Opposition Brief — Brooks-Powers v. Metropolitan Atlanta Rapid Transit Authority

No. 03-544

IN THE

Supreme Court of the United States

JEAN BROOKS POWERS,

AS THE SURVIVING SPOUSE AND ADMINISTRATRIX OF THE

ESTATE OF HER DECEASED HUSBAND.

JOHN WALTER POWERS,

Petitioner,

V.

METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.

Respondent.

On Petition for a Writ of Certiorari to

the Court of Appeals of Georgia

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

ROBERT JON ROUTMAN

Counsel of Record

Metropolitan Atlanta Rapid

Transit Authority

2424 Piedmont Road, N.E.

Atlanta, Georgia 30324

(404) 848-5220

Counsel for Respondent

QUESTIONS PRESENTED

1.

Whether the exclusive remedy of a state workers’ com-

pensation act can be circumvented either by this Court grant-

ing an implied a private right of action under The Urban

Mass Transportation Act of 1964 contrary to the Act’s pur-

poses expressed by Congress in 49 U.S.C. §5301(f) or by this

Court overruling its decision in Collins v. City of Harker

Heights,Texas, 503 U.S. 115 (1992). As posed by the Peti-

tioner, this question was trifurcated into 1) whether an im-

plied private right of action existed, 2) whether Congress

intended to pre-empt workers’ compensation, and, 3) whether

due process created a separate right to sue.

ze.

Whether sovereign immunity prevents tort actions for

bodily injuries to employees of public authorities operating

rapid transit systems when sovereign immunity is expressly

waived within a state’s workers’ compensation act and when

said bodily injuries arise out of and in the course of employ-

ment with the public authority.

1

RULE 29.6 STATEMENT

The Metropolitan Atlanta Rapid Transit Authority is a

governmental corporation not subject to Rule 29.6. The

Georgia legislature created “ta public body corporate to be

known as the Metropolitan Atlanta Rapid Transit Authority

as a joint public instrumentality of the City of Atlanta and the

counties of Fulton, DeKalb, Cobb, Clayton and Gwinett.”

MARTA Act of 1965, Ga. L. 1965, p. 2243. “MARTA, by

creation and legislative enactment of the General Assembly,

is a State created local public authority.” Williams vy. MARTA,

247 Ga. App. 52 (2000).

—_

ill

TABLE OF CONTENTS

Page

RFI PEW FURIE LCED on nnccsssevesncccsespncnsvcersscssevensosesssaveseos 1

SP ce ee BNI E ooivnsoncsvenvcnssscesnosnvarienessnsosstassonsevoves il

Re BI FR IE CR ss oeccvssnsevencvesssnanescscsunssesernvessoeee v1

RESPONSE TO PETITIONER’S STATEMENT OF

hak os eaaisaerelvsevasieavyxisveindohvaeonverseves l

I. RESPONSE TO PETITIONER’S REASONS

Pee GAPS NGS PER PESITION..........0cc0ccccscssissncceenss 2

A. Petitioner Has No Implied Right To Sue For

Boany taries Under UMTA. ...................0s..0..0s0000. 2

1. Congress did not intend to pre-empt state

workers’ compensation acts. ...............ceseseeeeeeeeeees 2

2. Congress clearly stated its intent in 49

Se cine seser ces vicouviinsennsi ner eevendyessnvsess 3

3. The burden of proof required to show an

implied nght under federal statute 1s

Sima i eel at ee 5

4. Congressional intent is strictly construed............. 8

B. Petitioner Has No Cause Of Action Under The

sd duneasluenedebonsvvwns 7)

1. The exclusive remedy of workers’

compensation does not violate due process

Ne adele k ir ees ceun sh enwenekrnikenadesvessias 9

2)

. The exclusive remedy of workers’

compensation does not violate due process

nae cai secs saargpnnivddasiowctnswievesvnis 9

IT.

1V

TABLE OF CONTENTS - continued

Page

3. Pnor to Collins, lower courts had also

distinguished workers’ compensation from

URIOIIIE BNI sssis istics seven ceeciscereraseivecnnnes 1]

4. Analysis of a §1983 claim against a

POV CTTIIIIIIONE CITI. oo cscoccscvesecesivieveeesstavecceninannes 13

a. Petitioner’s harm was not caused by a

constitutional violation. ................ccceeeeseeeeees 14

(1) There is no due process right to a

safe working environment. .................:.06. 14

(2) There is no arbitrary deprivation of a

SUEY STINE i seccccscnce vast kees coverersiwnvesricne 16

b. Even if there was a constitutional

violation, MARTA cannot be held

responsible under §1983...............:....0sesssssee- 17

RESPONDENT’S QUESTION 2 INVOLVING

SOVEREIGN IMMUNITY FURTHER

SUPPORTS THE GEORGIA COURT OF

PAE Pace IE rues seiibannaesbsvsoucpssavanisdicivncsenneaves 19

A. The Correct Test Is Whether A State Has

Consented To Be Sued By Injured Workers

As Enunciated In Alden v. Maine. ..........0...c0ccc0cccseeee 19

B. The Court Of Appeals Of Georgia Determined

That Sovereign Immunity Was Waived Only

For The Purposes Of Respondent Being Sued

Under Workers’ Compensation......................0sssss0+0. 20

V

TABLE OF CONTENTS -— continued

Page

C. The Second Circuit Failed To Consider

Waiver Of Sovereign Immunity By New York

And Thus Established Erroneous Federal

Precedent Affecting The Rapid Transit

IEG aunicicsvcsissaticinsnsconceseaandema aes 21

1. Like Georgia, New York has expressly

defined its public authorities as employers

subject to the New York workers’

CUUIOIIIIE on chcivescncesescsmcnteeteenceacanetesaves 22

2. The error made by the Second Circuilt................ 22

CA iccsehvncs co arertusecnetenneanttenci in eee eee ee 23

Vl

TABLE OF AUTHORITIES

Page(s)

Cases

Alden v. Maine,

FT Se ie PE CE TT Ricinineisncsxnserestnsamieutveuidsrndooann 19, 22

Baker v. McCollan,

ES Te EFF CMe enssccterecisevecmsrneciecipalccetinvinalines 10, 13

Brooks-Powers v. MARTA,

260 Ga. App. 390, 579 S.E.2d 802 (2003)

CRE IE eisisctticinncerimnimcdiieanitaes 6, 21

Chicago Transit Authority v. Flohr,

SPS Ede CAE FN TT Thiiiticttniashcaceqratniciaaaacaeoerntaes 3

Collins v. City of Harker Heights, Texas,

Re Sha. 1 Ro A 0 PE Paaiecccnaiteasraveesitoemeaiaoonenetiat re passim

Cort v. Ash,

Be Gh CR inks cadasiccrneenumcdcneiovass ermamennaaior 6,7

County of Sacramento v. Lewis,

DE ds Mee Ei esansecorateesccevesnasstacbinsvcsaaeuanabannaeosatnnee, 18

Crowell v. Benson,

EE ee saree andi 13

DeMoss v. City of Coeur D’Alene,

LES Beleo FIG, 799. P.28 S75 CIGID) occsvescnciessvevesvcesvearsses 1]

Felton v. Southeastern Pennsylvania Transportation Authority,

ee Fe FE TOFS vssrnisserthntencccstinccornmenmennnennie 3

V11

TABLE OF AUTHORITIES -— continued

Page(s)

Ferguson v. Philadelphia Transp. Co.,

205 F.2d. 520 (3rd Cir. 1953) cert. denied 346 U.S. 867

EAPC cosa sch oo ceactadlececcamenlbacts us banraaien ahanaaialadeate aeamcematia 3

Georgia Department of Human Resources v. Joseph

Campbell Company,

SR ASB, Bk UE Dkk OF CLD sivsnsevecieoiasssesesesatacciiech 9

Gulf States Ceramic v. Fenster, mee

Zoe 15R. SOD, TSS S.E.26 GO CURIE) on siciessvesssnccavicsecastocans 9

Greene v. Long Island Railroad Company,

280 F.3d 224 (2™ Cir. 2002) cert. denied in Metropolitan

Transportation Authority v. Greene, No. 02-1173 (U.S.

Supreme Court, May 19, 2003). ......0s....«.ssssssseessssseses 19, 21

Henderson v. Hercules, Inc.,

253 S56. GED, FA4 BE. Lie GOS CT IGS) cnssecevesnvsvcercesssissacssseess 9

Hilton v. South Carolina Public Railways Commission,

BRE Blt Te CR Paeretccl ccasteney ison taecceeboeienspenusuaiaes 20

Kellogg Coiany v. Pinkston,

253 Ga. App. 190, 558 S.E.2d 423 (2001) cert. denied.....2

Local Division 732, Amalgamated Transit Union vy. MARTA,

eR We eR ad) | lak a | +] eee nee eee 8

McClary v. O'Hare,

i Ne EST gal 6 | | er eee 12,13

Vill

TABLE OF AUTHORITIES - continued

Page(s)

Noe v. MARTA,

644 F.2d 434 (5" Cir. 1981) cert. denied 454

eB ee iicasccaunnastecaneatiasssomuekacinnbeadsueksaeadenaneen a, 8,8

Parden v. Terminal Railway of Alabama Docks Dept.,

BE Bee HE i tercinsetnicansersepecsnssmmnenccenstendasonents 20

Ponder v. Southern Tea Co.,

PP Ge. SID, SIS B20 BAS CGO vvecvcicsereesccseossersecvesses 9

Touche Ross & Co. v. Redington,

As eB I Sees ocerdca enter ieee tuoyesariraesawndaomconenens 6

Transamerica Mortgage Advisors, Inc. v. Lewis,

a A i ickcie so casecatecitincsnansb tans aastidkapeientesesacnnens 6

Washington v. District of Columbia,

Se Pane SF Ca Gy Finer ni acetrcrcesceones 11

Williams v. Byrd,

242 Ga. GD, 247 SEZ B74 (1FTB) nncccccvessccscocccasccosesersccess 9

Williams v. MARTA,

247 Ga. App. 52 (2000) cert. denied .............::0000 passim

Statutes

We Ey io SE saat caeccntnnssesiasncksanzaschcsvevetncstidensseiosazee’ passim

ET ei Pov ececrtephtansetncconsirn ta natonaserseeneriniens 1,3, 4,7

1X

TABLE OF AUTHORITIES -— continued

Page(s)

Pes ET lesnnsihenessviceeniscasanaisd aoakicag cides 3,4,5,7

I ac SE enccntrinecennsncavcenscvastesetomcdebentantonneccedsounsaete 3

eG Re ovine bannasincecbiabiiasauaaeiceceeanteatuetednecian 3

A es sini cin tnicssadameshedaal cociiuncweiencunctannineeres 3

Federal Employers’ Liability Act of 1908 ("FELA"),

35 Stat. 65, 45 U.S.C. §51, et sequitur)........00.0ccc000.. passim

Ga. Code Ann. §34-9-1(3) (1998) ............ccssssssssesscsseens 20, 21

Ga. Code Ann. §34-9-11(a) (1998)... eeeeceeeceeeseeeeees 1,2

Georgia Employers’ Liability Act, ("GELA"),

Ga. L. 1909, p. 160, Ga. Code Ann. §34-9-40 (1998) er

I ces iscsvctsreniivnabnpdecestiisuastetttraimceviomunaisaties 3, 8, 20, 21

MARTA Act of 1965, Ga. L. 1965, p.2243............ 11, 13, 16, 20

Urban Mass Transportation Act of 1964, ("UMTA"),

78 Stat. 302, 49 U.S.C. §5301 et sequitur .........00.00.. passim

1

RESPONDENT?’S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Respondent, Metropolitan Atlanta Rapid Transit Author-

ity (“MARTA”), respectfully requests that this Court deny

the petition for a wnt of certiorari on the questions as filed by

Petitioner in this case. :

RESPONSE TO PETITIONER’S STATEMENT OF

THE CASE

The Petitioner’s statement of facts is accepted with clan-

fications. First, the Respondent Metropolitan Atlanta Rapid

Transit Authority (“MARTA’”’) disputes the statement of train

operator Jennifer Armour that she was not notified that there

were workers on the train tracks. Second, the facts, as recited

in the Georgia Court of Appeals decision, include that a no-

tice of claim was filed with Georgia State Board of Workers’

Compensation, the injuries to the deceased were accepted as

compensable under the Georgia Workers’ Compensation Act,

and benefits were being paid thereunder. The incident arose

out of and in the course of employment.

The Georgia Workers’ Compensation Act provides for

what is known as the exclusive remedy provision of workers’

compensation by specifically stating “[t]he mghts and the

remedies granted to an employee by this chapter shall ex-

clude all other rights and remedies of such employee, his

personal representative, parents, dependents, or next of kin,

at common law or otherwise, on account of such injury,

loss of service, or death.” (emphasis added) Ga. Code Ann.

§34-9-11(a) (1998) . “The nghts and remedies of an em-

ployee against his or her employer for a work-related injury

under the Workers’ Compensation Act foreclose all other

remedies at common law or otherwise for such injury, lost

service or death” when a complaint pleads “‘a cause of action

exclusively within the Workers’ Compensation Act.” Kel-

logg Company v. Pinkston, 253 Ga. App. 190, 191, 558

S.E.2d 423, 424 (2001) cert. denied.

The Estate of John Walter Powers is barred by the exclu-

sive remedy provision of workers’ compensation from mak-

ing further claims for bodily injures against Respondent and

so too is his surviving spouse, Jean Brooks-Powers. Ga.

Code Ann. §34-9-11(a), Gulf States Ceramic v. Fenster, 228

Ga. 400, 185 S.E.2d 801 (1971), Ponder v. Southern Tea

Co., 170 Ga. App. 819, 318 S.E.2d 242 (1984).

Workers’ compensation systems in every state are predi-

cated on the exclusive remedy principle. Hence, in order to

sustain a cause of action against Respondent, Petitioner at-

tempts an end run around the exclusive remedy provision by

asserting an implied private nght of action under the Urban

Mass Transportation Act of 1964 (“UMTA”), 78 Stat. 302,

49 U.S.C. §5301 et sequitur and by asserting due process

violations of a right to a safe work environment.

I. RESPONSE TO PETITIONER’S REASONS FOR

GRANTING THE PETITION

A. Petitioner Has No Implied Right To Sue For

Bodily Injuries Under UMTA.

1. Congress did not intend to pre-empt state

workers’ compensation acts.

If Congress had wanted to pre-empt state workers’ com-

pensation acts to allow transit workers to sue for injures aris-

ing out of and in the course of employment, it could have

merely cited to the Federal Employers’ Liability Act of 1908

("FELA"), 35 Stat. 65, 45 U.S.C. §51, et sequitur when enact-

ing the Urban Mass Transportation Act of 1964 (““UMTA”).

Since Congress did not do so, the clear intent of Congress in

enacting UMTA was to leave the statutory coverages unaf-

fected. Hence commuter rail systems fall under FELA while

rapid transit systems such as MARTA fall under workers’

compensation. Ferguson v. Philadelphia Transp. Co., 205

3

F.2d. 520 (3rd Cir. 1953) cert. denied 346 U.S. 867 (1953),

Chicago Transit Authority v. Flohr, 570 F.2d 1305 (7th Cir.

1977), Felton v. Southeastern Pennsylvania Transportation

Authority, 952 F.2d 59 (3rd Cir. 1991), See Williams v.

MARTA, 247 Ga. App. 52 (2000) cert. denied (holding that

when the Georgia legislature waived sovereign immunity it

intended MARTA to be under the Workers’ Compensation

Act, not the Georgia Employers' Liability Act ("GELA") Ga.

L. 1909, p. 160, Ga. Code Ann. §34-9-40 (1998)).

2. Congress clearly stated its intent in 49 U.S.C.

$5301 (f).

Petitioner claims implied nghts under the Urban Mass

Transportation Act of 1964 (““UMTA”). The provisions cited

by the Petitioner are 49 U.S.C. §5329 and 49 U.S.C. §5330.

These provisions do not provide for individual private rights

to sue. They are purely regulatory agency enabling acts. 49

U.S.C. §5329(a) authorizes the Department of Transportation

to “withhold further financial assistance.” 49 U.S.C.

§5330(b) limits the withholding to “not more than 5% of the

amount required to be appropriated.” Congress obviously

did not intend to interfere with state workers’ compensation

schemes since these provisions deal purely with federal fund-

ing as the only intended remedy for agency regulatory en-

forcement.

The Petitioner’s assertion that the purpose of Congress in

passing UMTA was to provide transit workers with a way

around workers’ compensation is without basis. Moreover,

the Petitioner’s reliance on The Code of Federal Regulation

as evidence of Congressional intent is wholly erroneous since

the CFR is a mere promulgation by agency civil servants, not

Congressional legislative history. Congress’ stated intent

was codified in 49 U.S.C. §5301(f) as follows:

f) General purposes - The purposes of this chapter

are —

(1) to assist in developing improved mass

transportation ...

(2) to encourage ... mass transportation sys-

tems needed for economical and desirable urban de-

velopment ...

(3) to assist States and local governments and

their authorities in financing ...

(4) to provide financial assistance to State and

local governments and their authorities to help carry

out national goals ...

(5) to establish a partnership that allows a

community, with financial assistance from the Gov-

emmment, to satisfy its urban mass transportation re-

quirements.

Nowhere in 49 U.S.C. §5301(f) is there any support for

Petitioner’s assertions.

In trying to avoid the implications of 49 U.S.C. §5301(f),

the Petitioner relies on 49 U.E.C. §5329(a) which provides:

The Secretary of Transportation may investigate a

condition in equipment, a facility, or an operation

financed under this chapter that the Secretary be-

lieves causes a serious hazard of death or injury to

establish the nature and extent of the condition and

how to eliminate or correct it. If the Secretary es-

tablishes that a condition causes a hazard, the

Secretary shall require the local governmental au-

thority receiving amounts under this chapter to sub-

mit a plan for correcting it. The Secretary may

withhold further financial assistance under this

chapter until a plan is approved and carried out.

(emphasis added)

This statutory provision is incomplete in its scope. Its in-

completeness self-proves the lack of congressional intent to

5

create a comprehensive remedy for employee injuries arising

out of and in the course of employment. First, Congress did

not apply this statute to the equipment, facilities or opera-

tions of MARTA financed by state funds, local sales taxes

and passenger fares. Congress left out quite a bit of

MARTA’s operations and facilities. Second, Congress

made the provision discretionary and the Secretary can pick

and chose what he wants to investigate. Congress left out

quite a bit of what happens. Third, the remedy is one of cor-

rection not compensation or punishment. Congress did not

intend to provide recompense for injuries or to take away

scarce resources from local authorities. Fourth, Congress

allowed the Secretary to use his discretion to withhold further

funding, in other words, to put a pause on currently federally

funded purchases or construction, until a plan is in place.

Congress imposed no other remedy nor intended to do so.

Moreover, 49 U.S.C. §5329 refers to passengers in

§§(b)(3) and employees in §§(b)(4). Therefore, if this Court

accepts Petitioner’s premise that employees have an implied

right to sue under UMTA and under 42 U.S.C. §1983 for

deprivation of due process, then it must find that passengers

do also, thus further opening the floodgates of litigation. Lit-

erally every bus fender bender and every rail station slip and

fall would be a federal case.

3. The burden of proof required to show an

implied right under federal statute is restrictive.

This Court has enunciated legal tests to be applied in de-

termining whether an implied nght exists. The Georgia

Court of Appeals followed the correct federal analysis for the

existence of an implied night to sue as previously applied by

the local Circuit court to the Respondent. The Georgia Court

of Appeals cited to Noe v. MARTA, 644 F.2d 434 (5" Cir.

1981) cert. denied 454 U.S. 1126. for the proposition that

“{a] plaintiff who asserts the existence of an implied nght of

action bears the burden of establishing that proposition.”

Brooks-Powers v. MARTA, 260 Ga. App. 390, 392, 579

S.E.2d 802, 805 (2003). The analysis by the Georgia Court

of Appeals was guided by the analysis in Noe v. MARTA

which explained that:

In Cort [v. Ash, 422 L.. “6 (1975)] the Supreme

Court established a four-pronged test to be applied

(1) Is the plaintiff a member of the class for whose

special benefit the statute was created?

(2) Is there any indication of legislative intent either

to create or deny the remedy sought?

(3) Is it consistent with the underlying statutory

purposes to imply a remedy such as that sought?

(4) Is the cause of action one that is traditionally

relegated to state law so that it would be inapproni-

ate to infer a cause of action based solely on federal

law?

... The [Cort] decision was far more restrictive than

earlier ones.

In Touche Ross [& Co. v. Redington, 442 U.S. 560

(1979)] the Court enunciated its new approach, that

the task of federal courts in cases such as this was

limited solely to determining whether Congress in-

tended to create the private nght of action being as-

serted in a given case. Consistent with that shift in

analytic framework the Court considered the first

two criteria set out in Cort and, finding them not to

be satisfied, declined to consider factors three and

four.

Transamerica Morigage Advisors, Inc. v. Lewis,

[444 U.S. 11 (1979)] continued the trend of further

restricting those situations in which private actions

would be implied ... the Court based its decision

solely on the second factor in Cort.

Nee v. MARTA, at 436-7.

Respondent now shows this Court that the Petitioner can-

not meet the four standards of Cort as applied in Noe v.

MARTA.

(1) First, “the protection and benefit of the party seeking

such action must be the ‘primary congressional goal’ of the

statute , or, as another has stated it, ‘the plamtiff mu:. oe the

primary beneficiary of the statute.” Noe v. MARTA at 437.

Here, Petitioner cannot show that the primary congressional

goal of UMTA was to make the Petitioner the primary bene-

ficiary of UMTA in the face of 49 U.S.C. §5301(f).

(2) “The second criteria of Cort is that there be an indi-

cation of legislative intent to create or deny the remedy

sought.” Noe v. MARTA at 438. There is nothing in the stat-

ute to expressly indicate Congress intended to create recom-

pense for accident victims or to punish local authorities.

When Congress exercised its discretion to chose a penalty

power for the Secretary of Transportation, it eschewed rec-

ompense and punishment. Instead 49 U.S.C. §5329 allows

the Secretary only to withhold additional funding for specific

new projects until a correction plan is submitted.

(3) “The third factor is whether it is consistent with the

underlying statutory purpose to imply a remedy such as that

sought.” Noe v. MARTA at 439. The purposes expressed by

Congress in 49 U.S.C. §5301(f) are inconsistent with Plain-

tiffs requested remedies. It is inconsistent with UMTA to

redirect society’s scarce resources into punitive damages. It

is inconsistent with UMTA to imply a remedy Congress spe-

cifically omitted. Congress and state legislatures created

8

remedies for employees of local rapid transit authorities and

commuter raii authorities, viz., the Federal Employers Liabil-

ity Act (FELA), the Georgia Employers Liability Act

(GELA), and the Georgia Workers Compensation Act. See

Williams v. MARTA, 247 Ga. App. 52 (2000).

(4) “The fourth and final criteria is that the cause of ac-

tion must not be one that is traditionally relegated to state

law.” Noe v. MARTA at 439. Clearly the claim for the

wrongful death of John Powers is a traditional state law neg-

ligence tort. It is a train accident allegedly caused by negli-

gence of the train operator and the contributory negligence of

John Powers.

4. Congressional intent is strictly construed.

The Georgia Court of Appeals decision is faithful to the

11" Circuit precedent in Local Division 732, Amalgamated

Transit Union v. MARTA, 667 F.2d 1327 (11" Cir. 1982)

which provided implied rights must be strictly construed.

Displaying what has been described as a drastic

change in attitude, the Supreme Court has imposed

increasingly severe restrictions on the availability of

implied causes of action under federal statutes.

If we are to conclude that Congress meant more

than it said when it enacted a statute, we must do so

on the basis that Congress actually intended to legis-

late as we infer ... In order for us to infer a private

right of action, or federal jurisdiction, we must have

before us clear evidence that Congress intended to

provide such a remedy and if the legislative history

provides no clear indication one way or the other, so

that clear evidence of affirmative congressional in-

tent is lacking, we cannot infer that Congress has

legislated silently. (citations omitted)

Local Div. 732, ATU v. MARTA, at 1334-5.

Petitioner cites no committee proceedings, no testimony

before Congress and no Congressional debate to establish in

the legislative history a congressional intent to create an im-

plied nght to sue or to pre-empt state workers’ compensation

acts.

B. Petitioner Has No Cause Of Action Under The

Due Process Clause.

1]. The exclusive remedy of workers’ compensation

does not violate due process under state law.

The Georgia Supreme Court has upheld the constitution-

ality of the Georgia exclusive remedy. The Georgia Supreme

Court emphatically stated “[w]Je also reject [arguments] that

the immunity granted employers in the workers’ compensa-

tion act violates the due process and equal protection provi-

sions of the State and Federal consiitutions.” (citations

omitted) Georgia Department of Human Resources v. Jo-

seph Campbell Company, 261 Ga. 822, 823-4, 441 S.E.2d

871, 873 (1992). The exclusive remedy bar also applies to

suits against co-workers. In that context, constitutional at-

tacks grounded on violations of “Georgia’s due process

clause and Georgia’s equal protection equivalent” were re-

jected by the Georgia Supreme Court which held the bar was

“not unconstitutional for any reason alleged.” Williams v.

Byrd, 242 Ga. 80, 80-1, 247 S.E.2d 874, 875 (1978). Ina

challenge to the exclusive remedy bar to a loss of consortium

claim, the Georgia Supreme Court held that “the claim of

constitutional deprivation is without merit.” Henderson v.

Hercules, Inc., 253 Ga. 685, 686, 324 S.E.2d 453, 454

(1985).

2. The exclusive remedy of workers’ compensation

does not violate due process under federal law.

The Constitution is the supreme law of the land. The ex-

clusive remedy of workers compensation cannot bar constitu-

tional torts. Hence this Court has distinguished state law

10

traditional torts of negligence from constitutiona! torts. This

Court stated “Section 1983 imposes liability for violations of

rights protected by the Constitution, not for vioiations of du-

ties of care arising out of tort law.” Baker v. McCollan, 443

U.S. 137, 146 (1979).

When presented with a workers’ compensation claim

dressed up as a due process violation of an express statutory

right granted by Texas, this Court preserved the exclusive

remedy by simply saying the action was outside the realm of

constitutional law. In the case of Collins v. City of Harker

Heights, Texas, 503 U.S. 115 (1992) the widow of a city

sanitation employee brought suit when her husband died of

asphyxia after entering a manhole to unstop a sewer line in

the course of his employment. The widow alleged that the

husband “had a constitutional nght to be free from unreason-

able risks of harm to his body, mind and emotions and a con-

stitutional nght to be protected from the [city’s] custom and

policy of not training its employees about the dangers of

working in sewer lines and manholes, not providing safety

equipment at jobsites, and not providing safety warnings.” Jd.

at 117. Additionally, she alleged “that a prior incident had

given the city notice of the nsks of entering the sewer lines

and that the city had systematically and intentionally failed to

provide the equipment and training required by a Texas stat-

ute.” Jd. at 118. Thus we have a fact pattern which is on

point to the fact pattern in the case sub judice.

This Court stated “[e]ven though the city’s conduct may

be actionable under state law, we hold that §1983 does not

apply because such conduct does not violate the Due Process

Clause.” Jd at 117. Then this Court turned to the express

violation of the Texas Hazard Communication Act, a safety

statute, and stated: “[w]e also assume ... that the [Texas] Act

created an entitlement that qualifies as a ‘liberty interest’ pro-

tected by the Due Process Clause. But even with these as-

sumptions, petitioner’s claim must fail for she has not alleged

that the deprivation of this liberty interest was arbitrary in the

1]

constitutional sense. The reasons why the city’s alleged fail-

ure to train and warn did not constitute a [constitutional dep-

rivation of substantive due process] apply a fortiori to the

less significant liberty interest created by the Texas statute.”

(citations omitted) Collins v. City of Harker Heights, at 129.

This Court refused to create a substantive due process ex-

ception for a workers’ compensation claim involving the ex-

press violation of a state-law safety statute specifically

designed to prevent the harm that occurred. Petitioner would

have this Court create a substantive due process exception for

a workers’ compensation claim based on an invented implied

right to sue under a generally designed federal funding stat-

ute not specifically designed to prevent the harm which oc-

curred.

3. Prior to Collins, lower courts had also

distinguished workers’ compensation from

constitutional torts.

The Supreme Court of Idaho was faced with a similar fact

pattern to the case sub judice. Municipal employees sued the

City of Coeur D’Alene for exposure to asbestos under §1983

and the Idaho constitution. The Supreme Court of Idaho up-

held the lower court’s summary judgment that the suit was

barred by Idaho’s state workers’ compensation exclusive

remedy provision and that the §1983 action was barred be-

cause it was historically applied to deliberate decisions of

government officials to deprive a person of life, liberty or

property, not to mere negligence. DeMoss v. City of Coeur

D'Alene, 118 Idaho 176, 795 P.2d 875 (1990).

The U.S. Court of Appeals for the District of Columbia

has also ruled that using §1983 as an end run around the ex-

clusive remedy provision failed constitutional muster: “what-

ever ... mghts may be under state law ... [there] is no

constitutional nght to a safe working environment ... [there-

fore] failure to remedy safety problems ... is not actionable

under section 1983 as a deprivation of a Fourteenth Amend-

12

ment liberty interest without due process of law.” Washing-

ton v. District of Columbia, 802 F.2d 1478, 1482 (D.C. Cir.

1986).

The Second Circuit also determined to protect the integ-

rity of the workers compensation system when faced with a

due process challenge. The case of McClary v. O'Hare, 786

F.2d 83 (2"° Cir. 1986) is on point with the case sub judice.

“McClary died ... in the course of his employment ... when a

wire cable on a mobile truck crane being operated by a fel-

low employee broke ... [and] his wife, administratnix of his

estate, brought suit under 42 U.S.C. §1983 ... [and] alleged

the crane operator did not have a certificate of competency,

contrary to N.Y. Gen. Bus. Law § 482 (McKinney 1984).”

McClary at 84. The Second Circuit affirmed the United

States District Court’s dismissal. The Second Circuit noted

that Mrs. McClary’s complaint “‘attempts to elevate the claim

from one sounding in state tort law to one of constitutional

dimensions, under the rubric of procedural due process.” /d.

at 86. The Second Circuit quickly perceived the implications

and concluded:

. any claim against a state or local official that

sounds in tort can be pleaded, as this one is, as an

‘established state procedure’ case.

Appellant claims that the exclusive remedy under

state law, the Workers’ Compensation Law, is in-

adequate because its exclusivity provisions consti-

tute an invidious form of discrimination and

deprivation of due process and equal protection of

the laws by depriving employees of the right to re-

cover damages from the employer outside of Work-

ers’ Compensation. That contention simply cannot

stand. Workers’ Compensation statutes, which im-

pose liability without fault on employers’ insurers

with respect to claims by employees or their per-

13

sonal representatives, have been substantively up-

held against due process challenge time and again in

the Unitied States Supreme Court. See Crowell v.

Benson, 285 U.S. 22, 42, 52 S.Ct. 282, 289, 76

L.Ed. 598 (1932) (citations omitted). While work-

ers’ Compensation in this case may not be as fully

compensatory as a suit under section 1983 would

be, the federal Constitution does not set a standard

so high as to require total compensation for all inju-

nies. See Parratt [v. Taylor], 251 U.S. at 543-44,

101 S.Ct. at 1916-17.

As the [Supreme] Court stated in Baker v. McCol-

lan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61

L.Ed.2d 433 (1979), “[s]ection 1983 imposes liabil-

ity for violations of rights protected by the Constitu-

tion, not for violations of duties of care arising out

of tort law.” We do not think that improper actions

taken by employers violate an employee’s substan-

tive due process nghts simply because that em-

ployer is a government official.... In sum, under

these circumstances, the substantive component of

the Due Process Clause does not provide a remedy

to a public employee that would not be available to

a private employee subject to identical conduct by

his employer.

McClary at 87-89.

4. Analysis of a $1983 claim against a

governmental entity.

The Georgia legislature created “ta public body corporate

to be known as the Metropolitan Atlanta Rapid Transit Au-

thority as a joint public instrumentality of the City of Atlanta

and the counties of Fulton, DeKalb, Cobb, Clayton and

Gwinett.”. MARTA Act of 1965, Ga. L. 1965, p.2243.

os

“MARTA, by creation and legislative enactment of the Gen-

eral Assembly, is a state created local public authonty.” Wil-

liams v. MARTA, 247 Ga. App. 52 (2000). Because MARTA

is a local governmental entity, it is subject to constitutional

analysis as applied by this Court in Collins v. City of Harker

Heights, Texas. The Collins Court stated “proper analysis

requires us to separate two different issues when a §1983

claim is asserted against a municipality: [a.] whether plain-

_tifff's harm was caused by a constitutional violation, and [b.]

if so, whether the city is responsible for that violation.” (cita-

tion omitted) Collins at 120.

a. Petitioner’s harm was not caused by a

constitutional violation.

In order to make a §1983 claim, the Petitioner must find

some constitutional right that has been al'egedly violated. In

the case sub judice, as in Collins, two possible approaches

are used by the Petitioner. 1) The Petitioner can attempt to

ground the constitutional nghts violation on a substantive

due process right to a safe working environment secured by

the 14'" Amendment. 2) The Petitioner can attempt to ground

the constitutional nghts violation on a 14 Amendment lib-

erty interest in a safe working environment secured by a

statutory safety provision. This Court rejected both ap-

proaches in Collins.

(1) There is no due process right to a safe

working environment.

This Court clearly stated “(t]he Due Process Clause

‘is not a guarantee against incorrect or ill-advised personnel

decisions.” Nor does it guarantee municipal employees a

workplace that is free of unreasonable risks of harm.” (cita-

tions omitted) Collins at 129. In Collins, the plaintiff ad-

vanced “[1] that the Federal Constitution imposes a duty on

the city to provide its employees with minimal levels of

safety and security in the workplace, or [2] that the City’s

‘deliberate indifference’ to [Plaintiff's] safety was arbitrary

15

government action that must ‘shock the conscience’ of fed-

eral judges.” Collins at 126. In the case sub judice, the Peti-

tioner herein offers the same arguments. These arguments

are doomed for the same reasons as they were in Collins. In

Collins this Court stated the “[widow’s] submissions that the

city violated a federal constitutional obligation to provide its

employees with certain minimal levels of safety and security

is unprecedented.” Collins at 127. This Court distinguished

prior cases by noting that they dealt with “a duty to take care

of those who have already been deprived of their liberty.” Jd.

And then this Court concluded that the widow could not

maintain “that the City had deprived Collins of his liberty

when it made, and he voluntarily accepted an offer of em-

ployment.” Collins at 128. In the case sub judice, John Pow-

ers voluntarily accepted employment with MARTA.

There is no dispute over the underlying claim of the Peti-

tioner being a typical state law wrongful death tort. The con-

stitutional exceptions for “deliberate indifference” and

“shocks the conscience” do not apply to typical state law

torts. To dispose of Petitioner’s arguments that the excep-

tions for “deliberate indifference’ and “shocks the con-

science” lift a state-law tort to the level of a constitutional

deprivation of rights, Respondent need only paraphrase this

Court’s analysis in Collins:

We also are not persuaded that [MARTA’s] alleged

failure to train its employees, or to warn them about

known nisks of harm, was an omission that can

properly be characterized as arbitrary, or conscience

shocking, in a constitutional sense. Petitioner’s

claim is analogous to a fairly typical state-law tort

claim: [MARTA] breached its duty of care to her

husband by failing to provide a safe working envi-

ronment....we have previously rejected claims that

the Due Process Clause should be interpreted to im-

pose federal duties that are analogous to those tradi-

tionally imposed by state tort law.... Our refusal to

16

characterize [MARTA’s] alleged omission in this

case as arbitrary in a constitutional sense rests on

the presumption that the administration of govern-

ment programs is based on a rational decisionmak-

ing process that takes account of competing social,

political, and economic forces. (citations omitted)

Collins at 128.

The logic of Collins applies with equal force to Respo-

nent MARTA. MARTA’s organizational structure is a “ra-

tional decisionmaking process that takes account of

competing social, political and economic forces.”” Members

of MARTA’s Board of Directors are variously nominated

and elected by the city, appointed by the counties, or are ex

officio members by virtue of their public office. MARTA Act

of 1965, § 6, Ga. L. 1965, p. 2243, as amended. The Board

meetings are open to the public. /d. at § 6(h). The Board re-

ports to each appointing governing body quarterly. Jd. at §

6(k)(2). MARTA’s contracts are open to public review. /d. at

§9. A public hearing process is employed to set MARTA’s

fares (Id. at §9) and to set MARTA’s annual budgets (/d. at

§17).

(2) There is no arbitrary deprivation of a

liberty interest.

In the second approach to attempting to find a consti-

tutional violation, the Petitioner must find some due process

or liberty interest violation of a statutonly granted nght. Pe-

titioner in the case sub judice argues that Respondent has vio-

lated Petitioner’s due process rights and liberty interest by

failing to provide a safe working environment secured by an

implied right of private action under UMTA. This Court has

already rejected both the due process and the liberty interest

arguments. In Collins, the defendant employer had expressly

violated the Texas Hazard Communication Act which pro-

vided penalties for the exact conduct of the defendant em-

ployer. This Court quickly disposed of the arguments stating:

17

Finally, we reject petitioner’s suggestion that the

Texas Hazard Communication Act supports her sub-

stantive due process claim. We assume that the Act

imposed a duty on the city to warn its sanitation

employees about the dangers of noxious gasses in

the sewers and to provide safety training and protec-

tive equipment to minimize those dangers. We also

assume, as petitioner argues, that the Act created an

entitlement that qualifies as a “liberty interest” pro-

tected by the Due Process Clause. But even with

these assumptions, petitioner’s claim must fail for

she has not alleged that the deprivation of this lib-

erty interest was arbitrary in the constitutional sense.

The reasons why the city’s alleged failure to train

and warn did not constitute a constitutionally arbi-

trary deprivation of Collins’ life apply a fortiori to

the less significant liberty interest created by the

Texas statute. (citation omitted)

Collins v. City of Harker Heights, Texas at 129-30.

The Collins rationale applies a fortiori to the weaker

claim of Petitioner in the case sub judice. The Petitioner sub

judice does not rely on an express violation of a safety statute

written to prevent the specific conduct alleged to the em-

ployer defendant. Instead, Petitioner asserts that there was a

violation of an “implied nght” in a statute generally designed

to accomplish general purposes other than prevent the spe-

cific conduct alleged by Petitioner.

b. Even if there was a_ constitutional

violation, MARTA cannot be held

responsible under $1983.

In Collins, this Court clarified its prior rulings on the is-

sue of responsibility for §1983 violations and stated “mu-

nicipalities may not be held liable ‘unless action pursuant to

official municipal policy of some nature caused a constitu-

tional tort.’’(citations omitted) Collins at 121. “[A] munici-

18

pality cannot be held liable under § 1983 on a respondeat

superior theory....‘[T]herefore, a local government may not

be sued under § 1983 for an injury inflicted solely by its em-

ployees or agents. Instead, it is when execution of a govern-

ment’s policy or custom ... inflicts the injury that the

government as an entity is responsible under § 1983.’” (cita-

tions omitted) Collins at 121. In the case sub judice it is not

alleged that Respondent has any cfficial policy or custom of

wrecking trains or running over employees. One worker’s

alleged negligence resulted in a co-worker’s death.

- Petitioner in the case sub judice attempts the same

“shocks the conscience” argument that Mrs. Collins used to

try and make a mere accident the official policy of a govern-

mental entity. In Collins, the widow alleged the city fol-

lowed, with “deliberate indifference,” a custom and policy of

not training its workers, not providing safety equipment and

not providing safety warnings. Jd. at 124, See also 117.

However, thic Court did not rule that this allegation of “de-

liberate indifference” was sufficient to establish a state ac-

tion. Instead this Court merely assumed “for purposes of

decision that the allegations in the complaint are sufficient to

provide a substitute for the doctrine of respondeat superior

as a basis for imposing liability on the city for the tortious

conduct of its agents ... that assumption does not confront

the question of whether the complaint has alleged a constitu-

tional violation.” Jd. at 124. This Court then went on to find

there was no constitutional violation.

In 1998 this Court further explained Collins by noting

that “in Collins v. Harker Heights, supra, at 128, we said

again that the substantive component of the Due Process

Clause is violated by executive action only when it ‘can

properly be characterized as arbitrary, or conscience shock-

ing, in a constitutional sense.’” County of Sacramento v.

Lewis, 523 U.S. 833, 847 (1998). This Court further ex-

plained its decisions defining the constitutional ser ». of what

is meant by “shocks the conscience.”” Shocks the conscience

19

does not refer to duties of care but to “the decencies of civi-

lized conduct ... traditional ideas of fair play and decency ...

interfer[ence] with nghts implicit in the concept of ordered

liberty.” Sacramento v. Lewis, at 845-7. The case sub judice

does not involve the constitution.

II. RESPONDENT’S QUESTION 2 INVOLVING

SOVEREIGN IMMUNITY FURTHER SUPPORTS

THE GEORGIA COURT OF APPEALS DECI-

SION.

The questions as presented by the Petitioner are of no

merit. However, before Petitioner’s questions can be consid-

ered, the threshold question to be decided is whether the

Georgia Legislature waived sovereign immunity thus allow-

ing MARTA to be sued by employees for bodily injures

arising out of and in the course of employment. The Georgia

Court of Appeals has determined that the waiver of sovereign

immunity for a local rapid transit authority was conditioned

on suits for bodily injury arising out of and in the course of

employment being brought under workers’ compensation.

Williams v. MARTA, 247 Ga. App. 52, 542 S.E.2d 199

(2000), cert. denied. The Second Circuit has wrongly deter-

mined that a local rapid transit authority employee may sue

in tort under FELA even though the authority is under work-

ers’ compensation. Greene v. Long Island Railroad Com-

pany, 280 F.3d 224 (2™ Cir. 2002) cert. denied in

Metropolitan Transportation Authority v. Greene, No. 02-

1173 (U.S. Supreme Court, May 19, 2003).

A. The Correct Test Is Whether A State Has

Consented To Be Sued By Injured Workers As

Enunciated In Alden v. Maine.

In Alden v. Maine, 527 U.S. 706 (1999), this Court inter-

preted and restated its decisions in Parden v. Terminal Rail-

way of Alabama Docks Dept., 377 U.S. 184 (1964) and

20

Hilton v. South Carolina Public Railways Commission, 502

U.S. 197 (1991). Those decisions were explained by Alden

to stand for “the narrow proposition that certain States had

consented to be sued by injured workers covered by FELA,

at least in their own courts.” Alden at 737-38. Thus when

examining the case sub judice the proper analysis must first

begin by answering the question whether Georgia consented

to MARTA being sued in tort (under GELA or FELA) or to

being sued only under workers’ compensation.

B. The Court Of Appeals Of Georgia Determined

That Sovereign Immunity Was Waived Only For

The Purposes Of Respondent Being Sued Under

Workers’ Compensation.

In Williams v. MARTA, 247 Ga. App. 52, 542 S.E.2d 199

(2000) cert. denied, the Georgia Court of Appeals had to de-

termine whether Respondent was subject to being sued for

employee injuries in tort under the Georgia Employer’s Li-

ability Act (“GELA”’), Ga. Code Ann. §34-7-40 et sequitur.

GELA is a state parallel to the Federal Employer’s Liability

Act of 1908 (“FELA”). If MARTA were to be found subject

to GELA it could also be found to be subject to FELA.

The Georgia Court of Appeals examined the Georgia

Workers’ Compensation Act and noted that all state and local

government authonities were included under the Act by the

express provisions of Ga. Code Ann. §34-9-1(3). The Court

of Appeals then noted that the Georgia Legislature in creat-

ing MARTA “expressly waived sovereign and governmental

tort immunity as a part of its creation.” citing to the MARTA

Act of 1965, Ga. L. 1965, pp. 2243, 2275, §22. The Georgia

Court of Appeals then concluded:

Thus, under OCGA 34-9-1(3), the WCA [Workers’

Compensation Act] defines “employer” as the “State

of Georgia and all departments, instrumentalities,

and authorities thereof’; authorities are subject to

workers’ compensation by express legislative man-

21

date. While MARTA, as a local authonty, is ex-

pressly excluded from sovereign immunity and gov-

ernmental immunity, such waiver was conditioned

upon MARTA’s being governed by the WCA as all

other authorities. (citations omitted)

Williams v. MARTA, at 53, 201.

Thus the precedent established by the state court of last

resort is that, for employee bodily injuries arising out of and

in the course of employment, Respondent has waived its sov-

ereign immunity only for the purpose of being sued under

workers’ compensation. Tort claims for injuries arising out

of and in the course of employment cannot be brought

against Respondent under GELA and FELA. The Georgia

Court of Appeals, when deciding the case sub judice, cited

the Williams precedent for the proposition that Respondent

MARTA was subject to workers’ compensation. Brooks-

Powers v. MARTA at 391, 804.

C. The Second Circuit Failed To Consider Waiver

Of Sovereign Immunity By New York And Tkus

Established Erroneous’ Federal Precedent

Affecting The Rapid Transit Industry.

The Second Circuit held that an employee of a rapid tran-

sit authority was permitted to sue the authority in tort under

FELA in Greene v. Long Island Railroad Company, 280 F.3d

224 (2"° Cir. 2002) cert. denied in Metropolitan Transporta-

tion Authority v. Greene, No. 02-1173 (U.S. Supreme Court,

May 19, 2003). The Second Circuit’s decision is erroneous

for failure to properly answer the fundamental question of

whether the Metropolitan Transit Authority (“MTA”) had

waived sovereign immunity against tort actions by employ-

ees for bodily injures arising out of and in the course of em-

ployment. The required analysis of Alden v. Maine was

completely omitted by the Second Circuit.

22

1. Like Georgia, New York has expressly defined

its public authorities as employers subject to

the New York workers’ compensation act.

New York has an express waiver of sovereign immunity

in its workers compensation act which reads, in pertinent

part: ““Employer’ ... meaiis ... the state, a municipal corpo-

ration, fire district or other political subdivision of the state,

and every authority or commission heretofore or hereafter

continued or created by the public authorities law.” N.Y.

Work. Comp. §2 (McKinney 1992). The legislature clearly

manifested an unequivocal categorical inclusion of public

authorities under the workers’ compensation act. The MTA

as a New York public authority has clearly had its sovereign

immunity waived for the purposes of workers’ compensation.

The intent of the New York legislature is readily apparent.

As in Georgia, New York has waived sovereign immunity

against employee claims for bodily injury arising out of and

in the course of employment on the condition that such

claims be pursued under workers’ compensation.

2. The error made by the Second Circuit

The Second Circuit never considered the black letter law

of New York. If the Second Circuit had followed this

Court’s interpretation in Alden, it should have ruled that New

York tid not consent to be sued in tort by employees. The

Second Circuit decision is in conflict with the correct analy-

sis made by the Georgia Court of Appeals in Williams v.

MARTA and followed in the case smb judice.

23

CONCLUSION

The questions presented by Petitioner in her petition for a

writ of certiorari do not merit consideration. This Court

should answer the threshold question on waiver of sovereign

immunity by affirming the decision in the case sub judice

based on the holding in Williams that MARTA waived sov-

ereign immunity only for purposes of workers’ compensa-

tion.

Respectfully submitted.

ROBERT JON ROUTMAN

_ Counsel of Record

Metropolitan Atlanta Rapid

Transit Authority

2424 Piedmont Road, N.E.

Atlanta, Georgia 30324

(404) 848-5220

NOVEMBER 2003