Metropolitan News-Enterprise


Friday, March 29, 2002


Page 1


Caltrans Immune From Suit Over 710 Freeway Project—Ninth Circuit


By KENNETH OFGANG, Staff Writer/Appellate Courts


A suit by local governments and environmentalists against Caltrans, trying to bar completion of the I-710 Gap Closure Project, was thrown out yesterday by the Ninth U.S. Circuit Court of Appeals on the ground of sovereign immunity.

The court reversed U.S. District Judge Dean D. Pregerson of the Central District of California, who ruled that the state’s implied waiver of Eleventh Amendment immunity in a prior lawsuit, which was voluntarily dismissed, carried over.

That ruling was inconsistent with the principle that a voluntary dismissal nullifies all prior proceedings, Judge Alex Kozinski wrote for the appellate panel in the latest installment of a legal battle that has raged for nearly three decades.

The city of South Pasadena, the Sierra Club, and others brought suit in 1973 challenging the proposed completion of the Long Beach Freeway through the Los Angeles neighborhood of El Sereno and the cities of Alhambra, South Pasadena, Pasadena and La Canada Flintridge.

The plaintiffs claimed that environmental reviews were required under the National Environmental Policy Act and the California Environmental Quality Act. The defendants agreed to an injunction barring completion of the project pending those reviews.

That preliminary injunction, with modifications, remained in effect for 25 years. Senior U.S. District Judge William Rea of the Central District dissolved the injunction in 1998 on the ground that the reviews had been completed.

Supplemental Complaint

Rea, at the same time, denied a motion by the plaintiffs to file a supplemental complaint raising new issues. The parties then stipulated to the dismissal of that suit.

South Pasadena, the Sierra Club, and some who were not parties to the dismissed suit then brought a new federal action, as well as a Sacramento Superior Court action—on hold pending the outcome of the federal suit—raising their new arguments under state law.

Caltrans’ motion to dismiss was denied by Pregerson, who ruled the department had “constructively waived” any Eleventh Amendment immunity during its long-running participation in the prior litigation.

On appeal, Caltrans argued that it did not waive the immunity by failing to plead it as a defense, and that even if it did, the waiver did not carry into the new lawsuit.

Kozinski—joined by Judge Sidney Thomas and U.S. District Judge Raner Collins of the District of Arizona, sitting by designation—said the parties “wasted much ink” arguing the first issue.

Multifactor Test

A prior Ninth Circuit decision, adopting a multifactor test to determine whether a state waives its Eleventh Amendment immunity if it pleads it at a late stage of litigation, is inapposite when the immunity has not been pled at all, the judge said. “By failing to invoke the immunity defense during the pendency of the 1973 action, the state waived it,” Kozinski said.

But the waiver became useless to the plaintiffs when they dismissed the first suit, the judge went on to conclude.

He cited cases interpreting the voluntary dismissal rule, which is Federal Rules of Civil Procedure 41(a). The Ninth Circuit, he said, has “adhered slavishly” to the view that a voluntary dismissal “leaves the situation as if the action has never been filed.”

The rule is a broad one, Kozinski said—it “disallows the ‘carry-over’ of any waivers from a voluntarily dismissed action to its reincarnation.” There is no basis to carve out an exception for waivers of sovereign immunity, which are usually construed even more narrowly than other waivers, the judge wrote.

“Because the state promptly raised the immunity defense against state law claims in the current litigation, and because these claims are undisputably of the type bared by the Eleventh Amendment, the district court erred in failing to dismiss them,” Kozinski wrote.

The case is City of South Pasadena v. Mineta, 99-56205.


Copyright 2002, Metropolitan News Company