Parden v. Terminal Ry. of Alabama State Docks Dept.

377 U.S. 184 (1964).

One-Sentence Takeaway: A state may constructively waive its eleventh amendment sovereign immunity by participating in interstate commerce governed by a federal statute authorizing a federal cause of action.

Summary:  Plaintiff was an employee of the state-owned railroad.  He sustained injuries during the course of his employment.   Plaintiff brought a lawsuit against Alabama under the Federal Employers’ Liability Act (“FELA”).

Alabama challenged the federal court’s jurisdiction over the lawsuit by asserting sovereign immunity under the eleventh amendment.

The district court dismissed the lawsuit based on sovereign immunity and the court of appeals affirmed.  The United States Supreme Court reversed, however, and held that a non-consenting state may constructively waive its eleventh amendment immunity to lawsuit in federal court by participating in a federal program which provides a federal cause of action.

The Court emphasized that “the states had surrendered a portion of their sovereignty” when they ratified the United States Constitution.  By authorizing Congress to regulate commerce, “the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation.”

Accordingly, the Court concluded that Alabama, by engaging in interstate commerce after Congress had enacted FELA, had impliedly consented to suit in federal court.

Subsequent Treatment:  The Parden ruling was later overruled in part by the Court in Welch v. Department of Highways & Pub. Transp., 483 U.S. 468, 477 (1987).  Welch overruled Parden to the extent that it is inconsistent with the requirement that congressional abrogation of the eleventh amendment must be in unmistakably clear language within the statute itself.  Moreover, in other opinions since Parden, the Court further restricted the circumstances in which a state may be held to have constructively waived its eleventh amendment immunity.  See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1 (1985) (“A State may effectuate a waiver of its constitutional immunity . . . [only with] an unequivocal indication that the State intends to consent to federal jurisdiction”); Edelman v. Jordan, 415 U.S. 651, 673 (1974) (doctrine of constructive consent is not “commonly associated with the surrender of constitutional rights”); Employees of the Dep’t of Pub. Health & Welfare v. Missouri Dep’t of Pub. Health & Welfare, 411 U.S. 279, 286-87 (1973) (refusing to find that Missouri implicitly consented to waive its eleventh amendment immunity by the mere participation in a federal program).

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