     Case: 18-60674   Document: 00515094043     Page: 1   Date Filed: 08/27/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fifth Circuit

                                 No. 18-60674                      FILED
                                                             August 27, 2019
                                                              Lyle W. Cayce
BAY POINT PROPERTIES, INCORPORATED,                                Clerk

             Plaintiff - Appellant

v.

MISSISSIPPI TRANSPORTATION COMMISSION; MISSISSIPPI DEPART-
MENT OF TRANSPORTATION; DICK HALL, in his capacity as Mississippi
Transportation Commissioner; MIKE TAGERT, in his capacity as Mississippi
Transportation Commissioner; TOM KING, in his capacity as Mississippi
Transportation Commissioner; WAYNE H. BROWN, in his capacity as for-
mer Mississippi Transportation Commissioner; MELINDA MCGRATH, in
her capacity as Executive Director of the Mississippi Department of Trans-
portation; LARRY BROWN, in his capacity as former Executive Director of
Mississippi Department of Transportation, also known as Butch; DANIEL B.
SMITH, in his capacity as Administrator of the Right-of-Way Division of Mis-
sissippi Department of Transportation,

             Defendants - Appellees




                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before DAVIS, HO, and ENGELHARDT, Circuit Judges.
JAMES C. HO, Circuit Judge:
      A state court jury found that Mississippi state officials violated the Tak-
ings Clause by exceeding the scope of a state easement on private property.
But the jury granted a monetary award considerably lower than the amount of
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                                      No. 18-60674
“just compensation” sought by the property owner. So the property owner, af-
ter losing on appeal in state court and unsuccessfully seeking certiorari in the
U.S. Supreme Court, brought this suit in federal court. The State moved to
dismiss on sovereign immunity grounds, and the district court granted the mo-
tion in an exhaustive opinion. We agree and accordingly affirm.
       While this case was pending on appeal, the Supreme Court issued its
decision in Knick v. Township of Scott, 139 S. Ct. 2162 (2019). In its supple-
mental briefing, the property owner contends, in effect, that Knick overturns
prior sovereign immunity law in cases arising under the Takings Clause. But
we find nothing in Knick to support that claim. 1
       It is well established under the Supreme Court’s sovereign immunity
precedents that there are “only two circumstances in which an individual may
sue a State”: (1) Congressional abrogation of state sovereign immunity con-
sistent with the Enforcement Clause of the Fourteenth Amendment; or (2)
State waiver of immunity. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary
Educ. Expense Bd., 527 U.S. 666, 670 (1999). As the district court correctly
concluded, neither of these circumstances are present in this case.
       Nothing in Knick alters these bedrock principles of sovereign immunity
law. To begin with, the Court did not even have occasion to re-consider sover-
eign immunity law in Knick, because that case involved a suit against a local-
ity, and it is well established that local governments are not entitled to the
sovereign immunity enjoyed by states. See, e.g., N. Ins. Co. of N.Y. v. Chatham




       1  In its original brief, the property owner asked us to “address the tension” between
state sovereign immunity and the right to just compensation under the Fifth and Fourteenth
Amendments. That determination, however, is one for the Supreme Court—not this panel.
See, e.g., McMurtray v. Holladay, 11 F.3d 499, 504 (5th Cir. 1993) (holding that takings
claims under the Fifth Amendment are “barred because under the Eleventh Amendment, a
citizen may not sue his own state in federal court”) (citing U.S. CONST. amend. XI; Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984)).
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County, 547 U.S. 189, 193 (2006) (“[T]his Court has repeatedly refused to ex-
tend sovereign immunity to counties.”); Jinks v. Richland County, 538 U.S.
456, 466 (2003) (“[M]unicipalities, unlike States, do not enjoy a constitutionally
protected immunity from suit.”).
      Nor does anything in Knick even suggest, let alone require, reconsidera-
tion of longstanding sovereign immunity principles protecting states from suit
in federal court. Rather, Knick held only that “a property owner has a claim
for a violation of the Takings Clause” cognizable in federal court “as soon as a
government takes his property for public use without paying for it.” 139 S. Ct.
at 2170. Accordingly, Knick did away with the previous rule requiring “a prop-
erty owner [to] pursue state procedures for obtaining compensation before
bringing a federal suit.” Id. at 2173.
      In other words, to the extent that Knick has any effect on suits against
state governments, the Court simply put takings claims against state govern-
ments on equal footing with claims against the federal government. See id. at
2170 (“We have long recognized that property owners may bring Fifth Amend-
ment claims against the Federal Government as soon as their property has
been taken.”). And nobody disputes that takings claims against the federal
government require the waiver of sovereign immunity contained in the Tucker
Act. See id. (citing 28 U.S.C. § 1491(a)(1)); id. at 2186 (Kagan, J., dissenting)
(“The Tucker Act waives the Federal Government’s sovereign immunity.”).
      Not surprisingly, then, the Tenth Circuit has already held that Knick
does not alter traditional principles of state sovereign immunity. See, e.g., Wil-
liams v. Utah Dep’t of Corr., 928 F.3d 1209, 1214 (10th Cir. 2019) (“Knick did
not involve Eleventh Amendment immunity, which is the basis of our holding
in this case. Therefore, we hold that the takings claim against the [Utah De-
partment of Corrections] must be dismissed based on Eleventh Amendment
immunity.”). We therefore affirm.
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