Petition for Writ of Certiorari — Welch v. Texas Department of Highways & Public Transportation

85-1716

Supreme Court, U.S.

FILED

No. ———

APR 21 !386

JOSEPH F. SPANIOL. JR

CLERK

IN THE

Suprenwe Court of the Wuited States

OCTOBER TERM, 1986

JEAN E. WELCH.

STATE DEPARTMENT OF HIGHWAYS AND

PUBLIC TRANSPORTATION and THE STATE OF TEXAS.

r) .

he SPOMCGUE I! rs.

PETIFION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MICHAEL D. CUCULLU

One Northwest Centre

Suite 300

13831 Northwest Freeway

Houston, Texas 77040

(713) 460-3833

WILSON EPES PRINTING CO Inc 789-0096 WASHINGTON. D.C. 20001

~

QUESTIONS PRESENTED

Whether the State Department of Highways

State of Texas are immune from a Jones Act

CALLICALI

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND

STATUTORY PROVISIONS

STATEMENT OF THE CASE 2

REASONS FOR GRANTING THE WRIT

CONCLUSION -

S.Ct. 3142 L.Ed.2 (1989 )

wy , Nj () Indian N;

NY. State US 105 S.Ct. 1245

L.Ed.2¢ (1985)

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347

L, Fid.2d 662 (1974)

'}

’

sé AY ’ ay pt | pP He tl Ww Wi

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

(1973)

p ret | } R I ‘ 7a | ~ 184

S.Ct. 1207, 12 L.Ed.2d 233 (1964)

pP rr } ~ ‘ So} ‘ H | H I

. )

i165 U.S RrO 104 Sf QO 9 L.Ed.2d

1

(1984)

1S 275. 79 S.Ct. 785. 3 L.Ed.2d 804 (1959)

Que lordan. 440 U.S », 99 S. L159

I ind ate. (1979)

4 i ’

U.S. n, Eleventh An

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF

APPEALS

FOR THE FIFTH CIRCUIT

ly, ad & { f Ay

! l] a | ered ( !

nuary, 1986

OPINIONS BELOW

he « ! f the D

e { Ay }

JURISDICTION

‘

rr ’ e 4] ‘ e

_ ; 1) ’

The mMdagmel QO] ne Court ¢ | A ?

: , '

“. Sk,

.

’ ‘ ’

4‘ io i i

»s) ] ]

— i ‘ (i

; )

cit lion

? 7?

il

\ f f

Is .

y+?

, s

| s) LOR6

|

( le f +h, ‘ Thi ’ . 7729° li ati : an

90) days of that date. This Court’s Jurisdiction 1s In-

voked under 28 U.S.C. Section 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

L’nited States Constitution, Amendment 1]

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against anyone of the

United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

i6 U.S.C. Section 688, The Jones Act

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 district

in which the defendant employer resides or in which

his prineipal office is located.

STATEMENT OF THE CASE

Petitioner was employed as a seaman/marine technician

by the Texas State Department of Highways and Public

Transportation and the State of Texas. Her duties con-

sisted of traditional seaman duties, and she was assigned

to a fleet of vessels in navigation by virtue of her em-

ployment.

On March 4, 1981, Petitioner was severely injured as

a result of the negligence of her employer and co-

employees. On October 6, 1981, Petitioner filed suit

against the Texas State Department of Highways and

Public Transportation and the State of Texas pursuant

to the Jones Act, 46 U.S.C. Section 688. The District

Court granted the state’s Motion to Dismiss, and Peti-

tioner thereafter appealed to the Fifth Circuit Court of

Appeals. The Fifth Circuit Court of Appeals reversed

the decision of the District Court and the Respondent

timely petitioned for rehearing and hearing en bane. The

Court of Appeals granted the hearing en banc, and there-

after affirmed the judgment of the District Court, dis-

missing Petitioner’s complain

REASONS FOR GRANTING THE WRIT

I. THE ISSUES SUBMITTED HAVE NOT BEEN DE-

CIDED BY THIS COURT.

The majority opinion of a divided Court states at the

»+ + «

OUUSEL:

The question raised by Welch bringing her Jones

Act suit against her employer, the State of Texas,

in federal court has been the subject of considerable

doubt and confusion in the law.

It is, therefore, incumbent upon this Court to resolve

the issue here and decide whether the immunity afforded

to States by the Eleventh Amendment has been abrogated

by the Jones Act. In the leading case of Parden

Terminal Railroad Co., 377 U.S. 184, 84 S.Ct. 1207. 12

L.Ed.2d 233 (1964), this Court initiated the principles

that (1) when a State enters a field which is regulated

by federal statute, and (2) Congress has specifically cre-

ated a remedy in private parties for the violation of the

applicable federal regulatory statute, and (3) that the

parties can show that Congress expressly provided for the

private remedy to be applicable to the States, then Elev-

enth Amendment immunity has been abrogated.

These announced principles were an extension of the

decision in Petty v. Tennessee-Missour Bridge Comm..

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

in, the Supreme Court stated:

There is no more apt illustration of the involvement

of the commerce power and the power over mari-

time matters than the Jones Act .. . Finally, we can

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 from the

Safety Appliance Act (United States v. California,

297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567) or the

Railway Labor Act (California v. Taylor, 353 U.S.

553, 77 S.Ct. 1037, 1 L.Ed.2d 1034). In the latter

case, we reviewed at length federal legislation con-

cerning 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. Section 688) has no exceptions from

the broad sweep of the words, ‘any seaman who shall

suffer personal injury in the course of his employ-

ment may’, etc. The rationale of United States v.

California (U.S.) supra, and California v. Taylor

(U.S.) 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.

Petty, at pp. 282-83.

In the instant case, however, the Court of Appeals

analyzed the post-Petty and post-Parden decisions and con-

cluded that the announced principles of Petty and Pardei

are no longer viable.

So in the space of four months, we have one decision

of the Supreme Court upholding the power of Con-

gress to abrogate State sovereignty with unequivocal

language contained in the statute itself and another

decision holding that State sovereignty under the

Eleventh Amendment remains intact in the absence

of unequivocal language contained within the rele-

vant statute itself. The Court has established a

bright line rule.

Fifth Cireuit opinion, at p. 2452.

In arriving at the majority opinion, the Court of Ap-

peals relied upon Employees of the Dept. of Public Health

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

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

)

\

aT

(

6

cuit in this case effectively removes the State of Texas

from the jurisdiction of Congress and has_ judicially

carved an exception to the clear language of the Jones

Act. By its decision, the Fifth Circuit has disenfranchised

the Petitioner and those similarly situated from her Jones

Act remedies.

At issue in Atascadero, supra, is whether the Rehabili-

tation Act, Section 504, overrides Eleventh Amendment

immunity. While the Rehabilitation Act was enacted pur-

suant to the Fourteenth Amendment powers of Congress,

and the requirements of Pennhurst State School & Halder-

nan, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)

and Quern i’, Jordan. 140 U.S. SYA QQ S.Ct. 1139. 39

L.Ed.2d 358 (1979) have consistently been applied by

this Court, there remains a significant distinction in the

realm of employees federally protected by the Jones Act

and the Federal Employers Liability Act. That distine-

. ’

tion arises throughout the decisions of this Court and is

|

most succinctly stated by Justice Brennan in his dissent-

—

, a , 14 ] ;

Ing opinion 1n Atascadero:

Admiralty was perhaps the most significant head of

federal jurisdiction in the early nineteenth century.

As Hamilton noted in a much-quoted passage from

the Federalist Papers: “The most bigoted idolizers of

State authority have not thus far shown a disposi-

tion to deny the national judiciary the cognizance of

maritime causes.’ The Federalist No. 80, at 502

(Hamilton) (B. Wright ed. 1961). Although few

admiralty cases could be expected to arise in which

the states were defendants, the Marshall Court in

the few instances in which it confronted the issue

showed a strong reluctance to construe the Eleventh

Amendment to interfere with the admiralty jurisdic-

tion of the federal courts.

J

Atasacad ro, 105 S.Ct. 31 12. at pp. 3172- (3.

The Court should grant the petition for a writ of cer-

tiorari in this matter to resolve the issue of whether the

Jones Act and (‘by reason of its incorporation into) the

‘

Federal Employers Liability Act abrogate the Eleventh

Amendment. To act otherwise places the state-employed

Jones Act seaman in a “Bermuda Triangle” created not

by legend, but by the judiciary.

CONCLUSION

T

Petitioner respectfully urges this Honorable Court to

grant her Petition for Writ of Certiorari to the United

States Court of Appeals to decide whether the Jones Act

abrogates immunity granted to the States by the Elev-

enth Amendment.

> : ee "

Respectfully submitted,

MICHAEL D. CUCULLU

MICHAEL D. CUCULLU, P.C

One Northwest Centre

Suite 300

13831 Northwest Freeway

Houston, Texas 77040

(713) 460-3833

Attorneus for Jean E. Welch

APPENDIX

la

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JEAN E. WELCH,

Plain ti ff- 1 pp llant.

STATE DEPARTMENT OF HIGHWAYS AND PUBLIC

TRANSPORTATION AND THE STATE OF TEXAS.

De f ¢ ndants-A ppe llee 2.

DROTT MANUFACTURING COMPANY and

J.1. CASE COMPANY.

De f¢ hi Aan fs.

OPINION

Clark, Chief Judge, Brown, Gee, Rubin, Reav-

Before:

ley, Politz, Randall, Tate, Johnson, Williams,

Garwood, Jolly, Higginbotham, Davis and Hill,

Circuit Judges."

* Judge Edith H of the Court when this

tted to the court en banc and did

bpm not participate in

issue Was Su

this decision.

Opinion by Judge Jerre S. Williams; Special Concur-

rence by Judge Gee, Circuit Judge; Special Concurrence

by Judge Higginbotham, Circuit Judge, with whom

Judges Garwood and Hill join; Dissent by Judge Brown,

Circuit Judge, with whom Judges Rubin, Reavley, Politz,

Tate, and Johnson join.

for the Sout

4

George E. Cire, District Judge, Presiding

JERRE S. WILLIAMS, Circuit Judge:

Appellant Jean Welch was injured while working as a

marine technician on the ferry landing dock at Galves-

ton, Texas. Claiming under the Jones Act. 46 U.S.C.

s 688, she sued her employer, the Texas Highway Depart-

ment, and the State of Texas, for her injuries. In addi-

tion she also sued the manufacturer of the mobile crane

which she alleges contributed to her injury.’ Her Jones

Act claim was dismissed by the district court on the as-

sertion of sovereign immunity by the State of Texas and

the Texas Highway Department, 533 F. Supp. 403 (S.D.

Tex., 1982). A panel of this Court by a split decision re-

versed the decision of the district court, Jean E. Welch

v. State Dept. of Highways and Public Transport«tion

and the State of T: ras, Drott Mf q. Co. and JI. Case Co..

739 F.2d 1034 (5th Cir. 1984). Rehearing en bane was

granted, 739 F.2d 1046.

I.

The Highway Department of the State of Texas oper-

ates on a twenty-four hour basis a free automobile and

1 Appellant’s claim against the mobile crane manufacturer is not

before us on this appeal

passenger ferry between Point Bolivar and Galveston,

Texas. across the waters which constitute the entrance

to the Harbor of Houston, the third busiest port in the

United States. The length of the ferry boat journey is

approximately three miles from dock to dock. Withou

the ferry boat, a person wishing to travel from one area

to the other by highway would have to drive approxi-

mately 130 miles. Appellant Welch was an employee of

the Highway Department in the operation of the ferry.

Her status as a “seaman” under the Jones Act is as-

sumed and is not at issue. The State Highway Depart-

rr

ment was an insurer under the Texas Workers’ Compen-

sation Law, Texas Rev. Civ. Stat. Ann. art. 83506 et seq.

(Vernon). Appellant, having been injured in the course

of employment, clearly was entitled to compe nsation ben-

efits under that law. She sued instead in federal cour

under the Jones Act for the full measure of damages to

which injured seamen are entitled if they can prove

negligence of their employer which caused the injury

II.

The defense of the State. upon which it prevailed in

the district court. is the defense of sovereign immunity

under the Eleventh Amendment to the United States Con-

stitution. While the Eleventh Amendment in terms onl)

bars federal court jurisdiction in a suit by a citizen of

one state against another state, the background under

which the Amendment was adopted establishes a far

broader foundation for tl

by the several states. It was assumed by the framers of

—

_—

-~

~~

_

<

pues

jf

Pal

-

~

a |

~

~/

~

~

~

+

“

Rihiid

the Constitution that the states could claim sovereign

immunity not only in their own courts but in the federal

eourts. But, in 1793, the United States Supreme Court

held in Chisholm v. Georgia, 2 Dall. 419, that the juris-

diction of the federal courts extended to a suit by the

eitizen of one state agalnst another state as against a

claim of sovereign immunity by the state. At the next

neeting of Congress following this decision the Eleventh

=

r nr ws "cy? d+ and it wes 111 tiff |

mendmen Was proposed; and 1 Was QUICKIY ra ines

7 ] . 4 , ™ 7

While nis 1s ne rerterencs QO Ss erelgn immunity

. * 4

1! the United St es ( ns ) es yt] hed without

}

que etin? } ; a eal ivy y SC ry) dened the SOV-

‘vr? ] ry ) . 1 } ly ‘ * ] ) ] Sra} =~

erely Lmyiry f f l { Alf a O

ITs WwW rm «¢ 1} ] \ 7 if ‘ ith | e 196 207

33 L.Ed. 842 (1890): Edelman v. Jordan, 415 U.S. 651.

94 8.Ct. 1347, 39 L.Ed.2d 662 (1974

The quest! nN raised by Welch bringing her’ Jones Act

court has been the subject of considerable «

fusion in the law. The starting point for the modern

development of the law is Parden v. Terminal R.R.

3877 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), in

which the Supreme Court found a forced i

waiver of sovereign immunity in Federal Employer’s

Liability Act claims. 45 U.S.C. $§ 51-60. The Court took

the position that the state by operating for profit an

interstate railroad as a common carrier, a federally regu-

lated business, automatically waived its sovereign im-

munity. It is also clear that in terms the Jones Act

remedies are based upon the Federal Employer’s Liabil-

Act. 46 U.S.C. § 688.

Of relevance also to the origins of the modern law of

waiver of sovereign immunity by the states when the

federal government is acting in the field of its plenary

powers is a case which antedated the Parden case, Pr tty

v. Tennessee-Missouri Bridqe Commission, 359 U.S. 277

70 S.Ct. 785. L.Ed. (1959). The Court held that

the Jones Act applied to maritime employees of the bi-

state prema he The Court then went on to hold that

the agreement of tl

—_)

+

.

e states of Tennessee and Missouri

to set up the interstate bridge ce: mmission DY means ot

6a

On March 4, 1985, the Supreme Court in County of

Oneida, New York v. Oneida Indian Nation of New York

State, —— U.S. ——, —— S.Ct. —, —- L.Ed.2 ——,

cited Parden, Missouri Public Health & Welfare. and

Edelman as establishing the Supreme Court’s approach

to congressional action forcing the states to yield their

sovereign immunity otherwise existing under the Eleventh

Amendment. The Court explicitly recognized that these

cases involved “waiver [of sovereign immunity! for pur-

poses of suit under a federal statute”’.

We relied upon the Missouri Public Health & Welfare

ease in I/ntracoastal Transportation, Inc. v. Decatur

County, Georgia, 482 F.2d 361 (5th Cir. 1973), in find-

ing the state had not impliedly waived its immunity

against claims brought under the Bridge Act of 1906

simply by operating in a federally regulated sphere.

“The private litigant must show that Congress expressly

provided that the private remedy is applicable to the

states.”” 482 F.2d at 365 (emphasis added). Again, in

Fre imanis U. Sea-Land Ne rvice. Ine.. 654 F.2d 1155, 1160

(5th Cir. 1981), we confirmed our decision in Jntra-

coastal to find no forced implied waiver by the state in

a private employee suit brought under the Rivers and

Harbors Appropriation Act of 1899, 33 U.S.C. § 401.

If there had been any doubt that we have correctly

viewed the later Supreme Court cases as limiting the

Parden case, that doubt was effectively and completely

removed by the decision of the United States Supreme

Court in Atascadero State Hospital & California Dept.

of Mental Health v. Douglas James Scanlon, me 1)

105 $8.Ct. 3142, L.Ed.2d - (1985), decided

June 28th of this year. The case involved suits by pri-

vate litigants seeking monetary relief under Section 504

of the Rehabilitation Act of 1973, 29 U.S.C. $ 794. The

t« ?

~ :

‘ a \

e agencies moved for dismissal of the complaints on

the ground the Eleventh Amendment barred the federal]

courts from entertaining respondents’ claims. The claim

a i

ia

of sovereign immunity was accepted by the holding of

the United States Supreme Court. The Court stressed

that in its opinion in Edelman v. Jordan, supra, it had

said that the state will be deemed to have waived its im-

munity “only where stated ‘by the most express language

or by such overwhelming implication from the text as

will leave no room for any other reasonable construc-

tion’’”’, 415 U.S. at 673, quoting Murray v. Wilson Dis-

tilling Co., 213 U.S. 151, 171 (1909). The Court further

said that even in the case of Fourteenth Amendment

claims against the states, the Supreme Court in Penn-

hurst v. State School & Hospital ». Halderman, 465 U.S.

89 (1984), required “an unequivocal expression of con-

sressional intent to ‘overturn the constitutionally guar-

anteed immunity of the several states’”’, quoting Quern

v. Jordan, 440 U.S. 332, 342 (1979), and citing the

Missouri Publie Health & Welfare case.

The Court went on to state its own ruling in language

even more specific. Justice Powell in his opinion for the

Court said: “Congr2ss may abrogate the States’ consti-

tutionally secured immunity from suit in federal court

only by making its intention unmistakably clear in the

language of the statute. The fundamental nature of the

interests implicated by the Eleventh Amendment dictates

this conclusion.” 105 S.Ct. 3147 (emphasis added). The

Court then restated and explained this requirement by

stressing that Congress’ power to abrogate a state’s im-

munity means that in those circumstances the usual con-

stitutional balance between the state and federal govern-

ment does not obtain and that it is therefore “incumbent

upon the federal courts to be certain of Congress’ intent

before finding that federal law overrides the guarantees

of the Eleventh Amendment”. Justice Powell then stated

categorically: “The requirement that Congress unequivo-

cally express its intention in the statutory language en-

sures such certainty.” 105 S.Ct. 3148. Even more

strongly in the next paragraphs the Court said “Congress

Sa

must express its intention to abrogate the Eleventh

Amendment in unmistakable language in the statute it-

self.” 105 S.Ct. 3148(emphasis added). Finally it should

be noted that the opinion does not ignore the earlier

Parden decision. It is cited along with the other later

eases in a footnote appended to this final quotation from

the opinion of the Court.

It would be difficult to make a legal principle more

definitive than did Justice Poweil writing for the Court

in the Atascadero case. Congress can force the states to

yield their sovereign immunity under the Eleventh

Amendment only when it so states in clear language

within the statute itself.

The other side of this constitutional principle was aiso

set out by the Supreme Court in a decision on February

19th of this year. The case is Garcia v. San Antonio

Mi tropolita) Transit Authority, - US. —, 105

S.Ct. 1005, —— L.Ed.2d —— (1985). That case held

that the employees of the San Antonio Metropolitan

Transit Authority were covered by and entitled to the

protections of the minimum wage and overtime provi-

sions of the Fair Labor Standards Act, and they could

enforce their claims by suits brought by these govern-

mental employees in federal and state courts. This hold-

ing was pursuant to a 1974 amendment to the FLSA

under which Congress had in terms within the language

of the statute itself extended its coverage to virtually all

public employees of the states and their governmental

entities. 29 U.S.C. § 208(e)(2)(C), (s) (6), and (x).

So in the space of four months we have one decision of

the Supreme Court upholding the power of Congress to

abrogate state sovereignty with unequivocal language

contained in the statute itself and another decision hold-

ing that state sovereignty under the Eleventh Amend-

ment remains intact in the absence of unequivocal lan-

9a

guage contained within the relevant statute itself. Ths

Court has established a bright line rule.

This summary of the law conclusively establishes tha

Welch did not have the power to bring a Jones Act sult

against the State of Texas in the federal court absen

an express waiver of sovereign immunity by the State

of Texas. Such a suit is barred by the Eleventh Amend-

ment in the absence of specific congressional language

contained within the statute itself requiring the abroga-

tion of sovereign immunity. We should also emphasize

that, as it is not now before us, we pretermit considera-

tion of the question whether a state maritime employee

can pursue a Jones Act claim in state court as against a

state soverelgn immunity assertion. In doing so we fol-

low the pattern of the Supreme Court holdings in the

cases establishing the law with respect to federal court

suits. The Supreme Court also has not dealt with this

issue

[V

\ |

ry? 7 } y +h + +t} ‘

Appellant urges tna ere Nas peen an express Walveél

ry +] “~, T ? . ; }

Ts } | . vo yr } 11? T i@y

\ ne state oj exas OI 1S soverelgn immunity unde}

} *

; > a | |

\ currer n sis by Profs r Martha | 1 of t H rd

| aw Scnor i 18 iT , avreeme! , I} . " , y ‘mi ‘ ‘ |

y

(,arcia San Ante 0 Metropolitan Tra 1 } lr} D .

c ‘ ay > ‘ ‘ 1 ~

i Misguided Doctrine, 99 Hai L. R 84-11% . L930

) f } }

Py PSS ! } ‘ d ey late mal ¥ p ot . 1 . +} j

lhe Court last Term, for exam 1” monti > 0

' ’ ,

ty / l cle OT ruieca LT Af ST r¢ H ‘

, .

tnat (4 nvress W dT t De deemed | ' { f e? = ] | T

to require tates ft aqaetend n Tede) ‘ irt ru , ; , ]

] rY +} . th ‘ + y tine # ] » +» r) ¢ ,

i is Lia it iLes il vi " ' i ' I ~. i .

t + + , . ) 4 .

Congress Nas » sti 1 in absolute explic! nguage

y tr nt ++ ‘ B ‘ +} } ‘ y ‘ ‘ . y

f 1LSe@l »eCAUSE i} | ed ! f

; ; ‘ |

retrospe ely, it effective ed upon Congr the burde

fy ’ rc | ? ce roc Tine ; ; ) 4 ‘

ct ’ ‘ « - » ‘ i i ‘ ‘

} ]

. > : a >? > ‘ ; ;

answer il dera irt to ind als’ suits

| ‘ ; + ‘ ; w+ ‘ . ‘ ) ’

i? y Ving ' rx ~~ y Py f i

?

, nre iT tr 17 eal al { is t T T { nere (iliqi ree Tne

‘ ] + + ; + ++

Fair Labor Standa A make pplicable to state employees

10a

the Texas Tort Claims Act. The Act does waive immu-

nity to suit against the state for personal injuries prox-

imately caused by the negligence of state employees act-

ing within the scope of employment if the injury arises

from “the operation or use of a motor driven vehicle and

motor driven equipment.” Texas Rev. Civ. Stat. Ann. art.

6252-19 $3 (Vernon Supp. 1980-81). Appellant’s injury

did arise from the use of motor driven equipment by a

state employee. Section 19 of the Act, however, limits

this waiver of immunity. It provides that a governmen-

tal unit carrying Texas Workers’ Compensation Insur-

ance is entitled to the “privileges and immunities”

granted by the Workers’ Compensation Act “to private

persons and corporations’. The claim is made that since

the State of Texas admittedly cannot insulate private

employers from Jones Act and maritime remedies, Pope

& Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98

L.Ed 143 (1953), granting the state agency “all of the

privileges and immunities” constitutes an express waiver

of sovereign immunity by the state under the Texas

Workers’ Compensation statute.

The short answer to this assertion is that it requires

a tortured interpretation of the phrase “privileges and

immunities” to find that those words constitute a waiver

of the right of the state to limit suits by injured state

employees in federal court. Instead, the obvious purpose

of the statutory provision is to give to state agencies

adopting Texas Workers’ Compensation the protections

against suits by injured employees for recovery of dam-

ages based upon negligence. If Texas had intended to

withdraw its desire for coverage under the Texas Work-

ers’ Compensation Act by withdrawing the immunity in

Jones Act cases, the granting of the “privileges and im-

munities” of the state Act was an exceedingly strange

way to do it, and a much clearer way could have been

found in simple language.

Of controlling importance in this case is recognition

of the fact that once it is determined that Congress has

lla

not required the state to waive its sovereign immunity

by unequivocal language in the statute, the questicn of

whether the state has or has not waived immunity from

suits in the federal court is a matter of state law. If the

state has spoken in interpreting its law, it is not within

our authority to reinterpret the law. See Petty v. Ten-

nessee-Missouri Bridge Comm., 359 U.S. 275, 278, supra.

We have the authoritative state interpretation of these

very provisions. In Lyons v. Texas A&M University,

545 S.W.2d 56 (Tex. Civ. App. 1976), the precise issue

of the case before us was decided by the Texas court.

The case involved the injury of a seaman on a vessel

owned and operated by Texas A&M University, a govern-

mental unit of Texas. The Texas Workers’ Compensation

Act had been adopted by the University and was appli-

cable to the injury. Lyons, however, brought suit to re-

cover damages for unseaworthiness, maintenance and

cure, and negligence under the Jones Act. The Texas

Court of Civil Appeals affirmed the state district court

in dismissing the claim. It found that section 19 of the

Texas Tort Claims Act was intended to make the work-

ers’ compensation remedy exclusive. The Supreme Court

of Texas denied review, finding no reversible error. Tex.

Writs of Error Table, 134 (1982).

It is also noteworthy that the Lyons opinion was writ-

ten by the late Judge Cire when he was serving on the

Texas Court of Civil Appeals. Judge Cire was the United

States District Judge who rendered the district court de-

cision in the case which is before us. It strengthens the

application of the state law for the district judge who

applied it to have been the judge who created the au-

thoritative state interpretation when he was on the state

court. In any event, we give some deference to interpre-

tations of state law by the district judges because of their

particular knowledge of local law. NCH Corp. v. Broyles,

749 F.2d 247, 253 n.10 (5th Cir. 1985). Judge Cire knew

what the law of the State of Texas is with respect to

express waiver. We accept his interpretation.

12:

We conclude that the State of Texas has not waived

expressly its sovereign immunity beyond that contained

in Section 19 of the statute which gives state employees

coverage only under the Texas Workers’ Compensation

law if the agency has adopted that law.

Appellant makes a final analytical assertion that the

State of Texas, by applying its own workers’ compensa-

tion law to this injury of a maritime employee, has placed

an unconstitutional condition upon its assertion of sover-

eign immunity. Reliance is grounded upon the Supreme

Court case of Southern Pacific Co. v. Jensen, 244 U.S.

205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), which held that

state workers’ compensation statutes could not apply to

injuries occurring on navigable waters.

Such an unconstitutional conditions analysis is not

relevant here. The Jensen case did not concern itself

with a maritime employee of a state. Instead, as must

be emphasized throughout in the consideration of this

and similar cases, the Court was dealing with private

maritime employment. The analysis must be under the

doctrine of sovereign immunity and the Eleventh Amend-

ment. The established law is that the State of Texas,

absent waiver, is not subject to suit in federal court un-

der a statute passed as part of the federal plenary regu

latory powers unless the federal government has ex-

pressly undertaken in terms within the statute to require

Waiver of immunity under that statute. This leaves the

state free to provide workers’ compensation for injuries

to its own employees as against a suit in federal court.

Otherwise, there would be a federally imposed remedy

abrogating sovereign immunity without expressed inten-

tion to impose such a remedy. In terms this is inconsist-

ent with Atascadero and also the principle of the political

control of federal regulation by the states acting through

the Congress which the Court emphasized in the Garcia

case. 105 8.Ct. at 1018.

13a

VI.

We hold that since Congress has not in terms within

the Jones Act required waiver of state immunity as to

the maritime employees of the states, and there has been

no actual waiver by the state, the State of Texas was

not subject to suit by an injured state maritime em-

ployee in federal court under the Jones Act. The deci-

sion of the district court denying Jones Act recovery to

appellant, a maritime employee of the State of Texas, is

in accordance with the law.

AFFIRMED.

THOMAS GIBBS GEE, Circuit Judge, specially concur-

ring.

I concur in Judge Williams’ careful opinion, writing

separately only to confess an earlier error. Although,

for the reasons given in my writing for the panel in this

case at 739 F.2d 1034, I believe it was incorrectly rea-

soned, further reflection has convinced me that Lyons v.

Texas A&M University, 545 S.W.2d 56 (Tex. Civ. App.—

Houston [14th Dist.] 1977, writ ref’d, n.r.e.) 1s an au-

thoritative interpretation of state law by a Texas court,

one which we are duty bound to follow. Under Texas

practice, the notation “writ ref’d n.r.e.” indicates that

the Texas Supreme Court was not satisfied that the opin-

ion of the intermediate appellate court correctly declared

the law in all respects, but that no error was present that

required reversal of its judgment. The Lyons opinion is

therefore of a species that represents the most doubtful

of Texas appellate authority. Nevertheless, it is Texas

authority, and the holding in question was crucial to the

judgment—which cannot have been correct if it was

wrong. I therefore agree that we are bound by it.

l4a

PATRICK E. HIGGINBOTHAM, Circuit Judge, with

whom Judges Garwood and Hill join, specially concur-

ring:

I join the majority opinion but emphasize that the de-

cision of the Supreme Court in Scanlon is but a specific

application of a broader principle—one essential to the

implementation of its concept that states must fight for

their sovereignty in the political arena, as found in its

Garcia holding.

The posed question is whether a seaman employed by

the State of Texas is covered by the Jones Act. Its an-

swer challenges our ability to write clear rules for de-

ciding which federal statutory regulatory schemes in-

clude states. Ironically, our challenge is best met by

passing it to the Congress through the familiar principle

that we will not infer that legislation applies to the states.

So the Court teaches, if in a subtle way, in Garcia, Em-

ployees and Edelman and now, more pointedly, in Scan-

lon.

The first inquiry, not addressed by the majority, is

whether the federal statute applies to state operations at

all. The concepts of federalism upon which Garcia as-

sertedly rests require that we construe federal statutes to

exclude states from their coverage unless Congress ex-

pressly indicates otherwise. If a federal statute does not

recite its applicability to states, the inquiry should end.

Only if a federal law explicitly governs state behavior do

we reach the question of whether the Eleventh Amend-

ment bars a private citizen from suing under the federal

statute in federal court.

I

The core holding of Garcia v. San Antonio Metropolitan

Transit Au thority, 105 S.Ct. 1005 (1985); is that Con-

gress’s power to impose its will upon the states is limited

by the structural arrangement of our federal system,

15a

rather than by ad hoe judicial line calls as to when fed-

eral legislation infringes upon “traditional” or “funda-

mental” state powers. The protections of state power

built into the federal system, such as equal state repre-

sentation in the Senate, are said to find their expression

in the outcomes of political struggles, of political not

judicial process. As the Court observed in Garcia, many

federal statutes expressly exempt states from coverage,

reflecting state success in the federal political arena. See

105 S.Ct. at 1019. Others, such as the Fair Labor Stand-

ards Act at issue in Garcia, expressly include states in

their sweep. See 105 S.Ct. at 1008-09.

The more difficult question is when the courts should

infer that Congress meant to subject states to federal

regulation if a federal statute is by its terms applicable

+

to a broad group such as “any seaman” or “any person,”

but makes no reference to states. In rejecting judicial

refereeing and measures of the level of intrusion into

state affairs by a federal statute, Garcia necessarily holds

that the answer cannot be “sometimes.” Being forced to

deduce whether states have been brought within a fed-

eral statutory scheme based on the peculiar attributes of

the scheme “inevitably invites an unelected federal judi-

ciary to make decisions about which .. . policies it favors

and which ones it dislikes.” 105 S.Ct. at 1015.

But there is a more direct corollary of Garcia: federa!

statutes not expressly applicable to states are not. Al-

though Garcia’s specific holding extended FLSA coverage

to public transit systems, the Court reaffirmed that “the

States occupy a special and specific position in our con-

stitutional system,” 105 S.Ct. at 1020, and that there are

“undoubtedly” limits on the federal power “to interfere

with state functions ” 105 S.Ct. at 1016. Garcia

concludes that the primary limit on this power is the

political process of state participation in federal decision-

making. If this process is to have its force, legislation

that is meant to affect states must say so; states will

l6a

then be aware of proposed federal legislation perceived to

intrude into their operations, and will be able to draw

their political weapons. But if legislation is silent or

half-heartedly ambiguous as to its effect on states, and a

court later declares that it applies to states, the process

will have been skewed and the states will have been ef-

fectivly sandbagged. The result would be a sidestepping

of the structural protections outlined in Garcia and a re-

turn of the judges from the sidelines.

Insistence on express articulation of Congressional pur-

pose is not only internal to Garcia, but is a long-recognized

safeguard of federalism. In Parker v. Brown, 317 US.

341, 351 (1943), the Supreme Court said:

In a dual system of government in which, under the

Constitution, the states are sovereign, save only as

Congress may constitutionally subtract from their

authority, an unexpected purpose to nullify a state’s

control over its officers and agents is not lightly to

be attributed to Congress.

The Parker Court applied this principle by holding that

the Sherman Act did not apply to state conduct, even

though that act purports to govern the behavior of al]

“nersons.” See also Wilson v. Omaha Indian Tribe, 442

U.S. 653, 666-68 (1979) (“white persons” referred to in

25 U.S.C. § 194 includes most artificial entities, but not

states): Weber v. Board of Harbor Commissioners, 85

U.S. (18 Wall.) 57, 70 (1873 (“Statutes of limitation

?

are not... held to embrace the State, unless she is des-

ignated, or necessarily included by the nature of the mis-

chiefs to be remedied’). In additi: n. in Pennhiurst State

School and Hospital v. Halderman, 451 U.S. 1, 24 (1981).

the Court, construing the Developmentally Disabled As-

sistance and Bill of Rights Act, demanded that Congress

“express clearly its intent to impose conditions on the

grant of federal funds so that the States can knowinglv

decide whet] er or no O accep t} Ose funds.”

17a

The requirement of explicit statement has a

governed the applicability of federal statutes to the fed-

eral government. In United States v. United Mine Work-

ers. 330 U.S. 258 (1947), the Court held that the Clayton

and Norris-LaGuardia Acts’ prohibition of suits by ‘“em-

ployers” to enjoin strikes did not restrain the United

States. The Court noted the “old and well-known rule that

statutes which in general terms divest preexisting rights

or privileges will not be applied to the sovereign without

express words to that effect.” /d. at 272; see also United

States ». Wittek. 337 U.S. 346, 358-59 (1949); United

States v. Stevenson, 215 U.S. 190, 197 (1909); Dollar

Savinads Bank r. [’nited States. SH U.S. (19 Wall. 227,

239 (1873). Even when concerns of sovereignty are ab-

sent. the courts have insisted upon plain expressions Oo!

“ey ° , ‘ } ) 7 hj } lioht } lin } ru ,

congressional purpose to highlight the line between con-

sressional and judicial roles in other contexts, such as

with the expressed reluctance to imply private rights 0!

action according to needs perceived by courts. See, @.7.,

Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76

1979).

In short, were we writing on a clean slate, we ought

unhesitatingly to apply the pri ciple of express Congcres-

sional articulation to the Jones Act. That act covers

“lalny seaman who shall suffer personal injury in the

course of his employment. 16 U.S.C. § 688. Tf w

insisted upon explicit Congressional statement the Jones

Act would not apply to state employees.

Yet the slate i< not ra an. Most reley: nt here if 1S

marked by Petty v. T essee-Miss 4” Bridae Commis-

sion. 3859 U.S. 275 1959), Like this case, Petty was a

Tones Act suit by an injured employee of a state-operated

not expressly exvempt states from the oneration of the

Jones Act. states were Jones Act “employees.” 359 U.S.

at 282-83.

—a

18a

While Garcia must ultimately lead to the rejection of

Petty’s construing steep nption, Garcia itself “did not do

so, because it construed a statute that expressly governs

state workers. Petty’s seaman reading of the Jones

Act as covering state-employed seamen remains unques-

tioned in any other later Supreme Court case; the Court,

rather, has chosen to distinguish Petty on its facts. See

Edelman, 415 U.S. at 672. We cannot do the same here

because our case involves the same statute and, indeed,

virtually identical facts. Until the Court considers the

Jones Act holding Petty, I concede, as I must, that it

rar

If a federal statute does not expressly include state

operations, it is, under my view, properly read as in-

applicable to states and no question of waiver of Elev-

enth Amendment immunity would be present. As far as

the states are concerned, such a statute is identical to

one that expressly exempts states. There is no federal

right for state employees to lay claim to, and the state’s

invocation of its Eleventh Amendment immunity is not

reached. Waiver of state immunity under the Eleventh

Amendment would arise then only when the statute was

expressly applicable to the states but silent or inexact

with regard to the state’s right to be free of suits by

private citizens in federal court.

I concur in the majority’s conclusion that Congress did

not abrogate the immunity enjoyed by Texas under the

Eleventh Amendment. In doing so, I reluctantly concur

in its implicit conclusion that Jones Act seamen include

employees of the state.

JOHN R. BROWN, Circuit Judge, with whom Judges

Rubin, Reavley, Politz, Tate, and Johnson join, dissent-

ing:

Because the opinion by Judge William for the Court

treats two Supreme Court decisions as “though they no

19a

longer have any binding vitality and because those deci-

sions command a determination (i) that the Jones Act

applies to vessels owned or operated by a state; and, (11)

that the abrogation of Eleventh Amendment’ immunity

which is clearly established for FELA cases, is necessarily

extended to the Jones Act, which incorporates FELA, I

must dissent.

As is obvious from what I believe to be the important

questions, the answer is one of Congress’ constitutional

power and how it has been exercised. To my way of

thinking, the crucial point is whether Congress has abro-

vated state immunity to suit, not whether there has been

a waiver on the part of Texas, a maritime employer.

Unlike the majority, I do not see waiver as relevant.’ It

is my opinion that the Supreme Court has ruled that the

FELA abrogates state Eleventh Amendment immunity.

In the Jones Act case before us, involving the same stat-

ute, we cannot hold differently.

The Eleventh Amendment pr L¢

The J idicial ’ 1 T ne | n Ted Ss Tes ar n t rye ‘ neary l¢ }

to extend t ny suit in v or equit n ed prose

cuted against one of the United States by Citizens of another

stats I b { ens ree ib ects f T } reign state

Much of the nf n in Eleventh Amendmen risprudence

lerives fror rts su: Sf the terms w er, consent, and

abrogation. Actually, these terms represent distinct concepts and

the difference between them is crucial for a rrect understanding

f the case before us. Waiver or consent concerns a state's acquies-

cence. either expressly or impliedly; abrogation deals with con

gressional action

The majority concludes that waiver is applicable only to suits

brought by private citizen With this I have no disagreement

The opinion al concludes that a state’s refusal to waive has

broader implications than just barring suits in federal court

Revardless of the merits of this analysis, I believe it has no appli-

cation to the case before us because the Jones Act, passed pursuant

to Congress’ plenary admiralty power has been held to in lud

the states

20a

I. Admiralty Supreme

My view is that Article III of the Constitution gives

Congress plenary power over admiralty and maritime

matters. Our framers did this for a very understandable

reason. Almost all commerce at the time of our nation’s

founding was water borne. In order to allow for the

free flow of trade across occasionally jealous and protec-

tionist state boundaries, the delegates meeting in Phila-

delphia made Congress the custodian of power over both

interstate commerce and admiralty. Moreover, the Con-

stitution makes a distinction between its grant to Con-

gress of power over interstate commerce and its alloca-

tion to the federal government of exclusive jurisdiction

over admiralty. As I see it, this distinction in phrase-

ology was deliberate then, and is of crucial significance

now. It is crucial because Congress is given a special

interest in maintaining the uniformity of admiralty and

has exercised its plenary power over maritime matters

in enacting the Jones Act. In doing so,

|T | heir purpose was not to strike down or abrogate

the system, but to place the entire subject—its sub-

Stantive as well as its procedural features—under

national control because of it intimate relations to

navigation and to interstate and foreign commerce.

Panama Railroad Co. v. Johnson, 264 U.S. 375, 386. 44

5.Ct. 391, 393, 68 L.Ed. 748, — (1924).

In exercising its exclusive power over admiralty, Con-

gress chose expressly to make the provisions of the Fed-

eral Employers’ Liability Act (FELA), 45 U.S.C. &§ 5]

et seq., an integral part of the Jones Act. If there was

any question about this incorporation from the statutory

language or legislative history of the Jones Act, a long

line of Supreme Court decisions has removed al] doubt.*

* Indeed, the Supreme Court in Panama Railroad Co . Johnson,

“64 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748 (1924 , considered the

2la

Since this incorporation has been determined to be consti-

tutional, the question for us to resolve is whether there is

any collision between Congress’ plenary admiralty power

and the Eleventh Amendment. My view is that the

framers’ interest in the uniformity of admiralty—re-

vealed in the almost unquestioned delegation of power

tT

over admiralty matters to the United States government

with little dissent even on the part of the antifederalists

mandates the conclusion that Texas, as maritime em-

plover, is subject to the Jones Act.

A remaining consideration then is whether the Elev-

enth Amendment, under the interpretations given it by

the Supreme Court that extend its scope beyond the face

of its language, bars federal court proceedings.

This dissent is divided into the following analytical

framework: Part II discusses the plenary nature of the

admiralty power granted to Congress by the Constitu-

tion. Part III deals with the Jones Act, its incorporation

of the FELA., and its abrogation of state immunity. Part

IV then considers the Supreme Court’s recent pronounce-

ments on federalism in Garcia and Atascadero.

IT]. Conare e<’ Admiralty Powys r 1S Pi, nary

As the Jones Act begins with Article III, Section 2 of

the Constitution, so do I. This article extends the Ju-

dicial power of the United States “to all eases of ad-

miralty and maritime jurisdiction”. In addition, Article

I Section 8, confers upon Congress the power “to make

all laws which shall be necessary and proper for carry-

S an . . _ . +1 , . : . . . ] ]

ing into execution the foregoing powers and all other

Jones Act’s incorpo! } FELLA | n tk Jor

Act’s constitutio! t r}

ce |riticisn mat f the s I t es not set fort!

the new Fr ile s Dut me rely adopts then DY i vene rs ere

But the criticism is without merit The reference .. Is

recognized mode of incorporating one statute r system of

statutes into another, and serves t bring int the latte)

that is fairly covered by the reference

99.

—

powers vested by this Constitution in the government of

the United States or in any department or offices thereof.”’

In Southern Pacific Co. v. Jensen, 244 U.S. 205, 215,

37 S.Ct. 524, 61 L.Ed. 1086 (1917), the Supreme Court

stated “it must now be accepted as settled doctrine that,

in consequence of these provisions, Congress has para-

mount power to fix and determine the maritime law

which shall prevail throughout the country.” As the

Court emphasized, the original Judiciary Act of 1789

gave district courts of the United States “exclusive origi-

nal cognizance of all civil causes of admiralty and mari-

time jurisdiction . . . saving to suitors, in all cases, the

right of a common law remedy, where the common law

is competent to give it.” * Jd. at 215.

In Workman v. Mayor, Alderman, and City of New

York, 179 U.S. 558, 560, 21 S.Ct. 212, 45 L.Ed. 314

(1900), the Court made clear that the framers desired

uniformity in maritime jurisprudence; accordingly, they

assigned the admiralty power exclusively to Congress:

i]t would be a strange distinction to persons com-

ing with their ships to different ports of this coun-

try, that in some ports, if they sustained damages

by the negligence of those who have management of

the docks, they will be entitled to compensation, and

in others they will not; such a distinction arising.

not from any visible difference in the docks them-

selves, but from some municipal difference in the

constitution of the bodies by whom the docks are

managed.

See aso Ex Parte Garnett, 141 U.S. 1, 13, 11 S.Ct. 840.

35 L.Ed. 631 (1891) .'

Today in 28 U.S.C. § 13831(1), Congress has vested in federal

district courts original and exclusive jurisdiction over “fa ny civil

case of admiralty or maritime jurisdiction, saving to suitors in all

cases other remedies to which they are entitled.”

®* The Garnett Court stated: “{t]he Constitution must have re-

ferred to a system of law co-extensive with, and operating uniformly

23a

The Supreme Court has long held tha

tion empowered Congress to legislat

matters within the admiralty and maritime }i

As the Supreme Court stated 1 ; }

». Stwart, 253 U.S. 149, 156, 40 S.Ct. 438, 64 L.Ed. 834,

R38 (1920), “the necessary consequence |of any otner

eonclusion!] would be destruction of the very uniformity

maritime matters which the Constitutio1

,

tablish.’ The Constitution

In respect of

Was designed to es

} . 4 4 ] 7 . Las ] sale :

took from the states all power, by legislation or Ju-

dicial decision, to contravene the essen

> Om eanetes mnatectal imiserw *¢ Dana atantedbtioa

of. or to work material iniury to, cnaracteristic tea-

tures ol

harmony and uniformity in

terstate reiations.

Id. at 160. In Knickerbocker the Court also recognized,

and chose to emphasize, tht Congress’ admiralty power

was much greate} than its power to regulate interstate

nh . . . .

, $6 + + " _ + 4 +

commerce. The distinction betwee! he ndicated situa-

4s wont ] hy +} ’ 7) Y +3) +5 y) * l: +; > tn ms writin at

LION Create »\ Lit UTISUl 1L1ION CPlLALLVE QO maritime al-

n, tne wt le count! It ert / / } ce ren Ti ren;

,

4 lace the rule nad 4 j

. laf . 4] . ; ; ;

requta On OT rid ge 4 ’7Tad ; ai ; ‘ ;

“s ,

imrormity and consistency 4 ; ; ain { ) 4 " " j ,

yiects f i mme? } t tf ting } nter rse¢ r The

tates with each other th foreigt ti ] empl

1aded

; J , 7 a . >

In State of Washington v. Dawson & Co., 264 U.S. 219, 224, 44

> . . .

5.Ct. 302, 68 L.Ed. 646 (1924), t Supreme Court vell «

1 .

: ° ,

nile act f { ymneress 7, « fFact t} rer ' ry ritime \

| } ¥ }

egisiation 1S valid 1f it cont enes the esse nt nurD .

by an act of Congress, or wo! mater pre ce t he chat

terist features of the gene maritime lav r interfer wit]

; +} + |

the propel harmo! nd ul rr il iaW } ternal !

¥ } , ? 7 ? ’ T} ] ry t ’ T ’ ? nt

ina nverstate re ls ill t1L1ION ne t 5

: ’

Te the effect ve pe! TIO! I t} rund TY nt D ? f | r)

such law was incorporated int r natior vs by the Cor

tion itself.”

24a

fairs and the one resulting from the mere grant of

power to regulate commerce, without more, should not

be forgotten.” Jd. at 160.*

Thus, the plenary power of Congress over admirality

has long been upheld.” It is more extensive than Con-

gress’ power over interstate commerce. If, however, Con-

gress neglects to expressly include the states within the

scope of a maritime enactment—as it did in passing the

Jones Act—there remains the question of whether the

statute applies to the states. Our inquiry must focus

on the congressional abrogation of state immunity un-

der the Jones Act; if abrogation is found, the Eleventh

Amendment does not forbid suit in federal court.

Ill. The Jones Act Abrogates State Immunity to Suit

The Jones Act provides that:

any seaman who shall suffer personal injury in the

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

* As further demonstration Congress plenary power el

dmiralty matter consider the Admiralty Jurisdiction Extension

Act This As vhich extends the reach of the admiralty court

beyond what was commonly accepted as a limit on their power, has

been held constitutional as against contentions that it was an unau

thorized congressional extension of admiralty and maritime juris-

diction. See United States v. Matson Na gation Co., 201 F.2d 610

%th Cir. 1953); Pure Oil Co . Snipes, 291 F.2d 60 (5th Cir

1961); Gutierrez Waterman SS Corp., 373 U.S 206, 88 S.Ct

1185, 10 L.Ed.2d 297 1963), rehearing denied, 374 U.S. 858. 83

5.Ct. 1863, 10 L.Ed.2d 1082 (1968): Vi« tory Carriers, Inc. v. Law.

104 U.S Z2UZ, 92 S.Ct 118, 30 L Ed.2d 383 1971). rehe aring de nied,

U.S. 1064, 92 S.Ct. 731, 30 L.Ed.2d 753 (1972): Pittston

Corp Dell ntura, 544 F.2d 35, 56 (2d Cir 1976

Northeast Marine Terminal Co Caputo, 432 U.S. 249, 97

S.Ct. 2348, 53 L.Ed.2d 320 (1977)

189] he ( irt id “the Constitution extends th dici lp wey

f the United States t s of admiralty and maritime juris-

‘ y na G this LICTIOTI is held ay exclus é the pe e}

f legislation on the same sul tn

lust necessarily be in the Na-

tional Legislature, and not in the State Legislatur:

25a

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

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

[Jnited States modifying or extending the commo)

law right or re medy in case of pe rsonal injury to

railroad employees shall apply: and in Case of the

death of any seaman as a result of any such per-

sonal injury the personal representative » of such

seaman may maintain an action for damages at law

with the right of trial by jury, and in such action

all statutes of the United States conferring or regu-

lating the right of action for death in the case of

railway employees shall be applicable. Jurisdiction

in such actions shall he under the court of the dis-

trict in which thre al fe ndant employe , 6S sides or in

which his princial office 1s locate d.

16 U.S.C. § 688 (emphasis added).

The FELA, incorporated by the Jones Act, provides in

part:

el|very common carrier by railroad while engaging

in commerce between any of the several states

shall he lable in damages to any person suffering

injury while he is employed by any such carrier in

such commerce... {and that under this chapter

an action may be brought in a district court of the

United States....

45 U.S.C. $$ 51, 56 (emphasis added). In Panama Rail-

road Co. v. Johnson, 264 U.S. 375, 44 8.Ct. 391, 68

L.Ed. 748 (1924), the Supreme Court expressly held that

the Jones Act was enacted pursuant to Congress’ ad-

miralty powers. See also Engel v. Davenport, 271 U.S.

83 46 S.Ct. 410, 70 L.Ed. 831 (1926); Kendell v. United

States. 37 U.S. 524 (12 Pet. 542), 9 L.Ed. 1181 (1838) ;

In re Health. 144 U.S. 92, 12 S.Ct. 615, 36 L.Ed. 358

(1892). The extent to which Congress forbade any limi-

tation. restriction, or reduction of these rights is re-

flected in § 55 of FELA:

26a

Any contract, rule, regulation, or device whatsoever.

the purpose of intent of which shall be to enable any

common carrier to exempt itself from any liability

created by this chapter, shall to that extent be void.

45 U.S.C. $55. This broad, remedial statute provides a

remedy to all seamen; thus, I now turn to consider

whether this exercise of plenary authority over admiralty

is on a collision course with the Eleventh Amendment

when it is invoked to provide a remedy for a state-em-

ployed seaman.

Pr. tty is Decisive

Jones Act Applies to States

There is no question whether the Jones Act applies to

state-operated vessels. That has already been authorita-

tively determined by the Supreme Court’s decision in

Petty v. Tennessee-Missouri Bridge Commission, 359

U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). In Petty,

the Supreme Court declared that the states of Tennessee

and Missouri were subject to the Jones Act by their

operation of a ferry.

W Je can 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 either

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. Taylor, 353

U.S. 553, 1 L.Ed.2d 1034, 77 S.Ct. 1037). In the

latter case we reviewed at length federal legislation

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 exceptions from

the broad sweep of the words “Any seaman who

shall suffer personal injury in the course of his em-

ployment may” ete. The rationale of United States

v. California and California v. Taylor makes it im-

L

7 «

me tc

possible for us to mark a distinction here and hold

that this bi-state agency is not an employer under

the Jones Act.

Id. at 282-83.

It bears emphasis that although the compact power

and the states’ acceptance of Congress’ conditions were

significant for the majority’s decision in Petty on the

Eleventh Amendment, the Court was essentially unani-

mous on the clear holding that the Jones Act applied to

the states. Adding universality to the term “any sea-

man” in the Jones Act is the Court’s observation that

“'t]here is no more apt illustration of the involvement

of the commerce power and the power over maritime

matters than the Jones Act.”’ /d. at 281.

Parden is the Answe yr

Within five years of Petty’s determination that the

Jones Act applies to state-operated vessels, Parden

Terminal Railway Co., 377 U.S. 184, 84 8.Ct. 1207, 12

L.Ed.2d 233 (1964), held that FELA was effective to

abrogate Eleventh Amendment immunity for a state-

operated, interstate railway. Parden is still the law. It

has yet to be overturned, and its constant citation '’ is

living proof that it is still alive, well and controlling.

Although some of the Supreme Court’s language in

Parden speaks in terms of a “waiver” by Alabama of its

immunity to suit, I firmly believe that Parden stands

for Congress’ abrogation of the states’ Eleventh Amend-

immunity in FELA. The essential principle of Parden is

that “when a state leaves the sphere that is exclusively)

lv As recently as the preceding term, the Supreme Court has cited

Parden as a precedent controlling its decisions on Eleventh Amend

ment immunity. See County of Oneida, New York v. Oneida Indian

Nation, U.S L.Ed.2d S.Ct 53

U.S.L.Wk. 4225, 4232 n.26 (1989

|

|

|

|

|

28a

its own and enters into activities subject to congressional

regulation, it subjects itself to that regulation as fully

as if it were a private person or corporation.” Id. at

196. This is shown convincingly from the structure of

the Court’s reasoning. The Court said:

By adopting and ratifying the Commerce Clause, the

states empowered Congress to create such a right of

action against interstate railroads; by enacting the

ELA in the exercise of this power, Congress con-

ditioned the right to operate a railroad in interstate

commerce upon amenability to suit in federal court

as provided by the Act; by thereafter operating a

railroad in interstate commerce, Alabama must be

taken to have accepted that condition and thus con-

sented to suit.

Id. at 192. While the Court speaks occasionally in terms

of waiver, its rationale is really one of the exercise of

constitutional power.'' Any talk of waiver was purely

ll[In Peel v. Florida Department of Transportation, 600 F.2d

1070, 1080-81 (5th Cir. 1979), we said:

[a] more consistent rationale is that a state can consent to

private damage actions when Congress manifests a sufficient

purpose to abrogate a state’s immunity. Under this approach,

the state waived its immunity from suit in federal court at the

Same time it surrendered its sovereign immunity and gave

Congress the power to legislate under delegated powers. As

recognized by Chief Justice Hughes in an early case involving

sovereign immunity. “States of the Union. stil] possessing

attributes of sovereignty, shall be immune from suits. without

their consent, save where there has been ‘a surrender of this

immunity in the plan of the convention.’” Monaco v. Missis-

292 U.S. 313, 322-23, 54 S.Ct. 745, 748. 78 L.Ed. 1282

1934 quoting The Federalist No. 81 A. Hamilton foot-

note omitted). This rationale removes the Eleventh Amend-

ment as a bar whenever Congress validly has exercised its

[/n exercising her rights, a state cannot disregard the

fg

limitations which the federal constitution has applied to

her power. Her rights do not reach to that extent. Nor

29a

a palliative for holding states subject to the act of Con-

gress. A spoonful of sugar always helps the medicine

go down. Indeed, in its discussion of the palliative na-

ture of waiver, the Parden Court reveals that congres-

sional power—not consent or acquiescence by Alabama—

‘s what is at stake because otherwise “the congressional

power to condition such an act upon amenability to suit

would be meaningless if the state, on the basis of its own

law or intention, could conclusively deny the waiver and

shake off the condition.” Jd. at 196.

Thus, the allusions to waiver, despite later efforts to

structure or depecit them as such, are by no means the

Court’s basis for holding Alabama liable in Parden. This

can be seen from the way in which the Court stated the

issue:

Here, for the first time in this court, a state’s claim

of immunity against suit by an individual meets a

suit brought upon a cause of action expressly created

by Congress. Two questions are thus presented (1)

did Congress in enacting the FELA intend to subject

a state to suit in these circumstances? (2) did it

have the power to do so, as against the state’s claim

of immunity?

Id. at 187. As Parden said of the FELA—in language

swallowed up hook, line, and sinker by the Jones Act:

We think that Congress, in making the FELA ap-

plicable to “eve ry common carrier by railroad in in-

can she deny to the general government the right to exer-

cise all its granted powers, though they may interfere

with the full enjoyment of the rights she would have if

those power had not been thus granted. Indeed, every

addition of power to the general government involves a

corresponding diminution of governmental powers of th¢

states. It is carved out of them.

Peel at 1080-81, quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 454-55,

96 S.Ct. 2666. 2670-71, 49 L.Ed.2d 614 1976). quoting Ex Parte

Virginia, 100 U.S. 339, 346-48, 26 L.Ed. 676 (1880

30a

terstate commerce meant what it said. The congres-

sional statutes regulating railroads in interstate

commerce apply to such railroads, whether they are

state owned or privately owned is hardly a novel

proposition; it has twice been clearly affirmed by this

court.

Id. at 187-88 (emphasis added).

In Parden, of course, the Court was speaking of Con-

gress’ power under the commerce clause. It found that

an exercise of pure power on the part of Congress was

sufficient to abrogate the states’ immunity. The states

had ceded to Congress, for the national good that uni-

formity would bring, that portion of their sovereignty

dealing with the power to regulate interstate commerce.

In the Court’s view, the decision to regulate employers of

interstate railway workers, be they private parties or

state government, was for Congress alone.

While a state’s immunity from suit by a citizen with-

out its consent has been said to be rooted in the

‘Inherent nature of sovereignty,’ the states surren-

dered a portion of their sovereignty when they

granted Congress the power to regulate commerce.

If Congress made the judgment that, in view of the

dangers of railroad work and the difficulty of recover-

ing for personal injuries under existing rules, rail-

road workers in interstate commerce should be pro-

vided with the right of action created by the FELA,

we should not presume to say, in the absence of

express provision to the contrary, that it intended to

exclude a particular group of such workers from

the benefits conferred by the Act.

Id. at 191 (citations omitted).

In language about the commerce power which rings

even truer about Congress’ power over admiralty, the

Parden Court said:

3la

This power, like all others vested in Congress, is com-

plete in itself, may be exercised to its utmost extent

and acknowledges no limitations other than are pre-

scribed in the Constitution. . .. If, as has always

been understood, the sovereignty of Congress, though

limited to specified objects is plenary as to those

objects, the power over commerce within foreign

states, and among the several states, is vested in

Congress as absolutely as it would be in a single

government, having in its constitution the same re-

strictions on the exercise of the power as are found in

the Constitution of the United States. Gibbons v.

Ogden, 9 Wheat 1, 196-97, 6 L.Ed. 28, 70 (1824).

Id. at 191.

The admiralty power is more extensive than the com-

merce power, in the sense of the states’ inability to in-

fringe upon admiralty’s national uniformity. The Jones

Act, an exercise of this broad, plenary power, by its very

terms incorporates the FELA which the Supreme Court

holds abrogates a state’s Eleventh Amendment immunity.

In light of these observations, Parden, which abolished

state immunity for state railroad employees covered by

the FELA, must do the same for state seamen because

their rights come from the same statute. “By engaging

in the railroad business a state cannot withdraw the rail-

road from the power of the federal government to regu-

late commerce.” New York v. United States, 326 U.S.

572, 582, 66 S.Ct. 310, 90 L.Ed. 326, 333 (1946).

Similarly, by operating a ferry, the State of Texas cannot

remove the ship or the seamen on her from the power of

the federal government to regulate maritime activities.

See Foremost Insurance Co. v. Richardson, 457 U.S. 668,

73 L.Ed.2d 300, 306, 102 S.Ct. 2654 (1982).

Fifth Circuit Bridge Act Cases Ineonse quential

The importance of Congress providing a private cause

of action as evidence of an intent to abrogate the states’

32a

immunity to suit is nicely shown in reverse by our cases

considering the Bridge Act: Intracoastal Transportation

v. Decature County, Georgia, 482 F.2d 361 (5th Cir.

1973), and Freimanis v. Sea-Land Service, 654 F.2d 1155

(5th Cir. 1981). In Jntracoastal we concluded that the

“Bridge Act of 1906 does not create a cause of action in

private parties’; consequently, we sustained a state’s

claim to immunity. Similarly, in Freimanis we focused

on the lack of a private remedy for violations of the

tivers and Harbors Appropriation Act of 1899. We

specifically juxtaposed Congress’ lack of intention to give

a private cause of action in these Acts with Congress’

clear intention to sanction private action in the FELA.

Congress in exercising this regulatory authority over

navigation did not, as it had in the Federal Em-

ployers’ Liability Act, create any civil cause of action

in favor of private parties injured by any violation of

the Act. Rather, it chose to achieve its regulatory

purposes through specific penal statutes.

Id. at 1160, quoting Red Star Towing v. Department of

Transportation of New Jersey, 423 F.2d 104, 105-06 (3d

Cir. 1970). Thus, in contradistinction to the Jones Act

and its incorporation of the FELA,

the presently relevant statute regulating the bridging

of navigable streams does not confer any new civil

remedy upon private parties and thus cannot by

logical inference be read as intended to impose

equivalent civil liability upon an otherwise immune

State.

Red Star Towing, 423 F.2d at 106.

Parden is Still Alive

The majority suggests—if it does not squarely hold—

that Parden has been significantly limited by the Supreme

Court in Employees v. Dept. of Public Health, 411 U-S.

279, 93 5.Ct. 1614, 36 L.Ed.2d 251 (1973), and in Edel-

33a

man v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d

662 (1974). In note 1 of Employees the majority states

that Parden was premised on the conclusion that Ala-

bama, by operating the railroad, had consented to suit

in the federal courts under the FELA. I simply do not

subscribe to this view. I believe that the essential prin-

ciple of Parden—state liability to federal suit when Con-

gress acts pursuant to a plenary power—remains un-

affectd by Employees and Edelman, and I now consider

the very different situations before the Court in the two

cases.

The Court in Employees stated that Parden concerned

only a rather isolated state activity, whereas /'mployees

dealt potentially with all office workers in the state gov-

ernment of Missouri. Most importantly, Employees con-

cerned the application of the Fair Labor Standards Act

(FLSA). By the very terms of the original FLSA, states

were exempted from coverage. Confusion arose because

of a later congressional amendment that concerned state

hospital employees. The Court decided that it would:

be surprising in the present case to infer that Con-

gress deprived Missouri of her constitutional im-

munity without changing the old §16(b) under

which she could not be sued or indicating in some

way by clear language that the constitutional im-

munity was swept away.

Employees at 285.

In Employees the Court merely declined “to extend

Parden to cover every exercise by Congress of its com-

merce 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 286-87. Thus, the

Court refused to find abrogation of state immunity be-

cause there was a confusing expression on the part of

Congress. First the FLSA had clearly exempted states;

34a

a later amendment then introduced confusion. There is no

such confusion with the Jones Act or the FELA. It has

long been established that the FELA includes every em-

ployer and gives every employee of an interstate railroad

a cause of action.

Indeed, using the Supreme Court’s own method of dis-

tinguishing Employees from Parden, we have in the case

before us only the isolated activity of operating a ferry.

This activity is the equivalent of the operation of a rail-

road in interstate commerce through the Jones Act’s in-

corporation of FELA. It is not the widespread type of

intrusion upon all governmental functions of the states

that would have resulted from extending FLSA in Em-

ployees. In Employees, the Court’s reluctance to find the

necessary intention to include the states within the FLSA

was influenced by Congress’ confusing amendments. This

confusion, as the Supreme Court held, showed a lack of

congressional intention to abrogate the states’ immunity.

The next case setting out the Supreme Court’s approach

to the Eleventh Amendment and state immunity is Edel-

man v. Jordan, 415 U.S. 651, 94 S.Ct. 1847, 39 L.Ed.2d

662 (1974). The Court in Edelman examined Aid to the

Aged, Blind, or Disabled (AABD), a federal program

funded by the state and federal governments, and ad-

ministered by state officials. Edelman had to deal with

both Parden and Employees. The Court, emphasizing the

critical significance of abrogation and the absence of a

private right of action, said:

the question of waiver or consent under the Eleventh

Amendment was found in those cases to turn on

whether Congress had intended to abrogate the im-

munity in question, and whether the state by its par-

ticipation in the program authorized by Congress had

in effect consented to the abrogation of this immunity.

But in this case the thre shold fact oft congressional

authorization to sue a class of defendants which

pom

35a

literally includes states is wholly absent. Thus, re-

spondent is not only precluded from relying on this

court’s holding in Employees, but on this court’s hold-

ing in Parden and Petty as well. (emphasis added).

Edelman at 672.

Thus, in Edelman, a class action seeking declaratory

and injunctive relief against state administrators, the

Court applied an analysis to the AABD which lends

support to my view that Parden was not limited by Em-

ployees. The Court’s language indicates that its note one

in Employees was an overly broad attempt to distinguish

Parden because, unlike the Employees note, Edelman says

Parden was founded on Congressional intend—and power

—to abrogate state immunity by creating a private cause

of action.’2 Further, Edelman uses the same analysis to

distinguish Employees which I maintain distinguishes

Employees from Parden: that is, Edelman read Employees

as a case which focused on the confusion Congress created

in the FLSA by first exempting the states, then trying to

include part of their workers.

As I have stated, there has never been any confusion

about the Jones Act’s incorporation of the FELA’s clear

language and its binding application to state operated

vessels; and FELA has long been held to apply to the

states and to abrogate their Eleventh Amendment im-

munity to suit in federal court. When it is understood

that Edelman was concerned only with state participation

in a program through which the federal government pro-

vided assistance for the state’s operation of a system of

public aid, it comes as no surprise that the Eleventh

Amendment was held to be a bar to suit in federal court.

In grant-in-aid programs, the principle of state court

adjudication is clear unless Congress expressly indicates

12 The Edelman Court said: “Parden . . . involved a congressional!

enactment which by its terms authorized suit by designated plain-

tiffs against a general class of defendants which literally included

states... .”’ Id. at 672.

36a

that the program allows suit in federal court. But the

Edelman Court’s discussion of waiver places no restriction

upon Parden’s holding that FELA abrogates state im-

munity to suit."

IV. The Rationales of Garcia & Atascadero

Support the Jones Act Abrogation of the

State ’s Eleve nth Ame ndme nt Immunity

The recent pronouncements of the Supreme Court in

its continuing exegesis of the role of the several states

in the federal system are reminiscent of Doctor Doolittle’s

two-headed llama, the Pushmi-Pullyu."* Since the case

before was argued, the Supreme Court has handed down

Garcia *® and Atascadero.” | confront Garcia because of

'S Thus, the Edelman Court said the “mere fact that a state

participates in a program through which the federal] government

provides assistance for the operation by the state of a system of

public aid is not sufficient to establish consent on the part of the

State to be sued in the federal courts.” Jd. at 674. It is with the

distinction between waiver and abrogation in mind that Edelman

said of grant-in-aid programs:

constructive consent is not a doctrine commonly associated with

the surrender of constitutional rights, and we see no place for

it here. In deciding whether a state has waived its constitu-

tional protection under the Eleventh Amendment, we will find

waiver only where stated by the most express language or by

such overwhelming implication from the test as [will] leave nc

room for any other reasonable constructions citations

omitted).

Id. at 673.

'*A pushmi-pullyu is the rarest of all creatures. It is a most

unusual creature, having two heads-——one at either end of its body

As a consequence of the different perspectives offered to either head.

a pushmi-pullyu is engaged in a contant tug of war with itself

It moves first this way, then that—but never does it move very

far in either direction. See Lofting, “The Story of Doctor Doolittle”

in Anthology of Children’s Literature, 624 (4th ed. 1970

15 Garcia ). San Antonio Metropolitan Transit A uthority. 169

U.S. , 83 L.Ed.2d 1016, 105 S.Ct. 1005 (1985

16 Atascadero State Ho pital Scanlon, 473 U.S. 87 L.Ed.2d

171, 105 S.Ct. — (1985

37a

its focus upon the structure of our federal system. I must

similarly confront Atascadero because of the sweeping

language which the Court used in interpreting the scope

of the Eleventh Amendment. While it is my opinion that

on the facts before us Parden and Petty establish Texas’

liability to federal suit under the Jones Act because the

Supreme Court has never disturbed their holdings, I alse

believe that, properly unde rstood. Garcia and Atascade ro

do not detract from my conclusion that the Jones Act

effectively abrogates Texas’ Eleventh Amendment im-

munity.

The significance of Garcia is its focus upon the political

process as the best way for the states to protect them-

elves from unduly broad regulation by the federal gov-

ernment in our federal system. Garcia is an important

case not only for what it says, but for the posture In

which the decision comes down. It stands for the proposi-

tion that states must fight for their sovereignty in the

political arena. In essence, the water-mark for state

sovereignty was illustrated by National Leagui of Cities,“

concern for the integrity of traditional governmental

functions and by Pennhursts’s ‘* concern for “clear state-

ments” in grant-in-aid programs.

Now, however, the Court has handed down Garcia in

its repudiation of its decision in National Leaque of

Parde yi.

When Congress acts pursuant to a plenary power—one

Cities, I believe Garcia reaffirms the principles of

unrestrained within its constitutionally delegated bounds

-the states must be affirmatively exempted through the

political process if they are to escape inclusion within a

regulatory scheme in an area where national uniformity

is important.

\ rs ] r if f T’ 7 17 ¢ | ~ 7 ~ ( f

2465, 49 L.Ed.2d 245 7¢

18 Pennhurst State Scl nd Hospital v. Halderman, 465 U.S

38a

In Garcia, the Supreme Court looked to the political

process, not the judicial process, for the states’ power to

protect themselves from excessive congressional regula-

tion. This requires an affirmative act on the part of

Congress to exclude states from the reach of its plenary

power—in holding otherwise, the majority risks attribut-

ing to Congress the now judicially discredited distinctions

between traditional state governmental and nongovern-

mental functions. Garcia clearly rejected this method of

analysis which has been generated by National League of

Cities. Accordingly, is is for Congress, influenced by

State involvement in the legislative process, to restrain

itself in the exercise of its plenary powers to the proper

amount of congressional regulation of the states. Any

other reading violates Garcia’s clear command that fed-

eral judges should not intrude into the political process."

Garcia, which did not even involve the Eleventh Amend-

ment, cannot be forced into the express reference mold.

Its focus upon the political process to protect the states is

federalism as reflected by Parden and Petty, not the fed-

eralism of National League of Cities.

The holding of Gar ‘a was:

We perceive nothing in the overtime and minimum-

wage requirements of the FLSA, as applied to

SAMTA, that is destructive of state sovereignty or

violative of any constitutional provision. SAMTA

faces nothing more than the same minimum wage

and overtime obligations that hundreds of thousands

of other employers, public as well as private, have to

meet.

'? Certainly Justice Powell in his dissent in Garcia interpreted

the majority opinion in this fashion. Indeed. what Justice Powell

found most troubling was the majority’s conclusion “that federal

political officials, invoking the Commerce Clause, are the sol: idges

of the limits of their own power.” Garcia, 83 L.Ed.2d at 1044

Powell, J., dissenting

39a

Id. at 1036. The rationale behind the Court’s conclusion

that a state governmental agency was subject to the

FLSA was that the states must protect themselves by

participation in the political process. Indeed, the Court

observed that “the principal and basic limit on the fed-

eral commerce power is that inherent in all congressional

action—the built-in restraints that our system provides

through state participation in federal governmental ac-

tion. The political process ensures that laws that unduly

burden the states will not be promulgated.” Jd. at 1037.°°

Garcia stands for the proposition that states retain

sovereign authority “only to the extent that the Consti-

tution has not divested them of their original powers and

transferred those powers to the federal government.”

Garcia at 1033. The admiralty power, like that over com-

merce, was expressly delegated to the national govern-

ment by the Constitution. Garcia makes clear that federal

legislation constitutionally may apply to state activities.

In doing so, it restores full force to the Court’s earlier

decisions in Parden and Petty. Therefore, the constitu-

tional power rationale that Parden applied to uphold

FELA’s application to the states as an employer still

stands.”

20 The emphasis upon the states’ ability to protect themselve

their involvement in the legislative process explains the Ga?

Court’s statement in note 10 that

the existence vel non of a tradition of federal involvement

particular area does not provide an adequate standard for

state immunity The recent vintage of this regulatory

activity does not diminish the strength of the federal inter

in applying regulatory standards to state activities, nor does

it affect the strength of the state’s interest in being free from

federal supervision

Id. at 1030

‘ — —_ 1 : ’ 1 41: ; 41 ; , 1 . ,. "

Justice Powell recognized this—-even though he disagreed wit!

)

Tne r) ] T uh , r ’ ey? r i yt? rent t}

+} ; the tac + y o | lera S £ y .

*

+ ¥ " ? ’ ’ f ; +

pr $ al xen me fede} sta

40a

The Court, supporting its conclusion that “our federal-

ism” requires that the states affirmatively exempt them-

selves from federal regulation, listed many of the fed-

eral regulatory schemes which specifically exempt the

states and their subdivisions. Conspicious by their ab-

sence from the Court’s partial catalogue are the two

statutes at issue in this case: FELA and the Jones Act.

Most important for a correct understanding of Garcia,

however, is that the court chose as its illustration those

programs which specifically exempted the states from

regulation. In matters within its plenary power—ad-

miralty and commerce—Congress is not required to ex-

pressly incorporate the states within the regulatory

scheme. The states are already on notice of Congres-

sional authority in those areas because it results from

the states’ own constitutional cession of power over

them to the federal government.

In the context of a plenary power the message of

Garcia is that Congress intends to act to the full extent

of its power—unless it places some limitation upon its

own actions. The fact that Congress in the past may

not have exercised its delegated power to their full ex-

tent is not sufficient reason to adopt the express articula-

tion doctrine. Garcia has not mandated such a course,

and I do not believe Atascadero compels a different result.

Atascadero is a case which arose under the Rehabilita-

tion Act of 1973, an anti-discrimination statute enacted

pursuant to the power granted to Congress by the Four-

teenth Amendment. In a sweeping opinion for a divided

court, Justice Powell wrote

in determining whether Congress in exercising its

Fourteenth Amendment powers has abrogated the

States’ Eleventh Amendment immunity, we have re-

utes is indicative of the eff: ( tiven¢ 3S of the feds ral political pr cess

in preserving the states’ interests....’ Garcia, 82 L.Ed.2d at 1043

Powell, J. dissenting

Q

4la

quired an une quivocal é cpre ssion of Congre ssional

intent to overturn the constitutionally guaranteed

immunity of the several states.**

Atascadero, —— U.S. at ——, 87 L.Ed.2d at 178,

hea at - . citing Pe nnhurst State School & Hospital

v. Halderman, 456 U.S. 89, 79 L.E.2d 67, 104 S.Ct. 900

(1984) (emphasis added). I believe, however, that Atas-

cadero by the use of the very words refers to the extent

of state Eleventh Amendemnt immunity when consider-

ing congressional acts under the Fourteenth Amendment.

22 The majority places great store on a recent law review articl

by Professor Martha Field of Harvard Law School, Garcia San

Antonio Metropolitan Transit Authority: The Demise of a M

guided Doctrine, 99 Harv. L. Rev. 84 (1985), which suggests that

the holding of Atascadero

“effectively placed upon Congress the burden of reenacting

statutes regulating states if it would have states answer in

federal courts to individuals’ suits”

Id. at 115. However, nothing in the article—and certainly nothing

in Atascadero itself—-requires the reenactment of statutes already

nterpreted as having abrogated the Eleventh Amendment immunity

f the states.

As I emphasized earlier, both FELA and the Jones Act have

already been determined to abrogate state immunity t lit. See

supra Part III.

23 The Court repeatedly makes this clear

As a result, when acting pursuant t 5 of the Fourteenth

Amendment, Congress can abrogate the Eleventh Am ndment

without the state’s consent. 87 L.Ed.2d at 177

Likewise, in determining whether Congress in exercising its

Fourteenth Amendment powers has abrogated the State’

Eleventh Amendment immunity, we have required “an un-

equivocal expression of congressional intent to overturn thi

constitutionality guaranteed immunity of the several states.”

Id. at 178.

Congress may, in determining what 1S ‘appropriate legislation’

for the purpose of enforcing the provisions of the Fourteenth

Amendment, provide for private suits against States or state

officials which are constitutionally impermissible in other con-

42a

Atascadero was a suit seeking to vindicate rights

granted to the handicapped under the Rehalibitation

Act of 1973. The Court’s solicitude for the sovereignty

of the states in the context of a Fourteenth Amend-

ment case is readily understood. The intrusion of the

federal judiciary, under the Fourtheenth Amendment.

into areas traditionally thought to be the prerogative

of the states has been the subject of considerable com-

ment.

|T | he trial judge has increasingly become the creator

and manager of complex forms of ongoing relief,

which have widespread effects on persons not before

the court and require the judge’s continuing involve-

ment in administration and implementation.

A. Chayes, The Role of the Judge in Public Law Litiga-

tion, 98 Harv. L. Rev. 1281, 1284 (1976).

In our own Circuit, there have been several striking

examples of the degree to which federal remedial decrees

issued pursuant to the Fourteenth Amendment have se-

verely restricted the discretion of the States to deter-

mine the manner in which their institutions will operate.

The complexity and breadth of such orders is exemplified

by Ruiz v. Estelle, 679 F.2d 1115, amended in part, 688

F.2d 266 (5th Cir. 1982), a case in which a comprehen-

Sive injunctive decree covering the operation of the

Texas Department of Corrections was issued by a fed-

eral district court. Other examples of these sweeping

equitable orders abound.**

texts. /d. at 180 quoting Fitzpatrick v. Bitzer, 427 U.S. 145,

19 L.Ed.2d 614, 96 S.Ct. 2666 (1976

We have decided today that the Rehabilitation Act does not

$5

evince an unmistakable congressional purpose, pursuant to

of the Fourteenth Amendment, to subject unconsenting states

to the jurisdictions of the federal courts. 87 L.Ed.2d at 183.

“* See, e.g., Lelsz v. Kavanaugh, 710 F.2d 1040 (5th Cir 1983

class action against Texas Department of Mental Health and

43a

Atascadero is understandably concerned about abroga-

tion of state immunity in Fourteenth Amendment cases.

In the words of Professor Field

[t]he court initially gave a miserly construction to

the {Civil War] amendments precisely because it

realized that the amendments would significantly

shift the state-federal balance of power

Field jarecia v. San Antonio Metropolitan Transporta-

tion Authority: The Demise of a Misquided Doctrine, 99

Harv. L. Rev. 84,100 (1985). The Fourteenth Amend-

ment to the Constitution, however, has not ‘divested the

states of their original powers [to vindicate constitutional

rights] and transferred them to the federal government.”

Garcia, 83 L.Ed.2d at 1033. State courts have concurrent

jurisdiction over cases involving the redress of rights

cuaranteed by the Constitution, and in certain circum-

stances, the existence of an adequate state remedy for

an alleged violation of federal rights may even preclude

access to a federal forum. Parratt v. Taylor, 451 U.S.

521, 68 L.Ed.2d 420, 433-34, 101 S.Ct. 1908 (1981).

Clear statement in the context of the Fourteenth

Amendment is imperative, if federal intrusion upon the

state’s domain is not to “prevent the making of social

experiments that an important part of the community

desires, in the insulated chambers afforded by the several

States.” Truax v. Corrigan, 257 U.S. 312, 343, 66 L.Ed.

Mental Retardation, ongoing in E.D. Tex., civil action No. 5-74-95-

CA : Valley y Rapides Parish School Board. 646 F 2d GP?5 5th

Cir. 1981 class action of sixteen years duration seeking desegre-

gation of local public schools in Louisiana|; Gates v. Collier, 501

F.2d 1291 (5th Cir. 1974 class action seeking to remedy uncon-

stitutional prison conditions in the Mississippi state penitentiaries

All of these are properly considered as Fourteenth Amendmer

cases because they are suits which seek the vindication of feder

rights that are applicable against the States by virtue of the incor

poration of the Bill of Rights through the Fourteenth Amendn

iment

44a

254, 42 $.Ct. 124 (1921) (Holmes, J. dissenting) .*

When however, state experimentation threatens to trench

upon areas reserved for the plenary exercise of federal

power, | believe the state’s experiment must fail. So it is

when state economic regulations are held to be preempted

by the federal commerce power of Art. I § 8; so it must be

when a state’s assertion of Eleventh Amendment im-

munity threatens to displace a uniform, federal remedial

statute enacted pursuant to the Congress’s plenary au-

thority over admiralty.

Admiralty is a fundamental area marked by the con-

stitution in which the states have surrendered their power

to the federal government. The plenary power over ad-

miralty, more extensive even than that over commerce,

was one of the fundamental precepts upon which the

Republic was founded.** The states’ surrender of sover-

eignty in this area was present in the plan of the con-

vention from its inception,*? and has continued unchal-

lenged and unrestricted to the present day. The states

have been on notice of the scope of this federal authority

since the founding of the Republic. They relinquished it

in order that a fledgling nation might build a national.

sea-going trade. It is not for Texas, after more than one

hundred forty years as a member of the Union, to assert

that its sovereignty over maritime matters is somehow

-" See also New State Ice C: Liebmann in which Justice

Brandeis f bserved

[}t is one of the happy incidents of the federal system that

a single courageous state may, if its citizens choose. serve as a

laboratory; and try novel social and economi« experiments with-

out risk to the rest of the country

285 U.S. 262, 311, 76 L.Ed. 747, 52 S.Ct. 371 (1932 Brandeis, J

dissenting

5 Sees ipra pp 7-11

7 Workn an Ma sor, Aldi rman, and ¢ ri j Ne / York. 179

U.S. 553, 560, 21 S.Ct. 212, 45 L.Ed. 31 1900); Cf. Monaco, 292

>

9°

) 99

CO he be ee Us

45a

greater than that which was ceded to the national govern-

ment by the Constitution.

The Jones Act poses no threat of massive, unanticipated

federal intrusion upon the traditional domain of the

several states. There was, and is, no need for clear state-

ment on the part of Congress to inform the states of its

intention to occupy the field in this area. The entire

domain of maritime activities has been occupied by the

federal presence since 1789, and exclusive jurisdiction

over admiralty appears in the text of the Constitution

itself. Art. I § 2. The Jones Act, as an appropriate exer-

cise of the plenary authority of Congress over maritime

affairs, provides sufficiently clear notice to the states of

the congressional intent. There was no need at the time

of the enactment of the Jones Act, at the time of the

decision concerning FELA in Parden, or at the present

time in view of Employees, Edelman, Garcia, and Atas-

cadero, for Congress specifically to declare that the states

were subject to federal court suit under the Jones Act.

To my way of thinking, then, the Jones Act is sufficient

to abrogate Texas’ Eleventh Amendment immunity to suit

for injuries that arise out of its operation of a ferry

system.

( ‘onagre ssional Treatment of Fede rally-E’mploye d Seamen

I find unconvincing Texas’ argument that Congress

could not have intended that the Jones Act should apply

to the states since the federal government has not applied

the Jones Act to the federal government’s seamen. As

the federal power over admiralty is plenary, the federal

government is entitled to do with it as it will. The ques-

tion is not what Congress has done with its own employees

alone, the question is what has it chosen to do with all

other maritime employees. Occasionally Congress has pro-

vided that federally employed seamen be covered by the

Federal Employees Compensation Act (FECA), 5 U.S.C.

© 8101. But this has not always been so when conditions

46a

—war conditions—suggest a change to traditional] sea-

men’s remedies.“

How Congress treats federally-employed seamen simply

has nothing to do with its determination that state-

employed seamen are covered by the Jones Act.

Conclusion

It is my view that a Substantial and settled body of

Eleventh Amendment jurisprudence has established that

Congress can abrogate a state’s immunity to suit. In

both Parden and Employees, the Court recognized that

Congress has the power to bring “the States to heel, in

the sense of lifting their immunity from suit in a federal

court.” Employees, 41] U.S. at 283. While Congress can

induce states to waive their immunity in grant-in-aid

programs, Congress is not limited to such indirect action.

I believe the Supreme Court has clearly held that the

national legislature possesses the power to override the

Eleventh Amendment directly, without resort to any

theory of state consensual waiver, when Congress acts

pursuant to a plenary power given to achieve the framers’

goal of uniformity. The Supreme Court has ruled that

ELA meets this Standard for abrogation of state im-

munity to suit. In this Jones Act case, involving the same

Statute, it is not for us to Say differently.

Welch’s claim as a blue water seafarer should proceed

in the Federal Court.

“© See for example, Cosmopolitan Shipping Co. McAllist. r, 337

U.S. 783, 69 =.Ct. 1317, re hear ng de nied, 288 U.S. 839, 70 s.Ct. 32

1949). Ove rruling } uUrst wv. Moore -McCormack Lines. 528 U.S. 707.

60 S.Ct. 1218, 90 L.Ed. 1534 (1946); Caldarola . Eckert, 332 U.S.

155, 67 S.Ct. 1569, 91 L.Ed. 1968 (1947) (cases dealing with sea-

men on government owned and operated ships under war shipping

Administration Agents

47a

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 83-2253

JEAN E. WELCH,

Plaintiff-A ppe llant,

V.

STATE DEPARTMENT OF HIGHWAYS AND PUBLIC

TRANSPORTATION and THE STATE OF TEXAS,

Def ndants-A pp llees,

DROTT MANUFACTURING COMPANY and J.I. CASE Co..

De fe ndants.

Oct. 31, 1984

Appeal from the United States District Court

for the Southern District of Texas

SUGGESTION FOR REHEARING EN BANC

(Opinion August 27, 1984, 5 Cir., 1984, 739 F.2d 1034)

Before CLARK, Chief Judge, GEE, RUBIN, REAV-

LEY, POLITZ, RANDALL, TATE, JOHNSON, WIL-

LIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS

and HILL, Circuit Judges.

BY THE COURT:

A member of the Court in active service having re-

quested a poll on the applications for rehearing en bane

48a

and a majority of the judges in active service having

voted in favor of granting a rehearing en banc,

IT IS ORDERED that this cause shall be reheard by

the Court en bane with oral argument on a rate hereafter

to be fixed. The Clerk will specify a briefing schedule for

the filing of supplementa! briefs.

49a

JNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 83-2253

JEAN E. WELCH.

Plaintiff-A ppellant,

V.

STATE DEPARTMENT OF HIGHWAYS AND PUBLIC

TRANSPORTATION and THE STATE OF TEXAS,

Defendants-A ppellees,

DrROTT MANUFACTURING COMPANY and J.I. CASE Co.,

Defendants.

Appeal from the United States District Court

for the Southern District of Texas

Before BROWN. GEE and WILLIAMS, Circuit Judges.

GEE, Circuit Judge:

Plaintiff Jean Welch was injured in the course of her

employment as a “seaman” (marine technician) while

working on the ferry landing dock at Galveston, Texas.

Ms. Welch sued her employer, the Texas Highway De-

partment and the State of Texas under the Jones Act

and also sued the manufacturer of the mobile crane

which she asserts contributed to her injury in a products

liability suit. The district court, 533 F.Supp. 403, dis-

50a

missed her Jones Act claim on the ground that the state

defendants had not waived Eleventh Amendment im-

munity either expressly, by virtue of the state Tort

Claims Act, or impliedly, under the Parden doctrine.’

Ms. Welch appeals the dismissal of her Jones Act claims ”

and we reverse.

The Eleventh Amendment immunizes an unconsenting

state from federal court suits brought by citizens of the

United States. A state can consent to suit, however, eithe1

expressly—by enacting a statute—or impliedly, by enter-

ing into a federally regulated sphere of activity where a

private cause of action is provided for the violation of the

applicable federal regulatory statute and Congress has

expressly provided for that remedy to apply to the states.

Employees of the Depart me nt of Public Health and Wel-

, State of Missouri v. Department of Public Health

and Welfare, State of Missouri, 411 U.S. 279. 98 S.Ct.

1614, 36 L.Ed.2d 251 (1973). Since we conclude that

there has been an express consent, we need not consider

any question of an implied one.

.

ta re

The Texas Tort Claims Act waives immunity to suit

against the State for personal injuries proximately caused

by the negligence of any officer or employee acting within

the scope of employment if the injury arose from “the

operation or use of a motor driven vehicle and motor

driven equipment.” Tex.Rev.Civ.Stat.Ann, art. 6252-19

> 3 (Vernon Supp.1980-81). Section 4 of the Torts Act

specifically waives the State’s immunity from suit. to

the extent of the “liability created by Section 3” and

grants permission to all claimants to sue the State of

Texas for “all claims arising’ under the Act. Section

19 of the Act, however, limits this waiver of immunity

by providing that a governmental unit carrying worker’s

' Parden v. Terminal Railway of Alahama State Doel Depart-

ment, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964

The products liability part of the action has been con luded

ai

5la

compensation is entitled to the privileges and immunities

granted by the Workers’ Compensation Act.” These in-

clude immunity from suits for damages under most cir-

cumstances. Section 19 reads:

Any governmental unit carrying Workmen’s Com-

pensation Insurance or accepting the provisions of

the Workermen’s Compensation Act of the State of

Texas shall be entitled to all of the privileges and

immunities granted by the Workmen’s Compensation

Act of the State of Texas to private persons and

corporation. (emphasis added).

As of 1969, however, when this statute was enacted,

it had long been clear that the state could infer no im-

munity from federal maritime remedies on “»rivate per-

sons and corporations.” E.g., Pope & Talbot, Inc. v.

Hawn. 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953)

No private shipping company, after Pope & Talbot at the

latest. could have rationally concluded that by taking out

a state workers’ compensation policy on its seamen, it

could deprive them of their Jones Act remedies on the

sround that state law made the compensation remedy ex-

clusive. That this was the case was presumedly known,

therefore. to the Texas Legislature when it enacted Section

19: for it is a maxim of general application, recognized

by Texas courts, that:

“All statutes are presumed to be enacted by the

legislature with full knowledge of the existing condi-

tion of the law and with reference to it. They are

therefore to be construed in connection and in har-

mony with the existing law, and as a part of a

general and uniform system of jurisprudence, and

The highway department carries workers’ compensation in-

surance under a statute specifically providing for such. Tex.Rev.Ci

Stat.Ann. art. 6674s (Vernon 1977 Section 3 of this statute

limits employees to this exclusive remedy for injuries sustained

while working within the course of their employment.

52a

their meaning and effect is to be determined in con-

nection, not only with the common law and the con-

stitution, but also with reference to other statutes

and the decisions of the courts.” McBride v. Clayton,

166 S.W.2d 125, 128 (Tex.Sup.1942).

Since this is so, we must presume that in consenting

to suit against state departments carrying workers’ com-

pensation to the same extent as “private persons and

corporations” carrying such coverage could be sued, the

Legislature intended the departments to be subject to

federal maritime remedies.‘

REVERSED AND REMANDED.

* We recognize that our approach runs the risk of being criticized

as overly technical and precious—as the dissent « iggests. Despite

these possible disadvantages. however, we remain convinced that

the best way to ascertain a legislature’s intent is to look to what

it has said—and to presume that its statements were made and

enacted into law with full understanding of the implications of

their language in light of then existing jurisprudence. Any other

approach creates what we consider a greater danger than tech-

nicality—that of putting this federal court in the position of

second-guessing the Texas legislature

The diss¢ nt cites L /Ons T ra A & M Un er ry. 545 S W 2d

06 (Tex.Civ.App. 1976—writ ref’d n.r.e.). as an authoritative state

interpretation of the effect of section 19 and notes that Lyons v

argument on which we rely today and therefore cannot bi read

as a governing exposition of state law. More imp rtant, Lyons is

bottomed on a fundamental misconception of the relative powers

of the state and federal ¢o vernments: it is not true that. as Lyo

} Ids the Stats Ie provide nv remedy t w } } nd

seamen to that remedy exclusively 45 S.W.2d at 59. The proper

statement would be that “the State mav wv ereign immu!

r decline to do so to whatever extent it lik I Bi

vaived immunity, it may not decree t] t} wner fr marit

claims as to which it has done so are limited to the wu rkers’ n

pensation remedy.” We note that the Texas Supreme ¢ irt

refusing the writ n.r.e. declined to affirm th. r ning underlying

JOHN R. BROWN, Circuit Judge, concurring:

I concur in the result reached by Judge Gee, but I think

it imperative that we reach that result by way of federal,

rather than state, law. I respectfully disagree with the

two views of Judge Williams that: (i) the state can im-

pose on its waiver of immunity the unconstitutional

mandatory application of the State Workers’ Compensa-

tion Act; and (ii) Parden has lost its vitality. With this

Court now speaking as a discordant trio and the outright

conflict (in result and reasoning) with our former col-

leagues in the Eleventh Circuit,’ this case calls for au-

thoritative review by the Supreme Court, despite our

reversal and remand for a trial.

Initially, it must be recognized that two issues are at

stake in the immunity defense raised by Texas. The first

question is substantive: Does the Jones Act reach state

defendants who are employers of seamen? Or, do state

enjoy a substantive immunity that would protect «hem

from suit in either federal or state court? In other

words, does the Jones Act apply to a person classified

aS a seaman in the employment of a state or state

agency? The second question is jurisdictional in the

Eleventh Amendment sense: Assuming there is a sub

Stantive cause ort action against a state. does the Eleventh

Amendment bar prosecution of the suit in federal court

Or, on the other hand, has Congress, pursuant to its

enumerated constitutional powers, abrogated this juris-

dictional immunity in this particular statutory cause of

action? I believe that the Supreme Court has squarel

answered the substantive question in Petty iz

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

3 L.Ed.2d 804 1959 TI Ju tional Eleventh

Amendment question is answered in Pa Terminal

Ry. of Alabama State Docks Dept., 377 U.S. 184, 84

54a

S.Ct. 1207, 12 L.Ed.2d 233 (1964). The body of recent

Supreme Court decisions does not overrule these clearly

applicable precedents, either explicitly or implicitly.

The inability of this Court to decide either (or both

question compels review by an authoritative tribunal.

Substantive

In enacting the Jones Act pursuant to both its ad-

miralty-maritime power and its commerce power, Con-

gress included within the class of Jones Act defendants

those states who would employ seamen aboard vessels in

navigable waters. In Petty, the Supreme Court held

that the Jones Act applied to a claim of an employee in

the category of a seaman who was injured in the opera-

tion of a ferry across the Mississippi River by a bistate

agency. On the Eleventh Amendment jurisdictional issue.

the Court relied in part on the language in the interstate

compact between Tennessee and and Missouri as evincing

nsent to suit in federal court. However, on the sub-

stantive question of the application of the Jones Act. the

Petty court relied solely on the congressional language

ct

Ve n find more reason for excepting state or

tate porations from “employer” as used in

ict than we could for excepting them

ne Safety Appliance Act or Railway

\ct “When Congress wished to exclude

ees, it expressly so provided.” The Jones

\ct has no exceptions from the broad sweep of the

words “Any seaman who shall suffer persona injury

in the course of his employment may” ete.

399 U.S. at 282, 79 S.Ct. at 790 (citations omitted)

The Petty dissenters believed that the claim was for-

bidden by the Eleventh Amendment, and expressly did

a, 1? ,

reacn lS SubDstantlive argument. Justice Frank-

furter stated: “I assume the Court is referring solely

dVaA

to the substantive applicability of {the Jones] Act.” 395

U.S. at 289,

719 S.Ct. at 794 (Frankfurter, J., dissent-

ing)

Whether or not the Petty majority’s quoted statement

on the applicability of the Jones Act also included the

jurisdictional question, it is clear that it settled at least

the substantive question.” Like Petty, the instant case

involved the operation by a state of a ferry boat and a

suit brought under the Jones Act. Thus, the Petty hold-

ing is directly applicable here as to the substantive lia-

bility of Texas. The only thing which could possibly

shield it from effective liability in this suit is the Elev-

enth Amendment

Texas is not aided by its own statutory provision pro-

viding that state workers’ compensation is the exclusive

remedy for employees of governmental units carrying

workmen’s compensation insurance. Congress, in its con-

stitutional admiralty and maritime power,’ can make na-

In Maine Lhiboutot, 448 U.S. 1, 9 n. 7, 100 S.Ct. 2502, 2507

n. 7, 65 L.Ed.2d 555 (1980), the Supreme Court stated “N

Eleventh Amendment question is present, of cour n actior

s brought in tate rt nce the Amendment, | t ern

restraints only ‘the Judicial power of the United States.’ ” See

Maher Gaaqne, 448 U.S. 122, 130 n. 12, 100 S.Ct. 2570, 2575 n. 12

65 L.Ed.2d 653 (1980 Eleventh Amendment issue is not befor

wt in Mein Thiboutot when attorneys’ f ere awarded

walnst a state | tate court). The distinction between substat

tive immunity and Eleventh Amendr t immunit federal rt

most clearly drawn in Justice Marshall's concurring opiniot

f Cé V ri P Health Dept., 411 U.S. 279, 287-98

93 S.Ct. 1614, 1619-25 § L.Ed.2d 251 1973 In the S rem<¢

( rt latect Fk, nth Amendment nil , } FE) er !

’ ’ n f ] ) S Sci & H H

” rT < 104 Sf 900. 79 L.Ed.2d 67 19883

The ramit t na irititr T e! ~ ny? rant |

dic | 4 eT ind I 1 if i IT] | ‘ { I t rt TT] ]

H A er th rrant imi? t nl | +} the

ner gory md wy y I ef re t | rt ti i

+1 . . ‘ ‘ le) re ; ‘ f ¢ ‘ i} nt ‘ y rit

56a

tionally uniform maritime substantive law that is su-

preme with respect to conflicting state law. E.g., Pope

& Talbot v. Hawn, 346 U.S. 406, 409-10, 74 S.Ct. 202,

204-05, 98 L.Ed. 143 (1953); Knickerbocker Ice Co. v.

Stewart, 253 U.S. 149, 160, 40 S.Ct. 438, 440, 64 L.Ed.

834 (1920).

As an example of this federal supremacy and _ uni-

formity in the maritime area, as Judge Gee correctly

observed, the Supreme Court and this Court have held

that state workers’ compensation statutes could not be

made validly to apply to injuries occurring on navigable

waters. Southern Pacific Co. U. Jense i, 244 U.S. 205,

a7 5.Ct. 524, 61 L.Ed. 1986 (1917) ; Ledoux v. Petroleum

Helicopters, 609 F.2d 824 (5th Cir.1980): Thibodeaux

Atlantic Richfield Co., 580 F.2d 841 (5th Cir.1978) ; cert.

denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274

(1979). As one commenator has pointed out, the Texas

workers compensation provision could, at most, affect the

jurisdictional Eleventh Amendment question, but not the

substantive question of the application of the Jones Act.

Thus, even assuming {arguendo] Congress did not

in the Jones Act override eleventh amendment juris-

dictional immunity, the exclusion by Texas of areas

of workers’ compensation coverage from the waiver

of immunity in the Texas Tort Claims Act might

leave the amendment applicable to limit federal ju-

risdiction, but could not prevent the applicability of

federal substantive law in state court.

Comment, Eleventh Amendment Immunity and State-

Owned Vessels, 57 Tul.L.Rev. 1523, 1545 (1983) (em-

phasis added).

aw and congressional power to legislate for maritime matters

Panama RR Co. v. Johnson, 264 U.S. 375, 386, 44 S.Ct. 391 3938, 68

L.Ed. 748 (1924); Knickerbocker Ice Co. v. Stewart. 253 U.S. 149,

10 S.Ct. 438, 64 L.Ed. 834 (1920); THE LOTTAWANNA, 21 Wall

88 US D58, 22 L.Ed. 654 (1875 D. Robertson, Admiralty and

Federalism, 145 (1970)

57a

Nor is Texas aided in any way by National Leagu

of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.

2d 245 (1976), which held that the commerce power did

not justify imposing federal minimum wage standards on

state employees. Usery reasoned that the Tenth Amend-

ment constrains the application of congressional power

against states in their sovereign capacities in such a

manner as to “directly displace the States’ freedom to

structure integral operations in areas of traditional gov-

ernmental functions.” 426 U.S. at 852, 96 S.Ct. at 2474.

Having drawn a line between traditional and non-

traditional state activities, the Usery court explicitly

}

pointed out that its decision did not impair earlier rul

ing’s, such as Pard« nm v. T rminal Ry. Co.., 377 U.S. 184,

84 8.Ct. 1207, 12 L.Ed.2d 233 (1964), approving federal

commerce regulation of non-traditional activities such

as state-owned and operated interstate! railroads. 426

U.S. at 854, n. 18, 96 S.Ct. at 2475, n. 18. Accord United

lransp. Union v. Long Island RR, 455 U.S. 678. 686.

102 S.Ct. 1849, 1354, 71 L.Ed.2d 547 (1982). A state’s

operation of ferry boats, like railroads, is also non-

traditional, having been characterized—with no pun in-

tended—by the Petty Court as “involving the launching

of a governmental corporaation into an industrial or

business field.” 359 U.S. at 280, 79 S.Ct. at 789 (em-

phasis added). Accord Brody v. North Carolina, 557 F.

Supp. 184 (E.D.N.C.1983) (“ferry system is essentially

a commercial ar1 proprietary enterprise”’).

Moreover, support for Congressional enactment of the

Jones Act is not limited to the commerce power, but also

includes the admiralty-maritime power. The power of

Congress to control and regulate use of navigable waters

frees the Jones Act from any Tenth Amendment limits

on the commerce power, because the constitutional con-

struct never reserved to the states any inviolable power

to regulate maritime matters. It was assumed at the

time of ratification that maritime law consisted of a body

of international law observed with some variations by

the various national courts. Fletcher. A Historical In-

te rpre tation of thre Bl ié nth Ame ndme nt, 35 Stan. L.

Rev. 1033, 1082 (1983).

Finally, Usery has been construed too narrowly by

later cases* for us to extend it seaward of tl

line. In any case, Usery is not applicable to the propri-

ary activity involved here. Accordingly, I am in agree-

ment with Judge Gee’s holding that when Texas em-

ploys seamen in the operation of vessels on navigable

waters it is subject to the Jones Act as substantive

matter.

aE ve) t hi Ame nd me nt and Jurisdiction

The question of whether Congress intended to abrogate

Eleventh Amendment federal jurisdictional immunity in

‘In Hode Virgir Surface M ng & R imation A n. 452

U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 198] the Court, dis

tinguisl ing [ rejected Virginia's content n that the federal

Surface Mining Control and Reclamation Act of 1977 violated th

renth Amendment’s reservation of the states’ “traditional gover

I il tunct I I regulating I i Ist Nex the. Ce rt I ld 1!

United Ty sp. U? ”n Long Island RR. 455 U.S. 678 102 S.Ct

1349, 71 L.Ed.2d 547 (1982), that Usury was not applicable t

pl $101 n the federal R wa Labor Act autl rizing a strik

gainst State ne ralll ! 4 unanin is ( rt reasoned that

peratio1 f rail is 1S 1 I g the functions tradit /

performed b tat a yovernment I ral regulation

ned railroads simply es not impair a te’s ability t

nt I Sa State 155 U.S. at 686, 102 S.< 1354 In FER

Vf 156 U.S. 742, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982

tne ( ! iphel rtain federal statutor controls on state tility

regulatory mmissions. Perhaps the most unkindest cut of all t

[ ry ein EEO vi } 7, 460 U.S. 226, 103 S.Ct. 1054

75 L.Ed.2d 18 19S in which the ({ rt held that the Age

Discrin n in En yment Act valid d to state nd

emp Pes The ( } ch Valld e Ul t head nh unde

mme} r rather than der the Fourteenth Amend

I it | ee! rgue that FEO vi ng nas completely

t el ed f j Note 14 Seton Hall »6 1984

59a

Jones Act cases has also been answered. In Parden, an

employee of a state-owned railroad operating in inter-

state commerce brought suit: in federal court, seeking

recovery from the state for personal injuries under the

Federal Employers’ Liability Act (FELA). FELA ex-

pressly authorized suit in federal court. In reversing

this Court’s holding that the state was immune, the Su-

preme Court held that Congress had both the power

and the expressed intent to make state-owned interstate

railroads subject to suit in federal court.

On the power question, the Court quoted language

from Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 196-97,

6 L.Ed. 23 (1824), to demonstrate that Congress had the

power to impose conditions upon a state’s entry into

commerce that would derogate from Eleventh Amend-

ment rights, because the sovereignty of the states is

diminished by the absolute and plenary power of Con-

gress over commerce. 377 U.S. at 190-92, 84 S.Ct. at

1211-13.

On the question of congressional intent, Parden ex-

amined the language of FELA, and declared that Con-

gress meant what it said when it made FELA applicable

to “every” common carrier by railroad in interstate com-

merce, whether state-owned or privately owned. 377 U.S.

at 187-88, 84 S.Ct. at 1210-11. Congress “conditioned the

right to operate a railroad in interstate commerce upon

amenability to suit in federal court as provided by the

Act.” Id. at 192, 84 S.Ct. at 1213. Thus, Alabama, by

operating the railroad, subjected itself to the condition

and consented to suit in federal court. In any event, Con-

gress determined that the operator of the interstate rail-

road would be deemed to have consented. Parden em-

phasized that what operated as a waiver was effective

regardless of whether state law permitted waiver. or

whether the state knew waiver would result from its ac-

tions. Jd. at 194, 84 8.Ct. at 1214.

60a

Parden is uniquely applicable to Jones Act suits, be-

cause the Jones Act expressly incorporates the rules

prescribed in FELA cases.° Because Congress in FELA

conditioned operation of a state-owned railroad on an

effectual waiver of sovereign and Eleventh Amendment

immunity, and then expressly incorporated FELA rules

into the Jones Act, Congress must have intended the

same conditions to apply in Jones Act suits arising from

the operation of vessels by a state. Several courts have

reached this conclusion. Brody v. North Carolina, 557

F.Supp. 184 (E.D.N.C.1983); In re Holoholo, 512 F.

Supp. 889, 904 (D.Hawaii 1981); Huckins v. Board of

Regents of Univ. of Michigan, 236 F.Supp. 622, 623

(E.D.Mich.1967); Cocherl v. Alaska, 246 F.Supp. 328

330 (D.Alaska 1965)

In dissenting, Judge Williams argues that the Supreme

Court has “modified Parden by holding that it is not

enough to show that the state iself is operating within a

federally regulated sphere. A plaintiff must also show

that Congress expressly provided that the private remedy

would be applicable to the states,” citing Employees of

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

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

Any seaman who shall suffer personal injury in the course of

his employment may, at his election, maintain 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 injury

to railway employees shall apply

16 U.S.C. $ 688

The extent T wi CT oe y | ) af ? ’

r re tion hese 7 nts is refle ed p t FELA

Any contract, rule, regulation, or de e wha

ie) € r inte I whicn sna t t I i! n ! !

exempt ( 1! Y D t ) [ if | el I

+ } + r+oy } ;

na XLé »¢ (

6la

coastal Transp. Ine. , Decatur County, Georgia, 482 F.2d

361 (5th Cir.1973).

This general summary of the not-entirely-consistent

post-Parden law may trim some of the broader language

in Parden, but it is entirely consistent with the holding

in Parden and its application in this case. Parden has

not been overruled by either Employees—which distin-

guished Parden and has itself since been distinguished—

nor has it been overruled by any of the dozen or so post-

Parden Eleventh Amendment opinions by the Court.°

Because of the Jones Act’s express incorporation of

FELA, Parden is directly applicable here. Moreover, the

express language requirement of Employees is satisfied

by Parden’s holding that “Congress, in making the FELA

applicable to ‘every’ common carrier . . . meant what it

said,” 377 U.S. at 187, 84 S.Ct. at 1210. If, as Judge

Williams observes, Parden is the high-water mark for

congressional abrogation of Eleventh Amendment im-

munity, Employees is a high-water mark for state im-

munity. Because neither case has been overruled—al-

though Employees has implicity been weakened—the

question is which case is closer to the one before us.

® Pennhurst State School & Hosp. v. Halderman, U.S. —

104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Florida Dept. of State

Treasure Salvors, Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d

1057 (1982) ; Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d

694 (1982); Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65

L.Ed.2d 653 (1980); Maine v. Thiboutot, 448 U.S. 1, 9 n. 7, 100

S.Ct. 2502, 2507 n. 7, 65 L.Ed.2d 555 (1980); Quern v. Jordan,

140 U.S. 332. 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Hutto v

Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978

Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 27

1977): Scheuer Rhodes, 416 U.S. 23:

90 (1974); Fitzpatrich Bitzer, 2

L.Ed.2d 614 (1976); Edelman jordan, 415 U.S. 651, 94

1347, 39 L.Ed.2d 662 (1974); Employ of Dept f f H

& Welfare Dept. of Pub. Health & Welfare, 411 |

S.Ct. 1614, 36 L.Ed.2d 251 (1973

62a

In Employees, the Court framed the issue before it as

whether Parden was applicable or distinguishable. 411

U.S. at 281, 93 S.Ct. at 1616. Finding Parden distin-

guishable in several important respects, Employees held

that the Eleventh Amendment barred a private suit under

the Fair Labor Standards Act for overtime pay brought

by employees of state mental hospitals and training

schools. Holding that Congress had the power to lift the

states’ immunity under the commerce clause, and to im-

pose heavy fiscal burdens on the states, 411 U.S. at 284,

93 S.Ct. at 1617, the Court nevertheless declared that it

would not extend Parden to cover every exercise of the

commerce power where Congress did not indicate its pur-

pose to do so “in some way by clear language.’ 411 U.S.

at 285, 287, 93 S.Ct. at 1619. Since Congress had amended

the substantive provisions of the FLSA to include state

employees, but had left the jurisdictional provision un-

changed, the Court found this clear language lacking, and

held the state immune.

The Fourth Circuit was confronted with and rejected

the argument that Employees had effectively overruled

Pard. i. Int'l Longshore men’s Assoc. Uv. North Carolina,

911 F.2d 1007 (4th Cir.1975) adopting as op., 370 F.

Supp. 33 (E.D.N.C.1974). The Court analyzed Employees

in this way:

The Court in Employees distinguished Parden on

several grounds: (1) The FLSA provided for the al-

ternate remedy of enforcement of federal statutory

rights in an action brought by the Secretary of Labor,

thereby providing a remedy for wronged employees

while avoiding a confrontation between state and

federal sovereignties, whereas in Parden there was

no alternate remedy; (2) the FLSA provided for

recovery by employees not only of the amount of

unpaid wages, but also for liquidated damages in an

equal amount of unpaid wages, but also for liquidated

damages in an equal amount and for attorneys’ fees

_

05a

whereas in Parden, the employees were seeking only

to be made whole; and the court felt that since Con-

gress had created such a remedy under the FLSA,

with punitive characteristics, it did not intend to sub-

ject the states to suit by its own citizens, and intended

instead for “the delicate federal-state relationship to

be managed through the Secretary of Labor.” Em-

ployees, supra; (3) Parden involved the operation of

an interstate railroad, a function normally run by

private business associations, whereas E’mployees in-

volved a hospital, a function traditionally operated

by state and local governments.

It does not appear to this court that Employees is

controlling authority in this case.

370 F.Supp. at 38. Thus, the Fourth Circuit held that a

state waives its Eleventh Amendment immunity to claims

under the Railway Labor Act—which Petty deemed iden-

tical to the Jones Act for immunity pur

»p. 5447—when it operates a port

though no profit is made on the operation. /d

On the distinctions drawn by Em)

FLSA and FELA the Jones Act is like FELA

FLSA. The Jones Act contains no p!

rative enforcement, but rather was spe

; . _ ‘ = «~ ¢ - oo « 4 , \7

0 provide a private cause of action. M

Act concerns the operation of vessels p

and in this case a ferry boat, which Pett

“on industrial or business field,”’ 359 U.S. at 280, 79 S.

— '

+ TRO ‘ " Tt ye t ] | i+} +} T ¢ ry Yr)? } ’ ? '

a iSo7J, aS CONULrastlt Witn ne State mental Ni Ital ae-

y) hx kK ) ‘ $6 ; . 2 +. _ ,? Lh y '

scribed DY 2mploy Ss as no proprievcary til | o

a — , _ . — . :

Q ra 4 ~ reat os . ‘ , 4 — ~ —

284, 93 S.Ct. at 1617. Certainly, the ferry boat operatio1

fie} lOrTe allallUvOoUus U ne raliroad 1in adrue) lla U

1¢ mental hospital! in BE) pli

tion of FELA into the Jones Act indicates that

‘ss considered the operation of vessels and trai

; :

ICES, ( ¢ nyvress in-

sphere of the national government—1i.e., in

64a

interstate commerce, or on navigable waters—to be analo-

gous in terms of safety to workers. Comment, 57 Tui.L.

Rev. at 1544-45.

There was yet a third distinction from Parden drawn

in Employees that supports the application of Parden,

and not Employees. Employees pointed out that the state

railroad in Parden “involved a rather isolated state ac-

tivity,’ whereas the FLSA would implicate “elevator op-

erators, janitors, charwomen, security guards, secretaries,

and the like in every office building in a State’s govern-

mental hierarehy.” 411 U.S. at 285, 93 S.Ct. at 1618.

Thus, und LSA, the federal intrusion in state affairs

would rvasive.” Jd. This pervasive effect made the

Court ery carefully at congressional intentions to

abro he Amendment to such a degree. In contrast,

the es A i ect only a handful of maritime or

am} 10 e loyees out of many thousands. Thus,

the aj ? the Jones Act, like FELA, is “isolated,”

n “pervasive.”

he difference in the reach of FLSA and FELA or

Jones Act is not merely one of degree. Employees

mphasized that Parden rested on federally imposed

waiver. 411 U.S. at 282, 93 S.Ct. at 1616. But there is

possible voluntary waiver of FLSA immunity in the

employment of secretaries, janitors, security guards, and

the like to work in the offices in a state’s governmental

hierarchy. A state has no choice but to employ such

workers. It would be paralyzed without them. In con-

trast, a state could more readily operate, govern and exist

without a state-owned railroad or ferry system. Thus, a

concept of effectual waiver is applicable to the state’s

voluntary decision to run a ferry. Therefore, this case is

fully distinguishable from Employees, and squarely con-

trolled by Pardes nr.

The Eleventh Circuit has ruled in favor of the state on

the Jones Act-Eleventh Amendment issue. In Sullivan

65a

Georyia Di pt. of Nat’! Re sOuUTCES, 724 F.2d 14738 (11th

Cir.1984), a Jones Act suit t,, an employee of the Georgia

Department of Natural Resources who was a member of

the crew of a research vessel operating on the coastal

waters of Georgia was held barred by the Eleventh Amend-

ment. However, in its quest for the “clear statement” by

Congress that Employees and Intracoastal required, the

Sullivan court either overlooked or ignored the express

incorporation of FELA into the Jones Act and also

Parden’s finding of “clear language” in FELA’s applica-

tion to “every” common carrier. Moreover, the Jones Act

in clear language grants the rights of injured railroad

employees to “Any seaman,” without drawing any dis-

tinction for state-« mployed seamen. Cf. Hutton v. Finney,

i387 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)

(“the [Civil Rights Attorney’s Fees Awards] Act could

not be broader. It applies to ‘any’ action brought to en-

force certain civil rights laws.”) Thus, the result the

Sullivan court reluctantly reached through application of

the “clear expression” requirement was flawed.

Moreover, the Sullivan court expressed dissatisfaction

with its own application of Parden and Employees, stat-

ing that it was nevertheless bound—as are we—by our

decisions in /ntracoastal Trai Sp., Inc. v. Decatur County,

Georgia, 482 F.2d 361 (5th Cir.1973) and Freimanis v.

Sea-Land Service, Inc., 654 F.2d 1155, 1158 (5th Cir.

1981). In J/ntracoastal we held that Employees had added

a “clear statement” requirement to the Parden holding

that entry by a state into a federaily regulated sphere of

actvity subjected it to federal suit. In Freimanis, we

merely held that the many Supreme Court decisions be-

ween 1973 and 1981 had not undermined /ntracoastal.

However we do nol read Intracoasta or Fre Imanis to

require the upholding of Eleventh Amendment jurisdic-

tional immunity in Jones Act suits.

Intracoastal and Freimanis did not involve the Jones

Y

Act. but rather the “Bridge Act of 1906,” 33 U.S.C. § 491

66a

et seq., Which establishes standards for bridges over navi-

gable waters and the Rivers and Harbors Appropriations

Act of 1899, 33 U.S.C. $ 409. See also Karpovs v. Missis-

sipp, 663 F.2d 640 (5th Cir.1981 1. Intracoastal did not

hold Parden to have been overruled, but instead carefully

pointed out the distinctions between Employees and Par-

den discussed above. The Bridge Act was controlled by

Employees and not Parden because, among other things,

like the FLSA, it was penal in nature, vested enforce-

ment in the Attorney General and was not intended as

the Jones Act to confer a private right of action on the

seaman.

The most blaring distinction between J/ntracoastal

Freimanis and this case is that those cases held there was

no substantive private cause of action created under the

Bridge Acts, 482 F.2d at 367; 654 F.2d at 1160. The

Jones Act, to the contrary, expressly creates a private

cause of action and was purposefully enacted to assure

that result. Thus, Jntracoastal and Freimanis are dis-

tinguishable on the substantive question and did not

reach the jurisdictional question. Assuming that Jntra-

coastal’s “clear statement’? requirement for deciding the

substantive question also applies to the jurisdictional

question, that requirement is satisfied by the Jones Act.

In Freimanis, the Court stated “We need not here

canvass in the abstract the difficult issue of just how ex-

press Congress must be before abrogation of eleventh

amendment immunities is to be found.” 654 F.2d at

1159. It had already been decided in /ntracoastal that

Congress had not abrogated Eleventh Amendment im-

munity in the Bridge Acts.

The degree of clarity of expression the Supreme Court

requires in a congressional enactment in order to find

Eleventh Amendment immunity to be abrogated has

varied. Although the cases are not entirely reconcilable.

it appears that several factors have influenced the degree

of scrutiny of the congressional language in accordance

with “the principles of federalism that inform the Elev-

enth Amendment doctrine.”’ Pennhurst State School «&

Hosmital v. Halderman, — U.S. ——, 104 3.Ct. 900,

908, 79 L.Ed.2d 67 (1984), quoting Hutto v. Finney, 437

U.S. 678. 691, 98 S.Ct. 2565, 2578, 57 L.Ed.2d 522

(1978). The degree of federal intrusion into the work-

ings of state governments that would result from finding

abrogation of immunity is an important factor, as in any

problem of federalism. The contrast and the extent of

potential impact between FELA and FLSA was high-

lighted above. This contrast brought the Court to differ-

ent results in Employees and Parden. Likewise, the Court

has held that in section 1983 suits, which now number

like leaves on the trees, that immunity is not abrogated.

Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d

358 (1979). Yet in Hutton v. Finney, 437 U.S. 678, 98

S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Court found in

language no more specific than the Jones Act, an abroga-

tion of Eleventh Amendment immunity in the Civil

Rights Attorneys’ Fees Awards Act, 42 U.S.C. § 1988.

The Hutto Court disinguished Employees, stating that

the purpose of the Employees clear expression require-

ment was to insure that “Congress has not imposed

‘enormous fiscal burdens on the States’ without careful

thought.””’ 437 U.S. at 697 n. 27, 98 S.Ct. at 2577 n. 27.

Thus, under the Jones Act, which covers a relatively

small group of state employees, and which invokes the

supremacy and national uniformity of federal statutory

maitime law, the purpose of Employees would not be

served by a rigorous application of the clear statement

rule.

The Jones Act applies to Texas and its state-operated

vessels. Ordained by the national government under its

preeminent congressional admiralty-maritime powers, the

application of the Jones Act is as free from the restraints

of the Eleventh Amendment as is FELA’s regulation of

state-operated interstate railroads.

Petty and Parden are still controlling. They should

control here.

68a

JERRE S. WILLIAMS, Circuit Judge. dissenting:

The majority opinion finds an express waiver of im-

munity by the State of Texas under the Texas Tort

Claims Act and the Texas Workers’ Compensation Act as

they apply to an injured maritime employee of the State

of Texas. To reach this result the opinion engages in a

strained and unjustified interpretation of the statutes.

I, therefore, must dissent from the conclusion that the

State of Texas has waived its sovereign immunity in this

Case.

Briefly, the argument is that in waiving sovereign im-

munity under the Texas Tort Claims Act, the state defines

such a waiver as to state agencies carrying workers’

compensation in the words of Section 19 of the Tort

Claims Act that the governmental unit is entitled to the

“privileges and immunities” granted by the Compensa-

tion Act. Then, the opinion concludes that since the

Texas Workers’ Compensation Act cannot protect private

maritime employers from employees suing under the

Jones Act, Pope & Talbot, Inc. v. Hawn, 346 U.S. 406,

74 8.Ct. 202, 98 L.Ed. 148 (1953), the giving of the

“privileges and immunities” of the Workers’ Compensa-

tion Act to the state government units also takes away

the sovereign immunities of the state government units

from being sued by the government employees under the

federal statute.

It is a peculiar interpretation, and to me an obvious

thwarting of legislative policy, to find that granting

“privileges and immunities” to a state governmental unit

also includes placing upon the state units what must be

called exceptions, disabilities and obligations of the Com-

pensation Act. To see in this an express and intentional

waiver of sovereign immunity by the State of Texas is

a tortured interpretation contrary to any common under-

standing of the words.

The obvious purpose of Section 19 of the Texas Tort

Claims Act is to vive to the governmental unit as much

69a

protection from lawsuits by injured workers as the State

of Texas gives private corporations. It is obviously not

intended to go on and say that the governmental unit

is subjected to additional federally imposed obligations as

are private corporations. If that is what the Legislature

had had in mind, it could very easily have said so. How a

state grant of “privileges and immunities” to a state gov-

ernmental unit can constitute an express waiver by the

state of the important principle of sovereign immunity is

simply beyond my comprehension. It is not the state that

grants the Jones Act suit to injured maritime workers of

private employers; it is federal law which controls. But

if the maritime employee is a state employee, the state

must grant the right through a waiver of sovereign im-

munity if there can be suit against the state under the

Jones Act.

It is also of critical importance to realize that the issue

of whether the state has enacted an express waiver of

sovereign immunity is a matter of the interpretation of

state law. If the state has spoken in interpreting its law,

it is not within the authority of this Court to reinterpret

that law. We have the authoritative state interpretation

of these very provisions. In Lyons v. Texas A & M Uni-

versity, 545 S.W.2d 56 (Tex.Civ.App.1976), the precise

issue of the case before us was decided by the Texas

Court. That case involved the injury of a seaman on a

vessel owned and operated by Texas A & M University,

a governmental unit of Texas. Again, the Texas Work-

ers’ Compensation Act had been adopted by the University

and was applicable to the injury. Lyons, however, brought

suit to recover damages for unseaworthiness, maintenance

and cure, and negligence under the Jones Act. The Texas

Court of Civil Appeals in an opinion by Justice Cire held

that the state district court had been correct in dismissing

the claim, finding the Texas Workers’ Compensation rem-

edy the exclusive remedy under the Texas Tort Claims

Act and the applicable Texas Workers’ Compensation

70a

Statute. The Court held that Section 19 of the Texas

Tort Claims Act gave the University “all the privileges

and immunities granted” by the Workers’ Compensation

laws and made its remedy exclusive. The Supreme Court

of Texas denied review, finding no reversible error. Tex.

Writs of Error Table, 134 (1982).

We are bound by this interpretation of the Texas law

by the Texas Court of Civil Appeals with writ of error

refused. The state has interpreted these statutes as not

constituting a waiver of sovereign immunity. It is sig-

nificant to note that Justice Cire, who with his colleagues

established this interpretation of the Texas laws as a

member of the Texas Court of Civil Appeals, is now

United States District Judge Cire who rendered decision

in the case which is before us. In his decision he prop-

erly gave the same interpretation. It surely strengthens

the application of the state law for the district judge

who applied it to have been the judge who created the

authoritative state interpretation when he was a Justice

of the state court. Judge Cire knew what the law of the

State of Texas was with respect to express waiver. We

have no authority to overrule him.

As a matter of analysis I cannot accept a magic that

creates disabilities and obligations out of a grant of

“privileges and immunities”. But even if I am wrong in

that respect, the issue is one of state law, we have the

authoritative state interpretation, and the majority opin-

ion does not follow it. Need more be said? There is no

express waiver.

Since I take the position there is no express waiver, I

must face the additional issue of whether there is an

implied waiver by the State of Texas. Here I also think

it is clear that there is not. Parden v. Terminal R.R. Co..,

377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), con-

stitutes the high water mark of the Supreme Court find-

ing a forced implied state waiver of sovereign immunity

in Federal Employers’ Liability Act and Jones Act

me ely D pe } ( | fects ra

regulated busin ne \ ee - erelg?! rY

munity

The Supreme ( YT i nar ec r TYO? r

treme holding fu mplications have ced

Thus in Employers of the Dept. of Pul Health & Wi

286, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973), the

Supreme Court modified Parden by holding that it is

‘

not enough to show that the state itself operating

within a federally regulated sphere. A _ plaintiff mus

al = x ' i —— l that #¢]

also show iat Congress expressly provided tha he

. } , . 1 +

private remedy would he applicable to the states

Relying upon Employers, we held in Intracoastal

Transportation, Inc. v. Decatur County, Georgia, 482

F.2d 361 (5th Cir.1973), that the state had not im-

pliedly waived its immunity against claims brought un-

der the Bridge Act of 1906 simply bj operating in a fed-

eral regulated sphere. “‘|T|he private litigant must show

that Congress expressiy provided that the private rem-

edy is applicable to the states.” Jd. at 365. There is ne

such express provision in the Jones Act. And in Frei-

manis v. Sea-Land Service, Inc., 654 F.2d 1155, 1160

(5th Cir.1981), we extended our decision in /ntracoasta

to find no implied waiver of sovereign immunity when

the cause of action was brought under the River and

Harbors Appropriation Act of 1899, 33 U.S.C. § 401.

But the Supreme Court has now gone even further

in protecting the states in their own governmental ac-

tivities from the regulatory intrusion by the United

States. In 1974, Congress broadened the coverage of the

Fair Labor Standards Act, 29 U.S.C. § 201, et seq., spe-

cifically to include “public agencies”, including “the gov-

ernment of a state o1 political subdivision thereof.’ 29

1: + *

|

U.S.C. § 203(d) ix). This opened the states to liability

isa

]

inde?) he | | SA its own governmental emp ct ‘ I

eniorceme! of the law by the United States Govern-

ment and also by private suits brought by the employees.

‘ s . .

The Supreme Court had earlier upheld a much nar-

‘ower extension of the Fair Labor Standards Act ap-

plying it to “state hospitals, institutions and schools.”

Varyland v. Wirtz, 392 U.S. 1838, 88 S.Ct. 2017, 20 L

Ed.2d 1020 (1968). But after carefully considering the

serious intrusion upon the ability of a state to carry out

its own governmental activities when the federal govern-

ment dictates state employment policies, the Supreme

‘ourt just eight years later specifically overruled Mary-

| The Court held unconstitutional Congress’

intrusion of the Fair Labor Standards Act into state

rovernmental activities. National Leaque of Cities

Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245

We no longer find that the “plenary power” of Con-

ulate in the delegated areas of federal regu-

lation overrides the critical importance of recognizing the

states as governmental entities in a federal system. The

tates must be left to carry out their own governmental

‘unctions in ways which they decide are best. The Court

in Usery concluded:

Congress may not exercise that power so as to force

]; nats .% at the -_ + Cc ite »} : ‘vet~ ‘ . + } ccoriy.

qaireectiy pon le StateS 1tS @cnolces as ) ow essen

tLlal decisions regarding the conduct ol ntegral go'

ernmental functions are to be made. We agree that

such assertions of power if unchecked, would indee

as Mr. Justice Douglas cautioned in his dissent in

Wirtz, allow “the National Government |to] de\

he essentials of state sovereignty,” 392 U.S. a

58 S.Ct. at 2028, .

It is not necessary at this time to decide if Congress

has the power to force the application of the Jones Act

on the various states by affording that remedy to mari-

L

73a

time employees oO! the State government 1tsell a t @)

“1 i :7 ’ . . ‘ t« 2% " : ‘ , 1) ‘

ries ou tS _ governmen al functions. | am WV iIny

assume for purposes of this decision that the tradition-

4 4 : . 4 . , ‘ . ,*

ally strong policy ol he federal rovernmen In adeallne?g

mith onawltia po would jiustif' neh : —— Sone

Wittl Itiel I 1 LITie’ ma crs WO iif PLAS LiL y SUCTI a CL iusliv .

even though the Usery case can be said to raise co! sider-

’ ‘ : : o4¢ : a : 60. nif

able doubt. But what Is ot er ical LM po) ance 158 na

before that issue arises, Congress, in spite of state sov-

ereignty considerations, must undertake specifica

, 4 ] a¢ . . 4 J — . setae

torce the States to pe subservient 0 federal revguiatllon

;+ + + + : ] " . + |

Wl h respec O heir own employees engaLlng 1n nese

governmental activities. Congress has not done this. It

cannot be said that there is an implied waiver by th

State of Texas. There is no activity by the State of

Texas which can possibly implicate a waiver. And the

silence of Congress cannot be taken as driving the state

into a waiver by implication.

La

With regard to Judge Brown’s scholarly and thorough

concurring opinion, | make only this one pertinent ob-

servation. The In. iry to Welch in this case took place

in connection with the operation of a state owned ferry

boat. This ferry boat was operated by the Texas High-

way Department as part of its highway system. It op-

erated in lieu of a bridge. This overriding fact removes

it substantially from comparison to the railread involved

in Parden v. Term mal Ry. of Alabama State Docks Di pt.,

377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964)

That case involved a terminal railroad serving docks. By

law of the State of Alabama it was specifically a ‘“com-

mon carrier” and was operating for profit. It is clear in

Parden that the State had moved out of its governmental!

functions into commercial and proprietary activity in

the operation of the railroad. In contrast, in this case,

the State of Texas was operating the ferry as part of a

well recognized thoroughly governmental non-profit func-

tion—the building and maintaining of an effective high-

way system for its citizens. In spite of the weakening

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MEMORANDUM AND ORDER

( (aT ne STATE 7 T' int 2 i) Ne

] )

H yf nd I ‘ ( P) ! } I | ! f (

] tact |} 1 al’ { ( Oni? } nis

State of Texas and its Department of Highwa' 3s and

Public Transportation are DISMISSED with prejudic

Plaintiff brought this suit in admiralty against the

State of Texas and its State Department of Highways

and Public Transportation ‘DHPT) pursuant to the

lones \ tf | SS. HSS iT it 1? WO pry il¢

companies pursu nt to common iw negligence and stri

‘ ? , sy ? |

mpia ) r } r ) + oe

sa cei hninetl? ollie. — .

liability. Plaintiff alleges in he

COTTIT

rT . +} 44 4

{PT o} ne state wnen

employed as a seaman by the DI

x P > h*4 | ] ; . pee P +] |

ne Was Crusnead veLweel ad IMNOovDIit Crane and ne dock

where she was standing in the course and scone of her

empioyment as a marine technician on or about March 4

198]

The State and the DHPT have filed a motion to dis-

miss for want of subject matter jurisdiction claiming

:

the protections of the eleventh amendment and the doc-

rines of sovereign immunity and governmental immunity

in tort. Plaintiff responded to this motion by arguing

that the Defendants waived these defenses to suit by

operating a ferry service in commerce over navigable

waters, which is within a federally regulated sphere of

ivity. The State and the DHPT contend, however.

lat they have neither expressly nor impliedly consented

to suit and, further, that the exclusive remedy provision

_ the workers’ compensation statute precludes suit un-

der the Jones Act.

not be sued in federal courts by citizens of another

state or citizens or subjects of a foreign state. U.S.

CONST. amend. XI. This protection from suit has been

construed to preclude as well a suit against a state by

a citizen of that state. Great Northern Life Ins. Co. v.

Read, 332 U.S. 47, 64 S. Ct. 873 (1944): Hans v. Lou-

stana, 134 U.S. 1 (1890). The eleventh amendment im-

munity also clearly encompasses suits in admiralty. Ex

Parte State of New York, 256 U.S. 490 (1920): Mifsud

v. Palisades Geophysical Institute, Inc., 484 F. Supp. 159

S.D. Tex. 1980)

The [Fifth Circuit addressed the status of eleventh

amendment immunity most recently in Karpvos v. Mis-

sissippt, 663 F.2d 640 (5th Cir. 1981) and explained

several principles that the Court finds directly relevant

a

to this action:

As| a general matter suits against the state for

prospective injunctive relief are permitted in limited

circumstances, Ew parte Young, 209 U.S. 123. 28

iid

Ss. Ct. 441, 52 L. Ed. 714 (1908), but suits against

the state treasury are absolutely barred. Edelman v.

Jordan |415 U.S. 651, 94 S. Ct. 1347 (1974)

he

This| immunity extends beyond the state and en-

compasses state agencies, officials and employees

‘when the action is in essence one for the recovery

of money from the state... .” Ford Motor Co. v.

Department of Treasury, 323 U.S. 459, 464, 65 S.

Ct. 347, 350, 89 L. Ed. 389 (1945). In such cases,

“the state is the real, substantial party in interest

and is entitled to invoke its sovereign immunit:

from suit even though individual officials are nomi-

nal defendants.” J/d.; Kennecott Copper Corp. v.

State Tax Comm’n, 327 U.S. 578. 66 S. Ct. 745, 90

L. Ed. 862 (1946). [Finally], the eleventh amend-

ment applies unless a federally created right is at

issue, or a state has either consented to suit in fed-

. 734°? . } ; , 34 ] +] .

eral court or has waived its eleventh amendment

shield. Parde iL ' T rm al Railroad Co.. 377 U.S.

184, 848. Ct. 1207, 12 L. Ed.2d 233 (1964).

Id. at 643-44 (footnote omitted:!. Because Plain‘iff seeks

a monetary recovery that would be paid from the state

treasury, Karpovs definitively precludes Plaintiff’s argu-

ment that even if the State were entitled to assert elev-

enth amendment immunity, the DHPT would not be

similarly protected.

Planitiff’s opposition to this motion to dismiss relies

heavily on the Supreme Court’s Parden decision. In

Parden, the Supreme Court found that a state could

Waive its eleventh amendment immunity by merely op-

erating within a federally regulated sphere. Although

the federally regulated sphere in Parden was interstate

railroads, lower courts later used the Parden reasoning

to find that a state waived its immunity to the Jones Act

by operating within the federally regulated maritime

sphere. Rivet v. East Point Marine Corp., 325 F. Supp.

1265, 1267 (S.D. Ala. 1971), ovr'd, Benniefield v. Valley

Barge Lines, 472 F. Supp. 314, 317 (S.D. Ala. 1979

Huckins i. Board oft Reg } is of thre T) mrersi Miel ji ).

gan, 263 F. Supp. 622, 623 (E.D. Mich. 1967); Cochrel

v. Alaska, 246 F. Supp. 328, 330 (D. Alaska 1965

Subsequent to these decisions, however, the Supreme

Court decided Employees of the Department of Public

Health & Welfare v. Department of Public Health &:

Welfare, 411 U.S. 279, 98 S. Ct. 1614 (1973). In Em-

ployees, the Court refused to extend Parden to cover

every piece of legislation passed by Congress pursuant

to its commerce power. Rather, Employees added an

additional requirement to the Parden test for determin-

ing whether a state has implicitly waived its eleventh

amendment immunity by operating within a federally

regulated sphere: the private litigant must show that

Congress expressly provided that the private remedy

would be applicable to the States. 411 U.S. at 286, 93

». Ct. at 1619.

Later that same year, the Fifth Circuit applied this

new test to a suit brought under the Bridge Act of 1906,

33 U.S.C. $491, and found that eleventh amendment

immunity afforded the state ageney being sued a com-

plete def fense. IJntracoastal Transportation, Ine. v. De-

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

This reasoning was followed by the Fifth Circuit in 1981]

when it reaffirmed its interpretation of the Bridge Act

of 1906 and extended its decision to find no implicit

waiver of sovereign immunity when the cause of action

was alternatively brought pursuant to the es and

Harbors Appropriation Act of 1899, 33 U.S.C. § 401.

Freimanis v. Sea-Land Service, Inc., 6: 54 F.2d 1 a6 1160

ith Cir. 1981). The Fifth Circuit’s decision in Karpovs,

supra, was another reaffirmation that these two pieces

of federal legislation did not implicitly waive the states’

eleventh amendment immunity.

Freimanis relied to a great extent on the Supreme

Court’s latest pronouncement on whether a state can

79a

implicitly waive its eleventh amendment immunity. In

Quern v. Jordan, 440 U.S. 332, 345, 99 S. Ct. 1139, 1147

(1979), the Court held that the Civil Rights Act of 1871,

12 U.S.C. $1983, did not abrogate the eleventh amend-

ment immunity of the states. While distinguishing other

cases where this immunity was held to be waived, Fitz-

patrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666 (1976)

(Title VII of the Civil Rights Act of 1964, 42 U.S.C.

s 2000e) and Hutton v. Finney, 437 U.S. 678, 98 S. Ct.

2482 (1978) (Civil Rights Attorneys’ Fees Award Act

of 1976, 42 U.S.C. § 1988), the Supreme Court noted that

section 1983 neither explicitly swept away the states’

eleventh amendment immunity nor had a history that

focused directly on the ques ion of state liability and

demonstrated a clear Congressional decision to abrogate

that immunity. 440 U.S. at 345, 99 S. Ct. at 1147.

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 legislative history of this stat-

ute that Congress had a specific intent to allow private

parties to bring suit against a state. The Court therefore

finds that neither the State nor the DHPT have implicitly

waived their eleventh immunity by operating within a

sphere arguably covered by the Jones Act.

Plaintiff argues alternatively that the State has ex-

pressly consented to be sued and has thus waived its

eleventh amendment protection. The Texas Torts Claims

Act allows suit against the State for personal injuries

proximately caused by the negligence of any officer or

employee acting within the scope of employment if the

injury arose from “the operation or use of a motor driven

vehicle and motor driven equipment.” TEX. REV. CIV.

STAT. ANN. art. 6252-19 $3 (Vernon Supp. 1980-81).

Section 4 of the Texas Torts Claims Act specifically

waives the State’s immunity from suit to the extent of

the “liability created by Section 3” and grants permission

0a

to all claimants to sue the State of Texas for “all claims

arising’ under the Act. TEX. REV. CIV. STAT. ANN.

art. 6252-19 £ 4 (Vernon 1970).

The State of Texas then attempts to limit this waiver

of immunity in section 19 of the Act, which provides that

a governmental unit carrying worker’s compensation is

entitled to the privileges and immunities granted by the

Workers’ Compensation Act. The DHPT carries worker’s

compensation insurance, under a statute specifically pro-

viding for such. TEX. REV. CIV. STAT. ANN. art.

6674s (Vernon 1977). Section 3 of this statute limits

employees to this exclusive remedy for injuries sus-

tained while working within the course of their employ-

ment.

Plaintiff argues that the exclusive remedy provision in

the workers’ compensation statute cannot preclude her

recovery under the Jones Act and bases this argument

on Roberts v. City of Plantation, 558 F.2d 750 (5th Cir.

1977). In Roberts, the Fifth Circuit held that if the

plaintiff could prove himself entitled to Jones Act re-

covery, the exclusive remedy provisions of Florida’s

workers’ compensation statutes could not oust the federal

court of its jurisdiction. Similarly, the Fifth Circuit held

in Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th

Cir. 1978), cert. denied, 442 U.S. 909, 99 S. Ct. 2820

(1979), that the Louisiana state providing that workers’

cor pensation would be the exclusive remedy for an in-

ju. -d oil field maintenance and construction worker could

not result in a dismissal of a Jones Act suit. See also

Ledoux ». Petroleum Helicopters, Inc., 609 F.2d 824 (5th

Cir. 1980).

In neither Roberts nor Thibodaux, however, could the

defendants assert an eleventh amendment immunity de-

fense. These cases are therefore clearly distinguishable

from the present action. A state is entitled to eleventh

amendment immunity from the Jones Act and thus may

be sued only with its consent, unlike a private defendant.

Sla

Although Texas chose to waive its immunity through the

Texas Torts Claim Act, it expressly limited that waiver

when workers’ compensation coverage is provided.

The Court therefore finds that the exclusive remedy

provision in the workers’ compensation statute for em-

ployees of the DHPT also precludes Plaintiff’s Jones Act

suit against her employer and the State of Texas. See

Mifsud /’ Palisade Ss Geophysical Institute, Ine.. 484 F.

Supp. 159 (S.D. Tex. 1980); Lyons v. Teras A&M Uni-

versity, 545 S.W.2d 56 (Tex. Civ. App.—Houston [14th

Dist.| 1976, writ ref’d n.r.e).

In conclusion, the State and DHPT are protected from

Plaintiff's Jones Act claim against them in this Court by

operation of eleventh amendment immunity. The Court

therefore finds it unnecessary to address Defendant’s

alternative theories under the separate doctrines of sov-

ereign immunity and governmental immunity in tort.

The motion to dismiss of Defendants the State of

Texas and the Texas Department of Highways and Public

Transportation is hereby GRANTED.

SIGNED and ENTERED this lst day of March 1982.

s George E. Cire

GEORGE FE. CIRE

United States District Judge