Entergy, Arkansas, Inc., an Arkansas corporation; Entergy Gulf States, Inc., a Texas corporation; Entergy Louisiana, Inc., a Louisiana corporation; Wolf Creek Nuclear Operating Corporation, a Delaware corporation; Omaha Public Power District, a public corporation and political subdivision of the state of Nebraska, Plaintiffs, Central Interstate Low-Level Radioactive Waste Compact Commission, Plaintiff-Appellee, US Ecology, Inc., a California corporation, Intervenor, v. State of Nebraska, Defendant-Appellant, Department of Environmental Quality, Nebraska; Randolph Wood, individually and in his official capacity; Jay Ringenberg, individually and in his official capacity; Nebraska Department of Health and Human Services Regulation & Licensure; David P. Schor, individually and in his official capacity; Cheryl Rogers, individually and in her official capacity; John Doe; Jane Doe; Doe Companies 1 through 20, individually and in their official capacities, Defendants.
No. 99-4263, 99-4265
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: October 16, 2000 Filed: March 8, 2001
Before WOLLMAN, Chief Judge, MORRIS SHEPPARD ARNOLD and MURPHY, Circuit Judges.
I.
The background of the Compact has been described in previous decisions of this court. See id. at 890-95; Nebraska v. Central Interstate Low-Level Radioactive Waste Comm‘n, 187 F.3d 982 (8th Cir. 1999); Nebraska v. Central Interstate Low-Level Radioactive Waste Comm‘n, 26 F.3d 77 (8th Cir. 1994). Under authority of the Low-Level Radioactive Waste Policy Act of 1980 (the Act) passed by Congress,
In December 1987, the Commission chose Nebraska as the first member state to host a waste disposal facility. The Commission contracted with USE to file a license application for a disposal facility and then to build and maintain it. Under Nebraska law USE was required to pay all costs associated with licensing, but pursuant to a separate agreement the costs were to be reimbursed at a later date by the Commission. See
When Nebraska was chosen to provide the first site, Governor Kay Orr publicly stated that the state was not happy to be the host for the disposal facility but that it would honor its commitment under the Compact. In July 1990, USE submitted its license application to the Low-Level Radioactive Waste Program operated by two Nebraska state agencies responsible for licensing waste facilities. Those Nebraska agencies are the Department of Environmental Quality (EQ) and the Department of
After the first contested case was withdrawn, the review process continued with more questions and technical review of the amended application. During this process, Nebraska demanded that the Commission turn over to it federal rebate money received under the Act from the United States Department of Energy (DOE). When the Commission did not turn over the rebate money, EQ directed the contractors doing the state‘s technical review to cut back their work and billings by twenty-five percent. Nebraska sued the Commission to recover federal rebate funds, and it received part of the money after it promised to accelerate review, but the amount of review work continued to decline after the settlement.
USE‘s application to build the disposal facility was deemed complete by
USE‘s amended license application was finally denied in December 1998 (the original application had been submitted in July 1990). The reasons stated for the denial were that there was insufficient depth of the water table at the site, that under the applicable regulations EQ could not consider engineered improvements to the site, and that USE had not shown financial ability to build and run the facility. On January 15, 1999, USE appealed the denial by filing another contested case petition with EQ, thus initiating a second administrative contested case proceeding under Nebraska law.
After USE opened its second contested case proceeding, the Generators filed this action and USE intervened, also as a plaintiff. These parties were frustrated by the delays in the Nebraska process and the soaring costs which had caused them to spend over $80 million on the licensing proceedings by the time of the preliminary injunction in April 1999. They alleged that Nebraska, EQ, HHS, and individual state officials (collectively Nebraska) had violated the good faith provision in the Compact and their constitutionally protected rights to procedural and substantive due process. They brought their constitutional claims under
In support of their claims, the plaintiffs set out detailed factual allegations alleging that Nebraska and its officials had deliberately delayed review of the license for eight years and intended that the process end in denial of the application. They alleged that Nebraska had threatened to begin administrative proceedings anew unless the first application were amended. After USE amended the application and withdrew its first contested case, Nebraska nonetheless treated the amended application as a new one, leading to increased costs and delay. They also alleged that Nebraska breached a settlement it had reached with them over federal rebate funds. Nebraska had agreed that in exchange for part of the rebate funds it would accelerate the pace of review and drop its suit, but after it settled the case and received the funds, it slowed the review process by reducing the work of outside technicians it employed. They alleged that Nebraska had delayed and interfered in the review process by refusing to adopt a reasonable budget or schedule, by making unjustified and incorrect statements regarding the timing of the review with knowledge that the statements would be relied upon, by assisting and encouraging opponents of the disposal site to file suits and delay proceedings, by publicly disparaging the selected site, and by intervening in interstaff discussions. The plaintiffs also alleged that Nebraska and officials at EQ and HHS had improperly denied the amended application by relying on data which USE had furnished with the assurance that Nebraska would not use it in making its decision and by basing their denial on drainage plans in the original application to which they had not raised any objection. The plaintiffs further alleged that unauthorized HHS officials had provided statutory interpretations and participated in the license review. Finally,
While the second contested case was continuing in Nebraska, the parties brought several motions in this case. The Nebraska parties brought two motions to dismiss, arguing that the district court lacked subject matter jurisdiction over the case and that the Commission, the Generators, and USE had failed to state claims upon which relief could be granted. The Commission and the Generators moved for a preliminary injunction to enjoin the ongoing second contested case proceeding in Nebraska.
Before ruling on Nebraska‘s motions to dismiss, the district court granted the Commission‘s motion for a preliminary injunction staying USE‘s administrative contested case proceeding. See Entergy, Nebraska, Inc., 46 F.Supp.2d at 996. The district court held that the Commission would suffer irreparable injury if the proceeding were not enjoined because of the “stunted procedural” nature of the administrative proceeding. See id. at 993-94. The court also found that the Commission was likely to prevail on its claim that Nebraska had acted in bad faith because of Governor Nelson‘s campaign promises to block the nuclear disposal facility, the refusal of state officials to adopt a budget and review schedule, denial of the 1993 application because of wetlands on the site after outside counsel had advised that there was no problem in respect to wetlands, a work slowdown after the rebate fund settlement providing for accelerated review, and other detailed findings of bad faith. See id. at 994. The court also held that Nebraska had waived its Eleventh Amendment immunity from the Commission‘s suit for prospective relief. See id. at 995. Based on these findings, the court issued a preliminary injunction in April 1999. See id. at 996.
In the second opinion, the district court dealt with the claims of the Generators and USE against the state of Nebraska, EQ, HHS, and the individual state officers. See Entergy, Arkansas, Inc. v. Nebraska, 68 F.Supp.2d 1104, 1107 (D.Neb. 1999). The court rejected the state officials’ defense of qualified immunity. See id. at 1108. It observed that the complaints alleged violations of the good faith requirement in the Compact and that the Compact was clearly established federal law of which a reasonable state official would have been aware. See id. The court concluded that the Generators and USE had a right to sue under the Compact, as intended beneficiaries, to challenge acts which had “delayed, impeded, and prejudiced the license application” in violation of the Compact‘s good faith mandate. Id. The court concluded, however, that Nebraska and officials in their official capacity had Eleventh Amendment immunity on the claims of the Generators and USE for anything beyond injunctive and declaratory relief. See id. at 1110. Nebraska‘s motion to dismiss was otherwise denied. See id.
In the meantime briefs were completed on these interlocutory appeals. On its appeal from the district court‘s decision dealing with the Commission‘s claims, the state of Nebraska continues to assert Eleventh Amendment immunity. It also seeks to include in its interlocutory appeal issues related to the district court‘s denial of its motion to dismiss for failure to state a claim upon which relief can be granted. The Commission responds that Nebraska waived its sovereign immunity by entering into the Compact, that this court does not have interlocutory jurisdiction to determine whether the Commission has stated a claim, but that if the court reaches the issue, a claim has been stated.
In its appeal from the decision dealing with the claims of the Generators and USE, Nebraska argues that those claims are barred by the Eleventh Amendment and
The Generators and USE respond that qualified immunity is not available to the officials in their individual capacities because clearly established federal law was violated, that the Eleventh Amendment does not bar prospective relief against state officials, and that this court does not have jurisdiction to determine whether claims were stated, but that they were in any event.
The parties disagree on the extent of the issues properly before the court on these interlocutory appeals. They agree that rulings on immunity are reviewable de novo. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). They disagree on whether this court can now consider issues raised by the denial of the motions for failure to state a claim. Appellate review is generally only available after final judgment, but there are exceptions, such as the one for immunity issues and another for issues “inextricably intertwined” with those appealable at the interlocutory stage. Swint v. Chambers County Comm‘n, 514 U.S. 35, 51 (1995), see United States v. Brakke, 813 F.2d 912, 913 (8th Cir. 1987) (denial of a motion to dismiss for failure to state a claim is not a final appealable order). An issue is “inextricably intertwined” with properly presented issues “‘only if it is coterminous with, or subsumed in, the claim before the court on interlocutory appeal--that is, when the appellate resolution of the collateral appeal necessarily resolves the pendent claims as well.‘” Kincade v. City of Blue Springs, Mo., 64 F.3d 389, 394 (8th Cir. 1995), quoting Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995).
Nebraska argues that the district court erred when it denied its motion to dismiss the Commission‘s claims. It says the Commission‘s claims are barred by the Eleventh Amendment because it did not waive its immunity by entering into the Compact. Even if it did waive its immunity, the waiver was only from suits by party states and the Commission is not a party to the Compact. Finally, Nebraska contends that the Commission failed to state a claim upon which relief can be granted under the Compact.
Nebraska argues in its briefing that the Commission‘s claims are barred by the Eleventh Amendment, but we have already held “that by entering into the Compact, Nebraska waived its immunity from suit in federal court by the Commission to enforce its contractual obligations.” Entergy, Arkansas, Inc., 210 F.3d at 897. “It has long been recognized that a state may waive its Eleventh Amendment immunity.” See id. at 896. A waiver of immunity occurs when a state makes a “clear declaration” of its intention to submit to suit in federal court as evidenced by the language of the text or an “overwhelming implication from the text as [will] leave no room for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673 (1974) (internal quotation and citation omitted). Although our review of the district court‘s decision to grant an injunction was under an abuse of discretion standard, we reviewed de novo its legal conclusion that Nebraska had waived its Eleventh Amendment immunity. See Entergy, Arkansas Inc., 210 F.3d at 897. We carefully considered the Eleventh Amendment issue before deciding it in the course of the preliminary injunction appeal, and our holding that Nebraska waived its immunity from claims by the Commission, including claims for damages, is now the law of the case. See In re Progressive Farmers Assoc., 829 F.2d 651, 655 (8th Cir. 1987).
Nebraska also seeks to obtain review of the district court‘s denial of its motion to dismiss the Commission‘s action for failure to state a claim upon which relief can be granted. Nebraska argues that the Commission has failed to state a claim because it is not a party to the Compact and the Compact does not provide for damages, but we have resolved the underlying issue by holding that the Commission has the right to sue under the Compact for the relief its seeks. Whether the Commission has stated a claim is thus intertwined with Nebraska‘s Eleventh Amendment argument, and we have jurisdiction to decide it. See Kincade, 64 F.3d at 394. We hold that since the Compact could permit the relief sought, the Commission has stated a claim, and the district court
III.
Nebraska also argues that the district court erred when it denied its motion to dismiss the claims of the Generators and USE. Nebraska argues that qualified immunity bars the claims under the Compact and the due process clause against the state officials in their individual capacity. Nebraska also asserts that the claims against the state and the officials in their official capacity are barred by the Eleventh Amendment. Nebraska further contends that the appellees failed to state a claim upon which relief can be granted under the Compact and the due process clause.
Qualified immunity shields state officials performing discretionary functions from liability if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Nebraska asserts that the Generators and USE have not alleged violations of federal law because they cannot enforce the good faith provision in the Compact and they do not have a constitutionally protected property interest and thus lack due process rights. Nebraska also denies that its actions could amount to due process violations and claims that the state administrative proceeding on the amended application can overcome any procedural defects that may have occurred earlier. Finally, Nebraska argues that its officials acted rationally in denying the application. The Generators and USE respond by arguing that they can enforce the good faith provision in the Compact. They also assert that they have alleged violations of their due process rights. They claim they have a protected property interest created by their payment of over $80 million in costs by April 1999 with the expectation that the license application would receive a timely review based on the Nebraska Administrative Code
A.
On our de novo review of the district court‘s ruling denying qualified immunity on the claims of the Generators and USE under the Compact, we must examine whether appellees have alleged the violation of any clearly established federal constitutional or statutory rights. See Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir. 1997). We have already held that the Compact is federal law, see Entergy, Arkansas, Inc., 210 F.3d at 897, but Nebraska argues that the good faith provision does not provide the Generators and USE with a clearly established federal statutory right. The Generators and USE respond that they are intended beneficiaries of the Compact and therefore entitled to enforce the good faith promise in Article III(f). Three factors are relevant in determining whether a specific federal statutory provision gives rise to an enforceable federal statutory right: 1) “Congress must have intended that the provision in question benefit the plaintiff“; 2) “the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial competence“; and 3) “the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.” Blessing v. Freestone, 520 U.S. 329, 340-41 (1997) (internal citations omitted).
The Generators cite a number of Compact provisions related to them to show that they are intended beneficiaries of the Compact and able to enforce the good faith provision. They argue that they are included in the definition of “Generators” because
The provision the Generators and USE seek to enforce does not provide them with a federal statutory right. It is true that the Compact refers to entities like them and that some of its provisions might possibly provide them with an enforceable federal statutory right or a protected property interest under state law (since the Compact was also enacted as original legislation by each member state). The Compact provision at issue here, however, is the one containing the obligation of good faith. Article III(f) of the Compact gives each member state the right to rely on “the good faith performance of each other.” Article III(f) states that “[e]ach party state has the right to rely on the
Article III(f) expressly limits to whom good faith is owed, and the Generators and USE are not included and would be at most incidental beneficiaries. Since these parties are unable to establish that Article III(f) provides them with a federal statutory right, the individual state officials could not have violated any clearly established law under it and they are entitled to qualified immunity on these claims. Their inability to enforce the good faith provision also means they have failed to state a claim upon which relief can be granted in respect to the claims they have asserted under the Compact. See Kincade, 64 F.3d at 394. We thus reverse the district court‘s ruling denying qualified immunity on these claims and denying the motion to dismiss them.
B.
The Nebraska officials also argue that they are entitled to qualified immunity on the procedural and substantive due process claims of the Generators and USE. The Generators and USE alleged that Nebraska has been deliberately delaying the review process since 1990, leading to their payment of more than $80 million in costs by April 1999 without achieving a license or closure in the process. They alleged that Nebraska‘s tactics have deprived them of due process by threatening to begin review of the application anew, breaching the first contested case settlement and then the federal rebate settlement by slowing the review process, making incorrect statements about the timing of review, encouraging and engaging in numerous lawsuits, not following their own regulations, interpreting regulations in a way contrary to law, not providing fair procedures, not judging the license application on its merits, and denial
The Nebraska officials contend that they are entitled to qualified immunity from the procedural due process claims because the appellees do not have a constitutionally protected property interest, and even if they did, the administrative contested case proceeding with available judicial review can remove the effect of any past procedural violations. They also argue that they are entitled to immunity from the substantive due process claims because they acted rationally. The Generators and USE respond that they have a constitutionally protected property interest created by the $80 million they paid over the last eleven years in reliance on the N.A.C. which states that a license shall issue if twelve requirements are met. See N.A.C. tit. 194, Ch. 3, § 009. In their view the administrative contested case proceeding and opportunity for judicial review will not eliminate the effect of the past procedural violations because the administrative hearing officer has already ruled inadmissible any evidence of political taint in the licensing history. The Generators and USE assert that state officials have acted so egregiously with their delay tactics and the continuing intent to deny the application that they have deprived them of their rights to substantive due process.
In order to assert a procedural due process violation in this case, the parties agree that the Generators and USE must first establish a legitimate claim of entitlement to a property interest created by state law. See Board of Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972). An entitlement can be established by substantive standards or criteria that guide an official‘s discretion, see Stauch v. City of Columbia Heights, 212 F.3d 425, 429 (8th Cir. 2000), and in this case might possibly be found in the procedures and requirements listed in the N.A.C. for the issuance of a license, the requirement that the licensing process costs be paid by USE (and ultimately the Generators) and the very large payments already made in reliance on Nebraska‘s
To assert a substantive due process violation in this case, the parties agree that the Generators and USE must establish a constitutionally protected property interest and that state officials used their power in such an arbitrary and oppressive way that it “shocks the conscience.” See County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). This standard could be met if the officials’ conduct was “intended to injure in some way unjustifiable by any government interest,” id. at 849; or if their actions were done with “deliberate indifference” to a party‘s protected rights in a situation where officials had an opportunity to consider various alternatives. See Neal v. St. Louis County Bd. of Police Comm‘rs, 217 F.3d 955, 958 (8th Cir. 2000); see also Whitley v. Albers, 475 U.S. 312, 320 (1986).
In summarily denying the defense of qualified immunity and the motion to dismiss the claims of the Generators and USE, the district court only discussed claims asserted under the Compact. See Entergy, Arkansas, Inc., 68 F.Supp.2d at 1108. It gave no indication that it had considered their constitutional claims or whether the officials were entitled to qualified immunity on them. See id. We thus lack jurisdiction
III.
After a thorough study of the record and the briefs, we affirm in part and reverse in part. We affirm the district court‘s determination that Nebraska waived its Eleventh Amendment immunity under the Compact and that the Commission has not failed to state a claim. We reverse the denial of qualified immunity for the state officials on the claims by the Generators and USE which allege a violation of the good faith provision in the Compact. We also reverse the denial of Nebraska‘s motion to dismiss those good faith claims for failure to state a claim upon which relief can be granted. We decline to address issues over which we lack jurisdiction on these interlocutory appeals, and we remand for further proceedings consistent with this opinion.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.