# Petition for Writ of Certiorari — Mindy Meyers, Etc. v. Commonwealth of Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1689%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 416 U.S. 946 ## Text Te EE CONINT TY ° 2eGn Oe IN THE Supreme Court of the United States October Term, 1973 No. 73 - ee - ] MINDY MEYERS, an infant, by her parent and natural guardian, MARVIN MEYERS, and MARVIN MEYERS, individually, and LYNDA BIENEN- FELD, an infant, by her parent and natural guardian, STANLEY BIENENFELD, and STANLEY BIENENFELD, individually, Petitioners, —_—V.— THE COMMONWEALTH OF PENNSYLVANIA, Respondent. HUBERT DAYE; TEDESCO BUS COMPANY, INC.; FRANK TEDESCO; and ACADEMY CHARTER SERVICE, INC., each in his or its own right and also on behalf of all passengers of Bus 2065 of the Tedesco Bus Com- pany, Inc., injured on July 15, 1970, at New Smithville, Lehigh County, Pennsylvania, their parents, guardians, next of kin, heirs and legal representatives, Petitioners, —_—V.— THE COMMONWEALTH OF PENNSYLVANIA, THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, VICTOR W. ANCKAITIS, LESTER E. JORDAN, CHARLES C. SINCAVAGE, WILLIAM I. DAVIS, ROBERT BROWN and EDWIN REIKER, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ZANE and ZANE, Attorneys for Petitioners, Meyers and Bienenfeld, One Rockefeller Plaza, New York, New York 10020. (212) 245-2222 BUTZ, HUDDERS & TALLMAN, Attorneys for Petitioners, Daye and Tedesco, et al., 740 Hamilton Street Box 688, Allentown, Pennsylvania 18105 (215) 439-1451 JAMES B. ZANE, BRADLEY IAN BERGER, RICHARD F. STEVENS, Of Counsel. : é $ EARLS LTD MEE Pe OPED Bereresssxery angry Qi BOT eR RR SO TABLE OF CONTENTS PAGE Opinions Below .................ccccocssesses bnliasdslsinibaseneaoaanennncacnidbedan 2 SE onctcc shes atiiinntcebesicireinncninininininnaneninnninacienatantanieseos 2 (Questions Presented ...........:cesseesseresseeeseeeseeeeeseesesssetsateneees 2 ‘onstitutional and Statutory Provisions Involved ........ 3 Mttemment Of the CAme q......c....nccccccssscccsreccscsnsecesonccsnsasoesenones 3 IID sccicionciteriakactcdoncconen iiiineapicauch samen pemiepieniet 3 The Report of the National Transportation Safety BN srcnininesesiibtenniicoscininticn scidiiieecnceiceespeaieiaateniinlieainaie 4 The Complaints and the Commonwealth's Motions 06 Reasons for Granting the Wit ....................cccssscsscsseenes 7 I. The Highway Safety Act of 1966 has as its pur- pose: securing the safety of those using the Federal Grant-inAid Highways ...........ccceeeees 7 Il. The Commonwealth of Pennsylvania, by its mean- ingful, ongoing participation in the federal-aid highways programs, has waived its immunity from suit under the Eleventh Amendment .......... 2 Ill. The Federal-Aid Highways Act and Highway Safety Act create an implied cause of action in favor of plaintiffs to recover for their injuries 16 ia) The Theory of the Implied Cause of Action 17 (b) The Lower Courts’ Views as to the Implied OE I ics bainciesnarccinneriamnvomceneniaita 22 COTATI oases ccecccses settle even qelscsinenaleactanenonesinnsseneta x ii APPENDIX PAGE Judgment (3rd Circwit ) -..eceececseessesesnseensenernesseseneseeeeneents la Opinion (District COUrt) ...--s.ssssssessssssensennsseeseeeseneteeetennees 2a Opinion (3rd Cireit ) ...-seeceseerssesseeeceneerneesnesssnessnnecennsenees l6a Title 23, U.S.C., Highway Act, $ LOL, et S€q. -----e 27a Highway Safety Act, Se (1) Ba | ne 32a TABLE OF CASES Bell y. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. T73B. 1B A.L.R. 2d B83 (1946) ..----erereserererserenererseeseees 17 Bivens v. Sir Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 24 619, 91 S. Ct. 1999 (1971) 18, 19, 21 Briggs v. Sagers, 424 F.2d 130 (10th Cir.), cert. denied, 400 U.S. 829, 27 L. Ed. 2d 59, 91 8. Ct. 58 (1970) 11, 12 Chesapeake Bay Bridge and Tunnel District v. Lau- ritzen, 404 F. Supp. 1001 (4th Cir. 1968)... 15 Fagot v. Flintkote Co., 305 F. Supp. 407 (D.C. La. E.D. TOGD) seccenresccevenserseresnsoscoeesnenonessncononsesonscsssnscnnsenonsnsassnssenees 18 Gomez ¥. Florida State Employment Service, 417 F.2d 569 (Dth Cir. 1969) ......escccsesessssreeeersreressseerenensneeners 22, 23 J. 1. Case Co. ¥. Borak, 377 U.S. 426, 12 L. Ed. 2d 423, SAS. Ct. 1555 (1964) ...eeeeeeserecssessensenersenesenenennsnsererens 20 iii PAGE Mahler v. United States, 306 F.2d 713 (3d Cir. 1958), cert. denied, 371 U.S. 923, 9 L. Ed. 2d 231, 83 8. Ct. Re SE ca. ic ses pceeieennareesseeannanieaeennainnidatiennaeda 7, 9,10 Named Individual Members of the San Antonio Con- servation Society v. Texas Highway Department, 446 F.2d 1013 (Sth Cir. 1971) «0.0... eecsccesreeeseees 15, 16 Parden vy. Terminal R. Co. of Ala., 377 U.S. 184, 12 L. Ed. 2d 233, 84 8S. Ct. 1207 (1968) ............sceeee- 12, 14 Pennsylcania Environmental Council, Inc. v. Bartlett, 454 F.2d GIS (3d Cir. 1971) .......cccrccsrsorscoccossrcsssseesrees 14 Petty v. Tennessee-Missouri Bridge Comm'n., 359 U.S. 275, 3 L. Ed. 2d 804, 79'S. Ct. T85 (1959) ........ 12, 14 Red Star Towing & Transp. Co. v. Dep't of Transp. of New Jersey, 423 F.2d 104 (3d Cir. 1970) «0... 15 South Carolina v. United States, 199 U.S. 4387, 50 L. Ed. 8 ee I CD hciccticicresitenacscacnmnn 14 South Carolina Highway Dept v. Barnicell Bros., 303 U.S. 177, 82 L. Ed. 734, 58 8S. Ct. 510 (1938) ........ 9 Texas & Pac. Ry. v. Rigsby, 241 U.S. 33, 60 L. Ed. 874, ee eS | Reeepenemnnennecn men rar ommnrenneen 17 CONSTITUTION OF THE UNITED STATES Stein 5. Sis OCD sccnrscesasncicienscesenscatccvomemarions 3.6 Fe a mE eRe Lc ais ee sd Norte meat Eee Ss 2 iv PAGE STATUTES Title 23 U.S.C SUBD. .........asssconanccveannavesserseesbannenpasnasnentusnaareconcnsonesenneneses 3,6 EPIC (i) cncecccreccccscsovovccccsereccerssnensessensnenessnsesssncvsssosonsoness 9,10 EPPS (WD) .naccnnceecrscccrccecesencenonassonsnnonnsvensscssensonsnsesonensssossoen® Ss © BBS ..ncencesccceccecsecseosorerensencrersnaerosesensessnsnnenssnsssconensseoscsnres us Z BOL ...c-ncccencecescseresevecssenenesnsssorennnsessesssessonsscnsossosees 2,3, 6,9 ZAOP (a) -.crrereccesesrccerensecnoesrrerecces sonssnssnsvensrscnnsensonsonsasorees s © GOD ....-.ecccrcccsececsssesersesscovenorosensnoocosonoonasenscsnssesensesusenseeses 11 Chapter 4 ...........ccscvscssesssssonsseensssnsenennsnssneenssnncnssnsoonerseenes 8 Title 28 U.S.C.: 3 SPDRLC DY cccsccssssssssseccsennnnnnnesssenccnnsssnnsssccennnnnnnnnnssssonnnnesen 2 PURDON'’S PENNSYLVANIA STATUTES : Title 36, $§ STO-1LNOL, STO-1GOS .........cccereressesccsscsvsvsvscccesees 13, 14 REGULATIONS 22 ¢E RB, Subchapter B, Part 204. Uniform Standards far State Highway Safety Programs .........0 2,8, 10 4 ARTICLES 3 li. Friendly, In Praise of Erie, 19 The Record of the Becirasve cries nse ulead Qirdace We Pe Le Association of the Bar of the City of New York, Te Gre 0) S © eennnnnnrrnrerrrrrerrnc ce Coco ooo ly ceibinenseacksoenkennee i PAGE Katz, The Jurisdiction of Remedies, Constitutional Legislation and the Law of Torts in Bell y. Hood, BES ©. 2 Bk TS. cctictnithdicinaneanen 17 Note, Federal Jurisdiction in Suits for Damages Under Statutes Not Affording Such Remedy, 48 Colum. Ba Flee TOD LED wncericrsiceieniesienreracisiem 21 Note, Implying Civil Remedies From Federal Regula- tory Statutes, 77 Harv. L. Rey. 285 (1963) ....... 17, 20 OTHER MATERIAL 3 United States Code Congressional & Administrative OR, TR) Bi DOS. costiiasseneresissancerniincccnmecnneanins 8 2 U. S. Code Congressional & Administrative News, SOE, 0 BED scccecisiincnnnasinaetiitiadimacianinn 10 St ee ell + tpltiee Ube a ht eetgee PLL IT GUE FOOL OEE. opel # itil Sy MNBL A Le a RV BONNE nO mm SN ~ Annan IN THE Supreme Cowt of the United States October Term, 1973 No. _. MINDY MEYERS, an infant, by her parent and natural guardian, MARVIN MEYERS, and MARVIN MEYERS, individually, and LYNDA BIENENFELD, an infant, by her parent and natural guardian, STANLEY BIENENFELD, and STANLEY BIENENFELD, individually, Petitioners, —_—Vi— THE COMMONWEALTH OF PENNSYLVANIA, Respondent. HUBERT DAYE; TEDESCO BUS COMPANY, INC.; FRANK TEDESCO; and ACADEMY CHARTER SERVICE, INC., each in his or its own right and also on behalf of all passen- gers of Bus 2065 of the Tedesco Bus Company, Inc., injured on July 15, 1970, at New Smithville, Lehigh County, Penn- sylvania, their parents, guardians, next of kin, heirs and legal representatives, Petitioners, —V.— THE COMMONWEALTH OF PENNSYLVANIA, THE PENN- SYLVANIA DEPARTMENT OF TRANSPORTATION, VICTOR W. ANCKAITIS, LESTER E. JORDAN, CHARLES C. SINCAVAGE, WILLIAM I. DAVIS, ROBERT BROWN and EDWIN REIKER, Respondents. —_—_—_—.~ a PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT The Petitioners pray that a Writ of Certiorari issue to review the judgment of the United States Court of Appeals for the Third Circuit, entered in this case on August 3, 1973 (Appendix, p. la hereto, infra). lo Opinions Below The District Court, Eastern District of Pennsylvania (Troutman, D.J.), entered an opinion and order on June 30, 1972, reported at 344 F. Supp. 1337 (E.D. Pa., 1972), granting the motion of the defendant, The Commonwealth of Pennsylvania to dismiss the complaints (Appendix, p. Ya. hereto. infra). The opinion of the Court of Appeals for the Third Circuit was entered on August 3, 1973 and affirmed the order of the District Court dismissing the complaints. This opinion, as yet unreported, appears in the Appendix at p. 16a. Jurisdiction The judgment of the Court of Appeals was entered on August 3, 1973 (App., p. la hereto, infra). The jurisdiction of this Court is invoked under 28 U.S.C., Section 1254(1). Questions Presented 1. Did the lower courts err in dismissing plaintiffs’ com- plaints on the grounds that Congress in enacting the Highway Safety Act of 1966 (23 U.S.C., $401, et seq.) did not have as its paramount purpose that those states participating in the federal grant-in-aid highway programs secure the safety of those using the federal-aid highways? » Did the Commonwealth by its meaningful, ongoing participation in the federal-aid highways programs waive its immunity from suit under the Eleventh Amendment? 2 Did the court incorrectly rule that the Federal-Aid Highways Act and Highway Safety Act did not create an implied cause of action in favor of plaintiffs to recover for their injuries? 3 Constitutional and Statutory Provisions Involved 1. The Eleventh Amendment to the Constitution of the United States is involved; it provides as follows: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state... .” ». Article I, Section 8, Clause 3 of the Constitution of the United States is involved; it provides as follows: “The Congress shall have power to regulate com- merce with foreign Nations, and among the several states, and with the Indian Tribes.” 3. The following are the pertinent parts of the relevant statutes involved herein: a) Federal-Aid Highways Act, 23 U.S.C.. $101, et seq. (App., p. 27a hereto, infra). b) Highway Safety Act, 23 U.S.C., $401, et seq. (App., p. 32a hereto, infra). Statement of the Case Introduction: The facts are undisputed. On July 15, 1970, plaintiffs Meyers were on Tedesco’s chartered interstate tour bus then carrying 53 children aged 10 to 17, and their counselors, on a sightseeing educational trip from Lawrence, New York, to the Pennsylvania Dutch country. While the bus was travel- ling westbound on U.S. Route 22 (Interstate 78), and ap- proximately 12 miles west of Allentown, Pennsylvania, and traversing a slight curve to the right during a light rain which had been preceded by a heavy shower, the bus started to slide on the wet highway, then rotated 180° Ra Moe UCD het te Beicriss reer | ant tle Ul Cn acai al Mende me 8 SEP ee Eee OTe ee 4 clockwise, overturned through a guardrail, and plunged down an embankment. Seven children passengers were killed in this accident, eighteen occupants of the bus were ejected, and 47 other occupants sustained various personal injuries.’ Plaintiff, Mindy Meyers, aged 11, sus- tained a fractured skull, a severe cerebral concussion, mul- tiple fractures of the left clavicle, and a ruptured spleen, among other injuries; plaintiff, Lynda Bienenfeld, aged 18, sustained a fractured pelvis, a compression fracture of the spine, and a cerebral concussion, among other in- juries. Plaintiff, bus driver, Hubert Daye, also sustained severe injuries. The Report of the National Transportation Safety Board: This tragedy was designated a “major accident” as de- fined in the regulations of the National Transportation Safety Board (“the Safety Board”). An exhaustive inves- tigation followed by the Safety Board which was reduced to a printed 61 page report”.* The findings of the Safety Board as to the probable causes of the accident are of more than pedestrian interest. The Report said: The National Transportation Safety Board de- termines that the probable cause of the accident was either dynamic or viscious hydroplaning of the 1The Daye case which has been consolidated with Meyers for the purpose of a joint hearing and argument was originally brought on behalf of (i) the bus driver and corporate owner of the bus, and (ii) as a class action on behalf of all passengers on the bus, and persons claiming under them. Daye has aban- doned its class action claims. Meyers has no interest in the class action portion of the Daye complaint. This is a joint peti- tion for both Meyers and Daye. 2A copy of the Report was incorporated into Meyers’ brief below, “.. . whose conclusions . . .” were accepted by the district court for the purpose of the motion to dismiss. See, 344 F. Supp. at 1340 fn. 5. 5 front wheels of the bus which initiated a skid from which the driver could not recover. Contributing factors included low basic skid resistance of the pavement in wet weather, and the probable presence of water draining across the pavement in an ab- normal manner. The fatalities and injuries were caused by an ineffective highway guardrail which failed to prevent the bus from rolling down an embankment . . . (emphasis added) [p. 38]. In summarizing the accident experience of U.S. 22 from the Lehigh County line to a point 1,200 feet east, for both directions of travel, for the period 1966 to July 19, 1970. the Safety Board determined that this tragedy was any- thing but an isolated event. The Safety Board found ®* that during the test period there were 59 reported accidents * resulting in 11 deaths, and injuries to 98 other persons. No accurate records exist for the other “many property- damage accidents” ° at this site. The Report memorializes that the tragedy was caused by the highway and those responsible for its maintenance. The Complaints and the Commonwealth's Motions: Plaintiffs Meyers alleged that on the day in question, they embarked from the State of New York, for the purpose, inter alia, of entering into The Commonwealth of Pennsylvania, and engaging in commerce therein. Juris- 3 The Report at 11-12. * Appendix E to the Report (p. 53), summarized the findings as follows: ACCIDENT SEVERITY Injury Accidents 27 Persons Killed 11 Fatal Accidents 5 Persons Injured 98 P.D.O. Accidents 27 Total Property Damage $200,000 Total Accidents 59 (Reported Accidents Only) 5 The Report at 11. ND TED ce ie eae Ree oe Sasha sh PPtnntenis setvinetiiedaisintins OMAN oars 6/8 Bees RT OTE Sa DE A Poe dictional bases alleged by Meyers and Daye presented fed- eral questions under the Constitution and laws of the United States. Aside from pleading the alleged failure of The Commonwealth to use reasonable care in the design, construction and maintenance * of U.S. 22, all in violation of the Federal-Aid Highways Act, 23 U.S.C. $101, et seq., and the Highway Safety Act, 23 U.S.C. $401, et seq., plaintitfs Meyers alleged that their rights under the Com- merce Clause of the Constitution of the United States (Article I, Section 8, Clause 3), had been violated in that The Commonwealth had “invited” Meyers to enter into the state for purposes of commerce while knowingly misrepre- senting and falsely warranting that the routes to be travelled were safe, and that they complied with the safety standards of the laws of the United States, when, in fact, The Commonwealth knew such not to be so. The motions to dismiss did not raise or challenge any factual allegation of plaintiffs, but rather was addressed to the adequacy of the complaints. By moving “in the alterna- tive”, for summary judgment, The Commonwealth admitted the verity of its responsibilities in causing the accident. * The full text of the provisions and regulations in issue are set forth as footnotes by the district court in its opinion. See, 344 F. Supp. at 1339, 1340, fn. 1-4, and 344 F. Supp. at 1348, fn. 14. 7 Reasons for Granting the Writ I. The Highway Safety Act of 1966 has as its pur- pose: securing the safety of those using the Federal Grant-in-Aid Highways. Both the District Court and the Court of Appeals relying on the holding in Mahler v. United States, 306 F.2d 713 (3d Cir. 1958), cert. denied, 371 U.S. 923, 9 L. Ed. 2d 231, 83 S. Ct. 390 (1962), decided that the com- plaints must be dismissed [344 F. Supp. at 1347]. In Mahler, the Third Circuit said [306 F.2d at 721]: In light of the legislative history traced above, it is plain that the appellants cannot successfully rely on the federal highway acts unless they are able to show that legislation following the Act of 1921 has affixed to the inspection and approval sections the additional purpose of securing the safety of those using the federal-aid highways (emphasis added). It follows, a fortiori, that upon a showing of such sub- sequent legislation, and purpose, a cause of action under the federal-aid highways acts is stated. Since Mahler, such legislation has been enacted. In 1965, the Baldwin Amendment was added to Title 23 of the United States Code, which clearly established the federal-state respon- sibility for a program of highway safety, with uniform standards to be approved by the Secretary.* The following 6 Pub. L. 89-139 $ 4(a), 79 Stat. 578 added a new section 135 to Title 23 U.S.C. which provided that: “After December 31, 1967, each State should have a highway safety program, approved by the Secretary, designed to reduce traffic accidents and deaths, [footnote continued on following page] Pe Bias rte eons 4 Britain aide les year Congress passed the Highway Safety Act* in order to provide for a coordinated national safety program.* Such a program was required to eliminate the death and destruction taking place on the national highways.° injuries, and property damage resulting therefrom on the Federal- aid system. Such highway safety program should be in accordance with uniform standards approved by the Secretary and should in- clude . . . provisions for an effective accident reports systems, and measures calculated to improve . . . highway design and main- tenance . . . and surveillance of traffic for detection and correction of high or potentially high accident locations (emphasis added). Unlike the case under review here, Mahler involved a claim under the federal torts claim act against the United States. The provisions of the former § 135 have been reworded and made a part of the Highway Safety Act, Title 23 U.S.C., Chapter 4. The word “shall” replaced “should” in the 1966 Highway Safety Act. 7Chapter 4, Title 23 U.S.C., added Pub. L. 89-564, Title I, $101, 80 Stat. 731, amended Pub. L. 90-495, §13, 82 Stat. 822; Pub. L. 91-605, Title II, §§ 202(c)-(e), 203(a), 84 Stat. 1740, 1741. In addition to the carry-over provisions of the former § 135, the new § 402(a), (fn. 6, supra) added the requiremnt that the states investigate “surface treatments” of the roads as part of its maintenance program to detect and correct high accident zones for the purpose of reducing deaths and injuries resulting from such accidents. 8 Title 23 U.S.C., §125(b) authorized the payment of addi- tional funds for emergency repairs to these highways. Cf., 23 C.F.R., Subchapter B, Part 204, Uniform Standards for State Highway Safety Programs. ° The relevant legislative history is reported in 3 United States Code Congressional & Administrative News, 1965, at 2857, where the House Report 681, said: “The committee is gravely concerned about the Nation’s traffic highway accident toll. Last year 47,700 Americans were killed in traffic accidents. + & 2 “But the committee believes that research in this field, al- though conceded to be incomplete, has already developed enough information and answers to support affirmative, coordinated, State action programs of highway safety. The important consideration [footnote continued on following page] 9 In conjunction with the other provisions of Title 23, the Highway Safety Act (23 U.S.C. § 401, et sey.), provided positive legislation aimed to deal effectively with the prob- lem of carnage on the federal highways. Muiler teaches that the job of highway safety and maintenance runs to the states. 306 F.2d at 717. Cf., 23 U.S.C. §§116(a). In 1966 the federal government renewed its efforts to insure that states taking advantage of federal highway funds also maintained the safety of the resulting road for its users. Judge Troutman’s reliance on South Carolina Highway Dep’t. v. Barnwell Bros., 303 U.S. 177, 82 L. Ed. 734, 5s S. Ct. 510 (1938), quoted in Mahler [306 F.2d at 716], for the proposition that The Commonwealth in constructing U.S. 22 was engaging in a sphere ‘wholly its own’ [344 F. Supp. at 1346], and thus did not partake in a federai activity, overlooks some key language. In South Carolina, supra, Mr. Justice Stone recognized that, a [S]tate can, if it sees fit, build and maintain its own highways, canals and railroads and that in the absence of Congressional action their regulation is peculiarly within its own competence, even though interstate commerce is materially affected [303 U.S. at 187] (emphasis supplied). The difficulty here is that there is Congressional action, and so regulation of the highway is no longer within the exclusive competence of The Commonwealth. The “regula- tion” of the highway is within the federal government: the ministerial maintenance is the responsibility of the state. is the fact that coordinated State action programs have generally been missing, and should be established now. . . . In the meantime, if one life is saved, the establishment of coordinated action pro- grams will be a success (emphasis added). NTE LE VOSIOR ON LER LALO IRE A Dj ND dre wo Besinrss Link sania vatamedtahr TSE DIPS ENS ER i 10 In both the Senate Report 1302 and Conference Report 1920 on the Highway Safety Act, safety standards to be approved by the Secretary were provided for. The Reports stated a need for surveillance, detection and correction of high or potentially high accident locations. See, 2 U.S. Code Congressional & Administrative News, 1966, at 2745. In the Senate Report special attention is given to a Com- mittee amendment to the standards provisions of § 402(a), concerning surface treatment of roadways. The Senate Report said [Id. at 2746]: This provision is included on the basis of evidence presented to the Committee in executive session which demonstrated significant success in the State of California in reducing accidents from skidding, or hydroplaning, on wet pavement. From the legislative history of the amendments to the federal-aid highways acts subsequent to Mahler, it is ob- vious that such legislation was enacted in order to prevent the type of accident that has given rise to these actions. It is clear, however, that even though U.S. 22 was completed in 1958, The Commonwealth was and is under a continuing duty to maintain the highway in accordance with existing standards.” Such obligation continues so long as The Commonwealth remains a participant under the federal-aid highways program. See, 23 U.S.C. § 116 (a) [344 F. Supp. at 1339 fn. 3]. To accept Judge Trout- man’s explanation would entirely sterilize the effect of the Highway Safety Act by applying it only to new high- ways constructed after passage of the Act. Such was not 10 93 U.S.C. §116(a) provides in part that: “It shall be the duty of the State highway department to maintain, or cause to be maintained, any project constructed under the provisions of this chapter or constructed under the provisions of prior Acts.” See also, 23 C.F.R. Subchapter B, Part 204, Uniform Standards for State Highway Safety Programs. 11 the intent since all highways, new and old must obviously comply with the current standards; new highways must be constructed under these regulations and existing high- ways maintained under the same standards. The Act and regulations when read clearly indicate applicability to both." Unilaterally, The Commonwealth has decided which parts of Title 23 it chooses to obey, and which to ignore. If The Commonwealth found that maintaining safe roads was too burdensome, it could have withdrawn from the system. It cannot ‘choose and pick’ which parts of the law to obey. By continuing to operate in the system after the passage of the Highway Safety Act, The Common- wealth is deemed to have elected to participate burdened by the regulations imposed by the new amendments. See, Briggs v. Sagers, 424 F.2d 130, at 134 (10th Cir. 1970), cert. denied, 400 U.S. 829, 27 L. Ed. 2d 59, 91 S. Ct. 58 (1970). We are not concerned that U.S. 22 was originally built in 1958. We are concerned, however, with the fact that The Commonwealth continued active participation in the federal program with full knowledge of the obliga- tions of the 1966 Highway Safety Act. Having nursed U.S. 22 from the federal breast, The Commonwealth has been rewarded for its cavalier indiffer- ence to the safety of users of the highway, by the decisions below. In the face of the long history of prior accidents at the location in issue, the failure of The Commonwealth to take steps to correct the conditions when viewed by the requirements of the Highway Safety Act is so gross and reckless as to be criminal. Everything which is decent and honorable recoils at The Commonwealth’s conduct in not maintaining U.S. 22. This is a case of “hit and run”: The Commonwealth has “hit” the federal government for funds under the program, but has “run” away from its obligations under the Highway Safety Act. To permit this is to completely frustrate the legislative purposes of the Highway Safety Act of 1966. 11 See, 23 U.S.C. §403 (App., p. 33a, infra). rte sins ee tttein tt dete a Bed 6-2! The Commonwealth of Pennsylvania, by its meaningful, ongoing participation in the federal-aid highways programs, has waived its immunity from suit under the Eleventh Amendment. The question is one of first impression: Has The Com- monwealth, by meaningful participation in the federal-aid highways program, an area regulated by Congress, thereby waived its immunity from suit under the Eleventh Amend- ment for actions arising out of such participation? Both the District Court and the Third Circuit have held that a state's waiver of its Eleventh Amendment immunity will be found only where stated in the “most ex- press language” or when presented by “overwhelming implication”, and that an “intentional relinquishment or abandonment” of the protection must be shown by plaintiff. Although, not yet fully developed, the progeny of Petty y. Tennessee-Missouri Bridge Comm’n., 359 U.S. 275, 3 L. Ed. 2d 804, 79 S. Ct. (1959), and Parden v. Terminal R. Co. of Ala., 377 U.S. 184, 12 L. Ed. 2d 283, 84 8. Ct. 1207 (1964), are reshaping judicial thinking on the subject of waivers of immunity. In Briggs v. Sagers, 424 F.2d 130 (10th Cir. 1970), cert. denied, 400 U.S. 829, 27 L. Ed. 2d 59, 91 8. Ct. 58 (1970), the State of Utah in resisting a suit under the Fair Labor Standards Act, raised the defense of immunity un- der the Eleventh Amendment in that it had neither know- ingly nor intentionally waived immunity to suit. The State of Utah in Briggs was operating a state-owned insti- tion for the custody and care of mentally deficient children 13 and adults (424 F.2d at 131). The activities were entirely in a sphere of state concern, within Utah’s own borders, and were begun before Congress legislated in the area. After commenting that, “. . . in the realm of interstate commerce, the congressional authority is supreme and con- flicting state interests and rights must yield” (424 F.2d at 182), the Briggs court considered it to be the present position of the Supreme Court that regarding a state's intent, or lack of same, to waive its immunity, or a state’s contention that it was not aware that a waiver would result from certain activity that, [424 F.2d at 134], [E]ven the dissent in Parden did not view the opinion as pivoting on the fact of an intentional waiver. Rather, the dissenting Justices understood the majority to hold “that with regard to sovereign immunity, waiver of a constitutional privilege need be neither knowing nor intelligent.” [377 U.S. at 200] (emphasis added). The Commonwealth has “knowingly” entered into an area of federal regulation and has “consented” to be bound by all requirements of the program in order to maximize the flow of federal funds. Title 36 of Purdon’s Pennsy]l- vania Statutes, § 670-1004, provides, in relevant part, The Secretary [of Highways of Pennsylvania] shall enter into all necessary contracts and agreements with the proper agencies of the government of the United States, and shall do all other things neces- sary and proper in order to obtain the benefits afforded under * * * [the federal-aid highways pro- grams] and its supplements and amendments, or any other act of Congress providing Federal aid for highway purposes (emphasis supplied). anche Fak ier «Be pre 4 | Smee hale bcttb ate a be 0 14 Section 670-1005, states, in part [36 Purdon’s Pennsy1- vania Statutes] that, The department [Pennsylvania Highways] shall have authority to make and carry out contracts and to do every other act necessary to carry out any project heretofore or hereafter undertaken which is to be paid for in whole or in part from Federal funds, and in every way to conform to the require- ments and rules and regulations of the proper Fed- eral authorities with respect to such projects . . (emphasis added). Thus, it can hardly be said by The Commonwealth that it did not “know” that it would be bound to comply with federal regulations as the result of its participation in the program. Quite the contrary is true: its Secretary of High- ways was directed “in every way to conform” to the re- quirements. By engaging in the federal-aid highways pro- gram, The Commonwealth is partaking in activities of a paramount federal interest, and as such subjects itself fully to such regulation. South Carolina v. United States, 199 U.S. 437, 50 L. Ed. 261, 26 S. Ct. 110 (1905). Although Petty and Parden are self-limiting because of their particular facts, the broad principles they stand for are being further expanded as the situations require. The Briggs case, supra, ruled, on the basis of the holding in Parden that a waiver need be neither knowing nor intel- ligent, but arises by implication from the mere engaging in a sphere subject to congressional regulation. The Third Circuit has recently considered the situation in Pennsyl- rania Environmental Council, Inc. v. Bartlett, 454 F.2d 613 (3d Cir. 1971), where the panel indicated that a state’s engaging in activities in a federally-regulated realm would give rise to an implication of a waiver of immunity. The Court said [454 F.2d at 625]: 15 But a state may, by engaging in activities of a para- mount federal interest, waive its immunity under the eleventh amendment [citing Petty and Parden] (emphasis supplied). The District Court rejected Chesapeake Bay Bridge and Tunnel District vo Lauritzen, 404 F.2d 1001 (4th Cir. 1968), relied upon by plaintitfs [844 F. Supp. at 18387], on the basis that Lauritzen was at variance with the hold- ing Red Star Towing & Transp. Co. v. Dep't. of Transp. of New Jersey, 423 F.2d 104 (3d Cir. 1970). Lauritzen stands as a leading expansion of the Petty-Parden doctrine for the proposition that a state’s participation in a fed- erally controlled area will be deemed, pro tanto, a submis- sion to federal law and a waiver of immunity. The Third Circuit has apparently abandoned its view first taken in Red Star and has adopted the Fourth Circuit's Lauritzen position. This is made apparent by a reading of the opinion in Bartlett, supra, where Lauritzen is cited by the Court of Appeals with approval for the proposition that whether a waiver of immunity has taken place is a question of federal law [454 F.2d at 625]. Unfortunately the appellate court failed to comment on this. Judge Troutman also rejected [344 F. Supp. at 1345, 1346] as authority on the waiver of immunity issue, Judge Thornberry’s opinion in Named Individual Members of the San Antonio Conservation Society v. Teras Highway De- partment, 446 F.2d 1013 (5th Cir. 1971). Judge Thorn- berry said [446 F.2d at 1028]: No one forced the State [Texas] to seek federal funding, to accept federal participation, or to com- mence construction of a federal aid highway. The State [of Texas], by entering into this venture, voluntarily submitted itself to federal law. It en- tered with its eyes open, having more than adequate warning of the controversial nature of the project and of the applicable law. Gao sabe AMAA fa. cs Page gt Dia i ha a awe phi Deal the ae iloek PA e l ite 16 There appears little basis for the distinction drawn by Judge Troutman that Texas in San Antonio sought to with- draw from the program, and thus avoid the operative pro- visions of the Act, whereas The Commonwealth merely seeks to withdraw from liability for failure to comply with the maintenance provisions of the statutes. Suffice to say, the Third Circuit’s statement in Bartlett, supra, pre- sents a caveat that, as here, where a state participates in a federal-aid highway program, accepts the benefits, and then attempts to reject the attendant obligations un- der the guise of immunity, such conduct will not be favor- ably received. The Bartlett court indicated that that issue was to be left for, “. . . definitive determination in a later case” [454 F.2d at 625]. We submit that this case calls for an answer to the question thus presented, but unanswered in Bartlett. The Commonwealth has hid, under the trans- parent cover of immunity all too long—now is the time for it to be called to the bar of this Court and required to answer for its derelictions. The Federal-Aid Highways Act and Highway Safety Act create an implied cause of action in favor of plaintiffs to recover for their injuries. Here, too, a question of first impression is presented: Does an admitted violation by a participant state of its obligations under the Federal-Aid Highways Act and Highway Safety Act give rise to a private cause of action for personal injuries sustained by a user of the road? The Third Circuit did not comment on this question on appeal. The concept that a federal statute otherwise silent as to any private remedy for its breach gives rise to an im- plied federal cause of action in favor of the injured party Geese avcanKenicn. 17 has been recognized since 1916 [Teras ¢ Pac. Ry. v. Rigsby, 241 U.S. 33, 60 L. Ed. 874, 36 S. Ct. 482 (1916) }. [D]isregard of the command of a statute is a wrong- ful act, and where it results in damage to one of the class for whose especial benefit the statute was en- acted, the right to recover the damages from the party in default is implied . . . [Id., 241 U.S. at 39]. (a) The Theory of the Implied Cause of Action: Where a federally secured right is invaded, it is for the federal courts to adjust their remedies so as to grant neces- sary relief. Bell v. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. 773, 13 A.L.R. 2d 383 (1946); Katz, The Juris- prudence of Remedies, Constitutional Legislation and the Law of Torts in Bell vy. Hood, 117 U. Pa. L. Rev. 1. [I]mp'ying a cause of action may increase the likelihood of compliance with the statute by giving victims incentive to assist in its enforcement and potential violators, faced with additional penalty, added reason to conform their conduct to it. The implied cause of action can also provide direct relief for members of a class that the legislature wished to protect. Note, Implying Civil Remedies From Fed- eral Regulatory Statutes, 77 Harv. L. Rev. 285. at 291 (1963). In weighing whether to imply a cause of action the Court must not be unmindful of alternative remedies, or lack of remedies, available to the injured party. Id., 77 Harv. L. Rev. at 292. In the case at bar, it is clear beyond peradventure of doubt that the accident and resultant in- juries resulted from the wrongful conduct of The Common- wealth. The bus driver, Daye, is without legal fault. If a right of recovery is denied Meyers by this Court on the dove i Nihon es Si in Lil lt hse Mile WAL Ce ih NE CE. ade oe 145 dale ot ole 6a Tas ila Mier aed Afton FRG cote Madar tat a Baraeun. waht 1 io 4) basis of an implied cause of action, it is obvious that the two innocent infant plaintiffs will never be compensated for their injuries. They will have experienced a ‘wrong without a remedy’. The thought of such an injustice is intolerable. Silence as to the availability of private remedies for breach of the Federal-Aid Highways Act and Highway Safety Act, should not be taken as a legislative mandate that implication of a private remedy should be denied. As noted in Fagot v. Flintkote Co., 305 F. Supp. 40% (D.C. La. 1969) : Where other statutes were similarly silent as to any private relief, courts have found a cause of action to exist—for violation, for example, of the Securities Exchange Act, National Banking Act, Federal Communications Act, and the Rivers and Harbors Act. The legislation we are concerned with here seeks to pro- tect the users of federal-aid highways. The right, we sub- mit, is one of constitutional dimension, for the ability to engage in interstate commerce under the Commerce Clause requires that travel between states be free from the threat of, or actual injury at the hands of a foreign state. The theory that every right protected is of value only if there is a corresponding remedy for its breach has found expression in the Supreme Court on many oceasions. Most recently in Birens v. Sir Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), the late Mr. Justice Harlan in his concurring opinion articulated the theory in these words [403 U.S. at 402, 29 L. Ed. 2d at 630, 91 S. Ct. at 2008]: Thus. in suits for damages based on violations of federal statutes lacking any express authorization of 19 a damage remedy, the Court has authorized such re- lief where, in its view, damages are necessary to effectuate the Congressional policy underpinning the substantive provisions of the statute. The Birens Court thus instructs us to look at the sub- stantive social policy embodied in the legislation, and then decide whether the implication of a private remedy would aid in the fulfillment of the act’s goals. Would anyone quarrel with the notion that to hold The Commonwealth liable for the injuries it has caused would not be an impetus to prevent a recurrence? What is the old adage: those who refuse to learn from history are destined to relive it? To deny a right of recovery to the plaintiffs would be reward- ing The Commonwealth for its irresponsible conduct. The notion of an “implied” federal cause of action aris- ing from activities involving interstate commerce is not new to the law. As Chief Judge Henry J. Friendly noted in his famous article, Jn Praise of Erie, 19 The Record of The Association of the Bar of The City of New York 64, 88 (1964) : Statutes regulating the activities of interstate carriers are another fertile field for implication of rights and the filling of interstices. Fifteen years before Erie the Supreme Court had held that the Hepburn Act’s prohibition against an interstate rail- road’s giving a pass to anyone except an employee and his family made the legal consequences of such a pass a matter of overriding federal decisional law “to the exclusion of state laws and state policies” [Kansas City So. Ry. v. Van Zandt, 260 U.S. 459, 469 (1923) }. _ * e & = So, it seems to me, the Supreme Court, in the years since Frie, has been forging a new centripetal tool incaleulably useful to our federal system. It has yBM eeTpR l ci Lit N a a Shad Sp MeN: Wee ae ete PDeritreisivemns cc sosia tte sratarctiidete ose. 20 employed a variety of techniques—spontaneous gen- eration . . ., implication of a private federal cause of action from a statute providing other sanctions, con- struing a jurisdictional grant as a command to fashion federal law, and the normal judicial filling of statutory interstices. [Id. at 92]. Cases “implying” a federal cause of action to fill the “statutory interstices” in the words of Judge Friendly, and in order to give effect to the “reasons related to the sub- stantive social policy embodied in an act of positive law” in the words of Mr. Justice Harlan, are now legion. See, Note, 77 Harv. L. Rev. 285 (1963), supra. J. I. Case Co. vy. Borak, 377 U.S. 426, 12 L. Ed. 2d 423, 84 S. Ct. 1555 (1964), involved a violation of the Securities and Exchange Act of 1934. The statute did not, however, define the relief which could be obtained in a private suit for violation of its provisions. In fact, the statute did not even make any reference to a private right of action for a violation of its regulations. One thing was clear however: the purpose of the act—to protect the investors (just as the Highway Safety Act is aimed to protect users of the high- ways). In implying a right to relief by implication, the Court concluded that implication of a private cause of ac- tion was necessary to fulfill the purposes of the act. In concluding that the duty evolved on the federal courts to fashion remedies in order to protect federal rights, the Court observed [377 U.S. at 433, 12 L. Ed. 2d at 433, 84 S. Ct. at 1560]: We, therefore, believe that under the circumstances here it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose. The Borak decision has been analyzed as resting on three factors: (1) What are the protective purposes of the act 21 under review; (2) Absent is any clear contrary legislative expression against the implication of a private remedy, [see, Note, Federal Jurisdiction in Suits for Damages Under Statutes Not Affording Such Remedy, 48 Colum. L. Rev. 1090, 1094 (1948) ], and (3) the federal courts are fulfilling its trust to grant protection of the statute to those intended by the legislature. Further explaining the Borak approach, Mr. Justice Harlan explained in Bivens, supra, 403 U.S. at 402 fn. 4, 29 L. Ed. 2d at 630 fn. 4, 91 S. Ct. at 2008 fn. 4: The Borak case is an especially clear example of the exercise of federal judicial power to accord dam- ages as an appropriate remedy in the absence of any express statutory authorization of a federal cause of action. There we “implied”—from what can only be characterized as an “exclusively procedural provi- sion” affording access to a federal forum... a private cause of action for damages for violation of § 14(a) of the Securities Act of 1934. .. . We did so in an area where federal regulation has been singularly comprehensive and elaborate administrative enforce- ment machinery has been provided * * * The exercise of judicial power involved in Borak simply cannot be justified in terms of statutory construction .. . nor did the Borak Court purport to do so... . The notion of “implying” a remedy, therefore, . . . can only refer to a process whereby the federal judiciary exercises a choice among traditionally available reme- dies according to reasons related to the substantive social policy embodied in an act of positive law (emphasis supplied). Implication of a federal cause of action is thus a safety valve available to the federal courts. It permits internal expansion of the protective aegis of a statute, where justice so dictates, and it restricts such expansion where to do so would overreach the intent or mandate of Congress. BO ARAN he Deal ie Cab Atl te NAR L A Mle AoA lbeh tas ai MO Kind dicho Rd A Abserdvn ia. tadio tk alld MONG ASR a Dh NE a sa Watashi! rine rtcunmivnns Vise Siete 99 (b) The Lower Courts’ Views as to the Implied Cause of Action: Judge Troutman summarily rejected any implication of a federal cause of action, without citation of any authority, by holding that, “. . . the Secretary is authorized to dis- continue the apportionment of funds under the Act. Thus, the power of the federal government to cut off federal funds provides the only sanction expressly authorized under the Act.” 344 F. Supp. at 1348. The Court of Appeals did not comment on this point. In Gomez v. Florida State Employment Service, 417 F.2d 569 (5th Cir. 1969), action was brought by migratory workers for alleged violations of wage payments and work- ing conditions. The act in Gomez, as the act under review here, provided that the only express remedy for a violation by a participant state was for the Secretary to cut off the flow of federal funds to that state. Holding the mere cut- ting off of federal funds to the violating state to be inade- quate relief, and a remedy which would in no way benefit the workers injured, and in creating an implied cause of action in favor of the workers, the Gomez court said [417 F.2d at 576]: This Act, its setting and the regulations call im- peratively for implied remedies here if the purpose of the regulations—the protection of migratory farm workers—is to be achieved. * * * Absent an implied remedy, the workers have no protection. They would not have even the protection of a criminal sanction. #2 It is unthinkable that Congress, obviously con- cerned with people, would have left the Secretary with only the sanction of cutting off funds to the state. Moreover, the private civil remedy is a method of policy enforcement long honored explicitly in statutes and by implication with the help of courts (emphasis added). RAL TTP SILLY STL, ODA DLT le ETE BT ER RY SE Ty SUN TT ooo 23 The Gomez opinion, in reviewing a statute similar to that in the instant case as far as providing for express remedies for a breach, reached the opposite conclusion to that of Judge Troutman in the case under review here. The Gomez result, we believe, is the sounder view. To imply a civil remedy to the plaintiffs here does not appear offensive to the senses, but to the contrary, commends itself as giving voice and hand to the undeniable intent of the Highway Safety Act—to foster the safety of federal-aid highways for users such as the plaintiffs here. CONCLUSION For the foregoing reasons, this petition for a writ of certiorari should be granted. Respectfully submitted, ZANE and ZANE, Attorneys for Petitioners, Meyers and Bienenfeld, One Rockefeller Plaza, New York, New York 10020 (212) 245-2222 Butz, HtppErs & TALLMAN, Attorneys for Petitioners, Daye and Tedesco, et al., 740 Hamilton Street, Box 688, Allentown, Pa. 18105 (215) 439-1451 JAMES B. ZANE, BRADLEY JAN BERGER, RICHARD F. STEVENS, Of Counsel. October, 1973. t % s ¥ fi : = 4 ¥ e eon, li ed Cee Lower ee APPENDIX ET Sy ea Se TS la Judgment (3rd Circuit) UNITED STATES COURT OF APPEALS For THE THIRD CIRCUIT [ SAME TITLE ] On APPEALS FROM THE UNITED STATES District COURT For THE EASTERN DISTRICT OF PENNSYLVANIA Present: VAN DUSEN, Gippons and ROSENN, Circuit Judges JUDGMENT These causes came on to be heard on the records from the United States District Court for the Eastern District of Pennsylvania and were argued by counsel, On consideration whereof, it is now here ordered and adjudged by this Court that the order of the said District Court, filed June 30, 1972, be, and the same is hereby af- firmed. Costs taxed against appellants. ATTEST: M. ELIZABETH FERGUSON Chief Deputy Clerk August 3, 1973 Certified as a true copy and issued in lieu of a formal mandate on August 27, 1973 in Nos. 72-1769 and 72-1840. M. ELIZABETH FERGUSON Chief Deputy Clerk, United States Court of Appeals for the Third Circuit. Costs taxed in favor of appellees Anckaitis, et al. in No. 72-1769 as follows: Brief for appellees .......... $100.70 inh ot cht Ra et RA ARI lat le FOE HO i PRR RL Ah ty REE AE LA ee a SOREL FEELERS its Eig ee edie 5 Opinion (District Court) Opinion (3rd Circuit) [For the Convenience of Court and Counsel this Exhibit is printed on the following pages.) TEED ens. PS Peete hag AE, DY, Cite as 344 F.Supp. 1337 (1972) Hubert DAYE et al. Vv. 1e COMMONWEALTH OF PENN- SYLVANIA ct al. lindy MEYERS, an infant, by her parent and natural guardian, Marvin Meyers, et al. v. The COMMONWEALTH OF PENNSYLVANIA, Civ. A. Nos, 71-1726, 71-2167. United States District Court, E. D. Pennsylvania. June 30, 1972. Actions against state and others to rer damages on account of highway lent. The District Court, Troutman, eld, inter alia, that Pennsylvania did waive its Eleventh Amendment im- ity by voluntarily applying for and iting federal funds and by entering interstate commerce in construction terstate highways. Dismissed. 1. Courts €>307(1) State is not a person for purposes of diversity jurisdiction. 2. Courts ©307(1) State cannot waive its lack of status as citizen for diversity jurisdiction pur- poses, 3. Courts C@282(1), 284 Questions whether state's accepting highway grants and its entry into field of interstate commerce constituted waiv- er of Eleventh Amendment immunity and whether alleged violations of federal highway statutes gave rise to cause of action for damages presented federal questions sustaining jurisdiction in ac- tion against state arising out of high- way accident. U.S.C.A.Const. Amend. 11. 4. Federal Civil Procedure @161 Plaintiff has burden to establish right to proceed as class. 5. Federal Civil Procedure 181 Action by bus driver, bus company, and others against state arising out of highway accident could not be main- tained on behalf of class consisting of passengers killed or injured, since plain- tiffs were not members, there was sub- stantial question of adequacy of repre- sentation, damages would differ as to different members, and members had in- terest in individually controlling prose- cution of separate actions. U.S.C.A. Const. Amend. 11. 6. Federal Civil Procedure 164 Plaintiff-representative must be member of class which he purports to represent. 7. Federal Civil Procedure @1Hi4 Adequacy of representation not only requires coextensive interest between class and its representatives but also ab- sence of antagonistic interests. 8. Courts 303(1) Eleventh Amendment denies author- ity to federal courts to entertain suit by private parties against state without its 4, oat = Neen ak Miah alkaline illa aii eal eGR I ame ee ELI ET en I IE , : ] 8 $44 FEDERAL SUPPLEMENT * 9, Courts -303(1) i Mere presence of federal question ~ does not divest state of Eleventh Amendment immunity. U.S.C.A.Const. Amend. 11. 10. Courts oer EE ¥ L DAYE v. COMMONWEALTH OF PENNSYLVANIA 1339 Cite as 344 F.Supp. 1337 (1972) cident. Both actions base the liability of the Commonwealth on its alleged fail- 1. 23 U.S.C. & 1066(a) provides: “(a) Except as provided in seetion 117 of this title, the State highway department shall submit to the Secre- tary for his approval, as soon as practicable after program approval, such surveys, plans, specifications, and estimates for each proposed project included in an approved prograin as the Seeretary may require. The Sec- retary shall act upon such surveys, plans, specifications, and estimates as soon as practicable after the same have been submitted, and his approval of any such project shall be deemed a contractual obligation of the Federal Government for the payment of its proportional contribution thereto. In taking such action, the Secretary shall be guided by the provisions of section 109 of this title.” 23 U.S.C. § 109(a) provides: “(a) The Seeretary shall not ap- prove plans and specifications for pro- posed projects on any Federal-aid sys- tem if they fail to provide for a fa- cility (1) that will adequately meet the existing and probable future traffic needs and conditions in a manner con- ducive to safety, durability, snd econ- omy of maintenauce; (2) that will be designed aud constructed in accordance with standards best suited to accom plish the foregoing objectives and to conform to the particular needs of each Jocatity.” 23 U.S.C. § 10d) provides: “(d) On any highway) project in which Federal funds hereafter partici- pate, or on any such project construct- ed since December 20, 1944, the loea- tion, fori and character of informa- tional, regulatory and warning sizus, curb and pavement or other markings, and traffie signals installed or placed by any publie anthority or other agen- cy, shall be subject to the approval of the State highway department with the coneurre.ce of the Secretary, who ix directed to concur only in such in- stallations as will promote the safe and efficient utilization of the high- ways.” 23 U.S.C. § leftte) provides: “(e) No fumis shall be approved for expenditure on any Federal-aid high- way, or highway affeeted under chap- ter 2 of this tithe, unless proper safety protective devices complying with safe- ty standards determined by the Secre- ary at that being adequate shall be justalied or be in operation time as ure to use reasonable care in the design,' construction ® and maintenance ? at any highway and railroad grade crossing or drawbridge on that por- tion of the highway with respert to which such expenditures sre to be made.” 2. 23 U.S.C. § 114(a) provides: “(a) The construction of any high- ways or portions of highways located on a Federal-aid system shall be un- dertaken by the respective State high- way departments or under their direct supervision. Except as provided in section 117 of this title, such construc- tion shall be subject to the inspection and approval of the Secretary. The construction work and labor in each State shall be performed under the direct supervision of the State high- way department and in accordance with the laws of that State and ap- plicable Federal laws. Construction may be begun as soon as funds are availuble for expenditure pursuant to subsection (a) of section 118 of this title. On any project where actual construction is in progress and visible to highway users, the State highway department shall erect such informa- tional sigu or sigus as prescribed by the Secretary, identifying the project and the respective amounts contributed therefor by the State and Federal Gov- ernments.” 3. 23 U.S.C. § 116(a) provides: “(a) It shall be the duty of the State highway department to miaiutsin, or cause to be maintained, ams constructed under the pres! this chapter or constructed under the provisions of prior Acts. Tl« obligation to the United States to maintain any such project shail cease when it no longer constitutes a part of a Federal-aid system.” 23 U.S.C. § 116(c) provides: “(c) If at any time the Seeretary shall find that any project constructed under the provisions ef this chapter, or constructed under the of prior Acts, is not project sons of State's provisions being properixy maintained, he shall call such fact to the attention of the State highway department. If, within ninety days after receipt of such notice, such prej- ect has not been put in preper condi- tien of maintenance, the Secretary shall withheld approval of further projects of all types in the entire State nntil such project) shall have been put in proper condition ef muuin- tenance, unless such project is subject ee ee SS aT Re — LR TOMI TONE ROO } of U.S. Route 22 in violation of the . Federal-Aid Highway Act, 23 U.S.C. § 101 et seq., and the Highway Safety Act, 23 U.S.C. § 401 et seq.4 Specifical- ly, the gravamen of plaintiffs’ allega- tions is that in the light of the high number of reported accidents along this portion of U.S. 22, the Commonwealth failed to use reasonable care to prevent the drainage of surface water across the to an agreement pursuant to subsec- tion (b) of this section, in which case approval shall be withheld only for secondary or urban projects in the county or municipality where such project is located.” 4. 23 U.S.C. § 402(a) provides: “(a) Each State shall have a_ high- way safety program approved by the Secretary, designed to reduce traffic accidents and deaths, injuries, and prop- erty damage resulting therefrom. Such programs shall be in accordance with uniform standards promulgated by the Secretary. Such uniform standards shall be expressed in terms of perform- ance criteria. Such uniform standards shall be promulgated by the Secretary so as to improve driver performance (including, but not limited to, driver education, driver testing to determine proficiency to operate motor vehicles, driver examinations (both physical and mental) and driver licensing) and to improve pedestrian performance. In addition such uniform standards shall include, but not be limited to, provisions for an effective record system of acci- dents (including injuries and deaths resulting therefrom), accident investi- gations to determine the probable causes of accidents, injuries, and deaths, vehicle registration, operation, and in- spection, highway design and mainte- nance (including lighting, markings, and surface treatment), traffic control, vehicle codes and laws, surveillance of traffic for detection and correction of high or potentially high accident loca- tions, and emergency services. Such Standards as are applicable to State highway safety programs shall, to the extent determined appropriate by the Secretary, be applicable to federally ad- ministered areas where a Federal de- partment or agency controls the high- ways or supervises traffic operations. ~ The Secretary shall be authorized to amend or waive standards on a tempo- rary basis for the purpose of evaluat- ing new or different highway safety 5a $44 FEDERAL SUPPLEMENT roadway and to insure the installation of adequate guardrails 5. The Commonwealth has moved to dis- miss both complaints on three grounds, alleging that (1) the Court lacks juris- diction to entertain these actions; (2) these actions are barred by the Common- wealth’s immunity under the Eleventh Amendment,® and its sovereign im- programs instituted on an experimental, - pilot, or demonstration basis by one or more States, where the Secretary finds that the public interest would be served by such amendment or waiver.” 5. The plaintiffs in the Meyers case have incorporated into their brief the Highway ~ Accident Report of the National Safety Board, whose conclusions we shall accept for the purpose of these motions. As to the probable cause of this accident, the Board concluded : “The National Transportation Safety Board determines that the probable eause of this accident was either dynam- ic or viscous hydroplaning of the front wheels of the bus which initiated a skid from which the driver could not recover. Contributing factors included low basic skid resistance of the pave- ment in wet weather, and the probable presence of water draining across the pavement in an abnormul manner. The fatalities and injuries were caused by an ineffective highway guardrail which failed to prevent the bus from rolling down an embankment, by bus windows which failed to prevent ejection of some passengers, and in some cases, by the absence of occupant restraints.” For the purpose of these motions we s)iall not refer to other portions of the report suggesting additional or other contribut- ing causes of this unfortunate accident. 6. The Eleventh Amendment to the United States Constitution provides: “The Judicial power of the United States shall not be construed to ex- ten? to any suit in law or equity, com- menced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”. Thus, under the Eleventh Amendment the federal courts lack authority to entertain a suit brought by a private party against a state without its consent. Ford Motor Co. v. Dep't. of Treasury, State of Indi- ana, 323 U.S. 459, 464, 65 S.Ct. 347, 89 I.Ed. 389 (1945). munity;* and (3) the complaint fails to state a claim upon which relief can be granted. Plaintiffs, on the other hand, argue that by voluntarily accepting fed- eral funds under the Federal-Aid High- way Act and by entering into interstate commerce in the construction of inter- state highways, the Commonwealth waived any immunity which ordinarily would have been available to it. Plain- tiffs further argue that the Federal-Aid Highway Act and the Highway Safety Act create an implied cause of action for injuries resulting from any violation of the standards set forth therein or regu- lations promulgated thereunder. A. Jurisdiction {1,2} Both actions have alleged as their jurisdictional basis a federal ques- tion arising under the Constitution and laws of the United States. In the Daye case, plaintiffs have alleged diversity of citizenship as an alternative jurisdic- tional basis. In so far as jurisdiction over the Commonwealth in Daye is based on diversity of citizenship, this Court lacks such jurisdiction, for it is well established that a state is not a per- son for the purposes of diversity juris- diction. Stute Highway Comm'n. of Wyoming v. Utah Construction Co., 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262 (1929); O'Neill v. Commonwealth of Pennsylvania, 459 F.2d 1 (3rd Cir... 1972). Moreover, a state cannot waive its lack of status as a citizen for the purpose of diversity jurisdiction. Har- ris v. Pennsylvania Turnpike Comm’n.. 410 F.2d 1332, 1334 n.1 (3rd Cir. 1969), cert. denied, 396 U.S. 1005, 90 S.Ct. 558, 24 L.Ed.2d 497 (1970); Krisel vy. Duran, 3886 F.2d 179, 181 (2d Cir. 1967), cert. denied 390 U.S. 1042, 88 S.Ct. 1635, 20 L.Ed.2d 303 (1968). 7. Article 1, Section 11 of the I nnsylvania Constitution, P.S., provides : “es * * Suits may be brought against the Commonwealth in such man- ner, in such courts, and in such cases as the Legislature may by law direct.” The Pennssivania courts have held that in 6a DAYE v. COMMONWEALTH OF PENNSYLVANIA Cite as 344 F.Supp. 1337 (1972) 1341 [3] Plaintiffs have alleged that this Court has jurisdiction over these actions in that their subject-matter raises sub- stantial federal questions. Initially, plaintiffs argue that the issue whether the Commonwealth waived its Eleventh Amendment immunity presents a federal question. In Parden v. Terminal R. Co. of Ala., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), the Supreme Court considered this identical question, hold- ing: “Where a State’s consent to suit is al- leged to arise from an act not wholly within its own sphere of authority but within a sphere—whether it be inter- state compacts or interstate commerce —subject to the constitutional power of the Federal Government, the ques- tion whether the State’s act consti- tutes the alleged consent is one of fed- eral law.” 377 U.S. at 197, 84 S.Ct. at 1215. See also Chesapeake Bay Bridge & Tun- nel Dist. v. Lauritzen, 404 F.2d 1001, 1003-1004 (4th Cir. 1968). In the in- Stant case, the issue whether Pennsyl- vania’s affirmative actions in accepting federal highway grants and in its entry into the field of interstate commerce constitutes a waiver of its Eleventh Amendment immunity manifesily presents a federal question within the purview of the Pardex decision. In further support of this Court's ju- risdiction, plaintiffs maintain that the issue whether a violation of the stand- ards established in the Federal-Aid Highway Act or the Highway Safety Act gives rise to an implied cause of ac- tion to recover damages for personal in- juries also constitutes a federal ques- tion. We conclude that this presents a federal question, for in Smith v. Kansas City Title & Trust Co., 255 issue the absence of a statute authorizing suits against the Commonwealth, the state is immune from the negligence of its agents and employees on the construction, main- tenanee and repair of a highway. Rader v. Pennsylvania Turnpike Comm'n., 407 Pa. 609, G11, IS2 Ad 1996 (1962). — 1342 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921), the Supreme Court stated the test as follows: “(Where it appears from the bill or statement of the plaintiff that the right to relief depends upon the con- struction or application of the Consti- tution or laws of the United States, and that such federal claim is not merely colorable, and rests upon a rea- sonable foundation, the District Court has jurisdiction * * *". 255 US. at 199, 41 S.Ct. at 245. Since plaintiffs’ right to relief, if any, depends on our construction of the fed- eral highway legislation, we have juris- diction to determine whether such stat- utes create, by implication, a cognizable civil remedy. B. The Class Action [4,5] In the Daye case, the named plaintiffs, Hubert Daye, Tedesco Bus Company, Frank Tedesco, and Academy Charter Service, Inc., purport to repre- sent a class consisting of those passen- gers killed or injured in the accident of July 15, 1970. In order to proceed as a class, the burden is on the plaintiff to establish the right to do so. Philadel- phia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 457 (E.D.Pa. 1968). In the instant case, plaintiffs must satisfy the prerequisites of Rule 23(a) 8 and Rule 23(b) (3) ® of the Fed- 8 Rule 22(a) F.R.Civ.P. provides: “(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative par- ties on behalf of all only if (1) the class is so numetous that joinder of all mem- bers is impracticable, (2) there are questions of law or fact common to the elass, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” 9 Rule 230b) (5) F_RoCiv.P. provides: “(b) Class Actions Maintainable. An action may be maintained as a elass action if the prerequisites of subdivi- sion (2) are sxtisfied, and in addition: 7a 344 FEDERAL SUPPLEMENT eral Rules of Civil Procedure. Plain- tiffs vigorously argue that since the lia- bility of the Commonwealth of Pennsyl- vania is a question common to all mem- bers of the purported class and since this question predominates over all oth- ers, this suit is appropriate for determi- nation as a class action. Several consid- erations, however, have convinced us that this suit is not properly maintaina- ble as a class action. [6,7] Initially, it is well established that the plaintiff-representative must be a member of the class which he purports to represent. Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). In this case, the purported class consists of those injured or killed in the bus accident in question. The only named plaintiff who could conceiva- bly represent this class as a member is Hubert Daye, the driver himself. The remaining named plaintiffs are, in no way, representative of this class. Sec- ondly, there arises a substantial question of adequacy of representation by the named plaintiffs. Adequacy of repre- sentation not only requires a coexten- siveness of interests between the class and its representatives (present here in the common question of the liability of Pennsylvania), but also requires an ab- sence of antagonistic interests. 3B J. Moore, Federal Practice 23.07 [1], €23.07[3] (2d ed. 1969). Several ac- (3) the court finds that the ques- tions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is su- perior to other available methods for the fair and efficient adjudication of the ecatroversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (BR) the extent and nature of any litigation concerning the controversy already commenced by or against members of the elass; (C) the desirability or undesirability of con centrating the litigation of the claims in the particular forum; (1)) the dif- ficulties likely to be encountered in the management of a class action.” DAYE v. COMMONWEALTH OF PENNSYLVANIA 1343 Cite as 344 F.Supp. 1337 (1972) tions, arising from this accident, have - already been filed against the bus com- pany not only in this Court, but also in New York. Thirdly, we have found the Notes of the Advisory Committee to Rule 23 as revised in 1966 instructive. There, the Committee noted that “mass accidents” resulting in injuries to nu- merous persons are ordinarily inappro- priate because of the likelihood that sig- nificant questions would arise not only of damages, but also of liability and de- fenses to liability. To permit such cases to continue as class actions, the Commit- tee continued, would cause the case to degenerate into multiple law suits sepa- rately tried. See also Hobbs v. North- east Airlines, Inc., 50 F.R.D. 76 (E.D. Pa.1970). In this instant case, this Court would be confronted with not only persona! injury claims but also death claims. Moreover, assuming the Com- monwealth is found liable, the measure of damages may differ in each instance in that the class would consist of mem- bers from both New York and New Jer- sey. Finally, we must consider the in- terest of the members of the class in in- dividual!y controlling the prosecution of separate actions, Rule 23(b) (38) (A), and the extent and nature of any litiga- tion concerning the cortroversy already evident from the commencement of ac- tions by members of the class, Rule 23(b) (3) (B). As previously men- tioned, the representative parties have been sued by at least six members of the class in the courts of New York, and two members of the Class [Meyers] have filed suit in this Court against the Commonwealth. In the light of the sig- nificant number of actions already com- menced, it is reasonable to conclude that each member of the purported class has a substantial interest in controlling his own litigation. Moreover, it is illogical to conclude that one who is a defendant in other actions instituted by members of the class and arising out of the same accident could here adequately and prop- 10. Plaintiffs have not designated nor have we found any express waiver of the Ka erly represent the class as plaintiffs. For these reasons, we conclude that this action is not maintainable as a class ac- tion in that it fails to meet the prerequi- sites set forth in Rule 23 of the Federal Rules of Civil Procedure. Accordingly, we will dismiss the Daye complaint in so far as it alleges a class action. C. The Eleventh Amendment Waiver [8-10] The Eleventh Amendment ecx- pressly denies authority to the federal courts to entertain a suit brought by private parties against a state without its consent. Ford Motor Co. v. Depart- ment of Treasury of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945). The mere presence of a federal question does not, in and of itself, divest a state of its immunity under the Elev- enth Amendment. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1899). The state may, however, con- sent to be sued in federal court and, thereby, waive its immunity under the Eleventh Amendment. Where the issue of waiver arises, the general! rule is that a waiver of immunity will be found only where stuted in the most express lan- guage, or where presented by such over- whelming implication from the text so as to leave no room for any ether rea- sonable construction. Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909); DeLong Corp. v. Oregon State Highway Comm’n., 233 F.Supp. 7 (D.Or.1964). Furthermore, a heavy burden is on the plaintiff to show an “intentional relinquishment or aban- donment of a known right or privilege”. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). See also Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); De- Long Corp. v. Oregon State Highway Comm’n., supra, 233 F.Supp. at 19. Plaintiffs argue that the Common- wealth of Pennsylvania has impliedly waived its Eleventh Amendment immunity,’ relying on Petty v. Tennes- Commonwealth’s Eleventh Amendment im- munity either in the Pennsylvania stat- aeeers BS SO AIST heel A nan bs, Me sab 1344 sce-Missouri Bridge Comm’'n., 859 U.S. 275, 79 S.Ct. 785, 3 L.ed.2d 804 (1959) ; Parden v. Terminal ht. Co. of Ala., 377 US. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964) and their progeny. Specifically, plaintiffs argue that the Commonwealth waived its immunity by implication by affirmatively and voluntarily (1) apply- ing for and accepting federal funds un- der the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq., and (2) engaging in interstate commerce. We now exam- ine the cases cited by plaintiffs to deter- mine whether they provide authority to imply a waiver of the state’s immunity under the facts and circumstances of this case. In Petiy v. Tennessee-Missouri Bridge Comm’n., 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), plaintiff brought suit under the Jones Act, 46 U.S.C. § 688, to recover damages for the death of her husband aboard defendant's ferry boat. Defendant was a bi-state agency created by an interstate compact be- tween Tennessce and Missouri pursuant ) Article J, Section 10 of the Constitu- tion. The Commission given the power “to contract, to sue and be sued in its own name”, Further, in approv- ing the compact, Congress added a pro- viso to the effect that the terms of the contract would not be construed “to af- fect, impair, or diminish any right, pow- er or jurisdiction of * * * = any COUNe ets f the United States, }over or in regard to any navigable wa- ters, or any commerce between the ‘States * * *." The Supreme Court held initially that since the alleged waiv- er Was contained in an interstate com- pact, its interp.etation was a matter of federal law. Thereafter, the Court con- _ Strued the congressional proviso as a de- “diberate reservation of jurisdiction in the federal court and concluded that the “sue and be sued” clause of the compact fonstituted a waiver of the stsate’s im- Munity from snit. We find Petty inap- Posite to the facts of this case for sever- Wes ation for and seeeptanee of way funds, or in the appropri- statutes. Any waiver of the utes, the applic federal hi i dite federal ga 344 FEDERAL SUPPLEMENT al reasons. First, we read the language of the interstate compact «and the Court’s construction thereof to consti- tute an express waiver of Eleventh Amendment immunity. In the instant case, there is nothing even remotely sim- ilar to a sue or be sued clause or a res- ervation of jurisdiction in any of the ap- plicable statutes. Secondly, under the terms of the agreement, the bi-state agency was operating over navigable wa- ters—an area exclusively within the fed- eral regulatory domain. Moreover, un- der the terms of the compact, federal ju- risdiction over actions arising in naviga- ble waters was expressly reserved, and Congress, under the Jones Act, had pro- vided an express cause of action for torts occurring thereon. The compact was described as involving the “* * * Jaunching of a governmental corporation into an industrial or busi- ness field 359 U.S. at 280, ’ S.Ct. at 789. In the instant case, the Commonwealth was operating exclusive- ly within its own borders in an area tra- ditionally within the state’s regulatory domain. Congressional regulation § in this area is limited to the controls it has secured under the Federal-Aid High- ways Act, and this act provides no ex- press cause of action to recover damages for personal injuries. Thus, we have concluded that Petty has little effect outside of its own limited factual situa- tion and does not support the proposi- tion of waiver in this case. In Parden v. Terminal R. Co. of Ala- bama, 377 U.S. 184, 84 S.Ct. 1207, 12 L. Kd.2d 233 (1964) the Supreme Court ex- panded the rationale of Petty, holding that a state-owned and operated rail- road, competing with privately-owned railroads in interstate commerce, is lia- ble for personal injuries under the Fed- eral Employers’ Liability Act. The Court rejected the state’s Eleventh Amendment iminunity argument, reason- ing that the state’s operation of a rail- road in interstate commerce must be in + * therefore, is limited te tion, state’s immunity, waiver by implica be oke ao) DAYE v. COMMONWEALTH OF PENNSYLVANIA 1345 Cite as 44 F.Supp. 1237 (S72) subordination to the power of the feder- al government to regulate such com- merce. By empowering Congress to reg- ulate commerce, the states necessarily surrendered any portion of their sover- ciguty which would stand in the way of such regulation. We also conclude that Parden is inapposite under the facts of the present case. First, in Parden, the state, in operating its railroad across in- terstate boundaries,:-was acting in the capacity of a private enterprise and en- tered into the domain of exclusive feder- al regulation. In the case at bar, the state was performing its traditional state governmental function in design- ing, constructiny, and maintaining high- ways within its own bounduries. See- ondly, Congress in the FELA expressly conditioned the right to operste a rail- road upon amenability to suit in federal court and created a specific cause of ac- tion to recover for personal injuries. In the instant case, the Commonwealth has received funds for poranaiget highways under a federal statutory scheme which provides no express pe Tame no im- plied cause of action for violation of its provisions. We, therefore, conclude that Parden does not gens a finding of waiver under the present facts. Plaintiffs also rely on Chesapeake Bay Bridge and Tunnel Dist. v. Lauritzen, 404 F.2d 1001 (4th Cir. 1968). In Lewr- itzen, a shipowner sued the Bridce and Tunnel District, 2 political subdivision of the Commonwealth of Virginia. for damages when = hull of his ship struck a submerged light tower at the bridge-tunnel sides the Chesapeake Bay. As required by federal statute, 23 US.C. § 40), the District submitted plans to the Army Corps ef Engineers for the approval of the bridge-tunnel and received a permit to begin construc- tion. In te) cting the State’s Eleventh Amendment immunity argument, the Court of rod eals held: “The supplication of the State, and her reception into the Federal domain, meant surrender, pro tanto end pro tempore, of State sovereignty and sub- mission to the paramount overlordship — 2446 £ 4.25 oe fs of the United States during the tenan- cy.” 404 F.2d at 1003, The result reached in Lauritz)n was re- jected by the Third Circuit in Red Star Towing & Transp. Co. v. Dep't. of Transp. of New Jersey, 423 F.2d 104 (3rd Cir. 1970), where the Court upheld the Eleventh Amendment immunity of the State of New Jersey on a virtually identical fact situation. The Court spe- cifically disapproved of the contrary re- sult reached in Lawritzen, holding it “arbitrary to say that the State consents to civil liability that could not be antici- pated by reading the relevant federa! statute”. 423 F.2d at 106. Additiona!- ly, Lauritzen is strikingly similar to Petty, which we have previously found inapposite, in that the District’s charter contained a “sue and be -sued” clause, and the District entered into an exclu- sive realm of federal regulation--navi- gable waters. Consequently, we conclude that Pettu, Parden and Lauritzen do not suppert plaintiffs’ theory of waiver, and plain- tiffs cannot by a Procrustean stretch place themselves within the purview of those cases. We shall now undertake an independent analysis of plaintiffs’ argu- ment that by accepting federal funds un- der the Federa!-Aid Highway Act and, thereby, entering into interstate com- merce, the Commonwealth waived its Eleventh Amendment immunity. 1. Acceptance of Federal Funds Plaintiffs argue that by participating in the federal highway program and by seeking and accepting funds thereunder, the state waived its immunity from suit. Plaintiffs rely heavily on Named Indi- vidual Members of San Antonio Conser- vation Soc’y. v. Texas Highway Dep't. 446 F.2d 1015 (Sth Cir. 1971). Com- Mencing in 1955 the Texas Hivhway De- partment planned and thereafter sought and obtained the approval of federal funds for a highway project extending from the San Antonio airport to San Antonio and through certain parklands. Upon objection by conservationists, in the course of tortious litiyation in the WN 5 Yt NE Ne ee Oe Se ee 1 ey ee Gee eel 1346 federal courts, and following a stay or- der entered by the Court on May 27, 1971, the Texas Highway Department, on June 1, 1971, sought to withdraw the project from all federal aid or involve- ment stating that the project would be completed exclusively with state funds. The Court understandably and logically responded that having voluntarily com- mitted itself to this federally-aided proj- ect, the state was bound by federal law under the Supremacy Clause, United States Constitution, Art. VI, Cl. 2, and could not circumvent applicable federal statutes by belatedly suggesting the ex- clusive application of state funds. The Eleventh Amendment immunity was nei- ther raiscd nor discussed and we find the decision unpersuasive and not controlling in the context of the instant case. In Road Review League v. Boyd, 270 F.Supp. 650 (S.D.N.Y.1967)," and in DeLong Corp. v. Oregon State Highway Commission, 233 F.Supp. 7 (D.Ore. 1964), aff'd. 343 F.2d 911 (9th Cir. 1965), cert. denied, 382 U.S. 877, &6 S. Ct. 161, 15 L.Ed.2d 119 (1965), the courts held that by participating in the federal highway program and seeking federal funds, the state does not waive its immunity from suit. In DeLong, the Court reasoned that any waiver of im- munity must be made expressiy or by overwhelming implication, and the mere acceptance of funds under the Federal- Aid Highway Act Jemonstrated neither express nor implied waiver. Althou;h the factual situations of these cases dif- fer from that in the instant case, their reasoning is highly pertinent, and we specifically adopt their holdings. 2. Entry into Interstate Commerce Plaintiffs, alternatively, argue that the state, in constructing an interstate highway, has voluntarily entered into tl. In Roud Review League v. Boyd, 270 F.Supp. 650 (8.D.N.¥.19607), a converva- tion group challenged the determination of the Federal Highway Administrator, who approved the proposed route for a portion of the int. rvtute highway. sn a aalaagall 344 FEDERAL SUPPLEMENT the federally regulated area of interstate commerce and, therefore, is amenable to suit for its acts or omissions in violation of federal regulations. Initially, it should be noted that the mere entry of a state into a field of congressional regu- lation will not subject it to suit by pri- vate individuals. Red Star Towing & Transp. Co. v. Dep’t. of Transp. of New Jersey, supra, 423 F.2d at 106. In Mah- ler v. United States, 306 F.2d 713 (3rd Cir.) cert. denied 371 U.S. 923, 83 S.Ct. 290, 9 L.Ed.2d 231 (1962), the Court of Appeals stated: “But it is clear nonetheless that the construction, maintenance and the regulations of highways have re- mained state functions. South Caroli- na [State] Highway Dep’t. v. Barn- well Bros., 303 U.S. 177, 187, 58 S.Ct. 510, 514, 82 L.Ed. 734 (1938). In the cited case Mr. Justice Stone said: ‘From the beginning it has been rec- ognized that a state can, if it sees fit, build and maintain its own highways, canals and rzilroads and that in the absence of Congressional action their regulation is peculiarly within its competence, even though interstate commerce is materially affected. Rate Cases [Simpson v. 30 U.S. 352, 416 [23 S. 306 F.2d at Minnesota Shepard}, Ct. 729, 57 L.Ed. 1511].” 716. We have heretofore emphasized the fac that the Commonwealth, in con-tructing federal aid highways. has operated scleiy within its borders. This is because in the absence of federal regulation, the state may regulate its own intrastate ac- tivities, notwithstanding their effect on interstate commerce. Under the law of Pennsylvania, the Commonwealth is “im- mune for liability in trespass for the negligence of its agents and employees in the construction, maintenance and re- 12. In DeLong Corp. v. Oregon State High- way Comm'n., 233 F.Supp. 7 (D-Ore. 19U-4). a contractor sued the state throngh the state highway commission for s d-cla- ration of rights regarding the pro..-ions of a cuntrect for the construction of en interstate bridge. . ieee oe hn ee a or ee Ser eee ST eee ’ pair of a highway.” Rader v. Pennsyl- vania Turnpike Comm'n., 407 Pa. 609, 611, 182 A.2d i80, 200 (1962). There is no Pennsylveuia statute waiving its Eleventh Amendment or severeign im- munity to a suit in trespass for negli- gence in the construction of either a state or interstate highway. In the ab- sence of a ackamacis waiver by the state, we turn our atiention to the question whether under the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq. and the Highway Safety Act, 23 U.S.C. § 401 et seq., hes acted in such a man- ner as to conditic: the state’s entry commerce upon its waiver of immunity and has previded a cause of action for a breach of its } revisions. Conrres- into ity Statutes D. The Neither the Federal-Aid Hig 23 U.S.C. § 101 ¢’ nO} a phwar Safety Act expressly authsrize a tal Federal Highway SCq., cause of actisn for violation of provisions. Plaintiffs argue that a action is sag sc H necessary cause of are by . 23.5 ,? + ee Congressional pre icy ages unde provisions of bhi ac i. stuntive »? iirst ‘t, in which s eral provisions are desiynated by plsain- tiffs as requiring this Court to imply a cause of action. Section 106(a) pre- vides for the submission by the stat 2nd approval by the United States Sec- retary of Transportation [Secretary] of surveys, Plans, and esti- mates for ed project. ecc- tion 10914) provides that the ‘) shall not approve the plans ; ind specifi- unless they are conduciy specifications evch prepo: Seeret: cations e ¢t ) traffic needs, safeiy, durability and economy. Sk etion 109¢da) provides that the location of highway signs shall he subiect ise nway to th Department the Secretary. Seetion 1uds¢ that no funds shall be appreved prener approval of the Stat: with the rence of provides unless ‘ . . ? . saicty protective devi comply with certain safety standards ippreved by the Seeretary are in-t ! thet hivhway Rah | DAYE v. COMMONWEALTH OF PENNSYLVANIA Cite as 244 F.Supp 1357 (1972) 1347 construction shall be under the supervi- sion of the State Highway Department, subject to the inspection and approval of the Secretary. Section 116(a) provides that it is the duty of the state to main- tain the highways, and Section 116(c) provides that if the highway is not being properly maintained, the Secretary may withhold approval of further proj- ects. The statutory language of the Feder- al-Aid Highway Act clearly indicates that the ultimate responsibility for any safety provisions under the Act lies with the Secretary. The Secretary is given the power to withhold his approval in the event the design er construction of the highway does not meet applicable federal standards. Moreover, the Secre- tary is empowered to withhold funds for future projects in the event the highway is not Leing properly maintaincd. Con- sequently, tates vate remcdy in that the express s } rov idec a in t i the state for fodcral funds. It worthy that qua li fy the statut: language miti- implication of a pri- inction ) rv against the : disqualification of is note- v ‘hich in nc way e circumstances the stat t¢€ are unlawful. Moreover, the con- % Wwou hi dis declared gressiona! policy underlying the Act does not mandate an implied private cause of action. In Mahicr v. United States, under- review e Act and the Third Circutt took an extensive and ef the lerislative history of th concluded: “it Congress islative der the were and supre, seems clear from the Acts s and their accompanying history, that grants-in-aid un- Federal Hig} Pro; are designed to encouras to construct thelr own high- ways and that the | ates functi an AWSaY . rram states ‘ the Bureau of Pub Roads, in ape proving plans saln itted to it by a ?. state after and inspectiny roads during and construction, is that of making sure that federal appropriations are beiny utilized properly and efficiently by the respective states and are not sted.” 306 F.2d at 716. beings wa s ET ew WP LEB SEE LITO 1518 The Couct then concluded in the light of the levi lative history that the Act im- puses no duty on the United States run- ning to private persons. Since the pur- pose of the Act is the protection ef fed- eral investment, and the sanctions pro- vided therein are directed to fulfill such purpose, we conclude that the Act impos- es no duty and no liability on the state other than those specified therein and gives rise to no private cause of action. Seconciy, plaintiffs claim that a pri- vate enn-c of action exists under Section 402(a) of the Highway Safety Act, 22 U.S.C. § 402(2),! and the regulations promu!; ted thereunder.'# Section 402 (a) authorizes the Secretary lish uniform standards of performance te estab- criteri: Under the applicabie stand- ard recarding highway @esign, con- struction and maintenance, each state program shall provide standards for ae design and construction with specific provisions for high skid resist- ance scalities; a resurfacing program with emphasis on roads with low skid once -e and high aecident rates; and wardrailings which will minimize the cane of impact and retain the vehi- ele. The: tions i: safety “pose of the Act and its reguls- manifest on its face—highway the Act, however, was initially 13. See nete 4 supra. 1$. Pursuant to this provision, the United States Berean of Transportation promul- age certain uniferm safety standards, 23 C.F MN ch. 2. Those standards appli- aa: ty the instant ease ure set forth in Viiehway Safety Program Standard No. 12, which provides in pertinent port “HIGHWAY DESIGN, CON- STRUCTION AND MAINTENANCE Bheory state in cooperation with coun- ty sod local goyeruments stall base a ef highway design, construc- tien and maintensnee to improve high- wit safety. Standards applicable to sto: fie programs are those issued or the Federal Highway Ad- prs ‘a endorsed by watt rator. 1. ioe DPrograt: shall Hides ce, that: provide, as a 39 344 FEDERAL SUPPLEMENT passed in 1966, while the highway in question was originally constructed in 1958. Thus, the provisions of the Act and regulations pertaining to safety pro- grams in the initial design and construc- tion of a federal aid highway are inap- plicable, leaving only those involving re- surfacing and corrections of areas with low skid resistance and high accident rates pertinent here. A reading of the language of the reg- ulation indicates that the establishment of such programs is directory rather than mandatory. In order to receive federal aid under this section, the state is directed to implement such a highway safety program. 23 U.S.C. § 492(c). Without such a program, the Secretary is authorized to discontinue the appor- tionment of funds under the Act. Thus, the power of the federal government to cut off federal funds provides the only sanction expressly authorized under the Act. We, therefore, conclude that the Highway Safety Act creates no duty on behalf of the states running toward these plaintiffs and creates no private action for breach thereof. ; E. Conclusion [11,12] Plaintiffs argue that under the facts of this case the Commonwea alth waived its Eleventh Amendment immu- wads for pavement specific with SS resistance Gite ID. There are stand: design and construction provisions for high skid Ties, I. There is a program for res or other surface treatment with emjpha- sis on cerrection of Jocations or sections of streets and aaa with Jow skid resistance and high er potentially hirh accident rates reduction by providing improved surfaces. irfacing suscepitble to are highway design and con- ver pro it le prevention and including at least the 6 Tiere ruction features wheres for necident survisaiility follow ing : 4. Bridge railings and 9 parapets which are designed to minimize severity of impact, to retain the vehicie, tu re- direct the vehicle so that it will move parallel to the roadway, and to mini- mize danger to traffic below.” j i ' 2 say smi aite LAK. Sit’ ak loliaeadit Ln lia DAYF v. COMMONWEALTH OF PENNSYLVANIA 1349 Cite as 344 F.Supp. 1527 (1972 nity and that the federal highway acts provide, by implication, a private cause of action. Plaintiffs have failed to meet their heavy burden and, in effect, have attempted to pile Pelion upon Ossa_ to reach Olympus. We, therefore, hold: (1) in vohintarily applying for and ac- cepting federal funds under the Feder- al-Aid Highway Act and in entering into interstate commerce in the construction of interstate highways, the Comion- wealth has not waived its Eleventh Amendment immunity; and (2) neither the Pederal Aid Highway Act nor the Hiyhway Safety Act create an implied cause of action to recover damages for personal injuries sustained as a result of a violation of the standards set forth therein or regulations promulgated thereunder. Accordingly, the motion of the Commonwealth cf Pennsylvania to dismiss the complaints as they are app'i- cable to it will be granted. If. In addition to the Commonwealth of Pennsylvania, the Daye complaint has named individual officers of the Penn- sylvania Department of Transportation as party-deferdants. Jurisdiction over these parties is bused on diversity of cit- izenship and the alleged liability of the ndividunl defendants is based en negli gence, Thus, the remains liability of the public officers from their alleged nonfeasance in failing to insure proper drainage and adequate guardrails along U. S. 22 in the licht of the high number of reported accidents at this precise location of the route. as ta issuc erisiny We are cognizant of a substantial split of authorities among the states on apr issue of tort liability of public officers,! and the compelling arguments both in favor of and against the immunity of 15. Nee 40 ALLER. 89, supplemented at 57 A.LR. 1087. Sce also Harper & James, The Law of Torts, Vol 2 § 2AN83) Prosser, Handbook of the Law of Torts (ith Fd.) $ 332. 16. ‘The iimmunity of public. officials has Leen applicd to bar aciions in lowing instances: offieisl’s the fe deeis ied tu public officers. We are constrained, however, under Erie R. Co. v. Tompkins, 304 U.S, 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1928) to apply the substantive law of Pennsylvania. In Yealy v. Fink, 43 Pa. 212 (1862), the Supreme Court of Penn- sylvania first enunciated the general rule that public officers, acting within the scope of their authority, are immune from tort liability so long as their act was not malicious or so wanton and reckless as to prove it was malicious. Under that rule, the Court maintained that a mistake in judgment was not suf- ficient t« render public officials liable in damages, and the courts were directed not to review the judgment of such offi- cials while they act within the scope of their authority. 43 Pa. at 217. This rule was reiterated in Burton v. Fulton, 49 Pa. 151 (1865) and has been consist- ently applied to the present date. Wa- ters v. Evans, 47 Pa.Dist. & Co.R.2d 419 (1969); Thomas v. Osborn, 39 Pa.Dist & Co.R.2d 472 (1966). In saan Paving Co. v. Hausman, 171 F.Supp. 768 (E.D.Pa.1959), the District Court con- strued the Pennsylvania cases as holding that: “(Plublic officials acting within the scope of their authority are not an- e in damages for the conse- eeentel Ove On cd quences of their acts unicss done mali- cicusly end with intent to injure.” 171 F.Supp. at 776. this rule has been applied not only to affirmative acts of officials, but also te their inaction or nonfeasance. Thomas v. Osborn, supra, 93 Pa.Dist. & Co. R.2d at 473. [13] The Pennsylvania courts have applicd the foregoing principle to a myr- Moreover, iad of factual situations, none of which are directly on point."®© We axe con- constract a causeway rather than a bride which resulted in water damace to the property of a downstreain owner. Yeuly v. Fisk, supra; the dismissal of a school principal by school directors signing a cause therefor, Burten v. ton, supra; action by an ounsuecessfe! bidder on ao state materials contract, Mishway Paving Co. v. Hausman, supra; without as- Ful- stn 5a 1350 344 FEDERAL SUPPLEMENT vinced, however, that the pervasive ap- miss the complaint as it is applicalle to lication of the rule indicates that the them will be granted. Pennsylvani. courts would likewise ap- [16] Finally, plaintiffs sugyest that fly it to the facts here involved. Since the doctrine of governmental immunity plaintiffs have not specifically allexed iN i. no longer viable and that we should their complaint malice or wanten and yo oxamine it. Conrad den.oustrates its reckless Conduct which is tantamount lo Vishiity as recently as 1971 and in Har- malice as to the individual defendants, ris, tan Third Pinel expressly refused ve conchide that they are immune from to re-examine the doctrine as recently as ait. Accordingly, the motion of the in- — yg69. We are bound by both. dividual @efendants to dismiss the com- Jaint as it is applicable to the:rn will be granted. i; Il. f14,15}] Lastly, the Daye complaint bas named the Pennsylvania Department f Trans iortation (Penndot) as a par- ' Again, jurisdiction is hased on diversity of citizenship and, gain, the Commonwealth raises the de- fense of immunity. Whether Penndot, an agency or alter ero of the State, is immune from the tort Hability posited rere is a@ question of state law. Harris Pennsylvanin Turnpike Comm’n., su- “ra, 410 F.2d at 1534-1835. In Conrad v Commorsveaith, Department of Migh- it s, 14] Pa. 520, 272 A.2d 470 (1971) ‘ ZIG 4r.00 ‘ ’ Sur Court of Pennsylvania ap- ad The a Mil oi FLOvernne%mt ' hi . lo i ection im tyre H = tm "aees ‘nst the Department of Highways. dm i674, the Pennsylvania erred the powers, lunc- and duties of the Department of io Venndot, 71 VS. § 511. the doctrine ef vovermmnental im- nity, ‘ a} pited in Correa, would Likewise bar this present action. Fur- : GEE, highly analogous situa- t the Sate * Court held that the J i Co nis sOrE, ak i rit i} tute engaged mon pe Onie! Tunetien, is immun Brom: ihectality in trespass for damages Besultisie 41 the neghiyence of its Brents And es ‘ss Rader v. Penn- eivania Turnpike Comm'n. supra. Ac berding ls, the motion of Penndet to dis- a Pata , t ! eet oa publ failure of pol edie tu Dre Uy b v. Bes | erty, Pho Vv. Gb born, s «3 16a ee) UNITED STATES COURT OF APPEALS For THE Tuirp Circuit No. 72-1769 HUBERT DAYE; TEDESCO BUS COMPANY, INC.; FRANK TEDESCO; and ACADEMY CHARTER SERVICE, INC., each in his or its own right and also on behalf of all passengers of Bus 2065 of the Tedesco Bus Company, Inc., injured on July 15, 1970, at New Smithville, Lehigh County, Pennsylvania, their par- ents, guardians, next of kin, heirs and legal repre- sentatives, Appellants, v. THE COMMONWEALTH OF PENNSYLVANIA, THE PENNSYLVANIA DEPARTMENT OF TRANS.- PORTATION, VICTOR W. ANCKAITIS, LESTER E. JORDAN, CHARLES C. SINCAVAGE, WIL- LIAM I. DAVIS, ROBERT BROWN and EDWIN REIKER (D.C. Civil No. 71-1726) No. 72-1840 MINDY MEYERS, an infant, by her parent and natural guardian, MARVIN MEYERS, and MARVIN MEY- ERS, individually, and LYNDA BIENENFELD, an infant, by her parent and natural guardian, STANLEY BIENENFELD, and STANLEY BIENENFELD, in- dividually, Appellants, v. THE COMMONWEALTH OF PENNSYLVANIA (D.C. Civil No. 71-2167) i a OPO PD Ty FO yak 4) ck dataset adie diiaaed onl pammaniineic te ties a iaailatl a ee i i el NEED OTP TENN NE (> 17a © 2 AppeaL From THE Unitep States District Court For THE Eastern District or PENNSYLVANIA Argued May 17, 1973 Before: Vax Dusen, Grspons and Rosenn, Circuit Judges. Richard F. Stevens, Esq. & Theodore J. Zeller, Esq., Butz, Hudders & Tallman, Allentown, Pennsylvania, Attorneys for Appellant in No. 72-1769. James B. Zane, Esq., Zane and Zane, New York, New York, Attorneys for Appellant in No. 72-1840. Daniel Ryan, Esq. & John J. Walsh, Esq., LaBrum & Doak, Philadelphia, Pennsylvania, Attorneys for Appellee in No. 72-1769. J. Shane Creamer, Attorney General, Edward V. A. Kussy, Assistant Attorney General, & Edward A. Hosey, Assistant Attorney General, Harrisburg, Pennsylvania, Attorneys for Appellee in No. 72-1769 and No. 72-1840. Tt oOo :-m 4 3 OPINION OF THE COURT (Filed August 3, 1973) Van Dusen, Circuit Judge. This is an appeal from the opinion and order of the United States District court for the Eastern District of Pennsylvania entered on June 30, 1972? which granted the motions of defendants to dismiss the complaints brought in a tort action for damages arising out of a bus accident allegedly caused by the improper design, construction and maintenance of an interstate highway and its safety de- vices. The plaintiffs in No. 72-1769 are the driver and the corporate owner of the bus (hereafter jointly referred to as Daye). They demanded damages for injuries suffered in the accident by the driver and the bus company. They also sought to bring a class action under F.R.C.P. 23 on behalf of the injured and deceased passengers.2 The de- fendants in Daye are the Commonwealth of Pennsylvania, the Department of Transportation in that state and named individuals, who were officials with the Department of Transportation. The complaint in No. 72-1840 was filed by Marvin - Meyers on behalf of his daughter Mindy, and by Stanley Bienenfeld on behalf of his daughter Lynda (hereafter jointly referred to as Meyers). In this action the defend- ants were the Commonwealth of Pennsylvania and the County of Lehigh, Pennsylvania.* 1. The opinion of, the District Court is reported in 344 F. Supp. 1337 (E_D. Pa. 1972). 2. The District Court concluded that the action brought by Daye was “not maintainable as a class action in that it fails to meet the prerequisites set forth in Rule 23 of the Federal Rules of Civil Procedure.” 344 F. Supp. at 1343. The dismissal of the Daye complaint insofar as i alleged a class action was not appealed, and has, in any event, been rendered moot by the conclusions of this opinion on the liability issues. 3. The complaint filed by Meyers named the County of Lehigh. Based on the stipulation of plaintiffs an order dismissing the action without prejudice against the County was entered May 1, 1972. See Doc. 8. y Py a FN PnP IPN FOI a | - » » ee reree ¢ " ¥ 4 Teepe aaa UMM yep Lope te : Parone tel teinald 4 The tragedy occurred on July 15, 1970 when a char- tered tour bus carrying a group of young people, aged 10 to 17, and their counselors was proceeding westbound on U.S. 22 (Interstate 78) about 12 miles west of Allentown, Pennsylvania. OPE PELE OE MO Lt 3 _ HEE PORNATE aN ETI en TP tad} ere irr " “ PET Tae Pare eo re ee - ; LoD li lil hale a ll ~ wn q bicsdts Wel Oe ee i ‘ , i 2la (3 6 to regulate the interstate highway systems," and thus sub- jects the states to Congressional regulation under the power reserved to the federal government by the commerce clanse of the Constitution.” In Mahler the contention was made by the plaintiff that the United States failed to fulfill its duty by causing to be approved defective highway plans, by failing to dis- cover faulty construction, and by failing to provide for and 11. 23 U.S.C. §402(a) provides: “(a) Each State shall have a highway safety program approved by the Secretary, designed to reduce traffic accidents and deaths, injuries, and property damage resulting therefrom. Such programs shall! be in accord- ance with uniform standards promulgated by the Secretary. Such uniform standards shall be expressed in terms of performance criteria. Such uni- form standards shall be promulgated by the Secretary so as to improve driver performance (including, but not limited to, driver education, driver testing to determine proficiency to operate motor vehicles, driver examina- tions (both physical and mental) and driver licensing) and to improve pedestrian performance. In addition such uniform standards shall include. but not be limited to, provisions for an effective record system of accidents (including injuries and deaths resulting therefrom), accident investigations to determine the probable causes of accidents, injuries, and deaths, vehicle registration, operation, and inspection, highway design and maintenance (including lighting, markings, and surface treatment), traMe control, vehicle codes and laws, surveillance of traffic for detection and correction of high or potentially high accident locations, and emergency services Such standards as are applicable to State highway safety programs shall, to the extent determined appropriate by the Secretary, be applicable to federally administered areas where a Federal department or agency con- trols the highways or supervises traffic operations. The Secretary shall be authorized to amend or waive standards on a temporary basis for the purpose of evaluating new or different highway safety programs instituted on an experimental, pilot, or demonstration basis by one or more States, where the Secretary finds that the public interest would be served by such amendment or waiver.” 12. The appellants place great weight on the decision in Individual Men- bers of the San Antonio Conservation Society v. Texas Highway Derariment. 446 F.2d 1013 (Sth Cir. 1971) and language in Pennsylvania Environmental Council, Inc. v. Bartlett, 454 F.2d 613 (3rd Cir. 1971) to support their asser- tion. However, in Teras Highway Department the suit was for injunctive relief designed to enforce the provisions of federal law which set forth condi- tions under which federal aid may be distributed to the states. Involved in that action was whether the state of Texas needed to comply with Section 102(2) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332 (Supp. 1971), which requires an environmental impact statement on “major federal actions significantly affecting the quality of the human environment...” The Fifth Circuit held that such a statement would be necessary. Likewise, in Bartlett, the issue involved the effect of the National Environmental Policy Act of 1969. The parties in the present action seek monetary damages from the state treasury, precisely what the Eleventh Amendment sought to avoid. We believe that this suit is different from an action to require the proper san 190d of federal funds. See Hard v. Ackroyd, 344 F. Supp. 1202 (D. are PS pee =r ere FPO SeP OIE Shee 8 Sey *Q CE ie