Page:United States Reports 502 OCT. TERM 1991.pdf/372

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HILTON v. SOUTH CAROLINA PUBLIC RAILWAYS COMM’N O’Connor, J., dissenting

in part and concurring in judgment). Since, in enacting FELA, Congress has not clearly stated that it wishes to abrogate a State’s immunity from suit, but has said that it wishes to provide a damages remedy to employees of “[e]very common carrier by railroad,” a State is a proper defendant if it consents to be sued under FELA in its capacity as a railroad owner. But unless a State agrees to be treated as a railroad owner instead of a sovereign, it may not be sued without its consent. As South Carolina has not agreed to throw off its mantle of sovereign immunity, it may not be sued under FELA. I would therefore affirm the judgment of the South Carolina Supreme Court. The concern that South Carolina Public Railways Commission’s employees will be without a remedy should not determine the result in this case. If we clarified our doctrine, instead of obfuscating it, States could allow other compensation schemes to fill the void left by FELA. We should not so quickly assume that South Carolina will callously ignore the fate of its own workers. Certainly, South Carolina has more of a stake in seeing that its employees are compensated than does Congress or this Court. Instead of avoiding the implications of our previous decisions, I would adhere to them. The Court’s holding, while premised on fairness, is unfair to the States, courts, and parties that must parse our doctrine applying the clear statement rule. Therefore, I respectfully dissent.