Town of Smyrna, Tennessee v. Municipal Gas Authority of GA

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0186p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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X

Plaintiff-Appellee, -

THE TOWN OF SMYRNA, TENNESSEE,

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No. 12-5476

v.

,

>

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THE MUNICIPAL GAS AUTHORITY OF

Defendant-Appellant. N-

GEORGIA,

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:11-cv-00642—Kevin H. Sharp, District Judge.

Argued: January 25, 2013

Decided and Filed: July 19, 2013

Before: NORRIS, MOORE, and DONALD, Circuit Judges.

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COUNSEL

ARGUED: Jay D. Bennett, ALSTON & BIRD LLP, Atlanta, Georgia, for Appellant.

Jessalyn H. Zeigler, BASS BERRY SIMS PLC, Nashville, Tennessee, for Appellee.

ON BRIEF: Jay D. Bennett, Nowell D. Berreth, ALSTON & BIRD LLP, Atlanta,

Georgia, Paul S. Davidson, WALLER LANSDEN DORTCH & DAVIS LLP, Nashville,

Tennessee, for Appellant. Jessalyn H. Zeigler, Joshua R. Denton, BASS BERRY SIMS

PLC, Nashville, Tennessee, Douglas Berry, HUBBARD, BERRY & HARRIS, PLC,

Nashville, Tennessee, for Appellee.

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OPINION

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BERNICE B. DONALD, Circuit Judge. This case is before us on interlocutory

appeal of the district court’s denial of sovereign immunity to the appellant Municipal

Gas Authority of Georgia (the “Gas Authority”). The heart of the dispute is the Gas

Authority’s proposed interpretation of Kyle v. Georgia Lottery Corporation, 718 S.E.2d

1

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 2

801, 802-04 (Ga. 2011): that any entity referred to as a state “instrumentality” in a

Georgia statute is entitled to Georgia state-law sovereign immunity. The Gas

Authority’s suggested interpretation, however, requires quite a stretch of the

imagination. For this and the following reasons, we affirm.

I.

The Gas Authority is a natural gas provider formed in 1987 by the Georgia

General Assembly. Ga. Code Ann. § 46-4-82(a) (2012). Its purpose is to provide

member municipalities with natural gas. To this end, it acquires, constructs, operates,

and maintains facilities for the storage, acquisition, and distribution of natural gas. Id.

§ 46-4-95. The Gas Authority raises its own funds, receiving no funding from the state

of Georgia. It operates on a non-profit basis, distributing excess profits, as well as

losses, to its member municipalities. Id. § 46-4-97. It pays for its own operating

expenses and must provide funding for any judgments against it. Id. § 46-4-97. It is

exempt from the state-law provisions on financing and investment for state entities, id.

§§ 46-4-82, 50-17-21, and it has discretion over the accumulation, investment, and

management of its funds, id. § 46-4-96(a)(10), (11). It sets its own rules for governance,

id. § 46-4-92, and its members elect its leaders from among the member municipalities,

id. §§ 46-4-88, 46-4-89.

The Gas Authority sells natural gas to seventy-eight member municipalities:

sixty-four of these are Georgia municipalities; two are Tennessee municipalities,

including the plaintiff Town of Smyrna, Tennessee (“Smyrna”); and others are

municipalities in Alabama, Florida and Pennsylvania. Smyrna has contracted with the

Gas Authority since 2000. The pipeline that delivers gas to Smyrna does not run through

the state of Georgia.

The underlying dispute in this case is essentially a disagreement over the price

of gas. The Gas Authority committed to a multi-year “hedge” contract for its acquisition

of gas, setting a contract price and volume of gas through the year 2014, and then passed

these costs on to Smyrna. After this hedge contract was in place, the “spot price,” or

market price, of natural gas fell due to the increased use of hydraulic fracturing or

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 3

“fracking.” So, although gas was less expensive in the market generally, it was not less

expensive to Smyrna, who was still paying the Gas Authority according to the higher

price and volume set between the Gas Authority and its suppliers. In July 2011, Smyrna

sued the Gas Authority for breach of contract, violations of the Tennessee Consumer

Protection Act, breach of fiduciary duty, and unjust enrichment for entering into these

long-term hedge contracts and passing the allegedly unauthorized charges on to Smyrna.

After seven months of litigation, including discovery, the Gas Authority filed a

motion to dismiss, arguing that it was entitled to sovereign immunity under Georgia law

and under the Eleventh Amendment. On April 17, 2012, the district court denied the

motion. The Gas Authority now appeals the denial of sovereign immunity under

Georgia law and the Eleventh Amendment. It has also filed a motion seeking

certification of the question of whether it is entitled to sovereign immunity under

Georgia law to the Supreme Court of Georgia.

II.

As the issue of sovereign immunity is before us on interlocutory appeal, we must

address our jurisdiction.1 Normally, under 28 U.S.C. § 1291, our jurisdiction is limited

to appeals from “final decisions” of the district court. When a decision “finally

determine[s] claims of right separable from, and collateral to, rights asserted in the

action,” however, we may have jurisdiction under what has come to be known as the

collateral order doctrine. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546

(1949). It is well-settled that the collateral order doctrine gives us jurisdiction over

appeals of the denial of Eleventh Amendment sovereign immunity. P.R. Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-44, 147 (1993); Mingus v.

Butler, 591 F.3d 474, 481 (6th Cir. 2010). We have also extended the collateral order

1

Smyrna correctly points out that the Gas Authority does not adequately establish the basis for

our jurisdiction for interlocutory review of sovereign immunity issues in its opening brief, as required by

Federal Rule of Appellate Procedure 28(a)(4)(B). (Appellant Br. 1 (citing 28 U.S.C. § 1291 (the final

judgment rule); Holst-Orsted v. City of Dickson, 641 F.3d 230, 236 (6th Cir. 2011) (on the applicability

of the collateral order doctrine to discovery orders).) However, we have held that an error in the

jurisdictional invocation does not prevent our review. United States v. Baggett, 251 F.3d 1087, 1092 n.3

(6th Cir. 2001). The Gas Authority sufficiently addresses our jurisdiction in its reply brief.

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 4

doctrine to denials of state law immunity, so long as the state immunity alleged would

provide immunity from suit, as opposed to mere immunity from liability. Sabo v. City

of Mentor, 657 F.3d 332, 336 (6th Cir. 2011); Chesher v. Neyer, 477 F.3d 784, 793-94

(6th Cir. 2007). Georgia’s sovereign immunity laws provide immunity from suit. Ga.

Const. art. 1, § 2, para. IX. Therefore, we have jurisdiction over both issues on appeal.

See also Root v. New Liberty Hosp. Dist., 209 F.3d 1068, 1069 (8th Cir. 2000)

(reviewing state-law sovereign immunity claims on interlocutory review); Ferguson v.

Texarkana, Tex., No. 98-40403, 1999 WL 152936, at *1 (5th Cir. 1999) (same).2

We review the legal question of whether a body is entitled to sovereign immunity

de novo, but accept any underlying factual findings made by the district court unless

such findings are clearly erroneous. S.J. v. Hamilton Cnty., 374 F.3d 416, 418 (6th Cir.

2004).

III.

A. Choice of Law

Before addressing the question of the Gas Authority’s sovereign immunity under

Georgia law, we have the task of determining whether Georgia law even applies to the

defense. The district court merely assumed that Georgia law applies and moved on to

the sovereign immunity question. Smyrna asks that we affirm the denial of state-law

sovereign immunity on the alternative grounds that Georgia sovereign immunity law

does not apply because Tennessee law governs the underlying claims. See Murphy v.

Nat’l City Bank, 560 F.3d 530, 535 (6th Cir. 2009) (“Appellate courts may affirm on

alternative grounds supported by the record.”). Although the district court’s method is

tempting, when sitting in diversity we must apply the choice of law rules of the forum

state to determine which state’s laws govern the dispute. Montgomery v. Wyeth,

580 F.3d 455, 459 (6th Cir. 2009); Johnson v. Ventra Grp., 191 F.3d 732, 738 (6th Cir.

2

Because interlocutory review is permitted for state-law sovereign immunity defenses under the

collateral order doctrine, we need not address the Gas Authority’s alternative argument that we may

exercise pendent appellate jurisdiction over the state-law defense.

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 5

1999). Smyrna filed suit in the Middle District of Tennessee, so we begin with

Tennessee’s choice of law rules. See Johnson, 191 F.3d at 738-39.

For claims based on a contract, Tennessee follows the rule of lex loci contractus,

meaning it presumes that the claims are governed by the jurisdiction in which it was

executed absent a contrary intent. Vantage Tech., LLC v. Cross, 17 S.W.3d 637, 650

(Tenn. Ct. App. 1999). If the parties contracted to be governed by the law of another

jurisdiction, Tennessee will honor that choice so long as the provision was executed in

good faith, there is a material connection between the law and the transaction, and the

chosen law is not contrary to the fundamental policies of Tennessee. Id.

The Gas Authority contends that the parties contracted to be governed by

Georgia law, pointing to the following provision in its 2005 Gas Supply Contract with

Smyrna, under the “Severability” section:

In case any one or more of the provisions of this contract shall for any

reason be held to be illegal or invalid . . . this contract shall be construed

and enforced as if such illegal or invalid provision had not been

contained herein, and this contract shall be construed to adopt, but not to

enlarge upon, all the applicable provisions of said [Gas Authority] Act,

and all the applicable provisions of the Constitution and general laws of

Georgia, and, if any provisions hereof conflict with any applicable

provision of said Constitution or laws, the latter as adopted by the

General Assembly of Georgia and as interpreted by the courts of this

state shall prevail in lieu of any provision hereof in conflict or not in

harmony therewith.

Gas Supply Contract, art. IX (emphasis added). A claim that a particular contract

provision operates as a choice of law provision is itself a claim based on a contract,

therefore we use the contract interpretation law of the jurisdiction in which the purported

choice of law agreement was signed. The 2005 Gas Supply Contract was executed in

Tennessee. Thus, we use Tennessee contract law to discern the nature and validity of

the term.

Tennessee would interpret this provision to ascertain the intent of the parties,

according to the natural meaning of the words, giving effect to every term, and

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 6

construing any ambiguity against the drafter (here, the Gas Authority). Vantage Tech,

17 S.W.3d at 650. Smyrna would have us conclude that this is merely a severability

provision designed to avoid any conflicts with Georgia law. This proposed

interpretation makes some sense because the Gas Authority is created and its activities

are defined by Georgia statute, but if that were the full meaning, the provision would

merely conclude after adopting “all the applicable provisions of the [Gas Authority]

Act.” Giving meaning to all the terms, as we must, we cannot ignore the latter statement

in which the contract adopts “all the applicable provisions of the Constitution and

general laws of Georgia.” These terms can have no meaning other than establishing that

the contract is to be governed under Georgia laws. The clause operates as a choice of

law provision.

Moreover, nothing before us suggests that the clause is invalid. The parties have

presented no evidence suggesting that the contract was submitted in bad faith, that it

bears no material connection to Georgia or that Georgia was selected for legal

subterfuge, or that Georgia law is contrary to the fundamental policies of Tennessee law.

See Vantage Tech, 17 S.W.3d at 650. Therefore, we must presume that Georgia law

governs the contract itself and any claims arising out of it. Georgia would apply its own

sovereign immunity law to these claims.

Our analysis cannot stop here, however, because Smyrna also alleged claims for

breach of fiduciary duty and violations of the Tennessee Consumer Protection Act.

Nothing in the choice of law contract provision suggests that it extends to tort claims.

We conclude that Tennessee law applies to these non-contract claims,3 and under such

law, Tennessee would apply Georgia sovereign immunity law as a matter of comity.

3

For claims lying in tort, Tennessee uses the “most significant relationship” test, considering: the

place of the injury, the place where the conduct causing the injury occurred, the place of incorporation or

place of business of the parties, and the place where the relationship is centered. Hataway v. McKinley,

830 S.W.2d 53, 59 (Tenn. 1992). Here, the alleged injury is an economic loss, so it occurred in Smyrna,

Tennessee. See Carbon Processing & Reclamation, LLC v. Valero Mktg. & Supply Co., No. 09-2127-

STA, 2011 WL 4915886, at *5 (W.D. Tenn. Oct. 17, 2011) (noting that an economic injury occurred in

the injured party’s principle place of business). The alleged conduct occurred in both Tennessee and

Georgia, but the relationship is centered in Tennessee, where the gas is delivered and where the contract

was negotiated. The Gas Authority is an entity created in Georgia, but it serves municipalities in five

states, and the gas line delivering gas to Smyrna does not even run through Georgia. These factors, when

viewed in combination, suggest that Tennessee law would apply.

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 7

While Tennessee has no constitutional obligation to recognize the sovereign

immunity that a sister state may have granted to a citizen, see Nevada v. Hall, 440 U.S.

410, 426-27 (1979), Tennessee courts choose to do so, in their discretion, in the interest

of comity and state harmony. E.g., Lemons v. Cloer, 206 S.W.3d 60, 69 (Tenn. Ct. App.

2006). Tennessee will enforce a sister state’s sovereign immunity to a defendant state

entity so long as the other state’s rules are not “contrary to the policy of Tennessee,” as

found in its constitution, statutes, and court decisions. Id. at 69 (internal quotations

omitted). This standard does not require identical state policies or identical hypothetical

results—merely a certain harmony.

The sovereign immunity policies of Georgia are sufficiently harmonious with its

own that Tennessee would honor Georgia’s policies. Both states grant sovereign

immunity to certain state entities. See Tenn. Code Ann. § 29-20-201(a) (2012); Ga.

Const. art. 1, § 2, para. IX. Both states extend such immunity to certain

“instrumentalities” or agencies of the state, but not to certain others such as

municipalities. Nat’l Advertising, Inc. v. McCormick Ashland City & Nashville R.R.,

936 S.W.2d 256, 258 (Tenn. Ct. App. 1996); Miller v. Ga. Ports Auth., 470 S.E.2d 426,

428 (Ga. 1996). Georgia law suggests that the structure and activities of the entity, not

merely its nomenclature, determines whether an entity is immune. Kyle v. Ga. Lottery

Corp., 718 S.E.2d 801, 802-04 (Ga. 2011). Tennessee, too, has case law suggesting that

the supervision, control, and funding of the entity, not merely the nomenclature,

determines whether an entity qualifies for sovereign immunity. E.g., Nat’l Advertising,

936 S.W.2d at 258; Hastings v. S. Cent. Human Res. Agency, 829 S.W.2d 679, 682

(Tenn. Ct. App. 1991). Neither state has case-law directly establishing whether a natural

gas cooperative is entitled to sovereign immunity, but the laws are similar enough that

Georgia policies are in no way “contrary to” Tennessee public policy under Lemons.

206 S.W.3d at 69. Tennessee would, therefore, honor any sovereign immunity that

Georgia itself would extend to the Gas Authority. Thus, we must look to Georgia law

to determine whether the Gas Authority is entitled to sovereign immunity.

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 8

B. Sovereign Immunity Under Georgia Law

The Gas Authority asserts that it has sovereign immunity under the Georgia

Supreme Court’s recent decision in Kyle v. Georgia Lottery Corporation. 718 S.E.2d

801, 802-04 (Ga. 2011). According to the Gas Authority’s proposed interpretation, Kyle

held that anything called a state instrumentality is entitled to sovereign immunity.

Because the Gas Authority is called an “instrumentality” under its enacting statute, see

Ga. Code Ann. § 46-4-82(a), it argues, it is entitled to sovereign immunity regardless of

the “public policy dicta” in Kyle suggesting that entities must have a purpose, function,

and management that is intertwined with the state to be classified as a state

instrumentality.

The Gas Authority’s interpretation of Kyle is based on an erroneous reading of

the case. Kyle addressed whether the Georgia Lottery Corporation (“GLC”) is entitled

to sovereign immunity under state law. Kyle, 718 S.E.2d at 802-04. The court began by

saying, “Because sovereign immunity applies to state instrumentalities, GLC is entitled

to assert sovereign immunity as a defense.” Id. at 802. This sentence was not the entire

holding of the case, as the Gas Authority contends, however, but the beginning of the

analysis. The remainder of the opinion is dedicated to discerning whether the GLC is

the kind of state entity that is entitled to sovereign immunity, namely, whether it is a

state instrumentality.

The court then reviewed two prior cases in which it had developed state

sovereign immunity law in light of recent state constitutional and statutory changes. Id.

(citing Youngblood v. Gwinnett Rockdale Newton Cmty. Servs. Bd., 545 S.E.2d 875, 876-

78 (Ga. 2001); Miller, 470 S.E.2d at 427-28). The court noted that in Miller, it held that

under a 1991 amendment to the Georgia Constitution and the contemporaneous Georgia

Tort Claims Act, all “state agencies,” including “all state government entities, regardless

of their nomenclature” are entitled to sovereign immunity. Id. at 802-03 (emphasis

added) (internal quotations omitted); see also Miller, 470 S.E.2d at 427-28. Prior to

Miller, the Georgia courts drew a line between state agencies, which enjoyed sovereign

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 9

immunity, and state instrumentalities, which did not. Kyle, 718 S.E.2d at 804 (citing

Jackson v. Ga. Lottery Corp., 491 S.E.2d 408, 411 (Ga. Ct. App. 1997)). The Kyle court

noted that this distinction is outdated and that it had overruled earlier cases making

distinctions based on nomenclature alone. Id. at 804. These new laws interpreted in

Miller had made immunity for state entities the default, waiving immunity only in

certain instances, thus “limiting the state treasury’s exposure to tort liability.” Id. at 803

(quoting Miller, 470 S.E.2d at 426). The new definition of state entities includes what

the court called “instrumentalities.” Id. (quoting Miller, 470 S.E.2d at 426).

The court moved on to the later case of Youngblood, which, like Kyle, did not

address the question of whether state instrumentalities are immune, but when an entity

is a state instrumentality that is entitled to immunity. See id. at 803-04 (citing

Youngblood, 545 S.E.2d at 875-78). To answer this question, the court reviewed the

enacting statute of the defendant community service board, looking specifically at the

purpose of the board to determine whether it is a state instrumentality. See id. at 803-04

(citing Youngblood, 545 S.E.2d at 875-78).

Building on its analysis from Miller and Youngblood, the Kyle court considered

several factors to determine whether the GLC is an instrumentality. First, it noted that

the GLC is called an “instrumentality” under its enacting statute, Ga. Code Ann. § 50-

27-4, but the analysis did not stop there. Kyle, 718 S.E.2d at 804. It then considered the

purpose of the GLC, which is to generate funding for state educational programs; its

governing structure, a board of directors appointed by the governor; and the beneficiary

of its profits, the state treasury. Id. Finally, the court considered the GLC’s

accountability to the General Assembly and to the public through audits and reports. Id.

“Therefore, the purpose, function, and management of GLC are indelibly intertwined

with the State in a manner that qualifies it for the protection of sovereign immunity as

a State instrumentality.” Id. (emphasis added). Thus, the Kyle court recognized its

precedent establishing that state entities, including state instrumentalities, are entitled

to sovereign immunity, and it created a test for discerning when an entity fits in that

category, “regardless of [its] nomenclature.” See id. at 803, (quoting Miller, 470 S.E.2d

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 10

at 427-28). Using the factor test, then, a court must ask 1) what is the entity called under

its enacting statute, and 2) is the entity’s “purpose, function, and management”

“indelibly intertwined” with the state. Id. at 804. This analysis was not “public policy

dicta” as the Gas Authority contends, but essential to the court’s holding.

The Gas Authority asks us to certify the question of whether it is entitled to

sovereign immunity to the Supreme Court of Georgia, arguing that Kyle is ambiguous.

We do not consider Kyle ambiguous. The Gas Authority’s only basis for this suggestion

seems to be that the parties argue for different interpretations of Kyle. But, as we

explained above, the Gas Authority’s proposed interpretation is unsupported. Even if

we saw a possibility for an alternative interpretation, we do not trouble our sister state

courts where “we see a reasonably clear and principled course” of action. Berrington

v. Wal-Mart Stores, Inc., 696 F.3d 604, 610 (6th Cir. 2012) (internal quotations omitted);

see also Geronimo v. Caterpillar, Inc., 440 F. App’x 442, 449 (6th Cir. 2011) (“[T]he

appropriate time to seek certification of a state-law issue is before a District Court

resolves the issue, not after receiving an unfavorable ruling.” (internal quotations

omitted)); Am. Booksellers Found. for Free Expression v. Strickland, 560 F.3d 443, 446

(6th Cir. 2009) (noting that certification is appropriate when state-law is susceptible of

construction that might avoid federal adjudication or materially change the nature of the

problem). Even if we were to certify the question, the Supreme Court of Georgia would

probably decline to answer the question because it has discretion to take questions of

Georgia law only where “there are no clear controlling precedents in the appellate court

decisions of this State.” R. Sup. Ct. Ga. 46. Kyle is the controlling precedent on the

issue at hand. Accordingly, we decline to certify this question to the Supreme Court of

Georgia.

The only task that remains is to apply the test from Kyle, looking first at the

nomenclature used in the Gas Authority’s enacting statute, and second at the Gas

Authority’s governing structure, profit distribution, and accountability to determine

whether its purpose, management and function are “indelibly intertwined” with the state

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 11

of Georgia. Kyle, 718 S.E.2d at 804. We are guided by how the Kyle court viewed the

various factors in regard to the GLC.

Like the GLC, the Gas Authority is referred to as “an instrumentality of the state”

in its enacting statute, Ga. Code Ann. §§ 46-4-82, 50-17-21(1), but the similarities end

there. Unlike the GLC, the Gas Authority’s purpose is not provided for in the Georgia

Constitution and it does not benefit the general Georgian public. Its purpose is to

“provide municipalities a reliable, economical supply of natural gas and to assist them

in developing and growing their gas systems to optimize the benefits of public

ownership.” Although it is described as an entity that supplies gas for the “public,” id.

§§ 46-4-80, 46-4-98(a), the Gas Authority is structured such that it benefits only

municipalities that choose to become members. Id. §§ 46-4-96(a)(5), (a)(7). And

members are not necessarily from Georgia; current member municipalities are located

in Alabama, Florida, Georgia, Pennsylvania, and Tennessee. The pipeline that delivers

gas to Smyrna does not even run through the state of Georgia.

Nor is the Gas Authority’s function intertwined with the state. Unlike the GLC,

which gives its profits to the state for the benefit of public education in Georgia, the Gas

Authority operates as an independent non-profit corporation. Id. §§ 46-4-82; 46-4-97.

Its profits and losses are distributed to the member municipalities, and it receives no

state funding, as it must pay for its own operations and “provide for payment of any

judgment against” it. Id. § 46-4-97 (emphasis added). It is expressly exempt from the

provisions on financing and investment for state entities, id. §§ 46-4-82, 50-17-21, and

it makes its own decisions on accumulation, investment, and management of its funds,

id. §§ 46-4-96(a)(10), (11). The Gas Authority acts as an “agent” for the municipalities

it serves and provides services “to and for the benefit of the political subdivisions.” Id.

§§ 46-4-96(a)(5), (a)(13).

Finally, the Gas Authority’s management is in no way intertwined with the state

or otherwise similar to that of the GLC. The GLC is subject to heavy administrative

oversight by the state; it must send detailed quarterly reports and audits to the governor

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 12

and other state representatives, and it must submit its annual budget to the Office of

Planning and Budget. Id. §§ 50-27-33(1), (5). The Gas Authority, however, makes its

own rules for governance, id. § 46-4-92, sets compensation for its employees as it

chooses, id. § 46-4-96(a)(4), and hires an independent accountant of its own choosing

for annual audits, id. § 46-4-120. While the GLC is governed by board members

appointed by the governor, the Gas Authority is governed by leaders elected by the

member municipalities, who serve at the pleasure of the municipalities. Id. §§ 46-4-88,

46-4- 89. The Gas Authority is exempt from Georgia Public Service Commission

regulation, id. § 46-4-122, and it even has the discretion to delegate its powers to its own

appointed agents, id. § 46-4-96(a)(4).

In summation, the purpose, function, and management of the Gas Authority is

far less “indelibly intertwined with the State” than that of the GLC. The

“instrumentality” nomenclature is the only factor that weighs in favor of sovereign

immunity here, but that cannot be enough because otherwise the Kyle court would not

have engaged in the factor analysis. The Gas Authority is not entitled to sovereign

immunity under Georgia law.

C. Sovereign Immunity under Eleventh Amendment Doctrine

The Gas Authority also contends that it is entitled to sovereign immunity under

the Eleventh Amendment doctrine. Immunity under the Eleventh Amendment is

considered a “fundamental aspect of [state] sovereignty,” Alden v. Maine, 527 U.S. 706,

713 (1999), serving to “protect the solvency and the dignity of the states.” Lowe v.

Hamilton Cnty. Dep’t of Jobs & Family Servs., 610 F.3d 321, 324 (6th Cir. 2010).

Eleventh Amendment immunity attaches only to defendants that are the state itself or an

“arm of the State.” Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005) (en banc) (internal

quotations omitted). Whether an entity qualifies is a question of federal law and the

entity asserting the defense bears the burden of proof. Lowe, 610 F.3d at 324, 330;

Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 963 (6th Cir. 2002).

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 13

We use the following non-exhaustive list of factors to determine whether a

particular entity is owed sovereign immunity: 1) “the State’s potential liability,” 2) “the

language by which [the] state . . . refer[s] to the entity and the degree of state control

. . . over the entity,” 3) “whether state or local officials appoint the board members of the

entity,” and 4) “whether the entity’s functions fall within the traditional purview of state

or local government.” Pucci v. Nineteenth Dist. Ct., 628 F.3d 752, 760 (6th Cir. 2010)

(citing Ernst, 427 F.3d at 359.) We have noted that the vulnerability of the state’s

coffers is the most salient issue. Ernst, 427 F.3d at 359.

The district court made an express finding that these claims present no potential

liability to the coffers of the state of Georgia—which comes as no surprise because the

Gas Authority is responsible for its own expenses, including judgments, Ga. Code Ann.

§ 46-4-97. The Gas Authority argues that if the “language” the state uses to refer to the

entity suggests that the entity is part of the state, the liability to the entity would be the

same as liability to the state coffers. This is not what we meant in Pucci; otherwise

factor two would be irrelevant on its own. As for the second factor, the state does

occasionally use language to describe the Gas Authority that could apply to a state

entity, but there are also extensive statutory provisions granting independent functioning

and a lack of state control. E.g., Id. §§ 46-4-97 (self-funding), 46-4-96(10),(11)

(discretion over investments and growth), 46-4-92 (self-governance). Nor does the third

factor weigh in favor of immunity, as the member municipalities self-select their own

leadership. Id. §§ 46-4-88 and 89. As for the fourth factor, an entity’s function falls

within the purview of the state government if it is a “long-recognized state function.”

Pucci, 628 F.3d at 764. The Gas Authority acquires, develops and sells natural gas to

municipalities in five different states. This is best described as a commercial activity.

It is not like the court system mandated by a state constitution in Pucci, 628 F.3d at 764,

or a state retirement system funded by the legislature and operating on a state-wide basis

like that in Ernst, 427 F.3d 362. The district court did not err in denying Eleventh

Amendment immunity.

No. 12-5476 Town of Smyrna, Tenn. v. Mun. Gas Auth. of Ga. Page 14

IV.

For the foregoing reasons, we conclude that the Gas Authority is not entitled to

sovereign immunity under Georgia law or under the Eleventh Amendment doctrine.

Accordingly, we AFFIRM the interlocutory decision of the district court. Additionally,

the Gas Authority’s motion for certification to the Supreme Court of Georgia is

DENIED.