Appeals from the United States District Court for the District of New Jersey - Newark, D.C. Civil Nos. 86-5103, 87-1365
BEFORE: SEITZ, STAPLETON and COWEN, Circuit Judges.
Plaintiffs John Leadbeater and Leonardo Benitez brought these actions against defendant Port Authority Trans-Hudson Corporation (P.A.T.H.), a commuter railroad, under the Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C. §§ 51 - 58 (1982). The district court dismissed both cases, holding them barred by the eleventh amendment to the United States Constitution. We have jurisdiction of this consolidated appeal under 28 U.S.C. § 1291 (1982).
Leadbeater and Benitez were P.A.T.H. employees who sustained injuries while on duty at that commuter railroad. Under the F.E.L.A., "every common carrier by railroad while engaging in commerce between any of the several States" is liable to its employees for injuries suffered on the job. 45 U.S.C. § 51. F.E.L.A. further provides for jurisdiction in the district courts concurrent with state court jurisdiction, id. § 56.
P.A.T.H. is a wholly owned subsidiary of the Port Authority of New York and New Jersey (Port Authority) The Port Authority was created in 1921 by an interstate compact between New York and New Jersey. This interstate compact was approved by Congress in a Joint Resolution pursuant to the compact clause of the United States Constitution.*fn1
This appeal presents the discrete question whether plaintiffs' suits in federal court against P.A.T.H. are barred by the eleventh amendment. In Port Authority Police Benevolent Association v. Port Authority, 819 F.2d 413 (3d Cir.), cert. denied, 484 U.S. 953, 108 S. Ct. 344, 98 L. Ed. 2d 370 (1987), we concluded that the Port Authority is an arm of the compacting states entitled to eleventh amendment immunity. The legislatures of New York and New Jersey have explicitly stated that P.A.T.H. "shall have all of the privileges [and] immunities . . . of the Port Authority," N.J. Stat. Ann. § 32:1-35.61 (West 1963); N.Y. Unconsol. Laws § 6612 (McKinney 1979). P.A.T.H. contends that as a matter of federal law it has eleventh amendment immunity to the same extent as the Port Authority. Plaintiffs do not contend otherwise, and therefore we proceed on that premise.
Eleventh amendment immunity can be avoided by congressional abrogation, or by state consent to suit in federal court. See Welch v. Texas Dep't of Highways and Public Transportation, 483 U.S. 468, 107 S. Ct. 2941, 2945 - 46, 97 L. Ed. 2d 389 (1987) (plurality opinion). Plaintiffs argue that P.A.T.H. has waived its eleventh amendment protection by its agreement to accept benefits under the Urban Mass Transportation Act, 49 U.S.C. § 1601, et seq. They also argue that the state statutes consenting to suit against the Port Authority are an express waiver of P.A.T.H.'s eleventh amendment immunity. They finally argue that P.A.T.H.'s eleventh amendment immunity has been removed by congressional approval of an interstate agreement between New York and New Jersey. See Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 3 L. Ed. 2d 804, 79 S. Ct. 785 (1959).
Plaintiffs first argue that P.A.T.H. has waived its eleventh amendment immunity to suit in federal court as a condition of its participation in a federal program under the Urban Mass Transportation Act (U.M.T.A.), 49 U.S.C. App. § 1601, et seq. Plaintiffs inform us that, as permitted by the U.M.T.A., 49 U.S.C. App. § 1608(f)(1), P.A.T.H. has petitioned for and received exemption from Interstate Commerce Commission regulation -- including rate regulation -- otherwise provided for by the Interstate ...