Jean E. Welch v. State Department of Highways and Public Transportation and the State of Texas, Drott Manufacturing Company and J.I. Case Co.

780 F.2d 1268, 1986 A.M.C. 2409, 1986 U.S. App. LEXIS 21252

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 22, 1986
• Docket: 83-2253
• Status: Published

Opinions

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. § 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 Dali. 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 modem 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. §§ 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. § 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 Par-den 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. §§ 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. § 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. § 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. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909). The Court further said that even in the case of Fourteenth Amendment claims against the states, the Supreme Court in Pennhurst v. State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), required “an unequivocal expression of congressional intent to ‘overturn the constitutionally guaranteed immunity of the several states’ ”, quoting Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979), and citing the Missouri Public Health & Welfare case.

The Court went on to state its own ruling in language even more specific. Justice Powell in his opinion for the Court said: “Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. The fundamental nature of the interests implicated by the Eleventh Amendment dictates this conclusion.” 105 S.Ct. at 3147 (emphasis added). The Court then restated and explained this requirement by stressing that Congress’ power to abrogate a state’s immunity means that in those circumstances the usual constitutional balance between the state and federal government does not obtain and that it is therefore “incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides the guarantees of the Eleventh Amendment.” Justice Powell then stated categorically: “The requirement that Congress unequivocally express its intention in the statutory language ensures such certainty.” 105 S.Ct. at 3148. Even more strongly in the next paragraphs the Court said “Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself" 105 S.Ct. at 3148 (emphasis added). Finally it should be noted that the opinion does not ignore the earlier Parden decision. It is cited along with the other later cases in a footnote appended to this final quotation from the opinion of the Court.

It would be difficult to make a legal principle more definitive than did Justice Powell writing for the Court in the Atas-cadero case. Congress can force the states to yield their sovereign immunity under the Eleventh Amendment only when it so states in clear language within the statute itself.

The other side of this constitutional principle was also set out by the Supreme Court in a decision on February 19th of this past year. The case is Garcia v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). That case held that the employees of the San Antonio Metropolitan Transit Authority were covered by and entitled to the protections of the minimum wage and overtime provisions of the Fair Labor Standards Act, and they could enforce their claims by suits brought by these governmental employees in federal and state courts. This holding was pursuant to a 1974 amendment to the FLSA under which Congress had in terms within the language of the statute itself extended its coverage to virtually all public employees of the states and their governmental entities. 29 U.S.C. § 203(e)(2)(C), (s)(6), and (x). So in the space of four months we have one decision of the Supreme Court upholding the power of Congress to abrogate state sovereignty with unequivocal language contained in the statute itself and another decision holding that state sovereignty under the Eleventh Amendment remains intact in the absence of unequivocal language contained within the relevant statute itself. The Court has established a bright line rule.²

This summary of the law conclusively establishes that Welch did not have the power to bring a Jones Act suit against the State of Texas in the federal court absent an express waiver of sovereign immunity by the State of Texas. Such a suit is barred by the Eleventh Amendment in the absence of specific congressional language contained within the statute itself requiring the abrogation of sovereign immunity. We should also emphasize that, as it is not now before us, we pretermit consideration of the question whether a state maritime employee can pursue a Jones Act claim in state court as against a state sovereign immunity assertion. In doing so we follow the pattern of the Supreme Court holdings in the cases establishing the law with respect to federal court suits. The Supreme Court also has not dealt with this issue.

IV.

Appellant urges that there has been an express waiver by the State of Texas of its sovereign immunity under the Texas Tort Claims Act. The Act does waive immunity to suit against the state for personal injuries proximately caused by the negligence of state employees acting within the scope of employment if the injury arises from “the operation or use of a motor driven vehicle and motor driven equipment.” Texas Rev.Civ.Stat.Ann. art. 6252-19 § 3 (Vernon Supp. 1980-81). Appellant’s injury did arise from the use of motor driven equipment by a state employee. Section 19 of the Act, however, limits this waiver of immunity. It provides that a governmental unit carrying Texas Workers’ Compensation Insurance is entitled to the “privileges and immunities” granted by the Workers’ Compensation Act “to private persons and corporations”. The claim is made that since the State of Texas admittedly cannot insulate private employers from Jones Act and maritime remedies, Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953), granting the state agency “all of the privileges and immunities” constitutes an express waiver of sovereign immunity by the state under the Texas Workers’ Compensation statute.

The short answer to this assertion is that it requires a tortured interpretation of the phrase “privileges and immunities” to find that those words constitute a waiver of the right of the state to limit suits by injured state employees in federal court. Instead, the obvious purpose of the statutory provision is to give to state agencies adopting Texas Workers’ Compensation the protections against suits by injured employees for recovery of damages based upon negligence. If Texas had intended to withdraw its desire for coverage under the Texas Workers’ Compensation Act by withdrawing the immunity in Jones Act cases, the granting of the “privileges and immunities” of the state Act was an exceedingly strange way to do it, and a much clearer way could have been found in simple language.

Of controlling importance in this case is recognition of the fact that once it is determined that Congress has not required the state to waive its sovereign immunity by unequivocal language in the statute, the question of whether the state has or has not waived immunity from suits in the federal court is a matter of state law. If the state has spoken in interpreting its law, it is not within our authority to reinterpret the law. See Petty v. Tennessee-Missouri Bridge Comm., 359 U.S. 275, 278, 79 S.Ct. 785, 788, supra. We have the authoritative state interpretation of these very provisions. In Lyons v. Texas A & M University, 545 S.W.2d 56 (Tex.Civ.App. 1976), the precise issue of the case before us was decided by the Texas court. The case involved the injury of a seaman on a vessel owned and operated by Texas A & M University, a governmental unit of Texas. The Texas Workers’ Compensation Act had been adopted by the University and was applicable to the injury. Lyons, however, brought suit to recover damages for unseaworthiness, maintenance and cure, and negligence under the Jones Act. The Texas Court of Civil Appeals affirmed the state district court in dismissing the claim. It found that section 19 of the Texas Tort Claims Act was intended to make the workers’ compensation remedy exclusive. The Supreme Court of Texas denied review, finding no reversible error. Tex. Writs of Error Table, 134 (1982).

It is also noteworthy that the Lyons opinion was written by the late Judge Cire when he was serving on the Texas Court of Civil Appeals. Judge Cire was the United States District Judge who rendered the district court decision in the case which is before us. It strengthens the application of the state law for the district judge who applied it to have been the judge who created the authoritative state interpretation when he was on the state court. In any event, we give some deference to interpretations of state law by the district judges because of their particular knowledge of local law. NCH Corp. v. Broyles, 749 F.2d 247, 253 n. 10 (5th Cir.1985). Judge Cire knew what the law of the State of Texas was with respect to express waiver. We accept his interpretation.

We conclude that the State of Texas has not waived expressly its sovereign immunity beyond that contained in Section 19 of the statute which gives state employees coverage only under the Texas Workers’ Compensation law if the agency has adopted that law.

V.

Appellant makes a final analytical assertion that the State of Texas, by applying its own workers’ compensation law to this injury of a maritime employee, has placed an unconstitutional condition upon its assertion of sovereign immunity. Reliance is grounded upon the Supreme Court case of Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), which held that state workers’ compensation statutes could not apply to injuries occurring on navigable waters.

Such an unconstitutional conditions analysis is not relevant here. The Jensen case did not concern itself with a maritime employee of a state. Instead, as must be emphasized throughout in the consideration of this and similar cases, the Court was dealing with private maritime employment. The analysis must be under the doctrine of sovereign immunity and the Eleventh Amendment. The established law is that the State of Texas, absent waiver, is not subject to suit in federal court under a statute passed as part of the federal plenary regulatory powers unless the federal government has expressly undertaken in terms within the statute to require waiver of immunity under that statute. This leaves the state free to provide workers’ compensation for injuries to its own employees as against a suit in federal court. Otherwise, there would be a federally imposed remedy abrogating sovereign immunity without expressed intention to impose such a remedy. In terms this is inconsistent with Atascadero and also the principle of the political control of federal regulation by the states acting through the Congress which the Court emphasized in the Garcia case. 105 S.Ct. at 1018.

VI.

We hold that since Congress has not in terms within the Jones Act required waiver of state immunity as to the maritime employees of the states, and there has been no actual waiver by the state, the State of Texas was not subject to suit by an injured state maritime employee in federal court under the Jones Act. The decision of the district court denying Jones Act recovery to appellant, a maritime employee of the State of Texas, is in accordance with the law.

AFFIRMED.

1 . Appellant’s claim against the mobile crane manufacturer is not before us on this appeal.

2 . A current analysis by Professor Martha Field of the Harvard Law School is in full agreement. In a comprehensive article entitled Garcia v. San Antonio Metropolitan Transit Authority: The Demise of a Misguided Doctrine, 99 Harv.L. Rev. 84-118 (Nov.1985), Professor Field evaluates the impact of Atascadero in these words:

The Court last Term, for example, four months after the Garcia decision, ruled in Atascadero State Hospital v. Scanlon that Congress would not be deemed to have exercised its power to require states to defend in federal court against individuals’ claims that the states are violating federal enactments, unless Congress has so stated in absolutely explicit language in the enactment itself. Because the Court imposed that condition retrospectively, it effectively placed upon Congress the burden of reenacting statutes regulating states if it would have states answer in federal court to individuals' suits.

In a footnote following this textual statement, Professor Field points out that in the analogous situation Congress did reenact the Fair Labor Standards Act to make it applicable to state employees.