Amicus Curiae Brief — Port Authority Trans-Hudson Corp. v. Feeney

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soar No. 89-386

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

PORT AUTHORITY TRANS-HUDSON CORPORATION,

en Petitioner,

PATRICK FEENEY,

Respondent.

PORT AUTHORITY TRANS-HUDSON CORPORATION,

a Petitioner,

CHARLES T. FOSTER,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

—

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF

OF AMICI CURIAE IN SUPPORT OF RESPONDENTS

LAWRENCE MENTZ

Counsel for Amici Curiae

AMERICAN AIRLINES, INC.

COMPAGNIE NATIONALE AIR FRANCE

DEUTSCHE LUFTHANSA A.G.

FINNAIR Oy

IBERIA, LINEAS AEREAS DE

ESPANA S.A.

JAPAN AIR LINES Co., LTD.

KONINKLUKE LUCHTVAART

MAATSCHAPPI, N.V.-

KLM ROYAL DUTCH AIRLINES

SWISS AIR TRANSPORT Co., LTD.

30 Rockefeller Plaza

Suite 4340

New York, New York 10112

(212) 581-7575

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-386

PORT AUTHORITY TRANS-HUDSON CORPORATION,

Petitioner,

_—_—Vi—

PATRICK FEENEY,

Respondent.

_ ~~

PORT AUTHORITY TRANS-HUDSON CORPORATION,

Petitioner,

—Vi—

CHARLES T. FOSTER,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR TIIE SECOND CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF

AMICI CURIAE

American Aijrlines, Inc. (‘‘American’’), Compagnie

Nationale Air France (‘‘Air France’’), Deutsche Lufthansa

A.G. (‘‘Lufthansa’’), Finnair Oy (‘‘Finnair’’), Iberia, Lineas

Aereas De Espana S.A. (‘‘Iberia’’), Japan Air Lines Co., Ltd.

(“JAL"), Koninklijke Luchtvaart Maatschappij, N.V.-KLM

Roya! Dutch Airlines (“‘KLM’’) and Swiss Air Transport Co.,

Ltd. (**‘Swissair’’) respectfully move to file the attached Brief

amici cur ae in this case. The consent of counsel for Respon-

dents has been obtained. The consent of counsel for Petitioner

has been requested but was refused.

The interest of American, Air France, Lufthansa, Finnair,

Iberia, JAL, KLM and Swissair in this case stems from the fact

that each is an airline that occupies and uses facilities at airports

owned or operated by the Port Authority of New York and

New Jersey (‘Port Authority’’), Petitioner’s parent corpora-

tion, pursuant to a written contract or contracts between the

Port Authority and the respective airlines for the purpose of

engaging in air commerce of the United States. Among those

airports is John F. Kennedy International Airport (‘‘JFK’’),

formerly Idlewild Internationa! Airport and New York Interna-

tional Airport.

In jegislation enacted by the States of New York and New

Jersey, the Port Authority consented to suit against it by sched-

uled airlines upon any written contract for the use or occupancy

of space, premises or facilities at New York International Air-

port, now JFK. The language of the statutory consent to suit is

substantially similar to the language presented to the Court for

review in this case. Compare N.Y. UNCONSOL. LAws §§ 7101-

12 (McKinney 1979) and N.J. STAT. ANN. §§ 32:1-159 to 32:1-

168 (West 1983) with N.Y. UNCONSOL. Laws §§ 7131-36

(McKinney 1979) and N.J. STAT. ANN. §§ 32:1-169 to 32:1-174

(West 1983). Each amicus curiae is interested in the proper

interpretation of the substantially similar statutory consent to

suit language applicable to written contracts between scheduled

airlines and the Port Authority for the occupancy or use of

space and facilities at JFK International Airport.

Moreover, it is the position of amici that the differences

between the language in the consent to suit under review in this

case and language in the consent to suit referring specifically to

written contracts with the Port Authority are relevant to the

proper interpretation of the statutory consent to suit under

review and the disposition of this case. Neither the Petitioner

nor Respondents have adequately addressed those differences

and their relevance to the issues presently before the Court.

The interest and position of the amici curiae are set forth

more fully in their Brief attached to this motion.

/s/ LAWRENCE MENTZ

Lawrence Mentz

Counsel for Amici Curiae

American Airlines, Inc.

Compagnie Nationale Air France

Deutsche Lufthansa A.G.

Finnair Oy

Iberia, Lineas Aereas

De Espana S.A.

Japan Air Lines Co., Ltd.

Koninklijke Luchtvaart

Maatschappij, N.V.-KLM

Royal Dutch Airlines

Swiss Air Transport Co. Lid.

30 Rockefeller Plaza

Suite 4340

New York, New York 10112

(212) 581-7575

Dated: January 16, 1990

TABLE OF CONTENTS

PAGE

TAREE OF ALTHO CEB s ccc ccc ccccsccccesccccs iil

BRIEF OF AMICI CURIAE IN SUPPORT OF

Pe SIPPU EE ccc vcccscocencenesesescncenseset ]

THE INTEREST OF AMICI CURIAE.............4.. 2

f \: __, SPP PPPPPPTTTITITT TTT TT TTT Terri Tee 4

SUMMARY OF ARGUMENT .................0008: 4

PEFR oe ccccccvesccccscesececcceoscoeceeses 5

l. THE LANGUAGE OF THE STATUTORY

CONSENT TO SUIT MANIFESTS AN

UNAMBIGUOUS INTENT TO SUBJECT

THE PORT AUTHORITY TO SUIT IN SPEC-

IFIED FEDERAL COURTS ................ 5

A. The Statutory Consent to Suit Expressly

Permits Suits Against the Port Authority in

CRD FU GED cv ccccectosecsness 7

B. The Text of the Statutory Consent to Suit

Gives Rise to the Overwhelming Implication

that Suits in Certain Federal Courts Were

SE 6645 oo kendbeensneuntadseiene 9

Il. ANALYSIS OF OTHER STATUTES CON-

SENTING TO SUITS AGAINST THE PORT

AUTHORITY COMPELS THE CONCLU-

SION THAT IT AGREED TO BE SUBJECT

TO SUIT IN CERTAIN FEDERAL COURTS 1]

Ill. THE PORT AUTHORITY HAS PREVI-

OUSLY ADMITTED IT CONSIDERED

ELEVENTH AMENDMENT IMMUNITY TO

HAVE BEEN WAIVED IF THE CONDI-

TIONS OF THE STATUTORY CONSENT TO

DUES WE DAAC ORO EME s ccc ccccccccccccces

SPDR oe cencesceccccscccrccescecucesesees

PAGE

ill

TABLE OF AUTHORITIES

Cases: PAGE

Atascadero State Hospital v. Scanion, 473 U.S. 234

Gs oat Perens eae he eee Ce eae 5.6

British Airways Board v. Port Authority, §§8 F.2d 7§ (2d

8 EE ne ere ea Fe Ao ean 3

Dellmuth v. Muth, _. U.S. ____., 109 S. Ct. 2397

PPP PrrrTT Try rT rrrerirrr Tire y Tree. re l2n.

Florida Department of Health and Rehabilitative Ser-

vices v. Florida Nursing Home Assn., 450 U.S. 147

Pt jguddhindasnheacdsndésassandeueabhendens 6

Global International Airways Corp. v. Port Authority,

ge Foe SO eee ere 3

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

Dts dia i Sande knseheenadtesadeeretinwened 6

Leadbeater v. Port Authority Trans-Hudson Corp., 873

a lg STS Oe i oe 9, 10

Pennhurst State School & Hospital v. Halderman, 465

i ae oat oe re ce aie ee ee 6, 8

Pennsylvania v. Union Gas Co.., lh eens Se ee

Gs Bs 66n00sscussceseedtecoeseual 6, 7,9, 11, 12

Petty v. Tennessee-Missouri Bridge Commission, 359

Sls Ge eh cnnescdpeseetceendedéshiescedanes 1]

Port Authority Police Benevolent Association v. Port

Authority of New York, 819 F.2d 413 (3d Cir. 1987),

cert. denied, ___ U.S. ___, 109 S. Ct. 344 (1987) . 1]

Rao v. Port of New York Authority, 122 F. Supp. 595

(E.D.N.Y. 1954), aff'd, 222 F.2d 362 (2d Cir. 1955) .16, 17

PAGE

Trippe v. Port of New York Authority, 14 N.Y. 2d 119,

249 N.Y.S. 2d 409, 198 N.E. 2d 585 (1964) ....8, 9, 10, 14

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480

Dt ienbwwtadeiednh dnd deeded aneseehdées ane ockec 3, lin

Constitutional Provisions, Treaties,

Statutes and Regulations:

ee EE ots ot ecavenddeedsncuawos passim

CR Be OO Me ee 16n.

Act of Jume 25, 1948, ch. 646, 62 Stat. 935 (current ver-

Se ee se ebb edevs cdc vcdiccdcesone 14

Airport and Airway Improvement Act of 1982, 49

U.S.C.A. §§ 2201-27 (Supp. 1989)

Aviation Safety and Noise Abatement Act of 1979, 49

U.S.C.A. §§ 2101-25 (Supp. 1989) ................. 3

Federal Aviation Act of 1958, §§ 101(3), 101(22), 49

U.S.C.A. §§ 1301(3), 1301(22) (1976 & Supp. 1989).. 2, 3

Foreign Sovereign Immunities Act of 1976, 28 U.S.C.A.

§ 1603 (Supp. 1989)

ee usa ekaau bums 1]

Act of April 11, 1947, ch. 802, 1947 N.Y. Laws 148]

(current version at N.Y. UNCONSOL. Laws §§ 6631-47

(McKinney 1979))

Act of April 11, 1947, ch. 802, § 8(c), 1947 N.Y. Laws

1481, 1485 (current version at N.Y. UNCONSOL. LAWS

§ 6638(c) (McKinney 1979)................... 12, 13, 15n.

Act of April 3, 1948, ch. 785, § 1, 1948 N.Y. Laws 1440,

1441 (codified at N.Y. UNCONSOL. LAWS § 6638(c)

tt i on ido epecaneepeceaseusveiads 13, 15n.

PAGE

Act of March 30, 1950, ch. 301, §§ 1, 6, 1950 N.Y. Laws

5 PPPPPTTTITITIT IT Tir TT TT 7, 11, 13, 14, 16, 17

Act of March 24, 1953, ch. 143, 1953 N.Y. Laws 152 ..14, 15

N.Y. UNCONSOL. LAws §§ 6631-47 (McKinney 1979) .. 1]

N.Y. UNCONSOL. LAWS § 6638(c) (McKinney 1979). ... 13

N.Y. UNCONSOL. LAws §§ 7101-12 (McKinney

SOUED ccdbcccccdces Seeesceccoccecences 7,8, 9, 10, 11, 16

N.Y. UNCONSOL. LAws § 7101 (McKinney

PPE once dosvovdscccocevecnaccnse-sesgese 7, 8, 9, 14, 17

N.Y. UNCONSOL. LAws § 7103 (McKinney 1979)...... 14

N.Y. UNCONSOL. LAws § 7106 (McKinney

Pee cccecceevecceucvenseveseseens 7, 8, 9, 10, 13, 15, 18

N.Y. UNCONSOL. LAws § 7107 (McKinney 1979)...... 17

N.Y. UNCONSOL. LAws §§ 7131-36 (McKinney 1979) .. 14

N.Y. UNCONSOL. LAws § 7131 (McKinney 1979)...... 14

N.Y. UNCONSOL. LAws, § 7133 (McKinney 1979) ..... 14, 15

Protocol Relating to the United States of America-

Federal Republic of Germany Air Transport

Agreement of 1955, November 1, 1978, United States-

Germany, 30 U.S.T. 7323, T.1LA.S. 9591........... 2, 3

Convention on Internationa! Civil Aviation, December 7,

1944, 61 Stat. 1180, T.1.A.S. 1591, 1S U.N.T.S. 295. 2,3

Other Authorities:

Letter from Sidney Goldstein, Port Authority General

Counsel, to Hon. George M. Shapiro, Counsel to the

Governor (March 11, 1953) (App. 16-19) ........... 14, 15

Brief for Appellee Port Authority, Rao v. Port of New

York Authority, 222 F.2d 362 (2d Cir. 1955) (App. 1-

ee a

PAGE

IN THE

Supreme Court of the United States

OCTORER TERM, 1989

No. 89-386

PORT AUTHORITY TRANS-HUDSON CORPORATION,

Petitioner,

_—V—

PATRICK FEENEY,

Respondent.

PORT AUTHORITY TRANS-HUDSON CORPORATION,

Petitioner,

—_—Vi—

CHARLES T. FOSTER,

Respondent.

ON WRIT OF CERTIORARI TO T.iE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMICI CURIAE

IN SUPPORT OF RESPONDENTS

American Aijrlines, Inc. (‘‘American’’), Compagnie

Nationale Air France (“‘Air France’’), Deutsche Lufthansa

A.G. (‘‘Lufthansa’’), Finnair Oy (‘‘Finnair’’), Iberia, Lineas

Aereas De Espana S.A. (‘‘Iberia’’), Japan Air Lines Co., Ltd.

(“JAL"’), Koninklijke Luchtvaart Maatschappij, N.V.-KLM

Royal Dutch Airlines (“‘KLM’"*) and Swiss Air Transport Co.,

Ltd. (*‘Swissair’’) respectfully submit this Brief amici curiae in

support of Respondents Patrick Feeney and Charles T. Foster

for a Writ of Certiorari to the United States Court of Appeals

for the Second Circuit with respect to its decision in Feeney v.

Port Authority Trans-Hudson Corporation, 873 F.2d 628 (2d

Cir. 1989), cert. granted, U.S. , 110 S. Ct. 320

(1989).

THE INTEREST OF AMICI CURIAE

Each of the amici curiae is an air carrier or a foreign air car-

rier as defined by Section 101(3) and Section 101(22) of the Fed-

eral Aviation Act of 1958 (“FAA Act’’), 49 U.S.C.A.

§§ 1301(3), 1301(22) (1976 & Supp. 1989), engaged in foreign,

interstate or overseas air transportation as defined by the FAA

Act. Each of the amici curiae is also an airline designated by the

respective countries of which they are a national to perform air

transport services under the applicable bilateral air services

agreement. See, e.g., Protocol Relating to the United States of

America-Federal Republic of Germany Air Transport Agree-

ment of 1955, November 1, 1978, United States-Germany, art.

2, 30 U.S.T. 7323, 7325-26, T.1.A.S. 9591. Air France, Luf-

thansa, Finnair, |beria and Swissair are each also an ‘‘agency or

instrumentality’’ of a foreign state and a ‘“‘foreign state’’ as

defined by the Foreign Sovereign Immunities Act of 1976

(““FSIA"’), 28 U.S.C.A. § 1603 (Supp. 1989).

Each amicus curiae operates scheduled airline flights to and

from the United States, including John F. Kennedy Interna-

tional Airport (“‘JFK’"’), thus engaging in air commerce of the

United States. The regime under which air commerce is con-

ducted is generally governed by multilateral international agree-

ments, e.g., Convention on International Civil Aviation,

December 7, 1944, 61 Stat. 1180, T.1.A.S. 1591, 15 U.N.T.S.

295 (‘‘Chicago Convention’’), bilateral international agree-

ments, e.g., Protocol Relating to the United States of Arerica-

Federal Republic of Germany Air Transport Agreement of

1955, November 1, 1978, United States-Germany, 30 U.S.T.

7323, T.1.A.S. 9591, and Federal law, e.g., FAA Act, 49

U.S.C.A. § 1301 et seq. (1976 & Supp. 1989).

Airports, including JFK, are obviously an essential part of air

commerce. Their activities are also governed in part by multila-

teral international agreements, e.g., the Chicago Convention,

and Federal law, e.g., the FAA Act, the Aviation Safety and

Noise Abatement Act of 1979, 49 U.S.C.A. §§ 2101-25 (Supp.

1989) and the Airport and Airway Improvement Act of 1982, 49

U.S.C.A. §§ 2201-27 (Supp. 1989). All airlines, including

scheduled airlines such as amici curiae, are extremely interested

in nondiscriminatory treatment by the owners and operators of

the airports into and out of which they fly, including JFK.

Occasionally, significant disputes arise with airport operators,

including the Port Authority of New York and New Jersey

(‘Port Authority’’), Petitioner's parent, over the proper inter-

pretation and application of Federal law securing nondiscrimi-

natory treatment for national and international airlines. See,

e.g., Global International Airways Corp. v. Port Authority,

727 F.2d 246 (2d Cir. 1984); British Airways Board v. Port

Authority, 558 F.2d 75 (2d Cir. 1977).

All airlines, and particularly amici curiae, have an interest in

seeing that any dispute with an airport operator, such as the

Port Authority, over the proper interpretation or application of

Federal law, bilateral or multilateral international agreements,

can be presented to Federal courts for interpretation rather than

to various State courts throughout the country. In addition,

those amici curiae which are foreign states as defined by the

FSIA believe they are entitled to have such disputes submitted

to Federal courts. See Verlinden B.V. v. Central Bank of Nige-

ria, 461 U.S. 480, 488-89 (1982).

The interests of amici curiae are, therefore, twofold. First,

their interest is in the proper interpretation of the Port Author-

ity statutory consent to suit at issue in this case and in the

proper interpretation of the Port Authority's separate statutory

consent to suit with respect to written contracts between amici

curiae and the Port Authority. Second, the scheduled airlines as

amici curiae here are extremely interested in ensuring that they

can avail themselves of a Federal forum in order to protect their

rights to nondiscriminatory treatment by airport operators:

rights which are secured to them by multilateral and bilateral

international agreements and Federal law.

STATEMENT

This Brief is directed to the issue of whether the statutes of

the States of New York and New Jersey have consented to suits

against the Port Authority in certain Federal courts and, thus,

effected a partial waiver of any Eleventh Amendment immunity

from suit to which the Port Authority and Petitioner, its

wholly-owned subsidiary, may have been entitled. This Brief

will not address the Port Authority's entitlement in the absence

of any waiver to Eleventh Amendment immunity, except to

State amici curiae agree with Respondents that the court below

properly decided in accordance with applicable precedent of the

Court that the Port Authority is not an agency or arm of the

States within the meaning of the Eleventh Amendment entitled

to invoke the Amendment’s immunity.

SUMMARY OF ARGUMENT

Considered in its entirety, the statutory consent to suit

enacted by the States of New York and New Jersey authorized

suits against the Port Authority in specified judicial districts

whose Federal courts are geographically situated within the

boundaries of the Port of New York. By consenting to suit in

these particular Federal courts, the statute effected a partia!

waiver of any Eleventh Amendment immunity that may other-

wise have existed. No other reasonable construction of the stat-

ute is possible without rendering meaningless or superfluous

significant portions of the statute. Moreover, the language

raises such an overwhelming implication of consent to suit in

particular Federal courts that neither the Port Authority nor the

courts construing the statute have been able to explain in any

other rational way the meaning or intent of the language

employed.

The designation of certain courts, including particular Fed-

eral courts, is in accordance with decisions of the Court permit-

ting a State to condition any consent to suit on where it may be

subject to suit.

A review of other Port Authority statutory consents to suit

enacted both before and after the statute at issue here confirms

that the text of the statutory consent in this case expressly per-

mitted suits against the Port Authority in specified Federal

courts. A subsequent statutory consent even clarifies the Port

Authority's dual citizenship in both the States of New York and

New Jersey and such a designation has no conceivable meaning

except in the context of Federal diversity jurisdiction.

Finally, shortly after enactment of the statutory consent to

suit at issue here, the Port Authority admitted in Federal court

that if the conditions attached to the consent were met, Elev-

enth Amendment immunity was waived.

ARGUMENT

POINT I

THE LANGUAGE OF THE STATUTORY CONSENT TO

SUIT MANIFESTS AN UNAMBIGUOUS INTENT TO SUB-

JECT THE PORT AUTHORITY TO SUIT IN SPECIFIED

FEDERAL COURTS

The standard set by the Court for determining whether par-

ticular statutory language emanating from Congress or a State

legislature constitutes either abrogation or waiver of a State's

Eleventh Amendment immunity is clear:

[W]e have held that a State will be deemed to have waived

its immunity “‘only where stated ‘by the most express lan-

guage or by such overwhelming implication from the text

as [will] leave no room for any other reasonable construc-

tion.’ ”’

Atascadero State Hospital v. Scanion, 473 U.S. 234, 239-40

(1985) (citations omitted). Petitioner and its supporting amici

take the position that analysis of a portion of the statutory lan-

guage under consideration, providing for ‘‘consent to suits,

actions or proceedings of any form or nature at law, in equity

or otherwise . . . against the Port of New York Authority”’,

N.Y. UNCONSOL. LAws § 7101 (McKinney 1979), reveals the

consent to fall far short of the Court's requirements to establish

waiver. Brief for Petitioner at 34-35; Brief for Amici Curiae in

Support of Petitioner at 13. Both conclude that the quoted stat-

utory language is merely a waiver of State sovereign immunity

and, standing alone, cannot serve as a waiver of Eleventh

Amendment immunity. See Pennhurst State School & Hospital

v. Halderman, 465 U.S. 89, 99 n.9 (1984); Florida Department

of Health and Rehabilitative Services v. Florida Nursing Home

Assn., 450 U.S. 147, 150 (1981); Great Northern Life Insurance

Co. v. Read, 322 U.S. 47, 54 (1944); Brief for Petitioner at 35:

Brief of Amici Curiae in Support of Petitioner at 13.

A statute should not be read as an isolated pronouncement,

however. Other portions of the same act, to the extent they con-

stitute a whole and lend meaning to the whole, must be consid-

ered simultaneously. See Pennsylvania v. Union Gas Co., ___

U.S. , 109 S. Ct. 2273, 2278 n.2 (1989) (plurality opinion).

All sections of a particular act should be read together because,

together, they constitute the law. Jd. at 2296 (Scalia, J.. concur-

ring in part and dissenting in part).

Either one of two criteria must be satisfied by a State statute

to constitute a waiver of Eleventh Amendment immunity. The

State statute must waive the immunity by “express language”’

or the statute must do so “‘by such overwhelming implication

from the text as [will] leave no room for any other construc-

tion."’ Atascadero, 473 U.S. 234, 239-40. There is no require-

ment, however, that the Eleventh Amendment be specified in

haec verba for State statutory language to constitute a wavier of

its immunity.’ See Pennsylvania v. Union Gas Co., __ US.

1 In order to satisfy the concern that abrogation by Congress.

unwanted by the States, of Eleventh Amendmeni immunity could alter

the balance of sovereignty between the Federal Government and the

States, 1 would appear the Court could require that Congress specifi-

cally mention the Eleventh Amendment in any legislauon imended to

;

at__, 109 S. Ct. at 2280 n.4 (plurality opinion); id. at 2295

n.7 (White, J., dissenting). If a State statue did mention the

Eleventh Amendment in an immunity waiver statute it would,

undoubtedly, be found an effective waiver of the Amendment’s

immunity. Jd. Similarly if a State immunity waiver statute

stated in express language its ‘‘consent to be sued in Federal

court”’ an effective Eleventh Amendment immunity waiver pre-

sumably would also be found.

Other language can also constitute a waiver, for the Court

has not endowed any particular language with talismanic signif-

icance. When viewed as a whole, which it must be, the Port

Authority statutory consent to suit language under review satis-

fies both the ‘‘express language’’ criteria and the ‘‘overwhelm-

ing implication”’ criteria.

A. The Statutory Consent to Suit Expressly Permits Suits

Against the Port Authority in Certain Federal Courts

Sections 7101 and 7106 of New York’s Unconsolidated Laws

were enacted at the same time. Act of March 30, 1950, ch. 301,

§§ 1, 6, 1950 N.Y. Laws 979, 980. At a minimum, therefore,

Sections 7101 and 7106 must be read together to determine the

extent of the consent to suit and the conditions attached to it.

Pennsylvania v. Union Gas Co.,_____ U.S. at __, 109 S. Ct.

at 2278 n.2 (plurality opinion).

The first section of the statute consenting to suit against the

Port Authority, N.Y. UNCONSOL. LAws § 7101 (McKinney

1979), is unlimited in scope, not restricted to any particular par-

ties, courts or types of relief except, with respect to penalties,

causes of action accruing before the statute’s effective date and

injunctive relief, as provided in four subsequent sections, N.Y.

abrogate the immunity it provides. It is submitted, however, that it

would be an unwarranted intrusion upon the powers of the State legis-

latures to require that any effective waiver by a State of its Eleventh

Amendment immunity specifically refer to the Amendment. Such a

requirement would appear not to be justified by a desire to avoid con-

struing a State statute as an effective waiver when a State’s intent to

consent to suits in Federal court is otherwise clear.

UNCONSOL. LAWS §§ 7102-05 (McKinney 1979), none of which

have any bearing on the question presented. See Trippe v. Port

of New York Authority, 14 N.Y. 2d 119, 124-25, 249 N.Y.S. 2d

409, 412, 198 N.E.2d 585, 587 (1964). Section 7106 conditions

the consent to suit in Section 7101 and provides in relevant part

The foregoing consent [to suit in section 7101] is granted

upon the condition that venue in any suit, action or pro-

ceeding against the port authority shall be laid within a

county or a judicial district, established by one of said

states or by the United States, and situated wholly or parti-

ally within the port of New York district. The port author-

ity shall be deemed to be a resident of each such county or

judicial district for the purpose of such suits, actions or

proceedings... .

N.Y. UNCONSOL. LAWS § 7106 (McKinney 1979).

Although expressed in terms of ‘‘venue’’, the language of

Section 7106 specifically conditions the Section 7101 consent to

suits, inter alia, to a ‘‘judicial district established by . . . the

United States, and situated wholly or partially within the port

of New York district.’’ Jd. In itself, this language is an express

statement that suits against the Port Authority in Federal judi-

cial districts have been otherwise consented to by Section 7101.

The language used in the statute in 1950 to consent to suit

against the Port Authority only in certain Federal courts is

nothing more than a precise specification as to the extent of the

consent. The language is also a precursor of the same principle

applied today in the Eleventh Amendment context. See Pen-

nhurst State School & Hospital v. Halderman, 465 U.S. 89, 99

(‘A State’s constitutional interest in immunity encompasses

not merely whether it may be sued, but where it may be sued’’).

The unlimited consent to suit in Section 7101 read together with

Section 7106 specify in ‘‘express language’’ where the consent

to suit is effective. The where specified includes Federal judicial

districts within the Port district. It must, therefore, be taken to

refer to Federal courts within those Federal judicial districts if

the language is to be given any meaning at all.

B. The Text of the Statutory Consent to Suit Gives Rise to

the Overwhelming Implication that Suits in Certain

Federal Courts Were Authorized

Conditioning the Port Authority's consent to suits to those

suits brought only in certain courts, including Federal courts,

conveys an ‘‘overwhelming implication from the text’’ that in

the absence of such a limitation the consent to suit would other-

wise have been effective as to all courts in the State, including

all Federal courts. See Pennsylvania v. Union Gas Co.,

U.S. at , 109 S. Ct. at 2278-80 (plurality opinion) (‘‘Unless

Congress intended to permit suits brought by private citizens

against the States, therefore, the highly specific language of

§ 101(20)(D) was unnecessary’’); id. at 2296 (Scalia, J., concur-

ring in part and dissenting in part) (‘‘The inclusion of States,

apparently for all purposes, within the definition of ‘person’,

reinforced by the language of the limitation that assumes State

liability equivalent to the liability of private individuals, leaves

no fair doubt that States are liable for money damages’’). Cf.

Trippe v. Port of New York Authority, 14 N.Y. 2d 119, 124-25,

249 N.Y.S. 2d 409, 412, 198 N.E. 2d 585, 587 (1964) (‘‘The

sweeping coverage of chapter 301 [§§ 7101-12] simply makes

impossible any exclusion therefrom of any particular kinds of

suits except for those specifically excluded in other parts of

chapter 301... .’’).

No other rational explanation or reasonable construction of

Sections 7101 and 7106 with its ‘‘venue’’ provision, has been or

can be presented. Neither Petitioner nor any court construing

the Port Authority consent to suit has been able to suggest a

construction which would avoid a finding by the Court that the

States of New York and New Jersey did not understand the dis-

tinction between ‘‘venue’’ and ‘‘jurisdiction.’’ See also Brief

for Amici Curiae in Support of Petitioner at 17. Petitioner at

one point even suggested the venue provision was an effort to

restrict the Federal court venues in which the Port Authority

might be sued where consent was unnecessary. That suggestion

was, as it should have been, summarily rejected. Leadbeater v.

Port Authority Trans-Hudson Corp., 873 F.2d 45, 49 (3d in

1989) (‘‘It is not apparent to us that the venue provision applies

in such cases, where consent to suit is not required’’).

Petitioner argues that the ‘‘venue’’ provision in section 7106,

insofar as it refers to ‘‘judicial districts established by . . . the

United States’’, is not an affirmative consent to ‘‘jurisdiction”’

in the Federal courts. It supplies no explanation, however, for

its meaning or its inclusion in the section or, indeed, its inclu-

sion in the entire statutory structure of Sections 7101 to 7112.

When, however, the ‘“‘sweeping coverage of chapter 301

[§§ 7101-12]’’, Trippe v. Port of New York Authority, 14

N.Y.2d at 124-25, 249 N.Y.S.2d at 412, 198 N.E.2d at 587, and

the nature of the consent to suit, Section 7101, is recognized as

‘not limited in scope, in extent or to any particular court,

whether State or Federal, the subsequent limitations on that

consent embodied in Sections 7102 through 7112 (all part of

chapter 301) are completely understandable. One of the condi-

tions to the consent is that the Port Authority shall be sued only

in specified courts, including certain Federal courts. If suit is

brought in any other court, i.e., the wrong ‘‘venue’’, then the

consent’s condition is not satisfied; the consent is, effectively,

withdrawn and deprives such a court of “‘jurisdiction.’? See

Brief for Appellee Port Authority at 7, 12, Rao v. Port of New

York Authority, 222 F.2d 362 (2d Cir. 1954). App. 8, 13.

No other reasonable construction of the statutes is possible.

The text of the Port Authority consent to suit, when read with

its accompanying conditions, gives rise to the ‘‘overwhelming

implication’ that the Port Authority consented to suits against

it in certain specified Federal courts and, consequently, waived

any Eleventh Amendment immunity to which it may have been

entitled.

2 Construing the statutory framework in this way eliminates any

alleged confusion purportedly resulting from use of ‘‘venue’’ terminol-

Ogy and permits the normal presumption that the States of New York

and New Jersey understood the difference between ‘“‘venue’’ and

**jurisdiction”’.

POINT Il

ANALYSIS OF OTHER STATUTES CONSENTING TO

SUITS AGAINST THE PORT AUTHORITY COMPELS

THE CONCLUSION THAT IT AGREED TO BE SUBJECT

TO SUIT IN CERTAIN FEDERAL COURTS

There is no question presented here’ with respect to a Con-

gressional abrogation of any Eleventh Amendment immunity

that the Port Authority may be entitled to assert. Congressional

consent to the bi-state compact creating the Port Authority

occurred in 1921. 42 Stat. 174 (1921). Unti! passage of the con-

sent statutes, the Port Authority had been totally immune from

suit. See, e.g., Port Authority Police Benevolent Association v.

Port Authority of New York, 819 F.2d 413, 418 (3d Cir. 1987),

cert. denied, U.S. , 109 S. Ct. 344 (1987). There was

no ‘‘sue and be sued’ clause in the original bi-state compact or

the Congressional consent that would raise the issue of Con-

gress’ intent with respect .o approval of the compact. See, Petty

v. Tennessee-Missouri Bridge Commission, 359 U.S. 275

(1959).

The consent to suit at issue here, Act of March 30, 1950, ch.

301, 1948 N.Y. Laws 979 (codified at N.Y. UNCONSOL. LAWS

§§ 7101-12 (McKinney 1979)), was not the first instance when

the States had consented to suit against the Port Authority.

They had previously consented to suits against the Port Author-

ity for certain specified purposes. See Act of April 11, 1947, ch.

802, 1947 N.Y. Laws 148] (current version at N.Y. UNCONSOL.

LAWS §§ 6631-47 (McKinney 1979)). That earlier statute waiv-

ing the Port Authority’s immunity was somewhat different in

scope from the one at issue here and, although nearly identical,

analysis of the differences in language and structure employed

3. Whether the Foreigr Sovereign Immunities Act of 1976 constitutes a

Congressional abrogation of any Port Authority Eleventh Amendment

Immunity if sued by an airline which qualifies as a ‘foreign state’’ is

not presented here either. Pursuant to the reasoning in Verlinden B. V.

v. Central Bank of Nigeria, 461 U.S. at 488-89, and the teachings of

the Court regarding abrogation of immunity, those airline amici curiae

which do so qualify submit that the FSIA abrogates any such immu-

nity.

is helpful and relevant. Cf. Pennsylvania v. Union Gas Co.,

amma a , 109 S. Ct. at 2279 (‘‘It is also highly signifi-

cant that. . . Congress used language virtually identical to that

it chose in waiving the Federal Government’s immunity from

suits for damages under CERCLA"). A review of the earlier

consent’s background and amendments persuasively demon-

strates that the subsequent statutory consent to suit against the

Port Authority in 1950, the one at issue here, included a consent

to suit in Federal court.*

The first consent to suit against the Port Authority became

law on April 11, 1947. See Act of April 11, 1947, ch. 802,

§ &(c), 1947 N.Y. Laws 1481, 1485 (current version at N.Y.

UNCONSOL. LAWS § 6638(c)). The consent was included in a

law passed ‘‘to facilitate the financing and effectuation of air

terminals by the Port of New York Authority and agreeing with

the State of New Jersey with respect thereto.”’ Jd , Preamble.

The consent itself was brief and confined to suits with respect to

agreements reached by the Port Authority pursuant to the

power granted by the statute.

The states of New York and New Jersey consent to suits

against the Port Authority upon such agreement by any

county, city, borough, village, township, municipality,

public agency or authority for the recovery of any moneys

agreed to be paid by the Port Authority thereunder, and

for such purpose only, and any judgment therein against

the Port Authority shall be payable only from such funds

as the Port Authority may have available for the payment

of such judgment.

Act of April 11, 1947, ch. 802, § 8(c), 1947 N.Y. Laws 1481,

1485.

4 This analysis is not contrary to the Court's holding in Delimuth v.

Muth, U.S. . 109 S. Ct. 2397, 2401 (1989), that legislative

history cannot be resorted to when construing a Congressional enact-

ment in the Eleventh Amendment context. A State statute is under

consideration here and the concerns which led to the holding in

Dellmuth are not as weighty when State legislative action is under con-

sideration. See n.1, supra. In any event, this analysis only confirms

what otherwise clearly appears from the text.

This consent to suit was amended one year later. Among

other provisions, the 1948 amendment to section 8(c) of the

1947 Act included a paragraph dealing with ‘‘venue.’’ It pro-

vided as follows:

When rules of venue are applicable, the venue of any such

suit, action or proceeding shall be laid in the county or

judicial district in which the air terminal, which is the sub-

ject matter of such agreement between the Port Authority

and the city or other municipality, or any part thereof, is

located.

Agt of April 3, 1948, ch. 785, § 1, 1948 N.Y. Laws 1440, 1441

‘(codified at N.Y. UNCONSOL. LAws § 6638(c) (McKinney

1979)).

The ‘‘venue”’ provision added by the 1948 Act to the statu-

tory consent to suit with respect to acquisition of air terminals

used language referring to a ‘‘judicial district in which the air

terminal. . . is located.’’ Jd. In the 1950 Act at issue here, the

‘venue’ language was modified in three respects from that in

the 1948 amendment. Compare N.Y. UNCONSOL. LAWS

§ 6638(c) (McKinney 1979) with N.Y. UNCONSOL. LAWS

§ 7106 (McKinney 1979). First, proper “‘venue’’ under section

7106 was made a condition to the consent to suit in section

7101. Second, the reference to “‘judicial districts’’ was clarified

by addition of the phrase “‘established . . . by the United

States.’” Third, a sentence was added deeming the Port Author-

ity “‘a resident of each such . . . judicial district for the pur-

pose of such suits, actions or proceedings.’” N.Y. UNCONSOL.

Laws § 7106 (McKinney 1979).

All of these modifications reinforce the conclusion reached

from analysis of the text itself that the States of New York and

New Jersey in the 1950 Act consented to suits against the Port

Authority in certain courts, including Federal courts within the

Port district. Unlike the limited consent to suit in the 1947 stat-

ute, which was confined to suits by cities or municipalities aris-

ing out of agreements transferring air terminals to the Port

Authority, N.Y. UNCONSOL. LAWS § 6638(c) (McKinney

1979), the 1950 statutory consent itself was all encompassing

and not restricted to any particular parties, courts, types of

action or subject matter. N.Y. UNCONSOL. Laws § 7101

(McKinney 1979); Trippe v. Port of New York Authority, 14

N.Y. 2d at 124-25, 249 N.Y.S. 2d at 412, 198 N.E.2d at 587.

The “‘venue’’ provision in the 1950 statutory consent necessar-

ily had to be, and was, recast to condition the unlimited consent

of Section 7101. The phrase ‘‘established . . . by the United

States’’ made clear that the reference to “‘judicial district”’

meant Federal judicial districts. Finally, the addition of the sen-

tence establishing the residence of the Port Authority for

““venue’’ purposes comported with recent changes in the Fed-

eral general venue statute basing venue on the ‘‘residence’’ of a

defendant.’ See Act of June 25, 1948, ch. 646, 62 Stat. 935 (cur-

rent version at 28 U.S.C. § 1391).

A further comparison of the 1950 statutory consent to suit

with the 1953 statutory consent to suit against the Port Author-

ity, Act of March 24, 1953, ch. 143, 1953 N.Y. Laws 152 (codi-

fied at N.Y. UNCONSOL. LAws §§ 7131-36 (McKinney 1979)),

also reinforces the conclusion that the consent to suit at issue

here encompassed a consent to suit in Federal court. Compare

N.Y. UNCONSOL. Laws §§ 7101, 7106 (McKinney 1979) with

N.Y. UNCONSOL. Laws §§ 7131, 7133 (McKinney 1979). The

1953 consent to suit was specifically proposed by the Port

Authority in accordance with an understanding reached

between the Port Authority and scheduled airlines, including

one of the amici, operating at Idlewild (now JFK and formerly

New York) International Airport.* See Letter from Sidney

Goldstein, Port Authority General Counsel, to Hon. George

S$ The unlimited consem, the conclusive reference to Federal courts

and delineation of ‘‘residence’’ clearly anticipated diversity jurisdiction

im certain Federal courts because with the 1980 Act the Port Authority

would be subject to suits by citizens of States other than New York and

New Jersey and by aliens. The 1947 consent to suit, as amended, only

applied to cities or municipalities of those two States.

6 This specific consem may have been necessary to avoid the effect of

Section 7103 of the 1950 Act barring suits on contracts entered into

before the effective date of the consent. See N.Y. UNCONSOL. Laws

§ 7103 (McKinney 1979).

M. Shapiro, Counsel to the Governor (March 11, 1953) (This

law “‘would implement the memorandum of agreement exe-

cuted in 1945 by the Airlines and the Port Authority, through

the persona! efforts of Governor Dewey, to make the definitive

leases for use of New York International Airport by the Airlines

enforceable in the courts’’). App. 16.’

The venue section of the 1953 statute is almost identical to the

venue section in the 1950 consent statute." Compare N.Y.

UNCONSOL. LAws § 7133 (McKinney 1979) with N.Y. UNCON.

SOL. LAws § 7106 (McKinney 1979). The 1953 “‘venue”’ provi-

sion differs from the 1950 provision in two respects only: (1) it

does not contain a separate consent to liability for tortious acts

as if the Port Authority were a private corporation and (2) it has

added language that the Port Authority shal] be deemed a citi-

zen of both New York and New Jersey. N.Y. UNCONSOL.

Laws § 7133 (McKinney 1979) (‘‘The port authority shall be

deemed to be a resident of each such county or judicial district

for the purpose of such suits, actions or proceedings and shail

be deemed to be a citizen of both of said two states’’) (emphasis

added). ;

The language rcgarding the citizenship of the Port Authority

was not included in the Act of March 30, 1950, Ch. 301, § 6,

1950 N.Y. Laws 979, 980, N.Y. UNCONSOL. Laws § 7106

(McKinney 1979). Addition of the citizenship language to the

later 1953 statute had no impact upon the ability of any state

court to hear an action against the Port Authority. The only

conceivable reason for specifying the citizenships of the Port

Authority was to clarify the dual aspect of its citizenship and

7 The copy of the correspondence in the Appendix to the Brief was in

the New York Legislative Bill Jacket accompanying the 1953 Act upon

its approval by the Governor of New York.

8 The structure of the 1953 statute, however, is similar to the 1948

venue provisions. Because both the 1947 consent to suit, as amended in

1948, and the 1953 consent to suit were of limited scope, effective only

as to certain specified entities for suits arising out of specified written

agreements, the “‘venue’’ provision in the 1947 and 1953 Acts are not

‘‘conditions’’ to the consents. For the unlimited 1950 consent to suit at

issue here, its “‘venue’’ provisions are structured as a condition to the

consent.

limit diversity jurisdiction in a Federal court to those instances

where the plaintiff was a citizen of some State or country other

than New York or New Jersey.”

Analysis of each of the Port Authority's consent to suit stat-

utes, enacted both before and after the one at issue here, is

instructive and persuasively demonstrates that the 1950 statute,

N.Y. UNCONSOL. LAWS §§ 7101-12 (McKinney 1979), did, and

was intended to, consent to suit against the Port Authority in

certain geographically specified Federal courts and was, conse-

quently, an effective, albeit geographically restricted, waiver of

any Eleventh Amendment immunity.

POINT Ill

THE PORT AUTHORITY HAS PREVIOUSLY ADMITTED

IT CONSIDERED ELEVENTH AMENDMENT IMMUNITY

TO HAVE BEEN WAIVED IF THE CONDITIONS OF THE

STATUTORY CONSENT TO SUIT WERE SATISFIED

Shortly after enactment of the 1950 consent statute, a diver-

sity suit was commenced against the Port Authority for dam-

ages resulting from an accident in the United States District

Court for the Eastern District of New York. In the district court

the Port Authority moved for dismissal of the complaint for

lack of subject matter jurisdiction for failure to comply with the

conditions of the consent statute in that the plaintiff (a) failed

to commence his action within one year and (2) failed to serve a

notice of claim. Rao v. Port of New York Authority, 122 F.

Supp. 595, 596 (E.D.N.Y. 1954), aff'd, 222 F.2d 362 (2d Cir.

1955). See also Motion for Dismissal of Complaint, Transcript

9 The specification of the Port Authority's citizenship in the 1953 Act

did not make any substantive change and was clearly for clarification

purposes only. The specification of residence in the Port Authority's

1950 statutory consent to suit was sufficient under the Fourteenth

Amendment for diversity purposes because every U.S. citizen is also a

citizen of the State of residence. U.S. Const. amend. XIV, § 1. If a

substantive change was accomplished by addition of the phi *se, then

this case will not be controlling with respect to construction of the 1953

statutory CONSeENt to suit.

of Record at 3-4, Rao v. Port of New York Authority, 222 F.2d

362 (2d Cir. 1955). Both of those requirements were conditions

of the consent to suit and were contained in Section 7 of chapter

301 of the Laws of New York. N.Y. UNCONSOL. LAws § 7107

(McKinney 1979).

No claim was made that the consent to suit, N.Y. UNCON.

SOL. LAWS § 7101 (McKinney 1979), did not permit suit in Fed-

eral court as a result of any Eleventh Amendment immunity

from suit. See Affidavit of Francis X. Curley, Transcript of

Record at 5-8, Rao, id. The district court granted the motion to

dismiss on the ground that it was not commenced within the one

year period upon which the consent to suit was conditioned.

Rao, 122 F. Supp. at 597.

Plaintiff appealed from the dismissal. There is no doubt that

in the Rao appeal the Port Authority was aware of its Eleventh

Amendment immunity and considered it to have been waived if

the conditions of the consent statute were met. See Brief of

Appellee Port Authority at 7, Rao v. Port of New York

Authority, 222 F.2d 362 (2d Cir. 1955). App. 8.

Appellant's brief (pp. 2, 3) concedes that his standing to

sue the Port Authority was created by the bi-state suability

legislation (Ch. 301, Laws of N.Y. 1950; Ch. 204, Laws of

N.J. 1951) and that the courts have jurisdiction over the

person of the Port Authority and the subject matter of the

action only where the statute has been complied with.

Since compliance is absent, the Eleventh Amendment

effectively bars jurisdiction over this suit.

Id. (emphasis added).

The Port Authority was intimately familiar at the time of the

Rao case with the intent and scope of the 1950 consent to suit.

The General Counsel to the Port Authority at the time of the

Rao appeal, Sidney Goldstein, who was the attorney for the

Port Authority on the Second Circuit Brief, was Assistant Gen-

eral Counsel in 1948, before enactment of the 1950 consent to

suit.

In the Rao case the Port Authority argued that in the absence

of compliance with the statute, the Eleventh Amendment

barred jurisdiction. Conversely, it effectively admitted that any

Eleventh Amendment immunity is waived if there has been

compliance with the statute.

This admission by the General Counsel of the very entity to

which the statute applies is extraordinarily significant. It is close

in time to enactment of the consent to suit statute. It establishes

an awareness on the part of the Port Authority that the Elev-

enth Amendment arguably applied to bar a lawsuit in the

absence of compliance with the conditions imposed on the con-

sent to suit. Accordingly, it is an authoritative pronouncement

of the extent and scope of the consent to suit and Petitioner

should not now be heard to contradict the previous admission

of the Port Authority.”

Neither the passage of time, decisions of the Court nor a

change in the Port Authority's position can rescind the consent

to suit against the Port Authority in certain Federal courts given

by the legislatures of New York and New Jersey: only the States

can modify or revoke the consent if they choose to do so,

assuming revocation would not contravene any other law. Until

such time as New York and New Jersey revoke or modify the

consent to suit, the Federal courts specified in Section 7106

have jurisdiction over suits against the Port Authority.

the Second Circuit the statement contained in the Rao Brief, it is sub-

mitted that the Court would give litle or no weight to a contradictory

statement by New York's presemt Attorney General as to the intent or

meaning of a statute enacted 40 years ago, unless based on newly dis-

covered and conclusive legislative history.

19 .

CONCLUSION

The decision of the court below should be affirmed in all

respects.

Dated: January 16, 1990

Respectfully submitted,

Swiss Air Transport Co., Lid.

30 Rockefeller Plaza

Suite 4340

New York, New York 10112

(212) 581-7575

APPENDIX

A-l

United States Court of Appeals

Fos tas Sgcorp Crcocrr

CHANNAPBRAGADA §S. BAO, also known as

RAO S. CHANNAPRAGADA,

Plawntif'-Appellant,

against

THE PORT OF NEW YORE AUTHOBITY,

Defendant-Appellee,

and

PARKING LOT ASSOCIATES CORPORATION,

a California corporation,

Defendant.

SSSSSSSSSjqUu

BRIEF OF APPELLEE

aos

Smssr Go.poerzm,

ma } Attorney for Defendant-Appellee,

pagar” S ses The Port of New York Authority.

ems au x N.Y +904 54

To be argued by

Danie. B. Gorpoenc

United States Court of Appeals

For tre Seconp Circuit

Cransapracabda §. Rao, also known as

Rao S. CHANNAPRAGADA,

Plaintiff- Appellant,

against

Tue Port or New York AvutTnHonrity,

Defendant-Appellee,

and

Pargino Lot Assocutes Corporation,

a California corporation,

Defendans.

—<DbP © ae

BRIEF OF APPELLEE

Statement

This memorandum is submitted by The Port of New

York Authority (hereinafter referred to as the Port Au-

thority) defendant-appellee, in opposition to the appeal

by plaintiff-appellant from an order of United States Dis-

trict Court for the Eastern District of New York dismissing

the complaint against the Port Authority for lack of juris.

diction’ This memorandum makes two points:

F inst, the instant order is not a final appealable

order within the meaning of § 1291 of 28 U.S.C. A.

and therefore this Court lacks jurisdiction.

A-3

Second, plaintiff-appellant has failed to comply

with the jurisdictional requirements of the bi-state

legislation waiving the sovereign immunity from

suit against the Port Authority.

The order (R. 22, 23) dismissed plaintiff's complaint

against the Port Authority, severing the cause of action as

to it, in the suit against the Port Authority and California

Parking Associates as joint defendants. The court found

that plaintiff had failed to comply with the jurisdictional

requirements conditioning the consent to suits against the

Port Authority contained in Chapter 301, Laws of New

York, 1950; Chapter 204, Laws of New Jersey, 1951.

The District Court did not make an express determina-

tion that there was no just reason for delay and merely

directed entry of judgment.

Facts

As plaintiff concedes (Brief, p. 2), his sole standing to

sue the theretofore immune Port Authority is found in the

aforesaid bi-state statutes which consent to suits against

the Port Authority as follows:

**§7. The foregoing consent is granted upon the

condition that any suit, action or proceeding prose-

cuted under this act shall be commenced within one

year after the cause of action therefor shall have

accrued, and upon the further condition that in the

case of any suit, action or proceeding for the recov-

ery or payment of money, prosecuted or maintained

under this Act a notice of claim shall have been

served upon the Port Authority by or on behalf of

the plaintiff or plaintiffs at least sixty days before

such suit, action or proceeding is commenced.”’

(Emphasis added. )

Section 8 of the legislation sets forth the requisite contents

of the notice of claim required by Section 7.

A-4

While the District Court did not decide the question of

the adequacy of the appellant's notice of claim, basing its

decision to dismiss solely on the jurisdictional grounds of

Section 7 and while the Port Authority is not arguing the

adequacy of the notice on this appeal it must be pointed out

that the Port Authority contended below that it has never

received from the plaintiff-appellant a proper notice of

claim stating the place where and the manner in which bis

cause of action, if any, arose.

The facts which plaintiff seeks te fit within the frame-

work of these jurisdictional pre-conditions to suit are

contained in the opinion of the District Court by Judge

Rarrret (R. 20):

“*The plaintiff concedes that the accident which is

the basis of the action occurred on December 10, 1952,

that the complaint was filed in this court on Decem-

ber 18, 1953, and that it was served on the defendant

Port of New York Authority on December 24, 1953."’

It is evident and conceded in plaintiff's brief (p. 3) that

the action was commenced sof within one rear after the

accident on which it is based, but was commenced 8 days

afterward

POINT I

The judgment sought to be appealed is not a final

order within the meaning of 28 U. S. C. A. 1291 and,

therefore, the Court of Appeals lacks jurisdiction.

The Court of Appeals bas limited jurisdiction to hear

appeals, t.e., under 28 U. S. C. A. 1292, in certain limited

situations not here applicable, and ander 28 U. S. C. A.

1291 which provides that this Court may hear appeals from

**final decisions of the district courts."’

A-§

This is not a final decision within the intent of

28 U. S. C. A. 1291, for where a suit is brought against

multiple parties whose liability is alleged to be ‘‘ joint."

a judgment terminating the action as to one or more, but

less than all of the parties, is not final regardless of

whether such a judgement is based on the merits or on

jurisdictional or venue grounds. In Atwater v. Inter

American Coal Corp., 111 F. 2d 125 (C. A. 2d 1940) this

court held:

ee nt or order dismissing an action as

to less than all of several defendants jointly charged

is not a final decision for purpose of appeal. Hohorst

v. Hamburg-American Packet Co., 148 U. S. 262, 13

S. Ct. 590, 37 L. Ed. 443; Bank of Rondout vr. Smith,

156 U. S. 330, 15 S. Ct. 358, 39 L. Ed. 441; Menge v.

Warriner, 5 Cir., 120 F. 816; Hewitt +. McCormick

Lamber Co., 2 Cir., 22 F. 2d 925; Bush v. Leach, 2

Cir., 22 F. 2d 296: Fields +. Mutual Benefit Life

Insurance Co., 4 Cir., 93 F. 2d 559; Moss vr. Kansas

City Life Insurance Co., 8 Cir., 96 F. 2d 108."’

In addition to cases there cited, some of the more recent

cases in point are:

Porter v. American Distilling Co., Inc., 157 F. 2d

1012 (C. A. 2d 1946);

Tauziwn v. St. Paul Mercury Indemmity Co., 195 F.

2d 223 (C. A. Sth 1952);

Drown v. UC. S. Pharmacopoeial Convention, 198

F. 2d 470 (C. A. 9th 1952);

Dunaway v. Standard Ou Co., 178 F. 2d 884 (C. A.

5th, 1949), cert. den. 339 U. S. 965 (1950) ;

Cuhn v. Canteen Food Service Inc., 150 F. 2d 55

(C. A. 7th 1945).

See generally, Moore's Federal Practice, 2d Ed. Vol. S,

p. 156, et seg.

In the present appea! we have the clearest case for the

application of the rule—a comnlaint against two alleced

jowt tort feasors and this Court's holding in the Afwater

case, supra is dispositive of this point.

The rule of non-finality in cases of this character finds

its basis in the theory that appeals are not to be brought

piecemeal to the Courts of Appeal and has singular ap-

plicability to the facts in the instant case. Here recovery

for one alleged harm founded on one factual pattern is

— against two different defendants allegedly jointly

liable.

The foregoing compels the conclusion that the Court

lacks jurisdiction to hear this appeal since liability in the

instant matter is joint and a final order has not been ren-

dered by the district court.

Appellant concedes that as the governmental agency of

the States of New York and New Jersey the Port Authority

is not subject to suit in the absence of express statutory

consent (Brief, p.2). He concedes also that the Court bas

jurisdiction of bis suit only if he has complied with the

conditions set forth in the recent legislation by which the

states consented to suit against the Port Authority (Brief,

p. 3). He concedes that those statutes impose as a ‘‘con-

dition’’ of the consent therein given that suit be commenced

within one vear after the cause of action has accrued

(Brief, p. 2), and he concedes that this suit was brought

more than a year after the occurrence of the accident upon

which it is based (Brief, pp. 2, 3).

A-7

Appellant secks to retrieve his case, however, by ask-

ing the Court to hold that notwithstanding the express

one year condition, the sualilty statutes permit suit

within one year and sixty days after the accident because

of the further condit:on in Section 7 that a prescribed

notice be filed sixty days before the commencement of the

action. The argument is based on three grounds:

(n) that as ‘‘remedial legislation’’ the statutes

should be liberally construed in favor of claimant ;

(b) that therefore the statutes must be construed

to permit suit within one vear and sixty ¢ ys after

the cause of action accrued; and

sizty days after the accident.

The argument is not well founded on any of these grounds

for the following reasons:

(1) Because the statutes constitute waivers of

sovereign immunity from suit, they must, under

universal rules of construction of such statutes, be

strictly construed to reqvire precise conformity with

all the conditions impos éd.

(2) The statutes hire involved have two inde.

pendent conditions, ore for the commencement of

suit within a vear after the cause of action accrues

and the ‘‘further condition’’, independently stated,

that a specified notice be served at least sixty days

in advance of suit. Not only the internal evidence

of the statutes but th? rule of strict construction re-

quires that both of these conditions be literally comm.

pled with.

(3) While it is true that the New York Civil

Practice Act adds to a period of limitations time

equivalent to the perwl of statutory stay, this can

net avail appellant because (a) as appellant con.

A-8

cedes, a New York statute cannot modify the lin etat

suability statutes which constitute an agreement be

tween New York and New Jersey susceptibie ot

amendment only by both States acting concurrentls

(Brief, pp. 5, 6G) and (b) the fact that the State of

New York had to pass a statute to produce this re-

sult as «a matter of local law, rebuts rather than

supports an wrgument that the Port Authority sun.

bility statutes, without the equivalent of C. P. A

« 24. can be construed to extend the one year period

expressiy provided as a condition for consent to tle

Court's jurisdiction.

(4) The enses uniformly hold that a cause of ac

tion for negligence chaxged against a public agence:

accrues on the date of the alleged accident, even

though a notice must be filed a specified number of

days before suit may be commenced.

Each of these four reasons is discussed in the following

subdivisions of this Point.

1. The statutes under which the Court's jurisdiction is

alleged must be strictly construed against appellant

because of the uniform rule of strict construction

of statutes waiving sovereign immunity from surt.

Appellant's brief (pp. 2, 3) concedes that bis standinc

to sue the Port Authority was created by the bi-state sua.

bility legislation (Ch. 301, Laws of N. Y. 1950; Ch. 294,

Laws of N. J. 1951) and that the courts have jurisdiction

over the person of the Port Authority and the subject mat.

ter of the action only where the statute has been complied

with. Sinee compliance is absent, the Fleventh Amend

ment effectively bars yurisdiction over this suit

Prior to the passage of the recent In<tate sualulity

legislation, the Port Authority ax a direct covernmental

ageneyv of the States of New York aml New Jersey, “ae

A-9

held to be clothed with the sovereign immunity from suit

of the two States which created it, in a long and unbroken

line of decisions in the Courts of the United States, New

York and New Jersey:

Howell v. Port of New York Authority, 34 F. Supp.

797 (D. N. J. 1940);

Lord Electric Co. ¥. The Port of New York Au-

thority, 281 App. Div. 693 (2d Dept. 1952) ;

Hergott v. Port of New York Authority, N. Y.L. J.

Jane 10, 1944, p. 4422 (Sup Ct. N. Y.); aff'd 269

App. Div. 770 (1st Dept. 1945) ;

Marmor +. The Port of New York Authority,

N. Y. L. J. October 3, 1952, p. 693 (Sup. Ct.

Kings) ;

Kelly v. The Por? of New York Authority, N. Y.

L. J. Jane 20, 1951 p. 2290 (Sup. Ct., N. Y.);

The Port of New York Authority v. Elman, 196

Misc. 91 (N. Y. C. Mun. Ct. 1949);

Roochvarg v. The Port of New York Authority,

190 Misc. 406 (Sup. Ct., Queens 1947);

LeBeau Pipwmg Corp. +. Cty of New York and

The Port of New York Authority, et al., 170

Misc. 644 (Sup. Ct., N. Y. 1938);

Voorhis v. Cornell Cont. Corp. and The Port of

New York Authority, 170 Mise. 908 (N. Y. City

Court 1938) ;

Pink +. Port of New York Authority, N. Y. L. J.

February 3, 1938, p. 567 (Sup. Ct. N. Y.);

Miller v. The Port of New Tork Authonty, 18 N. J.

Mise. 601 (Sup. Ct. 1939).