Christy v. Pennsylvania Turnpike Com'n, 94-1386

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: LEWIS
• Citation: 54 F.3d 1140
• Parties: Charles A. CHRISTY, v. PENNSYLVANIA TURNPIKE COMMISSION, A Duly Organized and Existing Agency of the Commonwealth of Pennsylvania; Robert Brady, Individually and in His Official Capacity; James J. Dodaro, Individually and in His Official Capacity; Howard Yerusalim, Individually and in His Official Capacity; Frank S. Ursomarso, Individually and in His Official Capacity; James F. Malone, III, Individually and in His Official Capacity; John L. Sokol, Jr., Individually and in His Official Capacity; S. Michael Palermo, Individually and in His Official Capacity; Joseph L. Dirienzo, Individually and in His Official Capacity; Samuel S. Carnabuci, Individually and in His Official Capacity; Melvin M. Shelton, Individually and in His Official Capacity; Deborah Koval, Individually and in Her Official Capacity; John A. Boschi, Individually and in His Official Capacity; Vincent J. Greco, Individually and in His Official Capacity; John A. Stewart, Individually and in His Official Capacity; George Pilecki, Individually and in His Official Capacity; Sean Pilecki, Individually, Pennsylvania Turnpike Commission, Robert Brady, Vincent Greco and John Stewart, AppellantsJohn A. Boschi, Appellant
• Docket Number: No. 94-1386,No. 94-1398,94-1398,Nos. 94-1386,94-1386,s. 94-1386
• Decision Date: 12 September 1994

Page 1140

54 F.3d 1140 Charles A. CHRISTY,
v.
PENNSYLVANIA TURNPIKE COMMISSION, A Duly Organized and
Existing Agency of the Commonwealth of Pennsylvania; Robert
Brady, Individually and in His Official Capacity; James J.
Dodaro, Individually and in His Official Capacity; Howard
Yerusalim, Individually and in His Official Capacity; Frank
S. Ursomarso, Individually and in His Official Capacity;
James F. Malone, III, Individually and in His Official
Capacity; John L. Sokol, Jr., Individually and in His
Official Capacity; S. Michael Palermo, Individually and in
His Official Capacity; Joseph L. Dirienzo, Individually and
in His Official Capacity; Samuel S. Carnabuci, Individually
and in His Official Capacity; Melvin M. Shelton,
Individually and in His Official Capacity; Deborah Koval,
Individually and in Her Official Capacity; John A. Boschi,
Individually and in His Official Capacity; Vincent J.
Greco, Individually and in His Official Capacity; John A.
Stewart, Individually and in His Official Capacity; George
Pilecki, Individually and in His Official Capacity; Sean
Pilecki, Individually, Pennsylvania Turnpike Commission,
Robert Brady, Vincent Greco and John Stewart, Appellants No.
94-1386.
John A. Boschi, Appellant No. 94-1398. Nos. 94-1386, 94-1398. United States Court of Appeals, Third Circuit.
Argued Sept. 12, 1994. Opinion Vacated April 27, 1995.
Submitted Pursuant to LAR 34.1(a)
On Panel Rehearing April 28, 1995.
Decided May 23, 1995.
Sur Petition for Rehearing July 13, 1995.

Page 1142

Michael M. Baylson (argued), Duane, Morris & Heckscher, Philadelphia, PA, for appellants, Pennsylvania Turnpike Com'n, Robert Brady, Vincent Greco and John Stewart.

David S. Fortney (argued), Lisa G. DiPietro, Reed, Smith, Shaw & McClay, Philadelphia, PA, for appellant, John A. Boschi.

Joseph F. Lawless, Jr. (argued), Newtown Square, PA, John P. Hickey, Imogene E. Hughes, Kleinbard, Bell & Brecker, Philadelphia, PA, for appellee.

Before: STAPLETON, ALITO and LEWIS, Circuit Judges.

OPINION OF THE COURT

LEWIS, Circuit Judge.

In this case, we must determine whether the Pennsylvania Turnpike Commission ("Commission") is an "arm" or "alter ego" of the Commonwealth of Pennsylvania and thus entitled to Eleventh Amendment immunity from suit in federal court. Because we conclude that the Commission is not an arm or alter ego of Pennsylvania we will affirm the district court's finding that the Commission

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does not enjoy Eleventh Amendment sovereign immunity.

I.

The appellee, Charles Christy ("Christy"), has been an employee of the Commission since 1976. ¹ In November of 1992, Christy made application for the position of Paint Crew Foreman. He was interviewed for this position in early 1993 by the appellants John Boschi, Vincent Greco and John Stewart. ² Christy was then chosen as one of three final candidates for the Paint Crew Foreman position. The names of the three final candidates were passed to the Commission's personnel committee for final review. The personnel committee then recommended that the position be awarded to one Sean Pilecki, a Commission employee during the preceding four and a half years. The Commission adopted the personnel committee's recommendation and hired Mr. Pilecki. Christy subsequently applied and was turned down for the position of Eastern Division Equipment Supervisor.

Christy then sued the Commission and its individual commissioners and personnel committee members pursuant to 42 U.S.C. Secs. 1983 and 1985, claiming that he was not promoted due to political bias against him. In response to Christy's claims of political bias, the Commission and individual defendants Brady, Greco and Stewart filed a joint motion for summary judgment, while the defendant Boschi filed a separate summary judgment motion. The district court denied the defendants' motions, ruling as a matter of law that the Commission was not entitled to Eleventh Amendment immunity, and rejecting the individual defendants' claims of qualified immunity. These appeals followed.

II.

The district court had jurisdiction in this case pursuant to 28 U.S.C. Secs. 1343(a)(3) and 1367(a). ³ We have appellate jurisdiction pursuant to 28 U.S.C. Sec. 1291 over the district court's denial of the defendants' motions for summary judgment on Eleventh Amendment and qualified immunity grounds. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., --- U.S. ----, ---- - ----, 113 S.Ct. 684, 687-89, 121 L.Ed.2d 605 (1993) (Eleventh Amendment immunity); footnote 4, infra (qualified immunity). We exercise plenary review of the district court's denial of the defendants' motions for summary judgment. Rappa v. New Castle County, 18 F.3d 1043, 1050 (3d Cir.1994). ⁴

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III.

We must determine whether the district court correctly concluded that the Commission is not an "arm" of Pennsylvania and therefore not entitled to sovereign immunity under the Eleventh Amendment. ⁵ The question whether the Commission is an "arm" of the State is one of federal law. Blake v. Kline, 612 F.2d 718, 722 (3d Cir.1979). However, before undertaking our Eleventh Amendment analysis, we must decide a question of apparent first impression in this Circuit: who bears the burden of production and persuasion with respect to factual questions when a putative state entity claims immunity under the Eleventh Amendment? We conclude that the party asserting Eleventh Amendment immunity (and standing to benefit from its acceptance) bears the burden of proving its applicability. In so concluding, we adopt the reasoning set forth by the Court of Appeals for the Ninth Circuit in ITSI TV Productions v. Agricultural Associations, 3 F.3d 1289 (9th Cir.1993). Because Eleventh Amendment immunity can be expressly waived by a party, or forfeited through non-assertion, it does not implicate federal subject matter jurisdiction in the ordinary sense. Id. at 1291. We agree with the Ninth Circuit that "whatever its jurisdictional attributes, [Eleventh Amendment immunity] should be treated as an affirmative defense[,]" and "[l]ike any other such defense, that which is promised by the Eleventh Amendment must be proved by the party that asserts it and would benefit from its acceptance." Id. We also agree with the Ninth Circuit that considerations of fairness support this conclusion. As the court noted in ITSI TV Productions:

In general, a claim of Eleventh Amendment immunity will occasion serious dispute only where a relatively complex institutional arrangement makes it unclear whether a given entity ought to be treated as an arm of the state. In such cases, the "true facts" as to the particulars of this arrangement will presumably "lie particularly within the knowledge of" the party claiming immunity.

Id. at 1292 (citations omitted).

Having concluded that the party asserting Eleventh Amendment immunity bears the burden of proving entitlement to it, we turn now to the merits of the immunity question. We have on numerous occasions set forth the criteria to be considered in determining whether an entity is an "alter ego" or "arm" of a state for purposes of the Eleventh Amendment. See e.g., Peters v. Delaware River Port Authority, 16 F.3d 1346, 1350 (3d Cir.1994); Bolden v. Southeastern Pennsylvania Transp. Auth., 953 F.2d 807, 816-18 (3d Cir.1991) (in banc ); Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir.1989) (in banc ). Our oft-reiterated test entails three distinct inquiries: (1) whether, in the event the plaintiff prevails, the payment of the judgment would come from the state (this includes three considerations: whether the payment will come from the state's treasury, whether the agency has sufficient funds to satisfy the judgment, and whether the sovereign has immunized itself from responsibility for the agency's debts); (2) the status of the agency under state law (this includes four considerations: how state law treats the agency generally, whether the agency is separately incorporated, whether the agency can sue and be sued in its own right, and whether it is immune from state taxation); and (3)

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what degree of autonomy the agency enjoys. Peters v. Del. River Port Authority, 16 F.3d 1346, 1350 (3d Cir.1994) (citing Bolden v. Southeastern Pa. Transp. Auth., 953 F.2d 807, 816 (3d Cir.1991) (in banc )). We turn now to this three-pronged inquiry.

A. Funding

We have explained that although no single factor is dispositive of the Eleventh Amendment inquiry, the "most important" factor is whether a judgment against the entity in question, in this case the Commission, would be paid out of the state treasury. See, e.g., Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir.1989) (in banc ). The special emphasis we place upon the funding factor is supported by the Eleventh Amendment's central goal: the prevention of federal court judgments that must be paid out of the State's treasury. See Fitchik, 873 F.2d at 659-60 (citing Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)). The Supreme Court has recently reiterated the significance accorded this factor in relation to other Eleventh Amendment considerations. In Hess v. Port Authority Trans-Hudson Corporation, --- U.S. ----, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994), the Court explained that "prevention of federal court judgments that must be paid out of a State's treasury" formed the "impetus" for the Eleventh Amendment. Hess, --- U.S. at ----, 115 S.Ct. at 404.

Accordingly, Courts of Appeals have recognized the vulnerability of the State's purse as the most salient factor in Eleventh Amendment determinations.... "[T]he vast majority of Circuits have concluded that the state treasury factor is the most important factor to be considered and, in practice, have generally accorded this factor dispositive weight."

Id. (citations omitted).

1. Whether Payment Will Come from the State's Treasury

Pursuant to the Turnpike Organization, Extension and Toll...