Welch v. Texas Department of Highways and Public Transportation

RESPONDENT: Texas Department of Highways and Public Transportation
LOCATION: United States Tax Court

DOCKET NO.: 85-1716
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 483 US 468 (1987)
ARGUED: Mar 04, 1987
DECIDED: Jun 25, 1987

F. Scott McCown - on behalf of the respondents
Michael D. Cucullu - on behalf of the petitioner

Facts of the case


Media for Welch v. Texas Department of Highways and Public Transportation

Audio Transcription for Oral Argument - March 04, 1987 in Welch v. Texas Department of Highways and Public Transportation

William H. Rehnquist:

We will hear argument next in No. 85-1716, Jean E. Welch versus State Department of Highways and Public Transportation.

Mr. Cucullu, you may begin whenever you are ready.

Michael D. Cucullu:

Mr. Chief Justice, may it please the Court, Jean Welch was crushed and injured between a mobile crane and a guard rail in 1981 while employed as a marine technician for the State Highway Department of the State of Texas.

Faced with the proposition that a line of decisions in Texas precludes her from pursuing a Jones Act case within the state court system she sued for Jones Act remedies in the Federal District Court in Houston, and was denied by virtue of a motion to dismiss founded upon Eleventh Amendment immunity.

The District Court reasoned that the Eleventh Amendment precluded her right to pursue her Jones Act claim in Federal District Court.

That is the issue which comes here by way of the Fifth Circuit, which held in its en banc decision that the recent line of cases of this Court in connection with immunity requires a statement within the Jones Act that the Jones Act is particularly, clearly, and unequivocally applicable to the states.

This is a deviation from the most closely aligned cases of Petty and Parden which held very simply the other end of the spectrum, that in the event that the government chooses or elects to enter into a federally regulated sphere of activity, that it necessarily subjects itself to the federal regulations which Congress has enacted.

In Petty, for instance, even though there is some distinguishing factors in there the Jones Act was the key issue.

The individual sued a bi-state corporation and was entitled to recover with language by this Court indicating that unless the state was specifically excluded from the statutory language, then the individual who was injured had the right to proceed.

Sandra Day O'Connor:

Mr. Cucullu, would you say that the constructive waiver theory in Parden is inconsistent with this Court's most recent statements about the need for Congress to use express language to leave no room for another construction if the state's Eleventh Amendment immunity is to be waived?

Michael D. Cucullu:

Yes, Your Honor, it is.

I believe that the opposite ends of the spectrum are the Parden decision and the Atascadero decision.

I think on the one hand where the Court said if you choose to enter into this activity, you are going to subject yourself to our regulations, whereas on the other hand the Atascadero decision says the immunity issue is not going to be waived until and unless Congress says that it is directly and unequivocally applicable to the states as defendants under the Jones Act.

Sandra Day O'Connor:

Is it open to us, do you think, to just overrule Parden in this case?

Michael D. Cucullu:

Of course it is open to you.

I think that is one of the options that the Court has.

I think one of the considerations that the Court has to undertake in connection with overruling Parden is whether the provisions of Article 3, Section 2 of the Constitution are sufficient to allow Congress to completely, totally, and exclusively regulate maritime and admiralty matters in this country, and that is the critical issue here, because Jean Welch, the plaintiff in this particular case, has no remedy.

If the Fifth Circuit Court of Appeals is affirmed.

She has no remedy under the Jones Act in connection with her rights as a seaman, which is a federally protected employee, one of the two classes of federally protected employees.

Byron R. White:

Do federal courts are exclusive jurisdiction under the Jones Act?

Michael D. Cucullu:

No, Your Honor, they do not.

Byron R. White:

How about a state court suit?

Michael D. Cucullu:

It was an option to the plaintiff, to Ms. Welch, at the time that the suit was filed.

There are state--

Byron R. White:

What, has the statute run now, or what?

Michael D. Cucullu:

--Yes, Your Honor.

Byron R. White:

Because it didn't seem to me that the Court of Appeals foreclosed any Jones Act suit in the state court.

Petty would indicate that it was open.

Michael D. Cucullu:

It was open, but there is language also in the state court in the concurring opinion of Judge Gee, for instance, Your Honor, which indicates that--

Byron R. White:

In the Court of Appeals.