Petitioner Port Authority Trans-Hudson Corp. (PATH) is an entity
created by New York and New Jersey to operate certain
transportation facilities. Alleging that they incurred injuries
during their employment. with PATH, respondents filed separate
complaints against PATH in the District Court to recover damages
pursuant to the Federal Employers' Liability Act. The court
dismissed the complaints on the ground that PATH enjoyed the
States' sovereign immunity, and thus that the Eleventh Amendment
deprived the court of jurisdiction. The Court of Appeals reversed
in both cases, holding that the Eleventh Amendment did not bar the
suits because,
inter alia, any immunity that PATH
possessed had been waived under identical statutes of both States,
which provided that the States "consent to suits . . . against
[PATH]," and that
"[t]he foregoing consent is granted upon the condition that
venue in any [such] suit . . . shall be laid within a . . .
judicial district, established by . . . the United States."
Held: The statutory consent to suit provision, as
elucidated by the venue provision, establishes the States' waiver
of any Eleventh Amendment immunity that might otherwise bar
respondents' suits against PATH. It is appropriate here to assume
arguendo that PATH is a state agency entitled to the
States' sovereign immunity.
Petty v. Tennessee-Missouri Bridge
Commission, 359 U. S. 275,
359 U. S. 279.
In determining whether a State has waived such immunity, this Court
applies a particularly strict standard: a waiver will be given
effect
"only where stated by the most express language or by such
overwhelming implication as [will] leave no room for any other
reasonable construction."
Atascadero State Hospital v. Scanlon, 473 U.
S. 234,
473 U. S.
239-240. Moreover, a State does not waive its immunity
by consenting to suit only in its own courts, but must specify its
intention to subject itself to suit in federal court.
Id.
at
473 U. S. 241.
Here, the statutory venue provision suffices to resolve any
ambiguity contained in the general consent to suit provision by
expressly indicating that the States' consent extends to suit in
federal court. PATH's argument
Page 495 U. S. 300
that the venue provision cannot control the construction of the
consent to suit provision is rejected. The venue provision directly
indicates the extent of the States' waiver embodied in the consent
provision, because the States passed both provisions as portions of
the same Acts; because the venue provision expressly refers to and
qualifies the consent provision; and because venue issues are
closely related to immunity issues in that a State's constitutional
interest in immunity encompasses not merely
whether it may
be sued, but
where it may be sued. PATH's related argument
that the venue provision cannot broaden the consent provision begs
the question what the States intended through the latter provision.
The venue provision elucidates rather than broadens the consent
provision's meaning by removing an ambiguity: the venue provision
would hardly qualify "[t]he foregoing consent" unless the States
intended that consent to include federal court suits. Furthermore,
PATH suggests no "reasonable construction" as an alternative to the
interpretation that the phrase, "judicial district, established . .
. by the United States," sets forth consent to suit in federal
court. Pp.
495 U. S.
304-309.
873 F.2d 628 (CA2 1989) and 873 F.2d 633 (CA2 1989),
affirmed.
O'CONNOR, J., delivered the opinion for a unanimous Court with
respect to Part I, and the opinion of the Court with respect to
Part II, in which REHNQUIST, C.J., and WHITE, SCALIA, and KENNEDY,
JJ., joined. BRENNAN, J., filed an opinion concurring in part and
concurring in the judgment, in which MARSHALL, BLACKMUN, and
STEVENS, JJ., joined,
post, p.
495 U. S.
309.
Justice O'CONNOR delivered the opinion of the Court.
This case calls upon the Court to determine whether the Eleventh
Amendment bars respondents' suits in federal
Page 495 U. S. 301
court against an entity created by New York and New Jersey to
operate certain transportation and other facilities.
I
In 1921, New York and New Jersey entered a bi-state compact
creating the Port Authority of New York and New Jersey. 1921
N.J.Laws, c. 151; 1921 N.Y.Laws, c. 154;
see N.J.Stat.Ann.
§ 32:1-1
et seq. (1963); N.Y.Unconsol.Laws § 6401
et
seq. (McKinney 1979). In accord with the Constitution's
Compact Clause, Art. I, § 10, cl. 3, Congress consented to the
compact. 42 Stat. 174 (1921). Through the compact, the States
created the Authority to achieve "a better coordination of the
terminal, transportation and other facilities of commerce in, about
and through the port of New York," N.J.Stat.Ann. § 32:1-1 (1963);
N.Y. Unconsol.Laws § 6401 (McKinney 1979), and lodged in the
Authority
"full power and authority to purchase, construct, lease and/or
operate any terminal or transportation facility.within [the port]
district."
N.J. Stat.Ann. § 32:1-7 (1963); N.Y.Unconsol. Laws § 6407
(McKinney 1979).
See generally United States Trust Co. of N. Y.
v. New Jersey, 431 U. S. 1,
431 U. S. 4-5
(1977); E. Bard, The Port of New York Authority (1942). The Port
Authority Trans-Hudson Corp. (PATH), petitioner in these
consolidated cases, is a wholly-owned subsidiary of the Port
Authority that operates an interstate railway system and other
facilities. PATH is entitled to "all of the privileges, immunities,
tax exemptions and other exemptions of the port authority" and is
subject to suit to the same extent as the Authority.
See
N.J.Stat.Ann. § 32:1-35.61 (1963); N.Y.Unconsol.Laws § 6612
(McKinney 1979).
Respondents Patrick Feeney and Charles Foster alleged injuries
incurred during their employment with PATH. Both filed separate
complaints against PATH in the United States District Court for the
Southern District of New York to recover damages pursuant to the
Federal Employers' Liability
Page 495 U. S. 302
Act (FELA), 35 Stat. 65,
as amended, 45 U.S.C. § 51
et seq. (1982 ed.), the Boiler Inspection Act, 36 Stat.
913,
as amended, 45 U.S.C. § 22 (1982 ed.), and the Safety
Appliance Act, 27 Stat. 531, 45 U.S.C. § 1 (1982 ed.). PATH moved
to dismiss both complaints, asserting that PATH enjoyed New York
and New Jersey's sovereign immunity, and thus that the Eleventh
Amendment deprived the federal court of jurisdiction over the
suits. Relying in part on
Port Authority Police Benevolent
Assn., Inc. v. Port Authority of New York and New Jersey, 819
F.2d 413 (CA3),
cert. denied, 484 U.S. 953 (1987), the
District Court concluded that the Eleventh Amendment deprived it of
jurisdiction, and dismissed respondents' complaints. App. to Pet.
for Cert. A-27, A-46. In
Port Authority Police Benevolent
Assn., the Court of Appeals for the Third Circuit reasoned
that, because the States had established the Authority as a state
agency and continued to exercise extensive control over its
operations, the Port Authority was entitled to Eleventh Amendment
immunity. 819 F.2d at 413. The court also found no waiver of that
immunity.
Id. at 418, n. 2.
The Court of Appeals for the Second Circuit held that the
Eleventh Amendment did not bar Feeney's suit, because "the Eleventh
Amendment immunity either does not extend to [PATH] or has been
waived." 873 F.2d 628, 628-629 (1989). The court concluded that
PATH did not enjoy the States' sovereign immunity, principally
because the treasuries of New York and New Jersey are largely
insulated from PATH's liabilities.
Id. at 631-632. In
reaching its conclusion that the States had waived any immunity
that PATH possessed, the court relied upon two provisions of an Act
governing suits against the Port Authority and its subsidiaries and
passed by New York (in 1950) and New Jersey (in 1951). 1951 N.J.
Laws, c. 204; 1950 N.Y.Laws, c. 301;
see N.J.Stat.Ann. §
32:1-157
et seq. (1963); N.Y.Unconsol.Laws § 7101
et
seq. (McKinney 1979). The first section provided that the
States
"consent to suits, actions or proceedings of any form
Page 495 U. S. 303
or nature at law, in equity or otherwise . . . against the Port
of New York Authority."
N.J.Stat.Ann. § 32:1-157; N.Y.Unconsol.Laws § 7101. Another
section provided in part:
"The foregoing consent [of N.J.Stat.Ann. § 32:1-157;
N.Y.Unconsol.Laws § 7101] is granted upon the condition that venue
in any suit, action or proceeding against the Port Authority shall
be laid within a county or a judicial district, established by one
of said States or by the United States, and situated wholly or
partially within the Port of New York District. The Port Authority
shall be deemed to be a resident of each such county or judicial
district for the purpose of such suits, actions, or
proceedings."
N.J.Stat.Ann. § 32:1-162 (1963); N.Y.Unconsol.Laws § 7106
(McKinney 1979). The court concluded that, despite the "somewhat
anomalous" location of an indication of waiver in a venue
provision, the statutory provisions demonstrated
"an intent to allow the Port Authority to be sued in the
designated federal courts, and is thus an explicit waiver, albeit
partial, of the Eleventh Amendment [immunity]."
873 F.2d at 633. The Second Circuit reversed the district
court's dismissal of Foster's complaint on identical grounds. 873
F.2d 633 (1989). Two days before the Second Circuit issued these
decisions, the Third Circuit had reaffirmed and elaborated its
conclusion that the States had not waived the sovereign immunity
that extended to PATH.
See Leadbeater v. Port Authority
Trans-Hudson Corp., 873 F.2d 45 (1989),
cert. pending
(No. 89-479). That court acknowledged that
"[i]t is certainly arguable that the consent to suit statutes,
read in light of this venue provision, create the 'overwhelming
implication' of consent to suit in federal court,"
but held that,
"[n]of without some unease, we conclude that the venue provision
fails to constitute the requisite showing that the states intended
to waive P.A.T.H.'s [E]leventh [A]mendment immunity."
Id. at 49. To resolve this conflict, we granted
certiorari to
Page 495 U. S. 304
review the consolidated decisions of the Second Circuit, 493
U.S. 932 (1989), and we now affirm.
II
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
Citizens or Subjects of any Foreign State."
This Court has drawn upon principles of sovereign immunity to
construe the Amendment to
"establish that 'an unconsenting State is immune from suits
brought in federal courts by her own citizens as well as by
citizens of another state.'"
Pennhurst State School and Hospital v. Halderman,
465 U. S. 89,
465 U. S. 100
(1984) (quoting
Employees v. Missouri Dept. of Public Health
and Welfare, 411 U. S. 279,
411 U. S. 280
(1973));
see also Pennsylvania v. Union Gas Co.,
491 U. S. 1,
491 U.S. 29 (1989) (SCALIA,
J., concurring in part and dissenting in part);
Welch v. Texas
Dept. of Highways and Public Transp., 483 U.
S. 468 (1987) (plurality opinion). The Eleventh
Amendment bar to suit is not absolute. States may consent to suit
in federal court,
see, e.g., Atascadero State Hospital v.
Scanlon, 473 U. S. 234,
473 U. S. 241
(1985);
Clark v. Barnard, 108 U.
S. 436,
108 U. S. 447
(1883), and, in certain cases, Congress may abrogate the States'
sovereign immunity.
See, e.g., Dellmuth v. Muth,
491 U. S. 223
(1989).
Respondents challenge PATH's claim that it is a state agency
entitled to the Eleventh Amendment immunity of New York and New
Jersey.
Petty v. Tennessee-Missouri Bridge Commission,
359 U. S. 275
(1959), guides our resolution of this issue. In
Petty, the
Court considered whether the Eleventh Amendment barred a federal
court from entertaining an action under the Jones Act, 46 U.S.C. §
688 (1958 ed.), brought against the Tennessee-Missouri Bridge
Commission. Similar to the Port Authority, the Commission
constructed and operated transportation facilities pursuant to
a
Page 495 U. S. 305
bi-state compact entered by Tennessee and Missouri and ratified
by Congress. The Court
"assume[d]
arguendo that this suit must be considered
as one against the States, since this bi-state corporation is a
joint or common agency of Tennessee and Missouri,"
359 U.S. at
359 U. S. 279,
but concluded that the States had waived any immunity that the
Commission possessed. Because we find that the States of New York
and New Jersey have consented to suit against PATH in federal
court, we conclude that a similar course is appropriate in this
case.
Well established law governs abrogation and waiver of Eleventh
Amendment immunity. Because "abrogation of sovereign immunity
upsets
the fundamental constitutional balance between the
Federal Government and the States,'" Dellmuth v. Muth,
supra, 491 U.S. at 491 U. S. 227
(quoting Atascadero State Hospital, 473 U.S. at
473 U. S.
238), and because States are unable directly to remedy a
judicial misapprehension of that abrogation, the Court has adopted
a particularly strict standard to evaluate claims that Congress has
abrogated the States' sovereign immunity. See Atascadero State
Hospital, 473 U.S. at
473 U. S. 242 ("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"). Respondents do not assert that Congress has abrogated
the States' sovereign immunity through any of the statutes that
underlie their claims against PATH, and such arguments would be
unavailing. See Welch v. Texas Dept. of Highways and Public
Transp., supra, 483 U.S. at 483 U. S. 468
(opinion of Powell, J.); id. at 483 U. S. 495
(SCALIA, J., concurring in part and concurring in judgment).
Similar solicitude for States' sovereign immunity underlies the
standard that this Court employs to determine whether a State has
waived that immunity. The Court will give effect to a State's
waiver of Eleventh Amendment 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.'"
Atascadero State Hospital, supra, 473 U.S. at
473 U. S.
239-
Page 495 U. S. 306
240 (quoting
Edelman v. Jordan, 415 U.
S. 651,
415 U. S. 673
(1974) (internal quotation omitted)). A State does not waive its
Eleventh Amendment immunity by consenting to suit only in its own
courts,
see, e.g., Florida Dept. of Health and Rehabilitation
Services v. Florida Nursing Home Assn., 450 U.
S. 147,
450 U. S. 150
(1981) (per curiam ), and
"[t]hus, in order for a state statute or constitutional
provision to constitute a waiver of Eleventh Amendment immunity, it
must specify the State's intention to subject itself to suit in
federal court."
Atascadero State Hospital, 473 U.S. at
473 U. S.
241.
New York and New Jersey have expressly consented to suit in
expansive terms. The statutory consent to suit provision, which
provides that the States "consent to suits, actions, or proceedings
of any form or nature at law, in equity or otherwise . . . against
the Port of New York Authority," N.J.Stat.Ann. § 32:1-157 (1963);
N.Y.Unconsol.Laws § 7101 (McKinney 1979), might be interpreted to
encompass the States' consent to suit in federal court as well as
state court. But such a broadly framed provision may also reflect
only a State's consent to suit in its own courts.
See, e.g.,
Atascadero State Hospital, supra, at
473 U. S. 241.
Sensitive to the values underlying the Eleventh Amendment, the
Court has required that consent to suit in federal court be
express, and thus has construed such ambiguous and general consent
to suit provisions, standing alone, as insufficient to waive
Eleventh Amendment immunity.
See ibid. (general consent to
suit provision did not waive Eleventh Amendment immunity, because
the "provision does not specifically indicate the State's
willingness to be sued in federal court");
Great Northern Life
Ins. Co. v. Read, 322 U. S. 47,
322 U. S. 54
(1944) ("When a state authorizes a suit against itself . . . , it
is not consonant with our dual system for the federal courts to be
astute to read the consent to embrace federal as well as state
courts"). Other textual evidence of consent to suit in federal
courts may resolve that ambiguity and sufficiently
Page 495 U. S. 307
clearly establish the scope of the State's more general consent
to suit. In such circumstances, the Court must give effect to that
clearly indicated consent to suit in federal court.
In this case, the statutory venue provision suffices to resolve
any ambiguity contained in the States' general consent to suit
provision by expressly indicating that the States' consent to suit
extends to suit in federal court. The section provides that
"[t]he foregoing consent [of N.J.Stat.Ann. § 32:1-157 (1963);
N.Y.Unconsol.Laws § 7101 (McKinney 1979)] is granted on the
condition that venue . . . shall be laid within a county or
judicial district, established by one of said States or by the
United States, and situated wholly or partially within the Port of
New York District."
N.J.Stat.Ann. § 32:1-162 (1963); N.Y.Unconsol.Laws § 7106
(McKinney 1979). This provision eliminates the danger, identified
in
Atascadero State Hospital, supra, and
Great
Northern Life Ins. Co., supra, that federal courts may mistake
a provision intended to allow suit in a State's own courts for a
waiver of Eleventh Amendment immunity. Petitioner does not deny
that the phrase "judicial district, established . . . by the United
States" refers to the United States District Courts, but rather
argues that the reference to venue cannot shape our construction of
the general consent to suit provision. Although one might not look
first to a venue provision to find evidence of waiver of sovereign
immunity, we believe that the provision directly indicates the
extent of the States' waiver embodied in the consent provision. The
States passed the venue and consent to suit provisions as portions
of the same Acts that set forth the nature, timing, and extent of
the States' consent to suit. The venue provision expressly refers
to and qualifies the more general consent to suit provision.
Additionally, issues of venue are closely related to those
concerning sovereign immunity, as this Court has indicated by
emphasizing that
"[a] State's constitutional interest in immunity encompasses not
merely
whether it may be sued, but
where it may
be sued."
Pennhurst State School
Page 495 U. S.
308
and Hospital v. Halderman, 465 U.S. at
465 U. S. 99.
Petitioner's related argument that a venue provision cannot broaden
the consent to suit provision begs the question what the States
intended through the consent provision. The venue provision
elucidates, rather than broadens, the consent to suit provision: it
provides persuasive textual evidence that the consent to suit
provision encompasses suits in federal court, and broadens the
effect of the consent provision only to the extent of removing an
ambiguity that called forth this Court's prudential canon of
construction. The venue provision would hardly qualify "[t]he
foregoing consent" unless the States intended that consent to
include suits in federal court.
Finally, petitioner suggests no "reasonable construction,"
Atascadero State Hospital, 473 U.S. at
473 U. S. 241,
that might be given to the venue provision's phrase, "judicial
district, established . . . by the United States," other than that
the States consented to suit in federal court.
See Brief
for Petitioner 36-38; Tr. of Oral Arg. 15-16. We agree with the
court below that the phrase cannot reasonably be construed as an
ineffectual attempt to limit venue for suits for which Congress has
abrogated the States' immunity.
See 873 F.2d at 633;
see also Leadbeater, 873 F.2d at 49 (declining to accept
similar construction).
Amici curiae supporting petitioner
also confess their inability to provide any reasonable alternative
construction of the phrase. Brief for Council of State Governments
et al. as
Amici Curiae 17. The Third Circuit, in
the course of upholding petitioner's immunity defense in a similar
suit, professed similar bafflement regarding the import of the
venue provision.
See Leadbeater, 873 F.2d at 49;
supra, at
495 U. S. 304.
Petitioner essentially presents the choice between giving the venue
provision its natural meaning and giving the provision no meaning
at all. Charged with giving effect to the statute, we do not find
the choice to be a difficult one.
We conclude that the statutory consent to suit provision,
elucidated by the venue provision, establishes the States'
Page 495 U. S. 309
waiver of any Eleventh Amendment immunity that might otherwise
bar respondents' suits against petitioner. The decisions of the
Court of Appeals for the Second Circuit are therefore
Affirmed.
* Together with
Port Authority Trans. Hudson Corp. v.
Foster, also on certiorari to the same court (
see
this Court's former Rule 19.4 (now 12.2)).
Justice BRENNAN, with whom Justice MARSHALL, Justice BLACKMUN,
and Justice STEVENS join, concurring in part and concurring in the
judgment.
While I agree with the Court that New York and New Jersey
consented, on behalf of the Port Authority Trans-Hudson Corporation
(PATH), to suit in federal court, I write separately to add that
their consent is not necessary to our decision today. I do not join
Part II of the Court's opinion [
Footnote 1] because it presupposes the validity of this
Court's current characterization of the Eleventh Amendment as
cloaking the States with sovereign immunity unless abrogated by
Congress or waived by the States themselves. I adhere to my belief
that this doctrine "rests on flawed premises, misguided history,
and an untenable vision of the needs of the federal system it
purports to protect."
Atascadero State Hospital v.
Scanlon, 473 U. S. 234,
473 U. S. 248
(1985) (BRENNAN, J., dissenting);
see also Welch v. Texas
Highways and Public Transp. Dept., 483 U.
S. 468,
483 U. S. 497
(1987) (BRENNAN, J., dissenting). Nevertheless, under either the
Court's or my own view of the Eleventh Amendment, [
Footnote 2] PATH and similarly situated
interstate entities may be subjected to suit in federal courts.
Page 495 U. S. 310
I
Respondents seek to hold PATH liable under a variety of federal
statutes for injuries they have suffered. [
Footnote 3] In my view, the States' consent is
irrelevant to these suits for two reasons. First, the Eleventh
Amendment secures States only from being haled into federal court
by out-of-state or foreign plaintiffs asserting state law claims,
where jurisdiction is based on diversity. The Amendment did not
constitutionalize some general notion of state sovereign immunity;
it is a jurisdictional provision. Neither States nor Congress may
consent to jurisdiction that is not provided, and, therefore, the
question is not waiver, but reach. In my opinion, the Eleventh
Amendment does not reach, and therefore does not bar, suits brought
under federal question or admiralty jurisdiction.
See Welch,
supra, at
483 U. S.
504-516 (BRENNAN, J., dissenting);
Papasan v.
Allain, 478 U. S. 265,
478 U. S.
292-293 (1986) (BRENNAN, J., concurring in part,
concurring in judgment in part, and dissenting in part);
Green
v. Mansour, 474 U. S. 64,
474 U. S. 78-79
(1985) (BRENNAN, J., dissenting);
Atascadero, supra, 473
U.S. at
473 U. S.
252-302 (BRENNAN, J., dissenting);
see also
Pennsylvania v. Union Gas Co., 491 U. S.
1,
491 U.S. 23
(1989) (STEVENS, J., concurring).
Second, to the extent that States retain a common law defense of
state sovereign immunity, States surrendered that immunity, insofar
as challenges under federal statutes are concerned, "
in the
plan of the Convention'" [Footnote
4] when they
Page 495 U. S.
311
agreed to form a union and granted Congress specifically
enumerated powers. See Edelman v. Jordan, 415 U.
S. 651, 415 U. S. 687
(1974) (BRENNAN, J., dissenting); Employees v. Missouri Dept.
of Public Health and Welfare, 411 U.
S. 279, 411 U. S.
318-322 (1973) (BRENNAN, J., dissenting); see also
Pennsylvania v. Union Gas Co., supra, at 491 U. S. 14
(1989) (plurality opinion) (quoting Parden v. Terminal Railway
of Alabama Docks Dept., 377 U. S. 184,
377 U. S.
191-192 (1964)). Neither the Eleventh Amendment nor the
ancient doctrine of sovereign immunity, as I view them, would bar
respondents' suits, even had they been brought directly against New
York or New Jersey, because both suits allege violations of federal
statutes. Thus, I would affirm the decision below on that
ground.
II
Even under the Court's current interpretation of the Eleventh
Amendment, however, I do not believe that PATH had any defense to
waive. The Eleventh Amendment bars federal jurisdiction only over
suits "commenced or prosecuted against one of the United States."
PATH is a subsidiary of the Port Authority of New York and New
Jersey (Port Authority) which is a bi-state agency created by
interstate compact; it is not "one of the United States." By its
terms, then, the Eleventh Amendment would appear to be
inapplicable. But this Court has created two very limited
exceptions to a literal reading of the phrase "one of the United
States," so that immunity applies: (1) where the entity being sued
is so intricately intertwined with the State that it can best be
understood
Page 495 U. S. 312
as an "arm of the State"; and (2) where the State, though not a
nominal party, is the real party in interest. I believe that no
bi-state agency falls within the first exception, and that no
bi-state agency falls within the second exception if, like the Port
Authority, it is independently and solely liable for any judgments
levied against it. [
Footnote
5]
A
The inherent nature of interstate agencies precludes their being
found so intricately intertwined with the State as to constitute an
"arm of the State." The Court developed the "arm of the State"
doctrine as a tool for determining which entities created by a
State enjoy its Eleventh Amendment protection and which do not.
This Court has found that a private suit against a state agency is
barred by the Eleventh Amendment.
See Alabama v. Pugh,
438 U. S. 781,
438 U. S. 782
(1978) (reversing a lower court's decision to enjoin the State of
Alabama and the Alabama Board of Corrections). Nonetheless, this
Court has long held that counties and cities are not so integrally
related to the State that they are shielded from suit in federal
court. In
Lincoln County v. Luning, 133 U.
S. 529,
133 U. S. 530
(1890), the Court held that the Eleventh Amendment does not bar
suit against counties in federal court, noting that the "Eleventh
Amendment limits the jurisdiction [of the federal courts] only as
to suits against a State." The Court continued:
"[W]hile the county is territorially a
Page 495 U. S. 313
part of the State, yet politically it is also a corporation
created by and with such powers as are given to it by the State. In
this respect, it is a part of the State only in that remote sense
in which any city, town, or other municipal corporation may be said
to be a part of the State."
Ibid. See also Moor v. County of Alameda, 411 U.
S. 693,
411 U. S. 721
(1973) (county);
Graham v. Folsom, 200 U.
S. 248,
200 U. S. 255
(1906) (county);
Workman v. New York City, 179 U.
S. 552,
179 U. S.
565-566 (1900) (city);
cf. Chicot County v.
Sherwood, 148 U. S. 529,
148 U. S.
533-534 (1893) (rejecting state legislature's attempt to
insulate county from federal jurisdiction by providing that county
could only be sued in county courts).
In
Mt. Healthy City Board of Education v. Doyle,
429 U. S. 274,
429 U. S. 280
(1977), the Court noted that "[t]he bar of the Eleventh Amendment
to suit in federal courts . . . does not extend to counties and
similar municipal corporations," and looked to the "nature of the
entity created by state law" to determine whether local school
boards in Ohio appeared to be more like a county or city or more
like an arm of the State. The Court concluded that the school
boards' extensive powers to issue bonds and levy taxes, and their
categorization under state law as a form of political subdivision,
rendered them "[o]n balance . . . more like a county or city."
Ibid.
The rule to be derived from our cases is that the Eleventh
Amendment shields an entity from suit in federal court only when it
is so closely tied to the State as to be the direct means by which
the State acts, for instance a state agency. In contrast, when a
State creates subdivisions and imbues them with a significant
measure of autonomy, such as the ability to levy taxes, issue
bonds, or own land in their own name, these subdivisions are too
separate from the State to be considered its "arms." This is so
even though these political subdivisions exist solely at the whim
and behest of their State.
See, e.g., ibid; Graham v. Folsom,
supra, 200 U.S. at
200 U. S.
252.
Page 495 U. S. 314
Interstate agencies lack even this close link to any one State.
While a State has plenary power to create and destroy its political
subdivisions, a State enjoys no such hegemony over an interstate
agency. To begin with, a State cannot create such an agency at
will. In order to do so, it must persuade another State, or several
other States, to join it. Moreover, the creation of an interstate
agency requires each State to relinquish to one or more sister
States a part of its sovereignty. The regulatory powers exercised
by an interstate agency are powers no longer inhering in any one
compacting State; they are powers shared. Likewise, no one State
has complete dominion over property owned and proprietary
activities operated by such an agency. For instance, in order to
achieve the practical advantages of coordinated planning and
administration through the Port Authority, New York and New Jersey
each has ceded partial control over the regulation and operation of
transportation facilities in its own State since 1921 and for the
foreseeable future. In order to change the Port Authority's
organization or powers, the legislatures of both States must pass a
bill to that effect.
In addition, States may not create an interstate agency without
the express approval of Congress; they surrendered their right to
do so "in the plan of the convention" when they accepted the
Interstate Compact Clause. The Clause provides:
"No State shall, without the Consent of the Congress, . . .
enter into any Agreement or Compact with another State. . . ."
U.S. Const., Art. I, § 10, cl. 3. The Constitution also
prohibits States from entering into any "Treaty, Alliance, or
Confederation" either with other States or with foreign
governments. Art. I, § 10, cl. 1. [
Footnote 6] The Interstate
Page 495 U. S. 315
Compact Clause and the State Treaty Clause ensure that whatever
sovereignty a State possesses within its own sphere of authority
ends at its political border. [
Footnote 7]
Thus, it is not within the autonomous power of any State to
create and regulate an interstate agency. Each State's sovereign
will is circumscribed by that of the other States in the compact
and circumscribed further by the veto power relinquished to
Congress in the Constitution. If counties are not "arms" of their
States merely because the State conferred a certain autonomy on
them -- an autonomy it can withdraw at
Page 495 U. S. 316
will -- then an interstate agency, over which none of the
compacting States exercises such untrammeled control, cannot be
said to be an "arm" of any of them. [
Footnote 8]
B
Although this Court has held that a suit in which the State,
rather than the nominal defendant, is the real party in interest is
a suit against "one of the United States" within the meaning of the
Eleventh Amendment, a State is the real party in interest generally
only when the State is directly liable for a money judgment.
[
Footnote 9] In
Ford Motor
Co. v. Department of Treasury of Indiana, 323 U.
S. 459,
323 U. S. 464
(1945), the Court held that a suit against a state treasury
department and the individuals constituting its board for a refund
of taxes
Page 495 U. S. 317
was a suit against the State because,
"when the action is in essence one for the recovery of money
from the state, the state is the real, substantial party in
interest and is entitled to invoke its sovereign immunity from suit
even though individual officials are nominal defendants."
This Court relied on that decision 30 years later in
Edelman
v. Jordan, 415 U. S. 651,
415 U. S. 677
(1974), in holding that the Eleventh Amendment barred a suit
brought in federal court in which the nominal defendants were
Illinois officials because the relief sought was an injunction
ordering retroactive payments of benefits from the state treasury.
The Court observed that
"the rule has evolved that a suit [in federal court] by private
parties seeking to impose a liability which must be paid from
public funds in the state treasury is barred by the Eleventh
Amendment."
Id. at
415 U. S. 663.
See also Kennecott Copper Corp. v. State Tax Comm'n,
327 U. S. 573
(1946) (tax refund);
Great Northern Life Insurance Co. v.
Read, 322 U. S. 47 (1944)
(tax refund);
Smith v. Reeves, 178 U.
S. 436 (1900) (tax refund);
see generally
22 U. S. Bank of
United States, 9 Wheat. 738 (1824) (rejecting an Eleventh
Amendment defense because the nominal defendant, not the State, was
the real party in interest). [
Footnote 10]
Page 495 U. S. 318
Conversely, when a State is not liable for the obligations of an
interstate agency, it is not a real party in interest in a suit
against that agency. The court below found that no State is liable
for PATH's obligations. It concluded:
"We believe it clear that a judgment against PATH would not be
enforceable against either New York or New Jersey. The Port
Authority is explicitly barred from pledging the credit of either
state or from borrowing money in any name but its own. Even the
provision [permitting] the appropriation of moneys for
administrative expenses up to $100,000 per year requires prior
approval by the governor of each state and an actual appropriation
[by the legislature] before obligations for such expenses may be
incurred. Moreover, the [provision's] phrase 'salaries, office and
other administrative expenses' clearly limits this essentially
optional obligation of the two states to a very narrow category of
expenses, and thus also evidences an intent to insulate the states'
treasuries from the vast bulk of the Port Authority's operating and
capital expenses, including personal injury judgments. No provision
commits the treasuries of the two states to satisfy judgments
against the Port Authority."
873 F.2d 628, 631 (CA2 1989). Therefore neither New York nor New
Jersey is a real party in interest in respondents' suits, as this
Court has understood and applied the concept in the Eleventh
Amendment area.
C
This is not to say that the only restriction on whether an
interstate agency can be sued in federal court is the Eleventh
Page 495 U. S. 319
Amendment. Congress may provide an interstate agency with an
affirmative defense to its federal statutory obligations as
Congress wishes, subject only to independent constitutional
strictures such as the Equal Protection Clause. Congress would
ordinarily be expected to address the matter through a specific
statutory provision. It may also be that a court could legitimately
infer Congress' intention to provide such a defense from its
consent to an interstate compact the terms of which patently
attempt to grant immunity from suit in federal court.
See Lake
Country Estates, Inc. v. Tahoe Regional Planning Agency,
440 U. S. 391,
440 U. S. 401
(1979).
But it cannot be disputed that there is no such showing here.
Congress has not passed any law conferring any immunity on the Port
Authority. Nor did the compact to which Congress consented include
any provision attempting to grant immunity from suit in federal
court. Consequently, I believe that this Court, following its
current view of the Eleventh Amendment, could have rested its
decision today on the absence of an Eleventh Amendment defense, as
well as on waiver.
[
Footnote 1]
I join Part I of the opinion of the Court.
[
Footnote 2]
The Eleventh Amendment provides:
"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."
[
Footnote 3]
Both Patrick Feeney and Charles T. Foster asserted claims under
Federal Employers' Liability Act (FELA), 45 U.S.C. § 51
et
seq. (1982 ed.), the Boiler Inspection Act, 45 U.S.C. § 22
(1982 ed.), and the Safety Appliance Act, 45 U.S.C. § 1 (1982
ed.).
[
Footnote 4]
The phrase is Alexander Hamilton's. He used it in a passage
reassuring States, which might have been concerned with the
securities they issued and might not have wished to honor, that the
grant of diversity jurisdiction in Article III would not annul
their defense of sovereign immunity should they be sued in federal
court under state law on a writ of debt.
"It is inherent in the nature of sovereignty not to be amenable
to the suit of an individual
without its consent. This is
the general sense, and the general practice of mankind; and the
exemption, as one of the attributes of sovereignty, is now enjoyed
by the Government of every State in the Union.
Unless
therefore, there is a surrender of this immunity in the plan of the
Convention, it will remain with the States. . . . [T]here is
no color to pretend that the state governments would, by the
adoption of that plan, be divested of the privilege of paying their
own debts in their own way, free from every constraint but that
which flows from the obligations of good faith."
The Federalist No. 81, p. 567 (H. Dawson ed. 1876) (second
emphasis added).
[
Footnote 5]
This Court has twice before addressed the question whether a
bi-state entity could raise an Eleventh Amendment defense to
federal jurisdiction, and twice rejected the specific immunity
claim presented.
See Petty v. Tennessee-Missouri Bridge
Comm'n, 359 U. S. 275,
279-280 (1959) (not reaching "arm-of-the-State" issue but finding
that any Eleventh Amendment bar had been waived);
Lake Country
Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.
S. 391, 401-402 (1979) (finding subject to federal
jurisdiction at least a bi-state entity whose parent States
disclaimed any immunity for it, whose compact failed to disclose
any Congressional intent to protect it from federal jurisdiction,
and whose obligations were not binding on either parent State).
[
Footnote 6]
The framers had serious concerns about this problem, as shown by
their inclusion of provisions even stricter than those in the
Articles of Confederation. In the Articles of Confederation, the
limitation on the "sovereignty, freedom and independence" retained
by each State was:
"'No two or more states shall enter into any treaty,
confederation or alliance whatever between them, without the
consent of the united states in congress assembled, specifying
accurately the purpose for which the same is to be entered into,
and how long it shall continue.'"
Frankfurter & Landis, The Compact Clause of the Constitution
-- A Study in Interstate Adjustments, 34 Yale L.J. 685, 693-694
(1925) (quoting Art. VI, Articles of Confederation).
[
Footnote 7]
That the Interstate Compact and State Treaty Clause reflect a
disfavor of intermediate-level sovereigns is well settled.
See Frankfurter & Landis,
supra, at 694 ("The
absence of any powerful national capabilities on the part of the
Confederacy, except in the conduct of foreign affairs, underlines
the significance of these clauses [in the Articles of
Confederation] as insurance against competing political power. This
curb upon political combinations by the States was retained almost
in haec verba by the Constitution"); V. Thursby,
Interstate Cooperation, A Study of the Interstate Compact 4 (1953)
(suggesting that one reason for the Compact Clause was that the
federal government could be endangered by political combinations of
the States);
Virginia v. Tennessee, 148 U.
S. 503, 518 (1893) (declaring that the compacts to which
the Compact Clause refers are "those which may tend to increase and
build up the political influence of the contracting States, so as
to encroach upon or impair the supremacy of the United States or
interfere with their rightful management of particular subjects
placed under their control");
Barron v.
Baltimore, 7 Pet. 243, 248 (1833) (explaining that
agreements between States for political purposes could "scarcely
fail to interfere with the general purposes and intent of the
[C]onstitution").
[
Footnote 8]
Lake Country Estates, Inc. v. Tahoe Regional Planning
Agency, supra, is not inconsistent with this analysis. In that
case, we noted that the Eleventh Amendment is available only to
"
one of the United States,'" that its protection has never been
extended to political subdivisions, even though such entities
exercise a "`slice of state power,'" and that there was "no
justification for reading additional meaning into the limited
language of the Amendment" so as to immunize a bi-state agency
unless Congress had indicated a desire to place the agency in a
special position. 440 U.S. at 400-401. The Court noted that neither
of the States that created the bi-state agency could veto its
actions, and observed that the conclusion that
"TRPA is not in fact an arm of the State subject to its control
is perhaps most forcefully demonstrated by the fact that California
has resorted to litigation in an unsuccessful attempt to impose its
will on TRPA."
Id. at 402.
[
Footnote 9]
This Court has also found that the Eleventh Amendment bars a
suit seeking equitable relief where a state officer defendant is
not alleged to have acted contrary to state or federal law and the
State is the real party in interest.
See Cory v. White,
457 U. S. 85 (1982)
(interpleader action). However, no State is a real party in
interest in an action for prospective injunctive relief brought
against an interstate agency, because any injunction would run
against the agency, which is not an "arm of the State."
See Part II-A,
supra. Therefore, actions for
prospective relief against an interstate agency would not be barred
by the Eleventh Amendment, as the Court interprets it, whatever the
agency's relationship to the States' treasuries.
See generally
Ex Parte Young, 209 U. S. 123
(1908);
Quern v. Jordan, 440 U. S. 332
(1979).
[
Footnote 10]
This Court has not decided which arrangements between a State
and a nominal defendant are sufficient to establish that the State
is the real party in interest for Eleventh Amendment purposes. It
may be that a simple indemnification clause, without more, does not
trigger the doctrine. Lower courts have uniformly held that States
may not cloak their officers with a personal Eleventh Amendment
defense by promising, by statute, to indemnify them for damage
awards imposed on them for actions taken in the course of their
employment.
See, e.g., Blaylock v. Schwinden, 862 F.2d
1352, 1354, n. 1 (CA9 1988) ("The eleventh amendment prohibits a
district court from ordering payment of a judgment from the state
treasury. The court may properly order the officials to pay damages
under § 1983, but if the officials desire indemnification under the
state statute, they must bring their own action in state court");
Duckworth v. Franzen, 780 F.2d 645, 650-651 (CA7 1985)
("[T]he purpose of the Eleventh Amendment is only to protect the
state against involuntary liability. If the state chooses to pick
up the tab for its errant officers, its liability for their torts
is voluntary. . . . Moreover, it would be absurd if all a state had
to do to put its employees beyond the reach of section 1983, and
thereby make the statute ineffectual except against employees of
local governments, . . . was to promise to indemnify state
employees for any damages awarded in such a suit");
Wilson v.
Beebe, 770 F.2d 578, 588 (CA6 1985) ("State cannot clothe
[state officer] with [Eleventh Amendment] immunity by voluntarily
agreeing to pay any judgment rendered against him").