Unpublished Disposition, 865 F.2d 264 (9th Cir. 1989)

MEMORANDUM^** 

G. Donald Massey, Bruce L. Bax, and Donna L. Sergi appeal pro se the district court's judgment dismissing their action for injunctive and declaratory relief.

Massey, Bax, and Sergi filed an action in federal district court seeking declaratory and injunctive relief against the Oregon Supreme Court, the Circuit Court of Oregon for Josephine County, Oregon State District Judge A. Coon, and Oregon Circuit Judge L.A. Cushing. The complaint alleged that the defendants violated the plaintiffs' federal due process and equal protection rights by unlawfully assigning Coon to serve as circuit court judge pro tem in plaintiffs' quiet title action in state court. Defendants moved to dismiss the complaint for failure to state a claim. The magistrate recommended granting dismissal and the district court adopted the magistrate's findings and recommendations and dismissed the action. The appeal now comes before this court.

This court does not have jurisdiction to hear an appeal by pro se appellants who do not personally sign the notice of appeal. Carter v. Commissioner, 784 F.2d 1006, 1008 (9th Cir. 1986). Bax and Sergi signed neither the original nor the amended notices of appeal. Therefore, Bax and Sergi's appeals must be dismissed.

Massey contends that Article VII Section 2(a) (3) of the Oregon Constitution and several Oregon statutes (1) prohibit the appointment of a state circuit judge pro tem to serve in the judicial district for which the judge was elected; and (2) forbid a state circuit judge to name a judge pro tem as that power is reserved to the Oregon Supreme Court.

Massey also contends that such assignment, because it is contrary to state law, violates the due process and equal protection clauses of the Constitution. Assuming, arguendo, that Massey has correctly interpreted state law, we nonetheless conclude that the eleventh amendment bars his suit.

The eleventh amendment prevents federal courts from hearing suits brought against a state without its consent, regardless of the type of relief sought. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Massey has failed to indicate any explicit waiver of Oregon's immunity to suit in federal court. He contends that the eleventh amendment is inapplicable because his suit is not in substance brought against the state. He further argues that this suit is excepted from the general jurisdictional bar by the principles of Ex Parte Young, 209 U.S. 123 (1908). We reject both arguments.

The eleventh amendment bars any suit nominally brought against individual state officials where the state is the real party in interest.¹  Pennhurst, 465 U.S. at 101. A suit for non-monetary relief is in substance against the sovereign if "the effect of the judgment would be 'to restrain the Government from acting or compel it to act.' " Pennhurst, 465 U.S. at 101 n. 11 (citing Dugan v. Rank, 372 U.S. 609, 620 (1963)). Here, the relief sought would require the state, acting through its officials, to conform its conduct to state law by appointing a judge from another district to serve as judge pro tem in this case.

Massey contends that this suit is not brought against the state for purposes of the eleventh amendment because defendants' actions were outside their delegated power. However, a state official is not entitled to eleventh amendment immunity only when he acts "without any authority whatever." Pennhurst, 465 U.S. at 101 n. 11 (citing Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 697 (1982) (plurality opinion)). "A claim of error in the exercise of [an official's delegated] power is therefore not sufficient" to support a claim of ultra vires. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 690 (1949). Oregon's Constitution and statutes clearly did provide a mechanism for appointing judges pro tem, even though the procedures may not have been followed correctly in this case. Therefore, this case does not fall within the narrow scope of the ultra vires doctrine as enunciated by the Supreme Court. The action against Judges Coon and Cushing was thus in substance an action against the state.

Massey argues that if the suit is deemed to be one against the state, it is not barred by the eleventh amendment because it falls under the exception enunciated in Ex Parte Young. Young provides that a suit for injunctive relief challenging a state official's action under the Constitution is not considered a suit against the state for purposes of the eleventh amendment. Young, 209 U.S. at 167. Although on its face the complaint states a claim under the due process and equal protection clauses of the Constitution, these constitutional claims are entirely based on the failure of defendants to conform to state law. " [W]hen a plaintiff alleges that a state official has violated state law.... the entire basis for the doctrine of Young ... disappears." Pennhurst, 465 U.S. at 106 (emphasis in original). Therefore, the Young exception does not apply and the district court correctly dismissed the suit against Judges Coon and Cushing.

Finally, the district court properly dismissed Massey's action without leave to amend. Where amendment of the complaint would have served no purpose because the acts complained of could not constitute a cognizable claim for relief, it is not error to dismiss a complaint without leave to amend. See Jones v. Community Redevelopment Agency, 733 F.2d 646, 650 (9th Cir. 1984). No restatement of Massey's claim could constitute a claim for relief cognizable in federal court.² 

AFFIRMED.