Summary
In Norris, the court reviewed the pertinent Louisiana Revised Statutes and found that "legislation is present which indicates that, in fact, HANO does not qualify as an entity to which sovereign immunity is applicable."
Summary of this case from Garcia v. Hous. Auth. of New OrleansOpinion
CIVIL ACTION NUMBER: 02-0468, SECTION: "D"(5)
October 15, 2003
ORDER AND REASONS
Presently before the Court is the motion for summary judgment of defendant, the Housing Authority of New Orleans ("HANO"). (Rec. doc. 39). The gravamen of that portion of the motion that is properly before the Court addresses the issue of whether plaintiff's claim under the Age Discrimination in Employment Act ("ADEA") should be dismissed as barred by the Eleventh Amendment to the United States Constitution. Effectively, HANO claims to be an alter ego of the State of Louisiana which has not waived its sovereign immunity to suit under the ADEA.Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000).
By minute entry dated September 19, 2003, the Court dismissed the remainder of HANO'S motion as having been filed untimely. (Rec. doc. 43).
The Fifth Circuit has for some time recognized that the Eleventh Amendment ". . . will extend to any state agency or other political entity that is deemed the 'alter ego' or an 'arm' of the State."Vogt v. Board of Commissioners of the Orleans Levee District, 294 F.3d 684, 688-89 (5th Cir.), cert. denied, 537 U.S. 1088, 123 S.Ct. 700, 154 L.Ed.2d 632 (2002) (citing 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)). More specifically, the Fifth Circuit has opined that ". . . 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.'" Vogt, 294 F.3d at 689 (quotingHudson v. City of New Orleans 174 F.3d 677, 681 (5th Cir.),cert. denied, 528 U.S. 1004, 120 S.Ct. 498, 145 L.Ed.2d 385 (1999). However, the Eleventh Amendment ". . . will not bar a suit . . . if the political entity 'possesses an identity sufficiently distinct' from that of the State." Id. (quoting Pendergrass v. Greater New Orleans Expressway Comm'n., 144 F.3d 342, 344 (5th Cir.), cert. denied, 525 U.S. 1054, 119 S.Ct. 617, 142 L.Ed.2d 557 (1998)).
The Fifth Circuit has further recognized that there is no bright line test for determining whether a political entity is an "arm of the State" for purposes of determining if Eleventh Amendment immunity is applicable. However, in evaluating the question, a six-factor test has been devised, i.e., ". . . 1) whether 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 the entity has the right to hold and use property." Perez v. Region 20 Education Service Center, 307 F.3d 318, 326-27 (5th Cir. 2002); Vogt, 294 F.3d at 689.
The Fifth Circuit has further opined that no one of the above six factors is dispositive. However, the source of an entity's funding is of particular importance because a principal goal of the Eleventh Amendment is to protect state treasuries. Hudson v. City of New Orleans, 174 F.3d 677, 682 (5th Cir.), cert. denied, 528 U.S. 1004, 120 S.Ct. 498, 145 L.Ed.2d 385 (1999). Nor does an entity need to show that all of the factors are satisfied because ". . . the factors simply provide guidelines for courts to balance the equities and determine if the suit is really one against the state itself." Perez, 307 F.3d at 327.
The Court notes that, while HANO claims the benefit of Eleventh Amendment immunity, it has not attempted to fit itself into any of the aforementioned six factors. Nor has it, through affidavit or otherwise, presented facts which establish it as an alter ego of the State of Louisiana.
Additionally, the Court has perused the Revised Statutes for the State of Louisiana and determined that, legislation is present which indicates that, in fact, HANO does not qualify as an entity to which sovereign immunity is applicable. For example, pursuant to LSA-R.S. 40:384(16), a "local housing authority", such as HANO, is defined as ". . . a political subdivision of this state, independent from the municipality or parish which established or establishes it or which may appoint some or all of its commissioners." See also Kohler v. Housing Authority of New Orleans, 812 So.2d 851, 853 (La.App. 4th Cir. 2002). It is not a "state agency" as defined by LSA-R.S. 13:5102.
With regard to funding, it is clear that the State of Louisiana is not responsible for the debts or liabilities of local housing authorities. Specifically, R.S. 40:403 provides as follows:
[e]xcept to the extent the municipality or parish may expressly elect to undertake such liability, neither the municipality or parish with respect to which a local housing authority is established, nor any municipality or parish participating in a regional housing authority, nor the state, nor any other public agency of this state shall be responsible for the debts or liabilities of any local housing authority or regional housing authority.
(Emphasis added).
Defendant does not suggest to the Court the manner in which HANO is funded or suggest that those funds come from the State of Louisiana. Nor does the defendant suggest that there is a statutory obligation on the part of the State of Louisiana requiring that the State provide funds to HANO to pay general debts.
The third and fourth factors, degree of local autonomy and nature of problems addressed, point to a finding of no immunity. HANO operates in Orleans Parish and thus has extremely local functions, rather than statewide obligations. It is the governing body of the City of New Orleans, pursuant to R. S. 40:393, that presumably brought HANO into existence. Once established pursuant to R. S. 40:393, ". . . the authority's area of operation shall be the municipality and the area within ten miles from the territorial boundaries thereof." LSA-R.S. 40:396. Defendant has not provided the Court with any information with regard to how the commissioners of HANO were chosen and, therefore, the Court cannot conclude anything pertinent to the current inquiry based upon choice of HANO's governing body.
HANO may sue and be sued in its own name pursuant to LSA-R.S. 40:431(C)(2). It may own, sell, lease and manage property pursuant to LSA-R.S. 40:436. It may issue bonds and other debt instruments pursuant to LSA-R.S. 40:431(C)(7).
In short, defendant has given the Court no basis upon which to conclude that HANO is subject to sovereign immunity. Accordingly, the motion for summary judgment filed herein by HANO seeking to have the ADEA claim of the plaintiff dismissed based upon Eleventh Amendment immunity is DENIED. New Orleans, Louisiana, this 15 day of October, 2003.