Welch v. State Dept. of Highways and Public Transp.

• Decision Date: 22 January 1986
• Docket Number: No. 83-2253,83-2253
• Citation: 780 F.2d 1268
• Parties: , 54 USLW 2412 Jean E. WELCH, Plaintiff-Appellant, v. STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION and the State of Texas, Defendants-Appellees, Drott Manufacturing Company and J.I. Case Co., Defendants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1268

780 F.2d 1268

1986 A.M.C. 2409, 54 USLW 2412

Jean E. WELCH, Plaintiff-Appellant, v. STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION and the State of Texas, Defendants-Appellees, Drott Manufacturing Company and J.I. Case Co., Defendants.

No. 83-2253.

United States Court of Appeals, Fifth Circuit.

Jan. 22, 1986.

Michael D. Cucullu, Houston, for plaintiff-appellant.

Joe Jerrard, Dudley Fowler, Austin, Tex., David Allan Smith, Richard D. Naylor, Asst. Attys. Gen., F. Scott McCown, Austin, Tex., for State Dept. of Highways and State of Tex.

Appeal from the United States District Court for the Southern District of Texas George E. Cire, District Judge, Presiding.

Before CLARK, Chief Judge, BROWN, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS and HILL, Circuit Judges. ^*

OPINION

JERRE S. WILLIAMS, Circuit Judge:

Appellant Jean Welch was injured while working as a marine technician on the ferry landing dock at Galveston, Texas. Claiming under the Jones Act, 46 U.S.C. Sec. 688, she sued her employer, the Texas Highway Department, and the State of Texas, for her injuries. In addition she also sued the manufacturer of the mobile crane which she alleges contributed to her injury. ¹ Her Jones Act claim was dismissed by the district court on the assertion of sovereign immunity by the State of Texas and the Texas Highway Department, 533 F.Supp. 403 (S.D.Tex.1982). A panel of this Court by a split decision reversed the decision of the district court, Jean E. Welch v. State Dept. of Highways and Public Transportation and the State of Texas, Drott Mfg. Co. and J.I. Case Co., 739 F.2d 1034 (5th Cir.1984). Rehearing en banc was granted, 739 F.2d at 1046.

I.

The Highway Department of the State of Texas operates on a twenty-four hour basis a free automobile and passenger ferry between Point Bolivar and Galveston, Texas, across the waters which constitute the entrance to the Harbor of Houston, the third busiest port in the United States. The length of the ferry boat journey is approximately three miles from dock to dock. Without the ferry boat, a person wishing to travel from one area to the other by highway would have to drive approximately 130 miles. Appellant Welch was an employee of the Highway Department in the operation of the ferry. Her status as a "seaman" under the Jones Act is assumed and is not at issue. The State Highway Department was an insurer under the Texas Workers' Compensation Law, Texas Rev.Civ.Stat.Ann. art. 8306 et seq. (Vernon). Appellant, having been injured in the course of employment, clearly was entitled to compensation benefits under that law. She sued instead in federal court under the Jones Act for the full measure of damages to which injured seamen are entitled if they can prove negligence of their employer which caused the injury.

II.

The defense of the State, upon which it prevailed in the district court, is the defense of sovereign immunity under the Eleventh Amendment to the United States Constitution. While the Eleventh Amendment in terms only bars federal court jurisdiction in a suit by a citizen of one state against another state, the background under which the Amendment was adopted establishes a far broader foundation for the claim of sovereign immunity by the several states. It was assumed by the framers of the Constitution that the states could claim sovereign immunity not only in their own courts but in the federal courts. But in 1793, the United States Supreme Court held in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440, that the jurisdiction of the federal courts extended to a suit by the citizen of one state against another state as against a claim of sovereign immunity by the state. At the next meeting of Congress following this decision the Eleventh Amendment was proposed, and it was quickly ratified.

While this is the only reference to sovereign immunity in the United States Constitution, it is established without question that the amendment simply broadened the sovereign immunity which already existed in the states as to their own courts. United States v. Lee, 16 Otto 196, 207, 106 U.S. 196, 207, 1 S.Ct. 240, 249, 27 L.Ed. 171 (1882); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

III.

The question raised by Welch bringing her Jones Act suit against her employer, the State of Texas, in federal court has been the subject of considerable doubt and confusion in the law. The starting point for the modern development of the law is Parden v. Terminal R.R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), in which the Supreme Court found a forced implied state waiver of sovereign immunity in Federal Employer's Liability Act claims. 45 U.S.C. Secs. 51-60. The Court took the position that the state by operating for profit an interstate railroad as a common carrier, a federally regulated business, automatically waived its sovereign immunity. It is also clear that in terms the Jones Act remedies are based upon the Federal Employer's Liability Act. 46 U.S.C. Sec. 688.

Of relevance also to the origins of the modern law of waiver of sovereign immunity by the states when the federal government is acting in the field of its plenary powers is a case which antedated the Parden case, Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). The Court held that the Jones Act applied to maritime employees of the bi-state commission. The Court then went on to hold that the agreement of the states of Tennessee and Missouri to set up the interstate bridge commission by means of an interstate compact, which commission was given the authority to "sue-and-be-sued", constituted a waiver of sovereign immunity by the states to a Jones Act suit against the commission. For later developments in the law, as set out below, it is important to emphasize that in Petty the interstate compact under the Constitution had to be and was approved by the Congress. Congress had in terms, therefore, accepted the sue-and-be-sued clause as it related to the commission.

If the Parden case were to stand unlimited, it would dictate a reversal of the district court decision in this case and authorize Welch to bring her Jones Act suit in federal court. But the broad sweep of the Parden decision, although it has not been overruled, has overtly been limited by later decisions as its full implications have surfaced. Employees of the Dept. of Public Health & Welfare v. Missouri Dept. of Public Health & Welfare, 411 U.S. 279, 286, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973), has regularly been cited by the Supreme Court following a citation of the Parden case because in the Missouri Public Health & Welfare case the Supreme Court modified Parden by holding that Congress must express itself in "clear language" to cause a private federal remedy for employees to be applicable to state employees.

A second case regularly cited by the Supreme Court is Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), which relied upon the Missouri Public Health & Welfare case to find a lack of waiver by the state of its sovereign immunity as to citizen suits against the state under the Federal Aid to the Aged, Blind, or Disabled Program under the Social Security Act, 42 U.S.C. Secs. 1381-1385. See Note, Reconciling Federalism and Individual Rights: The Burger Court's Treatment of Eleventh and Fourteenth Amendments, 68 Va.L.Rev. 865, 871 (1982).

On March 4, 1985, the Supreme Court in County of Oneida, New York v. Oneida Indian Nation of New York State, --- U.S. ----, 105 S.Ct. 1245, 84 L.Ed.2d 169, cited Parden, Missouri Public Health & Welfare, and Edelman as establishing the Supreme Court's approach to congressional action forcing the states to yield their sovereign immunity otherwise existing under the Eleventh Amendment. The Court explicitly recognized that these cases involved "waiver [of sovereign immunity] for purposes of suit under a federal statute".

We relied upon the Missouri Public Health & Welfare case in Intracoastal Transportation, Inc. v. Decatur County, Georgia, 482 F.2d 361 (5th Cir.1973), in finding the state had not impliedly waived its immunity against claims brought under the Bridge Act of 1906 simply by operating in a federally regulated sphere. "The private litigant must show that Congress expressly provided that the private remedy is applicable to the states." 482 F.2d at 365 (emphasis added). Again, in Freimanis v. Sea-Land Service, Inc., 654 F.2d 1155, 1160 (5th Cir.1981), we confirmed our decision in Intracoastal to find no forced implied waiver by the state in a private employee suit brought under the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. Sec. 401.

If there had been any doubt that we have correctly viewed the later Supreme Court cases as limiting the Parden case, that doubt was effectively and completely removed by the decision of the United States Supreme Court in Atascadero State Hospital & California Dept. of Mental Health v. Douglas James Scanlon, --- U.S. ----, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), decided June 28th of this past year. The case involved suits by private litigants seeking monetary relief under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794. The state agencies moved for dismissal of the complaints on the ground the Eleventh Amendment barred the federal courts from entertaining respondents' claims. The claim of sovereign immunity was accepted by the holding of the United States Supreme Court. The Court stressed that in its opinion in Edelman v. Jordan, it had said that the state will be deemed to have waived its immunity "only where stated 'by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction' ", 415 U.S. at 673, 94 S.Ct. at 1361, quoting Murray v....