# Port Authority Trans-Hudson Corporation v. Feeney

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## Concurring Opinion

    Brennan
United States Supreme Court
495 U.S. 299
Port Authority Trans-Hudson Corporation v. Feeney
No. 89-386 Argued: Feb. 26, 1990. --- Decided: April 30, 1990 #fn-s
Syllabus
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 Comm'n, 359 U.S. 275, 279, 79 S.Ct. 785, 788. 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, 239-240, 105 S.Ct. 3142, 3145-3146, 87 L.Ed.2d 171. 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 241, 105 S.Ct., at 3146. 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 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. 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. 309.
Joseph Lesser, New York City, for petitioner.
Richard W. Miller, for respondent.
Justice O'CONNOR delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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