Rowan Ct Subdivision 2013 L.P. v. Louisiana Housin ( 2018 )

Case: 17-30833 Document: 00514625128 Page: 1 Date Filed: 08/31/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-30833 August 31, 2018
Summary Calendar
Lyle W. Cayce
Clerk
ROWAN COURT SUBDIVISION 2013 LIMITED PARTNERSHIP,
Plaintiff - Appellant
v.
THE LOUISIANA HOUSING CORPORATION; MAYSON H. FOSTER;
FREDERICK A. TOMBAR, III; HOUSING AND URBAN DEVELOPMENT;
UNITED STATES TREASURY,
Defendants - Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:15-CV-870
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
The plaintiff, Rowan Court Subdivision 2013 Limited Partnership
(“Rowan Court”), appeals the district court’s judgment dismissing its amended
complaint against the Louisiana Housing Corporation (“LHC”); Mayson H.
Foster and Frederick A. Tombar, III, two former officers of the LHC; the United
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 17-30833
States Department of Housing and Urban Development (“HUD”); and the
United States Department of the Treasury. For the reasons that follow, we
affirm.
I
Rowan Court alleges that the defendants improperly administered the
federal Low Income Housing Tax Credit Program, resulting in Rowan Court
not receiving those credits in 2014. It claims that the LHC, Foster, and Tombar
(the “state defendants”) knowingly reserved tax credit funds for two other
recipients based on falsified applications, and that HUD and the Treasury (the
“federal defendants”) failed to properly oversee or intervene in the awarding of
those credits.
After the district court granted Rowan Court leave to file an amended
complaint to address deficiencies in its original complaint, the state and federal
defendants filed separate motions to dismiss Rowan Court’s amended
complaint as to the claims against each of them. The district court granted both
motions, and Rowan Court timely appealed.
II
The district court held that Rowan Court’s claims against the federal
defendants were barred by sovereign immunity because they constituted a
programmatic challenge to agency action, which is not covered by the
Administrative Procedure Act’s waiver of sovereign immunity. In the
alternative, it held that Rowan Court failed to state a claim against the federal
defendants for which relief could be granted.
We do not assess these conclusions because Rowan Court has waived any
arguments to the contrary on this appeal. This Court has made clear that “[a]n
appellant abandons all issues not raised and argued in its initial brief on
appeal” and that “[a] party who inadequately briefs an issue is considered to
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have abandoned the claim.” 1 Rowan Court’s only references to the federal
defendants in its initial briefing are a set of conclusory assertions that
awarding tax credits to the allegedly fraudulent recipients violated “the
Treasury regulations” and “the HUD regulations,” an allusion to negligence in
awarding the tax credits, nonspecific references to “numerous anti-fraud
federal statutes” and “the numerous federal statutes enumerated in [the grant]
application,” and the unelaborated request for “an extension of the existing law
to allow a private citizen to bring suit in Federal Court to challenge the action
of a federal agency, when its employees have failed to do the jobs for which
they were hired.” None of these unsupported statements provide grounds from
which we could conclude that Rowan Court fulfilled its burden of showing that
the federal government had waived sovereign immunity against its claims, 2 let
alone that its complaint should withstand the federal defendants’ motion to
dismiss.
III
The district court separately held that Rowan Court’s claims against the
state defendants were barred by the Eleventh Amendment, which protects
states from suit without their consent or congressional abrogation. 3 We review
de novo a district court’s determination that the Eleventh Amendment
prevents a suit. 4
1 Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (emphasis in original); see Legate
v. Livingston, 822 F.3d 207, 211–12 (5th Cir. 2016); In re Deepwater Horizon, 819 F.3d 190,
194 n.3 (5th Cir. 2016).
2 See St. Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d
307, 315 (5th Cir. 2009) (“Plaintiff bears the burden of showing Congress’s unequivocal
waiver of sovereign immunity.”).
3 See Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253–54 (2011).
4 Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011) (per curiam).
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The parties have seemingly agreed that the Eleventh Amendment
applies to suits against the LHC and its officers in their official capacities, 5 so
the Eleventh Amendment will bar the suit unless Rowan Court can show
waiver, abrogation, or an exception to sovereign immunity. 6 Rowan Court does
not attempt to show on appeal that Louisiana waived immunity for suits
against the LHC or its officers, or that Congress has abrogated that immunity.
Its sole argument as to why the Eleventh Amendment does not bar its suit is
that the suit falls under Ex parte Young’s exception to the Eleventh
Amendment. 7
Ex parte Young holds that the Eleventh Amendment permits actions to
enjoin state officers, in their official capacities, from violations of federal law. 8
Ex parte Young therefore does not apply to Rowan Court’s claims against the
LHC or to its claim for damages against any of the state defendants. Both of
these are flatly barred by the Eleventh Amendment.
As for Rowan Court’s non-damages claims against Foster and Tombar,
the parties agree that Foster and Tombar are relevant state officials for the
purposes of Ex parte Young. 9 Rowan Court must therefore show that “the
5 Rowan Court initially appears to have sued the officers in their official and
individual capacities, but makes no mention of this on appeal, and throughout the suit, the
parties seem to have only treated Foster and Tombar as defendants in their official capacities.
6 See Morris v. Livingston, 739 F.3d 740, 745 (5th Cir. 2014).
7 It is not clear whether Rowan Court’s argument that the 2014 awards are an
“absolute nullity” under Louisiana law is meant to support its contention that its suit is not
barred by the Eleventh Amendment, or to stand as an independent ground for relief against
the state defendants. Either way, the Eleventh Amendment straightforwardly prevents
federal review of state actions under state law unless there is corresponding waiver or
abrogation of immunity. See, e.g., McKinley v. Abbott, 643 F.3d 403, 406 (5th Cir. 2011)
(“[S]ince state law claims do not implicate federal rights or federal supremacy concerns, the
Young exception does not apply to state law claims brought against the state.”).
8 See Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507,
515–16 (5th Cir. 2017) (citing Ex parte Young, 209 U.S. 123 (1908)).
9 The state defendants note that Foster and Tombar are no longer officials of the LHC.
They do not argue, however, that this means Ex parte Young is inapplicable to Foster and
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complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” 10
At a minimum, Rowan Court has not adequately alleged a violation of
federal law, as it must to qualify for the Ex parte Young exception. 11 As
explained supra, Rowan Court has not identified what specific Treasury or
HUD regulations Foster and Tombar violated. Similarly, Rowan Court’s
briefing before this Court offers no explanation of the alleged violations of due
process and equal protection, and it can be taken to have waived those claims
on appeal. 12
Further, Rowan Court has not shown that any violations of federal law
would be ongoing—nor has it shown that the relief it seeks is properly
characterized as prospective. Continuing damages from a past wrong do not
constitute an ongoing violation for the purposes of an Ex parte Young
analysis. 13 Rowan Court’s argument appears to hinge in part on its claim that
the damages from the initial grant of tax credits in 2014 are ongoing, and in
part on its assumption that a declaration that the 2014 funds were improperly
Tombar—instead, they argue that this means that relief against Foster and Tombar cannot
be characterized as prospective.
10 Stewart, 563 U.S. at 255 (internal alterations omitted).
11 We recognize that ordinarily, an allegation of an ongoing violation of federal law
will be sufficient to warrant the Ex parte Young exception. See, e.g., Idaho v. Couer d’Alene
Tribe of Idaho, 521 U.S. 261, 281 (1997). A bare assertion of a violation of federal law is not
enough, though. See Hall v. Tex. Comm’n on Law Enf’t., 685 F. App’x 337, 341 (5th Cir. 2017)
(per curiam) (concluding that failure to raise “a colorable constitutional claim” meant that
the Ex parte Young exception did not apply); Salinas v. Tex. Workforce Comm’n, 573 F. App’x
370, 372 (5th Cir. 2014) (per curiam) (“Conclusory statements are insufficient to plead a
claim, and they do not establish jurisdiction under the Ex Parte Young exception.”).
12 Rowan Court did not appear to offer a significantly fuller explanation of its
constitutional arguments before the district court. To the extent that it did, we agree with
the district court that it nonetheless failed to sufficiently plead any violation of due process
or equal protection.
13 Cf. Papasan v. Allain, 478 U.S. 265, 280 (1986) (holding that Ex parte Young would
not support a suit against a state for ongoing liability for an alleged past breach of trust,
since “continuing payment of the income from the lost corpus is essentially equivalent in
economic terms to a one-time restoration of the lost corpus itself”).
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awarded would trigger a “rollover” provision allowing those credits to be meted
out to worthier recipients. Both of these are properly construed as
consequences of an alleged past violation, rather than the continuing result of
improper procedures going forward. 14 Similarly, Rowan Court asks for
essentially retrospective relief: a set of declarations that the 2014 grant process
was improper coupled with an injunction ordering the reallocation of the 2014
credits to other qualifying projects, and damages in the alternative. We cannot
conclude that Ex parte Young allows Rowan Court’s suit against the state
defendants in this case.
IV
We affirm the district court’s grant of all defendants’ motions to dismiss
Rowan Court’s amended complaint.
14 See id. at 279 (“In discerning on which side of the [Ex parte Young] line a particular
case falls, we look to the substance rather than to the form of the relief sought . . . .”); see also
Edelman v. Jordan, 415 U.S. 651, 668 (1974) (concluding that injunctive relief fell afoul of Ex
parte Young where it would “to a virtual certainty be paid from state funds” and was
“measured in terms of a monetary loss resulting from a past breach of a legal duty on the
part of the defendant state officials”).
6