United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING MISSISSIPPI
DEVELOPMENT AUTHORITY'S MOTION TO DISMISS
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT is the Motion to Dismiss  filed by the
defendant Mississippi Development Authority (MDA) pursuant to
Fed.R.Civ.P. 12(b)(1). The Motion has been fully briefed.
After reviewing the submissions of the parties, the record in
this matter, and the applicable law, the Court finds that the
plaintiff Southern Industrial Contractors, LLC's claims
against MDA should be dismissed pursuant to the doctrine of
plaintiff Southern Industrial Contractors, LLC, served as the
general contractor for the West Pier Facilities project at
the Port of Gulfport, Mississippi. It filed this lawsuit
against the project's owner, MDA, as well as the
project's consultants and engineers - Neel-Schaffer,
Inc., CH2M Hill, Inc., T.L. Wallace Construction, Inc.,
Thompson Engineering, Inc., W.G. Yates & Sons
Construction Company, Roy Anderson Corp., Yates Anderson, JV,
and Quality Engineering Services, Inc. Southern Industrial
alleges that the defendants failed to provide notice of a
large underground debris field at the project site. Southern
Industrial claims it was required to excavate the debris,
which made the project much more expensive and
time-consuming. MDA filed this Motion to Dismiss, asserting
sovereign immunity pursuant to the Eleventh Amendment of the
United States Constitution.
Eleventh Amendment bars citizens of a state from suing their
own state or another state in federal court . . . .”
Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir.
2013). “The state need not be the named party in a
federal lawsuit, for a state's Eleventh Amendment
immunity extends to any state agency or entity deemed an
‘alter ego' or ‘arm' of the state.”
Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318,
326 (5th Cir. 2002). However, there are circumstances, such
as waiver, in which an individual may sue a state.
Raj, 714 F.3d at 328. Id.
First Amended Complaint, Southern Industrial alleges that
“The MDA failed to perform and/or negligently performed
its environmental responsibilities which resulted in the
dumping of the debris into the waters of the Gulf of Mexico
upon which site the Project was eventually erected.”
(1st Am. Compl. at 3 (¶6), ECF No. 33). Southern
Industrial claims that MDA has waived its sovereign immunity
because it obtained Community Development Block Grant funding
from the Department of Housing and Urban Development. See
Id. at 2 (¶4).
state's decision to waive immunity must be voluntary.
Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 241
(5th Cir. 2005). “Generally, the Court will find a
waiver either if (1) the state voluntarily invokes federal
court jurisdiction, or (2) the state makes a ‘clear
declaration' that it intends to submit itself to federal
court jurisdiction.” Id. Waiver cannot be
implied; therefore, “a waiver of sovereign immunity
will be strictly construed, in terms of its scope, in favor
of the sovereign.” Sossamon v. Texas, 563 U.S.
277, 284-85 (2011).
state waives its immunity by voluntarily participating in
federal spending programs only when Congress includes a clear
statement of intent to condition participation in the
programs on a State's consent to waive its constitutional
immunity.” Hurst v. Tex. Dep't of Assistive
& Rehab. Servs., 482 F.3d 809, 811 (5th Cir. 2007).
“A statute must furnish clear notice regarding the
liability at issue to which the state has allegedly waived
its immunity.” Id. (internal quotation marks
statute at issue provides:
A certification under the procedures authorized by this
section shall . . . specify that the certifying officer -
(i) consents to assume the status of a responsible Federal
official under the National Environmental Policy Act of 1969
[42 U.S.C.A. § 4321 et seq.] and each provision of law
specified in regulations issued by the Secretary insofar as
the provisions of such Act or other such provision of law
apply . . .; and
(ii) is authorized and consents on behalf of the State or
unit of general local government and himself or herself to
accept the jurisdiction of the Federal courts for the purpose
of enforcement of the responsibilities as such an official.
42 U.S.C. § 3547(3)(D). Therefore, the consent to
federal jurisdiction is only “for the purpose of
enforcement of the responsibilities” of a responsible
federal official under the National Environmental Policy Act
(NEPA) and “each provision of law specified in
regulations issued by the Secretary” of the Department
of Housing and Urban Development. See Id. The
regulations specified by the Secretary are 40 CFR parts 1500
through 1508 and 24 CFR part 58. 24 C.F.R. § 58.13. The
Fifth Circuit has held that “[t]he only people who may
sue to enforce a law are people who belong to the class that
the law was designed to protect.” Sabine River
Auth. v. U.S. Dep't ofInterior, 951 F.2d
669, 675 (5th Cir. 1992). “NEPA was not designed to
protect contractors' rights[;] it was designed ...