Broome v. United States Army Corps of Engineers et al

Filing 45

ORDER & REASONS: granting 30 Defendants State of Louisiana and the Coastal Protection and Restoration Authority of Louisianas Motion to Dismiss for Lack of Subject-Matter Jurisdiction; Plaintiff's claims against the State of Louisiana and the CPRA are DISMISSED. FURTHER ORDERED that Plaintiff's Motion to Continue Submission Date (Rec. Doc. 41) is DENIED as moot. Signed by Judge Carl Barbier on 5/26/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BROOME

CIVIL ACTION

VERSUS

NO: 14-2413

UNITED STATES ARMY CORPS
OF ENGINEERS ET AL.

SECTION: “J” (1)

ORDER & REASONS
Before

the

Court

is

Defendants

State

of

Louisiana

(Louisiana) and the Coastal Protection and Restoration Authority
of Louisiana (CPRA)’s Motion to Dismiss for Lack of SubjectMatter Jurisdiction (Rec. Doc. 30) as well as Plaintiff Terrance
Broome’s opposition thereto. (Rec. Doc. 37) Having considered
the motion and memoranda of the parties, the record, and the
applicable

law,

the

Court

finds

that

the

motion

should

be

GRANTED for the reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
This action derives from servitudes that the United States
Army Corps of Engineers (Corps) obtained over Plaintiff’s land,
for which Plaintiff alleges he did not receive compensation.
(Rec.

Doc.

Jefferson

1)

Parish

Plaintiff
from

the

purchased
Parish

of

immovable
Jefferson

property
on

January

in
5,

2009, for $9,000. Id. at 3; (Rec. Doc. 30-1, p. 2). In April
2010, the Corps began a project aimed at strengthening the west
bank levees of the Harvey Canal in Jefferson Parish as part of

the

New

Orleans

Hurricane

and

Storm

Damage

Risk

Reduction

System. (Rec. Doc. 30-1, p. 2) To complete the project, the
Corps determined that it was necessary to acquire servitudes
over

Plaintiff’s

lot.

Id.

There

is

dispute

as

to

whether

Plaintiff was compensated for the resulting taking. 1 See (Rec.
Doc. 1; Rec. Doc. 30-1, p. 2; Rec. Doc. 30-3, pp. 1-2).
On October 21, 2014, Plaintiff filed suit for an alleged
uncompensated
Doc.

1)

and,

Plaintiff

therefore,
named

as

unconstitutional
Defendants

the

taking.

Corps,

(Rec.

Jefferson

Parish, Southeast Louisiana Flood Protection, Coastal Protection
and

Restoration

Authority

of

Louisiana,

West

Jefferson

Levee

District, Entergy Gulf States Louisiana, LLC, and the State of
Louisiana. 2 Id. at 2-3. Plaintiff asserts that this Court has
jurisdiction over his claims pursuant to 42 U.S.C. § 1983 and 28
U.S.C. § 1367. Id. at 2. Plaintiff seeks monetary relief in the
form of “compensation for the appropriation of [his] land” as
well as the costs of soil, foundation, and levee restoration.
Id. at 6. Plaintiff also seeks injunctive relief in the form of
an

order

“enjoin[ing]

the

defendants

from

further

occupying,

construction and taking of [his] property.” Id. at 7.

1

Plaintiff alleges that he was not compensated for the taking. (Rec. Doc. 1)
Included with Louisiana and CPRA’s motion, however, is a purported
acknowledgement of receipt of a check in the amount $19,980.00, which appears
to have been signed by Plaintiff (Rec. Doc. 30-3, p. 1), as well as a copy of
the check. (Rec. Doc. 30-3, p. 2)
2
Some Defendants received service as late as April 2015. See, e.g., (Rec.
Doc. 33).

2

On April 28, 2015, Defendants Louisiana and CPRA filed the
instant

Motion

to

Dismiss

for

Lack

of

Subject-Matter

Jurisdiction. (Rec. Doc. 30) In the motion, Louisiana and CPRA
seek to have the Court dismiss them from Plaintiff’s lawsuit,
because

according

subject-matter

to

Louisiana

jurisdiction

to

and

CPRA,

adjudicate

the

Court

Plaintiff’s

lacks
claims

against them. Id. at 1. Plaintiff opposed the motion on May 12,
2015. (Rec. Doc. 37)
LEGAL STANDARD
In deciding a motion to dismiss for lack of subject matter
jurisdiction

under

Federal

Rule

of

Civil

Procedure

12(b)(1),

“the district court is ‘free to weigh the evidence and resolve
factual disputes in order to satisfy itself that it has the
power to hear the case.’” Krim v. pcOrder.com, Inc., 402 F.3d
489, 494 (5th Cir. 2005). The party asserting jurisdiction must
carry the burden of proof for a Rule 12(b)(1) motion to dismiss.
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762
(5th Cir. 2011). The standard of review for a motion to dismiss
under Rule 12(b)(1) is the same as that for a motion to dismiss
pursuant to Rule 12(b)(6). United States v. City of New Orleans,
No. 02-3618, 2003 WL 22208578, at *1 (E.D. La. Sept. 19, 2003).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

3

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. A
court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. Lormand v.
U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not,
however, bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678.
PARTIES’ ARGUMENTS AND DISCUSSION
Defendants Louisiana and CPRA argue that this Court should
dismiss Plaintiff's claims pursuant to Federal Rule of Civil
Procedure Rule 12(b)(1) for lack of subject matter jurisdiction
because they are entitled to Eleventh Amendment immunity. (Rec.
Doc.

30)

Plaintiff

counter

argues

that

the

Court

has

jurisdiction over his claims against Louisiana and CPRA because
his lawsuit presents a federal question and Louisiana and CPRA’s
violations

of

Plaintiff’s

Fifth

Amendment

rights

are

so

intertwined with the Corps’ actions that the Court may exercise
supplemental jurisdiction over them. (Rec. Doc. 37) The Court

4

therefore must address the availability of Eleventh Amendment
immunity to Defendants Louisiana and CPRA. 3
The Eleventh Amendment to the United States Constitution
reads, "The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted

against

one

of

the

United

States

by

Citizens

of

another State, or by Citizens or Subjects of any Foreign State.”
U.S. CONST. amend. XI. The Eleventh Amendment encompasses both
suits brought against a state by citizens of another state and
suits brought against a state by citizens of that state. See
Hans v. Louisiana, 134 U.S. 1 (1890). Furthermore, the Eleventh
Amendment bars citizens of that state or of another state from
bringing suit against the State in federal court, unless the
State

has

waived

its

Cozzo

v.

immunity.

immunity

or

Congress

Tangipahoa

Parish

has

abrogated

its

Council-President

Government, 279 F.3d 273, 280-81 (5th Cir. 2002). Pursuant to Ex
Parte Young, however, plaintiffs may pursue claims against state
officials in their official capacities to force compliance with
the Constitution and federal law. Fairley v. Stalder, 294 Fed.
Appx. 805, 812 (5th Cir. 2008)(citing Ex Parte Young, 209 U.S.
123 (1908)).

3

It seems that Plaintiff is conflating the issue of whether the Court has
jurisdiction over the types of claims that he is asserting with whether the
Court has jurisdiction to consider those claims against Louisiana and CPRA.

5

In addition, “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.” Vogt v. Bd. of Comm'rs of
Orleans

Levee

Dist.,

294

F.3d

684,

688-89

(5th

Cir.

2002)

(citing Regents of the Univ. of California v. Doe, 519 U.S. 425,
429 (1997)). Therefore, a suit in which the state or one of its
agencies or departments is named as the defendant is generally
proscribed by the Eleventh Amendment. Hall v. Louisiana, 974 F.
Supp. 2d 964, 972 (M.D. La. 2013) (citing Lewis v. Univ. of Tex.
Med. Branch at Galveston, 665 F.3d 625, 630 (5th Cir. 2011)).
Although

there

constitutes
typically

is

“an

no

arm”

looked

to

bright-line
of

the

the

rule

State,

following

for

the

six

determining

Fifth

factors:

Circuit
“(1)

what
has

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
entity

of
is

local

autonomy

concerned

the

entity

primarily

enjoys;

(4)

whether

the

local,

as

opposed

to

with

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." Vogt, 294 F.3d at 689. The most
significant

or

persuasive

factor

when

assessing

an

entity's

status is whether a judgment against that entity will be paid
with

state

funds.

Id.

(citing

Delahoussaye

Iberia, 937 F.2d 144, 147-48 (5th Cir. 1991)).

6

v.

City

of

New

First, the Court finds that both Louisiana and CPRA are
entitled to Eleventh Amendment immunity provided an exception
does not apply. The CPRA is “body corporate” that constitutes
part of the executive branch of the State of Louisiana. See LA.
REV. STAT. § 214.6.1(A). The Coastal Protection and Restoration
Fund

was

established

in

the

state

treasury

to

provide

the

revenue necessary for the CPRA and its Board. LA. REV. STAT. §
214.5.4. The Fund derives from mineral revenues received by the
state as well as federal funding arising from Outer Continental
Shelf oil and gas activity. LA. REV. STAT. § 214.5.4. Louisiana
Revised Statute Section 36:4 places the CPRA “within the office
of

the

governor.”

LA.

REV.

STAT.

§

36:4(Z).

The

CPRA

Board

similarly resides “within the office of the governor.” LA. REV.
STAT. § 214.5.1(A). The governor appoints the executive director
of the CPRA, who “serve[s] at the pleasure of the governor.” LA.
REV. STAT. § 214.6.1(B)(2). The CPRA Board is composed of the
heads of a few of the governor’s offices, secretaries of various
state

departments,

seven

members

certain

appointed

by

legislative
the

representatives,

governor.

LA .

REV.

STAT.

and
§

214.5.1(B). In legal matters, the CPRA Board is represented by
the Louisiana attorney general “or his designee.” LA. REV. STAT. §
214.5.7. Although the name suggests that entity is concerned
only

with

coastal

areas,

in

reality

the

CPRA

engages

in

activities “[f]or the benefit and protection of the state as a

7

whole.” LA. REV. STAT. § 214.1. The CPRA can sue and be sued and
may hold and use property. LA. REV. STAT. § 214.6.1(A). The CPRA
therefore seems to be funded through the state treasury, lack
great local autonomy, be concerned with statewide problems, and
a judgment against the CPRA likely would be paid by state funds.
Thus, the Court concludes that the CPRA, in addition to the
State of Louisiana, is entitled to Eleventh Amendment immunity.
See In re Manson Constr. Co., 883 F. Supp. 2d 659, 666 (E.D. La.
2012)(Zainey, J.)(referring to the Office of Coastal Protection
and Restoration as a subordinate state agency).
Next,

the

Court

finds

that

none

of

the

“exceptions”

abrogating the state’s Eleventh Amendment immunity apply here.
Louisiana

has

not

waived

its

sovereign

immunity

for

suits

brought against the state in federal court. See LA. REV. STAT. ANN.
§ 13:5106 (“[N]o suit against the state shall be instituted in
any court other than a Louisiana state court.”); Cozzo, 279 F.3d
at 281. Nor did Congress abrogate the States’ Eleventh Amendment
immunity in enacting 42 U.S.C. § 1983. Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 66 (1989)(citing Quern v. Jordan, 440
U.S. 332, 350 (1979)). Finally, the doctrine of Ex parte Young
does not apply in this case. See Cox v. Texas, 354 Fed. App’x
901, 902 (5th Cir. 2009). The Court therefore concludes that it
lacks

jurisdiction

to

consider

Louisiana and the CPRA.

8

Plaintiff’s

claims

against

Accordingly,
IT IS HEREBY ORDERED that Louisiana and CPRA’s Motion to
Dismiss for Lack of Subject-Matter Jurisdiction (Rec. Doc. 30)
is GRANTED. Plaintiff’s claims against the State of Louisiana
and the CPRA are DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Continue
Submission Date (Rec. Doc. 41) is DENIED as moot.
New Orleans, Louisiana this 26th day of May, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

9