Petition for Writ of Certiorari — Ysleta del Sur Pueblo v. El Paso County Water Improvement District No. 1

_.. Supreme Court, U.s.

() FILED

00 54 JUL 102000

No. ——

SSS

IN THE

Supreme Court of the Anited States

YSLETA DEL SUR PUEBLO,

Petitioner,

V.

EL PASO COUNTY WATER IMPROVEMENT DISTRICT NO. 1,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

THOMAS M. DIAMOND, JR.

DIAMOND RASH GORDON &

JACKSON, P.C.

300 East Main Drive

Seventh Floor

El Paso, Texas 79901

(915) 533-2277

Attorneys for Ysleta del Sur Pueblo

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

QUESTION PRESENTED

Does the Eleventh Amendment bar suit against a political

Subdivision of a state simply because the entity possesses

powers of government?

(i)

In THE

Supreme Court of the United States

No.

YSLETA DEL SuR PUEBLO,

Petitioner,

V.

EL PASO COUNTY WATER IMPROVEMENT DISTRICT No. 1,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Comes now Ysleta del Sur Pueblo, a federally recognized

Indian tribe, seeking certiorari to review the opinion of the

United States Court of Appeals for the Fifth Circuit, and would

respectfully show unto the honorable Court as follows:

STATEMENT OF JURISDICTION

The judgment of the Fifth Circuit was entered on April 10,

2000, Appendix at 15a. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1).

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OPINIONS BELOW

Neither the order of the United States District Court for the

Western District of Texas dismissing the case on jurisdictional

grounds, Appendix at la, nor the opinion of the Court of

Appeals affirming dismissal, Appendix at 17a, are reported.

CONSTITUTIONAL PROVISIONS

U.S. Const. amend X{: The 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 another State, or by Citizens or Subjects of a Foreign

State.

Tex. Const. art. 16 § 59(b): [Conservation and reclamation

districts] shall be governmental agencies and bodies politic and

corporate with such powers of government and with the

authority to exercise such rights, privileges and functions . . . as

may be conferred by law.

STATEMENT OF THE CASE

The Pueblo brought suit in federal court to eject El Paso

County Water Improvement District No. 1 (““EPCWID”) from

real property occupied by EPCWID’s administrative office and

service yard. The Pueblo alleged legal title to the property

pursuant to a 1751 grant from the Kingdom of Spain as well as

an aboriginal right to possess the property, both the fee interest -

and usufructuary right being inalienable under the Indian Non-

Intercourse Act, 25 U.S.C. § 177. EPCWID is a political

subdivision of the State of Texas, organized under section 59(b)

of Article 16 of its Constitution.

The District Court dismissed the Pueblo’s suit for lack of

jurisdiction. Appendix at 14a. The District Court first

determined that the Eleventh Amendment barred the Pueblo’s

claims if asserted against the state. The District Court then

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found that Texas is the real party in interest in this suit. The

District Court acknowledged the existence of the Fifth Circuit’s

six-factor test to determine whether the state is the real party in

interest in a lawsuit brought against an agency of the state. The

District Court did not apply the test, however, finding that the

“bright-line” test established in Pillsbury Co. v. Port of Corpus

Christi, 66 F.3d 103, 104 (Sth Cir. 1995), cert. denied, 517 U.S.

1203 (1996), mandates that entities created and operating

pursuant to section 59 of article 16 of the Texas Constitution,

such as the EPCWID, be accorded Eleventh Amendment

immunity. Appendix at 14a.

Citing its decision in Pillsbury at 104, and its decision in

Kamani v. Port of Houston Authority, 702 F.2d 612, 613 (Sth

Cir. 1983), the Court of Appeals affirmed the order of the

District Court. Appendix at 18a.

ARGUMENT

The Fifth Circuit’s “bright-line” test—that a political sub-

division of the state which possesses powers of govern-

ment also enjoys Eleventh Amendment immunity—is

contrary to the decisions of this Court, other circuits, and

its own precedents.

Although the Eleventh Amendment bar encompasses actions

against state instrumentalities, courts must first decide as a

matter of federal law whether a particular entity has the same

kind of independent status as a county or is instead an arm of the

state. Regents of the University of California v. Doe, 519 U.S.

425, 429-430 (1997). The Fifth Circuit developed a six-factor

test in Jacintoport Corp. v. Greater Baton Rouge Port

Commission, 762 F.2d 435 (Sth Cir. 1985), to determine

whether an entity is the alter ego of the state:

(1) whether the state statutes and case law characterize the

agency as an arm of the state; (2) the source of the funds

for the entity; (3) the degree of local autonomy the entity

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enjoys; (4) whether the entity is concerned primarily with

local, as opposed to state-wide problems; (5) whether the

entity has authority to sue and be sued in its own name;

and, (6) whether the entity has the right to hold and use

property.

See McDonald v. Board of Mississippi Levee Commissioners,

832 F.2d 901, 906 (Sth Cir. 1987)(citations omitted).

Applying the Jacintoport test to EPCWID in the same manner

as applied by the Fifth Circuit to the Board of Mississippi Levee

Commissioners in McDonald demonstrates that EPCWID is less

entitled to the Eleventh Amendment immunity which was

denied the Board in the Mississippi case. The Fifth Circuit

refused to apply the Jacintoport test, however, because of the

“bright-line” test it previously established in Pillsbury.

The decision in Pillsbury “reaffirmed” the holding in Kamani

that entities created under section 59 of article 16 of the Texas

Constitution are entitled to Eleventh Amendment immunity. '

The Court based its decision in Kamani on its prior description

of an entity created under section 59 as “‘a creature of state law

and a political subdivision of the State of Texas.” See McCrea

v. Harris County Houston Ship Channel Navigation District,

423 F.2d 605, 607 (Sth Cir.), cert. denied, 400 U.S. 927 (1970).?

The statement is a truism shedding no light on Eleventh

Amendment issues.

The Texas Supreme Court had previously determined that an

entity existing and operating under section 59 “is a

governmental agency and body politic, governed by the laws

applicable to counties.” Bennett v. Brown County Water

Improvement District No. 1,272 S.W.2d 498, 502 (Tex. 1954).

' The issue in Kamani was whether plaintiff complied with the notice

provision of the Texas Tort Claims Act. See 702 F.2d at 615-616.

? The issue in McCrea was whether defendant was a “common carrier by

railroad” as defined by the Federal Employers Liability Act. See 423 F.2d at

606.

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The Texas Supreme Court went on to hold that the water district

is immune from suit in state court because counties in Texas

enjoy such immunity. Jd. at 502. The Eleventh Amendment,

however, does not bar suits against the counties of Texas. See

Crane v. Texas, 759 F.2d 412, 415-416 (Sth Cir.), amended on

denial of rehearing, 766 F.2d 193 (Sth Cir.), cert. denied, 474

U.S. 1020 (1985). The Fifth Circuit’s “bright-line” test is in

error because powers of government, such as sovereign

immunity, is but one of many factors used in determing whether

an entity is an arm of the state. Cf., Sutton v. Utah State School

for the Deaf and Blind, 173 F.3d 1226 (10th Cir. 1999) (the fact

that a school district is entitled to state sovereign immunity does

not determine extent of Eleventh Amendment immunity).

The decision of the Fifth Circuit permits States to shield their

political subdivisions from action in federal court for violation

of federal law merely by ascribing “powers of government” to

the entities. Form, not substance, becomes the touchstone of the

Eleventh Amendment immunity. The “bright-line” test does

nothing to protect the sovereign interests of states, but instead

frees their political subdivisions to trample the federal rights of

their citizens by shutting the doors to the federal courthouse.

CONCLUSION

The Pueblo respectfully requests that this Court grant its

petition for a writ of certiorari.

Respectfully submitted,

THOMAS M. DIAMOND, JR.

DIAMOND RASH GORDON &

JACKSON, P.C.

300 East Main Drive

Seventh Floor

El Paso, Texas 79901

(915) 533-2277

Attorneys for Ysleta del Sur Pueblo