Page:United States Reports 502 OCT. TERM 1991.pdf/371

 502us1$16L 08-21-96 15:27:13 PAGES OPINPGT

Cite as: 502 U. S. 197 (1991)

213

O’Connor, J., dissenting

supra. In Feeney, we held that a State could waive its sovereign immunity from suit and consent to a damages action under FELA. Feeney’s underlying assumption, of course, was that Congress had intended to include state-owned railroads in the class of appropriate FELA defendants. If States are not within the contemplated category of defendants, then States could not consent to suit, because they cannot “create a cause of action. . . against an entity whom Congress has not subjected to liability.” Howlett v. Rose, 496 U. S. 356, 376 (1990). Welch did not hold that railroads owned by States were outside FELA’s category of “[e]very common carrier by railroad,” however. 45 U. S. C. § 51. In fact, Welch never clarified what would count in the context of FELA as a “clear statement” of congressional intent that States submit to damages suits. Because the aspect of state sovereignty at stake here is immunity from damages suits, the clear statement required should be tailored to that concern. See Gregory v. Ashcroft, 501 U. S. 452 (1991) (when application of federal statute would change state law with respect to tenure of state judges, clear statement rule tailored to question whether Congress intended the statute to apply to state judges, not whether Congress intended the statute to apply to States generally). A “clear statement” in this context, then, should be a statement that “Congress intended to abrogate the States’ immunity from suit.” Dellmuth v. Muth, 491 U. S., at 231. Congress clearly wanted “[e]very common carrier by railroad” to be subject to suit under FELA. Railroad owners, then, are clearly within the contemplated category of defendants. Congress, however, did not clearly say whether it intended to force States that happen also to be railroad owners to submit to suit without their consent. Indeed, it is quite doubtful that Congress thought it had the power to create causes of action against the States in 1908 when FELA was enacted. See Welch, supra, at 496 (Scalia, J., concurring