Johnson et al v. Pam, et al
Filing
15
MEMORANDUM OPINION re 14 Order on Motion to Dismiss/Lack of Jurisdiction. Signed by District Judge Sharion Aycock on 3/7/2013. (psk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
NEBRASKA JOHNSON,
MATTIE M. BROWN, EARLEEN SMITH
and LAURA NEAL
V.
PLAINTIFFS
CAUSE NO.: 4:11CV070-SA-JMV
JEFFREY PAM, MISSISSIPPI NATIONAL GUARD,
THE NATIONAL GUARD, THE DEPARTMENT OF
THE NATIONAL GUARD, THE UNITED STATES
OF AMERICA and THE DEPARTMENT OF DEFENSE
DEFENDANTS
MEMORANDUM OPINION
Plaintiffs filed suit damages seeking damages for injuries allegedly caused by a motor
vehicle collision which occurred on June 9, 2009. The Mississippi National Guard (MSNG)
seeks dismissal pursuant to the Eleventh Amendment [5]. The Department of Defense also seeks
dismissal under the Federal Tort Claims Act [10]. Plaintiffs failed to respond to either motion.
Because the MSNG is an arm of the State of Mississippi, that entity is immunized from suit. The
Department of Defense is also dismissed, as the correct entity, the United States of America, is a
named defendant.
On June 9, 2009, Plaintiffs were heading east on Highway 82 in Greenville, Mississippi,
when Jeffrey Pam, operating a Mississippi National Guard vehicle, allegedly ran a stop light
causing a collision.
The Mississippi National Guard seeks dismissal as a party defendant pursuant to Federal
Rule of Civil Procedure 12(b)(1). A motion to dismiss under Rule 12(b)(1) challenges a federal
court’s subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). The court may find that it lacks
subject matter jurisdiction in any one of three ways: “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.” Ramming v. United States, 281
F.3d 158, 160 (5th Cir. 2001). The party asserting jurisdiction carries the burden of proof for a
Rule 12(b)(1) motion. Id. Ultimately, a Rule 12(b)(1) motion should be granted only if it appears
that the plaintiff will be unable to prove any set of facts in support of his claim which would
entitle him to relief. Id.
The Mississippi National Guard asserts that it is an arm of the State of Mississippi and
immunized from suit pursuant to the Eleventh Amendment. In support of its contention, the
MSNG has submitted three affidavits, which the Court has considered.
It is well-established that the Eleventh Amendment to the Constitution bars suit against a
state by its own citizens as well as by citizens of other states. Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 101, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). The immunity extends to
state agencies, officials, and employees when “the state is the real, substantial party in interest.”
Id. (quoting Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464, 65 S. Ct. 347, 89 L. Ed.
389 (1945)); see also Vogt v. Bd. of Comm’rs of Orleans Levee Dist., 294 F.3d 684, 688-89 (5th
Cir. 2002) (noting that Eleventh Amendment sovereign immunity has been extended to state
agencies or other political entities that are deemed the “alter egos” or “arms” of the state). The
state has been deemed a real party in interest when a judgment will be paid from the state
treasury. See Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129, 131-32 (5th Cir. 1986); Black
v. N. Panola Sch. Dist., 461 F.3d 584, 596 (5th Cir. 2006) (“[T]he fundamental purpose of the
Eleventh Amendment [is] protecting state treasuries . . . .”).
The Mississippi National Guard is a state military force under the command of the
Governor of Mississippi, unless called into federal service by the President of the United States.
See 32 U.S.C. § 101(4) and 10 U.S.C. §101(c)(2) (defining “Army National Guard” as an
2
“organized militia of the several States and Territories . . .”); MISS. CODE ANN. § 33-7-7; MISS.
CODE ANN. § 11-46-9 (exempting suits under the Mississippi Tort Claims Act against the
Mississippi National Guard where “such claim accrues as a result of active federal or state
service . . .”); see also Maryland v. United States, 381 U.S. 41, 46, 85 S. Ct. 1293, 14 L. Ed. 2d
205 (1965) (recognizing the national guard as a “militia, in modern-day form, that is reserved to
the states by Art. 1 § 8, cls. 15, 16 of the Constitution”). “In each state the National Guard is a
state agency, under state authority and control. At the same time, federal law accounts, to a
significant extent, for the composition and function of the Guard. Accordingly, the Guard may
serve the state in times of civil strife within its borders while also being available for federal
service during national emergencies.” Knutson v. Wisconsin Air Nat. Guard, 995 F.2d 765, 767
(7th Cir. 1993).
The Fifth Circuit has affirmed the grant of Eleventh Amendment immunity to the
Mississippi Air National Guard where the district court found that entity to be a state agency.
Bryant v. Military Dep’t, 597 F.3d 678, 684, 685 (5th Cir. 2010); Lipscomb v. FLRA, 333 F.3d
611, 613-14 (5th Cir. 2003) (noting that the daily operations of the national guard are under the
control of the states). In addition, numerous other courts have found that state Guards, their
Adjutants General, and military departments enjoy full immunity under the Eleventh
Amendment. See Knutson, 995 F.2d at 768 (extending Eleventh Amendment immunity to the
Wisconsin Air National Guard); Hefley v. Textron, Inc., 713 F.2d 1487, 1493 (10th Cir. 1983)
(Kansas National Guard “[i]s not independent of the State of Kansas; rather, it is an arm of the
state and entitled to any immunity which the state possesses”); Hefrich v. Penn. Dep’t of Military
Affairs, 660 F.2d 88, 90 (3d Cir. 1981) (military department immune under the Eleventh
3
Amendment); Henry v. Textron, Inc., 577 F.2d 1163, 1164 (4th Cir. 1978) (Virginia National
Guard immune under the Eleventh Amendment).
The Court finds the above-cited authority to be persuasive. Because a judgment against
the Mississippi National Guard would necessarily impact the treasury funds of the State of
Mississippi, the Court finds the Mississippi National Guard to be an arm of the state and thus,
entitled to sovereign immunity. Accordingly, Plaintiffs’ claims against the Mississippi National
Guard are dismissed.1
The Department of Defense (DOD) also seeks dismissal under the Federal Tort Claims
Act as it contends it is not a proper party. Pursuant to that statute, the DOD asserts that a
plaintiff cannot sue in tort a federal agency. Indeed, under the FTCA, individual agencies are not
proper party defendants. See 28 U.S.C. § 2679(a) (“[t]he authority of any federal agency to sue
and be sued in its own name shall not be construed to authorize suits against such federal agency
on claims which are cognizable [where the United States is a defendant]”); Galvin v.
Occupational Safety and Health Admin., 860 F.2d 181, 183 (5th Cir. 1981) (“an FTCA claim
against a federal agency or employee as opposed to the United States itself must be dismissed for
want of jurisdiction”). As the only proper defendant in this cause is the United States of
America, Plaintiffs’ claims against the Department of Defense are hereby dismissed with
prejudice.
Conclusion
As the Mississippi National Guard is an arm of the State, Eleventh Amendment sovereign
immunity extends to that entity, and Plaintiffs’ claims against the MSNG, The National Guard,
and the Department of the National Guard, are hereby dismissed. Moreover, the Department of
1
The Defendants assert that there is no such entity known as “The National Guard,” nor is there a “Department of
the National Guard.” To the extent that Plaintiffs offered no rebuttal to this assertion, those entities are also
dismissed as party defendants.
4
Defense is not a proper party to the Federal Tort Claims Act; therefore, that defendant is
dismissed as well.
SO ORDERED, this the 7th day of March, 2013.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?