# United States of America, Cross-Appellee v. Ohio Department of Highway Safety and Donald D. Cook, Director, Cross-Appellants > Court of Appeals for the Sixth Circuit · December 5, 1980 · 635 F.2d 1195 URL: https://www.frixlaw.com/law-library/cases/9467330 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. OHIO DEPARTMENT OF HIGHWAY SAFETY and Donald D. Cook, Director, Defendants-Appellees, Cross-Appellants - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** December 5, 1980 - **Citations:** 635 F.2d 1195; 11 Envtl. L. Rep. (Envtl. Law Inst.) 20026; 15 ERC (BNA) 1273; 15 ERC 1273; 1980 U.S. App. LEXIS 11680 - **Precedential status:** Published - **Opinion:** Dissent by Weick - **Judges:** Weick, Lively, Merritt - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9467330 ## Opinion text WEICK, Circuit Judge, dissenting: I respectfully dissent. As the majority concedes, we are treading on virgin territory. No court has ever enforced upon a state any order similar to the one involved here. I believe that District Judge Duncan arrived at the correct result and I would affirm his decision. The Director of the State of Ohio Department of Highway Safety had no legal authority to withhold licenses to persons applying for them to operate their automobiles, in order to enforce regulations adopted by EPA which were claimed to have been violated not widespread in Ohio, but only in the Cincinnati, Hamilton County area. It would require legislation to be enacted by Ohio’s legislature. The state legislature had not enacted such enabling legislation and in its absence EPA cannot proceed against a state officer who had no authority to act nor could EPA order the state to enact the necessary legislation. The argument of EPA that because Ohio owns title to the highways, it is a polluter and may be proceeded against both criminally and civilly. This argument borders on being frivolous. It is a non sequiter. If the state operated a truck on the public highways in violation of an EPA regulation or operated a plant or other facility in violation thereof, it could be proceeded against directly by EPA. By no stretch of the imagination, however, could the state be held liable civilly or criminally because of the violation by other persons of EPA regulations merely because the state legislature took no action enabling state officers to enforce federal laws or regulations. This position of EPA was rejected in Brown v. EPA, 566 F.2d 695 (9th Cir. 1977). To proceed against the state of Ohio under these circumstances not only deprives the state of due process of law but of the equal protection of the law as guaranteed by the Constitution of the United States. It would also violate the plainest principles of federalism. National League of Cities v. Usery, 426 U.S. 833 , 96 S.Ct. 2465 , 49 L.Ed.2d 245 ; United States v. Best, 573 F.2d 1095, 1103 (9th Cir. 1978). The state should no more be required to enforce federal laws than the federal government should be required to enforce state laws. Ohio is a sovereign state and has sovereign immunity under the Eleventh Amendment to the Constitution. It may not be sued in Ohio’s courts for damages by private individuals. Kraus, Admr. v. State, 31 Ohio St.2d 132 , 285 N.E.2d 736 (1972). A suit against a state agency in Ohio is in substance and effect a suit against the state and may not be maintained. Wolf v. Ohio State University Hospital, 170 Ohio St. 49 , 162 N.E.2d 475 (1959); State ex rel. Williams v. Glander, 148 Ohio St. 188 , 74 N.E.2d 82 (1947). *1207 EPA obviously must not be very confident of the merits of its case when it moved this court to dismiss its appeal as moot because Ohio had enacted legislation to implement its procedures but which in no way governs, controls or applies to the issues of this appeal. We ought to comply with EPA’s request and dismiss its appeal not because the issues are moot but because its appeal lacks merit and asserts grave constitutional questions which should not be necessary for us to decide. Cf. United States v. Washington, 573 F.2d 1118 (9th Cir. 1978). Other concessions made by EPA of the invalidity of its own regulations were detailed by the Supreme Court in EPA v. Brown, 431 U.S. 99 , 97 S.Ct. 1635 , 52 L.Ed.2d 166 (1977). These regulations were held invalid in Brown v. EPA, 521 F.2d 827 (9th Cir. 1975); Arizona v. EPA, 521 F.2d 825 (9th Cir. 1975); District of Columbia v. Train, 521 F.2d 971 (1975); Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975). Because of these concessions the Supreme Court remanded all four cases for consideration of mootness and other questions. On remand, EPA made a further concession that the statute does not permit it to compel state enforcement. Brown v. EPA, 566 F.2d 665 , 659 n. 2 (9th Cir. 1977); District of Columbia v. Costle, 567 F.2d 1091 (D.C.Cir.1977) remanded for further administrative proceedings. The conduct of EPA in coercing states to enforce its regulations by withholding federal funds to which the states were entitled for other purposes has been condemned. See article in Wall Street Journal entitled “Exhausting States’ Rights”, August 5, 1980. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9467330. Public record. Not legal advice.