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decided: March 5, 1979.



Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined, and in which Brennan, Marshall, and Blackmun, JJ., joined in part. Brennan, J., post, p. 406, and Marshall, J., post, p. 406, filed opinions dissenting in part. Blackmun, J., filed an opinion dissenting in part, in Part I of which Brennan, J., joined, post, p. 408.

Author: Stevens

[ 440 U.S. Page 393]

 MR. JUSTICE STEVENS delivered the opinion of the Court.

We granted certiorari to decide whether the Tahoe Regional Planning Agency, an entity created by Compact between California and Nevada, is entitled to the immunity that the Eleventh Amendment provides to the compacting States themselves.*fn1 436 U.S. 943. The case also presents the question whether the individual members of the Agency's governing body are entitled to absolute immunity from federal damages claims when acting in a legislative capacity.

Lake Tahoe, a unique mountain lake, is located partly in California and partly in Nevada. The Lake Tahoe Basin, an area comprising 500 square miles, is a popular resort area that has grown rapidly in recent years.*fn2

[ 440 U.S. Page 394]

     In 1968, the States of California and Nevada agreed to create a single agency to coordinate and regulate development in the Basin and to conserve its natural resources. As required by the Constitution,*fn3 in 1969 Congress gave its consent to the Compact, and the Tahoe Regional Planning Agency (TRPA) was organized.*fn4 The Compact authorized TRPA to adopt and to enforce a regional plan for land use, transportation, conservation, recreation, and public services.*fn5

Petitioners own property in the Lake Tahoe Basin. In 1973, they filed a complaint in the United States District Court for the Eastern District of California alleging that TRPA, the individual members of its governing body, and its executive officer had adopted a land-use ordinance and general plan, and engaged in other conduct, that destroyed the economic value of petitioners' property.*fn6 Petitioners alleged that respondents had thereby taken their property without due process of law and without just compensation in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States. They sought monetary and equitable relief.

Petitioners advanced alternative theories to support their

[ 440 U.S. Page 395]

     federal claim. First, they asserted that the alleged violations of the Fifth and Fourteenth Amendments gave rise to an implied cause of action, comparable to the claim based on an alleged violation of the Fourth Amendment recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, and that jurisdiction could be predicated on 28 U. S. C. § 1331.*fn7 Second, they claimed that respondents had acted under color of state law and therefore their cause of action was authorized by 42 U. S. C. § 1983*fn8 and jurisdiction was provided by 28 U. S. C. § 1343.*fn9

The District Court dismissed the complaint. Although it concluded that the complaint sufficiently alleged a cause of

[ 440 U.S. Page 396]

     action for "inverse condemnation,"*fn10 it held that such an action could not be brought against TRPA because that agency did not have the authority to condemn property. The court also held that the individual defendants were immune from liability for the exercise of the discretionary functions alleged in the complaint.

On appeal, the Court of Appeals for the Ninth Circuit affirmed the dismissal of TRPA, but reinstated the complaint against the individual respondents. 566 F.2d 1353. Addressing first the questions of cause of action and jurisdiction, the Court of Appeals rejected petitioners' claims based on §§ 1983 and 1343. The court held that congressional approval had transformed the Compact between the States into federal law. As a result, the respondents were acting pursuant to federal authority, rather than under color of state law, and §§ 1983 and 1343 could not be invoked to provide a cause of action and federal jurisdiction. But the court accepted petitioners' alternative argument: It held that they had alleged a deprivation of due process in violation of the Fifth and Fourteenth Amendments, that an implied remedy comparable to that upheld in Bivens, supra, was available, and that federal jurisdiction was provided by § 1331.

Having found a cause of action and a basis for federal jurisdiction, the court turned to the immunity questions. Although the point had not been argued, the Court of Appeals decided that the Eleventh Amendment immunized TRPA from suit in a federal court. With respect to the individual respondents, the Court of Appeals held that absolute immunity should be afforded for conduct of a legislative character and qualified immunity for executive action. Since the record did not adequately disclose whether the challenged conduct was legislative or executive, the court remanded for a hearing.

Petitioners ask this Court to hold that TRPA is not entitled to Eleventh Amendment immunity and that the individual

[ 440 U.S. Page 397]

     respondents are not entitled to absolute immunity when acting in a legislative capacity. Because none of the respondents filed a cross-petition for certiorari, we have no occasion to review the Court of Appeals' additional holding that a violation of the Due Process Clause was adequately alleged.*fn11 For purposes of our decision, we assume the sufficiency of those allegations.

[ 440 U.S. Page 398]


Before addressing the immunity issues, we must consider whether petitioners properly invoked the jurisdiction of a federal court. While respondents did not cross petition for certiorari, they now argue that the Bivens rationale does not apply to a claim based on the deprivation of property rather than liberty, and therefore the Court of Appeals' jurisdictional analysis was defective.

We do not normally address any issues other than those fairly comprised within the questions presented by the petition for certiorari and any cross petitions. An exception to this rule is the question of jurisdiction: even if not raised by the parties, we cannot ignore the absence of federal jurisdiction. In this case, however, respondents' attack on the Court of Appeals' Bivens holding fails to support dismissal for want of jurisdiction for two reasons.

First, respondents' "jurisdictional" arguments are not squarely directed at jurisdiction itself, but rather at the existence of a remedy for the alleged violation of their federal rights. Faced with a similar claim in Mt. Healthy Board of Ed. v. Doyle, 429 U.S. 274, we found that the cause-of-action argument was "not of the jurisdictional sort which the Court raises on its own motion." Id., at 279. Since the petitioners in Mt. Healthy had "failed to preserve the issue whether the complaint stated a claim upon ...

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