The opinion of the court was delivered by: FISHER
Before the court is a motion to dismiss the action for lack of subject matter jurisdiction brought by the defendant, New Jersey Transit Rail Operations, Inc. (hereafter "New Jersey Transit"). Specifically, defendant argues that the Eleventh Amendment of the United States Constitution bars the present suit.
The Eleventh Amendment states:
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.
Although the Amendment's literal terms encompass only suits by citizens of another state, this immunity extends as well to suits brought by a citizen against his own state in federal court. Hans v. Louisiana, 134 U.S. 1, 10, 33 L. Ed. 842, 10 S. Ct. 504 (1890), Edelman v. Jordan, 415 U.S. 651, 662-63, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974).
Notwithstanding the immunity, a state may be subjected to federal jurisdiction in one of two ways. First, Congress may override a state's immunity where it exercises its legislative powers to enforce the substantive provisions of the Due Process Clause of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 87 L. Ed. 2d 171, 105 S. Ct. 3142 (1985). In Atascadero State Hosp., supra, the Supreme Court stated:
Congress may abrogate the state's constitutionally secured immunity from suit in federal court only by making its intention unmistakenly clear in the language of the statute. The fundamental nature of the interest implicated by the Eleventh Amendment dictates this conclusion.
Id. at 242. The second way in which a state may be subject to suit in federal court is where the state has waived its immunity. Clark v. Barnard, 108 U.S. 436, 447, 27 L. Ed. 780, 2 S. Ct. 878 (1883). A waiver of immunity, however, is not routinely found. Rather, a court will find such a waiver "only where stated 'by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.'" Edelman, supra, 415 U.S. at 673, quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 53 L. Ed. 742, 29 S. Ct. 458 (1909).
In general, the immunity afforded by the Amendment extends not only to cases where the state itself is a party to the suit, but also to suits against state agencies, instrumentalities and officers where the state is, in fact, the real party in interest. Edelman, supra, 415 U.S. at 663. In this regard, I need only briefly address New Jersey Transit's right to claim immunity from suit under the Amendment. A number of cases have considered the issue and have concluded that New Jersey Transit is, in fact, the alter ego of the state government of New Jersey. Gibson-Homans Co. v. New Jersey Transit Corp., 560 F. Supp. 110, 113 (D.N.J. 1982); Saddle River Tours v. New Jersey Department of Transit, et al. (No. 83-1776 D.N.J., October 31, 1983), affirmed, 745 F.2d 48 (3d Cir. 1984). Indeed, Rockwell offers no opposition on this point.
a. Congressional Abrogation
The question raised by this motion is whether a state, operating a railroad in interstate commerce, may be sued in federal court under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51, et seq. The answer depends on to what extent the Supreme Court's decision in Parden v. Terminal Ry. of Alabama Docks Dept., 377 U.S. 184, 12 L. Ed. 2d 233, 84 S. Ct. 1207 (1964), survives the Court's recent decision in Welch v. State Dept. of Highways and Public Transportation, et al., 483 U.S. 468, 97 L. Ed. 2d 389, 107 S. Ct. 2941 (1987).
In Parden, supra, the Court held that a state may be sued under FELA in federal court, notwithstanding a state's Eleventh Amendment immunity. The Court held:
We think that Congress, in making the FELA applicable to "every" common carrier by railroad in interstate commerce, meant what it said. That congressional statutes regulating railroads in interstate commerce apply to such railroads whether they are state owned or privately owned is hardly a novel proposition; . . .
Id. 377 U.S. at 188. On the issue of congressional intent to abrogate a state's immunity, ...