Opinion
Civil Action No. 00-3195 Section "L" (1)
June 11, 2001
ORDER AND REASONS
Before the Court is defendants' motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, defendants' motion is GRANTED.
I. BACKGROUND
This case involves a complaint for deprivation of civil rights brought by landowners in Plaquemines Parish, Louisiana against the Board of Commissioners of the Orleans Levee District ("Levee Board"). In 1924, the Louisiana Legislature authorized the Levee Board to acquire land fifty miles downriver from New Orleans to create the Bohemia spillway. The Levee Board obtained the majority of property by purchase, donation, or expropriation. See Board of Levee Commissioners of Orleans Levee Board v. Huls, 852 F.2d 140, 141 (5th Cir. 1988).
Sixty years later, the Legislature determined that the public purpose for the Bohemia Spillway no longer existed. By state constitutional amendment and Act 233 of 1984, the Legislature directed the Levee 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." In 1991 and 1992, the Levee Board returned title to the properties to the former landowners or their successors which included the plaintiffs in this case.
In addition to reclaiming title to the lands, plaintiffs also sought the royalties collected on the properties by the Levee Board. In Vogt v. Board of Comm'rs of Orleans Levee District, the Louisiana Fourth Circuit Court of Appeal affirmed a judgment awarding plaintiffs $2,853,358.44 for revenues collected by the Levee Board on the properties from June 29, 1984 until the transfer of title in 1991 and 1992. 738 So.2d 1142, 1144 (La. 4th Cir. 1998), cert denied, 748 So.2d 1166 (1999). These royalties have not been paid.
The land purchased and expropriated by the state from private owners contained mineral deposits that contributed approximately three million of the total five million dollars in annual mineral revenues for the Bohemia Spillway area. See Huls, 852 at 141.
Plaintiffs now bring suit in this court claiming that they have been deprived of their civil rights in violation of 42 U.S.C. § 1985 and the Fifth Amendment to the United States Constitution because the Levee Board has failed to pay the judgment for royalties obtained by plaintiffs against it in state court. The Levee Board responds that it is immune from suit in federal court because it is an agency of the state pursuant to the Eleventh Amendment to the United States Constitution. Moreover, the Levee Board explains that plaintiffs' claims are barred by res judicata and collateral estoppel and that no unjust taking of plaintiffs' property ever occurred.
II. MOTION TO DISMISS STANDARD
"Motions to dismiss for failure to state a claim are viewed with disfavor and rarely granted." Southern Christian Leadership Conference v. Supreme Court of State of Louisiana, CIV.A.99-30895, 2001 WL 575601, at *4 (5th Cir. May 29, 2001) (internal quotations omitted). When considering a motion to dismiss, the district court should construe the complaint liberally and in favor of the plaintiff, assuming the truth of all facts plead in the complaint. See Id.. Dismissal of a complaint under Rule 12(b)(6) is not proper "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Brown v. NationsBank, 188 F.3d 579, 586 (5th Cir. 1999) (internal citations omitted). "Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (9 Cir. 1993). "The question therefore is whether, in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." 5 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1357, at 601 (1969).
III. ANALYSIS
The central issue raised in defendants' motion is whether the Levee Board is a state agency immune from suit under Eleventh Amendment jurisprudence. The Eleventh Amendment provides that:
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. States may not be sued in federal court absent consent or congressional abrogation of sovereign immunity. See Pendergrass v. Greater New Orleans Ecpressway Comm'n, 144 F.3d 342, 343-44 (5th Cir. 1998) (citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54-56, 116 S.Ct. 1114, 1122-24, 134 L.Ed.2d 252 (1996)). This jurisdictional bar applies to "suits in federal court by citizens of a state against their own state or a state agency or department." Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 185 (5th Cir. 1986); see Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Even if the state is not named as a party to the action, the Eleventh Amendment bars suit if the state is the real party in interest and public funds from the state treasury will pay for liability. See Pendergrass, 144 F.3d at 344 (citing Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974)).
The Court must therefore "determine whether the Orleans Levee Board is an arm of the state enjoying eleventh amendment immunity or whether it possesses an identity sufficiently distinct from that of the State of Louisiana to place it beyond that shield." Id.. (quoting Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129, 131 (5th Cir. 1986)). In deciding whether the Levee Board is an arm of the state entitled to Eleventh Amendment immunity, the Court considers several factors:
(1) whether the state statutes and case law characterize the agency as an arm of the state; (2) the source of the 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.Id.. Courts examining these factors with respect to the Levee Board have consistently found it an arm of the state immunized from liability in federal court by the Eleventh Amendment.
In Board of Levee Commissioners of Orleans Levee Board v. Huls, the Fifth Circuit analyzed a claim brought by the Levee Board against the Louisiana Department of Natural Resources for an unconstitutional taking of property. 852 F.2d at 141. The Levee Board challenged the constitutionality of Louisiana Act 233 of 1984 which ordered the return of property constituting the Bohemia Spillway to its former owners or their successors. See id. The Court held that the Levee Board was a state agency that employed the power of the state to expropriate land and therefore could not itself sue the state for an uncompensated taking of property under the Fifth and Fourteenth Amendments. See id. at 142-3.
Two courts in this district consider the Levee Board an arm of the state immnunized from liability in federal court by the Eleventh Amendment. In Stevens v. Lopez, the court held that the Levee Board was a state agency immune from suit in federal court for a violation of 42 U.S.C. § 1983. See C1V.A. No. 96-4135, 1998 WL 13602, *1 (E.D. La. Jan. 14, 1998). In Lange v. Orleans Levee District, the court elaborated on the holding in Stevens by applying the six factor test to determine whether the Levee Board could be classified as an arm of the state. See CIV.A. Nos. 97-0987, 97-0988, 1998 WL 88862 at *2 (E.D. La. Feb. 27, 1998). Although the court found that the Levee Board failed to satisfy every element of the test, the court in Lange held that the case law and the funding scheme of the Levee Board characterized it is an arm of the state for purposes of Eleventh Amendment immunity. See id. at *3
Plaintiffs dispute the reasoning of Lange and argue that the Levee Board is not an agent of the state because it fails to satisfy the six factors enumerated in Pendergrass. See 144 F.3d at 344. They analogize the Levee Board to other agencies which have failed the test and have been denied Eleventh Amendment immunity. See e.g., Pendergrass, 144 F.3d at 348 (denying immunity to the Greater New Orleans Expressway Commission). While the court in Pendergrass declined to extend Eleventh Amendment immunity to the Greater New Orleans Expressway Commission because it did not satisfy the six element test, the court in Lange applied the same test and found the Levee Board to be an arm of the state entitled to Eleventh Amendment Immunity. See Pendergrass, 144 F.3d at 348; Lange, 1998 WL 88862 at *3 Moreover, the Fifth Circuit expressly identified the Levee Board as an arm of the state in Huls. 852 F.2d at 143. Plaintiffs argue for an alternative interpretation of the Pendergrass factors but offer no compelling rationale for this Court to reject the analysis of Lange or to undermine the Fifth Circuit precedent in Huls.
The Louisiana Supreme Court also regards the Levee Board an agent of the state. See Board of Comm'rs of the Orleans Levee Dist. v. Dept. of Natural Resources, 496 So.2d 281, 288 (La. 1986). In the state court action attacking the constitutionality of the act returning land to former owners and successors of Bohemia Spillway property, the Court explained that "a levee board is a creature or agency of the state brought into existence for the purpose of discharging the state's duties of flood protection." Id.. at 288. The Court found that the Legislature had delegated the police power of the state 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. . . ." and that this delegated power could be recalled, abridged or modified by the state. Id.. at 289-90. Therefore, the Louisiana Supreme Court confirms the well settled principle that the Levee Board is a creature or agency of the state.
Louisiana Office of Attorney General also concluded in a recent opinion letter that under the reasoning of the Louisiana Supreme Court, "a levee district is a political subdivision of the state acting as an agency of the State rather than a local government subdivision." La. Atty. Gen. Op. No. 00-486, 2001 WL 129267 at *2 (La. A.G. Jan. 17, 2001).
Because the weight of the case law supports a finding that the Levee Board is an arm of the state immunized from suit in federal court under the Eleventh Amendment, plaintiffs cannot maintain their cause of action against defendants and their claims against the Levee Board must be dismissed.
Because the Court finds that the Levee Board is an arm of the state immune for liability in federal court, the Court need not address defendants' additional arguments concerning res judicata, collateral estoppel, and unjust taking.