FEDERAL MARITIME COMMISSION

THE COMMISSION FILES A PETITION
FOR WRIT OF CERTIORARI
IN THE UNITED STATES SUPREME COURT

Washington, D.C. 20573

NR 01-08

CONTACT: CHRISTOPHER HUGHEY (202) 523-5740

FOR RELEASE JULY 10, 2001

Federal Maritime Commission Chairman Harold J. Creel, Jr. announced today that the FMC has filed a petition for a writ of certiorari in the United States Supreme Court.

The Commission is seeking Supreme Court review of the decision by the U.S. Court of Appeals for the Fourth Circuit in South Carolina State Ports Authority v. Federal Maritime Commission and United States of America, 243 F.2d 165 (March 12, 2001). That decision overruled the Commission's March 23, 2000 order in Docket No. 99-21, South Carolina Maritime Services, Inc. v. South Carolina State Ports Authority.

The issue in Docket No. 99-21 is whether a cruise ship company, South Carolina Maritime Services, was subjected to discriminatory treatment by a marine terminal operator, the South Carolina State Ports Authority (SCSPA). Maritime Services filed its complaint in order to obtain a Commission ruling on that issue. However, before the issue could be reached, SCSPA filed a motion to dismiss the case, alleging that it is immune from agency adjudications under the Eleventh Amendment to the United States Constitution.⁽¹⁾ Denying the motion to dismiss, the Commission noted that the Eleventh Amendment specifically addresses "Judicial power" and forbids "suits in law or equity" against States. The Commission therefore determined that the Eleventh Amendment does not apply to administrative adjudications, which it found are not lawsuits and do not involve the exercise of judicial power.

The U.S. Court of Appeals for the Fourth Circuit, hearing SCSPA's appeal, disagreed with the Commission's decision and ruled that sovereign immunity from suit is broader than the text of the Eleventh Amendment. The Court of Appeals held that state sovereign immunity from suit applies to any adversarial-style proceeding, regardless of whether the proceeding involves judicial power and regardless of whether it is a lawsuit. Accordingly, the Court of Appeals ordered the Commission to dismiss Maritime Services' complaint.

The Commission filed a petition for a writ of certiorari on Tuesday, July 10, 2001. A petition for a writ of certiorari is a request that the Supreme Court review a lower court's decision. The United States of America, represented by the Solicitor General, as well as SCSPA, are entitled to file responses to the petition. The Supreme Court will then decide whether it wishes to review the case. If it does decide to review the case, further briefing will occur.

Chairman Creel applauded the Commission's unanimous determination to seek Supreme Court review of the Court of Appeals' decision. He noted that: "the Commission is seeking to ensure that both public and private marine terminal operators are covered by the same rules and regulations under the Shipping Act of 1984. Common carriers, freight forwarders, marine terminal operators, and others should have access to the Commission's adjudicative processes, whether their complaints are with public marine terminals or private marine terminals. The Shipping Act reflects the national importance of U.S. maritime commerce, and is intended to apply uniformly to everyone."

The text of the Commission's petition is available at www.fmc.gov

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ENDNOTES

1. 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."