In fact, by giving positive effect to the express language of the Venue Provision, the Court, in effect, endorsed its conditions as well. This endorsement is implicit in the rationale of Feeney. As the discussion above indicates, see supra at pp.13-14, the Feeney Court expressly indicated that the Venue Provision was important because it "qualified the more general language" and scope of the Consent Provision. The court also recognized that the Venue Provision was a proper place to turn for guidance because the Venue and Consent Provisions were both "portions of the same Acts that set forth the nature, timing, and extent of the States' consent to suit" against the Port Authority. Feeney, 495 U.S. at 307 (emphasis added).
In addition, even if it is conceded that Feeney was ambiguous with regard to the conditions expressed in the Consent to Suit Statutes, well-established case law in this area counsels against the broad reading of Feeney suggested by Hess.
As previously discussed, a stringent standard exists for finding waiver of Eleventh Amendment Immunity. In conjunction with this stringent standard, states may condition their consent. See, e.g., Allendale, 614 F.Supp. at 1451. As well, consent to suit statutes must be strictly construed. Feeney, 495 U.S. at 305-06; Schillinger, 155 U.S. at 166; Luciano, 102 A.D.2d at 96; Wood, 136 N.J.Super. at 252. In particular, courts have strictly construed the one year limitations period of the Consent To Suit Statutes. See Larson, 17 F.R.D. at 299-300; Rao, 122 F.Supp. at 597; De Luca, 464 N.Y.S.2d at 341; Matthews, 163 N.J.Super. at 85.
For these reasons, the broad interpretation of Feeney suggested by Hess is rejected. In accordance with Feeney and the case law in this area, the Port Authority waived its Eleventh Amendment immunity subject, inter alia, to the conditions set forth in the Venue Provision and the Limitations Provision.
2. Argument That Consent To Suit Statutes Are Not Needed To Obtain Subject Matter Jurisdiction Over The Port Authority In This Case
Hess argues that, because he is "an employee covered by FELA," he "does not need the consent of [the Port Authority] to sue." Opp. Brief at 3-4. Hess also relies on Hilton, U.S. , 112 S. Ct. 560, for the proposition that he "does not need any consent by [the Port Authority] to bring suit under the FELA." Id. According to Hess, the Supreme Court in Hilton "held that any sovereign immunity which may be held by state owned railroads under a state's common law has been abrogated by the enactment by Congress of FELA. The Court held that the entire federal scheme of railroad law applies to state owned railroads." Id. These arguments are without merit.
As discussed, a state or state agency can lose its Eleventh Amendment immunity in only two ways -- either through Congressional abrogation or through a consent to suit statute. See supra at pp.7-8. Hess' argument ignores the fact the Supreme Court has already held that FELA does not, by itself, contain the necessary explicit language to constitute an abrogation of Eleventh Amendment immunity. See Feeney, 495 U.S. at 305; Welch, 483 U.S. at 476-78. In Welch, the Court expressly reversed that portion of Parden v. Terminal Ry. of Alabama State Docks Dep't, 377 U.S. 184, 12 L. Ed. 2d 233, 84 S. Ct. 1207, reh'g denied, 377 U.S. 1010, 12 L. Ed. 2d 1057, 84 S. Ct. 1903 (1964), which held that "Congress evidenced an intention to abrogate Eleventh Amendment immunity by making FELA applicable to 'every common carrier by railroad while engaging in commerce between any of the several states. . . ."
Welch, 483 U.S. at 476 (quoting FELA, 45 U.S.C. § 51). The Welch Court further stated:
Although our later decisions do not expressly overrule Parden, they leave no doubt that Parden's discussion of Congressional intent [in FELA] to negate the Eleventh Amendment is no longer good law. . . . Accordingly, to the extent that Parden v. Terminal Railway, supra, is inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language, it is overruled.
Id. at 478; see also Hilton, U.S. at , 112 S. Ct. at 562-63 (re-affirming Welch).
Review of the relevant portions of FELA does not evidence a Congressional intent to abrogate that is "both unequivocal and textual" and "unmistakably clear in the language of the statute." Dellmuth, 491 U.S. at 227-28 (quoting Atascadero, 473 U.S. at 242); Welch, 483 U.S. at 475; Pennhurst, 4514 U.S. at 16. The relevant portions of FELA read:
Every common carrier by railroad while engaging in commerce between any of the several States or Territories . . . shall be liable in damages to any person suffering from injury while he is employed by such carrier in such commerce . . . for any such injury or death resulting . . . from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.
45 U.S.C. § 51.
An action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.
Id., § 56.
Nothing in FELA indicates an unambiguous textual intent by Congress to abrogate Eleventh Amendment immunity. The Court has repeatedly recognized that general language authorizing suit in Federal court does not satisfy the stringent standard required to show abrogation. See, e.g., Dellmuth, 491 U.S. at 231; Welch, 483 U.S. at 476; Atascadero, 473 U.S. at 246; Pennhurst, 465 U.S. at 99. The Court stated in Atascadero:
A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate Eleventh Amendment. When Congress chooses to subject the states to federal jurisdiction, it must do so specifically.
473 U.S. at 246.
Hess' reliance on Hilton is similarly unavailing. In Hilton, the Court held that the language of FELA unambiguously indicated an intent by Congress to subject state owned railroads to the statute's provisions. U.S. at , 112 S. Ct. at 563-66. Therefore, the court concluded that states and their agencies could be sued in state court for violations of FELA. Id. at 566.
As the court recognized, however, Hilton did not disturb the Court's Eleventh Amendment jurisprudence. The court in Hilton left Welch intact and specifically limited its holding to suits against states maintained in state courts. The Court stated:
Welch is not controlling here. . . . The most vital consideration of our decision today, which is that to confer immunity from state-court suit would strip all FELA and Jones Act protection from workers employed by the States, was not at all discussed in the Welch decision....... As we have stated on many occasions, the Eleventh Amendment does not apply in state courts.
Id. at , 112 S. Ct. at 564-65 (citing Will, 491 U.S. at 63; Thiboutot, 448 U.S. at 9 n.7; Nevada v. Hall, 440 U.S. 410, 420-21, 59 L. Ed. 2d 416, 99 S. Ct. 1182, reh'g denied, 441 U.S. 917, 60 L. Ed. 2d 389, 99 S. Ct. 2018 (1979)) (emphasis added).
The Hilton Court further recognized that "two separate inquiries into state liability" -- Eleventh Amendment doctrine and statutory interpretation -- must be made by courts. Id. at , 112 S. Ct. at 566. Although in some cases this two-fold inquiry may create a situation in which a Federal statute can only be enforced in state court, the court recognized that "symmetry is not an imperative that must override just expectations which themselves rest upon the predictability and order of stare decisis." Id. This asymmetry, in fact, is based on the established precedent that a state may waive its sovereign immunity and consent to suit in state court while, nevertheless, maintaining its Eleventh Amendment Immunity.
Feeney, 495 U.S. at 306; Florida Dep't of Health, 450 U.S. at 150.
For these reasons, neither FELA nor Hilton provide relief for Hess. FELA does not abrogate Eleventh Amendment immunity, nor does Hilton address Eleventh Amendment immunity. Because the possibility of Congressional abrogation is closed to Hess, he has no choice except to rely on the Consent to Suit Statutes for this action. Therefore, his argument that the Consent to Suit Statutes need not be employed to maintain suit against the Port Authority is rejected.
3. Argument That The One Year Limitations Period In The Consent To Suit Statutes Cannot Be Used To Alter FELA's Three Year Limitations Period
The final argument offered by Hess is that the one year limitations period cannot be applied in this case. Opp. Brief at 7-8. Once again, Hess argues Hilton controls because it held "that the entire Federal scheme of railroad law as embodied in FELA governs the remedy of injured railroaders, not state statute or common law." Id. at 7. The inapplicability of Hilton to the issues in this case has been addressed immediately above, see supra at pp.24-26 and need not repeated. Put simply, Hilton authorizes the enforcement of FELA against states and their agencies in state, not Federal, courts.
Hess also argues:
If the limitation of one year has any relevance to an FELA action, the explicit terms of the FELA render the limitations void. The FELA provides that no employer may promulgate or enforce any rule or procedure which reduces or limits an employee's rights under the FELA. 45 U.S.C. § 55. The one year limitations period is argued to reduce Hess' rights under the FELA and is therefore void.
Opp. Brief at 7. These arguments are also without merit.
Contrary to Hess' characterization, this is not a case in which state and Federal statutes of limitations are found to be in conflict. In such a case, there is no question that the Federal limitations period would prevail under the principles of Federal preemption as provided by the Supremacy Clause of the United States Constitution. See U.S. Const. Art. VI, P 2. Instead, the one year limitations period applicable in this case "is more than a statute of limitations in the usual sense." De Luca, 464 N.Y.S.2d at 341; see also Blazano, 232 N.Y.S.2d at 778. It is "an integral part of the right to enforce [an] action" against the Port Authority, Blazano, 232 N.Y.S.2d at 778, and "a condition precedent to bringing the action which must be pleaded." De Luca, 464 N.Y.S.2d at 341; Matthews, 163 N.J.Super at 85; Wood, 136 N.J. Super at 252.
Because "the liability and the remedy are created by and within the same statute, the limitations of the remedy [are] treated as limitations of the right." Blazano, 232 N.Y.S.2d at 778. For this reason, the one year limitations period is "not subject to the disabilities or excuses by which ordinary statutes of limitation may be avoided by a plaintiff." Larson, 17 F.R.D. at 300; accord Blazano, 232 N.Y.S.2d at 778 (citing numerous cases).
The distinction here is between a statute promulgated by a State legislature and "a rule of constitutional law, based on the Eleventh Amendment."
Hilton, U.S. at ; 112 S. Ct. at 565. While certainly the former would be preempted by a Federal statute, the latter cannot necessarily be so preempted. As the court has recognized, a "state is not divested of its immunity 'on the mere ground that the case is one arising under the constitution or laws of the United States.'" Parden, 377 U.S. at 186 (quoting Hans, 134 U.S. at 10).
As previously discussed, only a state's consent or Congressional abrogation can deprive a state of its Eleventh Amendment immunity. As also discussed, FELA does not meet the stringent standard established by the Supreme Court and does not abrogate state Eleventh Amendment immunity.
See supra at pp.22-24. For these reasons, Hess can only sue the Port Authority in Federal court under the conditions to consent provided by the Consent to Suit Statutes. As a condition to suit, the Statutes required Hess to bring suit within one year. Because he failed to comply with this condition, the Complaint must be dismissed.
For the reasons stated above, the Port Authority motion to dismiss is granted.
Dated: 21 December 1992