Karpovs v. State of Miss.

• Decision Date: 11 December 1981
• Docket Number: No. 80-3222,80-3222
• Citation: 663 F.2d 640
• Parties: Janet KARPOVS, Individually and as Personal Representative of Juris A. KARPOVS, Deceased, Plaintiff-Appellant, v. STATE OF MISSISSIPPI, et al., Defendants-Appellees. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 640

663 F.2d 640

Janet KARPOVS, Individually and as Personal Representative of Juris A. KARPOVS, Deceased, Plaintiff-Appellant, v. STATE OF MISSISSIPPI, et al., Defendants-Appellees.

No. 80-3222.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Dec. 11, 1981.

Wm. Roberts Wilson, Jr., Pascagoula, Miss., for plaintiff-appellant.

Upshaw, Schissel, Dorizas & Ladner, Heber Ladner, Jr., Jackson, Miss., Bryan, Nelson, Allen, Schroeder & Backstram, Vincent J. Castigliola, Jr., Pascagoula, Miss., Frank Shanahan, Jr., Asst. Atty. Gen., Henry Wingate, Sp. Asst. Atty. Gen., G. Edward Pickle, Jackson, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before INGRAHAM, POLITZ and WILLIAMS, Circuit Judges.

POLITZ, Circuit Judge:

Janet Karpovs, individually and in a representative capacity, filed suit for damages resulting from the wrongful death of her husband in a drawbridge mishap. The district court granted summary judgment dismissing the demands against one defendant and dismissed the demands against all other defendants for lack of subject matter or personal jurisdiction. We affirm in part and reverse and remand in part.

Facts

Janet Karpovs and her husband Juris A. Karpovs, both citizens of Louisiana, were traveling west on U.S. Highway 90 in Jackson County, Mississippi. When they reached the East Pascagoula River, a navigable waterway, the drawbridge traversing the river was in the process of being opened to allow passage of the commercial fishing vessels, THE MISSISSIPPI SOUND, GUSSIE J. FLYNN, and GRAND BUTTERE. The Karpovs' Volkswagen passed under the warning barrier and onto the movable section of the bridge. As the bridge completed the opening process, the vehicle slid into the drawbridge works where it was crushed. Juris Karpovs was killed.

Mrs. Karpovs filed suit against the State of Mississippi, the Mississippi State Highway Commission (MSHC), several officials and employees of the MSHC in their official and individual capacities, ¹ Zapata Haynie Corporation, the Virginia corporate owner of the three fishing vessels, ² and several other defendants. ³ Jurisdiction is premised on diversity of citizenship, 28 U.S.C. § 1332, and admiralty. ⁴ The claims against all defendants are grounded in common-law negligence; the claims against Zapata Haynie Corporation also include the maritime claims of unseaworthiness and failure to maintain a proper lookout.

The State of Mississippi, MSHC, and the individual public official/employee defendants moved for dismissal for want of subject matter jurisdiction, asserting the protections of the eleventh amendment and the doctrine of sovereign immunity. Zapata Haynie Corporation moved to dismiss for failure to state a claim and, alternatively, sought summary judgment. The court concluded that the claims against Mississippi, MSHC, and its members were precluded by the eleventh amendment, were barred by sovereign immunity, and could not properly be brought under admiralty jurisdiction. The trial court found that Zapata Haynie's vessels were not causally involved in Karpovs' death.

1. Eleventh amendment

The eleventh amendment to the United States Constitution 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 is a restriction on federal judicial power, markedly limiting claims by private persons against a state. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Although the applicability of the amendment is often difficult to determine, four principles are well-established. First, while not specifically prohibited by the language, the immunity of an unconsenting state applies to suits brought by her own citizens as well as citizens of another state. Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Second, as a general matter suits against the state for prospective injunctive relief are permitted in limited circumstances, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), ⁵ but suits against the state treasury are absolutely barred. Edelman v. Jordan. Third, the immunity extends beyond the state and encompasses state agencies, officials and employees "when the action is in essence one for the recovery of money from the state ...." Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). In such cases, "the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants." Id.; Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862 (1946). Fourth, the eleventh amendment applies unless a federally created right is at issue or a state has either consented to suit in federal court or has waived its eleventh amendment shield. Parden v. Terminal Railroad Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). The instant inquiry presents questions concerning application of the third and fourth principles-may the state-related parties assert the immunity and has Congress abrogated the immunity under the circumstances presented in this case? We consider these in reverse order.

A. Abrogation

Appellant maintains that the State of Mississippi is not entitled to invoke eleventh amendment immunity. Appellant cites Chesapeake Bay Bridge and Tunnel Authority v. Lauritzen, 404 F.2d 1001 (4th Cir. 1968), apparently reasoning that Congress has abrogated Mississippi's immunity through enactment of the Bridge Act of 1906, 33 U.S.C. §§ 491 et seq., and the Rivers and Harbors Appropriations Act, 33 U.S.C. §§ 401 et seq. This contention is contrary to established law in this circuit. In Intracoastal Transport, Inc. v. Decatur County, 482 F.2d 361 (5th Cir. 1973), we held that the state of Georgia did not subject itself to a suit for damages for alleged negligent operation of a drawbridge when it entered a federally regulated activity by building a bridge over navigable waters. After reviewing the authorities, including Parden v. Terminal Railway Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), we stated:

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.

482 F.2d at 365. We found no express private remedy provided in either the Bridge Act or the Rivers and Harbors Act. In so ruling we expressly declined to follow the Fourth Circuit's decision in Lauritzen, which reached the opposite result.

In Freimanis v. Sea-Land Service, Inc., 654 F.2d 1155 (5th Cir. 1981), we reaffirmed our Intracoastal holding against a challenge that recent developments had eroded its foundations, stating:

Contrary to appellant's arguments, we find that the foundations of Intracoastal are still solid. If anything, the authorities in favor of what has come to be called the "clear statement" approach with regard to eleventh amendment immunity have grown more numerous since our 1973 decision in Intracoastal.

654 F.2d at 1158 (footnote omitted). We therefore reject appellant's argument that Mississippi is not entitled to invoke the eleventh amendment.

B. Eleventh Amendment Beneficiaries

The suit for damages against the State of Mississippi is clearly barred. Any judgment against MSHC, a state agency, would be paid by funds from the state treasury; accordingly, the demands against MSHC are barred. Dagnall v. Gegenheimer, 645 F.2d 2 (5th Cir. 1981). Accord, Freimanis v. Sea-Land Service, Inc. The remaining question is whether the individual defendants may raise this shield.

State officials come within the protective ambit of the eleventh amendment when judgments rendered against them are to be paid with state funds. Speaking to this question in Edelman v. Jordan, 415 U.S. at 663, 94 S.Ct. at 1356, the Supreme Court stated: "the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." The determination whether the judgment will be paid by the individual defendants or by the state is often difficult to make. When the distinction is unclear, the essential nature and effect of the proceeding must be examined. Ex Parte New York, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921).

The decision in Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), is instructive. In that case, the Ford Motor Company sued the Department of Treasury of the State of Indiana, and the individual members of the Board of the Department, to recover taxes wrongfully collected by the state. The Supreme Court stated:

Where relief is sought under general law from wrongful acts of state officials, the sovereign's immunity under the Eleventh Amendment does not extend to wrongful individual action, and the citizen is allowed a remedy against the wrongdoer personally. Where, however, an action is authorized by statute against a state officer in his official capacity and constituting an action against the state, the Eleventh Amendment operates to bar suit except in so far as the statute waives state immunity from suit.

Id. at 462, 65 S.Ct. at 350 (citations omitted). In concluding that the suit was against the state, and not the individuals, the Court relied on an Indiana statute which prescribed a detailed procedure for obtaining refunds of taxes illegally exacted, including the provisos that the taxpayer could...