U.S. Tech. Corp. v. Miss. Dep't of Envtl. Quality

U.S. TECHNOLOGY CORPORATION, et al. PLAINTIFFS v. MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY, et al. DEFENDANTS

CIVIL ACTION NO. 5:15-cv-66(DCB)(MTP)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI WESTERN DIVISION

July 28, 2016

MEMORANDUM OPINION AND ORDER

This cause is before the Court on the Motion to Dismiss all state law claims for lack of jurisdiction or, in the alternative, Motion for Summary Judgment (docket entry 30) brought by defendants Mississippi Department of Environmental Quality ("MDEQ"), Richard Harrell in his official capacity, and Steven Bailey in his official capacity; and on the Motion to Dismiss (docket entry 32) brought by defendants ("MDEQ"), Richard Harrell in his official capacity, and Steven Bailey in his official capacity. Having carefully considered the motions, the plaintiffs' responses, the memoranda of the parties and the applicable law, and being fully advised in the premises, the Court finds as follows:

The Motion to Dismiss all state law claims for lack of jurisdiction or, in the alternative, Motion for Summary Judgment (docket entry 30) seeks dismissal of all state law claims (Counts 4-7 of the Amended Complaint) against MDEQ and Bailey and Harrell in their official capacities,¹ or, in the alternative, summaryjudgment. The second Motion to Dismiss (docket entry 32) also seeks dismissal of those same state law claims (Counts 4-7), as well as dismissal of three additional causes of action: Count 1, in which the plaintiffs seek an injunction to compel MDEQ to permit plaintiff U.S. Technology Corporation ("UST") to re-cycle the non-treated, bagged "spent blast material" ("SBM") at an acceptable recycling facility; Count 2, in which the plaintiffs seek an injunction to compel MDEQ to accept UST's TCLP testing results showing that the SBM located at the Yazoo site is non-hazardous; and Count 3, in which the plaintiffs seek an injunction to compel MDEQ to allow the recycled SBM that is currently in the landfill to remain there.

The Eleventh Amendment bars Counts 1 through 3 against MDEQ and the individual defendants sued in their individual capacities. Neither MDEQ nor the individual defendants sued in their individual capacities can be considered "persons" for purposes of 42 U.S.C. § 1983. Federal Rule 12(b)(1) is the appropriate vehicle for dismissal for all of the claims against the State Defendants. See, e.g., United States v. Texas Tech Univ., 171 F.3d 279, 285 n. 9, 288 (5^th Cir. 1999); Hawn v. Hughes, 2014 WL 4384236, *3 (N.D. Miss. Sept. 3, 2014); Lambert v. Kenner City, 2005 WL 53307, *2 (E.D. La. Jan. 5, 2005); Williams v. Barbour, 2009 WL 3230885, *2 (S.D. Miss. Oct. 2, 2009); Cager v. Norfolk S. R. Co., 2003 WL 1618661, *6(E.D. La. Mar. 26, 2003).

In addition, the plaintiffs' claims are properly dismissed under Rule 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), a "complaint must allege 'sufficient factual matter, accepted as true, to state a claim that is plausible on its face.'" Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5^thCir. 2010)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. at 245 (quoting Iqbal, 129 S. Ct. at 1949). Although a court must take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff, this "tenet" is "inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. In other words, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5^th Cir. 1993); Patton v. Bryant, 2014 WL 36618, *1 (S.D. Miss. Jan. 6, 2014), reconsideration denied, 2014 WL 457921 (S.D. Miss. Feb. 4, 2014) and aff'd, 584 F.App'x 242 (5^th Cir. 2014).

The Eleventh Amendment to the Constitution states "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecutedagainst one of the United States by Citizens of another State ...." U.S. CONST. AMEND. XI. This immunity is "far reaching." Carpenter v. Mississippi Valley State Univ., 807 F. Supp. 2d 570, 580 (N.D. Miss. 2011). The Eleventh Amendment guarantees that "nonconsenting States may not be sued by private individuals in federal court." Board of Trustees of the Univ. of Alabama v. Garrett, 351 U.S. 356, 363 (2001)(citations omitted).

Although the terms of the Eleventh Amendment nominally apply only to suits by "Citizens of another State," Supreme Court decisions have made clear that a State's immunity encompasses "suits by citizens against their own States." Garrett, 351 U.S. at 363; see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1, 15 (1890). The immunity granted to the State extends also to a state agency or department and cannot be avoided by suing an arm of the state or a state agency. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 318 (5^th Cir. 2001); Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 280 (1977).

Moreover, the Eleventh Amendment bars claims against states, state agencies, and state officials based on federal and state law. See Buras v. Louisiana, 2013 WL 5410466, *1 (E.D. La. Sept. 25, 2013)("Both federal and state law claims are barred from being asserted against a state in federal court."). As declared by theSupreme Court in Pennhurst State School & Hospital v. Halderman:

A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment.

465 U.S. 89, 106 (1984).

The Fifth Circuit has held that a plaintiff's state law claims "are not cognizable ... because state officials continue to be immunized from suit in federal court on alleged violations of state law brought under the federal courts' supplemental jurisdiction." Earles v. State Bd. of Certified Public Accountants of La., 139 F.3d 1033, 1039 (5^th Cir. 1998); see also Mississippi Surplus Lines Ass'n v. Mississippi, 384 F.Supp.2d 982, 985-86 (S.D. Miss. 2005). The Eleventh Amendment clearly reaches the plaintiffs' claims brought under federal and Mississippi state law.

As the undersigned recognized in Davis v. City of Vicksburg, 2015 WL 4251008, *2 (S.D. Miss. 2015), "[s]overeign immunity, available to the State of Mississippi, is also available to an arm of the state ...." MDEQ is an arm of the State of Mississippi. To determine whether an entity asserting immunity is an arm of the state, the Fifth Circuit typically uses a six factor analysis. Vogt v. Bd. of Comm'rs of the Orleans Levee Dist., 294 F.3d 684, 688-89 (5^th Cir. 2002); Williams v. Dallas Area Rapid Transit, 242F.3d 315, 318 (5^th Cir. 2001); Richardson v. Southern University, 118 F.3d 450, 452 (5^th Cir. 1997). These six factors are: (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 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. Williams, 242 F.3d at 319.

An analysis of MDEQ under these factors leads to the conclusion that it is an arm of the State of Mississippi. See, e.g., MISS. CODE ANN. § 49-2-1 (legislative intent); MISS. CODE ANN. § 49-2-4 ("The department shall be headed by an executive director who shall be appointed by and serve at the pleasure of the Governor. The appointment of the executive director shall be made with the advice and consent of the Senate."); MISS. CODE ANN. § 49-2-5; MISS. CODE ANN. § 49-2-19. See also Gulf Park Water Company, Inc. v. Mississippi Department of Environmental Quality, 59 F.3d 1241, 1995 WL 413105, *1 (5^th Cir. 1995)(unpublished)("All the claims against the Mississippi Department of Environmental Quality, the Mississippi Commission on Environmental Quality, and the Mississippi Public Service Commission should have been dismissed on the basis of their Eleventh Amendment immunity, and also because none of such defendants are 'persons' within the meaning of 42U.S.C. § 1983, which formed the jurisdictional basis of this law suit."); see also Will v. Michigan Department of State Police, 491 U.S. 58 (1989)); Frazier v. Pioneer Americas LLC, 455 F.3d 542, 547 (5^th Cir. 2006)(noting that where Louisiana DEQ did not consent to removal, it did not waive its Eleventh Amendment immunity); Michigan Peat v. Regional Adm'r of Region V of U.S. E.P.A., 7 F.Supp. 2d 896, 900 (E.D. Mich. 1998)(holding that state "DEQ" was entitled to Eleventh Amendment Immunity); V-1 Oil Co. v. State of Wyo., Dep't of Envtl. Quality, 902 F.2d 1482, 1484 (10^th Cir. 1990) ("The district court granted summary judgment for each defendant. DEQ and the State were dismissed because of their Eleventh Amendment immunity from suit in federal court."). The Eleventh Amendment thus bars Plaintiffs' suit against MDEQ. See Edelman v. Jordan, 415 U.S. 651, 663 (1974); Mohler v. Mississippi, 782 F.2d 1291, 1292-93 (5^th Cir. 1986).

Eleventh Amendment immunity not only bars suits by private citizens against a State, it also bars suits against state officers in federal court. Official capacity lawsuits "generally represent only another way of...