Petitioners Reply Brief — Florida Dept. of State v. Treasure Salvors, Inc.

Office Supreme Court, U.S.

BILED

APR 8&8 1981

No. 80-1348 ALEXANDER L. STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

STATE OF FLORIDA,

DEPARTMENT OF STATE,

Petitioner,

TREASURE SALVORS, INC.,

ARMADA RESEARCH CORP.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITIONER'S REPLY BRIEF

JIM SMITH

ATTORNEY GENERAL

SYDNEY H. MCKENZIE, III

CHIEF TRIAL COUNSEL

(Counsel of Record)

SUSAN E. GAMBLE

ASSISTANT ATTORNEY GENERAL

The Capitol - Suite 1501

Tallahassee, Florida 32301

Phone: 904/488-9935

Attorneys for Petitioner

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PETITIONER'S REPLY

CONCLUSION

ii

TABLE OF AUTHORITIES

CASES

chi cage and North Western Ry. Co.

v. United Transportation T5985

7. t Te .

Edelmen v. Jordan,

GT5 U.S. 651 (1974)

Florida State Turnpike Authority

v. Anhoco Corp.,

TT6 So.2d 5 (Fla. 1959)

Flota Maritima Browning de Cuba

v. Motor Vessel Ciudad,

~~3535 F.2d 619 (4th Cir. 1964)

Fong Sik Leung v. Dulles,

AG F.2d 7 (9th Cir. 1955)

In re Muir,

°Se 522 (1921)

In re New York,

U.S. 0 and

256 U.S. 503 (1921)

The Navemar,

303 U.S. 68 (1938)

Red Star Towing and Transportation

Co. v. Department of Transportation,

423 Food 104 (3d Cir. 1370)

ii

TABLE OF AUTHORITIES CONTINUED

CASES CONTINUED

Seaside Properties, Inc. v.

State Road Department,

T2T So.2d 50% C3 DCA Fla. 1960)

Southeastern Leasing Corp. v.

Stern Dragger Belogorsk,

493 Foot 1223 Uist Cir. 1974)

State Road Department v. Tharp,

1 So.2d B65 (Fla. 1949)

Stewart v. Dunn,

° (5th Cir. 1966)

United States v. Holland,

552 F.2d 667 (5th Cir. 1977)

United. States v. Th son,

319 F.2d 665 (2d -z 1963)

United States v. United

Mine Workers,

°5- 258 (1947)

STATUTES

Section 69.041,

Florida Statutes (1979)

iii

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

STATE OF FLORIDA,

DEPARTMENT OF STATE,

Petitioner,

-VSsS-

TREASURE SALVORS, INC.,

ARMADA RESEARCH CORP.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITIONER'S REPLY BRIEF

In their Brief in Opposition to the

Petition for Writ of Certiorari, Respond-

ents raise three points intended to cir-

cumvent the Eleventh Amendment's applica-

tion to this case. The State of Florida

contends that the Eleventh Amendment's

proscription is unequivocal and renders

any judgment against a state by a dis-

trict court void for want of subject

matter jurisdiction.

Respondents first cite United States

v. United Mine Workers, 330 U.S. 258

(1947) in support of the bootstrap juris-

diction principle, or that a court has

“jurisdiction to determine its jurisdic-

tion.” That case upheld the power of a

district court to hold a party in con-

tempt for disobedience of an order

directed to that party, even if the order

violated was later set aside on appeal.

The Court emphasized, however, that

this was so in situations “where. . . the

subject matter of the suit, as well as

the parties, was properly before the

Court" and "where the elements of federal

jurisdiction were clearly shown." 330

U.S. at 294.1 Mine Workers is not

authority or justification--nor has it

been cited as such--to defeat the purpose

of the Eleventh Amendment.

Respondents’ reliance on The Navemar,

303 U.S. 68 (1938) and In re Muir, 254

U.S. 522 (1921) is similarly misplaced

and inapposite. These cases are solely

concerned with the procedure which must

be followed by a foreign government in

IThe case is most often cited in

ap gpegy a wherein a district court is

eld to have inherent injunctive powers

to preserve the status quo pending a

later determination as to its jurisdic-

tion. See, e.g., Chicago and N.W. Ry.

Co. v. United Transp. Union, 422 ra

Dunn, 363 F.2d 591 (sth Cir, 1966} es¥e

n, F. = Cir. » Cebke,

United States v. Holland, 552 F.2d 667,

t Te ; ted States v.

mn, 319 F.2d 665,

Th on, 5, 667-668 (2d Cir.

19635 Fong Sik Leung v. Dulles, 226 F.2d

(Oth Cir. lossy.

3

8

74, 78

asserting its sovereign immunity in

United States courts and are thus

patently inapplicable to suits in

admiralty against a State. See, e.g.,

Southeastern Leasing Corp. v. Stern

Dragger Belogorsk, 493 F.2d 1223 (1st

Cir. 1974); Flota Maritima Browning de

Cuba v. Motor Vessel Ciudad, 335 F.2d

619, 624 (4th Cir. 1964).

Finally, Respondents argue that

Section 69.041, Florida Statutes (1979)

declares that Florida has consented to

suit in state or federal courts "in

actions to foreclose liens or quiet title

to property in which the state has or

claims an interest." Brief in Opposition

at 5-6; 9-10. Such°an assertion reflects

a misreading of the statute, which pro-

vides that the state may be sued in state

or federal courts "[f]Jor the foreclosure

of a mortgage or other lien on real or

personal property on which the state has

or claims a mortgage or other lien."

69.041(b) (emphasis added). This has

been interpreted to be a lien statute

only,2 and it is not a waiver of

Florida's Eleventh Amendment immunity

from suits filed in federal courts to

recover property owned by the State.

It is fundamental that statutes

waiving sovereign immunity are to be

strictly construed. Edelman v. Jordan,

415 U.S. 651, 663 (1974). Furthermore,

State Road Dept. v. Tharp, 1 So.2d 868

(Fla. 1949), quoted by Respondents to

2Seaside Propertiss, Inc. v. State

Rd. pt., . ae

1960).

defeat the State's claim of sovereign

immunity here, has been restricted in

that it has application only to contract

actions for damages against the State

Road Department (specifically provided

for by statute) and/or eminent domain

- proceedings wherein compensation for the

taking of property is at issue. See,

Florida State Turnpike Authority v.

Anhoco Corp., 116 So.2d 8, 15 (Fla.

1959).

CONCLUSION

The decision by the Court of Appeals

is in conflict with this Court's decision

in In re New York, 256 U.S. 490 and 256

U.S. 503 (1921). as well as with Red Star

Towing and Transportation Co. v. Depart-

ment of Transportation, 423 F.2d 104 (3d

Cir. 1970). No doctrine of jurisdic-

tional construction can apply to abrogate

the clear mandate of the Eleventh Amend-

ment. Accordingly, Certiorari should be

granted under Rule 17.

| Respectfully submitted,

JIM SMITH

A RNEY GENERAL

WN. Whee

SYDNEY H>-MCKENZIE, III

CHIEF TRIAL COUNSEL

(Counsel of Record)

SUSAN E. GAMBLE

ASSISTANT ATTORNEY GENERAL

The Capitol - Suite 1501

Tallahassee, Florida 32301

Phone: 904/488-9935

Attorneys for Petitioner