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Karns v. Shanahan

United States Court of Appeals, Third Circuit

January 11, 2018

DON KARNS, Appellant
v.
KATHLEEN SHANAHAN; SANDRA MCKEON CROWE; NEW JERSEY TRANSIT; JOHN DOE SUPERVISORS #1-50 ROBERT PARKER, Appellant
v.
KATHLEEN SHANAHAN; SANDRA MCKEON CROWE; NEW JERSEY TRANSIT; JOHN DOE SUPERVISORS #1-50

          Argued: January 26, 2017

         Appeal 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

          John M. Bloor, Esq. [ARGUED] F. Michael Daily, Jr., Esq. Counsel for Appellants

          Jennifer J. McGruther, Esq. [ARGUED] Stephen R. Tucker, Esq. Benjamin H. Zieman, Esq. Counsel for Appellees

          Before: CHAGARES, RESTREPO, and ROTH, Circuit Judges

          OPINION

          CHAGARES, Circuit Judge.

         Don 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 judgment.

         I.

         Karns 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.[1] 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 lawsuit.

         Officers 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.

         While 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.

         In 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.

         The 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.

         Karns 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.

         On June 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.

         Karns and Parker filed this timely appeal.

         II.

         The 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).

         III.

         Karns 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.

         A.

         The 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).

         It is "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).[2] 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).

         We 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).

         We 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).

         The 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.

         Notwithstanding 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[3] 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.

         Our 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).

         Adherence 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.

         1.

         Turning 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.

         The 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. Transit.

         We do 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.

         2.

          We 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.

         There 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.

         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.").[4] 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 decision.

         3.

         Third, 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. § 27:25-13(h).

         All of 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 immunity.

         * * * * *

         After 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.[5]

          B.

         Karns 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.

         A 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, ...


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