U.S. v. Missouri

• Decision Date: 03 August 2009
• Docket Number: No. 08-3399.,08-3399.
• Citation: 578 F.3d 722
• Parties: UNITED STATES of America, Plaintiff, State of Missouri, Plaintiff-Appellant, v. Metropolitan St. Louis Sewer District, Defendant-Appellee, MISSOURI Coalition for the Environment Foundation; Missouri Industrial Energy Consumers, Intervenors. Metropolitan St. Louis Sewer District, Counter Claimant-Appellee, v. State of Missouri, Counter Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

578 F.3d 722

UNITED STATES of America, Plaintiff, State of Missouri, Plaintiff-Appellant, v. Metropolitan St. Louis Sewer District, Defendant-Appellee, MISSOURI Coalition for the Environment Foundation; Missouri Industrial Energy Consumers, Intervenors.

Metropolitan St. Louis Sewer District, Counter Claimant-Appellee, v. State of Missouri, Counter Defendant-Appellant.

No. 08-3399.

United States Court of Appeals, Eighth Circuit.

Submitted: August 3, 2009.

Filed: August 3, 2009.

John K. McManus, AAG, argued, Matthew Barton Briesacher, AAG, Joseph P. Bendbeutel, Senior Chief Counsel, Office of Attorney General, on the brief, Jefferson City, MO, for appellant.

Thomas J. Grever, argued, Kansas City, MO, Terry J. Satterlee, David R. Erickson, Kansas City, MO, Robert F. Murray, John Gianoulakis, St. Louis, MO, on the brief, for appellee.

Before WOLLMAN, MURPHY, and JOHN R. GIBSON, Circuit Judges.

MURPHY, Circuit Judge.

The United States and the State of Missouri filed this enforcement action against the Metropolitan St. Louis Sewer District (District) under the Clean Water Act (Act), 33 U.S.C. § 1251 et seq. (2009). They seek federal civil penalties and injunctive relief to limit discharges of untreated wastewater and sewage by the District. The District raised several affirmative defenses claiming financial inability to comply with the Act's requirements and filed two counterclaims. The State then moved to strike the District's affirmative defenses and to dismiss its counterclaims, arguing that they were barred by sovereign immunity and the Eleventh Amendment. The district court¹ denied the motion and Missouri appeals, arguing that it did not waive its sovereign immunity by filing this action since the Act requires its participation. We affirm.

The District is responsible for wastewater and stormwater management for approximately 1.4 million residential and commercial users in the St. Louis, Missouri area. On June 11, 2007, the United States and Missouri filed this enforcement action under federal law, alleging that from 2000 to 2005 the District allowed discharges of raw sewage from its sewer system in violation of the permits issued by the Missouri Department of Natural Resources. The complaint alleges that these discharges resulted from inadequate flow capacity in the collection system, poor maintenance, and improper connections between the sanitary sewer and stormwater systems.

Critical to this appeal is § 309(e) of the Clean Water Act, 33 U.S.C. § 1319(e), which states:

Whenever a municipality is a party to a civil action brought by the United States under this section, the State in which such municipality is located shall be joined as a party. Such State shall be liable for payment of any judgment, or any expenses incurred as a result of complying with any judgment, entered against the municipality in such action to the extent that the laws of that state prevent the municipality from raising revenues needed to comply with such judgment.

The District argues that the Missouri Constitution limits its authority as a political subdivision to levy taxes and otherwise raise the revenues that it would need to comply with any judgment in this case. See Mo. Const. art. X, §§ 16-24. In its first counterclaim the District alleges that Missouri must indemnify it under § 309(e) for the costs of complying with any adverse judgment. The District's second counterclaim seeks essentially the same relief on equitable rather than statutory grounds.

The State moved to dismiss the District's counterclaims and strike the related affirmative defenses, arguing that both were barred by its sovereign immunity. The State contends that it did not waive its immunity by joining the federal action because it was compelled to do so by § 309(e). It pointed out that it had not added any state law claims to the complaint. The district court concluded that the State had waived its sovereign immunity by initiating the action as one of the plaintiffs and denied the motion to dismiss. A district court's decision denying sovereign immunity is immediately appealable, see Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir.1997), and our review is de novo, Skelton v. Henry, 390 F.3d 614, 617 (8th Cir.2004).

The Eleventh Amendment² provides states with immunity from suit by private citizens in federal court seeking "retroactive relief for violations of federal law that would require payment of funds from a state treasury." Id. The amendment does not automatically divest the federal court of original jurisdiction—a state must raise the defense. Wisc. Dep't of Corr. v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). Conversely, a state can waive the defense by voluntarily invoking federal jurisdiction. See Gunter v. Atl. Coast Line R. Co., 200 U.S. 273, 284, 26 S.Ct. 252, 50 L.Ed. 477 (1906); Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883).

In Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), the Supreme Court concluded that a state defendant had voluntarily invoked federal jurisdiction by participating in a removal action and therefore waived its Eleventh Amendment protection. The Court explained that the defense of sovereign immunity must be waivable in litigation because of the "judicial need to avoid inconsistency, anomaly, and unfairness" that would arise if states could selectively invoke immunity to obtain litigation advantages. Id. When determining whether a state has clearly indicated its intent to waive immunity, a court should focus on the "litigation act the State takes that creates the waiver," not its motives for those acts. Id.

In addition to joining in the removal of a case to federal court, a state can also waive its immunity by filing a federal complaint, Skelton, 390 F.3d at 618, or a proof of claim in a bankruptcy action. Ga. Dep't of Rev. v. Burke, 146 F.3d 1313, 1319-20 (11th Cir.1998). In contrast, a state does not waive its immunity by entering a general appearance or by defending a case in federal court so long as it asserts its Eleventh Amendment sovereign immunity defense in a timely manner. Union Elec. Co. v. Mo. Dep't of Conservation, 366 F.3d 655, 659-60 (8th Cir.2004). A state may even file a counterclaim and third party complaint at the same time it asserts sovereign immunity without waiving the defense. Skelton, 390 F.3d at 618.

Missouri contends that § 309(e) compels it to become a party by providing that it be joined in any action in which one of its municipalities is a party. Its decision to align as a plaintiff should therefore not be seen as a voluntary waiver of sovereign immunity. The State also argues that it has not taken any other litigation actions to date that affirmatively invoke the court's jurisdiction. The parties do not cite, and we have not found, any other decision addressing the effect of § 309(e) on a state's sovereign immunity. Section 309(e) holds the state liable if it is found that its laws impair the ability of a municipality to comply with the Clean Water Act, but it compels the state to become a party regardless of its potential liability and does not specify how a state should be aligned. In United States v. Metropolitan St. Louis Sewer District, 952 F.2d 1040, 1043-44 (8th Cir.1992), we noted that while the state may normally be named as a defendant, the statute does not require that. See also United States v. City of Joliet, No. 86-2512, 1986 WL 6908, 1986 U.S. Dist. LEXIS 24546 (N.D. Ill. June 5, 1986) (McGarr, J.) (based on its interest in enforcing clean water laws Illinois could realign as a plaintiff even though the United States joined it as a defendant).

We conclude that by choosing to proceed in this action as a plaintiff the State of Missouri waived its immunity. The filing of a complaint in a federal district court is the quintessential means of invoking its jurisdiction. There is no indication in the record that Missouri was reluctant to proceed as coplaintiff since it participated in filing the original complaint with the United States rather than being forcibly joined in the litigation at a later time. The complaint states that Missouri filed the enforcement action "at the request and on behalf of the Missouri Department of Natural Resources," the state agency responsible for enforcement of state laws that implement the Act. The asserted interest in enforcement suggests...