UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-50830

_______________________

In The Matter of: TEJAS TESTING TECHNOLOGY ONE;

TEJAS TESTING TECHNOLOGY TWO,

Debtors,

______________________________

SOUTHEAST REGION OPERATING CONTRACTORS; MUBARAK ALI ASHARIA; ALICO

BUSINESS, INC.; GENE A. D RAKE; KARTEST, INC.; HOUSTON FRAZIER;

HOULUE AIR, INCORPORATED; RICHARD GRAYSON; EMTEX CORPORATION; DAVID

H ARRIS; ENVIRONMENTAL TESTING, INC.; ANTHONY JEAN; FUTURE AIR,

INC.; MARTHA KAPLAN; CHR ISAIR CORPORATION; ROBERT LEE; ZAPOTEC,

INC.; JACOB MATHEW; DISNEY TESTING, INC.; WILMER J. MOORE; WESTSIDE

AUTO EMISSIONS TESTING, INC.; RICHARD MORENO, RHRM, INC.; ALVIN W.

PHILLIPS; TEXAS EMISSION SYSTEM TESTING, INC.; PEGGY ROARK; R & R

INTERESTS, INC.; M. S. SAFADI; ZODIAC ENTERPRISES AND INVESTMENT,

INC.; MARK SHERRILL; NO ZONE ENTERPRISES, INC.; YU-TSAI WEI; EARTH

AIRCARE, INC.; CLAUDIA WILSON; OLD BLUE, INC.; OPERATING

CONTRACTORS; ABS EMISSIONS, INC; AMVI ENTERPRISES, INC.; BTM, INC.;

CARRELL MANAGEMENT SERVICES, INC.; CLEAN HORSE, INC.; CRICKETT I,

LLC; CRICKETT II, LLC; CRR, INC.; DIVERSIFIED GROUP, INC.; ECOTEST

LTD., INC.; EMISSIONS CHECKS, INC.; EMISSIONS, LLC; EMISSIONS II,

LLC; GATE KEEPER, INC.; HUNGRY HORSE ENTERPRISES, LTD., CO.;

MCNEILL ENTERPRISES, INC.; NORMANDALE EMISSIONS CERTIFICATE CENTER,

INC.; RDR ENTERPRISES, INC; RHUBARB MANAGEME NT, INC.; TEJAS OAK

CLIFF, LLC; TEXAS CLEAN A IR CORPORATION; GREEN ENVIRONMENTAL

MANAGEMENT, INC.; HARBLACON TESTING, INC.; KLA SERVICES, INC.; THE

WILLIAM H. WALLACE CO.; J T J T JABB, LLC; JOHN JOHN PEREX, JR.,

INC., JR.,

Appellees,

v.

BARRY MCBEE; RALPH MARQUEZ; JOHN H. BAKER; DAN PEARSON; JAMES R.

WILSON; WILLIAM G. BURNETT; DAN MORALES, Attorney General,

Appellants.* Pursuant to 5 T H C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

2 _________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(A-96-CV-70)

_________________________________________________________________

June 26, 1998

Before JONES, STEWART, and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge: *

Several operating contractors involved with Texas’s

former vehicle emissions testing program sued the state and various

state officials on a plethora of claims after the Texas legislature

discontinued the program. The defendants moved to dismiss the case

on the ground of Eleventh Amendment immunity. The district court

denied the motion to dismiss, and the defendants appealed. We

affirm in part, reverse in part, and remand.

I. Background

A. Facts

Between 1991 and 1995, the State of Texas acted to

implement a vehicle emissions testing progr am in certain

metropolitan areas of the state. In 1993, the state contracted

with Tejas Testing Technology One, L.C., and Te jas Testing

Technology Two, L.C., (collectively “Tejas”) to operate the testing

program. In 1995, however, the state canceled the program with the

passage of S.B. 178. Tejas then sued the Texas Natural Resources

Con servation Commission (“TNRCC”) and various state officials in1 The state officials were the three TNRCC commissioners, the

executive direc tor of the TNRCC, the director of the Texas

Department of Public Safety, the director of the Texas Department

of Transportation, and the attorney general.

2 The operating contractors are collectively identified in

two groups: (1) the Southeast Region Operating Contractors, and (2)

the Operating Contractors.

3 their official capacity (“State Officials”) 1 (collectively “State”)

in state court for breach of contract and numerous other state and

federal causes of action. Shortly thereafter, Tejas declared

bankruptcy. The case was removed to bankruptcy court and

subsequently transferred to federal district court after the

reference was withdrawn. During this time, the operating

contractors, 2 with whom Tejas had contracted to operate its

emissions testing centers, intervened as plaintiffs against the

State.

The State subsequently filed motions to dismiss Tejas’s

and the operating contractors’ complaints, asserting its Eleventh

Amendment immunity. In particular, the State Officials argued that

although the two complaints couched their requests for relief in

the form of prospective declaratory and injunctive relief under Ex

parte Young , the real nature of the relief sought was retroactive

money damages for breach of contract——a suit barred by the Eleventh

Amendment. The State Officials contended that E x parte Young could

not apply unless Tejas and the operating contractors could identify

some form of prospective relief that would be meaningful to them.

The district court denied the motions to dismiss.3 Before the State filed its motion to dismiss, the operating

contractors’ complaint contained only state law claims. After the

State filed its motion to dismiss, the operating contractors filed

their “First Amended Complaint” to add numerous federal claims.

Although the district court did not directly address the operating

contractors’ First Amended Complaint (and thus the oper ating

contractors’ federal claims) in denying the State’s motion to

dismiss, the district court did directly address the substance of

the operating contractors’ federal claims, because the exact same

claims were contained in Tejas’s complaint. Because the district

court addressed the applicability of the Eleventh Amendment to

every claim made by the operating contractors——although sometimes

in the context of Tejas——it is unnecessary to rem and the case to

the district court for further consideration.

4 The number assigned to the summary of each cause of action

in this section is identical to the number assigned to that cause

of action i n the operating contractors’ First Amended Complaint.

For simplicity, this opinion will refer to each cause of action by

number throughout.

4

Tejas eventually settled its dispute with the State. As

a consequence, the appeal now before this court concerns only the

State Officials and the operating contractors. The precise issue

we address is the propriety of the district court’s denial of the

motion to dis miss the operating contractors’ complaint as it

pertains specifically to the State Officials.

B. Operating Contractors’ Causes of Action 3

The operating contractors assert the following causes of

action against the State Officials in their First Amended

Complaint. 4 Each cause of action is followed by the nature of the

relief sought.

1. breach of contract against TNRCC (money damages)

2. third party beneficiary claim against TNRCC (money

damages)

Declaratory relief that S.B. 178:

3. violat es the Texas Constitution because it is a

“special law” (declaratory relief)5 4. is an unconstitutional bill of attainder under both

the Texas and U.S. Constitutions (declaratory

relief)

5. is an unconstitutional impairment of contract under

both the Texas and U.S. Constitutions (declaratory

relief)

6. is an unconstitutional retroactive law under the

Texas Constitution, which gives rise to a § 1981

claim against the State (no request for spe cific

relief)

7. violates the operating contractors’ civil rights

under the Texas and U.S. Constitutions by impairing

their contract rights (money damages, declaratory

relief, and injunctive relief)

8. is an unco nstitutional taking under the Texas and

U.S. Constitutions (money damages and declaratory

relief)

9. violates the Commerce Clause of the U.S.

Constitution (declaratory and injunctive relief)

10. violates the Supremacy Clause of the U.S.

Constitution (declaratory and injunctive relief)

11. § 1983 ac tion for deprivation of federal rights (money

damages and injunctive relief)

12. declaration that the operating contractors’ further

performance is excused base d on the State’s conduct to

date (declaratory relief)

13. declaration that the illegality of the State’s action in

enacting S.B. 178 does not excuse performance b y the

TNRCC and the State Officials under the emissions

contracts (declaratory relief)

14. declaration that S.B. 178 is void because of its

constitutional infirmities (money damages and declaratory

relief)

II. Analysis

A. Jurisdiction & Standard of Review

This court has jurisdiction to consider an interlocutory

appeal from the denial of a motion to dismiss based upon Eleventh

Amendment immunity. S ee Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc.

, 113 S. Ct. 684 (1993); Earles v. State Board

of Certified Public Accountants

, 139 F.3d 1033, 1036 (5th Cir.

1988). We review a district court’s denial of a motion to dismiss

de novo, accepting all of the facts asserted in the plaintiff’s6

complaint as true. See Jackson v. City of Beaumont Police Dep’t

,

958 F.2d 616, 618 (5th Cir. 1992). The motion may be granted

“‘only if it appears that no relief could be granted under any set

of facts that could be proven consist ent with the allegations.’”

Id. (quoting Baton Rouge Bldg. & Constr. Trades Council v. Jacobs

Constructors, Inc ., 804 F.2d 879, 881 (5th Cir. 1986)).

B. Ex parte Young

“ Young established the principle that the Eleventh

Amendme nt does not bar a suit in federal court against a state

official to enjoin hi s enforcement of a state law alleged to be

unconstitutional.” A merican Bank & Trust Co. v. Dent

, 982 F.2d

917, 920 (5th Cir. 1993). The Ex parte Young doctrine “ensures

that state officials do not employ the Eleventh Amendment as a

means of avoi ding compliance with federal law.” P uerto Rico

Aqueduct

, 113 S. Ct. at 688; see also 1 7 C HARLES A LAN W RIGHT

, ET AL

.,

F EDERAL P RACTICE & P ROCEDURE § 4232 (2d ed. 1988 & Sup p

. 1998).

However, Young “does not foreclose an Eleventh Amendment challenge

where the official action is asserted to be illegal as a matter of

state law alone.” P apasan v. Allain

, 106 S. Ct. 2932, 2940 (1986)

(citing Pennhurst State Sch. & Hosp. v. Halderman

, 104 S. Ct. 900,

910-11 (1984)). “In such a case, federal supremacy is not

implicated because the state official is acting contrary to state

law only.” I d. Therefore, “ Y oung and Edelman are inapplicable in

a suit against state officials on the basis of state law.”

Pennhurst , 104 S. Ct. at 911.7 In addition, “ Young cannot be extended to permit a suit

for equitable monetary restit ution from the state treasury for a

past breach of a legal duty

. . . .” A merican Bank & Trust Co.

,

982 F.2d at 920 (citing Edelman v. Jordan

, 94 S. Ct. 1347, 1355-60

(1974)). Rather, Y oung permits only pros pective injunctive or

declaratory relief. S ee id. (citing Pennhurst

, 104 S. Ct. at 909);

see also Saltz v. Tennessee Dep’t of Employment Sec.

, 976 F.2d 966,

968 (5th Cir. 1992) (stating that for Ex parte Young to apply, the

“suit must be brought against individual persons in their official

capacities as agents of the state and the relief sought must be

declaratory or injunctive in nature and prospective in effect”).

(1) State-law Claims

The operating contractors’ cause of action No. 3 deals

solely with an issue of state law. Therefore, it cannot fall

within Ex parte Young

. This cause of action is dismissed pursuant

to the Eleventh Amendment.

The operating contractors’ causes of action Nos. 4, 5, 6,

7, and 8 deal, in part, with whether S.B. 178 is unconstitutional

under certain provisions of the Texas Constitution. To the extent

that these causes of action turn on issues of state l aw alone,

they cannot fall within Ex parte Young and are dismissed pursuant

to the Eleventh Amendment.

(2) Nature of Relief Sought

The issue before this court on the operating contractors’

remaining causes of action is whether the relief sought is

declaratory or injunctive in nature and prospective in effect, or8

whether——when all of the operating contractors’ imprecise pleading

language is removed to reveal the real nature of this case——the

relief sought is essentially retroactive monetary damages. The

Supreme Court, in addressing a similar inquiry, has stated:

Consequently, Young has been focused on cases in which a violation of federal law by a state official is ongoing

as opposed to cases in which federal law has been

violated at one time or over a pe riod of time in the

past, as well as on cases in which the relief against the

state official directly ends the violation of federal law

as opposed to cases in which that relief is intended

indirectly to encourage compliance with federal law

through deterrence or directly to meet third-party

interests such as compensation. As we have noted:

“ Remedies designed to end a continuing violation of

federal law are necessary to vind icate the federal

interest in assuring the supremacy of that law. But

compensatory or deterrence interests are insufficient to

overcome the dictates of the Eleventh Amendment.”

Relief that in essence serves to compensate a party

injured in the past by an action of a state official in

his official capacity that was illegal under federal law

is barred even when the state official is the named

defendant. This is true if the relief is expressly

denominated as damages. It is also true if the relief is

tantamount to an award of damages for a past violation of

federal law , even though styled as something else. On

the other hand, relief that serves directly to bring an

end to a present violation of federal law is not barred

by the Eleventh Amendment even though accompanied by a

substantial ancillary effect on the state treasury.

Papasan

, 106 S. Ct. at 2940 (internal citat ions and footnotes

omitted). The Court went on to state:

For Eleventh Amendment purposes, the line between

permitted and prohibited suits will often be indistinct:

“[T]he difference between the type of relief barred by

the Eleventh Amendment and that permitted under Ex parte

Young will not in many instances be that between day and

night.” In discerning on which side of the line a

p articular case falls, we look to the substance rather

than to the form of the relief sought, and will be guided

by the policies underlying the decision in Ex parte

Young

.5 To the extent that this opinion has already addressed

causes of action Nos. 4, 5, 6, 7, 8, and 11, the following part of

this opinion does not apply to them.

9 Id. at 2940-41 (internal citations omitted). The State Officials’

assertion that injunctive relief is impracticable, and therefore a

p leading ruse, because the operating contractors cannot possibly

perform the contract, is unpersuasive at this point. The argument

depends on facts outside the pleadings for purposes of the motion

to dismiss.

The operating contractors’ causes of action Nos. 1 and 2

deal with breach of contract and third-party benefici ary claims.

These two causes of action are straightforward claims for

retroactive monetary damages for the breach of a past legal duty.

As such, if directed at the State Officials, th ey do not fall

within Ex parte Young and should be dismissed. However, because

causes of action Nos. 1 and 2 are expressly framed against only the

TNRCC, we do not reach this issue.

To the extent that the operating contractors’ causes of

action Nos. 8 and 11 seek retroactive monetary damages, they are

dismissed pursuant to the Eleventh Amendment.

Finally, the operating contractors’ causes of action Nos.

4 to 14 all seek, at least on their face, prospective declaratory

or injunctive relief for a continuing violation of federal law. 5

Whether t here is any merit to these claims is far from clear, if

for no other reason than it appears doubtful whether there exists

a contractual rel ationship between the operating contractors and

the State of Texas. More importantly, whether these claims are10

truly for prospective declaratory or injunctive relief is

uncertain. The State Officials argue that there is no meaningful

declara tory or injunctive relief available to the operating

contractors and that this suit is essentially a suit for

retroactive money damages disguised in a carefully worded complaint

giving the appearance of an Ex parte Young action. If this turns

out to be true upon remand and further proceedings in the district

court, these causes of action should be dismissed pursuant to the

Eleventh Amendment. A suit for retroactive money damages against

a state official in his official capacity is barred by the Eleventh

Amendment and does not fall within the Ex parte Young exception.

However, for the prese nt purpose of determining whether the

district court properly denied the State Officials’ motion to

dismiss, the operating contractors have stated in causes of action

Nos. 4 to 14 claims that -- on their face -- fall within Ex parte

Young. To the extent that these causes of action are claims

against individual state officials for prospective declaratory and

injunctive relief in the face of a Texas law (S.B. 178) alleged to

b e a continuing violation of federal law, they are not barred by

the Eleventh Amendment. S ee Idaho v. Coeur d’Alene Tribe of Idaho

,

117 S. Ct. 2028, 2040 (1997) (“An allegation of an on-going

violation of federal law where the requested relief is prospective

is ordinarily sufficient to invoke the Young fiction.”). In sum,

at this stage, it does not appear that no relief could be granted

to the operating contractors under any set of facts that could be6 Declaratory or injunctive relief on remand, of course, is

far from certain. “[A] plaintiff who has brought his case within

the Young doctrine must still overcome the other statutory and

court-made barriers to such injunctions, and he must meet the usual

equitable requirements for an injunction. ‘[N]o injunction ought

to issue against officers of a State clothed with authority to

enforce the law in question, unless in a case reasonably free from

doubt and when necessary to prevent great and irreparable injury.’”

1 7 W R IGHT ET AL

. , supra

, § 4232, at 569 (internal footnote omitted)

(citing Massachusetts State Grange v. Benton

, 47 S. Ct. 189, 190

(1926)).

11 pro ven consistent with the allegations contained in their First

Amended Complaint. 6

III. Conclusion

For the foregoing reasons, the district court is REVERSED

in part, AFFIRMED in part, and this case is R EMANDED for further

proceedings consistent with this opinion.