United States Court of Appeals,
Fifth Circuit.
No. 92-7714.
The JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUNDATION, Plaintiff-Appellant,
v.
Garry MAURO, Commissioner of the General Land Office, et al., Defendants-Appellees.
May 27, 1994.
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. § 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
* Chief Judge of the Eastern District of Texas, sitting by designation.
1 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. § 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
2 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 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 § 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 § 1983 and
barred by the Eleventh Amendment.
3 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 § 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 § 1983 claim, were
discretionary actions of an elected official acting under a state
statute not challenged as unconstitutional. Accordingly, the
4 district court concluded that the Eleventh Amendment barred the
Foundation's § 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. § 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
1 The Foundation has specifically disclaimed any intent to challenge the district court's decision remanding its state law claims to state court.
5 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. § 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 the district court's dismissal of federal claims
for lack of subject matter jurisdiction de novo. In re Bradley,
989 F.2d 802, 804 (5th Cir.1993); Hobbs v. Hawkins, 968 F.2d 471,
475 (5th Cir.1992); Benton v. United States, 960 F.2d 19, 21 (5th
Cir.1992). We will not affirm the dismissal " "unless it appears
certain that the plaintiff cannot prove any set of facts in support
of [its] claim which would entitle [it] to relief.' " Hobbs, 968
F.2d at 475 (quoting Benton, 960 F.2d at 21).
6 III. DISCUSSION
The Foundation raises three arguments on appeal. First, it
contends that the district court erroneously dismissed its § 1983
claim for declaratory and prospective injunctive relief against
Mauro in his official capacity. Second, the Foundation argues that
the district court's disposition of its Fifth Amendment claim
against the State of Texas was erroneous. Although the Foundation
seemingly concedes that the Eleventh Amendment bars its assertion
of this claim in federal court, it contends that the district court
nonetheless should have remanded the claim to state court. Third,
the Foundation maintains that the district court erred in reaching
its motion for partial summary judgment. We address each of the
Foundation's claims in turn.
A. Dismissal of the Foundation's § 1983 Claim against Mauro
The Foundation asserts that the district court erred in
dismissing its § 1983 claim against Mauro for lack of subject
matter jurisdiction due to the Eleventh Amendment bar. The
Foundation asserts that in requesting declaratory and prospective
injunctive relief against Mauro—who, acting under color of state
law, allegedly deprived the Foundation of its property without due
process of law—its claim is not barred by the Eleventh Amendment.
In its amended complaint, the Foundation asserted:
This is a suit against Garry Mauro in his official capacity as Commissioner of the General Land Office under 42 U.S.C. § 1983 and the Due Process clause of the Fourteenth Amendment to the United States Constitution and under state law, for declaratory and injunctive relief to determine boundary and title to certain real property.... Specifically, Defendant Mauro has been and is currently depriving the Foundation of its real property without due process of law, in
7 violation of the Fourteenth Amendment to the United States Constitution.
The Foundation further detailed its requested relief:
The Foundation requests that this Court determine and declare that all of the Disputed Land is above the vertical elevation of mean higher high water of the Laguna Madre, that the eastern boundary of the disputed Land constitutes the eastern boundary of the Big Barreta and Little Barreta grants, and that the Foundation is the owner of the Disputed Land. Further, the Foundation requests that Defendant Mauro be permanently enjoined from exercising dominion and control over the Disputed Land and leasing any portion of the Disputed Land for oil and gas development or surface use, and be directed to amend all official "state lease tract" maps and other official maps and documents to depict the Disputed Land as privately-owned land and not as state-owned submerged land.
After evaluating the Foundation's claims against Mauro and the
ultimate relief requested, the district court concluded that "the
true nature of this action is a title dispute" between the
Foundation and the State. We agree.
The Foundation emphasized in its complaint that its suit
against Mauro was to determine boundary and title to certain real
property. For relief, the Foundation clearly requested that the
district court determine and declare that the Foundation was the
owner of the disputed land. The Foundation also requested that
Mauro be permanently enjoined from leasing any portion of it for
mineral development or surface use and that Mauro be directed to
amend all state lease tract maps and other official documents to
depict that the disputed land is "privately owned."
We read this entreaty as one that the Foundation's claim to
the disputed property be declared secured as against all the world
and that Mauro, in his capacity as Land Commissioner, officially
recognize this property as the Foundation's—in other words, that
8 the district court adjudicate title to the property. However, a
federal court does not have the power to adjudicate the State's
interest in property without the State's consent. See Florida
Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 682, 700,
102 S.Ct. 3304, 3313, 3322, 73 L.Ed.2d 1057 (1982) (plurality
opinion); id. at 703, 102 S.Ct. at 3324 (White, J., concurring,
joined by Powell, Rehnquist, and O'Connor, JJ.); see also Tindal
v. Wesley, 167 U.S. 204, 223, 17 S.Ct. 770, 777-78, 42 L.Ed. 137
(1897); United States v. Lee, 106 U.S. (16 Otto) 196, 222, 1 S.Ct.
240, 262, 27 L.Ed. 171 (1892) (explaining that the United States
could not be made a defendant to a suit concerning its property
without its consent under the doctrine of sovereign immunity). The
State of Texas has not so consented.
We also recognize that a state official, such as Mauro,
acting in his official capacity, is not a "person" under § 1983
unless the relief requested in a suit against him in this capacity
is prospective relief. Will v. Michigan Dep't of State Police, 491
U.S. 58, 71 & n. 10, 109 S.Ct. 2304, 2312 & n. 10, 105 L.Ed.2d 45
(1989); see Stem v. Ahearn, 908 F.2d 1, 4 (5th Cir.1990), cert.
denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991); see
also Howlett v. Rose, 496 U.S. 356, 365-66, 110 S.Ct. 2430, 2437,
110 L.Ed.2d 332 (1990) ("Will establishes that the State and the
arms of the State, which have traditionally enjoyed Eleventh
Amendment immunity, are not subject to suit [under § 1983] in
either federal or state court."). To provide the Foundation with
the relief it requests would necessitate a determination by the
9 district court that the State does not have title to the disputed
property, title which the State has claimed for the past century
and which was effectively adjudicated in the State in Humble Oil.
Accordingly, the relief the Foundation requests, although nominally
against Mauro, is retroactive relief against the State. See
Toledo, Peoria & Western R.R. Co. v. State of Illinois, Dep't of
Transp., 744 F.2d 1296, 1299 (7th Cir.1984), cert. denied, 470 U.S.
1051, 105 S.Ct. 1751, 84 L.Ed.2d 815 (1985) (holding that the
relief "requested by the plaintiff ordering the state to release
its interest in real property" is similar to the "retroactive"
relief barred by the Eleventh Amendment under Edelman v. Jordan,
415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and not the
"prospective" relief permitted by Quern v. Jordan, 440 U.S. 332, 99
S.Ct. 1139, 59 L.Ed.2d 358 (1979)); see also Pennhurst, 465 U.S.
at 101 n. 11, 104 S.Ct. at 908 n. 11 (" "The general rule is that
a suit is against the sovereign if "the judgment sought would
expend itself on the public treasury or domain, or interfere with
the public administration," or if the effect of the judgment would
be "to restrain the Government from acting, or to compel it to
act." ' " (quoting Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999,
1006, 10 L.Ed.2d 15 (1963) (citations omitted)).
Based on the Foundation's specific request for relief in its
complaint against Mauro in his official capacity, the district
court had proper reason to dismiss the Foundation's § 1983 claim.
See Stem, 908 F.2d at 4 (concluding that because under Will state
officials sued in their official capacities for damages are not
10 "persons" under § 1983, the court lacked subject matter
jurisdiction over the plaintiff's claim against the defendants in
their capacities as Texas state employees).
The Foundation, however, argues that despite the way it
phrased its request for relief, its § 1983 claim was not brought to
adjudicate title to the disputed property but for right to
possession of that property as against Mauro. We point out that
this case was removed to federal court in February 1990. However,
it was not until October 21, 1991—when the Foundation filed a
post-submission brief on its § 1983 claim after a hearing on the
parties' cross-motions for summary judgment—that the Foundation
first suggested that the court should recognize that its § 1983
claim was for right to possession of the disputed property as
against Mauro.2 The Foundation asserts the same on appeal. The
Foundation's argument is thus that a federal court has jurisdiction
to hear its suit for declaratory and injunctive relief against the
government official in possession of its property, i.e., Mauro, who
has "invaded and occupied" property rightfully belonging to the
Foundation.
We need not decide whether in some sense Mauro is actually "in
2 We recognize that in its reply to Mauro's response to the Foundation's partial motion for summary judgment, filed on August 30, 1991, the Foundation stated that it had asserted a valid § 1983 cause of action because "it was well established that a suit for injunctive relief to obtain possession of property wrongfully held by state officials is not barred by the Eleventh Amendment," citing Treasure Salvors and Tindal for that proposition. However, it was not until the Foundation filed its post-submission brief on October 21, 1991, that the Foundation actually asserted that its requested relief was for possession of the disputed property as against Mauro.
11 possession" of the disputed property as the Foundation contends
because in order to grant the Foundation the right to possession of
this property as against Mauro, the district court would have to
determine that title rests in the Foundation and thus adjudicate
the State's interest in the disputed property—property which the
State has "owned" for the past century. As we have already made
clear, a federal court is not empowered to adjudicate the State's
interest in property without the State's consent. See Treasure
Salvors, Inc., 458 U.S. at 682, 700, 102 S.Ct. at 3313, 3322; id.
at 703, 102 S.Ct. at 3324 (White, J., concurring, joined by Powell,
Rehnquist, and O'Connor, JJ.).
We also note that the Foundation's reliance on the Supreme
Court's decisions in Lee, Tindal, and Treasure Salvors is
misplaced. First, the Foundation fails to recognize that Larson v.
Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93
L.Ed. 1628 (1949), explicitly overruled Tindal, see Pennhurst, 465
U.S. at 110 n. 19, 104 S.Ct. at 913 n. 19, and significantly
limited Lee, see Larson, 337 U.S. at 696-97, 69 S.Ct. at 1464-65;
see also Treasure Salvors, 458 U.S. at 688-89, 102 S.Ct. at 3316-
17.
Second, Treasure Salvors speaks directly against the
Foundation's argument. In Treasure Salvors, the Court addressed
the issue of whether the district court's arrest warrant in an
admiralty in rem action, issued against two state officials who
held artifacts from an abandoned vessel found off the Florida Keys,
was barred by the Eleventh Amendment. A plurality of the Court
12 concluded that the warrant was not so barred. Id. at 699, 102
S.Ct. at 3322.
The plurality reached this conclusion by first explaining that
the warrant had issued against state officials who were in
possession of the artifacts and not the State of Florida itself.
Id. at 691, 102 S.Ct. at 3318. The plurality next noted that
although the officials claimed a state statute as authority to
possess these artifacts, the statute permitted officials to hold
artifacts which had been found on state-owned submerged land and
the artifacts in question had been found in international waters.
Id. at 695, 102 S.Ct. at 3320. Thus, the state officials were
without a colorable claim to these artifacts. Id. at 696, 102
S.Ct. at 3320. Finally, the plurality explained that because the
warrant sought possession of specific property and was not an in
personam action brought to recover damages from the State, the
warrant was permissible prospective relief. Id. at 699, 102 S.Ct.
at 3322.
However, the plurality emphasized that the warrant itself
merely secured possession of the artifacts and that its execution
did not adjudicate the State's right to them. Id. at 697, 102
S.Ct. at 3321 (citing Tindal, 167 U.S. at 223, 17 S.Ct. at 777-78).
The plurality also decided that although this court had properly
determined that the Eleventh Amendment did not bar execution of the
warrant to secure possession of the artifacts held by state
officials, we had improperly adjudicated the State's right to those
artifacts in making such a determination. Id. 458 U.S. at 700, 102
13 S.Ct. at 3322. The Court then concluded that a federal court did
not have the power to adjudicate the State's interest in the
artifacts without the State's consent. See id.
The instant case is distinguishable from Treasure Salvors in
that the defendant officials in Treasure Salvors had no colorable
claim under which they were authorized by the State to hold these
artifacts. On the other hand, the State has "owned" the property
at issue in the instant case for the past century, and title was
effectively adjudicated in the State in Humble Oil. Moreover, the
Treasure Salvors plurality determined that the warrant of arrest
issued by the district court was permissible prospective relief
because it sought only possession of the property from the
defendant officials and was not an in personam action to recover
damages against the State. The relief the Foundation requests in
the instant case, even if it is "possession" as against Mauro, can
only be granted if the district court orders the State to
relinquish its interest in the disputed property. Such relief
would be the equivalent of recovering damages from the State.
Despite its contention that its § 1983 suit is only for
declaratory and prospective injunctive relief against Mauro in his
official capacity, the relief sought by the Foundation—no matter
how its request for relief is phrased—would operate against the
State. Hence, the State of Texas, not Mauro, is the real,
substantial party in interest. We therefore conclude that the
Foundation's § 1983 claim is barred by the Eleventh Amendment, and
the district court did not err in determining that the court did
14 not have the power to entertain the claim.
B. Disposition of the Fifth Amendment and § 1983 Claims
The Foundation also argues that the district court should
have remanded its federal claims to state court. We disagree.
The district court properly concluded that it did not have
subject matter jurisdiction over the Foundation's § 1983 claim.
See supra Part III.A. The court also correctly determined that the
Foundation's Fifth Amendment inverse condemnation claim brought
directly against the State of Texas is also barred by the Eleventh
Amendment. See Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057,
3057-58, 57 L.Ed.2d 1114 (1978) (reaffirming the rule set forth in
Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890),
that a citizen cannot sue a state in federal court, even if only
prospective injunctive relief is being sought, without the state's
consent).
The Foundation acknowledges on appeal that its state and
federal claims were not "separate and independent" and that it had
alleged only a "single underlying wrong" from these claims. It
also recognizes that the Supreme Court's decision in Carnegie-
Mellon University v. Cohill, 484 U.S. 343, 353-55 & n. 11, 108
S.Ct. 614, 620-22 & n. 11, 98 L.Ed.2d 720 (1988), makes it clear
that the remand provision of 28 U.S.C. § 1441(c) does not apply in
such a situation. Yet, the Foundation invites this court to
determine that § 1441(c) is applicable in the instant case because
"it makes no sense for a district court to possess discretion to
remand all claims if the state and federal claims are " "separate
15 and independent,' " i.e., under § 1441(c), "but to have no such
discretion if the claims are related." The Foundation thus invites
us to recognize a new remand authority available to the district
court. We decline the invitation and determine that the district
court did not err by dismissing the Foundation's federal claims.3
C. Denial of Summary Judgment
Finally, the Foundation contends that the district court
erred in denying its motion for partial summary judgment after the
court had concluded that it lacked subject matter jurisdiction. We
agree.
"Unless a federal court possesses subject matter jurisdiction
over a dispute, ... any order it makes (other than an order of
dismissal or remand) is void." Shirley v. Maxicare Texas, Inc.,
921 F.2d 565, 568 (5th Cir.1991). Hence, that portion of the
district court's judgment denying the Foundation's motion for
partial summary judgment should be vacated.
IV. CONCLUSION
For the foregoing reasons, we conclude that the district court
did not err in dismissing the Foundation's § 1983 claim against
Mauro and its Fifth Amendment claim against the State of Texas.
However, the district court erred in denying the Foundation's
motion for partial summary judgment. We therefore AFFIRM the
district court's judgment of dismissal and VACATE that portion of
3 We express no opinion on the applicability of 28 U.S.C. § 1447(c) to the instant case. The Foundation has not argued or briefed this issue on appeal, see FED.R.APP.P. 28(a)(5), and in fact has asserted that "no statute expressly says that the Foundation's federal claims may be returned to state court."
16 the district court's judgment denying the Foundation's motion for
partial summary judgment. Costs shall be borne by the Foundation.