(PS) Davis v. CA Public Employee Retirement System

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6 UNITED STATES DISTRICT COURT

7 FOR THE EASTERN DISTRICT OF CALIFORNIA

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9 WILLIENE D. DAVIS, Case No. 2:20-cv-01543-JAM-JDP (PS)

10 Plaintiff, FINDINGS AND RECOMMENDATIONS

THAT THE CASE BE DISMISSED FOR

11 v. LACK OF SUBJECT-MATTER

JURISDICTION

12 CA PUBLIC EMPLOYEE RETIREMENT

SYSTEM BOARD OF ECF No. 1

13 ADMINISTRATION,

OBJECTIONS DUE WITHIN 30 DAYS

14 Defendant.

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16 Plaintiff proceeds pro se in this action against defendant, the California Public Employee

17 Retirement Board of Administration (“CalPERS”). Plaintiff alleges that defendant violated the

18 14th Amendment, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in

19 Employment Act (“ADEA”). ECF No. 1 at 12. I recommend that the case be dismissed for lack

20 of subject matter jurisdiction.

21 I. DISCUSSION

22 A federal court may adjudicate only those cases authorized by the Constitution or

23 Congress. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The basic federal

24 jurisdiction statutes, 28 U.S.C. §§ 1331, 1332, confer “federal question” and “diversity”

25 jurisdiction, respectively. To invoke the court’s diversity jurisdiction, a plaintiff must specifically

26 allege the diverse citizenship of all parties, and that the matter in controversy exceeds $75,000.

27 28 U.S.C. § 1332(a). Federal question jurisdiction requires that the complaint (1) arise under a

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1 federal law or the U. S. Constitution, (2) allege a “case or controversy” within the meaning of

2 Article III, § 2 of the U.S. Constitution, or (3) be authorized by a federal statute that both

3 regulates a specific subject matter and confers federal jurisdiction. Baker v. Carr, 369 U.S. 186,

4 198 (1962). A case presumably lies outside the jurisdiction of the federal courts unless plaintiff

5 demonstrates otherwise. Kokkonen, 511 U.S. at 376-78. Lack of subject matter jurisdiction is

6 never waived and may be raised by a court sua sponte. Attorneys Trust v. Videotape Computer

7 Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

8 a. Federal Question Jurisdiction

9 Plaintiff claims that defendant violated her federal rights under the ADA, ADEA, and

10 Fourteenth Amendment. But the Eleventh Amendment bars suits seeking money damages from

11 states.1 See Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (holding that

12 the Eleventh Amendment bars suits for money damages against states under the ADA); Kimel v.

13 Fla. Bd. of Regents, 528 U.S. 62, 82 (2000) (holding the same under the ADEA); Will v. Mich.

14 Dep’t of State Police, 491 U.S. 58, 66 (1989) (holding that states, as well as state officials acting

15 in their official capacities, are not “persons” under 42 U.S.C. § 1983). Eleventh Amendment

16 immunity is a jurisdictional bar, and the court must consider the issue sua sponte. Charley’s Taxi

17 Radio Dispatch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 873 n.2 (9th Cir. 1987) (“Like a

18 jurisdictional bar and unlike a traditional immunity, however, the effect of the Eleventh

19 Amendment must be considered sua sponte by federal courts. Because the operation of the

20 Eleventh Amendment has aspects of both an immunity and a jurisdictional bar, we apply the

21 terms interchangeably.”) (international citations omitted).

22 Eleventh Amendment immunity applies to a state-created entity when it “is an arm of the

23 state.” Mitchell v. Los Angeles Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988). In

24 determining whether an entity meets this test, the Ninth Circuit considers five factors:

25 “[1] whether a money judgment would be satisfied out of state funds, [2] whether the entity

26 performs central governmental functions, [3] whether the entity may sue or be sued, [4] whether

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1 Plaintiff does not mention 42 U.S.C. § 1983, but I construe plaintiff’s complaint liberally

28 and presume that she intended to enforce her 14th Amendment rights through § 1983.

1 the entity has the power to take property in its own name or only the name of the state, and [5] the

2 corporate status of the entity.” Id. Of these factors, the financial impact of a money judgment

3 generally bears the greatest weight. See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48

4 (1994) (“Courts of Appeals have recognized the vulnerability of the State’s purse as the most

5 salient factor in Eleventh Amendment determinations.”).

6 As to the first and most salient factor, the State of California has a contractual obligation

7 to provide for state employees’ vested pension benefits, and it must cover any shortfall in

8 defendant’s funding. See Westly v. Bd. of Admin., 105 Cal. App. 4th 1095, 1116 (Cal. Ct. App.

9 2003) (“[I]f the CalPERS fund is insufficient to pay the benefits owed to state employees, the

10 state is obligated to pay the money to pensioners from other sources.”); Bd. of Admin. v. Wilson,

11 52 Cal. App. 4th 1109, 1118 (Cal. Ct. App. 1997) (holding the State of California has a

12 contractual obligation to provide for employees’ vested pension benefits). And the state’s

13 contributions to defendant’s funds are drawn from California’s treasury funds. Cal. Gov’t Code

14 §§ 20822, 20824. Therefore, a money judgment in favor of plaintiff could require satisfaction out

15 of state funds. See California Pub. Emps. Ret. Sys. v. Moody’s Corp., No. C 09-03628 SI, 2009

16 WL 3809816, at *4 (N.D. Cal. Nov. 10, 2009) (engaging in a detailed analysis of defendant’s

17 financial structure and concluding that “this factor weight slightly in favor of construing CalPERS

18 to be an arm of the state”).

19 As to the second factor, defendant’s purpose “is to effect economy and efficiency in the

20 public service by providing a means whereby employees who become superannuated or otherwise

21 incapacitated may, without hardship or prejudice, be replaced by more capable employees, and to

22 that end provide a retirement system consisting of retirement compensation and death benefits.”

23 Cal. Gov’t Code § 20001. Accordingly, defendant’s purpose serves a central governmental

24 function. See Moody’s, 2009 WL 3809816, at *5 (holding the same).

25 The third and fourth factors counsel in favor of finding that defendant is not an arm of the

26 state. Defendant can sue and be sued in its own name, but the Ninth Circuit has held that many

27 such entities remain arms of the state. See, e.g., Belanger v. Madera Unified School Dist., 963

28 F.2d 248, 254 (9th Cir. 1992). Additionally, defendant can take property in its own name and

1 choose its own investments. See Cal. Gov’t Code § 20191. On the other hand, defendant was

2 created by, and is governed according to, the California State Constitution and California

3 Government Code. Cal. Const. art. XVI, § 17; Cal. Gov’t Code §§ 20000, et seq. It is a unit of

4 the Government Operations Agency. Cal. Gov’t Code § 20002. The fifth factor thus supports a

5 finding that defendant is an arm of the state.

6 Considering the factors identified in Mitchell, CalPERS is an arm of the state and the

7 Eleventh Amendment bars the court’s jurisdiction. See Moody’s, 2009 WL 3809816, at *5

8 (holding that defendant is an arm of the state).

9 b. Diversity Jurisdiction

10 Plaintiff claims diversity jurisdiction based on her Nevada residency and because she is

11 suing a California state entity. See ECF No. 1 at 4. While “a State is not a ‘citizen’ for purposes

12 of diversity jurisdiction . . . a political subdivision of a State, unless it is simply the arm or alter

13 ego of the State, is a citizen of the State for diversity purposes.” Moor v. Alameda Cty., 411 U.S.

14 693, 717 (1973) (internal citation and quotation omitted); see also Fifty Assocs. v. Prudential Ins.

15 Co., 446 F.2d 1187, 1191 (9th Cir. 1970) (“[N]either a state nor a state agency [can] be a party to

16 a diversity action.”). Given the mirror standards, if a public entity is entitled to Eleventh

17 Amendment immunity, then it is not a citizen for diversity jurisdiction purposes. See, e.g., Univ.

18 of R.I. v. A.W. Chesterton Co., 2 F.3d 1200, 1203 (1st Cir. 1993) (noting that “whether an entity is

19 a citizen of the State for diversity purposes, or a State for Eleventh Amendment . . . purposes . . .

20 present[s] the same ultimate question for decision”); Md. Stadium Auth. v. Ellerbe Becket Inc.,

21 407 F.3d 255, 260-61 (4th Cir. 2005) (holding that Eleventh Amendment immunity test is

22 applicable to diversity jurisdiction analysis); Univ. of South Ala. v. Am. Tobacco Co., 168 F.3d

23 405, 412 (11th Cir. 1999) (holding the same); Tradigrain, Inc. v. Miss. State Port Auth., 701 F.2d

24 1131, 1132 (5th Cir. 1983) (describing the analyses as “virtually identical”). Accordingly, for the

25 reasons discussed above, plaintiff cannot establish diversity jurisdiction in her suit against

26 defendant.

27 II. FINDINGS AND RECOMMENDATIONS

28 Because I find that defendant is an arm of the State of California, there is no set of facts

1 | that plaintiff could plead that would establish diversity jurisdiction or overcome Eleventh

2 | Amendment immunity. Leave to amend would be futile.

3 I hereby recommend that

4 1. plaintiffs complaint, ECF No. 1, be dismissed with prejudice, and

5 2. the clerk be directed to close this case.

6 These findings and recommendations are submitted to the U.S. District Judge presiding

7 | over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within 30 days of the service

8 | of the findings and recommendations, the parties may file written objections to the findings and

9 | recommendations with the court and serve a copy on all parties. That document must be

10 | captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding

11 district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).

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3 IT IS SO ORDERED.

14 ( ie —

Dated: _ September 14, 2021 Q_—_—.

15 JEREMY D. PETERSON

16 UNITED STATES MAGISTRATE JUDGE

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