Dagnall v. Gegenheimer
| Decision Date | 11 May 1981 |
| Docket Number | No. 79-1805,79-1805 |
| Citation | 645 F.2d 2 |
| Parties | David DAGNALL, Plaintiff-Appellee, v. Succession of Barney GEGENHEIMER et al., Defendants, Department of Highways, State of Louisiana, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jesse S. Guillot, New Orleans, La., for defendant-appellant.
Adams & Reese, Robert E. Couhig, Jr., New Orleans, La., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
ON PETITION FOR REHEARING AND SUA SPONTE SUGGESTION OF
REHEARING EN BANC
Before CHARLES CLARK, TJOFLAT, and GARZA, Circuit Judges.
The court substitutes the following paragraphs for those appearing at headnotes (1) through (4) of its opinion dated December 3, 1980, 631 F.2d 1195:
The eleventh amendment expressly bars the suit of Dagnall, a resident of Wisconsin, against the State of Louisiana. Dagnall does not dispute the Department's claim that it is a state agency entitled to invoke eleventh amendment limitation on the judicial power of the United States. It is clear that the eleventh amendment rights of a state are sufficiently jurisdictional to be asserted for the first time on appeal. Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662, 681 (1974). So then, unless the State has waived its eleventh amendment immunity, the district court was without jurisdiction. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed.2d 389 (1945), the Court addressed the question whether the administrative and executive officers of Indiana had the authority to waive that State's eleventh amendment immunity. Id. at 466, 65 S.Ct. at 352, 89 L.Ed.2d at 395. Noting that the question was one of state law, but that the state courts had not ruled on the question, the Court concluded from the Indiana Constitution that the attorney general had no authority to waive the State's immunity. Edelman's holding that the trial of that case did not bar the State from raising its immunity at the appellate level did not address the question of waiver by proceeding to trial nor did it discuss the Ford Motor dicta regarding such a waiver. See Edelman, 415 U.S. at 678, 94 S.Ct. at 1363, 39 L.Ed.2d at 681.
Edelman does, however, instruct that waiver of the eleventh amendment immunity must be expressed clearly. Louisiana law does not clearly give attorneys for the State authority to waive its eleventh amendment immunity. Indeed, La.Rev.Stat.Ann. tit. 13 § 5106 (West Supp.1980) provides: "No suit against the state, state agency, or political subdivision shall be instituted in any court other than a Louisiana state court." It has been held that this section deprives counsel of authority to consent to suit in federal court. AT&T v. Madison Parish Police Jury, 465 F.Supp. 168 (W.D.La.1977). By the very nature of this question, no state court would rule...
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...74 F.2d 910 (5th Cir. 1935), cert. denied, 294 U.S. 729, 55 S.Ct. 638, 79 L.Ed. 1259. We note that in a recent case, Dagnall v. Gegenheimer, 645 F.2d 2, 3 (5th Cir. 1981), the Fifth Circuit stated that the plaintiff "does not dispute the Department (of Highways)'s claim that it is a state a......
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