Opposition — Faust v. South Carolina State Highway Department

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Office - Supreme Court, U.

FILED

APR 114 1984

83 yi 1 9) 0 1 ALEXANDER L. STEVAS

NO. | CLERK

In The Supreme Court

of the United States

OCTOBER TERM, 1983

Alean Hester Faust, Administratrix of the Estate of Charles

Lonnie Faust, Deceased; Tommy Bennett, and Curtis Muldrow,

Petitioners,

vs.

South Carolina State Highway Department, and the United

States of America,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF RESPONDENT SOUTH CAROLINA

STATE HIGHWAY DEPARTMENT IN OPPOSITION

T. TRAVIS MEDLOCK

Attorney General

KENNETH P. WOODINGTON

Senior Assistant Attorney General

PO. Box 11549

Columbia, S.C. 29211

(803) 758-2072

ELLISON D. SMITH, IV

Long, Smith and Jordan

PO. Box 419

Charleston, S.C. 29402

(803) 577-4520

ATTORNEYS FOR

RESPONDENT

QUESTION PRESENTED

Did the Court of Appeals correctly follow the decisions of this

Court by concluding, as have all Circuits which have addressed this

question, that the State of South Carolina did not waive its Eleventh

Amendment immunity by maintaining, as part of its highway

system, a ferry across the Atlantic Intracoastal Waterway?

TABLE OF CONTENTS AND OF AUTHORITIES

Question Presented for Review

Statement of the Case .......

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Reasons Why the Writ Should be Denied .................

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AUTHORITIES

Cases: Page

California v. Sierra Club, 451 U.S. 287 (1981) ....... 6.50000

Chesapeake Bay Bridge and Tunnel District v. Lauritzen,

404 F.2d 1001 (4th Cir. 1968) ......... cece cece cece eee

Edeiman v. Jordan, 415 U.S. 651 (1974) ... 2.0... eee cece eee

Employees v. Dept. of Public Health and Welfare,

CRUE edebis aces Gone tb ovecceduee he

Intracoastal Transp., Inc. v. Decatur County Georgia,

SUED soc cunsbcs Jeeevecsuccesuas

Moragne v. States Marine Lines, Inc.,

EE rr Oks Fabs dance usdes cbbess anewbe

Northwest Airlines v. Transport Workers Union,

I Cohen oles dibe euneees panct cAtaal

Parden v. Terminal Railway, 377 U.S. 184 (1964) ........-...

Red Star Towing and Transportation Co. v. Connecticut,

431 F.Supp. 1003 (D.Conn. 1976),

aff'd. 556 F.2d $59 (2nd Cir. 1977). .... 62... cece ee eees

Red Star Towing and Transportation Co. v. Dept. of

Transportation of New Jersey,

Ge EE CP GAR PE os oe cowce wc cacsebbcvvewnes

Riggle v. California, S77 F.2d 579 (9th Cir. 1978)............

Texas Industries, Inc. v. Radcliff Materials, .

SF IIE ya 6 0Scb0 wen bawanscudanipcivccnnes

Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, (1888)

Williamson Towing Ca. Inc. v. Illinois,

SOG BBG TIS i Ge TOFD os cc cccwiewccccescseaccens

United States Constitution

ey AED ons. aac a chin sidbns cugiewader deen

-iii-

3 Code of Laws of South Carolina:

S.C. Code Ann. Sec. 57-15-140 (1976)... 6... cece cece ee ed

OPINIONS BELOW

respectively requests that this Court deny the Petition for Certiorari,

seeking review of the Fourth Circuit’s opinion in this case. That

opinion is reported at 721 F.2d 932, rev’g. 527 F.Supp 1021.

CONSTITUTIONAL PROVISIONS INVOLVED

Eleventh Amendment, U.S. Constitution

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.

eee

NO.

In The Supreme Court

of the United States

OCTOBER TERM, 1983

Alean Hester Faust, Administratrix of the Estate of Charles

Lonnie Faust, Deceased; Tommy Bennett, and Curtis Muldrow,

Petitioners,

vs.

South Carolina State Highway Department, and the United

States of America,

Respondents.

ON PEL ITION FOR WRIT OF CERTIGRARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF RESPONDENT SOUTH CAROLINA

STATE HIGHWAY DEPARTMENT IN OPPOSITION

STATEMENT OF THE CASE

This is an action for damages against the South Carolina State

Highway Department and the United States arising out of the death

of Petitioner Faust’s decedent and injuries to the two other Peti-

tioners. The injuries resulted from the collision of the saia!! pleasure

boat in which the injured parties were riding with 2. guide cable whicii

was used at the time to pull a ferry operated by the South Carolina

Highway Department across the Atlantic Intracoastal Waterway. The

ferry was operated as a continuation of a state highway. S.C. Code

Ann. Sec. 57-15-140 (1976).

The Respondent South Carolina State Highway Dep: tment

moved to dismiss the action based upon the Eleventh Amendment.

The District Court denied the motion, but the Court of Appeals

-2-

reversed that decision, concluding that the state was immune under

the Eleventh Amendment and had engaged in no activity which con-

stituted a waiver of that immunity.

REASONS WHY THE WRIT SHOULD BE DENIED

There is no conflict with the decisions of this Court.

In its decision, the Court of Appeals applied the leading cases

of this Court respecting a state’s waiver of Eleventh Amendment

immunity through its participation in federally - regulated activity.

In so doing, the lower court applied those cases in the same man-

ner as all other circuits which have been presented with this question.

This Court’s cases hold that a state may waive its Eleventh

Amendment immunity by entering an area which Congress had

undertaken to regulate, Parden v. Terminal Railway, 377 U.S. 184

(1964), but that a state’s Constitutional immunity under the amend-

ment can only be abrogated by a Congressional enactment which

contains an express waiver provision, Edeiman v. Jordan, 415 U.S.

651 (1974), or where an analysis of the statute and its legislative

history makes it manifest that Congress clearly and unmistakenily

intended an Eleventh Amendment waiver. Employees v. Dept. of

Public Health and Welfare, 411 U.S. 279, 285-87 (1973).

The Petitioners incorrectly maintain that Eleventh Amendment

waiver should be implied when a state engages in activity in an area

subject to federal regulation. (Pet., p. 51). However, it is firmly

established that mere entry by a state into an area of federal domain,

standing by itself, has no effect on a state’s Constitutional immunity.

E.g., Employees, supra. Petitioners fail to recognize the requizement

established in Employees, supra, but absent here, that Congressional

intent to create a private right of action against the state must be

found. See, Intracoastal Thansp., Inc. v. Decatur County Georgia,

482 F.2d 361 (Sth Cir. 1973); Riggie v. California, 577 F.2d $79 (9th

Cir. 1978).

In this case, the state has done nothing more than maintain a ferry

across the A:lantic Intracoastal Waterway as part of its state highway

system! The essence of Petitioners’ claim is that this constituted an

obstruction to navigation giving rise to a private cause of action.

However, this Court has recently reaffirmed its long-held rule that

there is “no federal common law ‘which prohibits obstructions and

nuisances in navigable waters: ” California v. Sierra Club, 451 U.S.

287, 295 (1981); quoting Willamette Iron Bridge Co. v. Hatch, 125

US. 1, 8 (1888). Likewise, this Court concluded that the Rivers and

Harbors Appropriations Act of 1899, 33 U.S.C. Sec. 401, ef seq., did

not create a private right of action arising as a result of an ob-

struction of navigation. Jd.

Piciabintdin slip deen bttietenan nicitbins ntti Couitiainet

holdings interpreting the Eleventh Amendment, the Petitioners then

confusingly maintain that the federal courts can, by devising a

federal common law remedy, effect a waiver of the state’s Eleventh

Amendment immunity. This contention is based upon a strained

interpretation of Moragne v. States Marine Lines, Inc., 398 U.S. 375

(1970). Moragne, a case which involved only private parties and

where the court’s jurisdiction was clear, simply held that maritime

law affords a cause of action for wrongful death caused by unsea-

worthiness. It did not address immunity of a state, and Petitioners

can point to no case which so extends Moragne. On the contrary,

the federal common law power upon which Moragne was predicated

does not and cannot operate to create jurisdiction in admiralty where

it is prohibited by the Eleventh Amen!ment and where both the state

and Congress have declined to subject the state to suit. Cf, North-

west Airlines v. Transport Workers Union, 451 U.S. 77, 95-97 (1981);

Texas Industries, Inc. v. Radcliff Materials, 451 U.S. 630 (1981). Thus,

while Petitioners’ argument is imaginative, it is unsound. Indeed,

to reach the result contended for by Petitioners in this case would

require this Court to abandon the large body of well-established

Eleventh Amendment precedent which it has developed.

The decision of the court below is therefore squarely in accord

with prior decisions of this Court involving waiver of Eleventh

Amendment immunity.

"Sec. 57-15-140, S.C. Code Ann. (1976, provides that the ferry in question

“[florms a part of State Highway No. 716, ...”

Il.

There is no conflict among the circuits.

There can be no argument that the result in this case creates con-

flicts among the circuits, and the Petitioners have cited no court of

appeals decision with which the lower court’s Eleventh Amer.dment

holding conflicts. Indeed, the only conflict which had existed prior

to this case was in the Fourth Circuit itself. Chesapeake Bay Bridge

and Tunnel District v. Lauritzen, 404 F.2d 1001 (4th Cir. 1968). The

courts of the Second, Third, Fifth, Seventh, and Ninth Circuits (the

only other ones which have considered the question) have all either

expressly or isnpliedly declined to follow the Fourth Circuit’s

Lauritzen decision. See, Red Star Towing and Transportation Co.

v. Connecticut, 431 F. Supp. 1003 (D.Conn. 1976), aff'd. 556 F.2d

$59 (2nd Cir. 1977); Red Siar Towing and Transportation Co. v. Dept.

of Transportation of New Jersey, 423 F.2d 104 (3rd Cir. 1970); In-

tracoastal Transportation, Inc. v. Decatur County Georgia, 482 F.2d

361 (Sth Cir. 1973); Williamson Towing Ca, Inc. v. Illinc?s, $34 F.2d

758 (7th Cir. 1976); Riggle v. California, 577 F.2d 57 (9th Cir. 1978).

As the Court of Appeals for the Fourth Circuit recognized, 721 F.2d

at 941, (Pet., p. B-31), its conclusion in the present case brought the

Fourth Circuit into accord with every other court of appeals which

has considered this issue.

-5-

CONCLUSION

For the foregoing reasons it is manifest:

1. That the decision of the court below is not in conflict with any

prior decisions of this Court, but rather is fully in accord with those

decisions;

2. That the decision below did not create, but rather resolved, a

conflict in the circuits with regard to implied waiver of a state’s

Eleventh Amendment immunity.

For these reasons the Respondent submits that here is no basis

for granting the Petition for Certiorari in this case, and accordingly

the petition should be denied.