                                                                    F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    July 21, 2006
                                    PU BL ISH
                                                                 Elisabeth A. Shumaker
                   UNITED STATES COURT O F APPEALS                   Clerk of Court

                                TENTH CIRCUIT



 M A RIA N P. O PA LA ,

       Plaintiff - Appellee,
 v.

 JOSEPH M . W ATT; JAM ES R.
 W INC HESTER; RO BERT E.
                                                      No. 05-6261
 LA VEN DER; RU DOLPH
 HARGRAV E; YVO NNE KAU GER;
 JAM ES E. EDM ON DSO N, STEVEN
 W . TAY LOR ; and TOM CO LBERT,
 in their individual and administrative
 capacities,

       Defendants - Appellants.



                  Appeal from the United States District Court
                     for the W estern District of Oklahoma
                           (D .C . No. CIV-04-1771-R)


W .A. Drew Edmondson, Attorney General (Neal Leader, Senior Assistant
Attorney General on the briefs), Office of the Attorney General State of
Oklahoma, Oklahoma City, Oklahoma for the D efendants - Appellants.

Scott F. Brockman (Stanley M . W ard and W oodrow K. Glass, with him on the
briefs), W ard & Glass, LLP, Norman, Oklahoma for the Plaintiff - Appellee.


Before L UC ER O, EBEL, and O’BRIEN, Circuit Judges.


L UC ER O, Circuit Judge.
      Article 7 section 2 of the Oklahoma Constitution provides that the Justices

of the Oklahoma Supreme Court shall choose a Chief Justice and Vice-Chief

Justice from among their members. Having failed in his desire to be chosen once

again Chief Justice of the Oklahoma Supreme Court, Justice M arian P. Opala

seeks to invoke the jurisdiction of the federal courts in his effort to achieve that

end. He brings to us claims that he was discriminated against on the basis of his

age in violation of the Equal Protection Clause and that his due process rights

were violated when his colleagues on the Oklahoma Supreme Court changed the

rule of rotation for elevation of a Chief Justice from one which precluded re-

election to that position for more than one consecutive term to one which lifted

that prohibition and re-elected Joseph P. W att as Chief Justice.

      After Justice Opala named his judicial colleagues as defendants in federal

proceedings, they responded by asserting several defenses, including sovereign

immunity, qualified immunity, and legislative immunity. The district court

disagreed with the defendants, concluded that federal jurisdiction was properly

invoked, and denied the motion to dismiss. Defendants bring an interlocutory

appeal. W e take a quite different view of the jurisdictional issue, and for the

reasons that follow, we REV ER SE the judgment of the district court and

R EM A N D with instructions to DISM ISS the complaint with prejudice.



                                          -2-
                                          I

      Implementation of the Oklahoma constitutional provision for choosing a

Chief Justice and a Vice-Chief Justice is set forth in Rule 4 of the Internal

Operating Procedures of the Oklahoma Supreme Court Conference. Prior to

November 4, 2004, Rule 4 provided:

      The term of office of Chief Justice shall rotate among eligible
      members of the Court every two years. A Justice is eligible to
      become Chief Justice when each sitting Justice at the time of the
      Justice’s appointment has completed a term as Chief Justice or
      waived his or her right to do so. No Justice shall succeed himself or
      herself as Chief Justice, nor shall a Justice be eligible hereunder until
      he or she has completed six years service as Justice of this Court.

(“Old Rule 4”). In his complaint, Justice Opala claims that this rule, and his

status as Vice-Chief Justice at the time, created a “reasonable expectation” that he

would be nominated for Chief Justice.

      On November 4, 2004, all members of the Oklahoma Supreme Court, save

Justice Opala, convened a conference to vote on a proposed change to Rule 4.

Justice Opala was aware of the meeting, but chose not to attend in protest. The

defendants voted to amend the rule, which now reads:

      The term of office of Chief Justice shall rotate among eligible
      members of the Court every two years. The next senior Justice who
      has never served as Chief Justice should be considered for election as
      Chief Justice, provided that the Justice has served at least four (4)
      years on this Court including service as Vice-Chief Justice. If the
      next senior Justice has not served at least four (4) years on the C ourt
      including service as Vice-Chief Justice, the incumbent Chief Justice
      or any other Justice who has served as Chief Justice may be elected



                                        -3-
      to another two-year term as Chief Justice. Otherwise, the Chief
      Justice will serve only one term.

(“New Rule 4”). According to Justice Opala, the practical effects of this

amendment were to cause defendant-Chief Justice Joseph W att to have top

priority for being re-elected to the position of Chief Justice, and to prohibit

Justice Opala himself from being elected as Chief Justice. Specifically, Justice

Opala asserted that because of “[his] tenure as a Justice of the Court, [he] was the

only Justice eligible to be nominated for the Office of Chief Justice because each

of the other Justices that had satisfied the qualification of completing six (6) years

of service as Justice [Opala] had completed a term of Chief Justice.” The

defendant-Justices duly voted pursuant to New Rule 4, and re-elected Chief

Justice Watt. Justice James W inchester was elected to Vice-Chief Justice.

      On December 29, 2004, Justice Opala filed suit in federal district court

against the other members of the Oklahoma Supreme Court challenging the

constitutionality of New Rule 4. He argued that the amendment to Old Rule 4

violated his rights to equal protection of the laws pursuant to the Fifth and

Fourteenth Amendments because it was motivated in part by his age (Justice

Opala was eighty-three at the time of filing). He also asserted that he was

deprived of a liberty interest in the Chief Justiceship in violation of the

procedural component of the Due Process Clause because the amendment did not




                                         -4-
provide for any post-deprivation hearing. The only redress he sought was a

declaration that New Rule 4 violated the Constitution.

      As noted, defendants moved to dismiss invoking legislative immunity,

sovereign immunity under the Eleventh Amendment, qualified immunity, and

failure to present a substantial federal question. The district court denied the

motion, finding that: (1) legislative immunity did not apply because the

amendment was an administrative and not a legislative act; (2) the suit fell within

the Ex Parte Young, 209 U.S. 123 (1908), exception to Eleventh Amendment

sovereign immunity because Justice Opala was seeking prospective – not

retroactive – equitable relief; (3) qualified immunity did not apply because Justice

Opala was not seeking money damages; and (4) determining whether Justice

Opala asserted a “substantial federal question” was infeasible without discovery.

Defendants’ subsequent motion for reconsideration of the denial of their motion

to dismiss was denied by the district court. It was then that the defendants sought

this interlocutory appeal.

                                         II

      W e review de novo the district court’s denial of a motion to dismiss for

lack of subject matter jurisdiction. Brumark Corp. v. Samson Resources Corp.,

57 F.3d 941, 944 (10th Cir. 1995). W e have jurisdiction to review the district

court’s denial of defendants’ motion to dismiss for lack of subject matter

jurisdiction under the collateral order exception to 28 U.S.C. § 1291, which

                                        -5-
provides for interlocutory appeal of orders denying motions to dismiss brought on

the basis of Eleventh Amendment immunity as the basis for appellate jurisdiction.

      Before Justice Opala filed this suit, Chief Justice W att was re-elected to his

post, and Justice Opala was succeeded as Vice-Chief Justice by Justice

W inchester. Because we are only permitted to grant prospective equitable relief

under Ex Parte Young, we cannot undo this election. M oreover, a declaration that

New Rule 4 is unconstitutional will not remedy Justice Opala’s claimed injury

that he was not able to stand for election under Old Rule 4 while serving as Vice-

Chief Justice. Accordingly, we reverse the district court’s denial of defendants’

motions to dismiss, and remand with instructions that the district court dismiss

the complaint for want of jurisdiction.

      As courts of limited subject matter jurisdiction, the federal courts may only

rule upon “Cases” and “Controversies.” U.S. Const. art. III, § 2. “[T]he core

component of standing is an essential and unchanging part of the case-or-

controversy requirement of Article III.” Lujan v. Defenders of W ildlife, 504 U.S.

555, 560 (1992). Standing “is the threshold question in every federal case,

determining the power of the court to entertain the suit.” W arth v. Seldin, 422

U.S. 490, 499 (1975).

      The “irreducible constitutional minimum” of A rticle III’s case-or-

controversy requirement contains three elements. Lujan, 504 U.S. at 560;

Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 447 (10th Cir.1996).

                                          -6-
First, the plaintiff must have suffered an “injury in fact” that is “concrete” rather

than “conjectural or hypothetical.” Lujan, 504 U.S. at 560. Second, the plaintiff

must show that there is a “causal connection between the injury and the conduct

complained of.” Id. Finally, the plaintiff must show that it is “likely,” and not

merely “speculative,” that the injury complained of will be “redressed by a

favorable decision.” Id., 504 U.S. at 561. The party seeking to invoke federal

jurisdiction bears the burden of establishing all three elements of standing. Id.

       Because this suit is against the members of the Oklahoma Supreme Court in

their official capacities, federal jurisdiction is limited by sovereign immunity.

“[N]onconsenting States may not be sued by private individuals in federal court.”

Bd. of Trustees of U niv. of A la. v. Garrett, 531 U .S. 356, 363 (2001); see also

Alden v. M aine, 527 U.S. 706, 713 (1999) (“[A]s the Constitution’s structure, and

its history, and the authoritative interpretations by this Court make clear, the

States’ immunity from suit is a fundamental aspect of the sovereignty which the

States enjoyed before the ratification of the Constitution and which they retain

today . . . .”).

       A state’s immunity from suit by private individuals in federal court is not

absolute. It may be overcome in three instances: (1) the state consents to suit;

(2) Congress expressly abrogates the states’ immunity; or (3) the citizen sues a

state official pursuant to Ex Parte Young, 209 U.S. 123 (1908). See J.B. ex rel.




                                          -7-
Hart v. Valdez, 186 F.3d 1280, 1286 (10th Cir. 1999). This third exception to

Eleventh A mendment immunity is now before us.

      In determining whether a suit falls within the Ex Parte Young exception,

this court applies a four-part test:

      First, we determine whether the action is against state officials or the
      state itself. Second, we look at whether the alleged conduct of the
      state officials constitutes a violation of federal law. Third, we assess
      whether the relief sought is permissible prospective relief or
      analogous to a retroactive award of damages impacting the state
      treasury. Finally, we analyze whether the suit rises to the level of
      implicating ‘special sovereignty interests.’

Robinson v. Kansas, 295 F.3d 1183, 1191 (10th Cir. 2002) (internal citations and

quotations omitted).

      The district court found that Justice Opala’s suit satisfied all four criteria

for the Ex Parte Young exception. In order to review this determination, it is

necessary that we consider Justice Opala’s complaint in detail. Justice Opala

sought a declaratory judgment declaring that the amendment of Rule 4:

      (1) constitutes a violation of Plaintiff’s right to equal protection
      pursuant to the Fifth and Fourteenth Amendments to the United
      States Constitution; (2) constitutes a substantial deprivation of
      Plaintiff’s property without due process of law in violation of the
      Fourteenth Amendment of the United States Constitution; (3)
      violated due process of law under the Fourteenth Amendment of the
      United States Constitution because it does not provide for any
      adequate and immediate post-deprivation hearing on Plaintiff’s
      preclusion from eligibility to be nominated for the position of Chief
      Justice; and (4) constitutes a substantial deprivation of Plaintiff’s
      liberty interest without due process of law in violation of the
      Fourteenth Amendment of the United States Constitution.



                                         -8-
The district court observed that Justice Opala is not requesting retroactive money

damages from the state; rather, the relief he is requesting is to “end an ongoing

violation of Plaintiff’s constitutional rights” by reinstating Old Rule 4. Opala v.

W att, 393 F. Supp. 2d 1154, 1160 (W .D. Okla. 2005). The court correctly

concluded that the mere fact that Opala was seeking to “right a previous wrong”

did not disqualify the action from the Ex Parte Young exception.

      However, the district court’s analysis of its jurisdiction in this matter was

incomplete: Not only must the requested relief be prospective in nature (to

satisfy Ex Parte Young), a ruling from this court must be capable of redressing

the alleged injury for Justice Opala to have standing to file his suit. Because

Justice Opala was no longer the Vice-Chief Justice of the Oklahoma Supreme

Court when he filed suit, and because the equitable powers of the federal courts

are limited to providing prospective equitable relief, we ordered supplemental

briefing on whether this court was capable of issuing a remedy that redresses

Justice Opala’s alleged injury. In their supplemental brief, appellants argue that

even were we to declare that New Rule 4 is unconstitutional, Justice Opala w ould

nevertheless have to stand for election, and his election to Chief Justice would not

be more likely. Thus, they tell us, any relief we may afford would only

speculatively redress Justice Opala’s alleged injury. Justice Opala disagrees, and

insists that if w e reinstated Old Rule 4, such action would undoubtedly redress his

injuries. He argues that “[a] ruling in Justice Opala’s favor would declare the

                                        -9-
amended Rule 4 invalid as violative of Justice Opala’s Constitutional rights, and

would place Justice Opala in the Constitutionally-protected position he was in

prior to the rule’s amendment.” This statement, however, mischaracterizes

Justice Opala’s injury. According to his own brief, his injury is that “the

amendment to Rule 4 removed him from his investitive track to be Chief Justice

without rational basis and did not permit him to come up for selection as Chief

Justice in the same manner that all other Vice-Chief Justices had for the past sixty

plus (60+) years.” Because declaring New Rule 4 to be unconstitutional would

not redress this injury, we must vacate the judgment below and dismiss the suit.

      In Glover River Org. v. United States D ept. of Interior, 675 F.2d 251 (10th

Cir. 1982), we considered a challenge to the Secretary of Interior’s listing of the

leopard darter on an endangered species list. Plaintiffs claimed that they were

injured because the listing precluded them from promoting a flood control project

on a river in Oklahoma. Id. at 254. They sought an injunction requiring the

Secretary of the Interior to prepare an environmental impact statement together

with an order staying the listing until the statement was completed. Id. W e held

plaintiffs lacked standing because a remedy from the federal courts would not

redress their alleged injuries. Id. at 255. Specifically, we concluded that even if

preparation of an environmental impact statement led to the removal of the

leopard darter from the endangered species list, “this would not ensure the

funding or construction of the project.” Id.

                                        - 10 -
      M ore recently in W yoming Sawmills, Inc. v. United States Forest Service,

383 F.3d 1241 (10th Cir. 2004), a timber company claimed that it was denied the

right to buy timber because of an Historical Preservation Plan issued by the

United States Forest Service for the management of M edicine W heel National

Historic Landmark. The company claimed that the refusal to hold the timber sale

violated the Establishment Clause and the national Forest M anagement Act. Id. at

1244-45. The district court found that the plaintiff timber company lacked

standing to challenge the Plan “because the court could not remedy the

constitutional wrongs plaintiff had alleged.” Id. at 1246. Even if the Historic

Preservation Plan were declared unconstitutional, the district court concluded, the

Forest Service would nevertheless not be under any obligation to sell timber from

the area. Affirming the dismissal for lack of standing for want of pleading a

redressable injury, we held:

      W yoming Sawmills has not shown that a timber lease would “likely”
      become available on the lands w ithin the area of consultation if
      plaintiff were to have the HPP set aside. As in Baca [Baca v. King,
      92 F.3d 1031 (10th Cir. 1996)], the federal agency has complete
      discretion as to whether to offer the opportunity sought by the
      plaintiff, and accordingly the courts do not have the power to grant
      the only relief that would rectify the alleged injury.

Id. at 1249.

      Applying these authorities to the present litigation yields a clear result:

Any remedy the federal courts could fashion would not redress Justice Opala’s

injury. According to his complaint, Justice Opala w as injured because he had to

                                        - 11 -
face election under New Rule 4 rather than under Old Rule 4. Because he was

Vice-Chief Justice at the time, the use of Old Rule 4 would have made his

election as Chief Justice likely. As stated in his brief:

      [A] ruling in his favor, which would reinstate the pre-determined
      sequential order to that which existed prior to the Rule 4 amendment,
      would redress in full Justice Opala’s grievance. It will place him
      back in the investitive track for Chief Justice, cure the Constitutional
      defects incurred by Appellee’s Rule 4 amendment, and allow Justice
      Opala to stand for selection as Chief Justice where he must be the
      first ‘candidate’ considered.

However, we lack the power to “reinstate the pre-determined sequential order to

that which existed prior to the Rule 4 amendment.” W e simply cannot make

Justice Opala Vice-Chief Justice again. This is precisely the type of retroactive

equitable relief prohibited under the Ex Parte Young doctrine. The relief sought

in the complaint – a declaration that New Rule 4 is unconstitutional – would not

place Justice Opala in the position he was in on November 3, 2004. There is no

prospective remedy that can unring that bell. 1 Justice Opala’s claimed injury is




      1
        At oral argument, counsel for Justice Opala, responding to a line of
questioning about redressability, suggested that the proper remedy was a “post-
election, post-deprivation name clearing” hearing. W e cannot understand how
such a hearing would redress Justice Opala’s claimed injury.

                                         - 12 -
simply not redressable with prospective relief. 2 Thus, the federal courts lack the

power to resolve this dispute.

                                         III

      Because no prospective equitable relief can redress Justice Opala’s alleged

injury, we REV ER SE the judgment of the district court and REM AND with

instructions that the district court DISM ISS the complaint for want of jurisdiction

with prejudice. Justice Opala’s “application to file statement regarding disputed

facts” is DENIED.




      2
         Justice Opala cites Regents for the Univ. of California v. Bakke, 438 U.S.
265 (1978) for the proposition that a plaintiff need not prove he will prevail in a
contest (such as the election for Chief Justice) in order to constitutionally
challenge the rules of that contest. In Bakke, the Supreme Court held that a
medical school applicant had standing to challenge the school’s quota for
minority students although he could not prove that absent the quota he would
have been admitted. Bakke’s injury did not consist in being rejected from
medical school per se. Rather, he allegedly was injured by being forced to
unconstitutionally compete for a smaller number of slots. This is not the case
before us. The only remedy that we may provide is to declare New Rule 4
unconstitutional. This would not redress Justice O pala’s claimed injury because
it w ould not restore his place in the “investitive track.”

                                        - 13 -
