Beentjes v. Placer County Air Pollution Control

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACOB W. BEENTJES, 

Plaintiff-Appellee, No. 03-15598

v.

 D.C. No.

CV-00-01423-FCD

PLACER COUNTY AIR POLLUTION

CONTROL DISTRICT, OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

April 12, 2004—San Francisco, California

Filed February 4, 2005

Before: Warren J. Ferguson, Stephen Reinhardt, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

1541

1544 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL

COUNSEL

Mathew D. Evans, James B. Car, Duncan, Ball & Evans, Sac-

ramento, California, for the appellant.

Roderick P. Bushnell, Bushnell, Caplan & Fielding, LLP, San

Francisco, CA, and Linda J. Sloven, Nevada City, California,

for the appellee.

OPINION

PAEZ, Circuit Judge:

The Placer County Air Pollution Control District (“the Dis-

trict”) is charged under state law with the responsibility of

enforcing state and national air quality standards within its

region. The District is part of the larger state and federal

scheme to meet air quality standards under the federal Clean

Air Act.

Jacob W. Beentjes (“Beentjes”) was a former employee of

the District as an air pollution control specialist. This case

arose when the District terminated Beentjes after he was diag-

nosed with a serious pulmonary disease and efforts to accom-

modate his condition were unsuccessful. Beentjes sued the

District alleging that the District’s actions violated Title I of

the Americans with Disabilities Act. Beentjes sought damages

and injunctive relief.

The District ultimately moved for summary judgment on

the ground that, as an arm of the state, it was entitled to sover-

eign immunity under the Eleventh Amendment. The district

BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1545

court, employing the five-factor test that we adopted in Mitch-

ell v. Los Angeles Community College District, 861 F.2d 198,

201 (9th Cir. 1988), and reaffirmed in Belanger v. Madera

Unified School District, 963 F.2d 248, 250-51 (9th Cir. 1992),

determined that the District was not entitled to sovereign

immunity and denied the motion.

In this interlocutory appeal, the District challenges the dis-

trict court’s ruling on the ground that the court failed to recog-

nize the District’s unique status as an enforcement agency

under California’s implementation plan for the federal Clean

Air Act. In failing to do so, the District argues that the court

misapplied the Mitchell/Belanger five-factor test. We have

jurisdiction over this interlocutory appeal under the “collateral

order doctrine,” see Savage v. Glendale Union High Sch., 343

F.3d 1036, 1040 (9th Cir. 2003), and we affirm. We hold that

the District is not an arm of the state and therefore is not enti-

tled to sovereign immunity under the Eleventh Amendment.

I.

In 1992, Jacob W. Beentjes began working at the Placer

County Air Pollution Control District as an ex officio

employee on loan from Placer County. After being diagnosed

with chronic obstructive pulmonary disease in 1997, Beentjes

was terminated from his position as an air pollution control

specialist. He sought an accommodation under the Americans

with Disabilities Act (“ADA”), and was given another posi-

tion with Placer County. He later quit this position.

Beentjes subsequently filed suit for damages and injunctive

relief against the District in the Eastern District of California,

alleging that the District discriminated against him on the

basis of his disability and that the District failed to reasonably

accommodate him, in violation of Title I of the ADA, 42

U.S.C. §§ 12101-12117. As noted above, the District moved

for summary judgment on the ground that it was an arm of the

state that qualified for Eleventh Amendment sovereign immu-

1546 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL

nity. The court denied the motion. The District then moved

for reconsideration of the court’s ruling. The court denied the

motion for reconsideration, again ruling that the District was

not entitled to sovereign immunity. The District filed a timely

interlocutory appeal.

We review de novo a district court’s ruling on a motion for

summary judgment. Holz v. Nenana City Pub. Sch. Dist., 347

F.3d 1176, 1179 (9th Cir. 2003). Although the District

appeals from the denial of its motion for reconsideration, a

ruling that we review for an abuse of discretion, the basis for

the ruling was the court’s determination that the District was

not entitled to sovereign immunity under the Eleventh

Amendment, which is a question of law that we review de

novo. See Savage, 343 F.3d at 1040.

II.

[1] The Eleventh Amendment of the United States Consti-

tution provides that “[t]he 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 ultimate guaran-

tee of the Eleventh Amendment is that nonconsenting States

may not be sued by private individuals in federal court.” Bd.

of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001).

[2] The Supreme Court has held that “the reference to

actions ‘against one of the United States’ encompasses not

only actions in which a State is actually named as the defen-

dant, but also certain actions against state agents and state

instrumentalities.” Regents of the Univ. of Cal. v. Doe, 519

U.S. 425, 429 (1997); see also Holz, 347 F.3d at 1180. The

Court, however, has “consistently refused to construe the

Amendment to afford protection to political subdivisions such

as counties and municipalities, even though such entities exer-

cise a slice of state power.” Lake Country Estates, Inc. v.

BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1547

Tahoe Reg’l Planning Agency, 440 U.S. 391, 401 (1979)

(internal quotation marks and citations omitted).

[3] The decision to extend sovereign immunity to a public

entity turns on whether the entity “is to be treated as an arm

of the State partaking of the State’s Eleventh Amendment

immunity, or is instead to be treated as a municipal corpora-

tion or other political subdivision to which the Eleventh

Amendment does not extend.” Mt. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274, 280 (1977). In the Ninth Cir-

cuit, we employ a five-factor test to determine whether an

entity is an arm of the state:

[1] whether a money judgment would be satisfied

out of state funds, [2] whether the entity performs

central governmental functions, [3] whether the

entity may sue or be sued, [4] whether the entity has

the power to take property in its own name or only

the name of the state, and [5] the corporate status of

the entity.

Belanger, 963 F.2d at 250-51 (quoting Mitchell, 861 F.2d at

201) (hereinafter “Mitchell test”).1 “We must examine these

factors in light of the way California law treats the govern-

mental agency.” Id. at 251.

1

The District suggests that this test is not suited for this case because the

school districts in Mitchell and Belanger are different from enforcement

agencies like air pollution control districts. The District, however, fails to

explain why an entity that performs an enforcement function defies analy-

sis under the Mitchell test. Mitchell itself held that the five factors should

be used to determine whether “a governmental agency is an arm of the

state,” 861 F.2d at 201 (emphasis added), and did not distinguish school

districts from entities with enforcement functions. Accordingly, we apply

the Mitchell test to the District’s claim of sovereign immunity.

1548 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL

A. State Funds

[4] The first prong of the Mitchell test—whether a money

judgment would be satisfied out of state funds—is the pre-

dominant factor. Id. This factor is given additional weight

because “the impetus of the Eleventh Amendment is the pre-

vention of federal-court judgments that must be paid out of a

state’s treasury . . . .” Savage, 343 F.3d at 1041. Here, a

review of the applicable state law and the funding scheme for

air pollution control districts leads us to conclude that the

State is not responsible for paying a money judgment against

the District.

[5] First, as a “local public entity” under California law, the

District, and not the State, must pay money judgments against

it. California Health & Safety Code § 40707 provides that all

claims for money damages against air pollution control dis-

tricts are governed by Parts 3 and 4 of Division 3.6 of the Cal-

ifornia Government Code, §§ 900-962, which pertain to

claims and actions against public entities. In turn, the defini-

tional provisions of Part 3 of Division 3.6 of the Government

Code (1) define a “local public entity” to include a “district,”

(2) distinguish a “local public entity” from “the State,” and

(3) specify that the “State” is responsible for paying money

judgments against the State. Cal. Gov’t Code § 900.4 (provid-

ing that a “local public entity” includes “a county, city, dis-

trict, public authority, public agency, and any other political

subdivision or public corporation in the State, but does not

include the State”) (emphasis added); id. § 900.6 (defining

“State” as “the State and any office, officer, department, divi-

sion, bureau, board, commission or agency of the State claims

against which are paid by warrants drawn by the Controller”)

(emphasis added). Taken together, these provisions establish

that under California law, local public entities, including air

pollution control districts, are responsible for paying their

own money judgments.

This conclusion is bolstered by additional provisions of the

Government Code pertaining to the payment of judgments

BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1549

against local public entities. See id. § 970 (“ ‘Local public

entity’ includes a county, city, district, public authority, pub-

lic agency, and any other political subdivision or public cor-

poration in the state, but does not include . . . the state or any

office, officer, department, division, bureau, board, commis-

sion or agency of the state claims against which are paid by

warrants drawn by the Controller.”) (emphasis added); id.

§ 970.2 (providing that “[a] local public entity shall pay any

judgment in the manner provided in this article” and giving a

judgment creditor the right to obtain a writ of mandate to

compel a local public entity to pay a judgment against it).

Although the District does not dispute that it must pay a

judgment obtained against it, the District emphasizes that it

has two million dollars in liability insurance coverage that

would suffice to satisfy a judgment in this case. However, “it

is the entity’s potential legal liability, rather than its ability or

inability to require a third party to reimburse it, or to dis-

charge the liability in the first instance, that is relevant.”

Regents of the Univ. of Cal., 519 U.S. at 431.

Nonetheless, the District claims that a money judgment

against it would be paid out of state funds because “state reve-

nue” constitutes a significant portion of the District’s annual

budget, from which it pays its insurance premiums. This

claim is misleading, however, because the bulk of the monies

demarcated as “state revenue” in the District’s annual budget

comes from a vehicle surcharge that does not actually repre-

sent state funds. Although this surcharge is collected by the

State through the Department of Motor Vehicles, see Cal.

Health & Safety Code § 44227, it is imposed at the discretion

of the District, levied against vehicles registered within the

District, and returned to the District to further its goal of

reducing air pollution. See id. §§ 40701.5(a)(5), 44223,

44229. The district court properly determined that the “state

vehicle surcharge” is more appropriately considered a local

tax.

1550 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL

Further, a former District officer testified that the next-

largest source of District revenue, the “Air Toxics ‘Hot Spots’

Information and Assessment Act,”2 is taken from local indus-

tries and therefore is not state funding. Taking these undis-

puted facts into account, between 1994 and 1999, local funds

accounted for the vast majority of the District’s annual bud-

get, while funds from the state treasury comprised no more

than 10% of its annual budget.

The District, relying on Belanger, argues that local funds

that are commingled with (even a small amount of) state

funds should no longer be deemed local in nature. See

Belanger, 963 F.2d at 252 (holding that a judgment against a

school district would be satisfied from state funds). State

funds, however, comprised 75% of the school district’s bud-

get in Belanger, id. (“[T]he bulk of the school district’s bud-

get comes directly from the state school fund . . . .” ), whereas

here they accounted for only a small percentage of the Dis-

trict’s budget.

In addition, in Belanger we emphasized that the State of

California exerts substantial control over the budgets of

school districts. For example, the State imposes a revenue

limit for each school district, determines the maximum

amount of funding each district receives (and spends on stu-

dents), and provides the necessary funds. Id. Therefore, “it

was not commingling per se,”3 but rather the unique level of

state control over the budgets of school districts that led us to

conclude in Belanger that local funds were interchangeable

with state funds. Id. In Belanger, it was the fact that “the state

controlled the budget and would be required to make up any

2

See Cal. Health & Safety Code §§ 44300-44394.

3

Were commingling of funds the only requirement for immunity from

suit, there would be few limits to the doctrine of sovereign immunity. See

Savage, 343 F.3d at 1041 (“[I]f mere commingling were enough to bestow

governmental agency status upon the School District, then it would also

be an arm of the federal government, as well as an arm of the [County].”).

BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1551

budgetary shortfalls” that made the state treasury vulnerable.

Savage, 343 F.3d at 1042. By contrast, the District is required

by California law to turn to local cities and counties, and not

the State of California, to make up any budgetary shortfalls.

Cal. Health & Safety Code § 40701.5(b) (stating that

expenses not met by funding sources shall be provided by an

assessment on cities that have a member on the district board

and on counties within the district); see also id. § 40101(a)(1)

(explaining that an air pollution control district’s funds may

be appropriated from local counties and deposited in the dis-

trict treasury).

Moreover, the District has the discretion to replenish its

budget by leasing, selling, or disposing of any property that

it no longer uses and paying any resulting proceeds into the

District’s general fund. Id. § 40701(e). With the authority to

raise its own funds, the District bears a closer resemblance to

the entities in Holz and Mt. Healthy than the school district in

Belanger. In Holz, the fact that Alaska provided a set amount

of state funds to local school districts suggested that the

school districts could supplement those funds with their own

revenues and, therefore, that a money judgment would not

necessarily be paid with state funds. 347 F.3d at 1184. In Mt.

Healthy, the Supreme Court held that the local school board

was not an arm of the state, despite receiving a significant

amount of money from the State of Ohio, because it had

extensive powers to issue bonds and to levy taxes. 429 U.S.

at 280; see also Hess v. Port Auth. Trans-Hudson Corp., 513

U.S. 30, 45 (1994) (noting the fact that the Port Authority

generated its own revenues in concluding that it was not an

arm of the state); Vierling v. Celebrity Cruises, Inc., 339 F.3d

1309, 1315 (11th Cir. 2003) (holding that an entity that was

“financially self-sufficient, generate[d] its own revenues, and

pa[id] its own debts” was not an arm of the state). The author-

ity to raise independent revenue is a relevant consideration

because “the fact that the state has given the entity the author-

ity to generate revenue provides compelling evidence that the

state has created an autonomous entity rather than an alter ego

1552 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL

or instrumentality that operates at the state’s behest and relies

exclusively on state appropriations.” Alex E. Rogers, Note,

Clothing State Governmental Entities with Sovereign Immu-

nity: Disarray in the Eleventh Amendment Arm-of-the-State

Doctrine, 92 Colum. L. Rev. 1243, 1308 (1992).

The District finally argues that, even if it has other sources

of funding, the State of California is ultimately responsible in

the event that a money judgment threatens the District’s sur-

vival. The District relies on two cases in which we held that

the first Mitchell factor weighed in favor of finding sovereign

immunity even though the state was not legally responsible

for a money judgment against the entity. See Aguon v. Com-

monwealth Ports Auth., 316 F.3d 899, 902-04 (9th Cir. 2003)

(concluding that the Commonwealth Ports Authority (CPA)

was an arm of the Commonwealth of the Northern Mariana

Islands even though the Commonwealth was “not directly lia-

ble for a judgment against the CPA”)4; Alaska Cargo Transp.,

Inc. v. Alaska R.R. Corp., 5 F.3d 378, 380, 382 (9th Cir. 1993)

(holding that a state-run railroad was an arm of the state

despite a state law providing that the railroad, and not the

state, was liable for a judgment against it).5

4

Although Eleventh Amendment sovereign immunity was not directly

at issue in Aguon, we applied the Mitchell test to guide our analysis of

whether the CPA was a “person” subject to suit under 42 U.S.C. § 1983.

Aguon, 316 F.3d at 901-02.

5

In both Aguon and Alaska Cargo, we considered the first Mitchell fac-

tor together with the second—whether the entity performs a central gov-

ernmental function—and concluded that the State was the “real,

substantial party in interest” despite the fact that it was not legally obli-

gated to satisfy a judgment against the entity. Aguon, 316 F.3d at 902

(stating that “we cannot divorce the second Mitchell factor . . . from our

assessment of the first factor” in determining whether the Commonwealth,

though not directly liable for a judgment against the CPA, was nonetheless

the real party in interest (quoting Alaska Cargo, 5 F.3d at 380)); Alaska

Cargo, 5 F.3d at 380 (“[W]e cannot divorce the second Mitchell factor, the

governmental function [the railroad] performs, from our assessment of the

first factor, which is the impact on the State of Alaska of a judgment

against [the railroad].”).

BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1553

In Alaska Cargo, however, we relied on a state statute that

required the railroad to seek funding from the state legislature

if a particular service was not self-sustaining. 5 F.3d at 381.

Furthermore, “[w]e emphasized the unique role of the Alaska

Railroad as the ‘life-support system for thousands of Alas-

kans’ that made it a central governmental function.’ ” Holz,

347 F.3d at 1184 (quoting Alaska Cargo, 5 F.3d at 381). Like-

wise, in Aguon, we noted that the Commonwealth would be

forced to pay an unsatisfied money judgment against the CPA

“to protect its island economy” because the CPA provided

“essential seaport and airport services.” Aguon, 316 F.3d at

903. We also noted that the function of the CPA in the Com-

monwealth was “equally indispensable to the role of [the rail-

road] in Alaska.” Id. at 902.

[6] Unlike in Alaska Cargo and Aguon, here the first Mitch-

ell factor weighs against a finding of sovereign immunity

because the District “is not a single, unique entity upon which

a great part of the state depends for its lifeline, and there is

no comparable structure of compulsion thrusting the State into

the role of real, substantial party in interest.” Holz, 347 F.3d

at 1185 (distinguishing the railroad at issue in Alaska Cargo

from the public school district at issue in Holz). We held in

Holz that in the absence of a showing that money used to pay

a judgment will necessarily be replaced with state funds, “we

adhere to our basic proposition that ‘the fact that the state may

ultimately volunteer to pay the judgment . . . is immaterial;

the question is whether the state treasury is legally obligat-

ed’ ” to do so. Id. (quoting Durning v. Citibank, N.A., 950

F.2d 1419, 1425 n.3 (9th Cir. 1991) (internal quotation marks

omitted) (emphasis in original)). Because here, the applicable

state law provides that the State has no legal obligation to pay

a money judgment against the District, and because there is

no evidence that the State would replace funds used to satisfy

a judgment,6 the first Mitchell factor—the one given most

6

In its discovery responses, the District stated that it did not know

whether it had a right of reimbursement from the State in the event that

it was required to pay a judgment against it, because the District would

first seek reimbursement from the county.

1554 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL

weight—favors a finding that the District is not an arm of the

state.

B. Central Governmental Function

[7] In assessing the second Mitchell factor—whether the

entity performs a central governmental function—we evaluate

whether the District addresses “a matter of statewide rather

than local or municipal concern,” see Belanger, 963 F.2d at

253, and “the extent to which the state exercises centralized

governmental control over the entity.” Savage, 343 F.3d at

1044. The District contends that it performs a central govern-

mental function because it was created by the State of Califor-

nia to enforce statewide and nationwide air pollution

standards.

It is true that air pollution control districts are the mecha-

nism through which the State meets and maintains state and

federal air quality standards under the federal Clean Air Act

and California law. See 42 U.S.C. §§ 7407(a) & 7410(a)(1)

(requiring each state to submit a plan specifying how it will

achieve and maintain national air quality standards in each air

quality control region within the state); Cal. Health & Safety

Code § 39602 (designating the California Air Resources

Board (“the Board”) as the state agency responsible for pre-

paring the implementation plan required by the Clean Air

Act); Id. §§ 40001-40002, 40702 (establishing air pollution

control districts and empowering them to adopt and enforce

rules and regulations designed to meet and maintain state and

federal air quality standards within their jurisdictions).7

7

Although the District is a state creation, see 42 U.S.C. § 7401(b)(4);

Cal. Health & Safety Code §§ 40000-41133, an entity is not automatically

entitled to sovereign immunity merely because it was created by the State.

“[U]ltimate control of every state-created entity resides with the State, for

the State may destroy or reshape any unit it creates. Political subdivisions

exist solely at the whim and behest of the State, yet cities and counties do

not enjoy Eleventh Amendment immunity.” Hess, 513 U.S. at 47 (internal

quotation marks omitted).

BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1555

[8] While air pollution control districts form a key part of

this larger state and federal regulatory framework, they none-

theless have a highly localized function. Although the Califor-

nia Air Resources Board, a state agency, coordinates the

activities of air pollution control districts that are necessary to

comply with the Clean Air Act, id. § 39602, the Board’s lim-

ited oversight role over districts does not support the Dis-

trict’s contention that it is merely an enforcement agency of

the Board and therefore performs a central governmental

function. Indeed, the California Legislature has declared that

“[l]ocal and regional authorities have the primary responsibil-

ity for control of air pollution from all sources other than

vehicular sources.” Id. § 39002 (emphasis added); see also id.

§ 40000 (same). The Legislature also has declared that

“[s]ince air pollution knows no political boundaries, . . . a

regional approach to the problem should be encouraged when-

ever possible . . . .” Id. § 39001. As the California Supreme

Court has explained, “Local and regional boards will be more

familiar with local conditions, both environmental and eco-

nomic, than the Board. . . . Thus the districts are asked to

evaluate the economic consequences of air quality regulation

in specific local situations where concrete relevant evidence

may be presented.” Western Oil & Gas Ass’n v. Air Res. Bd.,

691 P.2d 606, 619 (Cal. 1984). In sum, although the preven-

tion of air pollution is a matter of statewide concern, air pollu-

tion control districts perform primarily local governmental

functions. See Lynch v. San Francisco Hous. Auth., 65 Cal.

Rptr. 2d 620, 627 (Cal. Ct. App. 1997) (noting that local

housing authorities “admittedly address matters of concern to

the state . . . but in doing so they function within, and are con-

cerned with, a limited geographic area”).8

8

The District argues that “[a]ir pollution prevention falls under the

broad police powers of the states,” and that the delegation of this impor-

tant power to an air pollution control district makes it an arm of the state.

The fact that an entity has enforcement or police powers, however, does

not immunize it from suit. As the district court pointed out, municipalities,

even though they often carry out or enforce state rules and regulations, are

not entitled to sovereign immunity.

1556 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL

In addition to performing a primarily local function, air pol-

lution control districts are entrusted with a variety of discre-

tionary powers and have substantial autonomy in carrying out

their duties.9 For instance, they may adopt their own rules and

budgets, establish their own regulatory systems for reducing

air contaminants, issue abatement orders, and bring actions to

assess civil penalties against individuals who violate air pollu-

tion regulations. See Cal. Health & Safety Code §§ 40702,

40709, 40131, 42403, 42450. Districts also may delegate any

functions related to implementing transportation control mea-

sures to any local agency. Id. § 40717(e).

Further, just as California is allowed to implement air qual-

Indeed, the fact that an entity provides a valuable public service does

not make it an arm of the state. As the Supreme Court has explained:

A charitable organization may undertake rescue or other good

work which, in its absence, we would expect the State to shoul-

der. But none would conclude, for example, that in times of flood

or famine the American Red Cross, to the extent it works for the

public, acquires the States’ Eleventh Amendment immunity.

Hess, 513 U.S. at 50 (footnote omitted) (rejecting the argument that the

Port Authority is immune from suit because it supports public projects that

the State would otherwise have to finance).

9

Although the Mitchell test does not explicitly discuss the concept of

autonomy, we previously have incorporated this principle into the “central

governmental function” prong. See, e.g., Savage, 343 F.3d at 1044 (noting

that in analyzing the second Mitchell factor “we assess the extent to which

the state exercises centralized governmental control over the entity” and

concluding that Arizona school districts had “enormous autonomy in the

management of public education”). Moreover, the consideration of local

autonomy as a factor in our analysis is consistent with the practice of other

circuits. See, e.g., S.J. v. Hamilton County, 374 F.3d 416, 420 (6th Cir.

2004) (considering as one factor “what degree of control the state main-

tains over the entity”); Vierling, 339 F.3d at 1314 (considering as one fac-

tor “what degree of control the state maintains over the entity”); Wojcik

v. Mass. State Lottery Comm’n, 300 F.3d 92, 101 (1st Cir. 2002) (assess-

ing, among other things, “whether the state exerts control over the agency,

and if so, to what extent”); Southwestern Bell, 243 F.3d at 939 (same).

BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1557

ity standards that are more stringent than federal require-

ments, see 42 U.S.C. § 7416, regional and local districts have

discretion to promulgate and enforce air quality standards that

are more stringent than state requirements. See Cal. Health &

Safety Code § 41508. Air pollution control districts also have

the discretion to balance statewide environmental concerns

with potential local economic consequences by granting vari-

ances below state standards. Id. § 42350; Western Oil, 691

P.2d at 618.

[9] In light of the decentralized structure of air quality

enforcement in California, as well as the degree of autonomy

enjoyed by local air pollution control districts, we agree with

the district court that “while districts derive their authority

from the State, they are granted wide latitude to conduct their

affairs as they see fit, so long as they maintain standards at

least as stringent as those adopted by the State.” In short, the

District does not perform a central governmental function and

this second prong of the Mitchell test favors a finding that the

District is not an arm of the state.10

10

The District argues that it should be considered an arm of the state

because we recognized in United States v. Price that an analogous district

in Nevada acted under “state” authority when enforcing air pollution regu-

lations. 314 F.3d 417, 421 (9th Cir. 2002). Price is inapposite, however.

There, we applied the separate sovereign doctrine to determine that the

Double Jeopardy Clause did not bar Price’s prosecution for a violation of

the Clean Air Act even though the local district had levied a fine against

Price for the same conduct. Id. Determining that an entity acts under the

authority of a state as opposed to the federal government in the context of

the Double Jeopardy Clause is far different from holding that the entity is

an arm of the state under the Eleventh Amendment. Thus, our holding in

Price does not compel a finding that the District here enjoys sovereign

immunity. Cf. Edelman v. Jordan, 415 U.S. 651, 668 n.12 (1974) (noting

that “while county action is generally state action for purposes of the Four-

teenth Amendment, a county defendant is not necessarily a state defendant

for purposes of the Eleventh Amendment”).

The District also cites Sherwin-Williams Co. v. South Coast Air Quality

Mgmt. Dist., 104 Cal. Rptr. 2d 288, 302 (Cal. Ct. App. 2001), for the prop-

osition that California law considers an air quality management district

1558 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL

C. Power to Sue or Be Sued

[10] An entity’s power to sue or be sued weighs against a

finding of Eleventh Amendment immunity. Belanger, 963

F.2d at 254. It is undisputed that California law provides that

“[a] district shall have power . . . [t]o sue and be sued in the

name of the district in all actions and proceedings in all courts

and tribunals of competent jurisdiction.” Cal. Health & Safety

Code § 40701(b). In addition, state law specifically contem-

plates that claims for damages may be brought against air pol-

lution control districts. See id. § 40707 (providing that

“claims for money or damages against a district are governed

by” provisions in the California Government Code pertaining

to claims and actions against public entities). And at least one

California court has allowed a damages lawsuit against an air

pollution control district. See Colusa Air Pollution Control

Dist. v. Superior Court of Los Angeles County, 277 Cal. Rptr.

110, 112-13 (Cal. Ct. App. 1991) (holding that an air pollu-

tion control district was properly joined as a defendant in an

environmental lawsuit seeking, among other relief, monetary

damages). Although this third factor of the Mitchell test is not

dispositive, it clearly favors a finding that the District is not

an arm of the state.

D. Power to Take Property in its Name

[11] California law also authorizes the District to “take by

grant, purchase, gift, devise, or lease, to hold, use, and enjoy,

and to lease or dispose of any real or personal property within

or without the district necessary to the full exercise of its

(and therefore, an air pollution control district) a “state agency.” This is

a mischaracterization of Sherwin-Williams, however, which used the

phrase “state agency” only in its statement of the standard of review in

environmental agency cases. Leaving aside the fact that Sherwin-Williams

never addressed sovereign immunity, it is obvious that “[l]abeling an

entity as a ‘state agency’ in one context does not compel treatment of that

entity as a ‘state agency’ in all contexts.” Lynch, 65 Cal. Rptr. 2d at 623.

BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1559

powers.” Cal. Health & Safety Code § 40701(d). A district

even may use the proceeds from property transactions to

replenish its general fund. See id. § 40701(e). This factor also

weighs in favor of finding that the District is not an arm of the

state.

E. Corporate Status

[12] “The final Mitchell factor is concerned with the extent

to which . . . an entity [is] distinct from the state.” Holz, 347

F.3d at 1188. Here, California law defines an air pollution

control district as “a body corporate and politic and a public

agency of the State.” Cal. Health & Safety Code § 40700. On

the one hand, the characterization of a district as a body cor-

porate implies that the District has a corporate status separate

from the State of California. See Durning v. Citibank, N.A.,

950 F.2d 1419, 1427 (9th Cir. 1991) (holding that a state law

defining a community development authority as “body corpo-

rate operating as a state instrumentality” indicated that it had

“its own independent corporate identity”). On the other hand,

the designation of a district as “a public agency of the State”

suggests that it may not have a separate identity. Nonetheless,

as noted above, under the California Government Code, a

“district” is included in the definition of a “local public enti-

ty,” and a “local public entity” is specifically distinguished

from “the State.” Cal. Gov’t Code § 900.4 (providing that a

“local public entity” includes “a county, city, district, public

authority, public agency, and any other political subdivision

or public corporation in the State, but does not include the

State”); see also id. § 900.6 (defining “State” as “the State

and any office, officer, department, division, bureau, board,

commission or agency of the State claims against which are

paid by warrants drawn by the Comptroller”).11

11

See also Moor v. County of Alameda, 411 U.S. 693, 719-21 (1973)

(noting that provisions of California law designating a county as a “body

corporate and politic” and defining a county as a “local public entity” in

contrast to the State were “persuasive indicia of the independent status”

of counties relative to the State, leading to the conclusion that Alameda

County had a “sufficiently independent corporate character” to warrant its

treatment as a citizen of the state for purposes of diversity jurisdiction).

1560 BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL

The District’s independent corporate status is also evident

in its system of governance. California law provides that the

governing board of any air pollution control district shall be

comprised of mayors, city council members, and county

supervisors — as jointly determined by member counties and

cities — and shall reflect the geographic diversity of the

region. See Cal. Health & Safety Code § 40704.5; cf. Aguon,

316 F.3d at 903-04 (noting that the Commonwealth Ports

Authority had a Commonwealth-appointed board of directors

and a governor-appointed director); Alaska Cargo, 5 F.3d at

381-82 (noting that the governor appointed all seven members

of the railroad’s board); Wojcik, 300 F.3d at 101 (noting that

the governor had power of approval over the Lottery Com-

mission’s director and power of appointment over the Com-

mission’s governing officials).

[13] In terms of day-to-day governance, the District’s gov-

erning board determines the number of personnel it employs

and how much it pays employees. Cal. Health & Safety Code

§§ 40705, 40706. County officers and employees are expected

to work ex officio for the district, as they would for the

county, without additional compensation. Id. § 40120. As the

district court properly noted, “the State exercises little control

over the structure and operation of the districts, which sug-

gests that districts function independently from the State”; see

also Williams, 242 F.3d at 321 (refusing to extend sovereign

immunity to a regional transportation authority whose execu-

tive committee consisted of members appointed by municipal-

ities and whose “day-to-day operations . . . fall under purely

local control”). Therefore, this fifth factor also favors a find-

ing that the District is not an arm of the state.

****

[14] In sum, all five of the Mitchell factors lead to the con-

clusion that California’s air pollution control districts are not

instrumentalities of the State entitled to sovereign immunity

under the Eleventh Amendment. Accordingly, we affirm the

BEENTJES v. PLACER COUNTY AIR POLLUTION CONTROL 1561

district court’s rulings denying the District’s motions for sum-

mary judgment and reconsideration.

AFFIRMED.