577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.

Docket Nº75-2865.
Citation577 F.2d 579
Party NameMerrill Eugene RIGGLE, Plaintiff-Appellant, v. STATE OF CALIFORNIA, Defendant-Appellee.
Case DateJune 26, 1978
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 579

577 F.2d 579 (9th Cir. 1978)

Merrill Eugene RIGGLE, Plaintiff-Appellant,

v.

STATE OF CALIFORNIA, Defendant-Appellee.

No. 75-2865.

United States Court of Appeals, Ninth Circuit

June 26, 1978

Page 580

Robert R. Huskinson, Los Angeles, Cal., for plaintiff-appellant.

Page 581

Robert W. Vidor, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before BARNES and HUFSTEDLER, Circuit Judges, and NIELSEN, District Judge. [*]

BARNES, Senior Circuit Judge:

The district court dismissed the State of California as a defendant, in this action, for, inter alia, damages arising from the negligent operation of the Upper Newport Bay Bridge in Orange County, California. The issue before this Court is whether the district court properly concluded that neither the construction and operation of a bridge over navigable waters of the United States, nor enactment of the California Tort Claims Act, waived the state's sovereign immunity under the Eleventh Amendment to the Constitution. We hold the district court was correct because there has been no express waiver of immunity or consent to be sued in either California's construction of the bridge or its enactment of a tort claims act.

I. FACTS

On July 18, 1974, at approximately 9:00 p. m., the vessel "MAKO" collided with a portion of the Upper Newport Harbor Bay Bridge in Orange County, California, which spans navigable waters of the United States, and is operated and maintained by the State of California. As a result of this collision, appellant Riggle sustained injuries and incurred substantial medical costs. Invoking admiralty jurisdiction, Riggle filed a personal injury action in federal district court which charged the state in the Second Cause of Action with negligent operation and maintenance of the bridge in violation of both 33 U.S.C. §§ 491, 512 and various provisions of the Code of Federal Regulations, Part 33. Riggle asked $45,000 for medical expenses, $1,400,000 in general damages, and compensation for all lost earnings. The State of California moved to dismiss the Second Cause of Action, claiming Eleventh Amendment immunity. Following a hearing on the merits, the district court granted that motion. This appeal followed. It relates only to the Second Cause of Action pleaded. (See fn A

II. STATE IMMUNITY

During and after the ratification process of the United States Constitution, the states feared that federal constitutional authority might be construed to allow citizens of another state or foreign states to bring suits against the states in federal court. See Edelman v. Jordan, 415 U.S. 651, 660-662, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); New Hampshire v. Louisiana, 108 U.S. 76, 86-88, 2 S.Ct. 176, 27 L.Ed. 656 (1883). When these fears were realized in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793), the states quickly reacted with ratification of the Eleventh Amendment, which provides:

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, or by Citizens or Subjects of any Foreign State.

This amendment has been judicially extended to grant a state immunity from federal court suits brought by its own citizens as well as by citizens of another state.

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Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Clark v. State of Washington, 366 F.2d 678, 680 (9th Cir. 1966). The Supreme Court has also construed the amendment to bar a suit in admiralty, such as the instant action, when brought against a state. Ex parte State of New York, 256 U.S. 490, 497-498, 41 S.Ct. 588, 65 L.Ed. 1057 (1921). Moreover, in Edelman v. Jordan, supra, the Supreme Court held that the Eleventh Amendment barred federal court actions seeking damage awards from the public treasury of a state. 1 Thus, because the State of California is clearly named as a defendant in the instant action, and because the recovery sought is clearly a damage award from California's treasury, appellant's action is barred unless the state has somehow waived the immunity conferred by the Eleventh Amendment. Although a state may waive its Eleventh Amendment immunity (State of Missouri v. Fiske, 290 U.S. 18, 24, 54 S.Ct. 18, 78 L.Ed. 145 (1933); Skokomish Indian Tribe v. France, 269 F.2d 555, 560 (9th Cir. 1959) ), such a waiver is not lightly to be inferred. Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353, 1361 (9th Cir. 1977).

Appellant first theorizes that California has waived its immunity by acquiring and operating a bridge in interstate commerce. In support of this argument, appellant cites the Rivers and Harbors Appropriation Act, 33 U.S.C. § 401 et seq., and the Bridge Act of 1906, 33 U.S.C. § 491 et seq., which, inter alia, require federal consent for the construction of bridges over navigable waters and establish a variety of regulatory standards for the operation of such bridges. It is argued that by seeking and obtaining permission to operate in a sphere of authority subject to the power of the federal government, California has surrendered its immunity in submission to the United States.

At the outset, it must be determined whether either of the federal acts cited by appellant creates a private right of action 2 without which the state of California could neither be held liable to the appellant nor be said to have waived its Eleventh Amendment immunity to suit. 3 Opinion among the circuits on this issue is divided. While the Fourth Circuit in Chesapeake Bay Bridge and Tunnel District v. Lauritzen, 404 F.2d 1001, 1003-1004 (1968) has held that the Rivers and Harbors Appropriations Act does create a private cause of action, the Third, Fifth, and Seventh Circuits have reached contrary results. 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. 1970). The rule in this Circuit is somewhat unclear. In Alameda Conservation Association v. California, 437 F.2d 1087, 1094-1095 (9th Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 (1971), this Court concluded

Page 583

that plaintiffs had standing to sue for an injunction restraining Leslie Salt Co. from damaging them as individuals by filling and obstructing portions of San Francisco Bay in violation of 33 U.S.C. §§ 401-406, the rivers and harbors appropriations act. Had the coURt not iMpliedly recognized a private right of action under that act, it could not have reached the question of standing. Passenger Corp. v. Passengers Ass'n, 414 U.S. 453, 456, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974). Thus, it seems reasonable to conclude that the appellant here has a private cause of action in this Circuit under the Rivers and Harbors Appropriations Act, if not also under the Bridge Act of 1906. See Sierra Club v. Morton, 400 F.Supp. 610, 622 (N.D.Cal.1975); Sierra Club v. Leslie Salt Co., 354 F.Supp. 1099, 1104-1105 (N.D.Cal.1972). See also Cort v. Ash, 422 U.S. 66, 79 n.11, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) (Supreme Court's decision in Wyandotte Transportation Co. v. United States, 389 U.S. 191, 201-202, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967) construed as recognizing that United States has private right of action under Rivers and Harbors Appropriations Act). 4 However, the fact that appellant may have an implied private right of action does not necessarily establish a waiver by the State of California of its Eleventh Amendment immunity.

III. STATE'S WAIVER

Congress, had it chosen to do so, could have conditioned California's operation of bridges over navigable waters on a waiver of Eleventh Amendment immunity. Parden v. Terminal Railway of the Alabama State Docks Dept., 377 U.S. 184, 192, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 281-282, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). Parden found an express waiver in the Federal Employer's Liability Act, 45 U.S.C. §§ 51, 60, which specifically authorized certain plaintiffs to sue a class of defendants which, the Court held, included the states as operators of railroads. 377 U.S. at 185-190, 84 S.Ct. 1207. Petty held that there was an express waiver in the "sue-and-be-sued" language of an interstate compact taken together with the language of a condition attached by Congress when it approved the compact as required by the Constitution (Article I, § 10, cl. 3). 359 U.S. at 277-278, 281-282, 79 S.Ct. 785.

The Supreme Court's later decision in Employees v. Missouri Public Health Dept., 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973) stands in sharp contrast to Parden and Petty. In Employees, the Court refused to apply Parden to make the state subject to suit under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b), on grounds that Congress had not expressly done so and "would not be presumed to take such action silently." 411 U.S. at 284-285, 93 S.Ct. at 1618. 5 The Court continued:

It is not easy to infer that Congress, in legislating pursuant to the Commerce

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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.

411 U.S. at 285, 93 S.Ct. at 1618. Thus, as the Fifth Circuit concluded in Intracoastal Transportation, Inc. v. Decatur County, Georgia, supra, the decision in Employees added an additional requirement to the test for Eleventh Amendment waiver:

It is no longer sufficient merely to show that a State has entered a federally regulated sphere of activity...

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