We don't regularly cover unpublished opinions, but the U.S. Court of Appeals for the Fourth Circuit's Columbia Gas Transmission, LLC v. 0.12 Acres of Land, No. 23-1069 (Oct. 11, 2023) got our attention because it involves a slight twist on the the Supreme Court's ruling a couple of years ago in PennEast Pipeline Co. v. New Jersey, 131 S.Ct. 2244 (2021).
There, the Court held that a private actor exercising the delegated federal power of eminent domain may take property from a state in a federal court action, notwithstanding the state's usual Eleventh Amendment immunity. Employing a historical analysis, the Court held that when the states entered the Union they consented to the federal government's eminent domain power. And the later-adopted Eleventh Amendment didn't change that.
The caption of the latest case should tell you a couple of things. First, this is also a federal taking (plaintiff vs. the property), and second, it is also a taking by a delegee of the federal eminent domain power under the Natural Gas Act. What the caption doesn't tell you is that like in PennEast, the property is owned by a state (in this case, Maryland).
Yet after the district court held the Eleventh Amendment does not afford the state immunity from suit, Maryland appealed. So what gives? Doesn't PennEast resolve the issue?
Not to Maryland:
On remand, Maryland again moved to dismiss, maintaining that, notwithstanding the states’ consent in the plan of the Convention to the exercise of the federal eminent domain power, the later-enacted Eleventh Amendment independently stripped the district court of jurisdiction over the action. That was so, Maryland posited, because Columbia Gas was a citizen of another state such that its federal action against Maryland triggered the Eleventh Amendment’s textual, and nonwaivable, jurisdictional bar. See U.S. Const. amend. XI (stating that “[t]he Judicial power of the United States shall not be construed to extend to any suit . . . against one of the United States by Citizens of another State”).According to Maryland, PennEast did not resolve this separate Eleventh Amendment issue, so it was proper for the district court to address it in the first instance on remand.
Slip op. at 5.
Recall that in PennEast, Justice Gorsuch (joined by Justice Thomas) dissented, arguing that the citizenship of the parties in that case made a difference. There, PennEast (Delaware) sued New Jersey in a New Jersey federal court. Justice Gorsuch noted that this situation lined up squarely with the text of the Eleventh Amendment ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.") (emphasis added).
Here, the citizenship lineup is a bit different, and Columbia Gas is a citizen of Maryland suing Maryland in a Maryland federal court. Not a "Citizen of another state." Thus, Maryland argued, the situation presented here is a question left open after PennEast.
The Fourth Circuit disagreed:
At bottom, Maryland’s arguments mirror Justice Gorsuch’s dissent in PennEast. But Justice Gorsuch’s dissent is just that—a dissent. It did not reflect the view of a majority of the justices (indeed, it reflected the view of just two), and so it does not constitute binding authority on this Court.The PennEast majority opinion, on the other hand, does constitute such binding authority. And its holding on this issue was clear: ... When a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action. Such consent may, as here, be inherent in the constitutional plan....Thus, far from leaving "unresolved" the Eleventh Amendment-immunity issue that Maryland now raises, the PennEast majority addressed that issue head-on and explicitly rejected it, as the district court here correctly found. In our view, that is the end of the matter.
Slip op. at 7-8 (citations omitted).
The opinion ended with an invitation to Maryland to take its SCOTUS shot: "Maryland is, of course, free to petition the Supreme Court to revisit and even overturn its Eleventh Amendment precedents—indeed, the State appears keen to do just that. But unless and until the Supreme Court affirmatively scraps those precedents, we are constrained to apply them, a fact that even Maryland acknowledges." Slip op. at 9.
Stay tuned.
Columbia Gas Transmission, LLC v. 0.12 Acres of Land, No. 23-1069 (4th Cir. Oct. 11, 2023) (unpub.)
