filed: June 30, 1987.
GABOR G. KOVATS, STEVEN C. PROCUNIAR, JOY L. DAVIS, ROBERTA M. DELSON, HACE TISHLER, AND ANNA BECK
RUTGER, THE STATE UNIVERSITY, BOARD OF GOVERNORS OF RUTGERS, THE STATE UNIVERSITY, EDWARD BLOUSTEIN, AS PRESIDENT OF RUTGERS, THE STATE UNIVERSITY AND INDIVIDUALLY AND JOHN R. MARTIN, AS VICE-PRESIDENT FOR PERSONNEL OF RUTGERS, THE STATE UNIVERSITY AND INDIVIDUALLY, AND SUSAN A. COLE, AS VICE-PRESIDENT FOR PERSONNEL OF RUTGERS, THE STATE UNIVERSITY RUTGERS, THE STATE UNIVERSITY, BOARD OF GOVERNORS OF RUTGERS, THE STATE UNIVERSITY, EDWARD BLOUSTEIN, AS PRESIDENT OF RUTGERS, THE STATE UNIVERSITY AND INDIVIDUALLY, AND JOHN R. MARTIN, AS VICE-PRESIDENT FOR PERSONNEL OF RUTGERS, THE STATE UNIVERSITY AND INDIVIDUALLY, APPELLANTS; MARGARET VARMA, ON BEHALF OF HERSELF AND ALL OTHER SIMILARLY SITUATED, AND RUTGERS COUNCIL OF AAUP CHAPTERS V. EDWARD J. BLOUSTEIN, PRESIDENT OF RUTGERS, THE STATE UNIVERSITY, T. ALEXANDER POND, EXECUTIVE VICE-PRESIDENT AND CHIEF ACADEMIC OFFICER OF RUTGERS, THE STATE UNIVERSITY, NORMAL SAMUELS, PROVOST OF THE NEWARK CAMPUS OF RUTGERS, THE STATE UNIVERSITY, JAMES YOUNG, FORMER PROVOST OF THE NEWARK CAMPUS OF RUTGERS, THE STATE UNIVERSITY, WALTER GORDON, PROVOST OF THE CAMDEN CAMPUS OF RUTGERS, THE STATE UNIVERSITY, KENNETH WHEELER, PROVOST OF THE NEW BRUNSWICK CAMPUS OF RUTGERS, THE STATE UNIVERSITY, JEAN PARRISH, ACTING PROVOST OF THE NEW BRUNSWICK CAMPUS OF RUTGERS, THE STATE UNIVERSITY, JEAN PARISH, THE STATE UNIVERSITY, PROFESSORS HANS FISHER, NOEMIE KILLER, RICHARD POIRIER, PAUL FUSSELL, LAWRENCE FISHER, JANE SCANLON, HARVEY FEDER AND AMELIE RORTY OF RUTGERS, THE STATE UNIVERSITY, SUSAN A. COLE, VICE-PRESIDENT FOR PERSONNEL AT RUTGERS, THE STATE UNIVERSITY, ELIZABETH MITCHELL, ASSISTANT VICE-PRESIDENT FOR FACULTY AFFAIRS OF RUTGERS, THE STATE UNIVERSITY ROBERT PACK, ASSOCIATE PROVOST FOR PERSONNEL, NEW BRUNSWICK, MEMBERS OF THE BOARD OF GOVERNORS OF RUTGERS, THE STATE UNIVERSITY, LINDA STAMATO, CHAIR, DONALD DICKERSON, VICE-CHAIR, FLOYD BRAGG, SANFORD JAFFE, ROBERT KAPLAN, HAROLD PERL, NORMAN REITMAN, LAWRENCE S. SCHWARTZ, AND DAVID WERBLIN, ALL INDIVIDUALLY AND IN THEIR CORPORATE CAPACITIES AND RUTGERS, THE STATE UNIVERSITY THE PROMOTION REVIEW COMMITTEE, OF RUTGERS, THE STATE UNIVERSITY, EDWARD J. BLOUSTEIN, T. ALEXANDER POND, NORMAN SAMUELS, JAMES YOUNG, WALTER GORDON, KENNETH WHEELER, JEAN PARISH, THE PROMOTION REVIEW COMMITTEE, SUSAN A. COLE, ELIZABETH MITCHELL, ROBERT PACK, LINDA STAMATO, DONALD DICKERSON, FLOYD BRAGG, SANFORD JAFFEE, ROBERT KAPLAN, HAROLD PERL, NORMAN REITMAN, LAWRENCE S. SCHWARTZ, AND DAVID WERBLIN, AND RUTGERS, THE STATE UNIVERSITY, APPELLANTS
On Appeal from the United States District Court for the District of New Jersey, Newark, D.C. Civil Nos., 82-2000, 84-2332.
Before: SLOVITER and MANSMANN, Circuit Judges, and SCIRICA, District Judge*fn*
This appeal arises from suits under 42 U.S.C. § 1983 filed by two groups of present and former faculty members against Rutgers, whose official name is Rutgers, The State University, its Board of Governors, and certain Rutgers officials in their individual and official capacities.
In the suit hereafter referred to as Varma, Margaret Varma alleges that she was denied tenure on the recommendation of the Promotions Review Committee, notwithstanding favorable recommendation by her department, the Appointment and Promotions Committee, and the Dean of her College.*fn1 Varma's complaint, as finally amended, alleges, inter alia, that the university and its officials refused to follow published tenure standards, and instead based denials of tenure on "secret and undisclosed standards of performance and of review, never communicated to the candidates," and gave negative tenure recommendations based both "on a refusal to accord due respect and weight to scholarship and activities in areas of concern to . . . women, non-white people, workers, impoverished people and others traditionally excluded from full participation in the life of this society" and "on the fact that the candidate's assigned duties and their agreed-upon weights differ from the usual emphasis on classroom teaching and conventional scholarship." VA at 88-89. The complaint alleges that these acts have deprived faculty members of their rights to due process, equal protection and freedom of speech in violation of the United States Constitution, the New Jersey Constitution and 42 U.S.C. § 1983. The complaint, filed as a class action, seeks a declaration of rights, and injunction governing future promotions, reinstatement and equitable back pay for Varma and other class members, compensatory and punitive damages and costs and attorney's fees.
In the suite hereafter referred to as Kovats, Gabor G. Kovats, Hace Tishler, Anna Beck, Steven C. Procuniar, Joy L. Davis and Roberta M. Delson alleged that they were discharged from their faculty positions and were denied tenure, despite their service for more than seven years prior to discharge which they allege gives them de facto tenure.*fn2 The faculty members alleged that their terminations deprived them of their property rights to tenure in violation of the Due Process Clause of the United States Constitution, the New Jersey Constitution, and 42 U.S.C. § 1983.*fn3
In both actions, Rutgers and its officials in their official capacities moved for summary judgment on the basis of a claimed Eleventh Amendment immunity from suit. The officials in their individual capacities moved for summary judgment on the basis of a claimed qualified immunity. The district courts denied all summary judgment motions, Kovats v. Rutgers, 633 F. Supp. 1469 (D.N.J. 1986); Varma v. Bloustein, No. 84-2332 (D.N.J. Jun. 9, 1986), VA at 449, but certified their orders for interlocutory appeal because of the importance of the questions of law addressed. The defendants appeal. We have jurisdiction over both issues under 28 U.S.C. § 1292(b). Denial of qualified immunity is also a collateral order subject to immediate appeal. Mitchell v. Forsyth, 472 U.S. 511, 524-30, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). Our review is plenary.
The appeals raise two issues. First, is Rutgers an arm of the state such that it, and derivatively its officials in their official capacities, is entitled to Eleventh Amendment immunity from suit in federal court? Second, are Rutgers' officials in their individual capacities entitled to qualified immunity?
Eleventh Amendment Immunity
Rutgers contests the district courts' denial of Eleventh Amendment immunity to Rutgers; two of Rutgers' official bodies, the Board of Governors and the Promotion Review Committee; and Rutgers' officials in their official capacity. Any Eleventh Amendment immunity granted the official bodies or the officers would be derivative from the immunity of Rutgers itself, see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101-02, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984), and, therefore, if Rutgers is not entitled to Eleventh Amendment immunity, neither are its official bodies and its officers in their official capacities.
The language of the Eleventh Amendment extends only to the state itself,*fn4 but the Supreme Court has held that it bars actions in federal court when "the state is the real, substantial party in interest." Pennhurst, 465 U.S. at 101 (citations omitted).
In Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977), the Court stated that whether an entity was an arm of the state as opposed to a non-immune municipal corporation depended "at least in part, upon the nature of the entity created by state law." It concluded that even though a city Board of Education received state funding, because Ohio law defined a local school district as a political subdivision separate from the state and granted the Board the power to raise its own money, the Board could not be considered an arm of the state entitled to Eleventh Amendment immunity. id. at 280-81.
Similarly, in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979), the court held that in order for the interstate Regional Planning Authority (RPA), an entity created by interstate compact, to enjoy Eleventh Amendment immunity, it must be an arm of the compacting states rather than a body "comparable to a county or municipality." Further, there must be "good reason to believe that the States structured the new agency to enable it to enjoy the special constitutional protection of the States themselves." id. The Court looked to the facts that the states had disclaimed immunity, had made funding the responsibility of counties, had declared judgments against the agency to be non-binding on the state, had allowed counties to appoint a majority of agency members, and had given the agency traditionally local functions in concluding that the RPA was not an arm of the state entitled to Eleventh Amendment immunity.Id. at 401-02.
In this court, we have incorporated the six factors outlined by the Supreme Court in Lake Country Estates into a nine factor inquiry to be examined to determine when an entity should be regarded as entitled to share in the state's Eleventh Amendment immunity:
Local 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 v. Board of Managers of the New Jersey State Prison, 415 F.2d 247, 250-51 (3d Cir. 1969), cert. denied, 397 U.S. 948, 90 S. Ct. 967, 25 L. Ed. 2d 128 (1970); see also Port Authority Police Benevolent Association, Inc. v. Port Authority of New York and New Jersey, 819 F.2d 413 at 10-11 (3d Cir. 1987); Skehan v. State System of Higher Education, 815 F.2d 244, 247 (3d Cir. 1987); Blake v. Kline, 612 F.2d 718, 722 (3d Cir. 1979), cert. denied, 447 ...
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