Argued: January 26, 2017
from the United States District Court for the District of New
Jersey (Nos. 3:14-cv-04429 & 3:14-cv-4104) District
Judge: Hon. Mary L. Cooper
M. Bloor, Esq. [ARGUED] F. Michael Daily, Jr., Esq. Counsel
Jennifer J. McGruther, Esq. [ARGUED] Stephen R. Tucker, Esq.
Benjamin H. Zieman, Esq. Counsel for Appellees
Before: CHAGARES, RESTREPO, and ROTH, Circuit Judges
CHAGARES, Circuit Judge.
Karns and Robert Parker filed civil rights actions against
the New Jersey Transit Corporation ("NJ Transit")
and N.J. Transit Officers Kathleen Shanahan and Sandra McKeon
Crowe in their official and individual capacities, alleging
violations of the First, Fourth, and Fourteenth Amendments.
Officers Shanahan and Crowe arrested Karns and Parker for
defiant trespass and obstruction of justice after Karns and
Parker refused to vacate the N.J. Transit train platform on
which they were preaching without the required permit. The
District Court granted the defendants' motion for summary
judgment on Eleventh Amendment immunity and qualified
immunity grounds. This consolidated appeal followed. For the
reasons that follow, we will affirm the District Court's
and Parker are evangelical Christian ministers who regularly
preach the Christian gospel. At around 6:00 a.m. on June 26,
2012, Karns and Parker were loudly preaching on the railway
platform at the Princeton Junction station, which is owned by
N.J. Transit. They also carried signs with Bible verses on
them. Parker had previously been informed that a permit was
required to preach on N.J. Transit property pursuant to N.J.
Admin. Code § 16:83-1.1, which provides that persons
wishing to engage in non-commercial speech on N.J. Transit
property are required to obtain a non-commercial certificate
of registration. Appendix ("App.") 118. Karns was
apparently unaware of this requirement. App. 244-45. Neither
Karns nor Parker applied for or obtained such a permit during
the period leading up to the incident giving rise to this
Shanahan and Crowe are law enforcement officers who are N.J.
Transit employees. N.J. Transit maintains a policy that its
officers be familiar with and uniformly enforce the
permitting regulations, and all N.J. Transit officers were
instructed on this policy. App. 136; App. 470-71; App. 858.
This policy was communicated in an email dated May 6, 2010
from N.J. Transit Deputy Chief Joseph Kelly. App. 136. The
email instructed that in the event a N.J. Transit officer
observes an individual engaging in non-commercial speech
without a permit, the officer should explain the permitting
rules and provide information about the permit application
process. App. 136. The email directed that the officer shall
take "appropriate enforcement action" if the
individual has been made aware of the application process and
permit requirement and continues to engage in non-commercial
expression. App. 136.
on patrol on the morning of June 26, 2012, Officers Shanahan
and Crowe received a radio dispatch informing them that
individuals were preaching loudly on the Princeton Junction
station platform. This was not the first incident of loud
preaching on N.J. Transit property. Rather, there had been
several incidents involving "[c]ommuters complaining of
loud preaching at different stations" throughout the
N.J. Transit system. App. 470.
response to the dispatch call, Officers Shanahan and Crowe
approached the Princeton Junction station. The officers were
able to hear shouting emanating from the platform from as far
as the parking lot beside the station. Once on the train
platform, Officers Shanahan and Crowe approached Karns and
Parker, noticing that Parker's behavior "was not the
normal behavior of a commuter" and that he "was
shaking uncontrollably." App. 208. Officer Crowe
indicated that she "wasn't paying attention to what
[the plaintiffs] were saying" as she approached them.
App. 197. Karns and Parker ceased preaching as the officers
approached them. Parker took out his cell phone to record the
encounter, but Officer Shanahan requested that he put it
away. Parker eventually complied. The officers then asked
Karns and Parker whether they had a permit to speak at the
station. They responded that they did not. Officer Shanahan
informed them that a permit was required, but Parker
responded that he had been preaching at the station for years
without any form of permit.
officers then asked Parker to provide identification. Parker
produced an expired college identification card. Karns
refused to provide any form of identification. Believing that
Karns and Parker were interfering with their investigation by
failing to produce sufficient identification, the officers
then arrested Karns and Parker and charged them each with one
count of obstruction under N.J. Stat. Ann. § 2C:29-1(a)
and one count of obstruction under N.J. Stat. Ann. §
2C:29-1(b). Karns and Parker were also each charged with one
count of defiant trespass in violation of N.J. Stat. Ann.
§ 2C:18-3(b) on the basis of the officers' belief
that engaging in non-commercial expression on N.J. Transit
property without a permit constitutes trespassing.
was ultimately acquitted of all charges. The obstruction of
justice charges against Parker were dismissed, but he was
convicted of defiant trespass. That charge was ultimately
reversed by the New Jersey Superior Court.
26, 2014, Karns and Parker jointly filed a complaint against
N.J. Transit and Officers Shanahan and Crowe in their
official and individual capacities. The District Court
ordered Karns to file an amended complaint and Parker to file
a separate complaint. On July 14, 2014, Karns and Parker
filed individual complaints, each alleging violations of the
First, Fourth, and Fourteenth Amendments. The actions were
consolidated for discovery purposes, and N.J. Transit and the
officers moved for summary judgment. On March 31, 2016, the
District Court granted summary judgment in favor of all of
the defendants and against Karns and Parker.
and Parker filed this timely appeal.
District Court had jurisdiction pursuant to 28 U.S.C. §
1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We exercise plenary review over a grant of summary judgment
and apply the same standard as the District Court.
Goldenstein v. Repossessors Inc., 815 F.3d 142, 146
(3d Cir. 2016); Beers-Capitol v. Whetzel, 256 F.3d
120, 130 n.6 (3d Cir. 2001). We review de novo the
legal grounds underpinning a claim of qualified immunity or
sovereign immunity. Halsey v. Pfeiffer, 750 F.3d
273, 287 (3d Cir. 2014); Blanciak v. Allegheny Ludlum
Corp., 77 F.3d 690, 694 (3d Cir. 1996).
and Parker first argue that the District Court erred by
concluding that N.J. Transit was an "arm of the
state" entitled to claim immunity from suit in federal
court under the Eleventh Amendment. They relatedly argue that
N.J. Transit is liable for damages under 42 U.S.C. §
1983 for maintaining unconstitutional policies relating to
the permitting scheme. We have considered Karns's and
Parker's arguments and, for the following reasons, we
will affirm the District Court's judgment.
Eleventh Amendment to the United States Constitution
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." U.S. Const. amend. XI. The Supreme Court
in Hans v. Louisiana, 134 U.S. 1 (1890),
"extended the Eleventh Amendment's reach to suits by
in-state plaintiffs, thereby barring all private suits
against non-consenting States in federal court."
Lombardo v. Pa., Dep't of Pub. Welfare, 540 F.3d
190, 194 (3d Cir. 2008) (emphasis omitted). Immunity from
suit in federal court under the Eleventh Amendment is
designed to preserve the delicate and "proper balance
between the supremacy of federal law and the separate
sovereignty of the States." Alden v. Maine, 527
U.S. 706, 757 (1999). The Eleventh Amendment serves two
fundamental imperatives: safeguarding the dignity of the
states and ensuring their financial solvency. See Hess v.
Port Auth. Trans-Hudson Corp., 513 U.S. 30, 52 (1994)
(identifying "States' solvency and dignity" as
the concerns underpinning the Eleventh Amendment).
"well established that even though a State is not named
a party to the action, the suit may nonetheless be barred by
the Eleventh Amendment." Edelman v. Jordan, 415
U.S. 651, 663 (1974). The Eleventh Amendment immunizes from suit
in federal court both non-consenting states and those
entities that are so intertwined with them as to render them
"arms of the state." Bowers v. Nat'l
Collegiate Athletic Ass'n, 475 F.3d 524, 545 (3d
Cir. 2007), amended on reh'g (Mar. 8, 2007).
Eleventh Amendment immunity does not, however, extend to
counties and municipalities despite their status as political
subdivisions of a state. See Bolden v. Se. Pa. Transp.
Auth., 953 F.2d 807, 813 (3d Cir. 1991) (en banc). In
determining whether an entity is entitled to immunity, we
must consider "the provisions of state law that define
the agency's character, " but the ultimate question
of "whether a particular state agency [is] . . . an arm
of the State, and therefore 'one of the United
States' within the meaning of the Eleventh Amendment, is
a question of federal law." Regents of the Univ. of
Cal. v. Doe, 519 U.S. 425, 430 n.5 (1997).
apply a fact-intensive three-part test to determine whether
an entity is an "arm of the state" for Eleventh
Amendment purposes. Fitchik v. N.J. Transit Rail
Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989) (en
banc) (citing Urbano v. Bd. of Managers, 415 F.2d
247, 250-51 (3d Cir. 1969)). We examine the following
factors: "(1) whether the payment of the judgment would
come from the state; (2) what status the entity has under
state law; and (3) what degree of autonomy the entity
has." Bowers, 475 F.3d at 546. Subsequent to
"identifying the direction in which each factor points,
we balance them to determine whether an entity amounts to an
arm of the State." Maliandi v. Montclair State
Univ., 845 F.3d 77, 84 (3d Cir. 2016).
historically considered the first factor - the state-treasury
factor - as "most important." Fitchik, 873
F.2d at 659; see also Bolden, 953 F.2d at 818.
Hence, in Fitchik itself, we concluded that because
the funding factor disfavored immunity and because the
remaining two factors - status under state law and the degree
of autonomy - only "slightly" favored a finding of
immunity, N.J. Transit was not entitled to claim Eleventh
Amendment immunity. 873 F.2d at 664. Since our decision in
Fitchik, however, we have "recalibrated the
factors, " Maliandi, 845 F.3d at 84, in light
of the Supreme Court's intervening precedent in
Regents of the University of California v. Doe. In
Regents of the University of California, the Supreme
Court recognized that "it is the entity's potential
legal liability, rather than its ability or inability to
require a third party to reimburse it, or to discharge the
liability in the first instance, that is relevant" to
the Eleventh Amendment inquiry. 519 U.S. at 431. The Court
emphasized that the inquiry into immunity from suit in
federal court is not merely "a formalistic question of
ultimate financial liability." Id.; see
also Cooper v. Se. Pa. Transp. Auth., 548 F.3d 296, 302
(3d Cir. 2008).
Supreme Court's holding in Regents of the University
of California has led us to depart from the analytical
framework articulated in Fitchik, and we thus
"no longer ascribe primacy to the [state-treasury]
factor." Benn v. First Judicial Dist. of Pa.,
426 F.3d 233, 239 (3d Cir. 2005). Under this evolved
approach, none of the three Fitchik factors is
"predominant." Cooper, 548 F.3d at 301.
Rather, each of the factors is considered "co-equal,
" Benn, 426 F.3d at 240, and "on the same
terms, " Cooper, 548 F.3d at 302. We emphasize
that courts should not simply engage in a formulaic or
mechanical counting up of the factors, nor do we do so here.
Rather, each case must be considered on its own terms, with
courts determining and then weighing the qualitative strength
of each individual factor in the unique factual circumstances
at issue. See Maliandi, 845 F.3d at 84 (explaining
that each cases requires a "fresh analysis" and
"'individualized determinations' for each entity
claiming Eleventh Amendment immunity" (quoting
Bowers v. Nat'1 Collegiate Athletic Ass'n,
475 F.3d 524, 546 (3d Cir. 2007))). While the
Fitchik Court's analysis of each individual
factor "remains instructive, " Cooper, 548
F.3d at 302, we consider and weigh each factor on the record
before us today.
this fundamental shift in our approach to Eleventh Amendment
immunity analysis, Karns and Parker argue that the balancing
analysis we conducted in Fitchik must control the
outcome of this case. Karns and Parker specifically maintain
that N.J. Transit is collaterally estopped from raising an
Eleventh Amendment immunity defense because in
Fitchik we determined that the three factors, on
balance, weighed against affording Eleventh Amendment
immunity to N.J. Transit. See Karns and Parker Br.
14-15. This argument overlooks the significant evolution of
Supreme Court jurisprudence and our own conforming law in
this area since Fitchik. Contrary to Karns's and
Parker's suggestion, collateral estoppel is not
appropriate when the "controlling facts or legal
principles have changed significantly since the [prior]
judgment." Montana v. United States, 440 U.S.
147, 155 (1979); see also Duvall v. Att'y. Gen. of
United States, 436 F.3d 382, 391 (3d Cir. 2006)
("[Collateral estoppel] . . . will not preclude
relitigation of the issue when there is . . . a material
intervening change in governing law."). Collateral
estoppel, then, does not preclude us from reconsidering our
balancing of the Fitchik factors in light of
intervening Supreme Court precedent.
Internal Operating Procedures also do not prevent us from
revisiting the balancing analysis conducted in
Fitchik. Pursuant to those procedures, "the
holding of a panel in a precedential opinion is binding on
subsequent panels." 3d Cir. I.O.P. 9.1. We are therefore
generally obligated to follow our precedent absent en banc
reconsideration. United States v. Tann, 577 F.3d
533, 541 (3d Cir. 2009). Nonetheless, a panel may revisit a
prior holding of the Court "which conflicts with
intervening Supreme Court precedent." In re
Krebs, 527 F.3d 82, 84 (3d Cir. 2008); see also
Council of Alt. Political Parties v. Hooks, 179 F.3d 64,
69 (3d Cir. 1999) (observing that reconsideration of an issue
decided by another panel of our Court in a prior appeal is
appropriate when there has been an intervening change in
law). Indeed, we are "compelled to apply the law
announced by the Supreme Court as we find it on the date of
our decision." Tann, 577 F.3d at 541 (quoting
United States v. City of Philadelphia, 644 F.2d 187,
192 n.3 (3d Cir. 1980)); see also Mennen Co. v. Atl. Mut.
Ins. Co., 147 F.3d 287, 294 n.9 (3d Cir. 1998)
(observing that our Court's Internal Operating Procedures
must "give way when the prior panel's holding is in
conflict with Supreme Court precedent"). Our respect for
the uniformity of decisions within this Court therefore must
succumb when a prior holding of our Court - even an en banc
decision - conflicts with a subsequent Supreme Court holding.
See United States v. Singletary, 268 F.3d 196, 202
(3d Cir. 2001).
to our holding in Fitchik here must yield in light
of the Supreme Court's Regents of the University of
California decision, which unquestionably presents an
intervening shift in the applicable Eleventh Amendment
immunity analytical framework. Further, a reflexive
application of our original Fitchik framework here
would be at odds with the analytical approach employed by our
esteemed colleagues in many other Eleventh Amendment cases,
thus generating a potentially fractured body of
jurisprudence.Compare Cooper, 548 F.3d at 301,
Febres v. Camden Bd. of Educ., 445 F.3d 227, 235-36
(3d Cir. 2006), and Benn, 426 F.3d at 239, with
Fitchik, 873 F.2d at 664. In these circumstances, we are
not bound to follow our prior balancing of factors in
Fitchik. We must instead examine each of the three
Fitchik factors, balancing them equally, to
determine whether N.J. Transit's relationship with the
state entitles it to immunity under the "holistic
analysis" compelled by the Regents of the University
of California decision, see Benn, 426 F.3d at
241, and to which we have adhered in our subsequent case law.
to the analysis of whether an entity is an arm of the state,
we first ask "[w]hether the money that would pay the
judgment would come from the state, " which includes
considering "whether payment will come from the
state's treasury, whether the agency has the money to
satisfy the judgment, and whether the sovereign has immunized
itself from responsibility for the agency's debts."
Fitchik, 873 F.2d at 659. Our Court has observed
that the "crux of the state-treasury criterion" is
not whether the state will be the principal source of any
funding, but rather whether the state is "legally
responsible for the payment of [the] judgment."
Febres, 445 F.3d at 233.
Fitchik Court concluded that N.J. Transit is
financially independent from the state. See Fitchik,
873 F.2d at 660-62 (reviewing relevant financial details and
observing that N.J. Transit's "money does
not come predominantly from the state"). The
parties have not offered updated financial information to
undermine this assessment. N.J. Transit instead argues that
because it relies on state funds to meet its operating
deficit, an adverse judgment would have the practical effect
of impacting the state treasury. N.J. Transit Br. 27-32. N.J.
Transit, in support of this position, relies upon two cases
in which Courts of Appeals have deemed transit operations
arms of the state: Alaska Cargo Transportation, Inc. v.
Alaska R.R. Corp., 5 F.3d 378 (9th Cir. 1993) and
Morris v. Washington Metropolitan Area Transit
Authority, 781 F.2d 218 (D.C. Cir. 1986). In Alaska
Cargo Transportation, Inc., the Court of Appeals for the
Ninth Circuit afforded Eleventh Amendment immunity to the
Alaska Railroad Corporation. Although the state disclaimed
liability for it by statute, Alaska still provided it a
"financial safety net of broad dimension, " largely
because federal law effectively required Alaska to keep the
railroad operational. Alaska Cargo Transp., Inc., 5
F.3d at 381 ("Significantly, federal law further
provides that, until 1994, the State of Alaska must continue
to provide rail carrier services across its system.").
Similarly, in Morris, Eleventh Amendment immunity
was afforded to the Washington Metropolitan Area Transit
Authority ("WMATA"), an interstate transit system
created by a congressional compact whose signatories were
Maryland, Virginia, and the District of Columbia. 781 F.2d at
219. The Court of Appeals for the District of Columbia
Circuit determined that the practical result of any judgment
against WMATA would be against the treasuries of Maryland and
Virginia. Id. at 225-26. As in Alaska Cargo
Transportation, Inc., the Morris Court's
conclusion was premised on the fact that congressional
funding for the system was contingent on the states'
agreement to meet WMATA's operating deficits.
Id. N.J. Transit maintains that both cases are
applicable here, yielding the conclusion that the
state-treasury factor likewise favors immunity for N.J.
not agree, and N.J. Transit's reliance on both cases is
misplaced. We have consistently observed that both Alaska
Cargo Transportation and Morris are
inapplicable when Congress has not "put a proverbial
'gun to the head' of the State to sustain the entity
even without a legal obligation."
Maliandi, 845 F.3d at 87 n.7; see also
Cooper, 548 F.3d at 305 (discussing but rejecting
reliance on both cases because of the lack of congressional
coercion); Febres, 445 F.3d at 235 n.9
(distinguishing the cases to the "limited
circumstances" under which federal law essentially
requires the state to keep afloat the agency claiming
immunity). That is plainly not the case here, where the state
is under no legal or other obligation to pay N.J.
Transit's debts or to reimburse N.J. Transit for any
judgments that it pays. See N.J. Stat. Ann. §
27:25-17. Indeed, this case is much more similar to the
Cooper case, where the state treasury factor did not
favor immunity because the transportation agency claiming
immunity could "satisfy the deficit itself by raising
fares, reducing service, and/or laying off employees."
Cooper, 548 F.3d at 305. Moreover, New Jersey may
choose to appropriate funds to help N.J. Transit cover its
operating deficit, but it is not obligated to do so. To this
end, N.J. Transit concedes that it is not entirely reliant on
state funds but rather that it receives a "combination
of federal, state, and local funds" to balance its
budget. N.J. Transit Br. 31. We therefore reject N.J.
Transit's suggestion that the "practical
effect" of a judgment would be equivalent to a
"legal obligation" sufficient to satisfy the
funding factor. See Maliandi, 845 F.3d at 87 n.7.
The state-treasury factor, as a result, does not favor a
finding of immunity in this case.
turn next to the second Fitchik factor, which
requires consideration of the status of the agency under
state law. Considerations include "how state law treats
the agency generally, whether the entity is separately
incorporated, whether the agency can sue or be sued in its
own right, and whether it is immune from state
taxation." Fitchik, 873 F.2d at 659. We have
also considered "the entity's authority to exercise
the power of eminent domain, application of state
administrative procedure and civil service laws to the
entity, the entity's ability to enter contracts and make
purchases on its own behalf, and whether the entity owns its
own real estate." Maliandi, 845 F.3d at 91. The
Fitchik Court concluded that "[b]ecause [NJ
Transit's] status under New Jersey law is uncertain, the
analysis of this factor does not significantly help in
determining whether [NJ Transit] is entitled to immunity from
suit in federal court." Fitchik, 873 F.2d at
662. In the twenty-eight years since our Court's decision
in Fitchik, however, it has become much more
apparent that New Jersey law regards N.J. Transit as an arm
of the state. The state law factor therefore weighs strongly
in favor of immunity.
is considerable indication that New Jersey law considers N.J.
Transit an arm of the state. First, consistent with the New
Jersey Constitution, N.J. Transit is "allocated within
the Department of Transportation, " N.J. Stat. Ann.
§ 27:25-4, which is a principal department within the
Executive Branch of the State of New Jersey, N.J. Stat. Ann.
§ 27:1A-2. N.J. Transit, moreover, is statutorily
"constituted as an instrumentality of the State
exercising public and essential governmental functions."
N.J. Stat. Ann. § 27:25-4. Although N.J. Transit can sue
and be sued, N.J. Stat. Ann. § 27:25-5, this is not
dispositive. Cf. Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 676
(1999) (observing that a state does not "consent to suit
in federal court merely by stating its intention to 'sue
and be sued'"). N.J. Transit is also considered
state property for tax purposes and is exempt from state
taxation. N.J. Stat. Ann. § 27:25-16. These factors
favor immunity. See, e.g., Christy v. Pa. Tpk.
Comm'n, 54 F.3d 1140, 1148 (3d Cir. 1995) (noting
that exemption from state property taxation is an attribute
associated with sovereignty); Skehan v. State Sys. of
Higher Educ., 815 F.2d 244, 249 (3d Cir. 1987)
(concluding that immunity from local taxation of real
property favors immunity). N.J. Transit also has the power of
eminent domain, N.J. Stat. § 27:25-13(a), (c)(1), which
likewise favors immunity. See, e.g.,
Christy, 54 F.3d at 1148 (recognizing that the power
of eminent domain is associated with sovereignty). Finally,
N.J. Transit officers are vested with "general
authority, without limitation, to exercise police powers and
duties . . . in all criminal and traffic matters at all times
throughout the State." N.J. Stat. Ann. §
27:25-15.1(a). This fact, too, supports the conclusion that
New Jersey law regards N.J. Transit as exercising the
official police powers of the state.
case law also regards N.J. Transit as an agency of the state.
For instance, in Muhammad v. New Jersey Transit, 821
A.2d 1148 (N.J. 2003), the New Jersey Supreme Court surveyed
its relevant case law and, to "remove any doubt, "
declared that N.J. Transit "is a public entity within
the ambit of the [New Jersey Tort Claims Act]."
Id. at 1153; see also Cavuoti v. N.J. Transit
Corp., 735 A.2d 548, 563 (N.J. 1999) (holding that the
New Jersey discrimination statute "allows the award of
punitive damages against public entities" and affirming
an award of punitive damages against N.J. Transit); Weiss
v. N.J. Transit, 608 A.2d 254, 258 (N.J. 1992) (holding
that N.J. Transit is entitled to legislative immunity as a
public entity); Maison v. N.J. Transit Corp., No.
A-1761-14T2, 2015 WL 4067411, at *3 ( N.J.Super.Ct.App.Div.
(July 6, 2015) (unpublished) ("NJ Transit is a public
entity."); Lopez v. N.J. Transit, 684 A.2d 986,
988 ( N.J.Super.Ct.App.Div. 1996) ("Plaintiffs'
claim [is] against New Jersey Transit, a public
entity"). Several other New Jersey cases have also
determined that N.J. Transit is a surrogate of the state or
is a state agency responsible for performing essential
governmental functions. See, e.g., Davis v. N.J.
Transit, No. A-4901-10T1, 2012 WL 3192716, at *3 (
N.J.Super.Ct.App.Div. Aug. 8, 2012) (unpublished) ("[NJ
Transit] is a 'surrogate of the State.'"
(quoting Geod Corp. v. N.J. Transit Corp., 678
F.Supp.2d 276, 288 (D.N.J. 2009))); N.J. Transit PBA
Local 304 v. N.J. Transit Corp., 675 A.2d 1180, 1181 (
N.J.Super.Ct.App.Div. 1996) ("[NJ Transit] is a state
agency responsible for operating and improving public
transportation in New Jersey."), aff'd, 701
A.2d 1243 (N.J. 1997); see also N.J. Transit Corp. v.
Mori, 89 A.3d 237, 239-40 ( N.J.Super.Ct.App.Div. 2014)
(holding, in a condemnation action instituted by N.J.
Transit, that "[b]ecause N.J. Transit was a public
entity, it was entitled to a discounted 2.3 to 1 ratio of
filled wetlands to mitigation credits. A private developer,
such as Mori, would have paid a high
ratio."). In light of this case law, it is apparent
that the second Fitchik factor strongly favors a
finding of immunity - a determination that has become that
much more apparent since the original Fitchik
we must consider the autonomy of the entity. The
Fitchik Court concluded that state's fairly
"substantial control" over N.J. Transit counseled
in favor of according it Eleventh Amendment immunity.
Fitchik, 873 F.2d at 664. Our consideration of this
factor is largely in accord. N.J. Transit is subject to
several operational constraints by the New Jersey Legislature
and the Governor, who is also responsible for appointing the
entire N.J. Transit governing board, which is composed of
several members of the Executive Branch. N.J. Stat. Ann.
§ 27:25-4(b); see, e.g., Bowers, 475
F.3d at 548-49 (holding that a governor's appointment of
a state university's entire governing board demonstrated
a lack of autonomy favoring immunity); see also
Irizarry-Mora v. Univ. of P.R., 647 F.3d 9, 15 (1st Cir.
2011) ("In further support of the proposition that the
University is an arm of the Commonwealth, we note that ten of
the thirteen members of its governing board are appointed by
the governor."); Md. Stadium Auth. v. Ellerbe Becket
Inc., 407 F.3d 255, 257 (4th Cir. 2005). The
Commissioner of Transportation, an Executive Branch official
who is the chairman of the N.J. Transit governing board, has
the power and duty to review N.J. Transit's expenditures
and budget. N.J. Stat. Ann. § 27:25-20(a). Moreover,
N.J. Transit must annually report on its condition and its
budget to the Governor and the Legislature and is subject to
audit at any time. N.J. Stat. Ann. § 27:25-20. The
Governor can veto any action taken by N.J. Transit's
governing board. N.J. Stat. Ann. § 27:25-4(f); see
also Fitchik, 873 F.2d at 664 ("[T]he degree of
control [of N.J. Transit] by the governor is fairly
substantial."). Certain of its acquisitions are also
subject to legislative veto. See N.J. Stat. Ann.
these facts suggest that N.J. Transit is an instrumentality
of the state, exercising limited autonomy apart from it.
See, e.g., Bowers, 475 F.3d at 548-49. We
conclude that the autonomy factor weighs in favor of
* * * *
giving equal consideration to all three factors, we weigh and
balance them. We no longer adhere to the balancing analysis
conducted in Fitchik in light of intervening changes
in Eleventh Amendment immunity analysis articulated by the
Supreme Court. Applying the revised analysis, we determine
that while the state-treasury factor counsels against
awarding Eleventh Amendment immunity, the state law and
autonomy factors both tilt in favor of immunity. Indeed, in
the intervening years since our decision in Fitchik,
it has become apparent that the state law factor weighs
heavily in favor of a finding of immunity. Weighing and
balancing the qualitative strength of each factor in the
context of the circumstances presented, we hold that N.J.
Transit is an arm of the state. We therefore conclude that
N.J. Transit is entitled to claim the protections of Eleventh
Amendment immunity, which in turn functions as an absolute
bar to any claims in this case against N.J. Transit and the
officers in their official capacities.
and Parker argue that N.J. Transit is liable for damages
under 42 U.S.C. § 1983 for purportedly maintaining an
unconstitutional custom of discriminatory enforcement of the
permitting requirement. Karns and Parker Br. 24. They also
claim that N.J. Transit maintained a policy of promoting
illegal arrests unsupported by probable cause. Karns and
Parker Br. 33-35. Neither claim is viable.
plaintiff seeking relief under 42 U.S.C. § 1983 must
establish that the individual or entity who allegedly
committed the constitutional violation is a
"person" for the purposes of § 1983. 42 U.S.C.
§ 1983; see also Indep. Enters. Inc. v. Pittsburgh
Water & Sewer Auth., 103 F.3d 1165, 1172 (3d Cir.
1997). "States or governmental entities that are
considered 'arms of the State' for Eleventh Amendment
purposes" are not "persons" under § 1983.
Will v. Mich. Dep't of State Police, 491 U.S.
58, 70 (1989); see also Howlett By & Through Howlett
v. Rose, 496 U.S. 356, 365 (1990) ("Will
establishes that the State and arms of the State, which have
traditionally enjoyed Eleventh Amendment immunity, are not
subject to suit under § 1983 in either federal court or
state court."). As discussed at length above,
see Section III(A), supra, N.J. Transit is
an arm of the state. The Eleventh Amendment therefore
functions as a complete bar, ...