Appeal from the United States District Courtfor the Eastern District of WashingtonRobert H. Whaley, District Judge, PresidingArgued and SubmittedApril 15, 1999--Seattle, WashingtonFiled June 1, 1999Before: Harry Pregerson and David R. Thompson,Circuit Judges, and Barry Ted Moskowitz, District Judge.1Opinion by Judge Thompson
______________________COUNSEL Leslie Weatherhead, Witherspoon, Davenport, Kelley &Toole, Spokane, Washington, for the plaintiff-appellant.John Barnes, Assistant Attorney General, Olympia, Washing-ton, for the defendant-appellee.
_____________________________OPINION THOMPSON, Circuit Judge:OVERVIEWThe Yakama Indian Nation ("the Nation") appeals the dis-missal of its declaratory judgment and injunctive relief actionagainst the State of Washington Department of Revenue ("theDepartment"). In that action, the Nation challenged, on theground of sovereign immunity, the Department's seizure ofunstamped packages of cigarettes owned by, and being trans-ported to, the Nation. The Nation argues that the district courterred by immunizing the state against suit under the EleventhAmendment and by denying the Nation's request to amend itscomplaint to include ultra vires claims against state officers.We have jurisdiction under 28 U.S.C. S 1291 to review thedismissal of the original action and the denial of leave toamend, and we affirm those decisions.The Nation also appeals the district court's order remand-ing an administrative forfeiture proceeding that the Depart-ment instituted after it seized the cigarettes, and which theNation removed to the district court. Because 28 U.S.C.S 1447(d) precludes appellate jurisdiction to review theremand order, we dismiss that portion of the appeal.BACKGROUNDWashington taxes the sale, use, consumption, handling,possession, and distribution of cigarettes. See Wash. Rev.Code S 82.24.020. The Department enforces this tax law,which provides that, absent some exceptions, cigarette pack-ages possessed in Washington must bear applicable stamps asproof of tax payment. See id. S 82.24.030. "Although Indiansare permitted to buy unstamped, tax-exempt cigarettes onIndian reservations located within the State of Washington, alldeliveries of unstamped cigarettes to Indian reservations inWashington must be preapproved by [the Department]."United States v. Baker, 63 F.3d 1478, 1483 (9th Cir. 1995)(citing Wash. Admin. Code S 458.20.192). Preapproval isobtained by giving advance notice to the Department. In theabsence of such notice, any unstamped cigarettes are consid-ered contraband, see id., and are subject to seizure and sale.See Wash. Rev. Code S 82.24.250(4); Baker, 63 F.3d at 1489.On January 16, 1997, a Washington state patrol trooperasked the driver of a truck and trailer that had just crossed thescales of a weigh station near Plymouth, Washington, to pro-duce all paperwork related to his shipment. The driver pro-duced a bill of lading indicating that he was carrying a loadof cigarettes apparently owned by and bound for the Nationin Toppenish, Washington. While checking the load of thetruck, the state trooper noticed individual cigarette packagesthat did not bear the state tax stamps. The state trooper con-tacted the Washington Department of Revenue and wasinformed that the Department had not received notification ofthe transport of unstamped cigarettes to the Nation. The statetrooper then obtained a search warrant from the BentonCounty Superior Court, searched the truck, seized the load ofcigarettes, inventoried them, and stored them in a warehouse.The Department notified the Nation that the cigarettes hadbeen seized as contraband under Washington law. The Nationthen wrote a letter to the Department demanding the return ofthe cigarettes. Pursuant to Washington Revenue Code section82.24.135, the Department sent the Nation notice of anadministrative forfeiture hearing, during which the Nationwould be afforded an opportunity to challenge the seizure andto assert its claim to the cigarettes.Instead of participating in the hearing, the Nation filed acomplaint against the Department in the district court seeking(1) a declaration that the State of Washington and its courtsand tribunals cannot exercise jurisdiction over a sovereignnation and that the Nation is immune from suit by the Depart-ment; (2) an injunction prohibiting the Department from pro-ceeding with the administrative hearing; and (3) an orderrequiring the Department to return the Nation's cigarettes orthe proceeds from their sale. At the same time, although in aseparate action, the Nation, relying on 28 U.S.C.S 1441,removed the administrative forfeiture proceeding to the dis-trict court. The district court did not order the two cases con-solidated.Because of the perishable nature of the cigarettes, theDepartment sold the cigarettes at auction for $235,000. Theproceeds from the auction were paid into the registry of thedistrict court pursuant to stipulation of the parties and orderof the court.The Nation moved to dismiss the removed forfeiture pro-ceeding, arguing that the Department could not exercise juris-diction over a sovereign nation. The Nation also sought leaveto amend its original action to include ultra vires claimsagainst individual state officers. The Department moved todismiss the Nation's complaint under the Eleventh Amend-ment and to remand the removed administrative proceeding tothe state administrative tribunal. The district court grantedboth of the Department's motions, denied the Nation'smotions, and ordered disbursement of the auction proceeds tothe Department. The court later denied the Nation's motionfor reconsideration, but stayed disbursement of the auctionproceeds to preserve the status quo pending appeal.DISCUSSIONA. The State's Eleventh Amendment ImmunityWe first consider whether the Eleventh Amendment barsthe Nation's lawsuit against the State of Washington fordeclaratory and injunctive relief and for return of the cigaretteproceeds. Immunity under the Eleventh Amendment is aquestion of law that we review de novo. See Micomonaco v.Washington, 45 F.3d 316, 319 (9th Cir. 1995).[1] The Eleventh Amendment bars suits against a state orits agencies, regardless of the relief sought, unless the stateunequivocally consents to a waiver of its immunity. SeeRomano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999) (citingPennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89
, 100(1984)); see also Blatchford v. Native Village of Noatak, 501U.S. 775, 782, 788 (1991) (holding that a state's EleventhAmendment immunity extends to suits by Indian tribes). Thestate's consent must be "unequivocally expressed, " PennhurstState Sch. & Hosp.,
465 U.S. at 99
, meaning that the consentis effective "only where stated by the most express language. . . ." Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S.299, 305 (1990) (internal quotation and citation omitted).[2] The Nation contends that the state consented to suit by"involving itself in federal court litigation " and "depositingthe cigarette proceeds into the court's register. " We reject thisargument because the state did not unequivocally express itsassent to suit. As the district court correctly noted, the Depart-ment asserted sovereign immunity as an affirmative defensein its first responsive pleading, which was filed before theparties stipulated to the deposit of the cigarette proceeds intothe district court's registry. Given the Department's clearassertion of sovereign immunity in its pleadings, its agree-ment to deposit the forfeited proceeds into the court registrypending litigation was simply an act of cooperation, not anunequivocal consent waiving sovereign immunity. Becausethe state did not unequivocally waive its Eleventh Amend-ment immunity, the district court did not err in dismissing theNation's complaint on that ground.B. The Nation's Motion to AmendThe Nation argues that the district court erred in denying itsmotion to amend its complaint to include ultra vires claimsagainst individual state officers not named in the originalcomplaint. According to the Nation, these individuals were"involved in the actual seizure in question and[were] the indi-viduals responsible for the enforcement of the statute underwhich the Department claimed authority to seize and forfeitthe Tribe's property." The Nation contends that these stateofficers acted ultra vires in violating the Nation's sovereignimmunity.We review for abuse of discretion a district court's refusalto grant leave to amend after a responsive pleading has beenfiled. See Schlachter-Jones v. General Tel. of Cal., 936 F.2d435, 443 (9th Cir. 1991). Amendment under the Federal Rulesof Civil Procedure should be granted "unless amendmentwould cause prejudice to the opposing party, is sought in badfaith, is futile, or creates undue delay." Martinez v. NewportBeach City, 125 F.3d 777, 785 (9th Cir. 1997).The district court denied the Nation leave to amend, con-cluding that Eleventh Amendment immunity also protectedthe state officers from suit--in essence holding that theNation's proposed amendment would be futile because itwould fail as a matter of law on a motion for summary judg-ment. See Roth v. Garcia Marquez, 942 F.2d 617, 628-29 (9thCir. 1991). To determine whether the district court abused itsdiscretion by this ruling, we consider whether EleventhAmendment immunity would bar claims against the individ-ual state officers as a matter of law, rendering the Nation'sproposed amendment futile.[3] The Supreme Court has held that a suit against stateofficers acting in their individual capacities does not violatea state's Eleventh Amendment immunity in certain circum-stances where the claimant is seeking only declaratory andinjunctive relief. See Idaho v. Coeur d'Alene Tribe of Idaho,
521 U.S. 261, 269
(1997) (citing Ex parte Young , 209 U.S.123 (1908)). The four circumstances in which such declara-tory and injunctive relief actions against individual state offi-cials have been allowed to proceed in federal court are when(1) state officials are plainly acting outside their statutoryauthority, see Coeur d'Alene Tribe ,
521 U.S. at 270
; (2) nostate forum exists to vindicate federal interests, see id. at 270-74; (3) " `it is necessary to permit the federal courts to vindi-cate federal rights,' " id. at 277 (quoting Papasan v. Allain,
478 U.S. 265, 277
(1986)); and (4) "a plaintiff seeks prospec-tive relief to end a state officer's ongoing violation of federallaw." Coeur d'Alene Tribe,
521 U.S. at 288
(O'Connor, J.,concurring). We consider each of these aspects of the Youngdoctrine in turn.1. Acting Outside of Statutory Authority[4] A state officer acts ultra vires "only when he acts with-out any authority whatever." Pennhurst State Sch. & Hosp.,
465 U.S. at 101
n.11 (internal quotations and citation omit-ted). Washington law permits state officials to seize as contra-band unstamped cigarettes bound for Indian tribes when thetribe has not notified the Department of the shipment. SeeWash. Rev. Code S 82.24.250. In addition, the Supreme Courthas specifically approved of states enforcing their tax lawsthrough the off-reservation seizure of unstamped cigarettes.See Washington v. Confederated Tribes of Colville IndianReservation,
447 U.S. 134, 161
-62 (1980); see also Baker, 63F.3d at 1483. Clearly, the state officials here were actingwithin their delegated authority when they seized the ciga-rettes, sold them at auction, and scheduled an administrativehearing.2. State Forum to Vindicate Federal Interests[5] A state forum existed for the vindication of the Nation'sfederal interests. Along with having a right to challenge theseizure in the state administrative forum, the Nation had theoption of bypassing that forum and instead bringing an actionin state court. See Wash. Rev. Code S 82.24.135(5);Comenout v. Washington, 722 F.2d 574, 578 (9th Cir. 1983).3. Vindication of a Federal Right in Federal Court[6] It is undisputed that the Nation is a sovereign entitledto sovereign immunity and that, absent a clear waiver by theNation, or congressional abrogation, a suit against the Nationis barred by sovereign immunity. See Oklahoma Tax Comm'nv. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S.505, 509 (1991). The Nation contends that, by reason of itssovereign immunity, it has a federal right not to have its ciga-rettes seized and forfeited by the Department. To vindicatethis federal right, the Nation argues it should be permitted toamend its complaint to include ultra vires claims against theindividual state officers who participated in the seizure andforfeiture.[7] The Nation's argument depends on the extent of its sov-ereign immunity. If that immunity does not extend to shieldthe Nation from the Department's seizure and forfeiture of theNation's unstamped cigarettes, then the federal right thenation asserts does not exist in this case and there is no federalright that requires vindication in federal court.In support of its argument, the Nation contends the ciga-rettes cannot be "contraband" subject to seizure unless anadjudicative tribunal lawfully makes such a determination;such a lawful adjudication requires subjecting the Nation tothe tribunal's jurisdiction; the Nation's sovereign immunityprotects it from being subjected to the state's jurisdictionwithout its consent; because the Nation did not consent to thestate's jurisdiction, the state cannot treat the cigarettes as"contraband"; thus, the state's seizure and sale of them wasunlawful.[8] We reject this argument. The premise on which it isfounded is false. The notion that the State of Washington cantreat the Nation's cigarettes as contraband only after an adju-dicative hearing with properly conferred jurisdiction over theNation simply is not so. We have held that, absent advancenotice to the Department, the shipment of unstamped ciga-rettes to purchasers on an Indian reservation in Washingtonrenders the cigarettes "contraband subject to seizure andsale." Baker, 63 F.3d at 1483; see also Wash. Rev. CodeS 82.24.250. Although the Department must schedule a forfei-ture hearing to allow a claimant to seek the return of seizedproperty, see Wash. Rev. Code S 82.24.135(5), a hearing todetermine whether unstamped cigarettes are contraband is nota prerequisite to their seizure as contraband nor to their saleat auction as a perishable commodity. Because the Depart-ment had the right to treat the cigarettes as contraband, it hadthe right to seize and sell them. See Baker, 63 F.3 at 1483; seealso Confederated Tribes of Colville Indian Reservation, 447U.S. at 161-62.As a corollary to its argument against seizure and sale, theNation argues that Washington's implementation of itsadministrative scheme, by which the Nation may participatein an administrative hearing and challenge the state's action,unduly interferes with the Nation's sovereignty. We alsoreject this argument.[9] As we have noted, the Nation's participation in theadministrative proceeding is optional. The Nation may electeither to challenge the cigarette seizure in an administrativehearing or bring suit in Washington state court. SeeComenout, 722 F.2d at 578. Without question, the practicaleffect of the seizure is that the Nation has to contest it in onestate forum or the other, or suffer the loss of its cigarettes. Butif the state's administrative seizure of the cigarettes is not anundue interference with the Nation's sovereign immunity (andunder Baker it is not), the availability of a post-deprivationdue process proceeding to challenge that action surely is not.We hold, therefore, that the Department did not unduly inter-fere with the Nation's sovereign immunity by affording it theopportunity to challenge the seizure in an administrative hear-ing. Neither the seizure and sale of the cigarettes, nor theimplementation of Washington's administrative scheme toallow a challenge to the state's action, violated a federal rightof the Nation.4. Ongoing Violation of Federal Law[10] This case does not involve an ongoing violation of fed-eral law. This aspect of the Young doctrine is inapplicable.[11] In sum, the district court did not abuse its discretionby denying the Nation's motion to amend its complaint toinclude ultra vires claims against individual state officers.Such an amendment would have been futile. The state officersdid not plainly act outside their statutory authority, a stateforum exists to vindicate the Nation's federal interests, nofederal right requires vindication by a federal court, and thecase does not involve any ongoing violation of federal law.C. Jurisdiction to Review the District Court's Remand OrderThe Nation next argues the district court erred in remand-ing the administrative forfeiture proceeding. As a thresholdmatter, we must determine whether we have appellate juris-diction to review the district court's remand order. Under 28U.S.C. S 1447(d), "[a]n order remanding a case to the Statecourt from which it was removed is not reviewable on appealor otherwise."[12] While section 1447(d) appears on its face to bar allreview of remand orders, courts have consistently interpretedit as precluding review only of remands based on a timelyraised defect in removal procedure or lack of subject matterjurisdiction. See Quackenbush v. Allstate Ins. Co., 517 U.S.706, 711 (1996); Krangel v. General Dynamics Corp., 968F.2d 914, 915-16 (9th Cir. 1992). Remand orders based on adefect in removal procedure or lack of subject matter jurisdic-tion are immune from review even if the district court's orderis erroneous. See Krangel, 968 F.2d at 916.The district court in this case remanded the administrativeproceeding after concluding that "the factors under [28U.S.C.] S 1441 are not met since the administrative forfeitureproceeding is not a state court action and, in any event, thereis no original jurisdiction." Thus, the remand order was basedon two alternative holdings, one for lack of a state courtaction and the other for lack of subject matter jurisdiction. Asto the latter holding, the district court held that it lacked juris-diction because "[n]o federal statute applies to an actionbrought by a state against a piece of property found in thestate that is deemed contraband according to state law."[13] This case is somewhat muddied by the district court'salternative holdings. A remand based only on the "lack of astate court action" would not be insulated from appellatereview. On the other hand, a remand order based primarily onthe lack of subject matter jurisdiction is insulated fromreview, even if the district court's jurisdictional determinationis erroneous. See Kunzi v. Pan American Airways, Inc., 833F.2d 1291, 1293-95 (9th Cir. 1987) (determining that remandorder based mainly on jurisdictional grounds was nonreview-able). Here, the district court not only stated it lacked subjectmatter jurisdiction, it couched its alternative holding (no statecourt action) in jurisdictional language as well. We concludethat the court's jurisdictional concerns played a centralenough role in its remand decision that its remand was pri-marily for lack of subject matter jurisdiction, and as a resultwe lack appellate jurisdiction to review the propriety of theremand order.[14] Alternatively, we conclude that the district court didnot err in remanding the administrative proceeding becausethe Nation is not a defendant in that proceeding. The right toremove a case from state to federal court is vested exclusivelyin "the defendant or the defendants . . ." 28 U.S.C. S 1441(a).Federal law, not the applicable state statute or even the plead-ings in state court, determines who is a plaintiff and who isa defendant. See Chicago, R.I. & P.R. Co. v. Stude, 346 U.S.574, 580 (1954). In the present case, the Department seizedthe property and then notified the Nation of the seizure andintended forfeiture, thereby affording the Nation "a reason-able opportunity to be heard as to the claim or right." Wash.Rev. Code S 82.24.135(5). Because the nature of the adminis-trative proceeding placed the Nation in the role of a quasi-plaintiff with the burden of proof of establishing a claim tothe property (the same role the Nation would have if it choseto challenge the seizure in state court), the Nation was not a"defendant," and removal of the administrative proceedingwas improper.D. Return of Proceeds to the State[15] Because the cigarettes were "contraband subject to sei-zure and sale," Wash. Rev. Code S 82.24.250(4); see alsoBaker, 63 F.3d at 1483, the Department had the power notonly to seize and sell the cigarettes but to retain the auctionproceeds pending the outcome of any administrative forfeitureproceeding or state court action, depending on which forumthe Nation chose if it decided to contest the seizure. The dis-trict court, therefore, properly ordered the auction proceedsreturned to the state.CONCLUSIONBecause the Department is immunized from suit under theEleventh Amendment, we AFFIRM the dismissal of theNation's original action. We also AFFIRM the district court'sdenial of leave to amend the Nation's complaint to includeultra vires claims against individual state officers. Such anamendment would have been futile. Because the district courtremanded the removed administrative proceeding primarilyfor lack of subject matter jurisdiction, we lack appellate juris-diction to review the remand order and therefore DISMISSthat portion of the Nation's appeal. Alternatively, if we wereto reach the merits of the district court's decision to remandthe administrative proceeding, we would affirm the remandorder because the Nation is not a "defendant" in that proceed-ing. Finally, we direct the district court to lift the stay of itsorder directing that the auction proceeds be disbursed to theDepartment.AFFIRMED in part and DISMISSED in part. the end