[PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT                  U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                        SEPTEMBER 13, 2000
                                                                         THOMAS K. KAHN
                                                                              CLERK
                                        No. 99-13669

                           D. C. Docket No. 99-347-CV-DLG


MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a
federally recognized Indian Tribe,

                                                                          Plaintiff-Appellant,

                                            versus

FLORIDA STATE ATHLETIC COMMISSION, ALVIN
GOODMAN, Florida State Athletic Commission, et al.,

                                                                      Defendants-Appellees.



                      Appeal from the United States District Court
                          for the Southern District of Florida

                                   (September 13, 2000)

Before ANDERSON, Chief Judge, DUBINA and SMITH*, Circuit Judges.

__________________
*Honorable Edward S. Smith, U.S. Circuit Judge for the Federal Circuit, sitting by designation.

DUBINA, Circuit Judge:
      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.

                                   I. Background

      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


                                           2
staff to officiate boxing matches. The Commissions employ many of the same

officials.

       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.

                                    II. Discussion

B.     Standing

       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, 

, 1229 (11th Cir. 1999).


                                           3
      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, 

, 560-61 (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.” 

(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.,

, 1204 (11th Cir. 1991) (quoting Warth v. Seldon, 

, 508

(1975)). An allegation of an abstract injury will not suffice. See Whitmore v.

Arkansas, 

, 155 (1989) (“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, 

, 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).


                                            4
       1.    Equal Protection Claim

       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).

       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




                                           5
the Florida Commission’s activities will have such an effect in the future.1

Nowhere in the complaint does the Tribe identify any particularized injury

resulting from the Florida Commission’s alleged misconduct.2 Instead, the Tribe’s

complaint only sets forth abstract injuries. Cf. Bennett v. Spear, 

,

167-68 (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).

        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 

. The plaintiff has the

burden to “clearly and specifically set forth facts sufficient to satisfy [] Art. III

standing requirements.” 

; see also 

     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.
   2
    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.

                                                 6
518 (“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 

(“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.

       2.      Tax Claim

       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.3 The district court held that

   3
     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, 

,

                                                  7
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 

.

       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, 

, 142 (1980); see also Ramah Navajo Sch. Bd. v. New Mexico, 

, 845 (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



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.

                                                 8
school on reservation property to educate tribal children); Washington v.

Confederated Tribes of the Colville Indian Reservation, 

, 156-57

(1979) (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).

      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 

. 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, 

, 386 (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, 

, 223 (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.”).

      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


                                           9
sovereignty. See Moe v. Confederated Salish & Kootenai Tribes of the Flathead

Reservation, 

, 468 n.7 (1975). 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 

The Supreme Court stated that:

         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, 

, 498-499, 

,
         2205-2206, 

, 354-355 (1975).

n. 7. 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.4

C.       Eleventh Amendment Immunity

         The Eleventh Amendment grants immunity to the states from suits in federal


     4
     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.

                                                10
court. See Tuveson v. Florida Governor’s Council on Indian Affairs, Inc., 

, 732 (11th Cir. 1984). This immunity extends to state agencies, but does

not extend to independent entities, such as counties or municipalities. See 

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 

Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 

, 401-02, 

, 1177, 

(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.

      1.     Characterization of the Florida Commission under State Law

      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


                                          11
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”).5 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.6 Moreover,

as with other state agencies, Florida’s Administrative Procedure Act (“APA”)

applies to the Florida Commission’s rule making powers.7 Therefore, Florida law

characterizes the Florida Commission as a state agency.

           2.    Degree of State Control over the Florida Commission

           The Tribe argues that the state exercises little control over the Florida

Commission because the Commission may promulgate regulations and may

       5
     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.
   6
     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.
   7
    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] . . . .”

                                                 12
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.

        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.”).8 State authority over the appointment of agency members lends support


    8
      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.

                                              13
to finding that the agency is an arm of the state for Eleventh Amendment

purposes.9 See Christy v. Pennsylvania Turnpike Comm’n, 

, 1149 (3d

Cir. 1995); Fouche v. Jekyll Island-State Park Auth., 

, 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).10

        3.     Funding

        The Tribe also contends that the Florida Commission is fiscally independent



   9
    Even though the Governor appoints the commissioners, the Tribe, relying on Miccosukee Tribe
of Indians of Florida v. United States, No. 97-5488, (11th Cir. Nov. 19, 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 

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.
   10
     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.

                                                  14
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 also Harden v. Adams, 

, 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 

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


                                           15
$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.

      4.     Responsibility for Judgments

      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 

(“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., 

, 1516 (11th Cir. 1986).

      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


                                           16
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.11 See 

(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.

        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.12 See Schopler v. Bliss, 

, 1378-79 (11th Cir.

1990) (holding that the DPR and a board within the DPR were entitled to Eleventh

Amendment Immunity).

                                       III. Conclusion

        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,

   11
      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.
   12
      Defendants do not appeal the district court’s holding that the individual defendants were not
entitled to Eleventh Amendment Immunity.

                                                17
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.



AFFIRMED in part, REVERSED, in part, and REMANDED.




                                          18