Mancuso v. New York State Thruway Authority

• Decision Date: 13 June 1996
• Docket Number: D,No. 524,524
• Citation: 86 F.3d 289
• Parties: Frank MANCUSO; Ellen Mancuso, individually and on behalf of their children, Deanna and Theresa Mancuso; and F. Mancuso Boat Yard, Inc., doing business as Echo Bay Marina, Plaintiffs-Appellees, v. NEW YORK STATE THRUWAY AUTHORITY, Defendant-Appellant, The City of New Rochelle, Defendant. ocket 95-7443.
• Court: U.S. Court of Appeals — Second Circuit

Page 289

86 F.3d 289

42 ERC 1961

Frank MANCUSO; Ellen Mancuso, individually and on behalf of their children, Deanna and Theresa Mancuso; and F. Mancuso Boat Yard, Inc., doing business as Echo Bay Marina Plaintiffs-Appellees, v. NEW YORK STATE THRUWAY AUTHORITY, Defendant-Appellant The City of New Rochelle, Defendant.

No. 524, Docket 95-7443.

United States Court of Appeals Second Circuit.

Argued Nov. 16, 1995.

Decided June 13, 1996.

John A. Tartaglia, White Plains, NY, for Plaintiffs-Appellees.

John J. Sipos, New York City (Dennis C. Vacco, Attorney General of the State of New York, John H. Carley, Gordon J. Johnson, Elizabeth A. Grisaru, New York City, on the brief), for Defendant-Appellant.

Before OAKES, MAHONEY, and WALKER, Circuit Judges.

WALKER, Circuit Judge:

This appeal raises the question of whether defendant New York State Thruway Authority (the "Thruway Authority") is immune from suit in federal court under the Eleventh Amendment. The district court, in a memorandum and order, held that the Thruway Authority was not immune and denied its motion for summary judgment. See Mancuso v. New York State Thruway Auth., 909 F.Supp. 133 (S.D.N.Y.1995). The Thruway Authority now appeals, arguing that it is entitled to Eleventh Amendment immunity under the "arm-of-the-state" doctrine. The Thruway Authority also raises several arguments based on state law, including a defense that the plaintiffs' state law causes of action are barred by New York principles of sovereign immunity.

BACKGROUND

This dispute arises out of the Thruway Authority's ownership and use of the North Avenue Drain, a storm sewer that empties into Echo Bay in New Rochelle, New York. The plaintiffs (the "Mancusos") brought this action against the Thruway Authority and the City of New Rochelle, alleging that the defendants have violated the Clean Water Act, 33 U.S.C. § 1251 et seq., by discharging pollutants into Echo Bay through the North Avenue Drain. In addition, the plaintiffs asserted state-law causes of action for gross negligence, nuisance, strict liability, trespass and battery.

In May 1994, the defendants moved for summary judgment. The Thruway Authority argued that it was entitled to Eleventh Amendment immunity under the arm-of-the-state doctrine. The Thruway Authority and the City of New Rochelle both also contended that any discharge from the North Avenue Drain had been exempted from the Clean Water Act's permit requirements and that the district court lacked subject matter jurisdiction over the Mancusos' claims. The district court denied both motions.

On appeal, the Thruway Authority urges its Eleventh Amendment immunity defense. In addition, the Thruway Authority argues that it is entitled to sovereign immunity because the plaintiffs failed to give proper notice of this suit to the New York Attorney General. We affirm the district court's rejection of the Eleventh Amendment and state sovereign immunity arguments. The Thruway Authority also raises several other defenses or limitations as to the Mancusos' state law causes of action, which are not reviewable at this stage of the litigation.

DISCUSSION

I. Appellate Subject Matter Jurisdiction

A federal court of appeals generally only has jurisdiction to hear appeals from those "final decisions of the district courts" that terminate an action. 28 U.S.C. § 1291. In some cases, however, the courts of appeals may hear appeals prior to the termination of an action. See, e.g., 28 U.S.C. § 1292. The Supreme Court, in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), clarified that the courts of appeals also have jurisdiction under § 1291 to hear appeals from that small class of district court orders that "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."

The district court's memorandum and order is not a final decision that terminates the plaintiffs' action against the defendants, Cohen, 337 U.S. at 545-46, 69 S.Ct. at 1225-26, nor are we granted jurisdiction to hear an appeal from that order under any of the statutory exceptions, see 28 U.S.C. § 1292. Nonetheless, we have jurisdiction to hear an immediate appeal from the portion of the district court's order that denies the Thruway Authority's Eleventh Amendment claim of immunity because it falls squarely within Cohen 's collateral order exception. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 687, 121 L.Ed.2d 605 (1993); Komlosi v. New York State Office of Mental Retardation & Developmental Disabilities, 64 F.3d 810, 815 (2d Cir.1995).

Furthermore, we also have jurisdiction to hear the Thruway Authority's argument that it is immune from the state law causes of action under New York law. In Napolitano v. Flynn, 949 F.2d 617, 621 (2d Cir.1991), we held that we had jurisdiction to hear the appeal of several police officers who contended that they were immune from the plaintiff's state law causes of action under the Vermont law doctrine of qualified immunity. We reasoned that because the state law claim of qualified immunity, like its federal counterpart, was not "simply a defense to substantive liability," but was "an immunity from suit," it fell within the Cohen exception. Id. Here, the Thruway Authority argues that the Mancusos may not sue it because they failed to serve a copy of the complaint on the New York Attorney General, as required by § 11(a) of the New York Court of Claims Act. We find that we have jurisdiction to hear this argument because it is both "separate from the merits of the plaintiff[s'] action" and, if meritorious, would entitle the Thruway Authority not to be subject to suit. Napolitano, 949 F.2d at 621; see Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721, 722-23, 551 N.Y.S.2d 188, 550 N.E.2d 441 (1989); see also Blue v. Koren, 72 F.3d 1075, 1080 n. 1 (2d Cir.1995) (order denying qualified immunity defense as a matter of law immediately appealable); Rodriguez v. Phillips, 66 F.3d 470, 475 (2d Cir.1995) (same); Hill v. City of New York, 45 F.3d 653, 659-60 (2d Cir.1995) (same).

We do not have jurisdiction, however, over the Thruway Authority's other defenses or limitations under state law to the Mancusos' action that (1) the Thruway Authority cannot be liable for punitive damages, (2) it may not be subject to an injunction, and (3) it cannot be subject to trial by jury. Although these arguments may be separate from the merits of this action, the district court's failure to grant the Thruway Authority's motion for summary judgment on any of these grounds is not a decision that is "effectively unreviewable if an appeal has to await a final judgment." Napolitano, 949 F.2d at 621. If the The Thruway Authority contends that we still may reach these issues under the doctrine of pendent appellate jurisdiction. The Supreme Court, however, has recently made clear that pendent appellate jurisdiction should be exercised sparingly, if ever, by the courts of appeals. In Swint v. Chambers County Commission, --- U.S. ----, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), the plaintiff brought suit against a county under 42 U.S.C. § 1983 and the county sought summary judgment on the ground that none of the individuals involved was a policy maker and hence the county was not liable under Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). The district court denied the county's motion, but the Eleventh Circuit, exercising pendent appellate jurisdiction, reversed. The Supreme Court vacated the Eleventh Circuit's decision on the ground that the court of appeals lacked jurisdiction over the county's claim. Swint, --- U.S. at ---- - ----, 115 S.Ct. at 1208-12. Although the Court refused to decide when, if ever, pendent appellate jurisdiction is appropriate, it did state that there was no jurisdiction in Swint because the county's claim was not "inextricably intertwined" with the other issues, nor was it "necessary to ensure meaningful review" of those issues. Id. at ----, 115 S.Ct. at 1212. In this case, the Thruway Authority's additional state law defenses are neither inextricably intertwined with, nor necessary to the resolution of, its immunity claims. Therefore, we refuse to exercise pendent appellate jurisdiction over those issues.

                district court fails to uphold these defenses in favor of the Thruway Authority and is in error in doing so, the district court's decision is eminently reviewable:  we will be able to order a bench trial or to strike that part of a judgment ordering an injunction or awarding punitive damages.   If review occurs in the normal course, no unremediable harm will befall the Thruway Authority.   Accordingly, we do not have jurisdiction to adjudicate these defenses under the collateral order doctrine
                

II. Eleventh Amendment

The Eleventh Amendment to the Constitution provides: "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. Although the text of the amendment speaks only of suits against a state by persons who are not citizens of that state, the Supreme Court has interpreted the Eleventh Amendment to extend to suits by all persons against a state in federal court. Thus, in Hans v. Louisiana, 134 U.S. 1, 10-11, 10 S.Ct. 504, 505-06, 33 L.Ed. 842 (1890), the Court rejected the idea that the Eleventh Amendment allowed states, without their consent, to be sued by their own citizens in federal court. The Court noted that such a reading of the Eleventh Amendment would create an "anomalous result" that would be "no...