Valdery v. Louisiana Workforce Commission et al

Filing 7

ORDER AND REASONS granting 5 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge Sarah S. Vance on 9/10/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GISELLE VALDERY

CIVIL ACTION

VERSUS

NO: 15-01547

SECTION: R(5)
LOUISIANA WORKFORCE
COMMISSION, and
PENELOPE PALERMO
ORDER AND REASONS
Defendants Louisiana Workforce Commission and Penelope Palermo,
move to dismiss plaintiff’s complaint under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Because the Eleventh Amendment bars plaintiff’s suit,
the Court grants the motion.

I.

BACKGROUND
On May 7, 2015, pro se plaintiff Giselle Valdery sued the Louisiana

Workforce Commission and Penelope Palermo, a former Administrative Law
Judge for the Commission’s Office of Unemployment Administration.1
Valdery alleges that defendants unlawfully denied her unemployment benefits
because the Commission determined that it had overpaid her.2 Valdery further
alleges that defendants unlawfully denied her appeal of the Commission’s

1

R. Doc. 1.

2

Id. at 1.

decision.3 Valdery seeks to recover all unemployment benefits withheld from
her, as well as damages for her alleged emotional distress.4
On June 25, 2015, defendants moved to dismiss Valdery’s complaint for
lack of jurisdiction under Rule 12(b)(1), and for failure to state a claim under
Rule 12(b)(6).5

Among other arguments, defendants contend that the

Eleventh Amendment bars this suit.6 Valdery does not oppose the motion.

II.

LEGAL STANDARD
Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject

matter jurisdiction when the court lacks the statutory or constitutional power
to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6
Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). In ruling on a Rule 12(b)(1)
motion to dismiss, the Court may rely on (1) the complaint alone, presuming
the allegations to be true; (2) the complaint supplemented by undisputed
facts; or (3) the complaint supplemented by undisputed facts and the court’s
resolution of disputed facts. Den Norske Stats Ojeselskap As v. HeereMac
3

Id. at 1-2.

4

Id. at 2.

5

R. Doc. 5-1 at 2, 7.

6

Id. at 3-4.
2

Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also Barrera–Montenegro v.
United States, 74 F.3d 657, 659 (5th Cir. 1996). The party asserting
jurisdiction bears the burden of establishing that the district court possesses
jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001).
When, as here, grounds for dismissal may exist under both Rule 12(b)(1)
and Rule 12(b)(6), the Court should, if necessary, dismiss only under the
former without reaching the question of failure to state a claim. See Hitt v.
City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). A court’s dismissal for
lack of subject matter jurisdiction is not a decision on the merits and does not
prevent the plaintiff from pursuing the claim in another forum. See id.
Because the Court finds that plaintiff's claim must be dismissed under
Rule 12(b)(1), it does not address the legal standard for dismissal under Rule
12(b)(6).

III. DISCUSSION
The Eleventh Amendment grants states, as well as state agencies,
immunity from suits in federal court filed by its own citizens or citizens of
another state. See U.S. Const. amend. XI; Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (citations omitted); Cozzo v. Tangipahoa
Parish Counsel–President Gov’t, 279 F.3d 273, 280 (5th Cir. 2002) (citation
omitted). “When a state agency is the named defendant, the Eleventh
3

Amendment bars suits for both money damages and injunctive relief unless
the state has waived its immunity.” Cozzo, 279 F.3d at 280-81 (citing Puerto
Rico Aquaduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144
(1993)). Louisiana has statutorily refused to waive its Eleventh Amendment
sovereign immunity against suits in federal courts. See La. Rev. Stat. §
13:5106(A); Cozzo, 279 F.3d at 281.
Here, Valdery sued the Louisiana Workforce Commission, an
administrative agency of the State of Louisiana, see La. R. S. § 23:1, and
Palermo, in her official capacity as a former administrative law judge for the
Commission. Courts consider the Louisiana Workforce Commission to be an
arm of the state for purposes of Eleventh Amendment immunity. See Chaney
v. La. Workforce Comm’n, 560 F. App’x 417, 418 (5th Cir. 2014). The
Commission and Palermo are thus immune from liability for Valdery’s claim
for monetary damages. See id. (holding state agencies and agency officials
who have been sued in their official capacities are immune from suit). Because
Valdery’s suit is not excepted from Eleventh Amendment sovereign immunity,
Valdery’s claim must be dismissed.

IV.

LEAVE TO AMEND
The Court should “freely give” leave to amend “when justice so requires.”

Fed. R. Civ. P. 15(a) (2); Leal v. McHugh, 731 F.3d 405, 417 (5th Cir. 2013).
4

Ordinarily, “a court should grant a pro se party every reasonable opportunity
to amend.” Hale v. King, 642 F.3d 492, 503 n.36 (5th Cir 2011) (quoting Pena
v. United States, 157 F.3d 984, 987 n.3 (5th Cir. 1988)).
When it is apparent, however, that amendment will be futile, dismissal
without leave to amend is appropriate. Foman v. Davis, 371 U.S. 178, 182
(1962); Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004). It is apparent
from the record in this case that amendment will be futile. Valdery seeks only
monetary damages against both the Commission and Palermo, a result barred
by the Eleventh Amendment. Moreover, Valdery has not even responded to
this motion. Accordingly, leave to amend is not warranted.

V.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendants Louisiana

Workforce Commission and Penelope Palermo’s Motion to Dismiss the case
for lack of jurisdiction.

10th
New Orleans, Louisiana, this _______ day of September, 2015.

___________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
5