Petition for Writ of Certiorari — Sullivan v. Georgia Department of Natural Resources

Supreme Court, U.S.

kELED

83 ~ 19 8 9 MAY 22 1984

| CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

KEVIN WAYNE SULLIVAN,

Petitioner,

THE GEORGIA DEPARTMENT OF NATURAL RESOURCES

AND THE RESEARCH VESSEL “ANNA”’,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

EDWARD E. BOSHEARS

1708 Ellis Street

Post Office Box 1395

Brunswick, Georgia 31521

(912) 264-6662

AOS AE SAEED aR ORRIN CRIS RANE ANDO AOR hg

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

(1) Whether the Court of Appeals was bound by the

decision of the Supreme Court in Petty v. Tennessee-

Missouri Bridge Commission, 359 U.S. 275, 79 S.Ct. 785,

3 L.Ed.2d 804 (1959) that states are subject to the Jones

Act.

(2) Whether the District Court and the Court of Ap-

peals were correct in interpreting Employees of the De-

partment of Public Health & Welfare v. Dept. of Public

Health & Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.

2d 251 (1973) and Intracoastal Transportation, Inc. v.

Decatur County, Georgia, 482 F.2d 361 (5th Cir. 1973)

to mean that a state is subject to suit for damages by a

private citizen in Federal Court only when the statute in

question explicitly and specifically provides that the states

are subject to it.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......22........2.....eeeeeeeceeeeeess i

MI I PERI oncncncss.ccesoscccvecccssnssccnsssscseecece iv

EEN a 1

a scsenmamtinnanannnonaea 1

STATUTORY PROVISIONS INVOLVED ............0........ 2

ee ve 6 dle iy i Bod |_| SR 2

REASONS FOR GRANTING THE WRIT .................... 2

SESE SIE ES 9

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 408 U.S. 388, 91 S.Ct. 1999,

, pm te Fs. ; | See 7

California v. Taylor, 353 U.S. 553, 1 L.Ed.2d 1034,

77 S.Ct. 1087 (Railway Labor Act, 45 U.S.C.

5) ee een 4

J. I. Case Company v. Borak, 377 u.S. 426, 84

S.Ct. 1555, 12 L.Ed.2d 423 (1964) ....... EM 7

Edelman v. Jordan, 415 U.S. 651, 39 L.Ed.2d 662,

ef, a) | Pe 8

Employees of the Department of Public Health &

Welfare v. Dept. of Public Health & Welfare, 411

U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973)... 5, 6

Hutto v. Finney, 437 U.S. 678, 57 L.Ed.2d 522, 98

I I on sce iatilacaieaesiianiaanemtanianminates 8

Monace v. Mississippi, 292 U.S. 313, 78 L.Ed. 1282,

BD SE, TE BID veseccscsccteseccnnntisectcisttntinentnsnsesncee 7

Parden v. Terminal R. of Alabama Docks Dept.,

877 U.S. 184, 12 L.Ed.2d 233, 84 S.Ct. 1207

(Federal Employers Liability Act, 45 U.S.C.

ER anaes eececeesesenseessannseosneannenssnensnapesneansnensanonennnes 3,4

Petty v. Tennessee Missouri Bridge Commission,

359 U.S. 275, 281, 79 S.Ct. 785, 789-790, 3

BR Se Be COD | cecenencccensinenensenciveinnenienencennencsnn 3, 4,5

United States v. California, 297 U.S. 175, 80 L.Ed.

567, 56 S.Ct. 421 (Safety Appliance Act, 45

I, Be OD wicenssccecnseeeccenteneitsestentientnnncnrernestmnennnne 4

Statutes

Fair Labor Standurds Act of 1938, 29 U.S.C.

OI aa easissneneceseienvteerntninncnnsnnwininvesconesinnsnenonsine 6, 7

Federal Employers Liability Act, 45 U.S.C. § 51... 3, 4,9

Jones Act, 46 U.S.C. § 668 .....................-......-----.......-. 2, 3,5

Railway Labor Act, 45 U.S.C. § 151 -...................... 4,9

Safety Appliance Act, 45 U.S.C. §§ 2, 6 —.................. 4,9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

* Re to

KEVIN WAYNE SULLIVAN,

Petitioner,

Vv.

THE GEORGIA DEPARTMENT OF NATURAL RESOURCES

AND THE RESEARCH VESSEL “ANNA”,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Petitioner Kevin Wayne Sullivan respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

For The Eleventh Circuit entered in this proceeding on

the 13th day of February, 1984.

OPINION BELOW

The opinion of the Court of Appeals appears in the

appendix hereto. The opinion of the District Court also

appears in the appendix.

JURISDICTION

The judgment of the Court of Appeals For The Elev-

enth Circuit was entered on the 18th day of February,

1984. A timely petition for rehearing en bane was denied

2

on the 13th day of March, 1984, and this petition for

certiorari was filed within ninety (90) days of that

date. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The Jones Act (46 U.S.C. § 688).

STATEMENT OF THE CASE

Petitioner was employed as a second mate or deckhand

on a vessel known as the “Anna”, which is owned and

operated by the Georgia Department of Natural Re-

sources.

The “Anna” is an oil screw approximately 54.2 feet in

length. It is licensed with the Coast Guard for carrying

on the “coasting trade”. The “Anna” is used primarily

in “fish and shrimp assessment programs”. It is regu-

larly operated in the coastal waters of Georgia, Florida

and South Carolina.

On February 25, 1982, Petitioner was severely injured

when a boom came loose and struck him in the head.

On May 4, 1982 Petitioner filed suit against the Geor-

gia Department of Natural Resources under the Jones

Act. On October 29, 1982, the District Court granted the

Department’s Motion to Dismiss.

Petitioner then appealed to the Eleventh Circuit Court

of Appeals which subsequently affirmed the judgment of

the District Court.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH A

PRIOR DECISION OF THE SUPREME COURT.

The Court of Appeals decision states in part:

“Assuming that the State of Georgia entered a fed-

erally regulated sphere of activity by operating a re-

search vessel and that a private cause of action is

created for violating the Jones Act, neither the stat-

ute nor its legislative history constitutes an express

congressional provision that the private remedy is

applicable to the states. More precisely, Sullivan has

failed to demonstrate Congress’ express intention to

abrogate immunity from suit in federal court.”

The Court of Appeals further states in a footnote:

“Here there is arguably a private remedy against

the states, See Petty v. Tennessee-Missouri Bridge

Commission, 359 U.S. 275, 281, 79 S.Ct. 785, 789-

790, 3 L.Ed.2d 804 (1959); the issue should be

whether Congress explicitly authorized suit in fed-

eral court notwithstanding immunity under the Elev-

enth Amendment.”

The Jones Act, 46 U.S.C. § 688, states in part:

“Any seaman who shall suffer personal injury in the

course of his employment may, at his election, main-

tain an action for damages at law, with the right of

trial by jury, and in such action all statutes of the

United States modifying or extending the common-

law right or remedy in cases of personal injuries to

railway employees shall apply; . . . . Jurisdiction in

such actions shall be under the Court of the dis*~ict

in which the defendant employer resides or in which

his principal office is located.”

The Federal Employers’ Liability Act provides that

“every common carrier by railroad which engaging in

commerce between any of the several states . . . shall be

liable in damages to any person suffering injury while he

is employed by such carrier in such commerce,” and that

“under this chapter an action may be brought in a dis-

trict court of the United States... .” 45 U.S.C. §§ 51, 56.

In holding that the FELA authorizes suits in federal

courts by injured railroad workers against states, the

Supreme Court in Parden v. Terminal R. of Alabama

Docks Dept., 377 U.S. 184, 12 L. Ed.2d 283, 84 S.Ct.

1207 stated:

4

“We think that Congress, in making the FELA ap-

plicable to ‘every’ common carrier by railroad in

interstate commerce, meant what it said.”

In Petty v. Tennessee-Missouri Bridge Commission, 359

U.S. 275, 3 L.Ed.2d 804, 79 S.Ct. 785 (1959) the Su-

preme Court stated:

“Finally we find no more reason for excepting state

or bi-state corporations from ‘employer as used in

the Jones Act than we could for excepting them ei-

ther from the Safety Appliance Act (United States

v. California, 297 U.S. 175, 80 L.Ed. 567, 56 S.Ct.

421) or the Railway Labor Act (California v. Tay-

lor, 353 U.S. 553, 1 L.Ed.2d 1034, 77 S.Ct. 1037).

In the latter case we reviewed at length federal leg-

islation governing employer-employee relationships

and said, ‘When Congress wished to exclude state

employees, it expressly so provided.’ 353 U.S., at

564. The Jones Act (46 U.S.C. § 688) has no excep-

tions from the broad sweep of the words ‘Any sea-

man who shall suffer personal injury in the course

of his employment may’ ete. The rationale of United

States v. California (US) supra, and California v.

Taylor (US) supra, makes it impossible for us to

mark a distinction here and hold that this bi-state

agency is not an employer under the Jones Act.”

Although the Petty decision also rested on the language

of the compact creating the bi-state corporation, it is

clear that the Supreme Court also clearly applied the

same reasoning which it had previously applied in United

States v. California, 297 U.S. 175, 80 L.Ed. 567, 56 S.Ct.

421 (Safety Appliance Act, 45 U.S.C. §§ 2, 6) and Cali-

fornia v. Taylor, 353 U.S. 553, 1 L.Ed.2d 1034, 77 S.Ct.

1037 (Railway Labor Act, 45 U.S.C. § 151) and which it

later applied in Parden v. Terminal R. of Alabama Docks

Dept., 377 U.S. 184, 12 L.Ed.2d 233, 84 S.Ct. 1207 (Fed-

eral Employers Liability Act, 45 U.S.C. § 51).

The Court of Appeals apparently felt that the Petty

decision was overruled by implication by the Supreme

5

Court decision in Employees of the Department of Public

Health & Welfare v. Dept. of Public Health & Welfare,

411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973).

Although the language is not clear, the Court of Ap-

peals seems to be saying that Petty merely authorizes

suits against the states under the Jones Act but does not

authorize them to be brought in Federal Court.

By arriving at that constrained interpretation, the

Court of Appeals necessarily overruled Petty because the

Jones Act itself explicitly states that the District Courts

have jurisdiction of such Jones Act complaints.

The Court of Appeals clearly erred in failing to apply

a prior controlling decision of the Supreme Court.

Il. THE DECISION BELOW ERRED IN HOLDING

THAT A FEDERAL STATUTE SUCH AS THE

JONES ACT MUST EXPLICITLY PROVIDE THAT

STATES ARE SUBJECT TO IT BEFORE AN AC-

TION AGAINST THE STATE CAN BE BROUGHT

IN FEDERAL COURT.

When Congress used the words “any seaman” and “em-

ployer” in the Jones Act, it meant to cover all seamen

and all employers that employ seamen.

When the State of Georgia chose to operate a vessel in

navigable waters, and to employ seamen to operate those

vesseis, it necessarily subjected itself to the Jones Act.

The decision below seems to say that the Petitioner has

not shown that Congress expressly authorized suit against

the states under the Jones Act.

The Court of Appeals decision thus ignores the express

words of the Jones Act, 46 U.S.C. § 688:

“Jurisdiction in such actions shall be under the

Court of the district in which the defendant em-

ployer resides or in which his principal office is

located.”

6

The Court of Appeals would have us believe that this

language is not enough. The Court holds in its decision

that the above language must explicitly mention that the

states are liable to suit in Federal Court. In so holding,

the Court of Appeals relied upon Employees of the De-

partment of Public Health & Welfare v. Dept. of Public

Health & Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.

2d 251 (1973).

In Employees, the Supreme Court was confronted with

§16(b) of the Fair Labor Standards Act of 1938, 29

U.S.C. § 216(b) which states:

“Any employer who violates the provisions of section

6 or section 7 of this Act shall be liable to the em-

ployee or employees affected in the amount of their

unpaid minimum wages, or their unpaid overtime

compensation, as the case may be, and in any addi-

tional equal amount as liquidated damages. Action

to recover such liability may be maintained in any

court of competent jurisdiction ... .”

Sections 16 and 17 authorize the Secretary of Labor to

bring suit for unpaid minimum wages or unpaid overtime

and to enjoin violations and to seek restitution under the

Act on behalf of employees.

Unlike the Jones Act, the FLSA does not contain any

explicit statement that an employee can maintain an ac-

tion against an employer in Federal Court.

The FLSA provides that “any employer” who violates

the Act “shall be liable to the employee” and “an action

to recover such liability may be maintained in any court

of competent jurisdiction.”

However, the FLSA does not:

(1) explicitly authorize any employee to bring a pri-

vate action;

(2) explicitly make an “employer” liable for damages

in Federal Court.

7

Insofar as a private employer is concerned, violation of

the statute would give rise to an “implied” cause of ac-

tion in favor of the class for whose benefit the statute

was enacted. See J.J. Case Company v. Borak, 377 USS.

426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) and Bivens v.

Six Unknown Named Agents of Federal Bureau of Nar-

cotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619

(1971).

However, there cannot be any such “implied” cause of

action where a state is the Defendant.

An equally important point is that the Eleventh

Amendment does not bar a suit by the United States

against a state. Monaco v. Mississippi, 292 U.S. 313, 78

L.Ed. 1282, 54 S.Ct. 745 (1934).

Therefore, the Supreme Court in Employees simply

held that, even though the states were subject to the

FLSA and even though the state as an “employer” could

be held “liable” to the employee, in the absence of an

express right of action created in the Employee to bring

suit in Federal Court, the employee was left with the

remedy of having the Secretary of Labor bring an action

on the employee’s behalf to collect the damages from the

state.

In order for an action to be brought against a state

in Federal Court, it is not enough that the state is “lia-

ble” to the aggrieved person under a federal statute. In

order for the state to be subject to suit in Federal Court,

the statute must also explicitly set out that the aggrieved

person has a private right of action in Federal Court

against a particular class of persons (usually the em-

ployer). If the state fits within that class, then it is sub-

ject to suit for money damages in Federal Court even

though the statute does not specifically mention the

states.

Applying these decisions, we can see that the following

criteria must apply in order for a state to be subject to a

suit for money in Federal Court by a private citizen.

8

First, the state must have entered into “a federally

regulated sphere of activity”. Obviously, this wouid in-

clude operation of railroads or vessels in navigable water.

Second, Congress must have enacted a statute which

imposed “liability” upon a particular class.

Third, the statute must not have delegated exclusive

enforcement power in the Federal Government.

Fourth, the statute must have specifically given to a

private individual the right to bring an action in court

against the particular “class” of Defendants.

Fifth, the statute must provide that this action can be

brought in Federal Court.

In Hutto v. Finney, 487 U.S. 678, 57 L.Ed.2d 522, 98

S.Ct. 2565, the Supreme Court seems to have rejected the

legal theory espoused by the Court of Appeals in this

ease. This is the theory that the Congress must enact

“express statutory language making the states liable’.

The Supreme Court stated:

“The Act itself could not be broader. It applies to

‘any’ action brought to enforce certain civil rights

laws. It contains no hint of an exception for states

defending injunction actions; indeed, the Act pri-

marily applies to laws passed specifically to restrain

state actions.”

In Edelman v. Jcrdan, 415 U.S. 651, 39 L.E.2d 662,

94 S.Ct. 1847 (1974), the Supreme Court noted that the

question of waiver or consent under the Eleventh Amend-

ment in numerous cases has turned on “whether the state

by its participation in the program authorized by Con-

gress had in effect consented to the abrogation of that

immunity”.

The State of Georgia, by operating a vessel in navi-

gable water and employing seamen, subjected itself to

suit for damages under the Jones Act.

9

It is true that no other Court of Appeals had held that

states are subject to the Jones Act. (A number of Dis-

trict Courts have so hela.) Therefore, there is no conflict

between the circuits on this issue.

However, the issue is much broader than the Jones

Act. The decision of the Court of Appeals will also ap-

ply to numerous other federal statutes such as the Fed-

eral Employers Liability Act, 45 U.S.C. § 51, Safety Ap-

pliance Act, 45 U.S.C. §§ 2, 6, and the Railway Labor

Act, 45 U.S.C. § 151.

In this regard, two of the states within the Eleventh

Circuit operate large state-owned railroad facilities. If

this decision is allowed to stand, then railroad workers in

those state facilities will be deprived of the protection of

various federal statutes designed to regulate railroad op-

erations. As a result, uniform fede:al regulations of rail-

roads and railroad workers will be left with an enormous

gap in the Eleventh Circuit.

For these reasons, it is imperative that the Supreme

Court resolve the broad issue raised by the decision of

the Court of Appeals.

CONCLUSION

The decisions of the lower Courts are in error on an

important point of constitutional law and therefore the

decision of the lower Courts should be reversed.

EDWARD E. BOSHEARS

1708 Ellis Street

Post Office Box 1395

Brunswick, Georgia 31521

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 82-8694

KEVIN WAYNE SULLIVAN,

Plaintiff-A ppellant,

V.

THE GEORGIA DEPARTMENT OF NATURAL RESOURCES

AND THE RESEARCH VESSEL “ANNA”’,

Defendants-A ppellees.

Feb. 13, 1984.

Appeal from the United States District Court for the

Southern District of Georgia

Before HILL 9nd KRAVITCH, Circuit Judges, and

MORGAN, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

[1] In this appeal, Kevin Wayne Sullivan challenges

the dismissal of his complaint in an action under the

Jones Act, 46 U.S.C. § 688, and the general maritime

law, arising from an incident aboard a boat owned and

2a

operated by the State of Georgia. The sole question pre-

sented is whether the Eleventh Amendment precludes

Sullivan from pursuing such a suit against a state de-

partment and one of its vessels in federal court. Specifi-

cally, the issue is whether the State of Georgia construc-

tively waived immunity under the Eleventh Amendment

by operating a research vessel in the navigable waters of

the United States. Concluding that it did not, we affirm

the judgment of the district court.

I. BACKGROUND

The Research Vessel “Anna” (R/V “Anna”) is owned

and operated by the Georgia Department of Natural Re-

sources (DNR). Rigged much like an ordinary shmmp

boat, the R/V “Anna” monitors the coastal waters of

Georgia, and at times Florida, in connection with state

fish and shrimp assessment programs. Prior to February

25, 1982, Kevin Wayne Sullivan was employed as a sec-

ond mate on the R/V “Anna.” On that date, he was

severely injured when a loose boom struck his head.

Asserting that he was a “seaman” under the terms of

the Jones Act, 46 U.S.C. § 688, Sullivan filed suit against

the DNR and the R/V “Anna”, seeking damages for in-

juries resulting from the negligence of the defendants and

the unseaworthiness of the vessel. In its order of October

29, 1982, the district court granted the defendants’ mo-

tions to dismiss on Eleventh Amendment grounds.

Il. PRELIMINARY ISSUES

[2] The Eleventh Amendment to the United States

Constitution provides:

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens

or Subjects of any foreign State.

3a

Although the amendment does not, by its terms, bar fed-

eral court suits brought against a state by its own citi-

zens, it is well established that an unconsenting state is

immune from such suits as well as those brought by citi-

zens of another state. See Edelman v. Jordan, 415 USS.

651, 662-63, 94 S.Ct. 1347, 1355-1356, 39 L.Ed.2d 662

(1974); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33

L.Ed. 842 (i890); Cate v. Oldham, 707 F.2d 1176, 1180

(11th Cir. 1983).

[3] A threshold issue in an Eleventh Amendment case

is whether the suit against the defendant is properly char-

acterized as a suit against the state. That the instant

action against the DNR and the R/V “Anna” should be

so characterized is not seriously disputed.

To the extent that actions under the Jones Act, 46 U.S.

§ 688, and actions under the general maritime law are

barred by the Eleventh Amendment unless the state has

waived its immunity, see Petty v. Tennessee-Missouri

Bridge Commission, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d

804 (1959); In re New York (Walsh), 256 U.S. 490, 41

S.Ct. 588, 65 L.Ed. 1057 (1921); In re New York (The

Queen City), 256 U.S. 508, 41 S.Ct. 588, 65 L.Ed. 1057

(1921), the central question is whether the State of Geor-

gia waived, expressly or impliedly, immunity under the

Eleventh Amendment. Sullivan does not contend that

there was an express waiver of immunity on the state’s

part, so we need only consider whether there was an im-

plied, or constructive, waiver in this case.

Ill. CONSTRUCTIVE WAIVER

The leading Supreme Court cases in this field are

Parden v. Terminal Railway of the Alabama State Docks

Department, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d

233 (1964), and Employees of the Department of Public

Health & Welfare v. Department of Public Health &

Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251

(1973). In Parden, the Court held that the State of

4a

Alabama had waived its Eleventh Amendment immunity

from liability under the Federal Employers’ Liability

Act, 45 U.S.C. §§ 51-60, which provides that “[e] very

common carrier by railroad while engaging in commerce

between any of the several States . . . shall be liable in

damages to any person suffering injury while he is em-

ployed by such carrier in such commerce,” 45 U.S.C.

§ 51, and that actions under the Act “may be brought

in a district court of the United States,” 45 U.S.C. § 56.

The Court initially addressed two questions: whether

Congress in enacting the FELA intended to subject a

state to suit under the Act and whether Congress had

the power to do so over the state’s claim of immunity.

Emphasizing the “all-embracing language” of the statute,

the Court concluded that the FELA did authorize suit

against a publicly owned railroad despite a claim of

sovereign immunity. 377 U.S. at 188-89, 84 S.Ct. at

1210-1211. Noting that “the State surrendered a por-

tion of their sovereignty when they granted Congress

the power to regulate commerce,” the Court also con-

cluded that imposition of the FELA right of action upon

a state-owned railroad is within the congressional regula-

tory power. Jd. at 191-92, 84 S.Ct. at 1212-1213. The

Court then held that by operating a railroad for profit in

interstate commerce, the state had knowingly entered a

federally regulated sphere and had thereby consented to

suit in federal court. The Court stated:

Our conclusion is simply that Alabama, when it began

operation of an interstate railroad approximately 20

years after enactment of the FELA, necessarily con-

sented to such suit as was authorized by that Act. By

adopting and ratifying the Commerce Clause, the States

empowered Congress to create such a right of action

against interstate railroads; by enacting the FELA in

the exercise of this power, Congress conditioned the right

to operate a railroad in interstate commerce upon amen-

ability to suit in federal court as provided by the Act;

by thereafter operating a railroad in interstate com-

5a

merce, Alabama must be taken to have accepted that

condition and thus to have consented to suit.

Id.

On the basis of Parden, several lower courts ruled that

states venturing into the federally regulated sphere of

maritime commerce waived their immunity under the

Eleventh Amendment from suits brought by employees

on state-owned vessels. See Rivet v. East Point Marine

Corp., 325 F.Supp. 1265, 1267 (S.D. Ala. 1971), over-

ruled, Benniefield v. Valley Barge Lines, 472 F.Supp.

314, 317 (S.D. Ala. 1979); Adams v. Harris County,

Texas, 316 F.Supp. 938, 949 (S.D. Tex. 1970), rev’d

on other grounds, 452 F.2d 994 (5th Cir. 1971), cert.

denied, 406 U.S. 968, 92 S.Ct. 2414, 32 L.Ed.2d 667

(1972); Huckins v. Board of Regents of the University

of Michigan, 263 F.Supp. 622, 623 (E.D. Mich. 1967) ;

Cocherl v. Alaska, 246 F.Supp. 328, 330 (D. Alaska

1965).

The Supreme Court then decided the Employees case,

in which it rejected the claims of state employees under

the Fair Labor Standards Act, 29 U.S.C. §§ 201-19.

While conceding that Congress intended to bring the em-

ployees in question within the coverage of the statute,

the Court indicated that the issue was whether Congress

intended to abrogate the states’ Eleventh Amendment

immunity from suit in federal court. The Court first

distinguished Parden as involving a business which the

state operated “for profit,” stressing that the state in-

stitutions in Employees were “not operated for profit

fand thus were] not proprietary.” 411 U.S. at 284, 93

S.Ct. at 1617. The Court then stated:

When employees in State institutions not conducted

for profit have such a relation to interstate com-

merce that national policy, of which Congress is the

keeper, indicates that their status should be raised,

Congress can act. And when Congress does act, it

may place new or even enormous fiscal burdens on

6a

the States. Congress, acting responsibly, would not

be presumed to take such actions silently.

Id. at 284-85, 93 S.Ct. at 1618. Finding that Congress

had not indicated “in some way by clear language that

the constitutional immunity was swept away,” id., the

Court declined to “conclude that Congress conditioned the

operation of these facilities on the forfeiture of im-

munity from suit in a federal forum,” id.

The law of this circuit was plainly stated in Intra-

coastal Transportation, Inc. v. Decatur County, Georgia,

482 F.2d 361 (5th Cir. 1973), in which the former Fifth

Circuit assessed the effect of the Employees decision on

the holding in Parden.' The court declared :

[T]he Employees decision added an additional require-

ment to the Parden test for determining whether a

private party may successfully invoke a federal

court’s jurisdiction in his suit against a State. It is

no longer sufficient merely to show that a State has

entered a federally regulated sphere of activity and

that a private cause of action is created for violating

the applicable federal provision, but in addition the

private litigant must show that Congress expressly

provided that the private remedy is applicable to the

States.

Id. at 365 (emphasis added) (footnote omitted) ; see also

Freimanis v. Sea-Land Service, Inc., 654 F.2d 1155, 1158

(5th Cir. 1981) (reaffirming adherence to the “clear

statement” approach to immunity taken in /ntracoastal).

In response to the Supreme Court’s decision in Em-

ployees and the Fifth Circuit’s interpretation of that

decision, one of the lower courts which had initially ex-

tended Parden to suits arising from state maritime ac-

1 The Eleventh Circuit in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as prece-

dent decisions of the former Fifth Circuit rendered prior to Octo-

ber 1, 1981.

7a

tivity reversed its stance. In Benniefieid, the Southern

District of Alabama held that waiver of immunity un-

der the Eleventh Amendment could not be implied in an

admiralty action against a state without a clear state-

ment from Congress that the cause of action encom-

passed a private remedy applicable to the state. See

472 F.Supp. at 317. Similarly relying on Intracoastal,

the Southern District of Texas recently held that no im-

plied waiver of immunity from Jones Act liability could

be found where the state operated a ferry service in

navigable waters. See Welch v. State Department of

Highways and Transportation, 588 F.Supp 4038, 406

(S.D. Tex. 1982). In applying the “clear Statement”

approach, the court stated:

The wording of the Jones Act itslf does not include

an express decision by Congress io abrogate the elev-

enth amendment immunity of the states and Plain-

tiff has not demonstrated through the legislative his-

tory of this statute that Congress had a specific in-

tent to aliow private parties to bring suit against

a state.

Id.

[4] The result dictated by Intracoastal is evident. As-

suming that the State of Georgia entered a federally

regulated sphere of activity by operating a research ves-

sel and that a private cause of action is created for vio-

lating the Jones Act, neither the statute nor its legisla-

tive history constitutes au express congressional provi-

sions that the private remedy is applicable to the states.

More precisely, Sullivan has failed to demonstrate Con-

gress’ express intention to abrogate immunity from suit

in federal court. Accordingly, we ho'd that the DNR’s

operation of the R/V “Anna” did not constitute a con-

structive waiver of Eleventh Amendment immunity from

suits under the Jones Act and the general maritime law.’

2 Although a panel of this court, as opposed to the court en banc,

is bound by former Fifth Circuit precedent, careful reading of the

8a

Sullivan cites two cases from district courts in other

circuits as establishing that states engaging in maritime

activities impliedly waived their Eleventh Amendment

immunity from liability under the Jones Act. In In re

Holoholo, 512 F.Supp. 889 (D. Haw. 1981), the court

ruled that “the intent to abrogate [immunity] mani-

fested in the Jones Act . . . established constructive

waivers” in a case involving Hawaii’s operation of a re-

search vesse! for profit. Jd. at 903. In Brody v. North

Carolina, 557 F.Supp. 184 (E.D.N.C. 1983), the court

observed, “by enacting the Jones Act, Congress demon-

strated its intention to abrogate the State’s eleventh

amendment immunity.” Id. at 186. In finding an implied

waiver of immunity in a case involving a state-owned

ferry, the court underscored “the fact . . . that the op-

eration of a ferry system is essentially a commercial

and proprietary enterprise.” Jd. at 187. We find these

cases unpersuasive. First, in neither case did the court

attempt to apply the “clear statement” approach adopted

in Intracoastal. Second, unlike in the instant case, the

businesses in question were conducted by the states for

profit. Although the proprietary nature of a publicly

owned enterprise is not necessarily dispositive of the

waiver issue, it was central to the Employees Court’s

analysis, specifically its decision to require “clear lan-

guage that the constitutional immunity was swept away.”

411 U.S. at 285, 93 S.Ct. at 1618.

cases suggests to us that Intracoastal may sweep too broadly in its

interpretation of Employees. First, the Intracoastal court formu-

lated Employees’ requirement of a clear statement of congressional

intent to abrogate federal court immunity as a requirement of a

clear statement of congressional intent to provide a private remedy

against the states. Thus the question whether Congress intended a

remedy in federal court was broadened to the question whether

Congress provided any private remedy at all. In Employees, the

Court found that there was a private remedy, but that Congress

said nothing indicating that federal courts were competent to ren-

der judgment against nonconsenting states. Here there is arguably

a private remedy against the states, see Petty v. Tennessee-

9a

For these reasons, the judgment of the district court

dismissing the complaint is AFFIRMED.

Missouri Bridge Commission, 359 U.S. 275, 281, 79 S.Ct. 785, 789-

790, 3 L.Ed.2d 804 (1959); the issue should be whether Congress

explicitly authorized suit in federal court notwithstanding im-

munity under the Eleventh Amendment.

More important, the Court in Intracoastai apparently ignored the

Supreme Court’s inquiry into the availability of alternative reme-

dies. In Employees, the Secretary of Labor had authority to bring

suit under the FLSA. In this case, as in Parden, there is no cor-

responding public enforcement mechanism.

10a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 82-8694

D.C. Docket No. CV282-84

KEVIN WAYNE SULLIVAN,

Plaintiff-Appellant,

versus

THE GEORGIA DEPARTMENT OF NATURAL RESOURCES

AND THE RESEARCH VESSEL “ANNA”’,

Defendants-A ppellees.

Appeal from the United States District Court for the

Southern District of Georgia

Before HILL and KRAVITCH, Circuit Judges, and

MORGAN, Senior Circuit Judge.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Georgia, and was argued by counsel;

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the order of the

lla

District Court appealed from, in this cause be, and the

same is hereby, AFFIRMED;

It is further ordered that plaintiff-appellant pay to

defendants-appellees, the costs on appeal to be taxed by

the Clerk of this Court.

Entered: February 13, 1984

For the Court: Spencer D. Mercer, Clerk

By: /s/ Miguel J. Cortez, Jr.

Deputy Clerk

ISSUED AS MANDATE: MAR 21 1984

12a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 82-8694

KEVIN WAYNE SULLIVAN,

Plaintiff-A ppellant,

versus

THE GEORGIA DEPARTMENT OF NATURAL RESOURCES

AND THE RESEARCH VESSEL “ANNA”,

Defendants-A ppellees.

Appeal from the United States District Court for the

Southern District of Georgia

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion February i5, 11 Cir., 1984, —— F.2d ——).

(March 13, 1984)

Before HILL and KRAVITCH, Circuit Judges, and

MORGAN, Senior Circuit Judge.

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court be

13a

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule 26), the Sug-

gestion for Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is DENIED and the

Court having been polled at the request of one of the

members of the Court and a majortiy of the Circuit

Judges who are in regular active service not having

voted in favor of it (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 26), the Suggestion for

Rehearing En Banc is also DENIED.

( ) A member of the Court in active service having

requested a poll on the reconsideration of this cause en

bane, and a majority of the judges in active service not

having voted in favor of it, rehearing en bane is DE-

NIED.

ENTERED FOR THE COURT:

/s/ Phyllis Kravitch

United States Circuit Judge

14a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

BRUNSWICK DIVISION

CV282-84

KEVIN WAYNE SULLIVAN,

Plaintiff,

vs.

THE GEORGIA DEPARTMENT OF NATURAL RESOURCES

AND THE RESEARCH VESSEL “ANNA”,

Defendant.

ORDER

This maritime case is presently before the Court on

defendants’ motion to dismiss p‘aintiff’s complaint on

the following grounds: (1) the complaint fails to state

a claim upon which relief may be granted; (2) since

this is an action against the State of Georgia, which

has neither consented to be sued nor waived its sovereign

immunity from suit, the Court lacks jurisdiction over the

subject matter of plaintiff’s complaint and over the per-

sons of the defendants, the Georgia Department of Nat-

ural Resources and the Research Vessel “ANNA” (owned

and operated by the Department of Natural Resources) ;

(3) insofar as plaintiff seeks to bring an action under

the provisions of general maritime law, such action is

barred by the Eleventh Amendment to the United States

Constitution; (4) insofar as plaintiff's complaint seeks

to bring an action under the Jones Act, such action

is barred by the Eleventh Amendment to the United

15a

States Constitution; and, (5) venue is improper in this

Court.

Because the Ceurt concludes in the following discus-

sion that defendants’ jurisdictional grounds for dismissal

based on Eleventh-Amendment immunity (yrounds 2, 3

and 4 above) have merit, the Court finds it unnecessary

to address the alternative grounds stated in grounds 1

and 5 above. For the reasons indicated below, the de-

fendants’ motion to dismiss the plaintiff’s complaint is

GRANTED. All claims of plaintiff against the Georgia

Department of Natural Resources and the Research Ves-

sel “ANNA” are DISMISSED with prejudice.

Plaintiff brought this action in admiralty under pro-

visions of the Jones Act, 46 U.S.C. § 688, and the gen-

eral maritime law. He alleges in his complaint that he

was employed as a second mate aboard the Research Ves-

sel “ANNA” (R/V “ANNA”), which is owned and op-

erated by the Georgia Department of Natural Resources

(DNR). Plaintiff further alleges that, while so em-

ployed on or about February 25, 1982, he was injured

due to the negligence of the defendants and the unsea-

worthiness of the vessel.

Defendants contend that a suit against the DNR or the

R/V “ANNA” is, in essence, a suit against the State

of Georgia and that a suit is barred by the Eleventh

Amendment of the United States Constitution. Although

plaintiff does not deny that this action is, in essence, a

suit against the State of Georgia, he argues that the

operation of a vessel in navigable waters constitutes an

implied waiver of Eleventh-Amendment immunity and

subjects the state to jurisdiction under the Jones Act.

Defendants deny that Georgia has expressly or impliedly

waived its immunity from suit under the Jones Act or

general maritime law.

The Eleventh Amendment to the United States Con-

stitution provides:

16a

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens

or Subjects of any Foreign State.

Although the amendment’s terms do not specifically bar

suits brought against a state by the state’s own citizens,

the immunity has been extended to such suits as well

as those brought by citizens of another state. Great

Northern Life Insurance Co. v. Read, 322 U.S. 47, 88

L.Ed. 1121 (1944); Hans v. Louisiana, 134 U.S. 1, 33

L.Ed. 842 (1890). The immunity has been further ex-

tended to include state agencies and officials “when the

action is in essence one for the recovery of money from

the state... .” Ford Motor Co. v. Department of Treas-

ury, 323 U.S. 459, 464, 89 L.Ed. 389 (1945). A state

may, however, waive its immunity, Missouri v. Fiske,

290 U.S. 18, 78 L.Ed. 145 (1933), but the conclusion

that there has been a waiver of immunity will not be

lightly inferred. Edelman v. Jordan, 415 U.S. 651, 673,

39 L.Ed.2d 662 (1974); Murray v. Wilson Distilling Co.,

213 U.S. 151, 53 L.Ed. 742 (1909).

It is clear that actions under general maritime law

brought against a state are barred by the provisions of

the Eleventh Amendment, unless the state has waived its

immunity. Ex parte State of New York, 256 U.S. 503,

65 L.Ed. 1063 (1921). Similarly, the Eleventh Amend-

ment grants immunity to the states against actions

brought under the Jones Act, unless the state has waived

its immunity. See Petty v. Tennessee-Missouri Bridge

Commission, 359 U.S. 275, 3 L.Ed.2d 804 (1959) (find-

ing a waiver but recognizing that, without the waiver,

immunity would bar the Jones Act claim). Thus, the

crucial issue here is whether the State of Georgia waived

its Eleventh-Amendment immunity in the circumstances

of this case.

17a

Plaintiff’s opposition to the motion to dismiss is based

on the argument that the State of Georgia impliedly

waived its Eleventh-Amendment immunity when the state

chose to operate a “‘vessel’’ within the meaning of the

Jones Act. This argument relies heavily on the Supreme

Court decision of Parden v. Terminal Railway of the

Alabama State Docks Department, 377 U.S. 184, 12

L.Ed. 233 (1964).

In Parden, the Supreme Court held that Alabama had

waived its Eleventh-Amendment immunity with regard

to liability under the Federal Employers’ Liability Act,

which provides that “every common carrier by railroad

while engaging in commerce between any of the several

States” shall be liable in federal court to employees in-

jured on the job. 45 U.S.C. §§51, 56. The Supreme

Court reasoned that, by operating a railroad “for profit”

in interstate commerce, Alabama had knowingly entered

a federally regulated sphere and had thereby consented

to suit in federal court. According to the Parden Court,

“the States surrendered a portion of their sovereignty

when they granted Congress the power to regulate com-

merce.” 377 U.S. at 191, 12 L.Ed.2d at 239.

On the basis of Parden, several lower courts have ruled

that states venturing into the federally regulated sphere

of maritime commerce waive their Eleventh-Amendment

immunity with regard to claims made by employees on

state-owned vessels. Rivet v. East Point Marine Corp.,

325 F.Supp. 1265, 1267 (S.D. Ala. 1971), ovr’d, Bennie-

field v. Valley Barge Lines, 472 F.Supp. 314, 317 (S.D.

Ala. 1979); Adams v. Harris County, Texas, 316 F.

Supp. 938 (S.D. Tex. 1970), rev’d on other grounds, 452

F.2d 994, cert. denied, 406 U.S. 968 (1972); Huckins v.

Board of Regents of the University of Michigan, 263

F.Supp. 622, 623 (E.D. Mich. 1967) ; Cocherl v. Alaska,

246 F.Supp. 328, 330 (D. Alaska 1965). After these

trial court applications of Parden, however, the Supreme

Court decided Employees of the Department of Public

Ee

18a

Health & Welfare v. Department of Public Health &

Welfare, 411 U.S. 279, 86 L.Ed.2d 251 (1973), a case

that had significant impact on Parden. In Employees,

the Supreme Court stated, “[W]e decline to extend Parden

to cover every exercise by Congress of its commerce

power, where the purpose of Congress to give force to

the Supremacy Clause by lifting the sovereignty of the

States and putting the States on the same footing as

other employers is not clear.” Jd. at 286-287, 36 L.Ed.2d

at 257-258.

In interpreting the effect of the Employees decision

on the holding in Parden, the Fifth Circuit has stated:

[T]he Employees decision added an additional require-

ment to the Parden test for determining whether a

private party may successfully invoke a federal

court’s jurisdiction in suit against a State. It is no

longer sufficient merely to show that a State has

entered a federally regulated sphere of activity and

that a private cause of action is created for violat-

ing the applicable federal provisions, but in addition

the private litigant must show that Congress ex-

pressly provided that the vrivate remedy is appli-

cable to the States.

Intracoastal Transportation, Inc. v. Decatur County,

Georgia, 482 F.2d 361 (5th Cir. 1973) (emphasis

added). In Freimanis v. Sea-Land Service, Inc., 654

F.2d 1155, 1158 (5th Cir. 1981), the Fifth Circuit reaf-

firmed its adherence to the “clear statement’’ approach

to Eleventh-Amendment immunity taken in /ntracoastal.

In response to the Supreme Court’s decison in Em-

ployees and the Fifth Circuit’s interpretation of the im-

pact of that decision on Parden, one of the lower courts

that had originally extended Parden to state involve-

ment in maritime activity decided to reverse its earlier

stance. In Benniefield v. Valley Barge Lines, supra, the

court held that no implied waiver of Eleventh-Amend-

ment immunity could be found in admiralty without a

19a

clear statement from Congress that the maritime causes

of action afford a private remedy which is applicable

agains’; the states. Jd. at 317. In so holding, that court

overruled its decision in Rivet v. East Point Marine Corp.,

supra, which had found an implied waiver of state im-

munity to Jones Act liability.

Also relying on the Fifth Circuit’s interpretation of

Employees and Parden, the Southern District of Texas

has recently held that no implied waiver of immunity to

Jones Act liability could be found where the state op-

erated a ferry service in commerce over navigable waters.

Welch v. State Department of Highways and Transporta-

tion, 533 F.Supp. 403, 406 (S.D. Tex. 1982). After

noting that the Fifth Circuit rule requires a clear state-

ment by Congress that the Jones Act gives a private

right of action against the states, the district court in

Welch stated :

The wording of the Jones Act itself does not include

an express decision by Congress to abrogate the

eleventh amendment immunity of the states and

Plaintiff has not demonstrated through the legisla-

tive history of this statute that Congress had a

specific intent to allow private parties to bring suit

against a state.

Id. at 406. This Court finds the rationale of Welch per-

suasive' and notes that the facts of the present case

are even more clearly in the state’s favor than were the

facts in Welch. There, the state-owned vessel was op-

1 Only one lower court case decided after Employees has found

that states engaging in maritime activities impliedly waived their

Eleventh-Amendment immunity to Jones Act liability. Jn re

Holoholo, 512 F.Supp. 889 (D. Hawaii 1981). In that case, the

court, after concluding that Parden was “directly applicable to the

Jones Act,” virtually ignored the Supreme Court’s decision in Em-

ployees. Because such an approach is clearly contrary to the Fifth

Circuit’s interpretation of the relationship between Parden and

Employees, this Court finds Jn re Holoholo unpersuasive.

iat eenieeeeeiemil

20a

erated as a ferry in interstate commerce. Jd. at 405.

This involvement in commerce made reliance on Parden

tenable, since Parden itself rested on the determination

that Alabama waived its immunity to suit by entering

interstate commerce in a profit-seeking, railroad enter-

prise. Parden is less clearly applicable to the present

facts since the R/V “ANNA” has not been alleged to

have engaged in interstate commerce.’ Rather, the R/V

“ANNA” is engaged in research to study and conserve

the natural resources of Georgia. Although, as the plain-

tiff correctly suggests, the Jones Act itself does not re-

quire that the vessel in question be engaged in interstate

commerce, lack of entry into interstate commerce never-

theless makes finding an implied waiver of immunity to

the Jones Act much more difficult under the Parden

analysis.

Even if this Court were willing to find that Georgia’s

operation of a research vessel constituted entry into a

federally regulated sphere under the rationale of Parden,

the Court would still have to meet the added require-

ment of Employees as it has been interpreted by the

Fifth Circuit—the private litigant must demonstrate that

Congress clearly provided for a private Jones Act remedy

against the states. Like the court in Welch, supra, this

Court concludes that there is nothing in the Jones Act

resembling a “clear statement” of intent to allow private

parties to bring suit against a state. Absent such a

clear statement and in view of the Fifth Circuit’s jus-

tifiably rigorous approach to implied waiver, the Court

holds that Georgia’s operation of the R/V “ANNA” did

not constitute an implied waiver of Eleventh-Amendment

immunity from suit under the Jones Act or general mari-

time law. Accordingly, defendants’ motion to dismiss

2In another context, federal law has specified that oceanic re-

search vessels shall not be deemed to be engaged in trade or com-

merce. 46 U.S.C. § 443.

2la

plaintiff's complaint is hereby GRANTED. The Clerk

of Court is directed to enter an appropriate judgment.

SO ORDERED, this 29 day of October, 1982.

/s/ Anthony A. Alaimo

Chief Judge

United States District Court

Southern District of Georgia