# Petitioners Reply Brief — Florida Dept. of State v. Treasure Salvors, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1953%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1982 - **Citation:** 458 U.S. 670 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1953%3A4. Public record. Not legal advice.