisiana Court of Appeals held, based on the clear
language of Act 233, that the levee board had no right to revenues
from the expropriated property after the effective date of Act 233.
Vogt v. Board of Levee Commissioners of the Orleans Levee Dist.,
680 So.2d 149, 157-59 (La. App. 4 Cir. 1996), writ denied, 684
So.2d 923. After an accounting, the Louisiana courts ordered the
levee board to reimburse the landowners for $2,853,358.44 in unpaid
mineral royalties. Vogt v. Board of Levee Commissioners of the
Orleans Levee Dist., 738 So.2d 1142 (La. App. 4 Cir. 1999), writ
denied, 748 So.2d 1166.
The levee board has refused to satisfy this $2.85 million
judgment for unlawfully retaining the mineral royalties from 1984
to 1991-92. The landowners sought a writ of seizure, but Article
12, Section 10(C) of the Louisiana Constitution provides that
property of the state, a state agency, or political subdivision is
not subject to seizure. The landowners then sought a writ of
mandamus, but Louisiana courts have long held that a judgment
4
creditor may not use a writ of mandamus to force a political
subdivision to appropriate funds to pay the judgment.1
The landowners filed this action in federal court,
claiming that the levee board’s refusal to pay the judgment is an
unconstitutional taking of their property without just
compensation. The levee board now asserts that it is an “arm of
the state” and is thus entitled to Eleventh Amendment immunity.
The district court concluded, based on “the weight of the
case law,” that the levee board is an arm of the state. The court
granted the levee board’s Rule 12(b) motion to dismiss for lack of
jurisdiction, and the landowners now appeal. The district court’s
determinations are reviewed de novo as questions of law, like other
questions of subject matter jurisdiction. United States v. Texas
Tech Univ., 171 F.3d 279, 288 (5th Cir. 1999).
II. ELEVENTH AMENDMENT IMMUNITY
A
Federal court jurisdiction is limited by the Eleventh
Amendment and the principle of sovereign immunity that it embodies.
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct.
1
While this appeal was pending, the Louisiana Court of
Appeals affirmed the trial court’s orders denying the petitions for
writs of mandamus and seizure. Vogt v. Board of Levee
Commissioners of the Orleans Levee Dist., 814 So.2d 648 (La. App.
4 Cir. 2002)(“This court recognizes and sympathizes with
plaintiffs’ plight in getting a judgment against the State or
political subdivision satisfied. Nonetheless, this court is
without constitutional or statutory authority to compel the Levee
Board to pay the judgment rendered against it.”).
5
1114, 1122, 134 L.Ed.2d 252 (1996); Reickenbacker v. Foster, 274
F.3d 974, 976 (5th Cir. 2001). The “ultimate guarantee of the
Eleventh Amendment,” as the Supreme Court recently stated, is that
a non-consenting State may not be sued in federal court by private
individuals, including its own citizens. Board of Trustees of the
Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 962,
148 L.Ed.2d 866 (2001).
Even in cases where the State itself is not a named
defendant, the State’s Eleventh Amendment immunity will extend to
any state agency or other political entity that is deemed the
“alter ego” or an “arm” of the State. Regents of the Univ. of
California v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 903-04, 137
L.Ed.2d 55 (1997). In other words, the Eleventh Amendment will bar
a suit if the defendant state agency is so closely connected to the
State that the State itself is “the real, substantial party in
interest.” Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th
Cir. 1999). The Eleventh Amendment will not bar a suit, though, if
the political entity “possesses an identity sufficiently distinct”
from that of the State. Pendergrass v. Greater New Orleans
Expressway Comm’n, 144 F.3d 342, 344 (5th Cir. 1998).
There is no bright-line test for determining whether a
political entity is an “arm of the State” for purposes of Eleventh
Amendment immunity. Instead, “the matter is determined by reasoned
judgment about whether the lawsuit is one which, despite the
presence of a state agency as the nominal defendant, is effectively
6
against the sovereign state.” Earles v. State Board of Certified
Public Accountants of Louisiana, 139 F.3d 1033, 1037 (5th Cir.
1998). In making this inquiry, this circuit traditionally has
considered six factors: (1) whether state statutes and case law
characterize the agency as an arm of the state; (2) the source of
funds for the entity; (3) the degree of local autonomy the entity
enjoys; (4) whether the entity is concerned primarily with local,
as opposed to statewide, problems; (5) whether the entity has
authority to sue and be sued in its own name; and (6) whether the
entity has the right to hold and use property. See, e.g., Cozzo v.
Tangipahoa Parish Council-President Govt., 279 F.3d 273, 281 (5th
Cir. 2002); Anderson v. Red River Waterway Comm’n, 231 F.3d 211,
214 (5th Cir. 2000).2 “[T]he most significant factor in assessing
2
The Supreme Court applied a different six-factor test in
a case involving a multi-state entity created pursuant to the
Compact Clause. Lake Country Estates, Inc. v. Tahoe Regional
Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401
(1979). In a later case, also involving a multi-state entity, the
Supreme Court focused primarily on the States’ liability for a
judgment against the entity. Hess v. Port Authority Trans-Hudson
Corp., 513 U.S. 30, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994).
The Fifth Circuit has largely ignored Lake Country
Estates and has instead used a six-factor balancing test used for
determining whether a state agency is a “citizen” for purposes of
diversity jurisdiction. See Richardson v. Southern University, 118
F.3d 450, 452 n.8 (5th Cir. 1997). Moreover, the Fifth Circuit has
held that Lake Country Estates and Hess are not applicable where
the defendant is a single-state entity (as opposed to a multi-state
entity created pursuant to the Compact Clause). Pillsbury Co. v.
Port of Corpus Christi Auth. 66 F.3d 103, 104-05 (5th Cir. 1995).
The Supreme Court apparently does not believe that its precedents
are that limited. See Auer v. Robbins, 519 U.S. 452, 456 n.1, 117
S.Ct. 905, 908 n.1, 137 L.Ed.2d 79 (1997)(applying Lake Country
Estates and Hess to determine that the St. Louis Board of Police
Commissioners is not an arm of the State of Missouri). And other
7
an entity’s status is whether a judgment against it will be paid
with state funds.” Delahoussaye v. City of New Iberia, 937 F.2d
144, 147-48 (5th Cir. 1991).
B
The district court did not discuss these six factors
because it concluded that prior decisions of the Fifth Circuit and
Louisiana Supreme Court “expressly identified the Levee Board as an
arm of the state.” However, the decisions cited by the district
court involved issues fundamentally different from the one
presented here.3
1
The district courts relied in part on the Louisiana
Supreme Court’s decision in Board of Commissioners of the Orleans
Levee Dist. v. Dep’t of Natural Resources, 496 So.2d 281, 288 (La.
1986)(holding that “the legislature’s divestiture of levee district
property does not constitute a taking of property by the state”).
While this decision provides a thorough discussion of the scope of
the state’s police power with respect to political subdivisions, it
circuits that have squarely addressed the issue have concluded that
Lake Country Estates and Hess are “no less applicable” in cases
involving single-state entities created by state law. Gray v.
Laws, 51 F.3d 426, 432-33 (4th Cir. 1995); Mancuso v. New York
State Thruway Auth., 86 F.3d 289, 293 (2d Cir. 1996).
3
Two federal district court decisions specifically held
that the Orleans Levee District is an arm of the state. Lange v.
Orleans Levee District, 1998 WL 88862 (E.D. La. 1998); Stevens v.
Lopez, 1998 WL 13602 (E.D. La. 1998). For reasons discussed in the
body of this opinion, those cases were wrongly decided.
8
offers little, if any, support for the proposition that the Orleans
Levee District is an “arm of the state.”4
The levee board points out that Board of Commissioners
refers several times to the levee district as a “creature or agency
of the state”. Id. at 285, 289. Contrary to the levee board’s
assertions, however, calling the levee district a “creature or
agency of the state” does not necessarily mean that it is an “arm
of the state” within the meaning of Eleventh Amendment
jurisprudence. This point has been made repeatedly in our prior
decisions. See, e.g., Southwestern Bell Telephone Co. v. City of
El Paso, 243 F.3d 936, 939 (5th Cir. 2001); Earles, 139 F.3d at
1036; Richardson v. Southern Univ., 118 F.3d 450, 454 (5th Cir.
1997); McDonald v. Board of Mississippi Levee Commissioners, 832
F.2d 901, 906-07 (5th Cir. 1987)(“A reference to the Levee Board as
an ‘agency’ of the state by Mississippi courts does not amount to
a characterization of the Levee Board as an arm of the state.”);
Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129, 131 (5th Cir.
1986).
The principal reason for distinguishing between a
“creature or agency of the state” and an “arm of the state” is that
4
Furthermore, whether a particular political entity is an
arm of the state is a question of federal law. See, e.g., Regents
of the Univ. of Calif. v. Doe, 519 U.S. 425, 429-30 n.5, 117 S.Ct.
900, 904 n.5, 137 L.Ed.2d 55 (1997). Even if Board of
Commissioners had asserted that the levee district is an arm of the
state, this court would not be bound by that pronouncement.
9
the former concept is far too inclusive to be useful for Eleventh
Amendment analysis. As the Supreme Court succinctly observed,
[U]ltimate control of every state-created entity resides
with the State, for the State may destroy or reshape any
unit it creates. “[P]olitical subdivisions exist solely
at the whim and behest of their State,” yet cities and
counties do not enjoy Eleventh Amendment immunity.
Hess, 513 U.S. at 47, 115 S.Ct. at 404 (citations omitted).
On this same point, consider the Louisiana Supreme
Court’s explanation why the property held by the levee district
was, “to all practical intents and purposes,” still the property of
the State itself. Board of Commissioners, 496 So.2d at 288. After
determining that flood protection falls within the state’s police
power, then-Justice Dennis explained that
[t]he legislature may delegate, either expressly or
implicitly, the exercise of the police power to
subordinate boards, commissions or political
corporations. Such power, however, belongs to the state;
the police power may be exercised by agencies of the
state only under a delegation of authority. The state
retains the right to recall, abrogate or modify the
delegation. Consequently, the legislature’s prior
delegation of police power to its creature or agency, the
Orleans Levee District, authorizing it to levy taxes and
to acquire land by expropriation, purchase or donation to
build a spillway and maintain it for flood protection
purposes cannot prevent the state from recalling,
abridging or modifying this delegation of power.
Id. at 289-90. The Court’s discussion of the State’s police power
with respect to its “creatures or agencies” makes no distinctions
among the subordinate political entities. That is to say,
departments within the executive branch, public universities,
parishes, sheriff’s departments, school boards, and municipalities
10
are all “creatures or agencies of the State.” All of these
entities exercise “a slice of state power,” and all are subject to
having their powers recalled, abridged, or modified by the state.
Southwestern Bell, 243 F.3d at 937-38, 939; Jacintoport Corp., 762
F.2d at 438. Nevertheless, many of these “creatures or agencies of
the State” indisputably are not protected by Eleventh Amendment
immunity and cannot be considered arms of the state.
2
The appellees make a similar mistake by relying on this
court’s decision in Board of Levee Commissioners of the Orleans
Levee Dist. v. Huls, 852 F.2d 140 (5th Cir. 1988). The issue in
Huls was “whether an agency of the state [the levee district] may
sue the state under the Fifth and Fourteenth Amendments for an
uncompensated taking of property.” Id. at 141. According to the
district court, Huls “expressly identified the Levee Board as an
arm of the state” and “held that the Levee Board was a state agency
that employed the power of the state to expropriate land and
therefore could not sue the state for an uncompensated taking of
property.” The district court’s interpretation of Huls conflates
two distinct categories: “agency of the state” and “arm of the
state”.
Huls, like Board of Commissioners, is predicated on the
traditional understanding of the state’s police power. The court
explained that “A political subdivision acts for the state. Its
power and its property come about only because it has the power of
11
the state.” Huls, 852 F.2d at 143. When the legislature revoked
the levee district’s authority to hold the Bohemia Spillway
property, the levee board (qua agent) had no legal right to
challenge the decision of the principal.
The focus in Huls is on “political subdivisions” or
“agencies of the state” -- categories which include political
entities that are beyond the purview of the Eleventh Amendment.
Tellingly, the panel in Huls considered itself bound by a Supreme
Court decision involving a municipality that sued a State:
Virtually the identical issue was raised in City of
Trenton v. State of New Jersey, 262 U.S. 182, 43 S.Ct.
534, 67 L.Ed. 937 (1923). In that case, the city argued
that a state tax on the water the city took from the
Delaware River violated the contract clause and the due
process clause. The Court’s holding was clear and
unequivocal: those provisions of the Constitution “do not
apply against the state in favor of its own
municipalities.” Id. at 192, 43 S.Ct. at 538. City of
Trenton controls our decision. The [Levee] Board cannot
sue the state for an uncompensated taking of property.
Huls, 852 F.2d at 142.
Huls did not hold that the levee board could not sue the
State of Louisiana because the levee district was an arm of the
state. Instead, Huls held that the levee board was a creature or
agency of the state, and, like other creatures of a state --
including municipalities -- the levee board could not prevent the
state, in the exercise of its police power, from revoking a prior
delegation of authority. As in Board of Commissioners, the levee
board’s status as an agency or creature of the state is not
12
determinative of the Eleventh Amendment question because many
“creatures or agencies” of the state, notably municipalities, are
not “arms of the state” for purposes of Eleventh Amendment
immunity.
C
The issue here -- whether the Orleans Levee District is
an “arm of the state” for purposes of the Eleventh Amendment -- has
not yet been decided. We must “examine the particular entity . .
. and its powers and characteristics as created by state law to
determine whether the suit is in reality a suit against the state
itself.” Richardson, 118 F.3d at 452 (citations omitted). This
examination is guided by the six factors listed above.
1
Characterization under state law. Louisiana statutes
define a “levee district” as a “political subdivision of this state
organized for the purpose and charged with the duty of constructing
and maintaining levees, and all other things incidental thereto
within its territorial limits.” La. Rev. Stat. Ann. § 38:281(6).
A “political subdivision” is defined as any parish, municipality,
“special district”, school board, sheriff, or “other public or
governmental body of any kind which is not a state agency.” La.
Rev. Stat. Ann. § 13:5102(B); see also Wynat Development Co. v.
Board of Levee Commissioners, 710 So.2d 783, 789-90 (1998) (stating
13
that the Orleans Levee District is a “special district” within the
meaning of § 13:5102(B)).
The statutory classification of levee districts as
“political subdivisions” is significant. Our decision in Cozzo
suggests that “political subdivision” under § 13:5102(B) and “arm
of the state” are mutually exclusive. Cozzo, 279 F.3d at 281-82.
While this may not be a hard-and-fast rule, virtually every other
government entity classified as a political subdivision has been
denied Eleventh Amendment immunity, perhaps because political
subdivisions are more local in character. Hudson, 174 F.3d at 683-
84. Moreover, political subdivisions are not part of any
department within the executive branch of government. In every
recent case in which a Louisiana political entity has been held to
be an “arm of the state,” the state agency being sued was part of
a department within the executive branch.5 Our prior decisions
have gone so far as to suggest “that all Louisiana executive
5
See Champagne, 188 F.3d at 313 (Louisiana Department of
Public Safety and Corrections); Earles, 139 F.3d at 1037 (State
Board of Certified Public Accountants, an agency within the
Department of Economic Development); Delahoussaye, 937 F.2d at 147
(University of Southwestern Louisiana, which was governed by the
State College and University System, an agency within the
Department of Education); Neuwirth v. Louisiana State Board of
Dentistry, 845 F.2d 553, 556 (5th Cir. 1988)(Board of Dentistry, an
agency within the Department of Health and Human Resources); Darlak
v. Bobear, 814 F.2d 1055, 1059 (5th Cir. 1987)(Charity Hospital of
New Orleans, which was governed by the Department of Health and
Human Resources); Voisin’s Oyster House v. Guidry, 799 F.2d 183,
186 (5th Cir. 1986)(Department of Wildlife and Fisheries);
Fireman’s Fund Ins. Co. v. Department of Transportation and
Development, 792 F.2d 1373, 1376 (5th Cir. 1986)(Department of
Transportation).
14
departments have Eleventh Amendment immunity.” Champagne, 188 F.3d
at 313. But in this case, the levee districts are separate
political subdivisions and are not constituted as part of the
executive branch of government.
Because the Louisiana Constitution and laws classify
levee districts as “political subdivisions,” which are usually
local governmental units with no connection to the executive branch
of government, the first factor points against Eleventh Amendment
immunity.
2
Source of the levee district’s funding. This second
factor is given the greatest weight because one of the principal
purposes of the Eleventh Amendment is to protect state treasuries.
Cozzo, 279 F.3d at 281; Jacintoport, 762 F.2d at 440. Although
this court traditionally uses the broad phrase “source of funding,”
our inquiry is more specific: “In assessing this second factor, we
conduct inquiries into, first and most importantly, the state’s
liability in the event there is a judgment against the defendant,
and second, the state liability for the defendant’s general debts
and obligations.” Hudson, 174 F.3d at 687.
The state’s liability for a judgment is often measurable
by a state’s statutes regarding indemnification and assumption of
debts. In Hudson, the court focused on the same indemnification
provision that is applicable in this case. The statute defining
15
who is a state employee for purposes of indemnification
specifically excludes “an official, officer, or employee of a
municipality, ward, parish, special district, including without
limitation a levee district, school board, parish law enforcement
district, or any other political subdivision or local authority.”
La. Rev. Stat. Ann. § 13:5108.1(E)(3)(a); Hudson, 174 F.3d at 687-
88. And the Louisiana Constitution provides that “No judgment
against the state, a state agency, or a political subdivision shall
be exigible, payable, or paid except from funds appropriated
therefor by the legislature or by the political subdivision against
which the judgment is rendered.” La. Const. art 12, §
10(C)(emphasis added). Although the legislature has the authority
to appropriate funds to pay a judgment against a levee district,
the legislature certainly has no legal obligation to do so. Thus,
no legal liability arises against the state in the event of a
judgment against the levee district or its officers. On the other
hand, judgments against state agencies or departments within the
executive branch are treated as liabilities of the state itself.
See, e.g., Delahouysse, 937 F.2d at 148; Darlak, 814 F.2d at 1059;
Voisin’s Oyster House, 799 F.3d at 186-87.
The levee board acknowledges that the state has no duty
to pay a judgment against the levee district. The levee board has
suggested, though, that it could go to the legislature and request
that state money be appropriated to pay the judgment. This court
16
has consistently dismissed such arguments as too speculative for
Eleventh Amendment analysis: “[W]e do not consider ‘a state’s
voluntary, after-the-fact payment’ of a judgment to be a liability
against the state’s treasury.” Williams, 242 F.3d at 321 (quoting
Hudson, 174 F.3d at 689). We have left open the possibility that
a state entity could show that the legislature -- even where it is
not obliged to do so -- regularly appropriates money to pay
judgments against the entity. In this case, however, the levee
board can point only to an appropriation made in 1942 to reimburse
the levee district for expenses incurred when the Orleans Levee
District assumed the indebtedness of another levee district. This
argument falls far short of demonstrating the legislature’s de
facto recognition of liability for judgments against levee
districts.
The next step is to determine whether the state will
indirectly fund a judgment against the levee district because the
state either is responsible for general debts and obligations or
provides the lion’s share of the levee district’s budget.
The Louisiana Constitution provides that “The full faith
and credit of the state shall be pledged to the repayment of all
bonds and other evidences of indebtedness issued by the state
directly or through any state board, agency, or commission. . . .
The full faith and credit of the state is not hereby pledged to the
repayment of bonds of a levee district, political subdivision, or
17
local public agency.” La. Const. art 7, § 6. Therefore, while the
levee district has been granted the authority to issue bonds and
incur debts, those debts are not backed by the state.
See also Pendergrass, 144 F.3d at 345, 346.
With regard to the more general question of the levee
district’s budget, the Orleans Levee District receives very little
funding from the state. The levee district generates its own
revenues from the Lakefront airport, a casino, leases of property,
fees from boatslips and marinas, and taxes. The district also
receives income from various investment accounts currently worth
$57 million. The levee board does not dispute these facts. At
oral argument, counsel for the levee board pointed out that the
district receives some state funds, even though they are usually in
the form of capital outlays dedicated to specific projects.
Because the state funds are already earmarked for other purposes,
the state monies cannot be used to pay a judgment against the levee
district. See Hudson, 174 F.3d at 688-89.
The levee board further contends that the State of
Louisiana provides funds to the levee district indirectly, by
allowing the district to levy taxes on property within the
district. However, the levee district’s exercise of a delegated
power to tax does not speak to the question before us, namely,
whether a judgment against the levee district will be paid out of
the state treasury. See Williams, 242 F.3d at 320.
18
To sum up: The second factor (source of funds) points
against Eleventh Amendment immunity. The Orleans Levee District is
almost entirely self-supporting, and the funds provided by the
State are earmarked for special projects. The levee district has
the authority to tax and issue bonds, although the state
specifically disclaims responsibility for any debts of the levee
district. Of greatest significance is that nothing in Louisiana
law, or in recent practice, suggests that the State has any
obligation with respect to judgments against the levee district.
3
Degree of local autonomy. “In our circuit, . . . the
determination of an agency’s autonomy requires analysis of the
‘extent of the [entity’s] independent management authority’ . . .
[as well as] the independence of the individual commissioners” who
govern the entity. Jacintoport, 762 F.2d at 442.
The Orleans Levee District has considerable “management
authority,” as that term has been applied in Fifth Circuit caselaw.
For example, the levee district is granted “full and exclusive
right, jurisdiction, power and authority” over all levee-related
matters within its territorial reach. La. Rev. Stat. Ann. §
38:307(A). Each levee district has the authority to issue bonds,
raise taxes (up to a certain rate), and make all contracts
necessary to perform their functions. La. Rev. Stat. Ann. §§
38:314, 38:335, 38:431, 38:401, 38:404, 38:306(A). The levee board
19
has the authority to sell, lease, or otherwise dispose of property
for the purpose of raising funds. La. Rev. Stat. Ann. § 38:336(A).
In carrying out these functions, the levee board operates
with no oversight from the executive branch of government. Cf.
Darlak, 814 F.2d at 1059-60 (emphasizing that the Charity Hospital
of New Orleans was “under the direct control of the executive
branch of government”). Furthermore, the state legislature
exercises no oversight with respect to the levee district’s
budgetary matters, except perhaps to the limited extent that the
district is subject to audits. See Williams, 242 F.3d at 321. On
the whole, however, no branch of state government exercises
“supervisory control” over the day-to-day operations of the levee
district, and that fact counsels against Eleventh Amendment
immunity here. McDonald, 832 F.2d at 907; see also Williams, 242
F.3d at 321-22; Minton, 803 F.2d at 131-32.
The levee board correctly points out, however, that six
of the eight commissioners serve at the pleasure of the Governor.
La. Rev. Stat. Ann. § 38.291(K). Although the “vulnerability of
the commissioners to the governor’s pleasure militates against a
finding of local autonomy,” Jacintoport, 762 F.2d at 442, in this
case, the governor’s discretion is limited by statutory
requirements that a commissioner must be a resident of the levee
district and recommended by the local legislative delegation. La.
Rev. Stat. Ann. § 38:304. This court stated in Pendergrass that
residency requirements and local nominations (along with fixed
20
terms, which are not present here) “tug[ged] strongly” in favor of
a finding of local autonomy, in spite of the governor’s role in the
appointment process. Pendergrass, 144 F.3d at 347. Moreover,
Jacintoport suggests that the appointment process is given less
weight than the scope of the entity’s authority over its day-to-day
activities. Jacintoport, 762 F.2d at 442. On balance, then, the
levee district’s considerable degree of local autonomy supports a
finding of no Eleventh Amendment immunity.
4
Local versus statewide problems. This factor “properly
centers on ‘whether the entity acts for the benefit and welfare of
the state as a whole or for the special advantage of local
inhabitants.’” Williams, 242 F.3d at 322 (quoting Pendergrass, 144
F.3d at 347).
Limited territorial boundaries suggest that an agency is
not an arm of the state. See, e.g., Cozzo, 279 F.3d at 282 (noting
that a sheriff’s duties are “generally performed only within a
single parish”); Hudson, 174 F.3d at 690-91 (“[W]e have found it
highly useful to examine the geographic reach of the district
attorney’s prosecutorial powers.”). The levee district’s powers,
considerable as they are, may be exercised only within clearly
defined territorial limits. La. Rev. Stat. Ann. § 38:281(6). On
the other hand, most entities that are entitled to Eleventh
Amendment immunity have statewide jurisdiction. See Earles, 139
21
F.3d at 1038 (“The Board is concerned with regulating the practice
of public accounting on a statewide, rather than a local, scale.
This factor favors Eleventh Amendment immunity for the Board.”);
Neuwirth, 845 F.2d at 556 (same for Board of Dentistry); Voisin’s
Oyster House, 799 F.2d at 187 (same for Department of Wildlife and
Fisheries).
The levee board’s counter-argument is that the levee
district is concerned with a statewide problem -- flooding -- and
that the nature of the problem outweighs the narrow geographic
boundaries of the levee district. However, primary education and
law enforcement are also statewide concerns, yet school boards and
sheriffs are not arms of the state. See Minton, 803 F.2d at 131-
32; Cozzo, 279 F.3d at 282. As a general principle, then, the “arm
of the state” analysis focuses on the tasks undertaken by the
particular defendant. An exception may apply where the regional
entity is an administrative division of a statewide system.
See Williams, 242 F.3d at 321-22 & n.10; Delahoussye, 937 F.2d at
148 (characterizing the University of Southwestern Louisiana as
“only one component of the State College and Universities System”).
But in this case, the 19 levee districts in the State of Louisiana
are distinct entities and are not parts of a larger system.
In a case involving a levee district in Mississippi, this
court observed, “While flood control along the Mississippi River is
undoubtedly important to the State of Mississippi, the problem of
immediate and primary concern to the Levee Board is the maintenance
22
of the levee within its district.” McDonald v. Board of
Mississippi Levee Commissioners, 832 F.2d 901, 908 (5th Cir. 1987).
The same may be said of the Orleans Levee District. The fourth
factor thus cuts against the levee district’s entitlement to
Eleventh Amendment immunity.
5
Authority to sue. Each levee district “may sue and be
sued under the style of Board of Commissioners for the respective
district.” La. Rev. Stat. Ann. § 38:309(B). The levee board
acknowledges the relevant statute but insists that the fifth factor
(along with the sixth factor) is accorded significantly less weight
than the others. See, e.g., Cozzo, 279 F.3d at 281.
6
Right to hold property. Louisiana statutes provide that
“Each board of commissioners may buy and hold, sell and transfer,
or exchange property.” La. Rev. Stat. Ann. §§ 38:306(A); see also
La. Rev. Stat. Ann. 38:307 (outlining the specific powers of the
Orleans Levee District). Nevertheless, the levee board insists
that its right to use and hold property is “limited.” The board
cites Huls for the proposition that all of its property ultimately
belongs to the state and that the levee district is merely
exercising a delegated power. This argument misses the point; the
relevant question is whether the levee district has the right to
hold property in its own name, and it clearly does. This final
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factor -- like all of the others -- points away from Eleventh
Amendment immunity.
D
In sum, consideration of the six factors leads to the
conclusion that the Orleans Levee District is not an arm of the
State of Louisiana for purposes of Eleventh Amendment immunity.
The district court erred in dismissing the landowners’ action for
lack of jurisdiction.6
III. TAKINGS CLAIM
Since the district court had jurisdiction over this claim
against the levee board, the case must be reversed and remanded for
resolution on the merits. Although we express no opinion on the
ultimate outcome, a brief word is necessary to clarify a single
point discussed by both parties on appeal.
The levee board’s attorney began his presentation at oral
argument by saying, “I think it’s clear this is not a takings
case.” The levee board argued in its motion to dismiss and in its
brief on appeal that the landowners’ “property” -- in the form of
a judgment enforceable “through the processes set forth by the
legislature” -- has not been taken and that the landowners’
putative takings claim is nothing more than a suit to enforce a
6
In light of the resolution of this issue, we need not
address the landowners’ alternative argument that, even if the
levee district were considered an arm of the State, the Eleventh
Amendment would not bar their suit because the requested relief
could be characterized as a “purely prospective order” directing
the levee board to return the landowners’ property.
24
judgment against the board.7 If the landowners ultimately prevail,
the levee board continues, then every judgment creditor of a
political entity is a potential plaintiff in a takings claim.
The landowners, on the other hand, emphasize that the
right to receive mineral royalties is a recognized property
interest under Louisiana law and that there is no longer any doubt
as to ownership of the disputed royalties. As the state court
judgments made clear, the landowners’ interests in $2.85 million in
royalties were settled by the passage of Act 233, and their claims
for the property have since been reduced to judgment. Vogt, 680
So.2d at 158; Vogt, 738 So.2d at 1143-44. According to the
landowners, the levee board’s refusal to satisfy the judgment and
pay over the retained royalties constitutes a taking because the
governmental entity is withholding private property from its
owners, without offering compensation and without asserting a
public purpose or any police power or other reasonable regulatory
justification for the action. See Webb’s Fabulous Pharmacies, Inc.
v. Beckwith, 449 U.S. 155, 163-64, 101 S.Ct. 446, 452, 66 L.Ed.2d
358 (1980); NOWAK & ROTUNDA, CONSTITUTIONAL LAW, § 15:12.
The only point requiring resolution at this stage is the
levee board’s insistence that the landowners’ suit is not a takings
claim but merely an attempt to execute the judgment of the state
7
This court has the discretionary authority to decide issues of law,
presented in the court below, where the relevant facts are uncontroverted and the
proper resolution of the issue is beyond doubt. Green v. Levi’s Motors, Inc.,
179 F.3d 286, 293 (5th Cir. 1999).
25
courts. We find no support for the levee board’s premise that a
decree of the Louisiana courts somehow converted private property
(the mineral royalties) into public funds subject to an
unenforceable lien. Cf. Webb’s Fabulous Pharmacies, 449 U.S. at
163-64, 101 S.Ct. at 452 (“[A] State, by ipse dixit, may not
transform private property into public property without
compensation.”). In the levee board’s view, the state courts’
holding that the landowners’ judgment is unenforceable against the
levee board effectively re-characterizes their property right in
mineral royalties into an intangible claim against the levee
board’s property. Vogt, 814 So.2d 648. What was the landowners’
property has suddenly vanished behind a veil of sovereign immunity
in state court. We hold, however, that this result is untenable
against a federal takings claim.
We do not hold or imply, as the levee board contends,
that every tort or breach of contract claim against a governmental
entity necessarily becomes a takings claim. Our holding extends
only to cases where, as in Webb’s, the government has forcibly
appropriated private property without a claim of right or of public
or regulatory purpose.
Having clarified this preliminary point of law, we
express no further opinion on the ultimate outcome of this case.
26
IV. CONCLUSION
For the foregoing reasons, the judgment of dismissal is
REVERSED and the case REMANDED for further proceedings consistent
herewith.
REVERSED and REMANDED.
27