Vogt v. Board of Com'Rs of Orleans Levee Dist.

Decision Date14 June 2002
Docket NumberNo. 01-30728.,01-30728.
Citation294 F.3d 684
PartiesAnthony L. VOGT, et al., Plaintiffs-Appellants, v. BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT, and James Huey, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Robert Elton Arceneaux (argued), Metairie, LA, Philip A. Gettuso, Gretna, LA, for Plaintiffs-Appellants.

George L. Carmouche (argued), Baton Rouge, LA, Jeffrey Todd Nichols, Law Office of Jeffrey T. Nichols, Baton Rouge, LA, for Defendants-Appellees.

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

Before JOLLY, JONES and BARKSDALE, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In 1984, the Louisiana legislature passed an act ordering the Orleans Levee District to return land it had expropriated in 1924 to build a spillway. The levee district's board of commissioners, however, stalled the return of the property and have until this day fought not to repay mineral royalties that belong to the landowners. In this litigation, the levee district persuaded the district court to dismiss the landowners' constitutional takings claim. We reverse. The district is not immune under the Eleventh Amendment, and the landowners' pleadings state a takings claim.

I. BACKGROUND

The Orleans Levee District was created by the Louisiana legislature in 1890 for the purpose of protecting the City of New Orleans from floods. In 1924, the state legislature authorized the levee district's Board of Commissioners ("the levee board") to acquire 33,000 acres of land on the east bank of the Mississippi River about 50 miles south of New Orleans in order to build the Bohemia Spillway between the River and the Gulf of Mexico. 1924 La. Acts 99. Approximately half of this land was public property transferred from the state; the other half was either expropriated or purchased under threat of expropriation from private owners. 1928 La. Acts 246; 1942 La. Acts 311.

In 1984, the Louisiana legislature decided to return the land taken for the Bohemia Spillway. Act 233 declared

that the public and necessary purpose set forth in Act No. 99 of 1924, which may have originally supported the expropriation of property, or any right of ownership thereto, on the east bank of the Mississippi River in the parish of Plaquemines for the construction of a spillway, known as the Bohemia Spillway, has ceased to exist insofar as it ever may have affected the ownership of property, including mineral rights. The Legislature of Louisiana hereby orders the Board of Levee Commissioners of the Orleans Levee District, the board, to return the ownership of said property to the owners or their successors from whom the property was acquired by expropriation or by purchase under threat of expropriation.

1984 La. Acts 233; LA. CONST., art. VII, § 14(B). Act 233 also directed the levee board to "provide a thorough accounting... concerning all revenues received from the affected property." The Act was signed by the governor and went into effect on June 29, 1984.

The levee board was reluctant to hand over the Bohemia Spillway lands. The expropriated land had "proved to be useful for more than just a spillway," and by the mid-1980s, the levee district was receiving about $3 million a year in mineral royalties from the land the board had expropriated in 1924. Board of Levee Commissioners of the Orleans Levee Bd. v. Huls, 852 F.2d 140, 141 (5th Cir.1988). The levee board challenged the constitutionality of Act 233, but both state and federal courts rejected the argument that Act 233 was an unlawful taking of the levee district's property in violation of Article I, Section 4 of the Louisiana Constitution as well as the Fifth and Fourteenth Amendments of the United States Constitution. Board of Commissioners of the Orleans Levee Dist. v. Dep't of Natural Resources, 496 So.2d 281, 285 (La.1986); Huls, 852 F.2d at 141-43.

Following these adverse judgments, the levee board issued quitclaim deeds in 1991 and 1992, and title passed to the original landowners or their successors. However, the levee board refused to remit the mineral royalties that the levee district had received between June 1984 and the time the land was returned.

A group of 24 landowners then filed suit in state court requesting (1) a declaratory judgment confirming their ownership of the disputed mineral royalties, (2) an accounting of all mineral royalties paid to the levee board after June 29, 1984, and (3) a money judgment for the royalties that the levee board had not repaid. The Louisiana Court of Appeals held, based on the clear language of Act 233, that the levee board had no right to revenues from the expropriated property after the effective date of Act 233. Vogt v. Board of Levee Commissioners of the Orleans Levee Dist., 680 So.2d 149, 157-59 (La.App. 4 Cir.1996), writ denied, 684 So.2d 923. After an accounting, the Louisiana courts ordered the levee board to reimburse the landowners for $2,853,358.44 in unpaid mineral royalties. Vogt v. Board of Commissioners of the Orleans Levee Dist., 738 So.2d 1142 (La.App. 4 Cir.1999), writ denied, 748 So.2d 1166.

The levee board has refused to satisfy this $2.85 million judgment for unlawfully retaining the mineral royalties from 1984 to 1991-92. The landowners sought a writ of seizure, but Article 12, Section 10(C) of the Louisiana Constitution provides that property of the state, a state agency, or political subdivision is not subject to seizure. The landowners then sought a writ of mandamus, but Louisiana courts have long held that a judgment creditor may not use a writ of mandamus to force a political subdivision to appropriate funds to pay the judgment.1

The landowners filed this action in federal court, claiming that the levee board's refusal to pay the judgment is an unconstitutional taking of their property without just compensation. The levee board now asserts that it is an "arm of the state" and is thus entitled to Eleventh Amendment immunity.

The district court concluded, based on "the weight of the case law," that the levee board is an arm of the state. The court granted the levee board's Rule 12(b) motion to dismiss for lack of jurisdiction, and the landowners now appeal. The district court's determinations are reviewed de novo as questions of law, like other questions of subject matter jurisdiction. United States v. Texas Tech Univ., 171 F.3d 279, 288 (5th Cir.1999).

II. ELEVENTH AMENDMENT IMMUNITY
A

Federal court jurisdiction is limited by the Eleventh Amendment and the principle of sovereign immunity that it embodies. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252 (1996); Reickenbacker v. Foster, 274 F.3d 974, 976 (5th Cir.2001). The "ultimate guarantee of the Eleventh Amendment," as the Supreme Court recently stated, is that a non-consenting State may not be sued in federal court by private individuals, including its own citizens. Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 962, 148 L.Ed.2d 866 (2001).

Even in cases where the State itself is not a named defendant, the State's Eleventh Amendment immunity will extend to any state agency or other political entity that is deemed the "alter ego" or an "arm" of the State. Regents of the Univ. of California v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 903-04, 137 L.Ed.2d 55 (1997). In other words, the Eleventh Amendment will bar a suit if the defendant state agency is so closely connected to the State that the State itself is "the real, substantial party in interest." Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir.1999). The Eleventh Amendment will not bar a suit, though, if the political entity "possesses an identity sufficiently distinct" from that of the State. Pendergrass v. Greater New Orleans Expressway Comm'n, 144 F.3d 342, 344 (5th Cir.1998).

There is no bright-line test for determining whether a political entity is an "arm of the State" for purposes of Eleventh Amendment immunity. Instead, "the matter is determined by reasoned judgment about whether the lawsuit is one which, despite the presence of a state agency as the nominal defendant, is effectively against the sovereign state." Earles v. State Board of Certified Public Accountants of Louisiana, 139 F.3d 1033, 1037 (5th Cir.1998). In making this inquiry, this circuit traditionally has considered six factors: (1) whether state statutes and case law characterize the agency as an arm of the state; (2) the source of funds for the entity; (3) the degree of local autonomy the entity enjoys; (4) whether the entity is concerned primarily with local, as opposed to statewide, problems; (5) whether the entity has authority to sue and be sued in its own name; and (6) whether the entity has the right to hold and use property. See, e.g., Cozzo v. Tangipahoa Parish Council-President Govt., 279 F.3d 273, 281 (5th Cir.2002); Anderson v. Red River Waterway Comm'n, 231 F.3d 211, 214 (5th Cir.2000).2 "[T]he most significant factor in assessing an entity's status is whether a judgment against it will be paid with state funds." Delahoussaye v. City of New Iberia, 937 F.2d 144, 147-48 (5th Cir.1991).

B

The district court did not discuss these six factors because it concluded that prior decisions of the Fifth Circuit and Louisiana Supreme Court "expressly identified the Levee Board as an arm of the state." However, the decisions cited by the district court involved issues fundamentally different from the one presented here.3

The district courts relied in part on the Louisiana Supreme Court's decision in Board of Commissioners of the Orleans Levee Dist. v. Dep't of Natural Resources, 496 So.2d 281, 288 (La.1986)(holding that "the legislature's divestiture of levee district property does not constitute a taking of property by the state"). While this decision provides a thorough discussion of the scope of the state's police power with respect to political subdivision...

To continue reading

Request your trial
140 cases
  • Bonin v. Sabine River Auth. of Tex.
    • United States
    • U.S. District Court — Eastern District of Texas
    • 10 February 2020
    ...is "limited by the Eleventh Amendment and the principle of sovereign immunity that it embodies." Vogt v. Bd. of Comm'rs of Orleans Levee Dist. , 294 F.3d 684, 688 (5th Cir.), cert. denied , 537 U.S. 1088, 123 S.Ct. 700, 154 L.Ed.2d 632 (2002) ; see Seminole Tribe of Fla. v. Florida , 517 U.......
  • Almond v. Tarver
    • United States
    • U.S. District Court — Eastern District of Texas
    • 15 August 2006
    ...is limited by the Eleventh Amendment and the principle of sovereign immunity that it embodies." Vogt v. Board of Comm'rs of the Orleans Levee Dist., 294 F.3d 684, 688 (5th Cir.), cert. denied, 537 U.S. 1088, 123 S.Ct. 700, 154 L.Ed.2d 632 (2002); see Seminole Tribe of Fla. v. Florida, 517 U......
  • Velazquez v. City of Westwego
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • 31 March 2021
    ...ego’ or ‘arm’ of the state." Perez v. Region 20 Educ. Serv. Ctr. , 307 F.3d 318, 326 (5th Cir. 2002) (citing Vogt v. Bd. of Comm'rs , 294 F.3d 684, 688–89 (5th Cir. 2002) ). To determine whether an agency is an arm of the state, courts in the Fifth Circuit employ a six-factor test, which ex......
  • Yowman v. Jefferson County Community Supervision
    • United States
    • U.S. District Court — Eastern District of Texas
    • 28 January 2005
    ...is limited by the Eleventh Amendment and the principle of sovereign immunity that it embodies." Vogt v. Board of Comm'rs of the Orleans Levee Dist., 294 F.3d 684, 688 (5th Cir.), cert. denied, 537 U.S. 1088, 123 S.Ct. 700, 154 L.Ed.2d 632 (2002). The Eleventh Amendment to the United States ......
  • Request a trial to view additional results
2 firm's commentaries
  • Louisiana’s Sabine River Authority Not Entitled To Sovereign Immunity
    • United States
    • LexBlog United States
    • 26 May 2023
    ...(citing McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 411-12 (5th Cir. 2004)). [4] Voyt v. Board of Com’rs of Orleans Levee Dist., 294 F.3d 684, 690 n. 4 (5th Cir. 2002). [5] E.g. La. R.S. §§ 38:2324 (B)(1) and 2325(A)(5). [6] Bonin at 9. [7] Bonin at 7. [8] See Voyt v. Board of Com’rs ......
  • Louisiana's Sabine River Authority Not Entitled To Sovereign Immunity
    • United States
    • Mondaq United States
    • 2 June 2023
    ...(citing McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 411-12 (5th Cir. 2004)). 4. Voyt v. Board of Com'rs of Orleans Levee Dist., 294 F.3d 684, 690 n. 4 (5th Cir. 5. E.g. La. R.S. ' 38:2324 (B)(1) and 2325(A)(5). 6. Bonin at 9. 7. Bonin at 7. 8. See Voyt v. Board of Com'rs of Orleans Le......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT