Robicheaux v. Caldwell

Filing 33

ORDER & REASONS denying as moot 13 Motion to Dismiss or Transfer Case for improper venue and granting 24 Motion to Dismiss for Lack of Jurisdiction based on sovereign immunity. Signed by Judge Martin L.C. Feldman on 11/26/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JONATHAN P. ROBICHEAUX

CIVIL ACTION

v.

NO. 13-5090

JAMES D. CALDWELL,
LOUISIANA ATTORNEY GENERAL

SECTION "F"

ORDER & REASONS
Before the Court are defendant's motions to dismiss for lack
of jurisdiction and to dismiss or transfer for improper venue. For
the

reasons

that

follow,

the

motion

to

dismiss

for

lack

of

jurisdiction is GRANTED, and the motion to dismiss or transfer for
improper venue is DENIED as moot.
Background
This civil rights lawsuit challenges the constitutionality of
Louisiana's ban on same-sex marriage and its unwillingness to
recognize

same-sex

marriages

entered

into

in

other

states.

Jonathan Robicheaux married his same-sex partner in Iowa, but he
lives in Orleans Parish, Louisiana.

He alleges that Louisiana's

defense of marriage amendment to the state constitution (La. Const.
art. 12, § 15) and Article 3520 of the Louisiana Civil Code (which
decrees that same-sex marriage violates Louisiana's strong public
policy and precludes recognition of any such marriage contract from

1

another state) violate his federal constitutional rights.1
Robicheaux first brought this suit alone, but has since
amended his complaint to include his partner, Derek Penton, and
another same-sex couple who were also married in Iowa, but now live
in Louisiana, Nadine and Courtney Blanchard.

The plaintiffs sued

the Louisiana Attorney General James "Buddy" Caldwell, the only
defendant in this lawsuit.

The Attorney General has filed two

motions: first, a motion to dismiss for improper venue, to transfer
for improper venue, or to transfer in the interest of justice; and
second, a motion to dismiss for lack of jurisdiction based on
Eleventh Amendment immunity.
I.
Because federal courts are courts of limited jurisdiction, the
Court first considers whether it has jurisdiction here.

Motions

filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure
allow a party to challenge the Court’s subject matter jurisdiction.
Fed. R. Civ. P. 12(b)(1).

The Attorney General challenges this

Court’s subject matter jurisdiction, invoking the doctrine of

1

In particular, Robicheaux alleges that the state's ban
on same-sex marriage and refusal to recognize the marriage contract
he entered into in Iowa:
(1) deprives him of his fundamental right to marry in violation of
the U.S. Constitution's Fourteenth Amendment Due Process Clause;
(2) deprives him of equal protection of the law in violation of the
U.S. Constitution's Fourteenth Amendment because it constitutes
discrimination on the basis of sexual orientation and/or sex; and
(3) violates the Full Faith and Credit Clause of the U.S.
Constitution.
2

sovereign immunity. The burden of proof for a Rule 12(b)(1) motion
to dismiss is on the party asserting jurisdiction.

Ramming v.

United States, 281 F.3d 158, 161 (5th Cir. 2001).
The Eleventh Amendment to the U.S. Constitution bars suits by
private citizens against a state in federal court.

K.P. v.

LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)(citing Hutto v. Finney,
437 U.S. 678, 700 (1978)).

This immunity extends to protect state

actors who are acting in their official capacities. Id.

There is,

of course, a narrow exception to this immunity from suit: the
iconic Ex parte Young exception, which “is based on the legal
fiction that a sovereign state cannot act unconstitutionally[;
t]hus, where a state actor enforces an unconstitutional law, he is
stripped of his official clothing and becomes a private person
subject to suit.”

See id. (emphasis added)(citing Ex parte Young,

209 U.S. 123 (1908)); see also Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 71 n.10 (1989)(noting “[o]f course a state
official in his or her official capacity, when sued for injunctive
relief, would be a person under § 1983 because ‘official-capacity
actions for prospective relief are not treated as actions against
the State’”).
The Ex parte Young exception applies when the plaintiff
demonstrates that the state officer has “some connection” with the
enforcement of the disputed act.

K.P., 627 F.3d at 124 (citing Ex

parte Young, 209 U.S. at 160, and noting that the purpose of the

3

connection requirement is to prevent litigants from misusing the
exception).

As the Fifth Circuit U.S. Court of Appeals has

observed:
Ex parte Young gives some guidance about the required
“connection” between a state actor and an allegedly
unconstitutional act. “The fact that the state officer,
by virtue of his office, has some connection with the
enforcement of the act, is the important and material
fact, and whether it arises out of the general law, or is
specially created by the act itself, is not material so
long as it exists.”
Id. (quoting Ex parte Young, 209 U.S. at 157).

Ex parte Young

limits the plaintiff to prospective relief, and bars money damages.
Verizon Md. Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645
(2002).

To

determine

whether

Ex

parte

Young's

mandate

is

satisfied, "a court need only conduct a straightforward inquiry
into whether [the] complaint alleges an ongoing violation of
federal

law

prospective."

and
Id.

seeks

relief

(internal

properly

quotation

characterized

marks

and

as

citations

omitted)(alteration in original).
Because plaintiffs, as the record stands, have made no effort
or attempt to seek official recognition of their same-sex marriages
by the State of Louisiana, the Attorney General submits he lacks
the requisite connection with the enforcement of the challenged
provisions that is necessary to meet the imperatives of the Ex
parte Young exception to sovereign immunity.

4

Invoking Okpalobi v.

Foster, 244 F.3d 405, 411 (5th Cir. 2001),2 Mr. Caldwell contends
that plaintiffs must allege that he has both a particular duty to
enforce the challenged provisions in question, and a demonstrated
willingness to exercise that duty. To the extent that the Attorney
General reads the scope of the Ex parte Young exception based on
the Fifth Circuit’s analysis in Okpalobi, the Court notes that the
Fifth Circuit’s discussion of sovereign immunity in Okpalobi was in
a plurality opinion. As the Fifth Circuit has observed, “[b]ecause
that part of the en banc opinion did not garner majority support,
the Eleventh Amendment analysis is not binding precedent.”

K.P.,

627 F.3d at 124 (citing United States v. Ferguson, 211 F.3d 878,
885 (5th Cir. 2000)).

Nevertheless, the plurality comments are

helpful, and are echoed in the case literature.
The Court finds that plaintiffs fall short of satisfying the
“some connection” requirement of Ex parte Young even without
Okpalobi. Plaintiffs ask the Court "to take judicial notice of the
fact that the Louisiana Attorney General is quintessentially the
official responsible for enforcing the laws of Louisiana."

The

Attorney General's sweeping responsibility to enforce the laws of
the State of Louisiana lacks the Ex parte Young specificity nexus

2

In Okpalobi, the Fifth Circuit held that to determine
whether the Ex parte Young exception applies, the Court “should
gauge (1) the ability of the official to enforce the statute at
issue under his statutory or constitutional powers, and (2) the
demonstrated willingness of the official to enforce the statute.”
244 F.3d at 417.
5

between the Attorney General and the alleged unconstitutional
provisions that is essential to defeat sovereign immunity.
Plaintiffs also cite to a pending state-court action, In re
Costanza,3 involving different plaintiffs but similar issues and
the same defendant; they argue that that case illustrates the
Attorney General's ability and demonstrated willingness to enforce
the provisions at issue here.

The Court disagrees.

Plaintiffs

contend that the Attorney General represents the State of Louisiana
as

the

defendant

demonstrate

the

in

that

Attorney

case.

General's

The

referenced

willingness

to

case

might

defend

the

provisions at issue here, but it in no way focuses or establishes
his willingness to enforce them.

See K.P., 627 F.3d at 124

(explaining that "a state actor must be connected with an act's
'enforcement' for the [Ex parte Young] exception to apply," and
that "'[e]nforcement' typically involves compulsion or constraint."
(citations omitted)).
Plaintiffs also invoke an advisory opinion by the Attorney
General, at the request of Frank Perez, General Counsel with the
Department of Health and Hospitals in Louisiana, in which the
Attorney General opined that the Full Faith and Credit Clause of
the United States Constitution does not require the Vital Records
Registrar to accept an out-of-state adoption judgment that names as

3

Plaintiffs provide neither a full citation nor a copy
of this case to the Court.
6

the adoptive parents two persons considered married in another
jurisdiction but not in Louisiana.

Notably, in reaching that

result, the Attorney General explicitly relied on La. Child. Code
arts. 1198 and 1221, not on La. Const. art. 12, § 15 or La. Civ.
Code art. 3520, the provisions at issue in this lawsuit.
Finally, plaintiffs maintain that because they seek injunctive
relief and not money damages, sovereign immunity "cannot apply."
See Will, 491 U.S. at 71 n.10.

They are wholly mistaken.

A

request for prospective relief is one requisite element, but not
itself

sufficient,

to

invoke

the

Ex

parte

Young

exception.

Verizon, 535 U.S. at 645.
Plaintiffs have failed to meet their burden of establishing
this Court's subject matter jurisdiction.
161.

Ramming, 281 F.3d at

Defendant's motion to dismiss for lack of jurisdiction based

on sovereign immunity is GRANTED. Defendant's motion to dismiss or
transfer for improper venue is DENIED as moot.

26
New Orleans, Louisiana, November ___, 2013

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

7