Benning v. Board of Regents of Regency Universities

• Decision Date: 08 May 1991
• Docket Number: No. 90-1626,90-1626
• Citation: 928 F.2d 775
• Parties: 66 Ed. Law Rep. 591 Matthew M. BENNING and Lori K. Neumann-Benning, Plaintiffs-Appellants, v. BOARD OF REGENTS OF REGENCY UNIVERSITIES, a body politic of the State of Illinois doing business as Northern Illinois University, Robin D. Rogers, individually, John R. Robinson, individually and Joseph W. Vaughn, individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 775

928 F.2d 775

66 Ed. Law Rep. 591

Matthew M. BENNING and Lori K. Neumann-Benning, Plaintiffs-Appellants, v. BOARD OF REGENTS OF REGENCY UNIVERSITIES, a body politic of

the State of Illinois doing business as Northern Illinois

University, Robin D. Rogers, individually, John R. Robinson,

individually and Joseph W. Vaughn, individually, Defendants-Appellees.

No. 90-1626.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 25, 1990.

Decided March 26, 1991.

As Amended April 17, 1991.

Rehearing and Rehearing In Banc

Denied May 8, 1991.

Robert Steven Wilson, Sycamore, Ill., John Cooney, Cooney & Conway, Chicago, Ill., for plaintiffs-appellants.

Carol J. Fines, Bridget E. Zalcman, R. Mark Mifflin, Giffin, Winning, Cohen & Bodewes, Springfield, Ill., George M. Shur, Northern Illinois University, DeKalb, Ill., for defendants-appellees.

Before CUDAHY and FLAUM, Circuit Judges, and PELL, Senior Circuit Judge.

CUDAHY, Circuit Judge.

To resolve this case, we cautiously venture into the dense tangle of fictions shrouding the doctrine of sovereign immunity. Matthew Benning filed this diversity tort action against various officials and employees of Northern Illinois University (NIU) alleging that he suffered extensive injuries as a result of their negligence. The district court dismissed Benning's claims based upon the Eleventh Amendment and Illinois law, which confers exclusive jurisdiction over tort suits against the state upon the Illinois Court of Claims. We affirm.

I.

At the time this accident occurred, Matthew Benning was a graduate student in NIU's Chemistry Department. On March 3, 1987, while he was performing a chemical reaction utilizing the solvent tetrahydrofuran, Benning's experiment exploded showering him with shards of glass and burning chemicals. Benning and his wife, Lori Neumann-Benning, brought suit seeking damages from the Board of Regents (the Board), the governing body of NIU, and Robin Rogers, John Robinson and Joseph Vaughn, supervisor of the chemistry laboratory, manager of the laboratory and chairman of NIU's Chemistry Department, respectively. The Bennings also requested a judgment declaring NIU's chemistry laboratories unsafe, prohibiting their use and ordering institution of a policy to regulate the storage of volatile chemicals.

Concluding that the Board of Regents constitutes an arm of the state immune from suit in federal court under the Eleventh Amendment, the district court dismissed Benning's claim for pecuniary damages against the Board for lack of jurisdiction. The court also dismissed Benning's request for declaratory relief, citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), which barred a federal court injunction directing a state official to comply with state law. The court observed that, under Illinois law, the proper forum for disputes against the state is the Illinois Court of Claims. Relying upon a rather tortuous line of state cases treating suits against individual defendants for duties arising out of state employment as effectively suits against the state, the court accordingly dismissed Benning's claims for money damages against the three individual defendants, Rogers, Robinson and Vaughn.

II.

The Eleventh Amendment immunizes unconsenting states from suit in federal court. ¹ A particular suit is deemed to be one against the state if "the state is the real, substantial party in interest." Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). In determining whether a state entity should be dealt with as an arm of the sovereign, the critical inquiry is whether a judgment would deplete the state treasury. See Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974) ("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"); Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) ("The general rule is that a suit is against the sovereign if 'the judgment would expend itself on the public treasury or domain....' " (quoting Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947))). Other factors to consider are whether the state entity can sue and be sued, whether it performs an essential governmental function and whether it enjoys a substantial degree of political independence from the state. See Ranyard v. Board of Regents, 708 F.2d 1235, 1238 (7th Cir.1983).

The determination whether a state entity should enjoy the protection of the Eleventh Amendment requires careful appraisal of the relationship between the state and the institution being sued. See, e.g., Soni v. Board of Trustees of the Univ. of Tenn., 513 F.2d 347, 352 (6th Cir.1975) ("Each state university exists in a unique governmental context, and each must be considered on the basis of its own peculiar circumstances."), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976). After thoughtful analysis, several courts have denied state universities Eleventh Amendment immunity. E.g., Kovats v. Rutgers, The State University, 822 F.2d 1303 (3rd Cir.1987); Hander v. San Jacinto Junior College, 522 F.2d 204 (5th Cir.1975); Gordenstein v. University of Del., 381 F.Supp. 718 (D.Del.1974). Most have elected to extend the protective shield of the Eleventh Amendment to state educational institutions, however, reasoning that judgments against them would subject the state to liability. E.g., Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir.1989); Kashani v. Purdue University, 813 F.2d 843 (7th Cir.), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987); Schuler v. University of Minn., 788 F.2d 510 (8th Cir.1986), cert. denied, 479 U.S. 1056, 107 S.Ct. 932, 93 L.Ed.2d 983 (1987).

We need not resolve this delicate, fact-intensive question because this case is easily decided upon other grounds. ² Under the Erie doctrine, state rules of immunity govern actions in federal court alleging violations of state law. Erie R.R. v. Tompkins 04 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Here, an Illinois statute specifically ousts both state and federal courts of jurisdiction over all tort suits against the Board of Regents, conferring exclusive jurisdiction upon the Illinois Court of Claims. Ill.Rev.Stat. ch. 37, para. 439.8(d) (1989). Even if the Eleventh Amendment should permit suits against the Board of Regents, this Illinois statute thus requires us to dismiss Benning's state law tort claim for pecuniary damages against the Board. See Zeidner v. Wulforst, 197 F.Supp. 23 (E.D.N.Y.1961) (state statute providing that New York Thruway Authority could be sued only in New York Court of Claims precluded suit against Authority in federal court based upon violations of state law, even though Authority was not immune under Eleventh Amendment); Gerr v. Emrick, 283 F.2d 293 (3d Cir.1960) (applying state law of immunity to federal diversity suit), cert. denied, 365 U.S. 817, 81 S.Ct. 698, 5 L.Ed.2d 695 (1961); cf. Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (upholding state immunity statute as constitutional when applied to defeat tort claim arising under state law). ³

Regardless of the Eleventh Amendment status of the Board of Regents for the purpose of monetary damages, the Eleventh Amendment does preclude Benning's request for declaratory relief. In Ex Parte Young, the Supreme Court authorized a federal court injunction against a state official based upon the theory that his violation of federal law stripped him of his official authority. 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Court has declined, however, to extend this authority-stripping fiction beyond the limited terrain of Young. Thus in Pennhurst, 465 U.S. at 89, 104 S.Ct. at 900, the Court held that the Eleventh Amendment forbids a federal court from ordering state officials to conform their conduct to state law, reasoning that such relief is unnecessary to vindicate the supreme authority of federal law and contravenes the principles of federalism underlying the Eleventh Amendment.

Benning seeks to circumvent the rule enunciated in Pennhurst, however, by requesting a mere declaration that the Board violated state law. But the only advantage Benning could derive from such a declaration would be to present it in state court proceedings as res judicata on the issue of liability, leaving to state courts the mechanical process of tabulating damages. When a declaratory judgment "would have much the same effect as a full-fledged award of damages or restitution by the federal court, the latter kinds of relief being of course prohibited by the Eleventh Amendment," the Supreme Court has denied declaratory relief. Green v. Mansour, 474 U.S. 64, 73, 106 S.Ct. 423, 428, 88 L.Ed.2d 371 (1985). The same reasoning condemns Benning's claim for declaratory relief. Here, issuance of a federal declaratory judgment as a step toward a state damage or injunctive remedy would operate as an end-run around Pennhurst that is equally forbidden by the Eleventh Amendment. See Watkins v. Blinzinger, 789 F.2d 474 (7th Cir.1986) (holding that Eleventh Amendment rule enunciated in Pennhurst prohibits federal court from issuing declaration that state officials violated state law), cert. denied, 481 U.S. 1038, 107 S.Ct. 1976, 95 L.Ed.2d 816 (1987).

The Eleventh Amendment doctrine of sovereign immunity does not, however, insulate the three individual defendants from liability for their allegedly tortious acts. The state urges dismissal of Benning's claims for money damages against Rogers, Robinson and Vaughn on the grounds that any judgment rendered against them would be paid from the state treasury. But the state cannot manufacture immunity for its employees simply by volunteering to indemnify them. As Judge Shadur has cogently observed, "[t]o hold otherwise would...