Fitchik v. New Jersey Transit Rail Operations, Inc.

Decision Date17 April 1989
Docket Number88-5320,Nos. 88-5142,88-5270,s. 88-5142
Citation873 F.2d 655
PartiesJoseph P. FITCHIK, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee, v. NON DESTRUCTIVE TESTING CORP., Third-Party Defendants. Linda A. DEGIROLAMO, Appellant, v. NEW JERSEY TRANSIT AUTHORITY d/b/a New Jersey Transit, Appellee. Felix E. GUZMAN, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. Sidney KINNEAR, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. Kenneth G. BANTA, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee, v. Everette G. WHITENOUR, Christopher Middleton, Justine Smith, and Town of Dover, Third Party Defendants. William ROCKWELL, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC. Robert K. HEATON, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. William P. McKENNA, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. Craig A. CONLON, Appellant, v. NEW JERSEY RAIL OPERATIONS, INC., Appellee. Laurence O'HALLORAN, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. Dennis MARTIN, Appellant, v. NEW JERSEY TRANSIT CORPORATION & New Jersey Transit Rail Operations, Inc., Appellees. Robert G. STOCKER, Sr., Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. Clifford E. WILLIAMSON, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. David J. CHWASZCZEWSKI, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. Philip ROXAS, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. Patrick J. MUELLER, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. Joseph L. DUFFY, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. Edward J. FLILLER, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. James C. HARDEN, Jr., Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. Lynn R. STIGLIANO Personal Representative of the Estate of John Paul Stigliano, Deceased, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Appellee. Louis D. ELLIS, Appellant, v. NEW
CourtU.S. Court of Appeals — Third Circuit

Joseph A. Coffey, Jr., Lawrence A. Katz (argued), Mitchell A. Kaye, Coffey & Kaye, Bala Cynwyd, Pa., for appellants.

W. Cary Edwards, Atty. Gen. of New Jersey, Michael R. Clancy, Grace A. Dennigan, Emerald L. Erickson (argued), Deputy Attys. Gen., for appellee.

Argued July 19, 1988.

Before HIGGINBOTHAM, BECKER and ROSENN, Circuit Judges.

Reargued In Banc Jan. 30, 1989.

Before GIBBONS, Chief Judge, SEITZ, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD and ROSENN, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

These consolidated appeals require us to resolve the question whether the eleventh amendment precludes the plaintiff-appellants, railroad workers who sustained personal injuries in the course of their employment, from instituting compensatory damage actions in federal court under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. Secs. 51-60 (1982), against the defendant-appellee New Jersey Transit Rail Operations, Inc. ("NJTRO"). This opinion will address the case of the lead plaintiff, Joseph P. Fitchik, a NJTRO conductor who was seriously injured when his train struck a track guard. Thereafter, Fitchik sued NJTRO in the district court for the District of New Jersey. The district court granted NJTRO's motion to dismiss Fitchik's complaint on the ground that NJTRO was immune from suit under the eleventh amendment, and Fitchik appeals. We consider Fitchik's arguments as representative of those asserted by each of the plaintiffs whose appeals have been consolidated.

Although the eleventh amendment issue is presented here in a number of aspects, the first, dispositive, question is whether NJTRO, which is a wholly owned subsidiary of New Jersey Transit Corporation ("NJT"), is the alter ego of New Jersey. A state agency is entitled to immunity from suit in a federal court under the eleventh amendment when a judgment against it "would have had essentially the same practical consequences as a judgment against the State itself." Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979). If NJTRO is not an arm of the state, eleventh amendment immunity will not attach. For the reasons that follow, we conclude that NJTRO is not the alter ego of New Jersey. We therefore reverse.

I. ELEVENTH AMENDMENT BACKGROUND

Fitchik's contention that NJTRO is not the alter ego of New Jersey relies principally upon our decisions in Urbano v. Board of Managers, 415 F.2d 247 (3d Cir.1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 (1970), and Kovats v. Rutgers, the State University, 822 F.2d 1303 (3d Cir.1987). The district court dismissed Fitchik's complaint on the grounds that NJTRO was the alter ego of the state; that in enacting the FELA and the Federal Safety Appliance Act, Congress did not manifest the unmistakable statutory language necessary to abrogate the states' immunity from suit in federal court; and that New Jersey had not waived its immunity. See 678 F.Supp. 465, 468-69 (1988) (citing Welch v. State Department of Highways and Public Transportation, 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987)). Our review of defendant's entitlement to eleventh amendment immunity (including the threshold alter ego question) is plenary. Skehan v. State System of Higher Education, 815 F.2d 244, 246 (3d Cir.1987). 1

The eleventh amendment 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.

Despite the amendment's language, the Supreme Court has consistently interpreted it to immunize an unconsenting state " 'from suits brought in federal courts by her own citizens as well as by citizens of another state.' " Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) (quoting Employees v. Missouri Department of Public Health and Welfare, 411 U.S. 279, 280, 93 S.Ct. 1614, 1615, 36 L.Ed.2d 251 (1973)). A suit may be barred by the eleventh amendment even though a state is not named a party to the action, as long as the state is the real party in interest. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). The Court has therefore attempted on several occasions to determine just when a suit against an entity is actually a suit against the state itself.

In Pennhurst, for example, the Court asserted that the state is the real party in interest when " 'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' or if the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act.' " 465 U.S. at 101 n. 11, 104 S.Ct. at 908 n. 11 (citation omitted). This court has formulated a more specific and comprehensive test to determine whether eleventh amendment immunity extends to an entity:

'[L]ocal law and decisions defining the status and nature of the agency involved in its relation to the sovereign are factors to be considered, but only one of a number that are of significance. Among the other factors, no one of which is conclusive, perhaps the most important is whether, in the event plaintiff prevails, the payment of the judgment will have to be made out of the state treasury; significant here also is whether the agency has the funds or the power to satisfy the judgment. Other relevant factors are whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; the degree of autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation, and whether the sovereign has immunized itself from responsibility for the agency's operations.

Urbano, 415 F.2d at 251-52.

Several of the Urbano factors are interrelated. For clarity's sake, we divide the nine Urbano factors into three larger questions as follows:

(1) Whether the money that would pay the judgment would come from the state (this includes three of the Urbano factors--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);

(2) The status of the agency under state law (this includes four factors--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); and

(3) What degree of autonomy the agency has. 2

We turn to our evaluation of these factors. Our record consists of an extensive set of stipulated facts. As will be seen infra, these factors are not weighed evenly in striking the balance.

II. DISCUSSION
A. Funding.

Although no single Urbano factor is dispositive, the most important is whether any judgment would be paid from the state treasury. Urbano itself calls this "the most significant factor," 415 F.2d at 251, and this conclusion is supported by the Supreme Court's identification of the amendment's central goal as the prevention of federal court judgments...

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