482 F.2d 361 (5th Cir. 1973), 72-2700, Intracoastal Transp., Inc. v. Decatur County, Georgia

Docket Nº72-2700.
Citation482 F.2d 361
Party NameINTRACOASTAL TRANSPORTATION, INC., and Anderson Marine Construction, Inc., Plaintiffs-Appellees, v. DECATUR COUNTY, GEORGIA, et al., Defendants, Department of Transportation, Defendant-Appellant.
Case DateJune 29, 1973
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 361

482 F.2d 361 (5th Cir. 1973)

INTRACOASTAL TRANSPORTATION, INC., and Anderson Marine Construction, Inc., Plaintiffs-Appellees,

v.

DECATUR COUNTY, GEORGIA, et al., Defendants,

Department of Transportation, Defendant-Appellant.

No. 72-2700.

United States Court of Appeals, Fifth Circuit.

June 29, 1973

Page 362

William B. Brown, Asst. Atty. Gen., Arthur K. Bolton, Atty. Gen., Harold N. Hill, Executive Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Atlanta, Ga., for defendant-appellant.

Ben Kirbo, Bainbridge, Ga., for plaintiffs-appellees.

Harold Lambert, Bainbridge, Ga., for Decatur County.

Before WISDOM, GEWIN and COLEMAN, Circuit Judges.

GEWIN, Circuit Judge:

In this admiralty action, the State of Georgia appeals pursuant to 28 U.S.C. § 1292(b) from the district court's denial of its motion to dismiss on the grounds of sovereign immunity. After a careful review of the applicable law, we conclude that Georgia was entitled to avail itself of the sovereign immunity defense, and therefore reverse. 1

Page 363

The facts giving rise to the present controversy are not in dispute and may be summarized with brevity. Decatur County, Georgia, and the Georgia Department of Transportation are the alleged owners and operators of a drawbridge across the Flint River, a navigable waterway which flows through Decatur County. The appellees instituted the present action alleging that as a result of the negligent operation of the drawbridge they had suffered considerable damages. 2 Georgia then filed a motion to dismiss on the grounds of sovereign immunity asserting that it had not consented to the suit. Georgia bases its defense on the eleventh amendment to the United States Constitution. 3

The appellees countered that the Flint River was a navigable water way and structures built over it were subject to federal regulation. 4 They asserted that Georgia waived the defense of sovereign immunity by entering this federally regulated sphere of activity. The district court denied Georgia's motion to dismiss and we now review the propriety of that ruling.

We begin with the general observation that in a suit in admiralty, a state is entitled to the defense of sovereign immunity granted by the eleventh amendment. The Supreme Court has stated:

We repeat, the immunity of a state from suit in personam in the admiralty, brought by a private citizen without its consent, is clear. 5

The appellees argue, however, that Georgia has impliedly consented to this suit by building a bridge over a navigable waterway, which is subject to plenary control by federal statutes.

Appellees place primary reliance on Parden v. Terminal Railway of the Alabama State Docks Department. 6 In Par-

Page 364

den, railroad employees sued an Alabama owned railroad under the Federal Employers' Liability Act, 7 for injuries resulting from their employment. Alabama contended that it was entitled to sovereign immunity under the eleventh amendment. The Court rejected Alabama's claim, stating:

A State's immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation. 8

Appellees claim that their suit against Georgia falls within the Parden waiver exception to the sovereign immunity doctrine. We cannot agree with this conclusion.

A superficial reading of the Parden decision might lead one to the conclusion which appellees wish to have us adopt. Distilled to its basic holding, Parden stands for the proposition that a State impliedly waives its sovereign immunity defense when it: (1) enters a field which is regulated by federal statute; 9 and, (2) Congress has specifically created a remedy in private parties for the violation of the applicable federal regulatory statute. 10

At least one circuit has upheld a state's sovereign immunity defense even where Congress has created a private cause of action under a federal regulatory scheme. See, Employees of the Department of Public Health & Welfare v. Department of Public Health & Welfare, State of Missouri, 452 F.2d 820 (8th Cir. 1971) (en banc). The Eighth Circuit rejected a simplistic reading of the Parden decision, correctly recognizing that many policy considerations must be weighed before a State can be said to have "waived" its immunity by conducting activities subject to federal regulation. The Employees case involved an action by state hospital workers against Missouri for overtime compensation provided by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

The hospital workers based their waiver claim on 29 U.S.C. § 216(b) which created a private cause of action for an employer's violation of the FLSA's applicable substantive provisions. By a 1966 amendment to the Act, Congress subjected state hospitals to the overtime provisions of the Act. 29 U.S. C.§ 203(s)(4). The Eighth Circuit rejected the argument that Missouri had waived its sovereign immunity defense by operating hospitals subject to the overtime provisions of the Act and in face of the provision in the act which created a private cause of action for employees whose employers violated the overtime provisions of the Act.

Page 365

Certiorari was granted and the Supreme Court in an opinion by Mr. Justice Douglas, affirmed. 11 The Court carefully distinguished the Parden decision. Whereas in Parden, Alabama began operation of a railroad twenty years after the enactment of the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, the state of Missouri had operated hospitals long before the enactment of the 1966 amendment which subjected them to the FLSA's overtime provisions.

Moreover, the Court was concerned with the effect a holding of implied waiver would have on the viability of the eleventh amendment. The Court noted that it is one thing to subject a State to suit when it enters into the rather unusual activity of operating a railroad "for profit" but quite another when the State operates a hospital which is widely recognized as a proper state function if not a compelled duty. All States operate hospitals and the burden created by holding a State amenable to private suits would have a greater impact on the financial resources of states than the particularly limited holding of Parden. This problem was accentuated by the fact that the Act provided for double recovery and attorney's fees for the successful private litigants. 12

Apparently the crucial factor which must have weighed most heavily in the Court's reasoning was the absence of any express intent by Congress to subject the States to private suits. In face of the express limitations on a federal court's jurisdiction by the eleventh amendment, the court refused to expand the implied waiver theory or even entertain such a sensitive constitutional issue, without at least an express congressional provision which made a State amenable to such a suit. Justice Douglas stated:

It is not easy to infer that Congress in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution. Thus, we cannot conclude that Congress conditioned the operation of these facilities on the forfeiture of immunity from suit in a federal forum. 411 U.S. at 285, 93 S.Ct. at 1618.

******

* * *

But we decline to extend Parden to cover every exercise by Congress of its commerce power, where the purpose of Congress to give force to the Supremacy Clause by lifting the sovereignty of the States and putting the States on the same footing as other employers is not clear. 411 U.S. 286, 93 S.Ct. at 1619.

Thus, the Employees decision added an additional requirement to the Parden test for determining whether a private party may successfully invoke a federal court's jurisdiction in his suit against a State. It is no longer sufficient merely to show that a State has entered a federally regulated sphere of activity and that a private cause of action is created for violating the applicable federal provision, but in addition the private litigant must show that Congress expressly provided that the private remedy is applicable to the States. 13

It is apparent that appellees have met the first requirement of Parden because Georgia has entered a field of activity extensively regulated by federal statute. However a careful reading

Page 366

of the "Bridge Act of 1906" compels us to conclude that Congress did not create a cause of action in private parties for a violation of the Act's standards. The act is penal in nature and enforcement of its provisions is vested in the Attorney General. 14

We cannot concur in the result reached by the Fourth Circuit in Chesapeake Bay Bridge & Tunnel District v.

Page 367

Lauritzen, 15 where the court held that the Act did create a cause of action in private parties. We feel that a careful reading of the cases relied upon will not sustain the conclusion reached by that court, particularly in view of the recent Supreme Court decision in the Employees case. 16

*****

* * *

The conclusion reached today is in accord with recent pronouncements of this Court. We have previously stated that:

Further we do not deem a mere entry into an area regulated by international treaty as an automatic waiver of sovereign immunity. As long as the sovereign immunity claim does not prevent federal relief which would otherwise be attainable, we see no virtue in invoking federal jurisdiction. Here no relief is possible because no discrimination is evidenced. 17

The "Bridge Act of 1906" does not create a cause of action in private parties and hence sustaining the state's claim to sovereign...

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40 practice notes
  • 478 F.Supp. 646 (D. Puerto Rico 1979), Civ. 78-323, Romero-Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • 17 Septiembre 1979
    ...Canals Co. v. Miller & Vidor Lumber Co., 24 F.2d 763 (C.A. 5, 1928) with Intercoastal Transportation, Inc. v. Decatur County, Georgia, 482 F.2d 361 fn. 14 (C.A. 5, [54] Cf. also: Alameda Conservation Association v. California, 437 F.2d 1087 (C.A. 9, 1971), cert. den. 402 U.S. 908, 91 S.......
  • 875 F.2d 453 (5th Cir. 1989), 87-3854, Vieux Carre Property Owners, Residents & Associates, Inc. v. Brown
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 14 Junio 1989
    ...without first obtaining the consent of Congress or the approval of the Corps. Intracoastal Transportation, Inc. v. Decatur County, 482 F.2d 361, 366 n. 14 (5th Cir.1973). Regardless, these cases are substantially overruled by Sierra Club. We also observe that the Third Circuit, simply purpo......
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 26 Junio 1978
    ...Williamson Towing Co., Inc. v. State of Illinois, supra, 534 F.2d at 762; Intracoastal Transportation, Inc. v. Decatur County, Georgia, 482 F.2d 361, 366-367 (5th Cir. 1973); Red Star Towing & Transportation Co. v. Department of Transportation of New Jersey, 423 F.2d 104, 106 (3d Cir. 1......
  • 278 B.R. 275 (Bkrtcy.M.D.Ga. 2002), 00-6015, In re Bozeman
    • United States
    • Federal Cases United States Bankruptcy Courts Eleventh Circuit
    • 23 Enero 2002
    ...Cir.1991); WJM, Inc. v. Mass. Dep't of Public Welfare, 840 F.2d 996 (1st Cir.1988); Intracoastal Transportation, Inc. v. Decatur County, 482 F.2d 361 (5th Cir.1973)). Town & Country, like the case before the court, involved the offset of funds by the federal government on behalf of a un......
  • Request a trial to view additional results
40 cases
  • 478 F.Supp. 646 (D. Puerto Rico 1979), Civ. 78-323, Romero-Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • 17 Septiembre 1979
    ...Canals Co. v. Miller & Vidor Lumber Co., 24 F.2d 763 (C.A. 5, 1928) with Intercoastal Transportation, Inc. v. Decatur County, Georgia, 482 F.2d 361 fn. 14 (C.A. 5, [54] Cf. also: Alameda Conservation Association v. California, 437 F.2d 1087 (C.A. 9, 1971), cert. den. 402 U.S. 908, 91 S.......
  • 875 F.2d 453 (5th Cir. 1989), 87-3854, Vieux Carre Property Owners, Residents & Associates, Inc. v. Brown
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 14 Junio 1989
    ...without first obtaining the consent of Congress or the approval of the Corps. Intracoastal Transportation, Inc. v. Decatur County, 482 F.2d 361, 366 n. 14 (5th Cir.1973). Regardless, these cases are substantially overruled by Sierra Club. We also observe that the Third Circuit, simply purpo......
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 26 Junio 1978
    ...Williamson Towing Co., Inc. v. State of Illinois, supra, 534 F.2d at 762; Intracoastal Transportation, Inc. v. Decatur County, Georgia, 482 F.2d 361, 366-367 (5th Cir. 1973); Red Star Towing & Transportation Co. v. Department of Transportation of New Jersey, 423 F.2d 104, 106 (3d Cir. 1......
  • 278 B.R. 275 (Bkrtcy.M.D.Ga. 2002), 00-6015, In re Bozeman
    • United States
    • Federal Cases United States Bankruptcy Courts Eleventh Circuit
    • 23 Enero 2002
    ...Cir.1991); WJM, Inc. v. Mass. Dep't of Public Welfare, 840 F.2d 996 (1st Cir.1988); Intracoastal Transportation, Inc. v. Decatur County, 482 F.2d 361 (5th Cir.1973)). Town & Country, like the case before the court, involved the offset of funds by the federal government on behalf of a un......
  • Request a trial to view additional results