Union Pacific R.R. Co. v. Louisiana Pub. Serv. Comm'n

Decision Date03 November 2011
Docket NumberNo. 10–31241.,10–31241.
PartiesUNION PACIFIC RAILROAD COMPANY, Plaintiff–Appellant, v. LOUISIANA PUBLIC SERVICE COMMISSION; Eric Skrmetta, In his capacity as Commissioner; James M. Field, In his capacity as Commissioner; Lambert C. Boissiere, III, In his capacity as Commissioner; Clyde C. Holloway, In his capacity as Commissioner; Foster L. Campbell, In his capacity as Commissioner; State of Louisiana, Defendants–Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

OPINION TEXT STARTS HERE

Richard P. Bress (argued), Maureen E. Mahoney, Latham & Watkins, L.L.P., Washington, DC, William Hector Howard, III, Alissa Jean Allison, Kathlyn Gloria Perez, Paul Lee Peyronnin, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., New Orleans, LA, for PlaintiffAppellant.

Stuart Kyle Duncan, Asst. Atty. Gen., Ryan Michael Seidemann, Louisiana Dept. of Justice, Ross Warren Bergethon (argued), Asst. Atty. Gen., Eve Kahao Gonzalez, Louisiana Pub. Serv. Com'n, Baton Rouge, LA, for DefendantsAppellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:

In this case, PlaintiffAppellant Union Pacific Railroad Company (Union Pacific) appeals the district court's grant of summary judgment in favor of DefendantsAppellees Louisiana Public Service Commission, Eric Skrmetta, James M. Field, Lambert C. Boissiere, III, Clyde C. Holloway, Foster L. Campbell, and the State of Louisiana (collectively “the State of Louisiana or the State). We conclude that the State of Louisiana is entitled to immunity and REMAND to the district court with instructions to dismiss.

I. Factual and Procedural Background

In 2008, the Louisiana Legislature passed Act No. 530, codified at Louisiana Revised Statutes Section 48:394, which requires that all railroad companies obtain permission from the Louisiana Public Service Commission (LPSC) before closing or removing private railroad crossings. La.Rev.Stat. § 48:394. During the pendency of this litigation, in 2010, the Louisiana Legislature adopted Act 858, amending Section 48:394 in light of our decision in Franks Investment Co. v. Union Pacific Railroad Co., 593 F.3d 404 (5th Cir.2010) (en banc).

As amended, Section 48:394 sets forth a procedure that railroads must follow when closing private railway crossings. Under this Section, if a railroad wants to close a private crossing, it must provide a written request to the LPSC and the owner(s) of the crossing. La.Rev.Stat. § 48:394(A)(1). In the request, the railroad company must “state the manner in which [the] private railroad crossing unreasonably burdens or substantially interferes with rail transportation.” La.Rev.Stat. § 48:394(A). Upon publication of this written request, the LPSC must then hold a public hearing, after which it determines whether the crossing may be closed. La.Rev.Stat. § 48:394(A)(C). 1

On June 25, 2009, PlaintiffAppellant Union Pacific filed the instant action against the LPSC and its commissioners in their official capacity, seeking a declaration that Section 48:394 is preempted by federal law, and both preliminary and permanent injunctions against the enforcement of that Section. On July 7, 2010, the district court denied a motion for summary judgment filed by Union Pacific, ruling that Section 48:394 was not preempted by federal law. Then, on July 30, 2010, after Section 48:394 was amended by the Louisiana Legislature, Union Pacific filed a second amended complaint, adding the State of Louisiana as a defendant and asserting additional claims under both the federal and Louisiana constitutions. The State did not assert an Eleventh Amendment immunity defense in the district court. On November 18, 2010, the district court granted a motion for summary judgment filed by the State, dismissing all of Union Pacific's claims. In reaching this judgment, the district court ruled that Section 48:394 is constitutional under both Louisiana and federal law, and it also ruled that the Section is not preempted by federal law.

On December 17, 2010, Union Pacific filed a notice of appeal, appealing only the district court's ruling that Section 48:394 does not authorize an unconstitutional taking in violation of Article I, Section 4(B)(1) of the Louisiana Constitution. Specifically, Union Pacific argues that Section 48:394 takes property without a public purpose because it interferes with the fundamental property right of exclusion. In response, the State of Louisiana, for the first time on appeal, asserts that it is entitled to Eleventh Amendment immunity and argues that this action should be dismissed for lack of subject matter jurisdiction.2

II. Standard of Review

We review a district court's grant of summary judgment de novo. Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir.2010); Fed.R.Civ.P. 56(a). We also review issues of law, such as whether a state is entitled to sovereign immunity, de novo. Hale v. King, 642 F.3d 492, 497 (5th Cir.2011).

III. Analysis

In resolving this appeal, the Court must first determine whether the State of Louisiana is entitled to immunity from suit, even though it litigated this action on the merits before the district court and did not raise Eleventh Amendment immunity until appeal. United States v. Tex. Tech Univ., 171 F.3d 279, 285–86 (5th Cir.1999) (stating that Eleventh Amendment immunity must be resolved prior to reaching merits). We conclude that the State did not unequivocally waive its immunity and that this appeal must, therefore, be dismissed.3

“The Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States, and by its own citizens as well.” Lapides v. Bd. of Regents, 535 U.S. 613, 616, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (citation omitted); see also Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240–41 (5th Cir.2005).4 The state sovereign immunity doctrine is unique because it acts as an affirmative defense, while also containing traits more akin to a limitation on subject-matter jurisdiction. See, e.g., Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 237–38 (2d Cir.2006) (describing the underlying tension in Supreme Court jurisprudence in this area). For example, Eleventh Amendment immunity operates like a jurisdictional bar, depriving federal courts of the power to adjudicate suits against a state. Cozzo v. Tangipahoa Parish Council–President Gov't, 279 F.3d 273, 280 (5th Cir.2002); Skelton v. Camp, 234 F.3d 292, 295–96 (5th Cir.2000). Unlike subject matter jurisdiction, however, this immunity may be waived by the state, like an affirmative defense. Lapides, 535 U.S. at 618, 122 S.Ct. 1640; Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (“The [Eleventh] Amendment, in other words, enacts a sovereign immunity from suit, rather than a nonwaivable limit on [federal] subject-matter jurisdiction. The immunity is one the States enjoy save where there has been a surrender of this immunity ....” (internal quotation marks and citation omitted)).

As noted, a state's immunity from suit is not absolute, and the Supreme Court has recognized a handful of circumstances in which an individual may sue a state in federal court. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). First, Eleventh Amendment immunity may be abrogated by Congress as a means of enforcing the Fourteenth Amendment. Id. Second, a state may waive its immunity by voluntarily consenting to suit. Id.; Benzing, 410 F.3d at 241.5 In this second situation, waiver is present if the state voluntarily invokes federal-court jurisdiction or if it makes a “clear declaration” that it intends to submit to federal jurisdiction. Coll. Sav. Bank, 527 U.S. at 675–76, 119 S.Ct. 2219.

At issue on this appeal is the second exception—specifically, whether the State of Louisiana waived its Eleventh Amendment immunity by not raising it as a defense in the district court. In Benzing, we analyzed whether the removal by a state of federal claims to federal court constitutes a voluntary waiver of sovereign immunity. 410 F.3d at 242–50. Relying upon the Supreme Court's decision in Lapides, we noted that the central inquiry in determining a waiver of Eleventh Amendment immunity was whether the state's litigation conduct constituted a voluntary invocation of federal jurisdiction. In that case we found that removal by the state was a voluntary invocation of federal jurisdiction and was thus a waiver of immunity. In reaching that decision, we also noted that this “voluntary invocation principle” should apply “generally in all cases,” and not just in cases where a state removes to federal court. Id. at 249; see also Lapides, 535 U.S. at 619–24, 122 S.Ct. 1640; Bd. of Regents of Univ. of Wis. Sys. v. Phx. Intern. Software, Inc., 653 F.3d 448, 461–62 (7th Cir.2011) (citing Benzing and stating that the voluntary invocation principle should apply in all cases of waiver through litigation conduct). Thus, here, the relevant inquiry is whether the State of Louisiana voluntarily invoked or submitted to federal jurisdiction through its conduct in the district court.

Under the facts of this case—where the State of Louisiana was involuntarily haled into federal court as a defendantwe conclude that there was never a voluntary invocation of or unequivocal submission to federal jurisdiction. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (stating that an “unequivocal indication” is generally required before a waiver of immunity will be found). While the State may have defended on the merits below, it never chose to litigate this suit in a federal forum. See Phx. Intern. Software, 653 F.3d at 462 (stating that the crucial consideration is the “voluntariness of the state's choice of forum”); Union Elec. Co. v. Mo. Dep't of...

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