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U.S. Court of Appeals, Eleventh Circuit
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No. 99-13669.
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226 F.3d 1226, 226 F.3d 1226, 2000.C11.0042628 <http://www.versuslaw.com>
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September 13, 2000
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MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, A FEDERALLY RECOGNIZED
INDIAN TRIBE, PLAINTIFF-APPELLANT,
V.
FLORIDA STATE ATHLETIC
COMMISSION, ALVIN GOODMAN, FLORIDA STATE ATHLETIC COMMISSION, ET AL.,
DEFENDANTS-APPELLEES.
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Appeal from the United States District Court for the Southern District
of Florida. (No. 99-00347-CV-DLG), Donald L. Graham, Judge.
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Before Anderson, Chief Judge, and Dubina and Smith *fn1 , Circuit
Judges.
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The opinion of the court was delivered by: Dubina, Circuit
Judge
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Plaintiff, the Miccosukee Tribe of Indians of Florida ("Tribe"), filed
suit against the Florida State Athletic Commission ("Florida Commission")
and several of its officials and representatives, alleging violations of
the Professional Boxing Safety Act, 15 U.S.C. §§ 6301- 6313, the Equal
Protection Clause of the Fourteenth Amendment, and federal common law. The
district court dismissed the Tribe's complaint, finding that the Tribe
failed to allege an injury in fact. The district court also found that the
Florida Commission was entitled to Eleventh Amendment Immunity. We hold
that the Tribe fails to allege any injury as to its Equal Protection
claim, but that the Tribe does allege a sufficient injury as to its tax
claim. We also affirm the district court's Eleventh Amendment Immunity
decision.
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I. Background
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The Tribe is a federally-recognized Indian tribe exercising powers of
self-governance. In December 1998, the Tribe established the Miccosukee
Athletic Commission ("Miccosukee Commission"). The Miccosukee Commission
regulates professional boxing matches held within the Miccosukee
reservation. Florida has a similar entity-the Florida State Athletic
Commission-to regulate professional boxing matches within Florida. Both
the Miccosukee Commission and the Florida Commission license and appoint
boxing officials and regulatory staff to officiate boxing matches. The
Commissions employ many of the same officials.
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Soon after the Tribe created the Miccosukee Commission, the Florida
Commission threatened boxing officials with adverse employment action if
they declined a state assignment in order to accept an assignment with the
Miccosukee Commission. According to the Tribe, the Florida Commission has
not similarly threatened boxing officials who accept assignments with
non-Indian entities. In addition, the Florida Commission has attempted to
tax boxing promoters who conduct professional boxing matches on the
Miccosukee Reservation as if the matches occurred in Florida. Those taxes
require, inter alia, that the promoter pay a tax on the sale of
broadcasting rights and on the proceeds from a pay-per-view
operator.
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II. Discussion
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A. Standing
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The Tribe argues that the district court incorrectly held that the
Tribe failed to allege an injury in fact and thereby lacked Article III
standing to bring this lawsuit. This court reviews de novo a district
court's order dismissing a complaint for lack of Article III standing. See
Florida Ass'n of Med. Equip. Dealers, Med-Health Care v. Apfel, 194 F.3d
1227, 1229 (11th Cir.1999).
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In order to establish Article III standing, a plaintiff must
demonstrate: (1) an injury in fact; (2) a causal connection between the
injury and the conduct complained of; and (3) that the injury is likely to
be redressed by a favorable decision. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An "injury
in fact [consists of] an invasion of a legally protected interest which is
(a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical." Id. at 560, 112 S.Ct. 2130 (citations and
internal quotations omitted). Thus, to satisfy the injury prong of Article
III standing, a plaintiff must "present 'specific, concrete facts' showing
that the challenged conduct will result in a 'demonstrable, particularized
injury' to the plaintiff." Cone Corp. v. Florida Dep't of Transp., 921
F.2d 1190, 1204 (11th Cir.1991) (quoting Warth v. Seldin, 422 U.S. 490,
508, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). An allegation of an abstract
injury will not suffice. See Whitmore v. Arkansas, 495 U.S. 149, 155, 110
S.Ct. 1717, 109 L.Ed.2d 135 (1990) ("The complaint must allege an injury
to himself that is 'distinct and palpable,' as opposed to merely
'abstract' ....") (citations omitted); see also E.F. Hutton & Co.,
Inc. v. Hadley, 901 F.2d 979, 984 (11th Cir.1990) ("Plaintiffs in the
federal courts must have a personal stake in the outcome of the case, and
must allege some threatened or actual injury resulting from the putatively
illegal action. Abstract injury is not enough ....") (citations and
internal quotations omitted).
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1. Equal Protection Claim
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With regard to the Tribe's Equal Protection claim, the district court
correctly held that the Tribe's complaint fails to set forth a
"particularized injury." In its complaint, the Tribe asserts that the
Florida Commission acted unconstitutionally by making oral and written
threats of adverse employment action against boxing officials if they
declined a state boxing assignment in order to accept a Miccosukee boxing
assignment. The Florida Commission, however, did not similarly threaten
boxing officials who declined a state boxing assignment in order to accept
an assignment from another state. The Tribe alleges that these actions
"unequally and unfairly burdened the Tribe and its Commission," (Compl. at
¶ 58), and "[t]he actions of the Defendants operate to the detriment of
the ... Tribe," (Compl. at ¶ 64).
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The Tribe, however, does not allege how the Florida Commission's
actions have burdened it or operated to its detriment. For instance, the
Tribe does not allege that the Florida Commission's actions prevented the
Tribe from conducting any particular boxing match. The Tribe also does not
allege that the Florida Commission prevented or even hindered its ability
to hire, train, or procure boxing officials from within or outside of
Florida for its matches. Nor does it allege that the Florida Commission's
activities will have such an effect in the future. *fn2
Nowhere in the complaint does the Tribe identify any particularized injury
resulting from the Florida Commission's alleged misconduct. *fn3
Instead, the Tribe's complaint only sets forth abstract injuries. Cf.
Bennett v. Spear, 520 U.S. 154, 167-68, 117 S.Ct. 1154, 137 L.Ed.2d 281
(1997) (holding that the plaintiff adequately alleged an injury in fact
where it alleged that it would receive less irrigation water from a Bureau
as a result of restrictions imposed on the Bureau from the challenged
agency opinion).
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Even though the Tribe's complaint sets forth facts from which we could
imagine an injury sufficient to satisfy Article III's standing
requirements, we should not speculate concerning the existence of
standing, nor should we imagine or piece together an injury sufficient to
give plaintiff standing when it has demonstrated none. See Cone Corp., 921
F.2d at 1210. The plaintiff has the burden to "clearly and specifically
set forth facts sufficient to satisfy [ ] Art. III standing requirements."
Whitmore, 495 U.S. at 155, 110 S.Ct. 1717; see also Warth, 422 U.S. at
518, 95 S.Ct. 2197 ("It is the responsibility of the complainant clearly
to allege facts demonstrating that he is a proper party to invoke judicial
resolution of the dispute and the exercise of the court's remedial
powers."). If the plaintiff fails to meet its burden, this court lacks the
power to create jurisdiction by embellishing a deficient allegation of
injury. See Whitmore, 495 U.S. at 155, 110 S.Ct. 1717 ("A federal court is
powerless to create its own jurisdiction by embellishing otherwise
deficient complaints of standing."). In this case, the Tribe fails to
allege a "particularized injury," and thus, lacks Article III standing to
bring a claim under the Equal Protection Clause. Accordingly, we affirm
the district court's order dismissing the Tribe's Equal Protection
claim.
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2. Tax Claim
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We now turn to the question of whether the Tribe has standing to
challenge Florida's authority to tax a non-Indian boxing promoter on
revenues gained from a boxing match conducted on the Tribe's reservation.
*fn4
The district court held that the Tribe lacked standing because it failed
to allege an injury. In particular, the district court noted that the
Tribe did not allege that the tax on promoters hindered the Tribe's
efforts to conduct boxing matches or to collect its taxes. In turn, the
district court held that absent these allegations, the Tribe acted as a
third party challenging the imposition of a tax on promoters. Absent
exceptional circumstances, a third party does not have standing to
challenge injury to another party. See Warth, 422 U.S. at 499, 95 S.Ct.
2197.
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Even though the Tribe does not allege that the tax hindered its
ability to conduct boxing matches or to collect its boxing taxes, the
Tribe has a legitimate basis for standing-that the state's tax on boxing
promoters infringes upon the Tribe's sovereignty. The Supreme Court has
consistently recognized that a tribe has an interest in protecting tribal
self-government from the assertion by a state that it has regulatory or
taxing authority over Indians and non-Indians conducting business on
tribal reservations. See White Mountain Apache Tribe v. Bracker, 448 U.S.
136, 142, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980); see also Ramah Navajo
Sch. Bd. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 845, 102 S.Ct.
3394, 73 L.Ed.2d 1174 (1982) (upholding an Indian Tribe's challenge to a
state's attempt to tax the gross receipts a non-Indian construction
company received from constructing a school on reservation property to
educate tribal children); Washington v. Confederated Tribes of the
Colville Indian Reservation, 447 U.S. 134, 156-57, 100 S.Ct. 2069, 65
L.Ed.2d 10 (1980) (rejecting on the merits an Indian Tribe's claim that a
state's attempt to tax on-reservation cigarette sales to non-Indians
violated the Tribe's sovereignty).
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In Bracker, the Supreme Court recognized "two independent but related
barriers" to the assertion of state regulatory authority over commercial
activity on an Indian reservation: (1) state authority may be pre-empted
by federal law; or (2) interfere with a tribe's sovereignty. 448 U.S. at
142, 100 S.Ct. 2578. In particular, the Court explained that a state tax
may unlawfully infringe "on the right of reservation Indians to make their
own laws and be ruled by them." Id.; see also Fisher v. District Court,
424 U.S. 382, 386, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (per curiam) ("The
right of the Northern Cheyenne Tribe to govern itself independently of
state law has been consistently protected by federal statute."); Williams
v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959) ("There can
be no doubt that to allow the exercise of state jurisdiction here would
undermine the authority of the tribal courts over Reservation affairs and
hence would infringe on the right of the Indians to govern
themselves.").
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Moreover, the Supreme Court has explicitly held that when challenging
a state's taxation of a business located on an Indian reservation, an
Indian tribe satisfies Article III's injury requirement by alleging that
the tax infringes upon its sovereignty. See Moe v. Confederated Salish
& Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 468 n. 7,
96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). In Moe, the Indian tribe challenged a
Montana law that required stores located on Indian lands to collect
Montana's cigarette sales tax on retail cigarette sales to both Indians
and non-Indians. See id. at 467-68, 96 S.Ct. 1634. The Supreme Court
stated that:
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Our conclusions in Parts II and III, infra, that the District Court,
with subject-matter jurisdiction over the Tribe's claims, properly entered
injunctive relief in its favor implicitly embrace a finding that the
Tribe, qua Tribe, has a discrete claim of injury with respect to these
forms of state taxation so as to confer standing upon it apart from the
monetary injury asserted by the individual Indian plaintiffs. Since the
substantive interest which Congress has sought to protect is tribal
self-government, such a conclusion is quite consistent with other
doctrines of standing. See, e.g., Warth v. Seldin, 422 U.S. 490, 498-499,
95 S.Ct. 2197, 2205-2206, 45 L.Ed.2d 343, 354-355 (1975). Id. at 468 n. 7,
96 S.Ct. 1634.
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Therefore, the Tribe's allegation that Florida's attempt to tax a
non-Indian conducting business on its reservation violates the Tribe's
right to self-governance satisfies the injury in fact requirement for
standing. Thus, we reverse the district court's order dismissing the
Tribe's tax claim. *fn5
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B. Eleventh Amendment Immunity
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The Eleventh Amendment grants immunity to the states from suits in
federal court. See Tuveson v. Florida Governor's Council on Indian
Affairs, Inc., 734 F.2d 730, 732 (11th Cir.1984). This immunity extends to
state agencies, but does not extend to independent entities, such as
counties or municipalities. See id. In determining whether the Eleventh
Amendment provides immunity to a particular entity, this court examines
the following factors: (1) how state law defines the entity; (2) what
degree of control the state maintains over the entity; (3) where the
entity derives its funds; and (4) who is responsible for judgments against
the entity. See id. (citing Lake Country Estates, Inc. v. Tahoe Reg'l
Planning Agency, 440 U.S. 391, 401-02, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401
(1979)). After examining these four factors, we conclude that the Florida
Commission is an arm of the state, thereby entitling it to Eleventh
Amendment Immunity.
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1. Characterization of the Florida Commission under State
Law
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Florida law clearly characterizes the Florida Commission as a state
agency. Florida law defines an agency as, inter alia, a commission. See
Fla. Stat. § 20.03(11) (" 'Agency,' as the context requires, means a[ ]
... commission ...."); see also Fla. Stat. § 120.51(1) (" 'Agency' means:
... 4. Commission...."). Florida law, in turn, defines a "commission" as
"a body created by specific statutory enactment within a department ...
and exercising limited quasi-legislative or quasi-judicial powers, or
both, independently of the head of the department or the Governor." Fla.
Stat. § 20.03(10). The Florida Commission falls squarely within this
definition. The Florida legislature created the Commission under the
Department of Professional Regulation ("DPR"). *fn6
See Fla. Stat. § 548.003. The Commission also has limited
quasi-legislative and quasi-judicial powers independent of the head of the
DPR and the Governor. *fn7
Moreover, as with other state agencies, Florida's Administrative Procedure
Act ("APA") applies to the Florida Commission's rule making powers. *fn8
Therefore, Florida law characterizes the Florida Commission as a state
agency.
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2. Degree of State Control over the Florida Commission
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The Tribe argues that the state exercises little control over the
Florida Commission because the Commission may promulgate regulations and
may conduct adjudications to suspend or revoke a license or permit. As
previously noted, the APA applies to the Commission's rule making
functions. Thus, the state has provided guidelines to limit the
Commission's ability to make regulations and, consequently, has some
control over the Commission's rule making powers. Although the APA does
not apply to suspension or revocation adjudications, the state has not
given the Commission unfettered discretion in this area. Instead, the
state allows the Commission to suspend or revoke a license for a limited
number of grounds. See Fla. Stat. § 548.071. Also, the state requires a
majority of the Commission to examine the record and approve the
adjudication and order. See Fla. Stat. § 548.073. Therefore, this single
exception to the APA does not grant the Commission sufficient independent
authority to make it fall outside of state control.
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Moreover, other factors support the conclusion that the state controls
the Florida Commission. The Governor and the State Senate select the
Commission's members. See Fla. Stat. § 548.003(1) ("The State Athletic
Commission shall consist of five members appointed by the Governor,
subject to confirmation by the Senate."). *fn9
State authority over the appointment of agency members lends support to
finding that the agency is an arm of the state for Eleventh Amendment
purposes. *fn10
See Christy v. Pennsylvania Turnpike Comm'n, 54 F.3d 1140, 1149 (3d
Cir.1995); Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1520
(11th Cir.1983). Also, the DPR has some control over the Florida
Commission. For example, if the Commission fails to remedy potential
revenue shortcomings identified by the DPR, the DPR may set license fees
on behalf of the Commission to assure an adequate cash balance. See Fla.
Stat. § 455.219(1); see also Fla. Stat. § 455.204 (requiring the DPR to
develop a long-range plan for each board and monitor each board for
compliance). *fn11
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3. Funding
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The Tribe also contends that the Florida Commission is fiscally
independent because it does not rely upon state funds to support its
operations. Instead, the Commission raises its own funds to pay its
expenses. See Fla. Stat. § 548.077. Even though the Commission may collect
money to pay for its own expenses, the Commission is still an arm of the
state because the state controls its fiscal life. In Fouche, this court
held that although the Park Authority raised its own money and was
self-sufficient, the state controlled the Park's fiscal life because the
Park had to submit its budget and annual reports to the legislature. See
713 F.2d at 1520-21; see also Harden v. Adams, 760 F.2d 1158, 1163 (11th
Cir.1985) ("Where the budget of an entity is submitted to the state for
approval, this suggests that the entity is an agency of the state.").
Similarly, the Florida legislature controls the Florida Commission's
fiscal life. The Florida legislature appropriates the funds to carry out
the Commission's functions. See Fla. Stat. § 455.219(4). Additionally, the
DPR submits to the legislature an annual report on the Commission which
includes a breakdown of the Commission's revenue and expenses and a
condensed version of the Commission's long-range plan. See
id.
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Furthermore, section 548.077 reinforces the notion that the Commission
is an arm of the state. This statute requires the Commission to send all
moneys collected to the State Treasurer. The State Treasurer, and not the
Commission, pays the Commission's expenses. Also, if the Commission's
trust fund exceeds $250,000, the excess money goes to the state's general
revenue fund. Thus, this factor also supports the proposition that the
Commission is an arm of the state.
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4. Responsibility for Judgments
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The Tribe contends that the Florida Commission, rather than the state,
is responsible for any judgments rendered against it. Section 548.077
requires the State Treasurer to pay the Commission's expenses from the
moneys collected by the Commission. According to the Tribe, the expenses
covered in § 548.077 necessarily include litigation expenses and monetary
judgments. However, responsibility for any judgment rendered against the
Commission in this case may be assumed by the state through the Florida
Risk Management Trust Fund. See Fla. Stat. § 284.30; see also Tuveson, 734
F.2d at 734 ("Responsibility for any judgment in this case against the
Council will be assumed by the state through the Florida Risk Management
Trust Fund."). This state self-insurance fund provides, inter alia,
insurance to cover the state or its agencies from liability in a 42 U.S.C.
§ 1983 action and from court-awarded attorney's fees in other proceedings
against the state. See Fla. Stat. § 284.30; see also Gamble v. Florida
Dep't of Health & Rehabilitative Serv., 779 F.2d 1509, 1516 (11th
Cir.1986).
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As to the Tribe's claims that may fall outside of § 284.30, Florida
law provides that neither the state nor its state agencies shall pay any
monetary damages under the judgment of any court except pursuant to an
appropriation made by law. See Fla. Stat. § 11.066. Moreover, because the
Florida Commission submits its budget to the Florida legislature for
approval, the state would be responsible for the Commission's debts, such
as court judgments. *fn12
See Fouche, 713 F.2d at 1521 (holding that the state would presumably be
responsible for any debts incurred because the Park Authority submits its
budget to the Georgia legislature.). Therefore, Florida would be
responsible for any judgments rendered against the Florida
Commission.
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Since all four factors support the conclusion that the Florida
Commission is an arm of the state, the Florida Commission is entitled to
Eleventh Amendment immunity from suit. *fn13
See Schopler v. Bliss, 903 F.2d 1373, 1378-79 (11th Cir.1990) (holding
that the DPR and a board within the DPR were entitled to Eleventh
Amendment Immunity).
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III. Conclusion
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We agree with the district court that the Tribe lacks standing to
bring an Equal Protection claim because the Tribe fails to allege an
injury in fact. We, however, hold that the Tribe does allege an injury in
fact as to the tax claim. A state's attempt to levy a tax on a non-Indian
who works on an Indian reservation infringes upon the Indian tribe's
interest in self-government and this infringement satisfies the injury in
fact requirement. Lastly, we affirm the district court's finding that the
Florida Commission is an arm of the state, thereby entitling it to
Eleventh Amendment Immunity.
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AFFIRMED in part, REVERSED, in part, and REMANDED.
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Opinion Footnotes |
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*fn1 Honorable Edward S. Smith, U.S. Circuit Judge for the Federal
Circuit, sitting by designation.
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*fn2
The complaint does allege that the defendants acted with the intention of
discouraging boxing officials from officiating boxing matches conducted
under the Miccosukee Commission. Even though a defendant intends his acts
to cause a particular injury, the defendant's acts, however, may not cause
the intended injury. Thus, a plaintiff still must allege facts to show
that the defendant actually injured the plaintiff or could do so in the
future.
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*fn3
For example, the complaint alleges that the Tribe and the Florida
Commission held a boxing match on January 30, 1999. Consequently, boxing
officials faced a precarious situation if they decided to work for the
Tribe, instead of the Florida Commission. The complaint, however, fails to
mention what happened and what, if any, injuries the Tribe
suffered.
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*fn4
The record on appeal does not indicate which tax the Florida Commission
attempted to levy. The complaint alleges that the Florida Commission
threatened to assess state taxes upon promoters for activities relating to
professional boxing matches conducted within the Tribe's reservation. The
complaint, however, does not identify the particular tax provision. On
appeal, the Florida Commission argues that it attempted to impose a tax
pursuant to Fla. Stat. § 548.061, which is a tax on the proceeds a boxing
promoter receives from a pay-per-view operator. During oral arguments, the
Tribe, however, argued that the Florida Commission attempted to impose a
tax pursuant to Fla. Stat. § 548.06(1) which is a tax on the total gross
receipts from a boxing match, including the proceeds from the sale or
lease of broadcasting and television rights. At this stage in the
litigation, we need not determine which tax the Florida Commission sought
to levy. We accept as true the complaint's well pleaded facts, even if
disputed. See S & Davis Int'l, Inc. v. Yemen, 218 F.3d 1292, 1298
(11th Cir.2000). Thus, we will examine the standing issue based on the
Tribe's allegation that the Florida Commission attempted to tax promoters
for activities relating to boxing matches conducted on the Tribe's
reservation.
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*fn5
Alternatively, the Florida Commission argues that this court can affirm
the district court's holding on the basis that the Tribe can establish no
set of facts under which Florida's tax would be preempted by federal law
or infringe upon the Tribe's right to self-governance. Because the
district court did not address this issue, we decline to address it on
appeal.
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*fn6
The DPR is a department within the executive branch of Florida empowered
to license and regulate the practice of various professions within the
state. See Fla. Stat. § 455.201.
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*fn7
The Tribe provides a long list of powers Florida has delegated to the
Florida Commission in order to show that the state views the Commission as
an independent entity and not a state agency. For example, the Florida
Commission has the power to enact rules to regulate pugilistic
exhibitions, see Fla. Stat. § 548.003(2), and has the power to hold
hearings to determine whether to suspend or revoke a license,
notwithstanding Florida's APA, see Fla. Stat. § 548.07. The Tribe
correctly notes that the Florida Commission has independent legislative
and judicial powers. These powers, however, are limited. The state created
the Commission for the sole purpose of exercising state regulatory
authority over boxing matches. See Fla. Stat. § 548.003. In doing so, the
state has carefully set forth the limits and extent of the Commission's
power.
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*fn8
The Florida Commission falls within the state's definition of an agency,
see Fla. Stat. § 120.51, and thus, its rule making authority is subject to
Florida's APA, see Fla. Stat. §§ 120.536 and 120.54. In addition, in 1999,
the Florida legislature amended § 548.003(2) to state explicitly that
"[t]he commission has authority to adopt rules pursuant to § 120.536(1)
and 120.54 [of the Administrative Procedure Act]...."
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*fn9
Once appointed, the members of the Commission serve a term of four years.
In 1999, the Florida legislature amended § 548.003 to state that each
commission member shall be accountable to the Governor, who may remove
them from office.
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*fn10
Even though the Governor appoints the commissioners, the Tribe, relying on
Miccosukee Tribe of Indians v. United States, No. 97-5488, 163 F.3d 1359
(11th Cir.1998) (unpublished), argues that the Commission's ability to
levy fines requires this court to remand the case. In Miccosukee Tribe,
this court stated that it would not rest its affirmance on Eleventh
Amendment grounds because the facts only showed that the South Water
Management District could levy ad valorem taxes on property, like
political subdivisions, and that the governor appointed the members to the
district, like state agencies. See id. at 4. Fines, however, differ in
kind from ad valorem taxes. Agencies typically levy fines on those who
violate laws within the area an agency regulates, while agencies typically
do not impose ad valorem taxes. Additionally, we have more information
indicating that the Commission is an arm of the state in this case than in
Miccosukee Tribe.
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*fn11
In 1999, Florida added Fla. Stat. § 548.005 which altered DPR's oversight
of the Commission. In particular, section 548.005 provides that the DPR
shall oversee the Commission's activities and assist the Commission in
creating a long-range plan to be submitted to the Governor for approval.
See Fla. Stat. § 548.005(1) & (2). Section 548.005(2) also requires
the DPR to monitor the Commission's compliance with the long-range plan
and report its findings to the Governor.
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*fn12
Furthermore, if the Commission has a negative cash balance, Fla. Stat. §
455.219(1) provides that the DPR, a state agency, may advance sufficient
funds to the Commission to ensure an adequate cash balance.
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*fn13
Defendants do not appeal the district court's holding that the individual
defendants were not entitled to Eleventh Amendment
Immunity.
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