UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-30463

ROBERT G. PENDERGRASS,

Plaintiff-Appellee,

VERSUS

THE GREATER NEW ORLEANS EXPRESSWAY COMMISSION,

DAVID HURSTELL, AND JAMES DIGBY,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

June 18, 1998

Before BARKSDALE, BENAVIDES, AND DENNIS, Circuit Judges.

Dennis, Circuit Judge:

The plaintiff-appellee, Robert G. Pendergrass, brought this

suit for monetary damages under 42 U.S.C. §1983 against the

defendants-appellants, the Greater New Orleans Expressway

Commission (GNOEC) and its police officer employees, David Hurstell

and James Digby, alleging that the officers had violated his Fourth

Amendment rights by using excessive force on him during an arrest.

The GNOEC and its officers moved for summary judgment and/or a

dismissal for lack of subject matter jurisdiction alleging (1) that2

the GNOEC was immune from this suit under the Eleventh Amendment

because of its status as an agency or arm of the state, and, in the

alternative, (2) that the officers involved w ere not “persons”

under §1983. The district court denied the motion. The defendants

appealed. We affirm.

Factual Background

On July 29, 1994, Robert Pendergrass, the plaintiff, was

exiting the Causeway Bridge in Metairie, Louisiana, on his way to

New Orleans when he was stopped for speed ing by two GNOEC police

officers, the defendants David Hurstell and James Digby. After the

stop, the officers arrested Pendergrass for speeding and driving

while intoxicated and handcuffed him. The officers allegedly used

excessive and unnecessary force, striking Pendergrass’s head,

pushing him to the ground and pulling him up with the handcuffs.

Pendergrass allegedly sustained severe and disabling injuries

requiring two surgical procedures as a result.

Analysis

The Eleventh Amendment to the Unit ed States Constitution

provides that:

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 Citizens of another State, or by Citizens or Subjects3

of any Foreign State.

Adopted i n order to override C hisholm v. Georgia

, 2 Dall. 419, 1

L.Ed. 440 (1793), the Eleventh Amendment confirms the States’ role

in our federal system as separate sovereigns which may not be sued

in the court of another sovereign, i.e. the federal government, or

their own courts absent consent or, in certain circumstances,

congressional abrogation of sovereign immunity. S ee Seminole Tribe

of Fl. v. Florida

, 517 U.S. 44, 54-56 (1996); see also Puerto Rico

Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146

(1993)(“The [Eleventh] Amendment is rooted in a recognition that

the States, although a union, maintain certain attributes of

sovereignty, including sover e ign immunity.”). In addition to

barring suits by citizens of one state against another state in

federal court, the Eleventh Amendment also “bars suits in federal

court by citizens of a state against their own state or a state

agency or department.” V oisin’s Oyster House, Inc. v. Guidry, 799

F.2d 183, 185 (5th Cir. 1986); H ans v. Louisiana, 134 U.S . 1

(1890). It is well settled that even though a state is not named

a party to the action, the suit may nonetheless be barred by the

Eleventh Amendment if the state is the real, substantial party in

interest because the suit seeks to impose a liability which must be

paid from public funds in the state treasury. Edelman v. Jordan

,

415 U.S. 651, 663 (1974); Ford Motor Co. v. Department of Treasury

,

323 U.S. 459, 464 (1945).4

Accordingly, we must determine whether the GNOEC is “an arm of

the state enjoying eleven th amendment immunity or whether it

possesses an identity sufficiently distinct from that of the State

of Louisiana to place it beyond that shield.” Minton v. St.

Bernard Parish Sch. Bd. , 803 F.2d 129, 131 (5th Cir. 1986). This

court has held that, in deciding whether a named defendant is

entitled to Eleventh Amendment immunity as an “arm of the state,”

“we ‘must examine the particular entity in question and its powers

and characteristics as created by state law....’” Clark v. Tarrant

County, Texas

, 798 F.2d 736, 744 (5th Cir. 1986)(quoting Laje v.

R.E. Thomason General Hosp.

, 665 F.2d 724, 727 (5th Cir. 1982)).

The relevant factors include: “(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) t he degree of local

autonomy th e entity enjoys; (4) whether the entity is concerned

primarily with local, as opposed to sta tewide, problems; (5)

whether t he entity has authority to sue and be sued in its own

name; and (6) whether the entity has the right to hol d and use

property.” M inton

, 803 F.2d at 131; see also Delahoussaye v. City

of New Iberia, 937 F.2d 144, 147 (5th Cir. 1991).

Applying the relevant factors, we conclude that the GNOEC is

not an arm of the state and, therefore, is not shielded by the

state’s Eleventh Amendment immunity.5

(1) The relevant statutes and case law characterize the GNOEC as a

local entity and not an arm of the state

.

The statutes pertaining to the GNOEC characterize it as a

local or interparish ent ity. The GNOEC was created as a public

corporation in 1954 by the parishes of Jefferson and St. Tammany

for the purpose of building and operating a toll causeway over Lake

Pontchartrain as a direct vehicular transportation link between the

two parishes. The two parishes established the GNOEC as their own

instrumentality under the authority of the Local Services Law, La.

R.S. 33:1321 et seq., which empowers any combination of parishes to

agree to jointly construct, acquire or improve any public project,

including causeways, bridges, highway facilities and other means of

public transportation. La. R.S. 3 3:1324. The GNOEC articles of

incorporation provide that it is an agency and instrumentality of

the parishes of Jefferson and St. Tammany. Article VI §22(g)(5) of

the 1921 Louisiana Constitution was also added in 1952 to confer

the nec essary authority on the parishes of Jefferson and St.

Tammany to construct, maintain and operate the causeway and issue

revenue bonds for that purpose. However, that constitutional

provision specifically states that such bond s shall not be or

constitute a debt of the state. La. Const. of 1921, art. VI,

§22(g).

Subsequently, the legislature enacted laws imposing financial

and budgetary regulatio ns upon the GNOEC. Act 762 of 1986, §12,6

requires the GNOEC to comply with the Louisiana Local Government

Budget Act which governs the budgetary procedures of local

government entities. Act 875 of 1988 requires the GNOEC to comply

with the Louisiana Administrative Procedures Act with respect to

contracts and bonds and to submit its proposed annual budget to the

joint legislative budget committee for review and approval. 1988

La. Acts 875 §2(B) & (C). This legislation, however, did not alter

the essential powers or characteristics of the GNOEC in any

respect. In fact, Act 762 of 1986 expressly recognized and

reaffirmed that the GNOEC is the same commission that was “ created

by the parishes as an agency and instrumentality of the parishes

,

pursuant to article s of incorporation dated October 20, 1954.”

1986 La. Acts 762 §1(2)(emphasis added).

In addition, Louisiana courts have characterized the GNOEC as

a local or interparish entity rather than as an arm of the state.

See Greater New Orleans Expressway Comm’n v. Board of Tax Appeals,

681 So.2d 957, 959-60 (La. Ct. App. 5th Cir. 1996)(holding that the

GNOEC was not a state agency or c ommission which would be exempt

from state sales and use taxes); Parish of Jefferson v. Roemer, 539

So.2d 97, 100 (La. Ct. App. 5th Cir. 1989)(describing the GNOEC as

an “interparish entity” created under the provisions of La. R.S.

33:1324); see also Schultz v. Greater New Orleans Expressway

Comm’n, 250 F.Supp. 89, 91-92 (E.D. La. 1966)(holding that the

GNOEC was a distinct political corporation created by the parishes7

of Jefferson and St. Tammany and, there fore, not entitled to

Eleventh Amendment immunity).

In sum, Louisiana laws an d court decisions characterize the

GNOEC as a local, interparish entity and not as an arm of the

state.

(2) The source of funds for the GNOEC

.

An important goal of the Eleventh Amendment is the protection

of state treasuries. D elahoussaye, 937 F.2d at 148-49. Therefore,

whether “the action is in esse nce one for the recovery of money

from the state,” is a most significant test in determining whether

“the state is the real party in interest and is entitled to invoke

its sovereign immunity from suit even though individual officials

are nominal defendants.” Ford Motor Co., 323 U.S. at 464; see

Edelman

, 415 U.S. at 663(“Thus the rule has evolved that a suit by

private parties seeking to impose liability which must be paid from

public funds in the state treasury is barred by the Eleventh

Amendment.”); United Carolina Bank v . Board of Regents , 665 F.2d

553, 560 (5th Cir. 1982).

The GNOEC finances its operation and maintenance of the Lake

Pontchartrain Causeway with self-generated income, viz., toll

revenue and bond investment income. Bonds issued by the GNOEC,

which generate construction and investment revenues , do not

constitute debts of the state and are not backed by the full faith1 The six parishes are as follows: Orleans, Jefferson, St. John

the Baptist, St. Charles, Tangipahoa, and St. Tammany.

8 and credit of the state. La. Const. of 1921, art. VI, §22(g); C f.

Jacintoport Corp. v. Greater Baton Rouge Port Comm’n, 762 F.2d 435,

439 (5th Cir. 1985)(noting that a state’s guarantee of bonds issued

by an entity can be evidence, however slight, of state agency

status). The GNOEC finances its bond debt service with its bond

investment revenue and with money allocated from State Highway Fund

No. 2.

The only money the GNOEC receives from the state comes from

State Highway Fund No. 2., which was created in 1952 as part of the

enabling legislation which led to the creation of the GNOEC. See

La. Const. of 1921, art. VI, §22(g) . The fund consists of

vehicular license taxes collect ed from a six parish area

surrounding Lake P ontchartrain. 1 S ee Roemer, 539 So.2d at

99(discussing the creation of Fund No.2). A portion of this fund

is allocated to the GNOEC every year in order to finance debt

service on the bonds previously issued. However, Fund No.2 monies

may not be used to finance t he operation and maintenance of the

causeway. In sum, the GNOEC receives no operating revenue from the

state; the funds transferred to it by the state are derived from

the six parish region served by the causeway and are dedicated

solely to debt service on GNOEC bonds.

T he GNOEC treats liabilities resulting from monetary dama g e9

judgments as an operating expense and pays or insures against them

on its own. In order to defray such expenses, the GNOEC procures

liability insurance policy coverages and maintains a “Self

I nsurance Retention Fund” for excess coverage. According to the

testimony of GNOEC’s CPA, it has never had to pay a judgment which

was not adequately covered by its insurance or the Self Insurance

Retention Fund. Moreover, the general manager of the GNOEC

testified that the state of Louisiana has never paid a judgment or

claim on behalf of the GNOEC. Therefore, on the record before us,

it appears that any judgment obtained by Pendergrass can be

satisfied by the GNOEC itself rather than by the state treasury.

Nevertheless, the defendants contend that the GNOEC should be

considered an arm of the state because judgments against it may

indirectly affect the size of the GNOEC’s surplus which it is

required by the 1988 Act to turn over to the state at the end of

each fiscal year. See 1988 La. Acts 875 §4. This not a sufficient

reason to consider the GNOEC an alter ego of the state.

Historically, j udgments against the GNOEC have been paid without

any state assistance from its own insurance policies or self

insurance fun d that it maintains by regular payments as current

operating expenses. The 1988 Act provides that the GNOEC shall pay

all of its maintenance and operating expenses before any of its

funds become surplus that it is obliged to turn over to the state.

Under these circumstances, a judgment in favor of Pendergrass10

against the GNOEC will not be paid with public funds from the state

treasury. Any influence upon the state treasury by such a judgment

would be too indirect and remote to characterize it as a potential

liability of the state trea sury or to make the state the real,

substantial party in interest.

In summary, th e GNOEC is a self-supporting entity which

finances its own operational costs through tolls and investments.

It receives money from the state for the limited purpose of

servicing bonded debt. The GNOEC’s bonds are not backed by the

full faith and credit of the state and, thus, do not constitute a

debt owed by the state. Any judgment rendered in this case would

not be paid out of the state treasury but by the GNOEC through

either its insurers or its self insurance fund. Accordingly, this

factor weighs heavily against classifying the GNOEC as an arm of

the state or permitting it to invoke Eleventh Amendment immunity.

Cf. Jacintoport Corp., 762 F.2d at 440-42.

(3) The degree of local autonomy the entity enjoys.

The third factor we l ook to focuses on the degree of local

autonomy the entity at issue enjoys. “Local autonomy is not only

a measure of the closeness of the connections between the entity

and the State, it is also the mechanism through which the Eleventh

Amendment ‘assure[s] that the federal courts do not interfere with

a state’s public policy and its administration of internal public11

affairs.’” J acintoport Corp., 7 62 F.2d at 442 (quoting Blake v.

Kline, 612 F.2d 718, 725 (3rd Cir. 1979), cert. de nied, 447 U.S.

921 (1980)).

The Greater New Orleans Expressway C ommission itself is

composed o f five members who are charged with the construction,

operation, and maintenance of the Greater New Orleans Expressway,

which is commonly called the “causeway.” Three of the GNOEC’s

commissioners are appointed by the governor, subject to conditions,

as follows: (1) a member from Jefferson Parish, recommended by the

Jefferson Parish Legislative Delegation, for a two year term, (2)

a member from St. Tammany Parish, upon the recommendation of the

St. Tammany Parish Legislative Delegation, for a two year term, and

(3) a member for a one year term alternately from Jefferson Parish

and St. Tammany Parish, recommended by the applicable legislative

delegation. 1988 La. Acts. 875 §11. All of the governor’s

appointments are subject to confirmation by the state senate. I d.

Two members are appointed by the parish governing bodies as

follows: one is appointed for a two year term b y the Jefferson

Parish Council and the other for a two year term by the St. Tammany

Parish Police Jury. Id.

The d efendants assert that because the governor appoints a

majority of the GNOEC, it enjoys very little local autonomy. The

governor’s appointment power is not plenary, however. The governor

is authorized to make appointments only upon the recommendation of12

the local legislative delegations and subject to senate approval.

Furthermore, the three members appointed by the governor serve for

a specified term and not at his or her ple a sure. C ontrast

Jacintoport, 762 F.2d at 442(“It is true that the vulnerability of

the commissioners to the governor’s pleasure milita tes against a

finding of local autonomy.”). Finally, the other two members of

the GNOEC are appointed by the local governing bodies and are thus

indirectly responsible to the local electorate. S ee McDonald v.

Board of Mississippi Levee Comm’rs, 832 F.2d 901, 907 (5th Cir.

1987)(finding that the fact that the Levee Board was locally

elected evidenced autonomy).

In this case, the governor’s role in the appointment process

does not prevent the GNOEC from having a hig h degree of local

autonomy because the pari sh appointments, fixed terms of

appointments, local legislative delegation nomination, and senate

approval tug strongly in that direction.

(4) Whet her the entity is concerned with primarily local, as

opposed to state-wide problems.

The district court found the business of the GNOEC to be

primarily a local concern. The defendants counter that because the

heavily traveled expressway is considered part of the state highway

sy stem, the work of the GNOEC is of state-wide concern. S ee 1986

La. Acts. 762 §9(1)(designating the expressway as part of the state13

highway system).

The relevant test, enunciated by this court in the Jacintoport

Corp. case, is whether the entity acts for the benefit and welfare

of the state as a whole or for the special advantage of local

inhabitants. J acintoport, 762 F.2d at 443. Originally, the

causeway project was undertaken by the parishes of Jefferson and

St. Tammany to encourage the development of each parish. To that

end, the GNOEC has been a success and clearly works for the benefit

and welfare of the inhabitants of St. Tammany and Jefferson, along

with those residents of near-by parishes who occasionally make use

of the bridge. While the causeway is certainly an important part

of the state highway syst em, it predominantly benefits the

commuters who live in St. Tammany and work or shop in Jefferson or

Orleans Parishes, as well as their south shore employers and

suppli ers of goods and services. The concern of the GNOEC is

solely the causeway, a bridge connecting and serving principally

three parishes, and is thus primarily local. C f. Id. (holding that

Greater Baton Rouge Port Commission dealt with matters of local

concern).

(5) & (6) Whether the entity has a uthority to sue and be sued in

its own name; and Whether the entity has the right to hold and use

property?

The GNOEC‘s power to sue and be sued tends to favor a finding14

that it is not an arm of the state.

In addition, the GNOEC has the right to hold and use property.

This factor points toward a finding that the GNOEC is not an arm of

the state. The fact that at some time in the distant future, after

the GNOEC’s bonds are paid and the tolls dispensed with, the

GNOEC’s property may revert to the state, does not change the

present state of affairs under which the GNOEC owns, operates, and

maintains the causeway system with a high degree of autonomy.

In the alternative, the defendants assert that Officers

Hurstell and Digby are not “persons” within the meaning of 42

U.S.C. §1983 because they should be considered “state” police

officers at the time of the plaintiff’s arrest, regardless of the

status of the GNOEC. The district court rejected this argument and

we agree. In this case, the district court correctly construed the

plaintiff ’s complaint as evidencing an intent to sue the two

officers in their individual capacities. Thus, even if the GNOEC

were a st ate agency, which it is not, then this suit could still

proceed against these putative state officials in their individual

capacities because, in such a capacity, they are “persons” within

the meaning of §1983. Hafer v. Melo, 502 U.S. 21, 31 (1991).

Conclusion

Upon considering all releva nt factors, we conclude that the15

GNOEC is not an arm of the state of Louisiana and therefore may not

invoke Eleventh Amendment immunity. For essentially the same

reasons ably assigned by the district court, its decisions to deny

G NOEC’s motion for summary judgment and/or dismissal for lack of

subject matter jurisdiction is AFFIRMED and the case is REMANDED

for further proceedings.