Opinion
8:01CV635
July 12, 2002
MEMORANDUM AND ORDER
This matter is before the court on the following motions filed by the State of Nebraska: (1) filing no. 10, the Motion to Dismiss of Defendant State of Nebraska, and (2) filing no. 11, the Motion for Stay of Discovery Proceedings. The State of Nebraska is one of three defendants named by the plaintiff, Charles B. Menser, in the Second Amended Complaint (filing nos. 4 and 6). The plaintiff asserts that the defendants conspired to deprive him, and did deprive him, of rights secured by the Fifth and Fourteenth Amendments to the United States Constitution. According to the complaint, the defendants forced the plaintiff to relinquish his rights as a precondition to receiving workers' compensation benefits, when his former employer, Greater Omaha Packing Co., and the employer's insurer, Liberty Mutual Group, filed a motion to compel discovery, and the Nebraska Workers' Compensation Court granted the motion. The plaintiff's claims are founded on 42 U.S.C. § 1983 and 1985.
Initially, the plaintiff named the Nebraska Workers' Compensation Court among the defendants in this action. However, Magistrate Judge Kathleen A. Jaudzemis pointed out in her order of December 17, 2001 (filing no. 3), that the judges of the Workers' Compensation Court have absolute judicial immunity for their judicial acts, whether right or wrong, committed within their jurisdiction. Consequently, the plaintiff substituted the State of Nebraska for the Workers' Compensation Court as a defendant in this case.
ELEVENTH AMENDMENT IMMUNITY
In filing no. 10, the State of Nebraska moves for dismissal of the plaintiff's claims against the State, including the Workers' Compensation Court, which is an agency or instrumentality of the State of Nebraska. See Neb. Rev. Stat. § 48-152 (creation of Workers' Compensation Court). The State seeks to be dismissed from this action on the basis of the immunity established by the Eleventh Amendment to the United States Constitution. See, e.g., Burk v. Beene, 948 F.2d 489, 492-93 (8th Cir. 1991): "Eleventh Amendment jurisprudence is well-settled: `a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.' . . ."
Furthermore, "[a] State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued." Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 99 (1984) (emphasis in original). See Becker v. University of Nebraska, 191 F.3d 904, 908 (8th Cir. 1999): "This court has previously held that the State of Nebraska has not consented to federal court jurisdiction." See also Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 39-40 (1994): "The Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State's own tribunals." Accord Trevelen v. University of Minnesota, 73 F.3d 816, 818 (8th Cir. 1996): "The Supreme Court has interpreted the Eleventh Amendment to bar actions in federal court against a state by its citizens."
The Workers' Compensation Court shares the state's sovereign immunity under the Eleventh Amendment. See, e.g., Nebraska Methodist Health System, Inc. v. Department of Health, 543 N.W.2d 466, 469 (Neb. 1996): "Generally speaking, a suit against a state agency is a suit against the State itself." Accord County of Lancaster v. State, Dept. of Public Institutions, 529 N.W.2d 791, 794 (Neb. 1995): "For the purposes of applying the doctrine of sovereign immunity, a suit against an agency of the state is the same as a suit against the state."
The Neb. Const. art. V, § 22, provides that "[t]he state may sue and be sued, and the Legislature shall provide by law in what manner and in what courts suits shall be brought." "This constitutional provision, however, is not self-executing and requires legislative action to waive the State's sovereign immunity." King v. State, 614 N.W.2d 341, 346 (Neb. 2000).
For example, the Nebraska Legislature has waived sovereign immunity for certain kinds of tort actions against the State and its agencies. See Neb. Rev. Stat. §§ 81-8,209 et seq., the Nebraska State Tort Claims Act. However, the waiver of sovereign immunity under the State Tort Claims Act does not extend to actions maintained in federal court. See Neb. Rev. Stat. § 81-8,214: "Suits shall be brought in the district court of the county in which the act or omission complained of occurred or, if the act or omission occurred outside the boundaries of the State of Nebraska, in the district court for Lancaster County."
Thus, section 81-8,214 is a limited waiver of sovereign immunity which permits an action against the State or a state agency exclusively in state district court. In an unreported decision, Senior United States District Judge Warren K. Urbom came to that conclusion in Peterson v. Nelson, No. 4:94CV3244, consolidated with Rehbein v. Danaher, No. 4:93CV3434, slip op. at 1-2 (D.Neb. May 15, 1997). In his "Memorandum and Order on the Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction," Judge Urbom sustained a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1), stating in pertinent part:
The State Tort Claims Act is a conditional waiver of Nebraska's immunity to suit for damages related to certain common law claims. . . . By its terms, the waiver exists only with respect to the district courts of the state, which have exclusive jurisdiction of all tort claims brought against the state, its agencies, or its employees. Neb. Rev. Stat. § 81-8,214 (1996 Reissue) (providing for the state's district court's exclusive jurisdiction); see also Neb. Rev. Stat. § 81-8,209 ("[T]he procedures provided by [this] act shall be used to the exclusion of all others."). Because this court lacks subject matter jurisdiction of the plaintiff's tort claims, the allegations of negligence on the part of the defendants in their official capacities and thereby against the State, must be dismissed.
(Citations omitted; emphasis added.)
In addition, Neb. Rev. Stat. § 84-911 permits a declaratory judgment to determine the validity of a rule or regulation. However, such an action may be brought only in the District Court of Lancaster County, Nebraska. Section 84-911 states:
(1) The validity of any rule or regulation may be determined upon a petition for a declaratory judgment thereon addressed to the district court of Lancaster County if it appears that the rule or regulation or its threatened application interferes with or impairs or threatens to interfere with or impair the legal rights or privileges of the petitioner. The agency shall be made a party to the proceeding. The declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule or regulation in question.
(2) The court shall declare the rule or regulation invalid if it finds that it violates constitutional provisions, exceeds the statutory authority of the agency, or was adopted without compliance with the statutory procedures. For purposes of this subsection, statutory procedures shall not include procedures provided under the Negotiated Rulemaking Act.
(Emphasis added.)
CIVIL RIGHTS
The civil rights laws of the United States do not abrogate state sovereign immunity. "[A] State is not a `person' as that term is used in [42 U.S.C.] § 1983, and is not suable under the statute, regardless of the forum where the suit is maintained." Hilton v. South Carolina Public Railways Com'n, 502 U.S. 197, 199-201 (1991), citing Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Thus, 42 U.S.C. § 1983 does not create a cause of action against the State of Nebraska or its agencies and instrumentalities, and the State of Nebraska and its agencies and instrumentalities cannot be made to answer to the plaintiff in this court for the alleged deprivation of his civil rights.
THEREFORE, IT IS ORDERED:
1. That filing no. 10, the Motion to Dismiss of Defendant State of Nebraska, is granted, and the State of Nebraska and the Nebraska Workers' Compensation Court are dismissed from this case with prejudice;
2. That filing no. 11, the State's Motion for Stay of Discovery Proceedings, is denied as moot; and
3. That this decision does not affect the plaintiff's claims against the remaining defendants, and pursuant to Fed.R.Civ.P. 54(b), this decision is not a final appealable order until judgment is entered as to all parties to this case.