# Opposition — Faust v. South Carolina State Highway Department > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1279%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1226 ## Text 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 ....... eevee eeereeee eee eee eens Reasons Why the Writ Should be Denied ................. GEE ci. cuasédccduecds “ee eeeeeeereewneeeeeneereneenee é 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. i | 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 L. 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 3- 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, ...” 4 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. T. TRAVIS MEDLOCK Attorney General KENNETH P. WOODINGTON Senior Assistant Attorney General P.O. Box 11549 ; Columbia, S.C. 29211 (803) 758-2072 ELLISON D. SMITH, IV Long, Smith and Jordan P.O. Box 419 Charleston, S.C. 29402 (803) 577-4520 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1279%3A3. Public record. Not legal advice.