RULING ON SUBJECT MATTER JURISDICTION
PARKER, District Judge.
This consolidated matter is before the court, sua sponte, to consider whether the State of Louisiana through the Public Service Commission is entitled to Eleventh Amendment immunity. All parties have been directed to brief the issue. The defendants, the Louisiana Public Service Commission ("Public Service Commission") and its members, argue that they are immune from suit under the Eleventh Amendment and this court is without jurisdiction to hear this case. The remaining defendant, BellSouth Central States, Inc., ("BellSouth") and the consolidated plaintiffs, AT & T Communications of the South Central State, Inc., ("AT & T"), American Communications Services of Louisiana, Inc., American Communications Services of Baton Rouge, Inc., and American Communications Services of Shreveport, Inc. (presently known as e.spire) ("e.spire") have filed memoranda in opposition.
A. The Telecommunications Act
In 1996, the Congress enacted the Telecommunications Act ("the 1996 Act"). The 1996 Act was intended to dissolve monopolies granted by the states to local telephone companies and open the market for competition.
The Congress recognized that simply removing regulatory restrictions on competition would not eliminate the economic barriers which blocked entry into the telephone markets. Therefore, in order for the 1996 Act to fulfill its purpose and to ensure that new telephone companies entered the market quickly, the Congress required all local exchange carriers to share their networks with competitors.
To ensure that local exchange carriers would be fairly compensated, the Congress
Without regard to whether the agreement was negotiated or arbitrated, the 1996 Act requires that the agreement be approved by the state commission. Subsection 252(e) provides guidelines for the acceptance or rejection of an interconnection agreement. If the parties submit to mediation or arbitration and the "state fails to act", the FCC is given the power under the act to preempt the commission's jurisdiction and to assume the state commission's responsibilities.
In addition to the negotiation of an interconnection agreement, a local exchange carrier that is a Bell Operating Company, such as BellSouth, is required to submit to the state commission for approval a Statement of Generally Available Terms ("Statement").
B. Procedural History
The plaintiffs in this consolidated matter, AT & T and e.spire, are trying to enter the telephone market in which BellSouth is the incumbent local exchange carrier. In compliance with the procedures set forth under the 1996 Act, the plaintiffs attempted to negotiate a voluntary interconnection agreement with BellSouth. After negotiations were unsuccessful, plaintiffs petitioned the Public Service Commission for compulsory arbitration. After arbitration was conducted, the agreement was submitted to the Public Service Commission for approval. Additionally, on October 22, 1997, the Public Service Commission approved BellSouth's Statement of Generally Available Terms ("BellSouth's Statement").
Both AT & T and e.spire contend that certain terms of BellSouth's Statement and their respective interconnection agreements with BellSouth do not meet the requirements of the 1996 Act. Pursuant to Section 252(e)(6), AT & T and e.spire have brought these actions seeking judicial review of both the statement and their respective agreements.
After suits were filed in this court, they were consolidated and the magistrate judge, pursuant to a scheduling order, directed that the parties submit the case on briefs. After briefs had been submitted by the parties, this court noticed that although the Public Service Commission had
II. THE ELEVENTH AMENDMENT
The court has carefully considered all briefs submitted by the parties on this jurisdictional issue and, for reasons which follow, ultimately concludes that the Congress lacks the constitutional power to waive the immunity of the State of Louisiana from suit in federal court by private parties, which immunity is bestowed upon the states by the Eleventh Amendment. Accordingly, the court concludes that the attempted waiver of such sovereign immunity by the Telecommunications Act of 1996 is invalid and that the court lacks jurisdiction.
The Eleventh Amendment to the Constitution states:
Note that the Amendment does not simply read that states are immune from suit; it declares that the judicial power of the United States "shall not be construed to extend" to any such suit. Neither does the Amendment contain any grant of authority to the Congress to waive its provisions or to apply federal judicial power to the states. Thus, we begin with a clear understanding that if the Congress possesses such power it must be found elsewhere than the Eleventh Amendment.
State immunity under the Eleventh Amendment extends to state agencies such as the Public Service Commission.
While text of the Eleventh Amendment speaks only of suits by citizens of other states, it has been consistently construed to apply to suits against a state by its own citizens and suits against a state based upon federal questions
In 1996, the Supreme Court rendered its decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252 (1996), which breaths new life into the Eleventh Amendment. The Seminole Tribe decision places severe limitations on a party's ability to
The Public Service Commission, in its brief on Eleventh Amendment immunity, argues that the Eleventh Amendment bars suit against it in federal court. It claims that it did not, and under Seminole Tribe, could not constructively waive its Eleventh Amendment immunity. It also argues that Ex Parte Young is inapplicable because the 1996 Act spells out remedial measures which do not include suit against state officials for prospective relief. The Public Service Commission claims that since it is immune from suit in this court, the appropriate remedy in this case is dismissal of the consolidated actions for lack of subject matter jurisdiction.
The plaintiffs, AT & T and e.spire, and the defendant, BellSouth, (collectively "the telephone companies") have each submitted briefs in opposition to the Public Service Commission's immunity argument under the Eleventh Amendment.
It is important to understand precisely what issues are presented here, as well as what issues were resolved by Seminole Tribe. There the Court carefully set forth the two questions before it and its answers to those questions:
In reaching its decision, the Court specifically overruled Pennsylvania v. Union Gas Company, 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), in which, a plurality of the Court had found congressional power to abrogate immunity from suit against the states in federal court in the Commerce Clause of Article I of the Constitution. "We feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled." Id. 116 S.Ct. at 1129.
Noting that the Fourteenth Amendment was adopted well after ratification of the Constitution and adoption of the Eleventh Amendment, the Court pointed out that the Fourteenth Amendment "operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment". The Court concluded its discussion of the issue by declaring:
The Court also gave short shrift to the Tribe's argument that because it sought only injunctive relief, not a money judgment, its suit against the State of Florida could proceed under the Ex parte Young doctrine. Because the Congress had carefully spelled out statutory relief in the statute itself, "a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young." Id. 116 S.Ct. at 1132.
Thus, from the decision in Seminole Tribe, several matters are made clear.
The Congress cannot abrogate a state's immunity under the Eleventh Amendment unless it:(1) "unequivocally expresse[s] its intent to abrogate the immunity"; and (2) acts "pursuant to a valid exercise of power."
Clearly, the Commerce Clause is the source of congressional power which was relied upon to enact the Telecommunications Act of 1996 presently before this court. Section 252(e)(6) of the law authorizes any party aggrieved by the decision of a state commission to "bring an action in an appropriate Federal district court." Plaintiffs argue and the court agrees that the intent of that section is to waive state immunity from suit in federal court as to actions brought under that Act. Because the Supreme Court has clearly spelled out that the Commerce Clause grants no such power to the Congress, it is apparent that it has exceeded its constitutional authority and that the waiver of immunity from suit contained in the statute is invalid.
B. Waiver of Immunity
Despite the language in the text prohibiting application of federal judicial power to such suits, the Supreme Court has long acknowledged that the Eleventh Amendment is subject to waiver. The test for determining whether a state has waived the protection of the Eleventh Amendment against suit in federal court is a stringent one.
A state, by statute or constitution, may expressly "specify [its] intention to subject itself to suit in federal court".
Plaintiffs, however, suggest that the Public Service Commission by its actions in this matter has impliedly waived immunity. Although this court has difficulty understanding how an unconstitutional statutory waiver can serve as the predicate for an implied waiver, the issue will be discussed nevertheless.
Prior to Seminole Tribe, the Supreme Court allowed a party to pierce a state's Eleventh Amendment immunity by claiming that a state impliedly or constructively waived it. The plaintiff was required to show that (1) a federal statute expressed in "unmistakable clear language" congressional intent to permit suits against the state in federal court and (2) the state voluntarily undertook non-sovereign activities regulated by the federal government.
Plaintiffs cite recent decisions from other federal district courts in other circuits construing the 1996 Act.
Although the cases cited by the telephone companies are quite numerous and appear to be on point, the Fifth Circuit has already spoken on the issue of "post-Seminole
In Chavez, a university professor brought suit against a public university where she worked alleging violations of the Copyright Act and Lanham Act. The plaintiff claimed that the university published her books and named her as a selector of plays in another published book without her permission. Upon first hearing the case, the Fifth Circuit affirmed the district court's decision to deny defendant's motion to dismiss based on sovereign immunity.
Upon rehearing, the Fifth Circuit held that to the extent that the Copyright and Lanham Act purported to supply the authority to abrogate the university's immunity from suit in federal court, it violated the Eleventh Amendment. After concluding that there could be no abrogation of immunity, the Fifth Circuit moved on to whether implied immunity was still viable after Seminole Tribe. The court stated:
This court finds Chavez to be applicable here and binding precedent. In light of Chavez, this court holds that the Public Service Commission could not constructively waive its Eleventh Amendment immunity.
There are several other reasons, however, why the Public Service Commission has not waived immunity. First, a state agency such as the Public Service Commission is without authority to waive Eleventh Amendment immunity.
Even under pre-Seminole Tribe/Chavez criteria for constructive waiver, the Public Service Commission would remain immune from suit in federal court. Accepting that the 1996 Act does express in "unmistakabl[y] clear language" the Congress' intent to permit suit against the state in federal court,
C. EX PARTE YOUNG
The Ex Parte Young doctrine permits a lawsuit against a state where the Eleventh Amendment would otherwise prevent it. However, the suit must name a state official in his or her individual capacity rather than the state or the state official in his official capacity.
After Seminole Tribe, a party's attempt to bypass the Eleventh Amendment using Ex Parte Young has been even further restricted. The Seminole Tribe decision narrowed the Ex Parte Young doctrine by holding that "where the Congress has created a remedial scheme for the enforcement of a particular federal right, a court should hesitate before casting aside those limitations and permitting an action against a state officer."
Plaintiffs here allege an ongoing violation of a federally protected right. They seek prospective injunctive relief against the state agency and officials. However, the application of Seminole Tribe to an Ex Parte Young analysis requires two additional steps to the inquiry. First the court must determine whether the Congress created a remedy for the federal statutory rights it created. Next, a court must determine whether the congressional remedy authorizes a suit against a state official.
Under the additional Seminole Tribe analysis, the plaintiffs cannot proceed against the state officials under Ex Parte Young. First, the 1996 Act provides a remedial scheme which limits the type of judicial remedy available.
The telephone companies contend that the scheme devised by the Congress was optional. The Public Service Commission and other commissions have the "option" under the 1996 Act to defer authority to the FCC. As stated above, this was not an option. The states were told that they would basically either participate in regulating local exchange carriers under the 1996 Act or turn over such power to the FCC.
Furthermore, the 1996 Act does not meet the second part of the Seminole Tribe analysis. The 1996 Act contains no provisions that authorize suit against the members of the Public Service Commission. The fact that the Congress created an unconstitutional remedy which allowed for suit against the state does not change the result. As in Seminole Tribe, if this court were to apply the Ex Parte Young exception, it would expose the state regulators to a more severe action than anticipated by section 252(e)(6). This court is prevented from "rewriting the statutory scheme in order to approximate what [this court] think[s] the Congress might have wanted", and thus, it is without jurisdiction to proceed against the individual commissioners.
D. JUDICIAL REVIEW OF STATE ACTION
AT & T argues, in the alternative, that this is not a suit against the state under the Eleventh Amendment, even though the Public Service Commission is named as a party. It argues that it is simply a suit for appellate review. They argue that the court's duty is to determine whether certain provisions of the Agreement, arbitrated and imposed by the Public Service Commission, violate federal law.
Early Eleventh Amendment jurisprudence characterizes a suit against the state is one where "`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.'"
AT & T argues that the record is being brought into court for judicial review to see whether it complies with the 1996 Act. Plaintiffs suggest that if it does not, this court should remand this case to the Public Service Commission for further proceedings. The court disagrees. The subsection providing for judicial review of a state commission's action was intended to make state commissions subject to federal court suit.
For the reasons assigned above, this court finds that under the Eleventh Amendment to the Constitution, the Louisiana Public Service Commission, is immune from suit in this matter. It follows that the court lacks subject matter jurisdiction and these actions shall be dismissed for want of jurisdiction.
See Footnote 33 for examples of cases ruling that constructive waiver is still applicable.