Full opinion text
DECISION AND ENTRY OVERRULING PLAINTIFF’S REQUEST FOR A PRELIMINARY INJUNCTION; FINDINGS OF FACT AND CONCLUSIONS OF LAW; DECISION AND ENTRY SUSTAINING DEFENDANT’S MOTION TO DISMISS; JUDGMENT TO DEFENDANT; ENTRY OF JUDGMENT; PLAINTIFF’S MOTION TO COMPEL DISCOVERY AND SEEKING STATEMENT OF COURT’S DISINCLINATION TO SUSTAIN DEFENDANT’S MOTION TO DISMISS DEEMED MOOT; TERMINATION ENTRY RICE, District Judge. I. Introduction On February 9, 1981, Hughes-Bechtol, Inc., filed the within action against the West Virginia Board of Regents (hereinafter Board), requesting that the Court both declare the arbitration clause in a contract between the Plaintiff and Defendant to be binding on the parties, and that it award damages in the amount established by the arbitrator. The facts before this Court indicate that on April 5, 1979, Hughes-Bechtol and the Board entered into a standard American Institute of Architects (AIA) agreement, which provided that Hughes-Bechtol would perform mechanical work on the Multi-Purpose Physical Education Facility (gymnasium) to be constructed at Marshall University in Huntington, West Virginia. The contract between the parties also provided for arbitration in the event of contractual disputes. Problems arose during construction, and Hughes-Bechtol requested arbitration. The Board refused to participate in arbitration proceedings, claiming that the arbitration clause was of no effect, since the Board had no authority to obligate the State of West Virginia for amounts beyond those which had been appropriated by the state legislature. Moreover, since the Board was immune from suit under principles of sovereign immunity, the Board contended that Hughes-Bechtol’s only, and proper remedy lay in the West Virginia Court of Claims, where suits against the state were allowed to be brought. Hughes-Bechtol proceeded through arbitration anyway, and just prior to the granting of the arbitration award, filed the present action. The Board then filed a Motion to Dismiss, requesting that the suit be dismissed, inter alia, for the aforementioned reasons. However, before the Court issued a ruling on Defendant’s Motion to Dismiss, Hughes-Bechtol filed a Motion for a Preliminary Injunction on August 4, 1981, requesting that the Court enjoin the Board from interfering with its (Hughes-Bechtol’s) contractual rights, and from its performing the work left unfinished under the contract entered into by the parties. Appropriate Opposing and Reply Memoranda were filed by the parties, and on August 11, 1981, Plaintiff’s Motion for a Preliminary Injunction came on for hearing before the Court, at which time the Court received testimony on behalf of the Plaintiff, from Philip Thompson, the Regional Director of the Cincinnati Office of the American Arbitration Association, and from D.R. Hughes, Jr., the President of HughesBechtol, Inc. Plaintiff also offered nine exhibits, which were admitted into evidence. Defendant offered testimony from Karl Egnatoff, the Vice-President of Administration for Marshall University, and from Kenneth E. Grose, the Vice-Chancellor for Administrative Affairs for the West Virginia Board of Regents. Defendant additionally has filed with the Court, in conjunction with its Motion to Dismiss, the Affidavit of Dr. Robert Ramsey, Jr., the Chancellor and Chief Administrative Officer for the West Virginia Board of Regents, to which is attached the purchase order issued to Hughes-Bechtol by the Commissioner of Finance and Administration for the West Virginia Board of Regents. After consideration of the above materials, the Court indicated to the parties on August 13, 1981, that it would overrule the Plaintiff’s Motion for a Preliminary Injunction, and would thereafter file a decision more fully outlining its reasoning. The Court also stated that a decision would be forthcoming at the same time with regard to the Motion to Dismiss previously filed by the Defendant. After an analysis of the facts and legal authority pertinent to the matters under consideration, the Court has concluded that: (1) Under the balancing test followed by the Sixth Circuit in Roth v. Bank of the Commonwealth, 583 F.2d 527 (6th Cir. 1978), cert. dism’d., 442 U.S. 925, 99 S.Ct. 2852, 61 L.Ed.2d 292 (1979) (Roth), for ruling upon a motion for preliminary injunction, the Plaintiff has not demonstrated either a likelihood óf success on the merits, or that it will suffer irreparable harm; (2) Defendant’s Motion to Dismiss should be granted, since the Court does not have jurisdiction over the subject matter involved in this action. Because Fed.R. Civ.P. 52(a) requires specific findings of fact and conclusions of law by the Court upon refusal of interlocutory injunctions, the Court will first set forth its determinations with respect to the injunction request, and will then follow with an analysis of the other matters brought forth in the Defendant’s Motion to Dismiss. II. Preliminary Injunction A. Findings of Fact Based on the testimony adduced at the hearing held on August 11, 1981, and the Exhibits, affidavit, and the pleadings presented herein, the Court makes the following findings of fact: 1. Hughes-Bechtol, Inc. (also “contractor”) is a corporation organized under the laws of the State of Ohio, with a principal place of business in Ohio, and an annual volume of business of approximately thirty million dollars (130,000,000). 2. Marshall University is a state university located in Huntington, West Virginia. Marshall University has an enrollment of approximately twelve thousand students, and participates in Division I athletics. 3. In 1979, the West Virginia Board of Regents (also “owner”) solicited bids in connection with the construction at Marshall University of Henderson Center, which was intended to be a multipurpose physical education facility including a basketball arena seating ten thousand persons, classrooms for the department of health and physical education, and offices for the athletic department. Also included in this project was the renovation of an existing building, Gullickson Hall. 4. Hughes-Bechtol was awarded a contract in the amount of three million, one hundred sixty two thousand, one hundred and seventy-three dollars ($3,162,173.00) for the mechanical work for the Multi-Purpose Physical Education Facility. According to the terms of the contract, the work to be performed was to be commenced upon the date specified in the “Notice to Proceed” given by the Board to Hughes-Bechtol. From the time specified, Hughes-Bechtol would have eight hundred and fifty (850) consecutive calendar days to fully complete the project. 5. On April 5, 1979, a purchase order was issued by the State of West Virginia, Department of Finance and Administration for the above contract price. 6. The original anticipated completion date for the Henderson Center Project was April 6, 1981, but at the time of the injunction hearing, the physical activities center was scheduled for occupancy on October 15, 1981, due to delays in the project. At the time of the hearing herein, the project was ninety percent (90%) finished. 7. During the first year of the contract, little progress was made on the construction project. Hughes-Bechtol requested an extension of time and payments for the increased costs due to the delay, but the Board refused, and instead directed that Hughes-Bechtol perform the unfinished work in the time remaining under the contract. 8. Paragraph 7.9.1 of the contract between the Board and Hughes-Bechtol provided that all disputes arising between the owner and the contractor would “be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association,” that the agreement to arbitrate “shall be specifically enforceable under the prevailing arbitration law,” and that “the award entered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.” 9. On December 11, 1980, Hughes-Bechtol filed a demand for arbitration with the Cincinnati office of the American Arbitration Association. The arbitration inquiry was bifurcated, with consideration being first given to whether the issue was one subject to arbitration. On February 20, 1981, the arbitrator ruled that the matter was arbitrable, and notified the parties of his decision. A hearing on the claims of Hughes-Bechtol was held, and on June 9, 1981, after the filing of the within lawsuit, the arbitrator issued his decision, finding that Hughes-Bechtol was entitled to an additional sum of five hundred twenty-one thousand three hundred twenty-six dollars and forty-eight cents ($521,326.48). 10. The Board did not participate directly in the arbitration hearings, but did have a legal representative present. On various occasions, the Board and the West Virginia Attorney General’s Office advised HughesBechtol and the American Arbitration Association that the Board of Regents was not authorized to engage in binding arbitration. 11. Paragraph 9.7 of the contract provided that if an amount awarded through arbitration was not paid by the owner, the contractor was permitted to stop work. After the Board refused payment of the arbitration award, Hughes-Bechtol removed its work forces from the Henderson Center construction site on July 20, 1981. 12. The other contractors on the Henderson Center project have agreed to pursue remedies for contractual claims against the Board in the West Virginia Court of Claims. 13. Vandalism at the University is minimal. The only incidents testified to involved minor tampering with fire equipment in the dormitories on two occasions. In addition, Henderson Center was evacuated once due to a bomb scare. Bomb scares, however, occur with some frequency at the University, because of the erroneous belief by students that such a scare will result in the cancellation of classes. 14. The Board and Hughes-Bechtol continued to attempt to negotiate, but on August 3, or 4, 1981, Hughes-Bechtol was advised that it would not be possible for Marshall University to pay seven or eight hundred thousand dollars in additional claims on the Henderson Center project. 15. On Tuesday, August 4, 1981, Hughes-Bechtol removed approximately two hundred thousand dollars ($200,000.00) worth of equipment from the Henderson Center job site, and from warehouses in Huntington, West Virginia. Between July 20, 1981, and the date of the equipment removal, Hughes-Bechtol had employed a project manager on the job site. Although the equipment had been at the job site or in warehouses for at least one year, HughesBechtol was concerned about the safety of the equipment, based on the bomb scares at the job site and the possibility of vandalism at both the job site and the warehouses. Hiring a twenty-hour guard for the property may have been less expensive than moving the equipment to Dayton. Hughes-Bechtol did not attempt to find other warehouses in the Huntington area to accommodate the property. 16. Hughes-Bechtol’s sole claimed damage justifying a preliminary injunction is that, on future bids, it will be required to disclose on the bidding qualification statement that it had failed to finish work awarded to it. This would preclude Hughes-Bechtol from being considered for a bid by some employers. The bidding qualification statement also provides for an explanation of why the work awarded was not finished. 17. If a preliminary injunction should be granted, the University would be unable to start its basketball season and intramural programs as scheduled. Approximately five thousand tickets have already been sold for the first game of the season. In addition, an injunction would have an effect on the academic program of the University. Since the new facility is constructed so as to “wrap around” an existing structure, classrooms already in existence will be unavailable because of poor ventilation. Finally, an injunction would cause the loss of the jobs of the approximately one hundred and thirty other construction employees presently working at the Henderson Center site. 18. Payments for the Henderson Center project come from the State treasury of West Virginia. The project was financed by a public bond sale, with student revenues for future years obligated to pay for the project. All funds expended by the Board of Regents are state funds from the state treasury and may only be spent pursuant to an appropriation by the West Virginia legislature. All funds received by the Board from all other sources such as federal funds or gifts must be deposited in the state treasury and may be expended only for their specified purposes, and after appropriation by the West Virginia legislature. 19. If Hughes-Bechtol does not complete its contractual obligations, the Board intends to secure other contractors to perform the work. 20. The State of West Virginia has authorized suit to be brought against the State in the West Virginia Court of Claims. B. Conclusions of Law In Roth, 583 F.2d 527 (6th Cir. 1978), cert. dism’d., 442 U.S. 925, 99 S.Ct. 2852, 61 L.Ed.2d 292 (1979), the Sixth Circuit indicated that the following approach should be utilized in determining whether injunctive relief should be granted: In addition to assessing the likelihood of success on the merits, the Court must consider the irreparability of any harm to the plaintiff, the balance of injury as between the parties, and the impact of the ruling on the public interest. Id. at 537-538, quoting with approval from, Metropolitan Detroit Plumbing & Mechanical Contractors Ass’n v. H.E.W., 418 F.Supp. 585, 586 (E.D.Mich.1976) (Detroit Plumbing v. H.E.W.). While there has been an ostensible conflict in the Sixth Circuit’s interpretation of precisely what degree of likelihood of success is required, compare: Ohio v. Callaway, 497 F.2d 1235, 1240 (6th Cir. 1974) (requiring possibility of success on the merits), with Mason County Medical Ass’n v. Knebel, 563 F.2d 256, 261, n.4 (6th Cir. 1977) (requiring strong or substantial likelihood or probability of success on the merits), the Roth Court approved the following explanation, again quoting Detroit Plumbing v. H.E.W., 418 F.Supp. 585, 586 (E.D.Mich.1976): This apparent disparity in the wording of the standard merely reflects the circumstance that no single factor is determinative as to the appropriateness of equitable relief ... In general, the likelihood of success that need be shown will vary inversely with the degree of injury the plaintiff will suffer absent an injunction . . . [i.e., the greater the potential harm to the plaintiff, absent an injunction, the less likelihood of success on the merits which need be shown, and vice-versa]. It thus appears that the precise wording of the standard for the likelihood of success on the merits is not as important as a realistic appraisal of all the traditional factors weighed by a Court of equity. A balancing is required, and not the mechanical application of a certain form of words. Roth, 583 F.2d at 537-538. (Bracketed material added). Balancing the above factors then, as required, this Court finds that injunctive relief is not appropriate under the circumstances involved herein. First, there appears to be slight likelihood that Plaintiff will be able to prevail on the merits in this Court. In reaching such a determination, the Court has carefully avoided any prediction with regard to the eventual outcome of the controversy between Hughes-Bechtol and the Board, but instead has premised its decision on the fact that this Court has no jurisdiction over the subject matter of the present dispute. Consequently, Plaintiff will never be able to succeed in obtaining a judgment on the merits in this jurisdiction. Second, assuming that Plaintiff could somehow “prevail” herein, it has not demonstrated that it will sustain irreparable harm without the issuance of an injunction. Although Plaintiff has indicated that it will be harmed in its ability to bid on future construction contracts if it does not finish the Marshall University contract, an examination of the bidding qualification statement relied upon by Plaintiff indicates that an opportunity is provided thereon for an explanation of the circumstances surrounding any failure to complete a contract. Thus, should Plaintiff eventually receive an award from the West Virginia Court of Claims, which would vindicate its refusal to complete the contract, that fact alone should provide ample justification for future employers. Therefore, Plaintiff does have an adequate remedy at law. Moreover, even at the present incomplete stage of the proceedings, Hughes-Bechtol does have a favorable arbitral decision which may be used as an explanation for the work stoppage at Marshall University, or for a refusal to finish the contract. Third, the balance of injury in the event of issuance of an injunction, clearly rests with the Board rather than with HughesBechtol. Since the Board is charged by law with the supervision and management of the educational policies and affairs of the universities of West Virginia, W.Va.Code § 18-26-1 (1969), an interference with the intramural, athletic, and educational programs at Marshall University would negatively affect the Board’s ability to perform its legislatively-mandated functions. Finally, assuming arguendo that all the above considerations militated in favor of HughesBechtol, the impact of a ruling permitting an injunction would adversely serve the public interest of the people of West Virginia, who would be deprived indefinitely of their ability to utilize the Henderson Center Facility, and would be subjected to a disruption in educational opportunities. Therefore, based on the foregoing analysis, the Court makes the following conclusions of law: 1. Plaintiff has little or no likelihood of succeeding on the merits in the present action; 2. Plaintiff has not demonstrated that it does not have an adequate remedy at law, or that it would suffer irreparable harm absent an injunction; 3. The balance of harm in the event of an injunction is in favor of the Board of Regents rather than Plaintiff; 4. Plaintiff has not established that the issuance of a preliminary order restraining construction at Henderson Center, or enjoining Defendant from employing another mechanical contractor, will not injure the public interest. Accordingly, Plaintiff’s request for a preliminary injunction must be, in all respects, denied. III. Motion to Dismiss As was previously indicated, Defendant filed a Motion to Dismiss on April 2, 1981, requesting that the within action be dismissed under Fed.R. of Civ.P. 12(b)(1), (2), (3), (5), (6), and (7). While Defendant has raised several grounds for dismissal such as insufficiency of process, failure to join an indispensable party, sovereign immunity, and lack of subject matter jurisdiction, only two grounds for Defendant’s Motion need be addressed, as those matters provide more than ample justification for dismissing this action. Therefore, the Court will discuss only those issues contained in branches I and II of Defendant’s Motion to Dismiss, that is, those matters pertinent to subject matter jurisdiction and sovereign immunity. For procedural clarity, this Court will first consider the jurisdictional questions presented in Branch II of Defendant’s Motion. With these points in mind, the Court now turns to an analysis of: (1) whether diversity jurisdiction exists between the Plaintiff and Defendant, and if not, whether an alternate source of federal jurisdiction is present; and (2) whether in any event, suit against the Board of Regents is prohibited under the doctrine of sovereign immunity. A. Jurisdiction 1. Diversity of Citizenship The complaint filed in this action states that the Plaintiff, Hughes-Bechtol, Inc., is a corporation organized under the laws of Ohio, that the Defendant, the West Virginia Board of Regents, is a citizen of the State of West Virginia, that the amount in controversy exceeds ten thousand dollars, and that jurisdiction exists pursuant to 28 U.S.C. § 1332 (1970). § 1332 provides that: The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between — (1) citizens of different states. Although the parties herein are technically “residents” of different states and would thus seem to satisfy diversity requirements, Defendant has maintained that the Board is merely the arm, or alter ego, of the State of West Virginia and cannot therefore be considered a citizen for diversity purposes. Plaintiff has replied to this contention by pointing out that under West Virginia law, the Board is a corporation, and was subjected to diversity jurisdiction in Kondos v. West Virginia Board of Regents, 318 F.Supp. 394 (S.D.W.Va.1970), aff’d, 441 F.2d 1172 (4th Cir. 1971) (Kondos). The principle is well settled that a state may not be considered a citizen in order to establish diversity jurisdiction. In Postal Telegraph Cable Co. v. Alabama, 155 U.S. 482, 15 S.Ct. 192, 39 L.Ed. 231 (1894) (Postal Telegraph), the State of Alabama had initiated suit in an Alabama state court against a New York corporation in order to recover taxes owed to the State. Id. at 482, 483, 15 S.Ct. at 192, 193. The Defendant removed the case to federal court, but the Supreme Court ruled that removal was improper, since neither diversity nor federal jurisdiction was present. Id. at 487, 15 S.Ct. at 194. With respect to diversity, the Court stated that: A state is not a citizen. And, under the Judiciary Acts of the United States, it is well settled that a suit between a State and a citizen or a corporation of another State is not between citizens of different States; and that the Circuit Court of the United States has no jurisdiction of it unless it arises under the Constitution, laws or treaties of the United States. Id. (citations omitted). In State Highway Comm’n of Wyoming v. Utah Constr. Co., 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262 (1929) (Wyoming Highway Comm’n), a Utah citizen filed a breach of contract action against the Wyoming State Highway Commission in a Wyoming district court, alleging jurisdiction on the basis of diversity of citizenship. Id. at 198, 49 S.Ct. at 105. Although the State of Wyoming had not been named as a party to the action, the Court held that since the suit was in effect against the State, diversity of citizenship could not exist. Id. at 199-200, 49 S.Ct. at 105-106. The Court appeared to premise its determination that the State was the real party in interest on the following factors: (1) the highway commission was merely an arm or alter ego of the state, “with no funds or ability to respond in damages,” id. at 199, 49 S.Ct. at 106; and (2) neither the Highway Commission nor its members had assumed any direct or personal responsibility by entering into the contract in question. Id. Significantly, the Court found it unnecessary to consider the effect of the State’s grant to the Highway Commission of the power to sue or be sued, or its later withdrawal of that power. Id. The Court indicated that since the State was not considered to be a citizen for purposes of diversity, “[N]o consent by the State to submit itself to suit could affect the question of diverse citizenship.” Id. at 199—200, 49 S.Ct. at 105-106. Thus, even should a state consent to suit in federal court, that act itself cannot create diversity jurisdiction. Like the Highway Commission in the previously cited case, the Board of Regents is a statutorily-created creature. W.Va.Code § 18-26-1 (1969) specifically provides that: The purpose of the legislature in the enactment of this article is to establish a state agency to be known as the West Virginia Board of Regents which will have the general determination, control, supervision and management of the financial, business and educational policies and affairs of all State Colleges and Universities. (emphasis added). Moreover, an examination of West Virginia law reveals that the board has no funds or ability to respond in, damages but is merely a conduit through which budget requests from the state universities, and corresponding appropriations from the West Virginia legislature, flow. For example, W.Va.Code § 18-26-8 (1981) lists certain duties of the Board, which involve, inter alia: (1) directing the preparation of budget requests for state universities; (2) the submission of budget requests and analysis of requests to the legislature; (3) compilation of an annual report indicating the fiscal performance of the state system of higher education. Although some of these duties were more specifically delineated by the amendment of § 18-26-8 in 1981, the essential nature of the Board’s function has not changed from former practice. See former W.Va.Code § 18-26-8 (1969). Plaintiff has indicated, in a memorandum filed after the injunction hearing (doc. # 20), that the source of a state agency’s funds is often determinative of that agency’s entitlement to immunity from suit. Plaintiff argues therefore that since the project in question was financed by a self-liquidating bond issue secured by student tuition fees, rather than by general state revenues, the Board may not claim immunity as an arm of the State. The case cited by Plaintiff, Hope Natural Gas Co. v. West Vir. Turnpike Comm’n, 143 W.Va. 913, 105 S.E.2d 630 (1958) (Hope Natural Gas), considered whether the West Virginia Turnpike Commission was immune from suit as the alter ego of the State of West Virginia. Id. at 926, 105 S.E.2d 638. The Court analyzed the statutory provisions creating the Commission, which was authorized to collect tolls without supervision by other State agencies, id. at 919, 105 S.E.2d 634; was permitted to construct projects and to issue revenue bonds payable solely from commission revenues, id. at 918, 105 S.E.2d 633; and was required under § 15 of its enabling statute to pay compensation from Commission funds for all damages caused to private property. Id. at 920—921, 930, 105 S.E.2d 634, 639. The Court noted that previous state and federal decisions had denied immunity to the Commission, id., and further found that in any event, § 15 operated as a waiver of the Commission’s immunity. Id. at 930, 105 S.E.2d 639-640. While the Court did place emphasis on the factor of an agency’s independent financial existence, even where that agency performed a governmental function, id. at 924-925, 105 S.E.2d 636-637, the Court also stated that: In determining whether a commission or other body or entity created by the state is in truth and effect a part of the state, all of the features or characteristics must be considered and consequently each case must rest upon the provisions of the entity’s own creation. Id. at 928-929, 105 S.E.2d 639. The case upon which Plaintiff has relied, however, is not controlling upon this action, due to the subsequent decision of the same court in City of Morgantown v. Ducker, 153 W.Va. 121, 168 S.E.2d 298 (1969) (Morgantown). In Morgantown, West Virginia’s highest court considered whether to issue a writ of mandamus requiring the West Virginia Court of Claims to assume jurisdiction of an action for the collection of fire protection fees, brought against the Board of Governors of West Virginia University. Id. at 122, 168 S.E.2d 299-300. The Court determined that the Board was a state agency, and an arm of the State, and ordered that the writ be issued. Id. at 131-132, 168 S.E.2d 304. In so ruling, the Court distinguished Hope Natural Gas as follows: The rights and powers conferred and the duties imposed by the respective statutes upon the board of Governors of West Virginia University and the West Virginia Turnpike Commission differ materially and in many respects, particularly with reference to funds and moneys used and administered by the board and by the commission. The moneys accepted and received by the board of governors and on which it depends for its financial support are paid into the State treasury, whereas the moneys accepted and received by the commission are not required to be deposited in the State treasury but are administered under the supervision of the commission. Id. at 131, 168 S.E.2d 304. After the Morgantown decision, the West Virginia legislature amended the West Virginia Code to create the West Virginia Board of Regents, which was vested with the powers previously held by the board of governors of West Virginia University, W.Va.Code § 18-26-11 (1969), and those formerly held by the West Virginia Board of Education, W.Va.Code § 18-26-12 (1969). In 1972, after these amendments were adopted, the West Virginia Supreme Court, citing Morgantown, ruled that the West Virginia Board of Regents, as an arm of the state of West Virginia, had the authority to acquire land by condemnation without special legislative authority. West Virginia Board of Regents v. Fairmont, Morgantown, and Pittsburgh R.R. Co., 155 W.Va. 863, 866-867, 189 S.E.2d 40, 43 (1972) (emphasis added). These decisions indicate that, in the opinion of West Virginia’s highest state court, the Board of Regents is an arm, or alter ego, of the State of West Virginia. As a final matter, this Court notes that in Kondos, 318 F.Supp. 394 (S.D.W.Va. 1970), aff’d 441 F.2d 1172 (4th Cir. 1971), a West Virginia district court conducted a thorough survey of the applicable West Virginia Supreme Court decisions, many of which have been cited herein, and concluded that the West Virginia Board of Regents, as an arm of the State of West Virginia, was immune from suit under the doctrine of sovereign immunity. Id. at 396-397. That decision was upheld on appeal by the Fourth Circuit as “proper for the reasons stated by the District Judge.” 441 F.2d at 1172. Plaintiff has, however, attempted to distinguish the Rondos decision on several grounds, none of which are legally correct. For example, Plaintiff has contended that diversity jurisdiction was permitted in Rondos, and should therefore be found to exist herein by this Court. (Doc. # 10, p. 2). While Rondos was filed as a diversity action, 318 F.Supp. at 396, that does not mean that the requirements for diversity jurisdiction were found to be satisfied therein; the Rondos Court merely dismissed the action against the Board on the alternative ground of sovereign immunity. In this context, it must be emphasized that a resolution of either issue requires a threshold determination of whether the agency in question is but an alter ego, or arm of the State. Id.; Postal Telegraph, 155 U.S. 482, 15 S.Ct. 192, 39 L.Ed. 231 (1894); Wyoming Highway Comm’n, 278 U.S. 194, 199-200, 49 S.Ct. 104, 105-106, 73 L.Ed. 262 (1929). Thus, the Rondos case cannot be viewed as supporting a finding that diversity jurisdiction is present herein, since the same considerations involved in the dismissal therein due to sovereign immunity lead this Court to conclude that the Board of Regents, as an arm or alter ego of the State, cannot be considered a citizen for diversity purposes. The preceding discussion has illustrated that the highest courts of West Virginia, both federal and state, have spoken unequivocally and affirmatively on the issue of whether the Board of Regents is an arm of the state. Accordingly, this Court need inquire no further, beyond commenting, in response to Plaintiff’s “funding source” argument, that the material distinction noted in Morgantown, 153 W.Va. 121, 168 S.E.2d 298 (1969), of payment of funds into the State treasury, id. at 131, 168 S.E.2d 304, still exists herein, whether the Henderson Center project was financed by a bond issue secured by student tuition fees, or by general state revenues. In either event, tuition fees and other funds collected by the University are required to be deposited into the State treasury. In this context, see: W.Va. Code § 18-24-1 (1981) (authorizing the Board to fix tuition and fees for state universities); §§ 18-23-5, 18-23-7 (1969) (requiring that all money belonging to the state, and coming into the hands of the governing boards of state universities be transmitted into the state treasury, with expenditure therefrom permitted only upon submission of requisitions by the governing boards, and appropriation by the state legislature). Plaintiff has repeatedly asserted that the inquiry into the Board’s status and conduct is a “fact-specific” one (Doc. # 8, p. 9; Doc. # 20, p. 2), and that therefore, at the present stage of the proceedings, the matters under consideration by the Court are not ripe for determination. Initially, the Court notes that summary judgment is not required herein' because reference to the complaint and the previously cited case law, of which the Court can take judicial notice, obviates the need for factual determinations. Moreover, even assuming the application herein of Hope Natural Gas, 143 W.Va. 913, 105 S.E.2d 630 (1958), the inquiry required by that case is not factual, but is one into the legislative provisions which have created the agency in question. Id. at 928-929, 105 S.E.2d 639. Because an analysis of the statutes creating the Board has been conducted herein (although not strictly necessary in view of the dispositive rulings of the West Virginia courts), and has revealed that the Board is an arm of the State of West Virginia, this Court can find no further barriers to concluding that the Board of Regents may not be considered a citizen for the purpose of invoking diversity jurisdiction. Having determined then, that jurisdiction herein may not be premised upon diversity of citizenship, the Court will next consider what alternate jurisdictional grounds, if any, may be present. 2. Other Jurisdictional Grounds Although diversity jurisdiction does not exist herein, Postal Telegraph, 155 U.S. 482, 15 S.Ct. 192, 39 L.Ed. 231 (1894), would still permit this Court to assume jurisdiction over the present action if an alternate basis of jurisdiction, such as federal question jurisdiction, exists. Id. at 487, 15 S.Ct. at 194. Although the complaint herein alleges that a federal question has arisen under the Eleventh Amendment, the sole Eleventh Amendment issue which has been presented is whether the Plaintiff’s claim against the Board is barred under the doctrine of sovereign immunity. This issue is merely an anticipation of a defense and does not constitute an element of Plaintiff’s claim, which is for a declaratory judgment and for the enforcement of an arbitration decision. As such, the Eleventh Amendment issue does not invoke this Court’s federal question jurisdiction in light of the Supreme Court’s ruling in Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974), wherein the Court stated that: This Court has repeatedly held that, in order for a claim to arise “under the Constitution, laws, or treaties of the United States,” “a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the Plaintiff’s cause of action.” ... The federal questions “must be disclosed upon the face of the complaint, unaided by the answer.” Moreover, “the complaint itself will not avail as a basis of jurisdiction insofar as it goes beyond a statement of the plaintiff’s cause of action and anticipates or replies to a probable defense.” Id. at 127-128, 94 S.Ct. at 1003-1004. (citations omitted). Consequently, as Plaintiff’s assertion of an Eleventh Amendment issue does nothing more than anticipate the sovereign immunity defense which has in fact been raised by Defendant, no federal question jurisdiction has been invoked by the inclusion of that issue in Plaintiff’s complaint. In addition, although Plaintiff’s complaint requests a Declaratory Judgment, under 28 U.S.C. § 2201 (1958) and Fed.R.Civ.P. 57, of the legal relations between the parties, the Declaratory Judgment Act does not extend the jurisdiction of the federal courts, but is a procedural remedy which can only be afforded where another basis of jurisdiction already exists. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 878, 94 L.Ed. 1194 (1950). Finally while the potential application herein of the United States Arbitration Act, 9 U.S.C. §§ 1 et seq. (1970) has not been raised by Plaintiff’s Complaint, the relevance of that Act has been discussed by both parties in various memoranda submitted to the Court. Therefore, the Court will assume that Plaintiff would, if offered an opportunity, amend its Complaint to allege the application of the United States Arbitration Act. In addition, the Court assumes, for purposes of ruling on this motion, that the contract herein involved interstate commerce, as the Act only extends to such contracts. 9 U.S.C. §§ 1, 2 (1970). As was previously noted herein, in order for federal question jurisdiction to be present, the right or immunity involved must be created by the Constitution or laws of the United States, and must be an essential element of the Plaintiff’s claim. Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-128, 94 S.Ct. 1002, 1003-1004, 39 L.Ed.2d 209 (1974). Assuming arguendo that Plaintiff would allege the application of the Arbitration Act, the Complaint herein would be brought pursuant to 9 U.S.C. § 4 (1970), which provides that upon a party’s failure to arbitrate under a written arbitration agreement, the aggrieved party may petition a district court for an order directing that arbitration proceed. Although the Act would be an essential element of a plaintiff’s claim, and is clearly a federal law, the Courts, by looking to the wording of the Act itself, have consistently held that the United States Arbitration Act does not, in and of itself, operate to invoke the jurisdiction of the federal courts. Litton RCS, Inc. v. Pennsylvania Turnpike Comm’n, 376 F.Supp. 579, 585 (E.D.Pa. 1974), aff’d mem. Litton Business Systems, Inc. v. Pennsylvania Turnpike Comm’n, 511 F.2d 1394 (3rd Cir. 1975) (Litton) (citations omitted). One of the first major decisions in this area was Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2nd Cir. 1959), cert. granted 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618 (1960), petition for cert. dism’d per stipulation, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1961) (Robert Lawrence). In that case, the Court noted that while new substantive federal rights were created by the Arbitration Act, suits involving the Act did not provide an independent basis of federal jurisdiction. Id. at 408 (citations omitted). In so holding, the Court specifically pointed to §§ 3, 4, and 8 of the Act, which appeared to require a jurisdictional basis other than the Arbitration Act for actions brought in federal courts. Id. This view has been followed in other jurisdictions. Commercial Metals Co. v. Balfour, Guthrie and Co., LTD., 577 F.2d 264, 268-269 (5th Cir. 1978); Collins Radio Co. v. Ex-Cello Corp., 467 F.2d 995, 996, n.1 (8th Cir. 1972); Monte v. Southern Delaware County Authority, 321 F.2d 870 (3rd Cir. 1963); Sear v. Cadillac Automobile Co., 501 F.Supp. 1350, 1358 (D.Mass.1980); Litton, 376 F.Supp. 579, 585 (E.D.Pa.1974), aff’d mem. 511 F.2d 1394 (3rd Cir. 1975). In American Airlines, Inc. v. Louisville and Jefferson County Air Board, 269 F.2d 811 (6th Cir. 1959) (American Airlines), the Sixth Circuit rendered a decision which appears to comport with the generally accepted view of the intended role of the Arbitration Act. In American Airlines, since jurisdiction was premised upon diversity, id. at 822, the Court had no need to directly address that issue. The Court did consider, inter alia, whether Kentucky law or federal law would govern the validity and enforceability of an arbitration clause contained in leases entered into by several airlines and the Louisville and Jefferson County Air Board. Id. at 814-815. The Court discussed the Arbitration Act, and stated that: Consideration of the legislative history reveals that what the Congress intended was merely to overrule by legislation long-standing judicial precedent, which declared agreements to submit judicable controversies to arbitration contrary to public policy, on the ground that enforcement of such agreements would oust the courts of their jurisdiction. Thus, the congressional purpose was to make arbitration agreements within the scope of the Federal statute as effective [sic] enforceable as any other contract, and so permit contracting parties thereby to avoid, if they chose so to do, the “delay and expense of litigation.” Id. at 816. (citations omitted) (emphasis added). The Court also noted that the legislative history of the Act indicated that “ ‘an arbitration agreement is placed upon the same footing as other contracts.’ ” Id. (citation omitted). Although the Court did not discuss the jurisdictional aspects of the Arbitration Act, the above-quoted language indicates the Court’s awareness that the Act did nothing more than eliminate established judicial reluctance to enforce arbitration clauses in contracts. Since federal jurisdiction is unquestionably not present in an ordinary contract case, even one involving interstate commerce, unless the parties are of diverse citizenship, the Sixth Circuit appears to at least implicitly support those decisions which have held that the United States Arbitration Act contemplates a source of federal jurisdiction other than itself in actions involving the Act. As a final point pertinent to analysis, this Court notes that a thorough analysis of the case law pertinent herein has not disclosed any Sixth Circuit decisions wherein the Arbitration Act constituted the sole basis of jurisdiction. Therefore, having concluded that Local 19, as discussed in Footnote 2, supra, does not dictate the decision herein, and that later Sixth Circuit authority indicates a contrary intent to that expressed in Local 19, this Court will now briefly explain its reasons for agreeing with the weight of authority that in actions involving the United States Arbitration Act, an independent ground of federal jurisdiction is required. The starting point for inquiry must be the Act itself, which the Supreme Court has indicated should be read as a whole. Bernhardt v. Polygraphic Co. of America, Inc., 350 U.S. 198, 201, 76 S.Ct. 273, 275, 100 L.Ed. 199 (1956) (Bernhardt). 9 U.S.C. § 1 (1970) defines commerce as used in the Arbitration Act; § 2 provides that agreements to arbitrate in contracts involving commerce shall be valid and enforceable, and the remaining provisions of the Act in general provide for certain procedures to be followed where parties have agreed to arbitrate, but fail to do so, or where an award has been made, and is required to be confirmed. As noted in Robert Lawrence, 271 F.2d 402 (2nd Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618 (1960), petition for cert. dism’d per stipulation, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1961), certain sections of the Act specifically contemplate a jurisdictional basis other than the Arbitration Act itself. Id. at 408. In particular, § 4 provides that: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. (emphasis added). Likewise, § 8 gives the Court jurisdiction to deal with maritime cases, “if the basis of jurisdiction be a cause of action otherwise justiciable in admiralty.” (Emphasis added). These clear jurisdictional limitations comport with the legislative history of the Act, which is devoid of any inference that contracts containing arbitration clauses were intended to invoke federal jurisdiction where a contract without such a clause could not. Representative Graham, who authored the report accompanying the arbitration bill submitted to the House of Representatives, H.R.Rep.No.96, 68th Cong., 1st Sess. 1 (1924), emphasized during debate on the bill in the House, that the bill “does not involve any new principle of law . . . creates no new legislation, grants no new rights, except a remedy to enforce an agreement in commercial contracts and in admiralty contracts.” 65 Cong.Rec. 1931 (1924) (remarks of Rep. Graham). In addition, H.R.Rep.No.96 stated that the Act was intended to alter the common law doctrine whereby courts refused to enforce such agreements, H.R.Rep.No.96, 68th Cong., 1st Sess. 1, 2 (1924), and further stressed that “[arbitration agreements are purely matters of contract, and the effect of the bill is simply to make the contracting party live up to his agreement. ... an arbitration agreement is placed upon the same footing as other contracts, where it belongs.” Id. at 1 (emphasis added). The Committee hearings held on the proposed arbitration resolutions evidence a similar understanding with regard to the Act’s limitations. Julius Cohen, who had assisted in drafting the Arbitration Act inserted a brief explaining the proposed Act’s provisions into the Committee record. Arbitration of Interstate Commercial Disputes: Joint Hearings on S. 1005 and H.R. 646 Before the subcommittees of the Committees on the Judiciary, 68th Cong. 1st Sess. 15, 33 (1924) (Statement of Julius H. Cohen) (hereinafter Joint Hearings). The brief stated that: [A] provision for arbitration contained in any contract which involved maritime transactions ... and interstate commerce ... is made “valid, enforceable, and irrevocable,” except upon the grounds for which any contract may be revoked. The Federal Courts are given jurisdiction to enforce such agreements whenever under the Judicial Code they would normally have jurisdiction of a controversy between the parties. Id. at 34. (emphasis added). Based on the above expressions of intent, and the explicit jurisdictional limitations contained in the Act itself, Congress appears to have intended that an independent basis of jurisdiction other than the United States Arbitration Act would be required in actions involving the Act. One other matter remains for resolution, and that is the effect of 9 U.S.C. § 9 (1970), which provides that: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. Notice of the application shall be served upon the adverse party and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding. The contract herein does contain a provision stating that judgment may be entered upon an arbitration award in any court having jurisdiction. § 7.9.1. Further, as the arbitration award upon which Plaintiff relies was apparently rendered in this judicial district (Doc. # 1, ¶ 14, ¶ 15; Doc. # 20, p. 1), § 9 would appear to permit this Court to enforce that award. However, given the express statutory directives in §§ 4 and 8, which limit the district court’s jurisdiction to cases wherein the court would otherwise have subject matter jurisdiction, and the Supreme Court’s instruction that the Act be read as a whole, Bernhardt, 350 U.S. 198, 201, 76 S.Ct. 273, 275, 100 L.Ed. 199 (1956), this Court cannot read § 9 in so illogical a manner. Such an interpretation would make jurisdiction of actions brought on the basis of identical contracts contingent upon whether the parties involved sought to compel arbitration, or merely wished confirmation of an award already granted through arbitration. It is difficult to perceive the basis for such a jurisdictional distinction, because in both situations, the ultimate result desired would be the same. For a similar decision, refusing to construe the Arbitration Act in a manner which would result in “an odd patchwork of individual statutes, bereft of any coherent plan,” see: Bangor and Aroostook R.R. Co. v. Maine Central R.R. Co., 359 F.Supp. 261, 263 (D.C. 1973). Cf. Ballantine Books, Inc. v. Capital Distributing Co., 302 F.2d 17, 19 (2nd Cir. 1962) (concluding without discussion, that on the basis of the Robert Lawrence decision, an independent source of federal jurisdiction was required in a proceeding under §9). Again, the legislative history of the Arbitration Act sheds light upon the intended meaning of the Act. During the subcommittee hearings held on the proposed Senate and House Arbitration bills, the following exchange took place: Representative HICKEY. Without a written agreement, Mr. Cohen, where would an arbitration be held? MR. COHEN. It would be held in accordance with the direction of the court; by direction of the court to which you apply. Representative HICKEY. And the application would be made to the court where the party asking for the arbitration resides? MR. COHEN. You would have to get jurisdiction just as you do now in a Federal court; by personal service. Representative HICKEY. Where the defendant lives? MR. COHEN. Where the defendant lives. That would mean practically that you have to go to the jurisdiction where the defendant is, or wait until he comes into your jurisdiction so that process may be served upon him. The process is exactly the same as in civil procedure in the Federal courts. Joint Hearings, 68th Cong., 1st Sess. 18 (1924) (statement of Julius H. Cohen) (emphasis added). In response to the above colloquy, the Committee Chairman then said: Here is the provision relating to that. Representative HICKEY. The fourth section? The CHAIRMAN. This is on page 7, section 10, beginning with line 8 [reading]: If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. Notice of the application shall be served upon the adverse party. Then this [continuing reading]: If the adverse party is a resident of the district within which the award was made, such service shall be made upon the adverse party or his attorney as prescribed by law for service of notice of motion in an action in the same court. That makes it very clear. Id. at 18-19. This explanation contained in the relevant legislative history indicates that § 9 was only intended as a guide to where arbitration should take place when no agreement had been made by the parties, and was not intended as an independent grant of jurisdiction in federal courts. Based on the foregoing reasoning, the Court concludes that in actions brought to confirm arbitral awards under § 9 of the Arbitration Act, the same prerequisite, of an independent ground of federal jurisdiction, applies as has been required in actions .involving other sections of the Act. Having found no diversity jurisdiction between the parties herein, and no basis for federal jurisdiction other than the United States Arbitration Act, the Court concludes that it does not have subject matter jurisdiction over the present controversy. Therefore, Defendant’s Motion to Dismiss must be granted. Although this ruling is dispositive with regard to the continuance of the present action, the Court has determined to address as well the sovereign immunity arguments raised by the Defendant. C. Sovereign Immunity The Defendant has maintained that the within action must be dismissed because the Board, as an arm of the State of West Virginia, is immune from suit under the doctrine of sovereign immunity. Defendant has not specified under which portion of Fed.R.Civ.P. 12(b), this ground of dismissal has been raised, but there have been indications by the Supreme Court that such a motion relates to the subject matter jurisdiction of the Court. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (Rhodes). Therefore, the Court will, on the basis of that ruling, consider Defendant’s motion as having been brought pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction. The Court also notes that the standards applicable to Rule 12(b)(1) and (b)(6) motions are the same. Id. at 236, 94 S.Ct. at 1686. Thus, the Court must construe the allegations of the complaint favorably to the pleader, and must in addition follow the accepted rule that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id., citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Before engaging in the analysis required for determining whether the present action against the Board may be maintained, a few comments are in order. First, although the Supreme Court in Rhodes disapproved the district court’s dismissal of the case, as a premature decision “precluding any opportunity for the plaintiff by subsequent proof to establish a claim, 416 U.S. at 236, 94 S.Ct. at 1686, that ruling does not mandate a similar decision herein. Unlike the present case, Rhodes involved claims against individual state officers for deprivation of federal rights. Those matters were found by the Supreme Court to be judicially cognizable and to not be barred by the application of the Eleventh Amendment. Id. at 237-238, 94 S.Ct. at 1686-1687. With respect to the alternate ground for dismissal, which had been premised upon executive immunity, id. at 238, 94 S.Ct. at 1687, the Court indicated that since the immunity to be accorded the executive officers was qualified rather than absolute, id. at 242, 243, 247, 94 S.Ct. at 1689, 1690, 1691-92, and required a determination with regard to whether the state officials acted in good faith, id. at 250, 94 S.Ct. at 1693, a further development of the factual background of the action was required. Id. Implicit in the Court’s statements, however, is that where the immunity involved is absolute, or is not premised upon a factual question such as the existence of good faith, a decision at the pleading stage is appropriate. Therefore, since the issue before this Court involves an immunity which if present, will be absolute, and further, necessitates resolution of no factual matters, the Court concludes that under Rhodes, it may properly proceed to determine whether this action is barred under the doctrine of sovereign immunity. The Eleventh Amendment provides that: 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. The Eleventh Amendment has long been construed as prohibiting suit against a state by its own citizens or citizens of another state. Hans v. Louisiana, 134 U.S. 1, 10, 14-15, 10 S.Ct. 504, 506-507, 33 L.Ed. 842 (1889). Therefore, if the present action had been initiated directly against the State of West Virginia, it would unquestionably be barred. The Defendant herein, however, is the Board of Regents rather than the State of West Virginia. Under Wyoming Highway Comm’n, 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262 (1929), a state agency may enjoy the State’s immunity from suit, if that agency is found to be an arm, or alter ego, of the state. Id. at 199, 49 S.Ct. at 105-106. By virtue of this theory, then, the Board has claimed that it is merely an arm of the State of West Virginia, and is not subject to sult, except in the West Virginia Court of Claims. In response to this argument, Plaintiff has contended that the Board is not an arm or alter ego of the State of West Virginia; that the Board is not performing a government function; and that, even assuming that the Board would be immune from suit, the Board has waived its immunity by engaging in interstate commerce. In Morgantown, 153 W.Va. 121, 168 S.E.2d 298 (1969), the West Virginia Supreme Court indicated that in order for sovereign immunity to apply, the agency in question must be acting as an arm of the state, and must be performing a governmental function. Id. at 125—127, 168 S.E.2d 301-302. This Court has already determined that the Board of Regents is an arm or alter ego of the State of West Virginia, and sees no reason to repeat that lengthy discussion. Moreover, in Morgantown, the Court specifically found administration of the affairs of a state educational association to be a governmental function. Id. at 126-127, 168 S.E.2d 302. Further, as previously mentioned, the federal courts which are concerned with interpreting and applying West Virginia law, have concluded that suit against the West Virginia Board of Regents is barred under the doctrine of sovereign immunity. Kondos, 318 F.Supp. 394, 396-397 (E.D.W.Va.1970), aff’d 441 F.2d 1172 (4th Cir. 1971). Given the unequivocal rulings by the State and federal courts of West Virginia, which have been previously cited and thoroughly examined by this Court, the present action against the Board must, absent other circumstances, be dismissed. Plaintiff, however, has contended that federal law rather than state law, must be applied, and that under Parden v. Terminal Railway of the Alabama State Docks Dept., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964) (Parden), the Board has waived its immunity, or consented to suit, by engaging in interstate commerce. The Board has replied by distinguishing Parden from the present situation, and by noting that Parden has been significantly limited by subsequent Supreme Court decisions. In addition to these arguments, other points have been raised in the memoranda filed by the parties, and will be addressed to the extent they may be pertinent to the resolution of the matters under discussion. In Parden, an employee of the Alabama Terminal Railway brought suit in federal court against the Railway pursuant to the Federal Employer’s Liability Act, requesting damages for personal injuries sustained while employed by the Railway. Id. The State of Alabama moved to dismiss the action because the Railway was a state agency, and the State had not waived its immunity from suit. Id. at 185, 84 S.Ct. at 1209. The Supreme Court found that in enacting the F.E.L.A., Congress had intended to make the statute applicable to every common carrier by railroad in interstate commerce, including state-owned railroads. Id. at 187-188, 84 S.Ct. at 1210-1211. Specifically, the Court pointed to the “broad and all-embracing” language of the Act, id. at 189, 84 S.Ct. at 1211, and the fact that if states were exempted from suit under the F.E.L.A., the injured employees of State-owned railroads would have no effective remedy. Id. at 190, 84 S.Ct. at 1211-1212. The Court further found that by authorizing Congress to regulate commerce, the States had empowered Congress to create a right of action against interstate railroads, id. at 192, 84 S.Ct. at 1213, and stated that: By enacting the F.E.L.A. in the exercise of this power, Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have consented to suit. Id. Four members of the Court dissented in. Parden, id. at 198, 84 S.Ct. at 1216, on the basis t