*Chief Judge of the Eastern District of Texas, sitting by

designation. 

1

United States Court of Appeals,

Fifth Circuit.

No. 92-7714.

The JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUNDATION,

Plaintiff-Appellant,

v.

Garry MAURO, Commissioner of the General Land Office, et al.,

Defendants-Appellees.

May 27, 1994.

Appeal from the United States District Court for the Southern

District of Texas.

Before KING and BARKSDALE, Circuit Judges, and PARKER,* District

Judge.

KING, Circuit Judge:

The John G. and Marie Stella Kenedy Memorial Foundation (the

Foundation) appeals the district court's dismissal of its claim

brought under 42 U.S.C. § 1983 against Garry Mauro (Mauro),

Commissioner of the Texas General Land Office, in his official

capacity, and its Fifth Amendment inverse condemnation claim

against the State of Texas. The Foundation also appeals the

district court's denial of its motion for partial summary judgment.

We affirm the district court's judgment of dismissal and vacate

that portion of the judgment denying the Foundation's motion for

partial summary judgment.

I. BACKGROUND

In January 1990, the Foundation filed suit against Mauro and
2

the State of Texas in Texas state court in Kenedy County, Texas.

The Foundation sought declaratory and injunctive relief to

determine boundary and title to certain real property against

Mauro, in his capacity as Commissioner of the Texas General Land

Office, under 42 U.S.C. § 1983 and the Fourteenth Amendment of the

United States Constitution, as well as under state common law. The

Foundation also asserted a takings claim against the State of Texas

under Article 1, Section 17 of the Texas Constitution.

The Foundation specifically contended that Mauro, acting under

color of state law, refused to recognize the proper location of the

boundary between the Foundation's property and state-owned land in

Kenedy County. The property at issue is part of the original

Spanish and Mexican grants, La Barreta and Las Motas de la Barreta,

respectively, and is sometimes covered by the body of water known

as the Laguna Madre. The Foundation argued that although title to

portions of the disputed land had been effectively adjudicated to

the State in Humble Oil & Refining Co. v. Sun Oil Co., 190 F.2d 191

(5th Cir.1951), cert. denied, 342 U.S. 920, 72 S.Ct. 367, 96 L.Ed.

687 (1952), there had since been a change in both the physical

characteristics of the disputed land and in state law interpreting

its physical boundaries by virtue of the Texas Supreme Court's

holding in Luttes v. State, 324 S.W.2d 167 (Tex.1959). Hence,

according to the Foundation, an application of Luttes would

establish that the State's claim to the disputed land was no longer

valid. Although the Foundation conceded that Mauro had the

statutory authority to determine the boundary between private
3

property and state-owned submerged land, Mauro's refusal to

recognize Luttes as controlling—while he continued to grant mineral

leases on a portion of the disputed property for the State's

benefit—amounted to a deprivation of the Foundation's real property

without due process of law.

In February 1990, Mauro and the State (the defendants) removed

the case to the United States District Court for the Southern

District of Texas on the basis of federal question jurisdiction.

In its original answer filed in federal court, the defendants

stated that the district court had subject matter jurisdiction over

the Foundation's § 1983 claim against Mauro in his official

capacity for prospective injunctive relief. However, the

defendants denied that the court had jurisdiction over the

remaining claims. The defendants then filed a motion for summary

judgment. Specifically, they asserted (1) that the Foundation's

claims were barred by res judicata, collateral estoppel, and stare

decisis in light of the Fifth Circuit's decision in Humble Oil;

(2) that the State of Texas was entitled to judgment as a matter of

law with respect to the Foundation's claim under Article I, Section

17 of the Texas Constitution because title to the disputed property

rested with the State; (3) that the Foundation's action was barred

by limitations and under the doctrine of laches; (4) that the

Foundation's state law claims against Mauro were barred by the

doctrine of sovereign immunity; and (5) that the Foundation's

claim against Mauro was not a cognizable claim under § 1983 and

barred by the Eleventh Amendment.
4

The Foundation then amended its complaint to assert

additionally an inverse condemnation claim against the State of

Texas under the Fifth Amendment to the United States Constitution.

In response to this amended complaint, the defendants filed an

amended answer in which they denied that the relief sought by the

Foundation for its § 1983 claim was proper prospective relief. The

defendants also pleaded the various affirmative defenses raised in

their earlier motion for summary judgment, as well as "sovereign

immunity and the Eleventh Amendment to the U.S. Constitution."

The Foundation subsequently filed its own motion for partial

summary judgment, seeking a judgment declaring that the disputed

land was not "submerged" land owned by the State but rather land

which belonged to the Foundation as part of its upland property.

The Foundation also requested a ruling that its claims were not

barred by res judicata or collateral estoppel.

After a hearing on the parties' cross-motions for summary

judgment, the district court dismissed the entire suit for lack of

subject matter jurisdiction and denied the Foundation's motion for

partial summary judgment. The district court reasoned that the

Foundation's state law claim against Mauro was barred by the

Eleventh Amendment, as interpreted in Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

The district court also determined that Mauro's actions, which

formed the basis of the Foundation's § 1983 claim, were

discretionary actions of an elected official acting under a state

statute not challenged as unconstitutional. Accordingly, the
 

1The Foundation has specifically disclaimed any intent to

challenge the district court's decision remanding its state law

claims to state court. 

5

district court concluded that the Eleventh Amendment barred the

Foundation's § 1983 claim in federal court because the claim was an

action against a state official for a violation of state law and

the relief requested was against the State, not Mauro. The

district court further determined that the Foundation's state and

federal takings claims against the State of Texas were barred by

the Eleventh Amendment—specifically, under the reasoning of Alabama

v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978).

Several days later, the district court issued an order

modifying this dismissal. The district court explained:

... [W]hen this Court issued its Order of Dismissal, it

overlooked the removed status of this litigation. Rather than

dismiss for lack of jurisdiction all of plaintiff's federal

and state causes of action against defendants, Garry Mauro,

Commissioner of the General Land Office, and the State of

Texas, it is the better judgment and the intention of the

court to dismiss only those claims of plaintiff that are

barred by the Eleventh Amendment of the United States

Constitution. These are plaintiff's claims asserted against

Commissioner Mauro and the State of Texas pursuant to 42

U.S.C. § 1983 and the Fifth and Fourteenth Amendments.

All other claims the court remands to the 105th Judicial

District Court, Kenedy County, Texas for its decision.

The district court thus dismissed both of the Foundation's federal

claims, but remanded the state law claims to state court. The

Foundation then filed a timely notice of appeal from the district

court's order dismissing its federal claims and denying its motion

for partial summary judgment.1

II. STANDARD OF REVIEW
6

Although this court has no jurisdiction to review a district

court's judgment which remands a cause of action to state court for

lack of subject matter jurisdiction, see 28 U.S.C. § 1447(d);

McDermott Int'l, Inc. v. Lloyds Underwriters of London, 944 F.2d

1199, 1201-03 (5th Cir.1991); Mitchell v. Carlson, 896 F.2d 128,

131 (5th Cir.1990), any aspect of that judgment which is distinct

and separable from the remand proper may be reviewed on appeal, see

City of Waco v. United States Fidelity & Guar. Co., 293 U.S. 140,

142-43, 55 S.Ct. 6, 7, 79 L.Ed. 244 (1934); Mitchell, 896 F.2d at

132; see also J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d

267, 271 (7th Cir.1990) (even if a district court has properly

refused to exercise jurisdiction over pendent state law claims, the

dismissal of federal claims giving rise to the removal is

reviewable). Because the district court's dismissal of the

Foundation's federal claims was separate and distinct from its

remand of the Foundation's state law claims, this court has

jurisdiction to review the dismissal of the Foundation's federal

claims.

We review the district court's dismissal of federal claims

for lack of subject matter jurisdiction de novo. In re Bradley,

989 F.2d 802, 804 (5th Cir.1993); Hobbs v. Hawkins, 968 F.2d 471,

475 (5th Cir.1992); Benton v. United States, 960 F.2d 19, 21 (5th

Cir.1992). We will not affirm the dismissal " "unless it appears

certain that the plaintiff cannot prove any set of facts in support

of [its] claim which would entitle [it] to relief.' " Hobbs, 968

F.2d at 475 (quoting Benton, 960 F.2d at 21).
7

III. DISCUSSION

The Foundation raises three arguments on appeal. First, it

contends that the district court erroneously dismissed its § 1983

claim for declaratory and prospective injunctive relief against

Mauro in his official capacity. Second, the Foundation argues that

the district court's disposition of its Fifth Amendment claim

against the State of Texas was erroneous. Although the Foundation

seemingly concedes that the Eleventh Amendment bars its assertion

of this claim in federal court, it contends that the district court

nonetheless should have remanded the claim to state court. Third,

the Foundation maintains that the district court erred in reaching

its motion for partial summary judgment. We address each of the

Foundation's claims in turn.

A. Dismissal of the Foundation's § 1983 Claim against Mauro

The Foundation asserts that the district court erred in

dismissing its § 1983 claim against Mauro for lack of subject

matter jurisdiction due to the Eleventh Amendment bar. The

Foundation asserts that in requesting declaratory and prospective

injunctive relief against Mauro—who, acting under color of state

law, allegedly deprived the Foundation of its property without due

process of law—its claim is not barred by the Eleventh Amendment.

In its amended complaint, the Foundation asserted:

This is a suit against Garry Mauro in his official

capacity as Commissioner of the General Land Office under 42

U.S.C. § 1983 and the Due Process clause of the Fourteenth

Amendment to the United States Constitution and under state

law, for declaratory and injunctive relief to determine

boundary and title to certain real property.... Specifically,

Defendant Mauro has been and is currently depriving the

Foundation of its real property without due process of law, in
8

violation of the Fourteenth Amendment to the United States

Constitution.

The Foundation further detailed its requested relief:

The Foundation requests that this Court determine and declare

that all of the Disputed Land is above the vertical elevation

of mean higher high water of the Laguna Madre, that the

eastern boundary of the disputed Land constitutes the eastern

boundary of the Big Barreta and Little Barreta grants, and

that the Foundation is the owner of the Disputed Land.

Further, the Foundation requests that Defendant Mauro be

permanently enjoined from exercising dominion and control over

the Disputed Land and leasing any portion of the Disputed Land

for oil and gas development or surface use, and be directed to

amend all official "state lease tract" maps and other official

maps and documents to depict the Disputed Land as

privately-owned land and not as state-owned submerged land.

After evaluating the Foundation's claims against Mauro and the

ultimate relief requested, the district court concluded that "the

true nature of this action is a title dispute" between the

Foundation and the State. We agree.

The Foundation emphasized in its complaint that its suit

against Mauro was to determine boundary and title to certain real

property. For relief, the Foundation clearly requested that the

district court determine and declare that the Foundation was the

owner of the disputed land. The Foundation also requested that

Mauro be permanently enjoined from leasing any portion of it for

mineral development or surface use and that Mauro be directed to

amend all state lease tract maps and other official documents to

depict that the disputed land is "privately owned."

 We read this entreaty as one that the Foundation's claim to

the disputed property be declared secured as against all the world

and that Mauro, in his capacity as Land Commissioner, officially

recognize this property as the Foundation's—in other words, that
9

the district court adjudicate title to the property. However, a

federal court does not have the power to adjudicate the State's

interest in property without the State's consent. See Florida

Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 682, 700,

102 S.Ct. 3304, 3313, 3322, 73 L.Ed.2d 1057 (1982) (plurality

opinion); id. at 703, 102 S.Ct. at 3324 (White, J., concurring,

joined by Powell, Rehnquist, and O'Connor, JJ.); see also Tindal

v. Wesley, 167 U.S. 204, 223, 17 S.Ct. 770, 777-78, 42 L.Ed. 137

(1897); United States v. Lee, 106 U.S. (16 Otto) 196, 222, 1 S.Ct.

240, 262, 27 L.Ed. 171 (1892) (explaining that the United States

could not be made a defendant to a suit concerning its property

without its consent under the doctrine of sovereign immunity). The

State of Texas has not so consented.

We also recognize that a state official, such as Mauro,

acting in his official capacity, is not a "person" under § 1983

unless the relief requested in a suit against him in this capacity

is prospective relief. Will v. Michigan Dep't of State Police, 491

U.S. 58, 71 & n. 10, 109 S.Ct. 2304, 2312 & n. 10, 105 L.Ed.2d 45

(1989); see Stem v. Ahearn, 908 F.2d 1, 4 (5th Cir.1990), cert.

denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991); see

also Howlett v. Rose, 496 U.S. 356, 365-66, 110 S.Ct. 2430, 2437,

110 L.Ed.2d 332 (1990) ("Will establishes that the State and the

arms of the State, which have traditionally enjoyed Eleventh

Amendment immunity, are not subject to suit [under § 1983] in

either federal or state court."). To provide the Foundation with

the relief it requests would necessitate a determination by the
10

district court that the State does not have title to the disputed

property, title which the State has claimed for the past century

and which was effectively adjudicated in the State in Humble Oil.

Accordingly, the relief the Foundation requests, although nominally

against Mauro, is retroactive relief against the State. See

Toledo, Peoria & Western R.R. Co. v. State of Illinois, Dep't of

Transp., 744 F.2d 1296, 1299 (7th Cir.1984), cert. denied, 470 U.S.

1051, 105 S.Ct. 1751, 84 L.Ed.2d 815 (1985) (holding that the

relief "requested by the plaintiff ordering the state to release

its interest in real property" is similar to the "retroactive"

relief barred by the Eleventh Amendment under Edelman v. Jordan,

415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and not the

"prospective" relief permitted by Quern v. Jordan, 440 U.S. 332, 99

S.Ct. 1139, 59 L.Ed.2d 358 (1979)); see also Pennhurst, 465 U.S.

at 101 n. 11, 104 S.Ct. at 908 n. 11 (" "The general rule is that

a suit is against the sovereign if "the judgment sought would

expend itself on the public treasury or domain, or interfere with

the public administration," or if the effect of the judgment would

be "to restrain the Government from acting, or to compel it to

act." ' " (quoting Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999,

1006, 10 L.Ed.2d 15 (1963) (citations omitted)).

Based on the Foundation's specific request for relief in its

complaint against Mauro in his official capacity, the district

court had proper reason to dismiss the Foundation's § 1983 claim.

See Stem, 908 F.2d at 4 (concluding that because under Will state

officials sued in their official capacities for damages are not
 

2We recognize that in its reply to Mauro's response to the

Foundation's partial motion for summary judgment, filed on August

30, 1991, the Foundation stated that it had asserted a valid §

1983 cause of action because "it was well established that a suit

for injunctive relief to obtain possession of property wrongfully

held by state officials is not barred by the Eleventh Amendment,"

citing Treasure Salvors and Tindal for that proposition. 

However, it was not until the Foundation filed its

post-submission brief on October 21, 1991, that the Foundation

actually asserted that its requested relief was for possession of

the disputed property as against Mauro. 

11

"persons" under § 1983, the court lacked subject matter

jurisdiction over the plaintiff's claim against the defendants in

their capacities as Texas state employees).

The Foundation, however, argues that despite the way it

phrased its request for relief, its § 1983 claim was not brought to

adjudicate title to the disputed property but for right to

possession of that property as against Mauro. We point out that

this case was removed to federal court in February 1990. However,

it was not until October 21, 1991—when the Foundation filed a

post-submission brief on its § 1983 claim after a hearing on the

parties' cross-motions for summary judgment—that the Foundation

first suggested that the court should recognize that its § 1983

claim was for right to possession of the disputed property as

against Mauro.

2 The Foundation asserts the same on appeal. The

Foundation's argument is thus that a federal court has jurisdiction

to hear its suit for declaratory and injunctive relief against the

government official in possession of its property, i.e., Mauro, who

has "invaded and occupied" property rightfully belonging to the

Foundation.

We need not decide whether in some sense Mauro is actually "in
12

possession" of the disputed property as the Foundation contends

because in order to grant the Foundation the right to possession of

this property as against Mauro, the district court would have to

determine that title rests in the Foundation and thus adjudicate

the State's interest in the disputed property—property which the

State has "owned" for the past century. As we have already made

clear, a federal court is not empowered to adjudicate the State's

interest in property without the State's consent. See Treasure

Salvors, Inc., 458 U.S. at 682, 700, 102 S.Ct. at 3313, 3322; id.

at 703, 102 S.Ct. at 3324 (White, J., concurring, joined by Powell,

Rehnquist, and O'Connor, JJ.).

We also note that the Foundation's reliance on the Supreme

Court's decisions in Lee, Tindal, and Treasure Salvors is

misplaced. First, the Foundation fails to recognize that Larson v.

Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93

L.Ed. 1628 (1949), explicitly overruled Tindal, see Pennhurst, 465

U.S. at 110 n. 19, 104 S.Ct. at 913 n. 19, and significantly

limited Lee, see Larson, 337 U.S. at 696-97, 69 S.Ct. at 1464-65;

see also Treasure Salvors, 458 U.S. at 688-89, 102 S.Ct. at 3316-

17.

Second, Treasure Salvors speaks directly against the

Foundation's argument. In Treasure Salvors, the Court addressed

the issue of whether the district court's arrest warrant in an

admiralty in rem action, issued against two state officials who

held artifacts from an abandoned vessel found off the Florida Keys,

was barred by the Eleventh Amendment. A plurality of the Court
13

concluded that the warrant was not so barred. Id. at 699, 102

S.Ct. at 3322.

The plurality reached this conclusion by first explaining that

the warrant had issued against state officials who were in

possession of the artifacts and not the State of Florida itself.

Id. at 691, 102 S.Ct. at 3318. The plurality next noted that

although the officials claimed a state statute as authority to

possess these artifacts, the statute permitted officials to hold

artifacts which had been found on state-owned submerged land and

the artifacts in question had been found in international waters.

Id. at 695, 102 S.Ct. at 3320. Thus, the state officials were

without a colorable claim to these artifacts. Id. at 696, 102

S.Ct. at 3320. Finally, the plurality explained that because the

warrant sought possession of specific property and was not an in

personam action brought to recover damages from the State, the

warrant was permissible prospective relief. Id. at 699, 102 S.Ct.

at 3322.

However, the plurality emphasized that the warrant itself

merely secured possession of the artifacts and that its execution

did not adjudicate the State's right to them. Id. at 697, 102

S.Ct. at 3321 (citing Tindal, 167 U.S. at 223, 17 S.Ct. at 777-78).

The plurality also decided that although this court had properly

determined that the Eleventh Amendment did not bar execution of the

warrant to secure possession of the artifacts held by state

officials, we had improperly adjudicated the State's right to those

artifacts in making such a determination. Id. 458 U.S. at 700, 102
14

S.Ct. at 3322. The Court then concluded that a federal court did

not have the power to adjudicate the State's interest in the

artifacts without the State's consent. See id.

The instant case is distinguishable from Treasure Salvors in

that the defendant officials in Treasure Salvors had no colorable

claim under which they were authorized by the State to hold these

artifacts. On the other hand, the State has "owned" the property

at issue in the instant case for the past century, and title was

effectively adjudicated in the State in Humble Oil. Moreover, the

Treasure Salvors plurality determined that the warrant of arrest

issued by the district court was permissible prospective relief

because it sought only possession of the property from the

defendant officials and was not an in personam action to recover

damages against the State. The relief the Foundation requests in

the instant case, even if it is "possession" as against Mauro, can

only be granted if the district court orders the State to

relinquish its interest in the disputed property. Such relief

would be the equivalent of recovering damages from the State.

Despite its contention that its § 1983 suit is only for

declaratory and prospective injunctive relief against Mauro in his

official capacity, the relief sought by the Foundation—no matter

how its request for relief is phrased—would operate against the

State. Hence, the State of Texas, not Mauro, is the real,

substantial party in interest. We therefore conclude that the

Foundation's § 1983 claim is barred by the Eleventh Amendment, and

the district court did not err in determining that the court did
15

not have the power to entertain the claim.

B. Disposition of the Fifth Amendment and § 1983 Claims

The Foundation also argues that the district court should

have remanded its federal claims to state court. We disagree.

The district court properly concluded that it did not have

subject matter jurisdiction over the Foundation's § 1983 claim.

See supra Part III.A. The court also correctly determined that the

Foundation's Fifth Amendment inverse condemnation claim brought

directly against the State of Texas is also barred by the Eleventh

Amendment. See Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057,

3057-58, 57 L.Ed.2d 1114 (1978) (reaffirming the rule set forth in

Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890),

that a citizen cannot sue a state in federal court, even if only

prospective injunctive relief is being sought, without the state's

consent).

The Foundation acknowledges on appeal that its state and

federal claims were not "separate and independent" and that it had

alleged only a "single underlying wrong" from these claims. It

also recognizes that the Supreme Court's decision in CarnegieMellon University v. Cohill, 484 U.S. 343, 353-55 & n. 11, 108

S.Ct. 614, 620-22 & n. 11, 98 L.Ed.2d 720 (1988), makes it clear

that the remand provision of 28 U.S.C. § 1441(c) does not apply in

such a situation. Yet, the Foundation invites this court to

determine that § 1441(c) is applicable in the instant case because

"it makes no sense for a district court to possess discretion to

remand all claims if the state and federal claims are " "separate
 

3We express no opinion on the applicability of 28 U.S.C. §

1447(c) to the instant case. The Foundation has not argued or

briefed this issue on appeal, see FED.R.APP.P. 28(a)(5), and in

fact has asserted that "no statute expressly says that the

Foundation's federal claims may be returned to state court." 

16

and independent,' " i.e., under § 1441(c), "but to have no such

discretion if the claims are related." The Foundation thus invites

us to recognize a new remand authority available to the district

court. We decline the invitation and determine that the district

court did not err by dismissing the Foundation's federal claims.3

C. Denial of Summary Judgment

Finally, the Foundation contends that the district court

erred in denying its motion for partial summary judgment after the

court had concluded that it lacked subject matter jurisdiction. We

agree.

"Unless a federal court possesses subject matter jurisdiction

over a dispute, ... any order it makes (other than an order of

dismissal or remand) is void." Shirley v. Maxicare Texas, Inc.,

921 F.2d 565, 568 (5th Cir.1991). Hence, that portion of the

district court's judgment denying the Foundation's motion for

partial summary judgment should be vacated.

IV. CONCLUSION

For the foregoing reasons, we conclude that the district court

did not err in dismissing the Foundation's § 1983 claim against

Mauro and its Fifth Amendment claim against the State of Texas.

However, the district court erred in denying the Foundation's

motion for partial summary judgment. We therefore AFFIRM the

district court's judgment of dismissal and VACATE that portion of
17

the district court's judgment denying the Foundation's motion for

partial summary judgment. Costs shall be borne by the Foundation.