416 U.S. 946 | SCOTUS | 1974
Dissenting Opinion
dissenting.
The petitioners seek damages from the State of Pennsylvania arising from a bus accident allegedly caused by the improper design, construction, and maintenance of the highway. Seven children were fatally injured when the bus, carrying a group of young people, rotated 180 degrees on wet pavement and went through the guardrail and over the embankment. A study by the National Transportation Safety Board suggested that the accident was caused in part by the “low basic skid resistance of the pavement in-wet weather, and the probable presence of water draining across the pavement in an abnormal manner.” It also suggested that the fatalities and injuries resulted in part from an “ineffective highway guardrail which failed to prevent the bus from rolling down an embankment.”
The Congress has enlarged the federal role in ensuring highway safety since passage of the Federal Aid-Highway Act. . In 1965 Congress added 23 U. S. C. § 135, 79 Stat. 578, requiring each State to have a federally approved highway safety program “designed to reduce traffic accidents and deaths.” And because of the absence of effective state action, the following year the Congress passed the Highway Safety Act, 23 U. S. C. § 401 et seq., which repealed the former § 135 (see 80 Stat. 734). Section 402 (a) provides that the Secretary promulgate regulations for the state highway safety program. Pursuant to this provision the Secretary has promulgated
The court below recognized that the State may waive its immunity under the Eleventh Amendment when “it leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation.” Parden v. Terminal R. Co., 377 U. S. 184, 196. In Parden, the Court found that Alabama, “when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act.” Id., at 192. But the court below distinguished Parden by finding that there was no indication that Congress intended to condition the receipt of federal funds upon the State’s submission to liability for violation of the accompanying regulations. Yet even respondents here concede that the State is bound by the federal regulations because the State has accepted federal funds. But, respondents argue, the federal regulations are not mandatory because “[t]he State has the option at any time to ignore the Federal Aid Highway Act and its progeny, the only result being the cessation of Federal Aid.”
The' fact is, however, that Pennsylvania has not exer
“Where a State has consented to join a federal-state cooperative project, it is realistic to conclude that the State has agreed to assume its obligations under that legislation.” Edelman v. Jordan, 415 U. S. 651, 685. (Douglas, J., dissenting). Here the State has made that explicit by its own legislation. It has continued to seek and accept all of the federal funding available to it since the adoption of the statutes and regulations which petitioners here contend the State has violated. It would thus appear that the State is subject to whatever remedies are available when it is contended that a State has not conformed to the federal requirements.
The explicit statutory remedy, noted above, is that the Secretary may terminate federal highway aid under the appropriate legislation. The District Court concluded that since this was the only sanction expressly authorized by the statute, “the Highway Safety Act creates no duty on behalf of the states running toward these plaintiffs and creates no private action for breach thereof.” 344 F. Supp., at 1348. The Court of Appeals, affirming, found no private right of action- implied by the Act. The court relied on its - prior decision in Mahler v. United States, 306 F. 2d 713, which found that the purpose of the federal regulations was to protect the federal investment in the roads, not to assure travelers that the roads were safely constructed and maintained. But the High
By .voluntarily entering into the federal highway program the State has waived any immunity from suit charging it with failure to perform its obligations under that program. See my dissent in Edelman v. Jordan, supra. Because I believe that the .right of private action under the federal highway program is-an important question, and that the Eleventh Amendment issue was wrongly decided below, I would grant certiorari.
The District Court accepted these conclusions of the National Transportation Board as correct for the purpose of considering respondents’ motions to dismiss. 344 F. Supp. 1337, 1340 n. 5
“The Judicial power of the United States shall not be construed
H. R. Rep. No. 681, 89th Cong., 1st Sess. (1965). Although the highway involved here was initially constructed before passage of the Highway Safety Act, petitioners contended in the District Court that under the legislation the State was required to maintain the highway in accordance with the new standards and that it had failed to meet this obligation. This contention, of course, goes to the merits of petitioners' claim and need not be resolved in determining whether the action was properly dismissed.
H. R. Rep. No. 681, supra, n. 3, at 8.
Lead Opinion
C. A. 3d Cir. Certiorari denied.