                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                        UNITED STATES COURT OF APPEALS
                                                                    November 27, 2006
                            FOR THE FIFTH CIRCUIT
                                                                Charles R. Fulbruge III
                                                                        Clerk


                                 No. 06-50626
                               Summary Calendar



       ANDREA OGREY,

                                             Plaintiff-Appellee,

                                      v.

       STATE OF TEXAS,

                                             Defendant-Appellant.



           Appeal from the United States District Court for the
                         Western District of Texas
                               No. 3:05-CV-5




Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*


       Andrea Ogrey brought this suit against the State of Texas in

federal court alleging that portions of the Texas Transportation

Code       are   unconstitutional.   Texas   never   waived   its     Eleventh

Amendment immunity to suit.

       These are all the facts—facts that were never substantially


       *
       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this opinion should not be published and is not precedent except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.
refuted—the     district    court     needed       to   dismiss   this   claim.

Nevertheless, the court denied Texas’s summary judgment motion to

dismiss, apparently as a sanction for Texas’s repeated failures to

file its motions properly.

     We DISMISS this suit because Texas is immune from it under the

Eleventh Amendment.1       We note that this disposition’s delay, and

the accompanying drain on resources for each party and the court

system,   was   caused     in   large       part   by   Texas’s   repeated   and

inexplicable failures to comply with the district court’s standing

orders for filing motions.        But the district court cannot exercise

jurisdiction where none properly exists as a sanction for such

behavior, so this suit must be dismissed.

                                I.   BACKGROUND

     Ogrey brought suit against Texas pro se seeking $100,000 in

damages and to have her driver’s license reinstated. She complains

that, having received two tickets and paid penalties for failure to

maintain automotive insurance, Texas continues to subject her to

residual and duplicative punishments.              In addition to her initial

fines, she is allegedly required to maintain proof of insurance



     1
       The Eleventh Amendment reads, “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.” U.S. CONST. amend. XI. While unapparent from the
text, it is well established that this immunity extends to suits
brought against a state by its own citizens.          See Hans v.
Louisiana, 134 U.S. 1, 16-21 (1890).

                                        2
subject to monitoring for two years.       She is also required to pay

$260 a year for the next three years as a surcharge for receiving

two such tickets within a 36-month window.          Unable to pay the

surcharge, Ogrey’s license was revoked.

     Texas responded with a motion to dismiss the complaint for

lack of jurisdiction and failure to state a valid claim, based on

its Eleventh Amendment immunity.       See FED. R. CIV. PRO. 12(b)(2),

12(b)(6).   Texas’s initial motion was denied for failure to comply

with one of the court’s standing orders.      The subsequent properly

filed motion was denied as based on “one citation to general legal

authority” that the court found to be “in no way dispositive,”

although Ogrey at this point had yet to allege in any way that

Texas waived its sovereign immunity.

     Texas next filed its motion for summary judgment.         See FED. R.

CIV. PRO. 56(b). This motion contained significantly improved legal

analysis.   Once again, it failed to comply with one of the court’s

standing orders, that read in relevant part, “[t]here shall be

annexed to a motion for summary judgment a document entitled

‘Proposed   Undisputed   Facts,’   which   sets   forth   in   separately

numbered paragraphs a concise statement of each material fact.”

Failure to comply could result in sanctions, “including . . . when

the opponent fails to comply, an order granting the motion.”

     While all the facts necessary to dismiss were set forth in

Texas’s summary judgment motion, they were not presented in the


                                   3
appropriate annexed form.         The district judge dismissed the motion

and began preparation for trial.             Texas brought this interlocutory

appeal.

                                 II.    ANALYSIS

       The Eleventh Amendment confers immunity upon a state from a

suit brought against it by one of its citizens.               That immunity can

only   be    abrogated     if   (1)    Congress,    subject    to    limitations,

“expresse[s] in unmistakable statutory language its intention to

allow States to be sued in federal court,” Welch v. Tex. Dep’t of

Highways & Pub. Transp., 483 U.S. 468, 475 (1987), or (2) if the

state itself makes a “clear declaration that it intends to submit

itself to our jurisdiction.” Coll. Sav. Bank v. Fla. Prepaid

Postsecondary Educ. Expense, 527 U.S. 666, 675-76 (1999).

         Ogrey has been unable to point to any indication that

Congress has abrogated or Texas has waived its immunity.                        She

generally alleges that Texas has waived its immunity by entering

into activities regulated by Congress, but it’s unclear what

activities she is referring to and how they are tied to Congress’s

explicit abrogation of Texas’s immunity. Throughout her claim, she

relies      on   preemption     analysis       to   assert    that    the     Texas

Transportation      Code    obstructed        federal    legislation    and     was

therefore, in light of the Supremacy Clause, constitutionally

ineffective.       U.S. CONST. art. VI cl.              2.   Her     argument is

impressive, especially considering she is a pro se plaintiff with


                                         4
no readily apparent legal background.

     While   she   may   be   correct,       that   a    law    may   be   federally

preempted would not alone abrogate Eleventh Amendment immunity.

See Welch, 483 U.S. at 475-79.          Unless she can point to specific

language    explicitly   abrogating         or   waiving       Eleventh    Amendment

immunity, any valid complaint she has will be against a different

defendant or in a different court.                  For instance, a suit to

reinstate    her   license    brought    against        an   individual    official

responsible for revoking it, rather than the state, might survive

an Eleventh Amendment immunity claim.                   See generally Ex Parte

Young, 209 U.S. 123, 159-60 (1908).

     Unfortunately, the district court never addressed whether

Texas was due Eleventh Amendment immunity from suit. Instead, this

case has gone on far too long because of Texas’s inability to

comply with the district court’s standing order for filing summary

judgment motions.     Presumably, if Texas had annexed its “Proposed

Undisputed Facts” to its summary judgment motion to dismiss, it

would have been granted.         Instead, the case continues as both

parties and the court system waste time and money.

     Nonetheless, the district court cannot sanction a party by

exercising jurisdiction where it is lacking.                     Considering that

sovereign immunity is similar to a subject matter jurisdiction bar,

the district court should have considered the sovereign immunity

issue and reached a conclusion, even if technically improperly


                                        5
presented.        The court could have considered the issue had it gone

entirely unraised.            See Perez v. Region 20 Educ. Serv. Ctr., 307

F.3d       318,   333   n.8   (5th   Cir.   2002)   (“[W]e   may   consider   this

[sovereign immunity] issue sua sponte because it bears on this

court’s subject matter jurisdiction.”).2                In either case we can

consider it here, as “[t]he Eleventh Amendment defense sufficiently

partakes of the nature of a jurisdictional bar so that it need not

be raised in the trial court.”              Edelman v. Jordan, 415 U.S. 651,

678 (1974).

                                  III.   CONCLUSION

       This suit is DISMISSED for want of jurisdiction because Texas

has Eleventh Amendment immunity.




       2
       That is not to say that a court must consider a sovereign
immunity issue on its own motion. See Patsy v. Board of Regents of
Fla., 457 U.S. 496, 516 n.19 (1982) (“[W]e have never held that
[the Eleventh Amendment] is jurisdictional in the sense that it
must be raised and decided by this Court on its own motion.”)
(emphasis added).

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