Voisin's Oyster House, Inc. v. Guidry

• Decision Date: 08 September 1986
• Docket Number: No. 85-3673,85-3673
• Parties: VOISIN'S OYSTER HOUSE, INC., et al., Plaintiffs-Appellants, v. Jesse J. GUIDRY, Louisiana Department of Wildlife and Fisheries, and Louisiana Wildlife and Fisheries Commission, Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 183

799 F.2d 183

VOISIN'S OYSTER HOUSE, INC., et al., Plaintiffs-Appellants, v. Jesse J. GUIDRY, Louisiana Department of Wildlife and Fisheries, and Louisiana Wildlife and Fisheries

Commission, Defendants-Appellees.

No. 85-3673

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 8, 1986.

Duval, Funderburk, Sundbery & Lovell, James M. Funderburk, Houma, La., for plaintiffs-appellants.

Donald E. Puckett, Dept. of Wildlife & Fisheries, Baton Rouge, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Appellants brought suit against the Louisiana Department of Wildlife and Fisheries (the Department), the Louisiana Wildlife and Fisheries Commission (the Commission), and Jesse Guidry (Guidry), Secretary of the Department, under 42 U.S.C. Sec. 1983, claiming that appellees had violated their constitutional rights and had discriminated against them by denying them oyster leases. Appellees moved for summary judgment, claiming that they were immune from suit under the Eleventh Amendment. The district court granted appellees' motion. We determine that appellees are immune from suit under the Eleventh Amendment; however, the proper disposition of the case is not judgment on the merits, but dismissal for lack of subject matter jurisdiction. Accordingly, we remand to the district court with instructions to dismiss for lack of subject matter jurisdiction.

Facts and Proceedings Below

Appellants, Voisin's Oyster House, Inc., Wilson's Oysters, Inc., and their respective sole shareholders, Wilson P. Voisin, Sr. and Wilson P. Voisin, Jr., are oyster fishermen in Louisiana. In 1963, the Department closed off (red-lined) certain portions of Lake Mechant to the private leasing of water bottoms for oyster purposes. In 1982, appellants filed an application with the Department for an oyster lease in Lake Mechant. The application was suspended five weeks later.

After pursuing certain state administrative actions, appellants filed this suit under 42 U.S.C. Sec. 1983. Appellants alleged that others had been granted leases in the lake since the red-lining and that the red-lining of Lake Mechant was a scheme to benefit certain other oyster fishermen to the detriment of fishermen such as appellants. Appellants claimed that this action was arbitrary and capricious, discriminated against them, was taken under color of state law, and violated their rights under the Fifth and Fourteenth Amendments to the United States Constitution. Appellants claimed that they had been deprived of their property rights and constitutional privileges and immunities. They claimed damages of three million dollars from deprivation of their right to plant and harvest oysters and one hundred thousand dollars for surveying fees for the lease and attorneys' fees. No other relief was sought.

Appellees moved for summary judgment, alleging that there were no genuine issues of material fact and that all defendants were immune from suit in federal court under the Eleventh Amendment to the Constitution. The district court found that the Eleventh Amendment barred suit against appellees and granted their motion for summary judgment. Appellants bring this appeal.

Discussion

The Eleventh Amendment to the United States Constitution bars suits in federal court by citizens of a state against their own state or a state agency or department. ¹ Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). Claims under federal statutes do not override the Eleventh Amendment bar unless there is a clear showing of congressional intent to abrogate the bar. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 1146-47, 59 L.Ed.2d 358 (1979). Section 1983 does not override the Eleventh Amendment bar, id.; see also Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069 (5th Cir.1981) (section 1981). Therefore, if appellees are alter egos of the state, they are immune from suit in federal court. Because the analysis for determining Eleventh Amendment immunity is somewhat different for agencies and state officials, we will discuss the Department's and the Commission's immunity first, and then Guidry's immunity.

State Agency Immunity

The Eleventh Amendment bars suit against a state entity, as opposed to a state official, regardless of whether money damages or injunctive relief is sought. Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982); Krempp v. Dobbs, 775 F.2d 1319, 1321 (5th Cir.1985). In determining whether an entity is entitled to Eleventh Amendment immunity, we "must examine the particular entity in question and its powers and characteristics as created by state law...." Laje v. R.E. Thomason General Hospital, 665 F.2d 724, 727 (5th Cir.1982). One of the factors we look at in determining whether an agency is an arm of the state and thus entitled to Eleventh Amendment immunity is whether the state statutes and case law view the agency as an arm of the state. Jacintoport Corp. v. Greater Baton Rouge Port Commission, 762 F.2d 435, 438-40 (5th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 797, 88 L.Ed.2d 774 (1986); United Carolina Bank v. Board of Regents, 665 F.2d 553 (5th Cir.1982).

According to Louisiana statutes, the Department is a part of the executive branch of the state government, La.Rev.Stat.Ann. Sec. 36:4 (West 1985), and the Commission is part of the Department. La.Rev.Stat Ann. Sec. 36:610 (West 1985). In its statutes, Louisiana treats all executive departments the same, La.Rev.Stat.Ann. Sec. 36:4(A), and provides that "[n]o suit against the state or a state agency or political subdivision shall be instituted in any court other than a Louisiana state court." La.Rev.Stat.Ann. Sec. 13:5106(A) (West Supp.1986). See Fireman's Fund Insurance Co. v. Department of Transportation and Development, 792 F.2d 1373 (5th Cir.1986) (holding that a similar executive department had Eleventh Amendment immunity and implying that all Louisiana executive departments have such immunity). The Louisiana Supreme Court has held "[i]f the office is created by the legislature, or is established in the first instance by the constitution, it is a state office." Mullins v. Louisiana, 387 So.2d 1151, 1152 (La.1980). The Department was created by the state legislature, La.Rev.Stat.Ann. Sec. 36:601, and, therefore, the Louisiana courts would view the Department as part of the state.

Another factor we consider is the source of the entity's funding, since an important goal of the Eleventh Amendment is the protection of state treasuries. Jacintoport, supra; United Carolina Bank, supra. Since the Department is part of the executive branch of the government, the legislature has direct control over the Department's funding through its power to amend the executive budget. La.Rev.Stat.Ann. Sec. 39:42 (West Supp.1986). All funds available to the Commission are appropriated to it directly by the state legislature on an annual basis. La.Rev.Stat.Ann. Sec. 56:10 (West Supp.1986). Funds collected by the Commission and the Department, with the exceptions set out in Article VII, Section 9(A) of the Louisiana Constitution of 1974, ² are paid into the State Treasury to be credited to the Bond Security and Redemption Fund. La.Rev.Stat.Ann. Sec. 56:10. Some of these monies may eventually be deposited, by law, to the Conservation Fund to be used solely for the programs and purposes of the Commission and the Department. La.Rev.Stat.Ann. Sec. 56:10. However, these monies are available only as appropriated by the legislature. Thus, the Commission and the Department are fiscally dependent upon the state. Furthermore, the Louisiana Constitution provides that judgments against state agencies will be paid only from funds appropriated for that purpose by the state legislature. La. Const. art. XII, Sec. 10. It is clear that any judgment against the Department and the Commission would be paid from state funds.

Another relevant factor in determining Eleventh Amendment immunity is whether the entity is concerned with local or statewide problems. Jacintoport, supra. The Department and the Commission are charged with the control and supervision of all wildlife in the state, La.Rev.Stat.Ann. Sec. 36:601-02 (West 1985), and thus clearly are concerned with statewide problems.

An entity's degree of authority independent from the state is also a factor. The Department is headed by a secretary who functions under the control and supervision of the governor and serves at the governor's pleasure. La.Rev.Stat.Ann. Sec. 36:604. This indicates a lack of independence as to the Department. Members of the Commission are appointed by the governor and are confirmed by the state senate for one six-year term. La.Rev.Stat.Ann. Sec. 36:601. Considering the relationship between the Department and the Commission, this factor does not point away from Eleventh Amendment immunity as to the Commission.

Other factors we consider include whether the entity can sue and be sued in its own name and whether it has the right to hold and use property. Both the Department and the Commission can sue in their own names. La.Rev.Stat.Ann. Secs. 36:602(A) (West 1985) & 56:5(A)(1) (West Supp.1986). The Department is authorized to acquire, hold, and use property. La.Rev.Stat.Ann. Secs. 56:581, 56:612(3), & 56:795 (West Supp.1986). While these last two factors mitigate against an entity's being an alter ego of the state, they are not controlling, as the other factors (apart perhaps from that respecting independent authority, which is arguably more nearly neutral as to the Commission) indicate the Department and the Commission are alter egos of the state. Viewing all the factors as a whole, it is clear that both the Department and the Commission are alter egos of the state such that the Eleventh Amendment bars suit against them in federal court.

Guidry

A...