John G. and Marie Stella Kenedy Memorial Foundation v. Mauro, No. 92-7714

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before KING and BARKSDALE; KING
• Citation: 21 F.3d 667
• Parties: The JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUNDATION, Plaintiff-Appellant, v. Garry MAURO, Commissioner of the General Land Office, et al., Defendants-Appellees.
• Docket Number: No. 92-7714
• Decision Date: 27 May 1994

Page 667

21 F.3d 667 The JOHN G. AND MARIE STELLA
KENEDY MEMORIAL FOUNDATION,
Plaintiff-Appellant,
v.
Garry MAURO, Commissioner of the General Land Office, et
al., Defendants-Appellees. No. 92-7714. United States Court of Appeals,
Fifth Circuit. May 27, 1994.
Rehearing Denied June 29, 1994.

Page 668

Shannon Ratliff, Marc Knisely, McGinnis, Lochridge & Kilgore, Austin, TX, Thomas Forestier, McGinnis, Lochridge & Kilgore, Houston, TX, Richard Hatch, Sr., Hatch & Loomis, Corpus Christi, TX, for appellant.

Dick Watt, Houston, TX, for amicus curiae, Dunn-McCampbell Royalty Interest, Inc.

Mary Keeney, Liz Bills, Asst. Attys. Gen., Dan Morales, Atty. Gen., Austin, TX, for appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before KING and BARKSDALE, Circuit Judges, and PARKER, ^* District Judge.

KING, Circuit Judge:

The John G. and Marie Stella Kenedy Memorial Foundation (the Foundation) appeals the district court's dismissal of its claim brought under 42 U.S.C. Sec. 1983 against Garry Mauro (Mauro), Commissioner of the Texas General Land Office, in his official capacity, and its Fifth Amendment inverse condemnation claim against the State of Texas. The Foundation also appeals the district court's denial of its motion for partial summary judgment. We affirm the district court's judgment of dismissal and vacate that portion of the judgment denying the Foundation's motion for partial summary judgment.

I. BACKGROUND

In January 1990, the Foundation filed suit against Mauro and the State of Texas in Texas state court in Kenedy County, Texas. The Foundation sought declaratory and injunctive relief to determine boundary and title to certain real property against Mauro, in his capacity as Commissioner of the Texas General Land Office, under 42 U.S.C. Sec. 1983 and the Fourteenth Amendment of the United States Constitution, as well as under state common law. The Foundation also asserted a takings claim against the State of Texas under Article 1, Section 17 of the Texas Constitution.

The Foundation specifically contended that Mauro, acting under color of state law, refused to recognize the proper location of the boundary between the Foundation's property and state-owned land in Kenedy County. The property at issue is part of the original Spanish and Mexican grants, La Barreta and Las Motas de la Barreta, respectively, and is sometimes covered by the body of water known as the Laguna Madre. The Foundation argued that although title to portions of the disputed land had been effectively adjudicated to the State in Humble Oil & Refining Co. v. Sun Oil Co., 190 F.2d 191 (5th Cir.1951), cert. denied, 342 U.S. 920, 72 S.Ct. 367, 96 L.Ed. 687 (1952), there had since been a change in both the physical characteristics of the disputed land and in state law interpreting its physical boundaries by virtue of the Texas Supreme Court's holding in Luttes v. State, 324 S.W.2d 167 (Tex.1959). Hence, according to the Foundation, an application of Luttes would establish that the State's claim to the disputed land was no longer valid. Although the Foundation conceded that Mauro had the statutory authority to determine the boundary between private property and state-owned submerged land, Mauro's refusal to recognize Luttes as controlling--while he continued to grant mineral leases on a portion of the disputed property

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for the State's benefit--amounted to a deprivation of the Foundation's real property without due process of law.

In February 1990, Mauro and the State (the defendants) removed the case to the United States District Court for the Southern District of Texas on the basis of federal question jurisdiction. In its original answer filed in federal court, the defendants stated that the district court had subject matter jurisdiction over the Foundation's Sec. 1983 claim against Mauro in his official capacity for prospective injunctive relief. However, the defendants denied that the court had jurisdiction over the remaining claims. The defendants then filed a motion for summary judgment. Specifically, they asserted (1) that the Foundation's claims were barred by res judicata, collateral estoppel, and stare decisis in light of the Fifth Circuit's decision in Humble Oil; (2) that the State of Texas was entitled to judgment as a matter of law with respect to the Foundation's claim under Article I, Section 17 of the Texas Constitution because title to the disputed property rested with the State; (3) that the Foundation's action was barred by limitations and under the doctrine of laches; (4) that the Foundation's state law claims against Mauro were barred by the doctrine of sovereign immunity; and (5) that the Foundation's claim against Mauro was not a cognizable claim under Sec. 1983 and barred by the Eleventh Amendment.

The Foundation then amended its complaint to assert additionally an inverse condemnation claim against the State of Texas under the Fifth Amendment to the United States Constitution. In response to this amended complaint, the defendants filed an amended answer in which they denied that the relief sought by the Foundation for its Sec. 1983 claim was proper prospective relief. The defendants also pleaded the various affirmative defenses raised in their earlier motion for summary judgment, as well as "sovereign immunity and the Eleventh Amendment to the U.S. Constitution."

The Foundation subsequently filed its own motion for partial summary judgment, seeking a judgment declaring that the disputed land was not "submerged" land owned by the State but rather land which belonged to the Foundation as part of its upland property. The Foundation also requested a ruling that its claims were not barred by res judicata or collateral estoppel.

After a hearing on the parties' cross-motions for summary judgment, the district court dismissed the entire suit for lack of subject matter jurisdiction and denied the Foundation's motion for partial summary judgment. The district court reasoned that the Foundation's state law claim against Mauro was barred by the Eleventh Amendment, as interpreted in Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The district court also determined that Mauro's actions, which formed the basis of the Foundation's Sec. 1983 claim, were discretionary actions of an elected official acting under a state statute not challenged as unconstitutional. Accordingly, the district court concluded that the Eleventh Amendment barred the Foundation's Sec. 1983 claim in federal court because the claim was an action against a state official for a violation of state law and the relief requested was against the State, not Mauro. The district court further determined that the Foundation's state and federal takings claims against the State of Texas were barred by the Eleventh Amendment--specifically, under the reasoning of Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978).

Several days later, the district court issued an order modifying this dismissal. The district court explained:

... [W]hen this Court issued its Order of Dismissal, it overlooked the removed status of this litigation. Rather than dismiss for lack of jurisdiction all of plaintiff's federal and state causes of action against defendants, Garry Mauro, Commissioner of the General Land Office, and the State of Texas, it is the better judgment and the intention of the court to dismiss only those claims of plaintiff that are barred by the Eleventh Amendment of the United States Constitution. These are plaintiff's claims asserted against Commissioner Mauro and the State of Texas pursuant to 42 U.S.C.

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Sec. 1983 and the Fifth and Fourteenth Amendments.

All other claims the court remands to the 105th Judicial District Court, Kenedy County, Texas for its decision.

The district court thus dismissed both of the Foundation's federal claims, but remanded the state law claims to state court. The Foundation then filed a timely notice of appeal from the district court's order dismissing its federal claims and denying its motion for partial summary judgment. ¹

II. STANDARD OF REVIEW

Although this court has no jurisdiction to review a district court's judgment which remands a cause of action to state court for lack of subject matter jurisdiction, see 28 U.S.C. Sec. 1447(d); McDermott Int'l, Inc. v. Lloyds Underwriters of London, 944 F.2d 1199, 1201-03 (5th Cir.1991); Mitchell v. Carlson, 896 F.2d 128, 131 (5th Cir.1990), any aspect of that judgment which is distinct and separable from the remand proper may be reviewed on appeal, see City of Waco v. United States Fidelity & Guar. Co., 293 U.S. 140, 142-43, 55 S.Ct. 6, 7, 79 L.Ed. 244 (1934); Mitchell, 896 F.2d at 132; see also J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267, 271 (7th Cir.1990) (even if a district court has properly refused to exercise jurisdiction over pendent state law claims, the dismissal of federal claims giving rise to the removal is reviewable). Because the district court's dismissal of the Foundation's federal claims was separate and distinct from its remand of the Foundation's state law claims, this court has jurisdiction to review the dismissal of the Foundation's federal claims.

We review...