John G. and Marie Stella Kenedy Memorial Foundation v. Mauro ( 1994 )


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  •                    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
    
    
         *
          Chief Judge of the Eastern District of Texas, sitting by
    designation.
    
                                            1
    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
    
    
                                          2
    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.
    
    
                                                3
         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
    
    
                                              4
    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
    
    
         1
          The Foundation has specifically disclaimed any intent to
    challenge the district court's decision remanding its state law
    claims to state court.
    
                                         5
          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).
    
    
                                            6
                                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
    
                                        7
           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
    
                                          8
    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
    
    
                                      9
    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
    
    
                                    10
    "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
    
         2
          We 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
    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
    
    
                                       12
    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
    
    
                                          13
    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
    
    
                                           14
    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 Carnegie-
    
    Mellon 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
    
    
                                    15
    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
    
         3
          We 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
    the district court's judgment denying the Foundation's motion for
    
    partial summary judgment.   Costs shall be borne by the Foundation.
    
    
    
    
                                    17