Argued: April 4, 2016
Appeal from the United States District Court for the District
of New Jersey (D.C. No. 2-14-cv-01398) District Judge:
Honorable Stanley R. Chesler
Jennifer J. McGruther, Esq. (Argued) Office of Attorney
General of New Jersey Counsel for Appellant
Michael R. DiChiara, Esq. (Argued) Krakower DiChiara Counsel
Before: AMBRO, KRAUSE, Circuit Judges, and THOMPSON, [*] District Judge
KRAUSE, Circuit Judge.
federalist system of government accords respect for the
sovereignty of the States in a variety of ways, including the
Eleventh Amendment to the United States Constitution, which
immunizes States from suits brought in federal court by both
their own citizens and citizens of other States. The Eleventh
Amendment's protection, however, is not limited to the
States alone, but rather extends to entities that function as
"arms of the State." In this case, we are asked to
resolve a split among the district courts in our Circuit as
to whether Montclair State University ("MSU") is an
arm of the State of New Jersey, which would render it immune
from the discrimination suit brought by Appellee Paula
Maliandi. Applying the balancing test we have developed to
make such determinations, we conclude that, while a close
case, MSU is an arm of the State, thus affording it access to
the refuge of the Eleventh Amendment. Accordingly, we will
reverse the decision of the District Court and remand for
proceedings consistent with this opinion.
to her complaint, Paula Maliandi began working for MSU in
November 2007 and took medical leave for breast cancer
treatment in early 2013. Despite having complied with all
pertinent policies and procedures for taking such leave,
Maliandi allegedly was denied her original position when she
returned and instead was offered an inferior position, which
she declined. She was subsequently terminated. Maliandi then
filed suit against MSU for wrongful termination, seeking
money damages and equitable relief under both federal and
state law. Maliandi's federal claim arises under the
Family Medical Leave Act ("FMLA") for termination
on account of a "serious [health] condition." While
she does not cite a specific provision in her complaint, it
would appear her claim is rooted in the so-called
"self-care provision, " 29 U.S.C. §
2612(a)(1)(D), and its corresponding retaliation provision,
29 U.S.C. § 2614(a). Together, these provisions entitle
a qualifying employee to twelve weeks of leave for a
"serious health condition" and require an employer
to restore an employee who took leave under § 2612 to
her prior position or an equivalent one upon her return.
Maliandi's state law claim arises under the New Jersey
Law Against Discrimination ("NJLAD"), N.J. Stat.
Ann. §§ 10:5-1 to -49, which, among other things,
prohibits discrimination on account of a disability or
moved to dismiss Maliandi's complaint under Federal Rule
of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction based on its contention that, as an arm of the
State, it is owed Eleventh Amendment immunity from suit in
federal court. The District Court denied the motion,
determining that MSU is not the State's alter ego and, in
turn, concluding that MSU is subject to suit in federal court
for both the federal and state law claims. MSU appeals.
District Court had jurisdiction under 28 U.S.C. § 1331
to adjudicate Maliandi's FMLA claim and under 28 U.S.C.
§ 1367 to consider her associated state law claim. The
District Court's order denying MSU's 12(b)(1) motion
to dismiss on Eleventh Amendment immunity grounds is
immediately appealable under the collateral order doctrine,
imbuing us with jurisdiction under 28 U.S.C. § 1291.
Cooper v. Se. Pa. Transp. Auth., 548 F.3d 296, 298
(3d Cir. 2008) (citing P.R. Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 144-45 (1993)).
We consider whether MSU is owed Eleventh Amendment immunity
de novo; as "the party asserting immunity,
" MSU "bears the burden of production and
persuasion." Febres v. Camden Bd. of Educ., 445
F.3d 227, 228-29 (3d Cir. 2006).
Eleventh Amendment jurisprudence has wound its way through a
number of variations-both subtle and significant-over the
past decades. To distill the principles that govern our
analysis today, we first review the constitutional
underpinnings and precedent relevant to the arm of the State
inquiry, and we then apply those principles to determine
whether MSU qualifies as an arm of the State entitled to
History and Precedent
Eleventh Amendment began as a simple rebuke of the Supreme
Court's decision in Chisolm v. Georgia, 2 U.S.
419 (1793), that would have subjected States to suits in
federal court and saddled them with the weight of the
burgeoning republic's Revolutionary War debts. Hans
v. Louisiana, 134 U.S. 1, 10-11 (1890); see also
Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 39
(1994). More than two centuries later, however, it has
evolved into a potent tool for States to ensure that States
retain their sovereignty and integrity as constituent
polities of our national government. Hess, 513 U.S.
at 39-40. Thus, the Supreme Court has recognized that the
Amendment does not merely shield state treasuries. Instead,
it advances two fundamental goals: safeguarding States'
dignity and protecting their financial solvency. Id.
at 52. And although, by its terms, the Eleventh Amendment
only withholds from the federal judiciary the power to decide
cases brought against a State by a citizen of another State
or a foreign government, U.S. Const. amend. XI, the Court has
interpreted it to bar suits against a State by its own
citizens-not just those from other jurisdictions.
Hans, 134 U.S. at 10-15; see also Seminole Tribe
of Fla. v. Florida, 517 U.S. 44, 54 (1996).
for this case, the Court also has read the Amendment to bar
not only suits against States themselves, but also suits for
damages against "arms of the State"- entities that,
by their very nature, are so intertwined with the State that
any suit against them renders the State the "real,
substantial party in interest." Edelman v.
Jordan, 415 U.S. 651, 663 (1974) (quoting Ford Motor
Co. v. Dep't of Treasury, 323 U.S. 459, 464 (1945));
see also Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 280 (1977) (using the term
"arm of the State"); Febres, 445 F.3d at
the Eleventh Amendment provides the States with sweeping
immunity from suit, we have been careful to ensure that its
reach does not extend beyond proper bounds. Accordingly, we
employ a fact-intensive, three-step balancing test to
ascertain whether a state-affiliated entity is an "arm
of the State" that falls within the ambit of the
Eleventh Amendment. Our initial recitation of the test came
in Urbano v. Board of Managers, 415 F.2d 247, 250-51
(3d Cir. 1969), cert. denied, 397 U.S. 948 (1970),
where we identified nine factors to consider. Two decades
later in Fitchik v. New Jersey Transit Rail Operations,
Inc., 873 F.2d 655, 659 (3d Cir. 1989) (en banc), we
attempted to consolidate those Urbano factors into a
more manageable three-factor test that still governs today.
explained in more detail below, the Fitchik factors
are (1) the funding factor: whether the state treasury is
legally responsible for an adverse judgment entered against
the alleged arm of the State; (2) the status under state law
factor: whether the entity is treated as an arm of the State
under state case law and statutes; and (3) the autonomy
factor: whether, based largely on the structure of its
internal governance, the entity retains significant autonomy
from state control. Id. Because, for the most part,
we did not disagree with the Urbano factors,
rather organized them under the headings of
Fitchik's three factors, the layers of factors,
subfactors, and considerations that inform those subfactors
can still make an analysis seem dense, if not impenetrable.
Moreover, each step of that analysis is a
"fact-intensive" undertaking that requires a fresh
analysis and "individualized determinations" for
each entity claiming Eleventh Amendment immunity. See
Bowers v. Nat'l Collegiate Athletic Ass'n, 475
F.3d 524, 546 (3d Cir. 2007).
identifying the direction in which each factor points, we
balance them to determine whether an entity amounts to an arm
of the State. Fitchik, 873 F.2d at 664; see also
Cooper, 548 F.3d at 311. While our jurisprudence had
long afforded the first factor-state funding-more weight than
the others, see Fitchik, 655 F.2d at 664, we
recalibrated the factors in light of the Supreme Court's
observation in Regents of the University of California v.
Doe, 519 U.S. 425, 431 (1997), that an Eleventh
Amendment inquiry should not be a "formalistic question
of ultimate financial liability." We now treat all three
Fitchik factors as co-equals, Benn v. First
Judicial Dist. of Pa., 426 F.3d 233, 239-40 (3d Cir.
2005), with the funding factor breaking the tie in a close
case, see Febres, 445 F.3d at 229-30 (citing
Hess, 513 U.S. at 47-48, 52).
had many occasions to apply the Fitchik (and,
earlier, Urbano) factors, ruling on the Eleventh
Amendment status of entities ranging from school boards to
public transit authorities to state-affiliated institutions
of higher learning. Of particular relevance to this case are
our decisions concerning the Pennsylvania State College
System, Rutgers University, and the University of Iowa. In
1976, we ruled en banc that Pennsylvania's
Bloomsburg State College was an arm of the State, Skehan
v. Bd. of Trs. of Bloomsburg State Coll., 538 F.2d 53,
62 (3d Cir.) (en banc) (Skehan I), cert.
denied, 429 U.S. 979 (1976), though our opinion there
never mentioned, much less applied, Urbano. We later
concluded, under the Urbano rubric, that the
Eleventh Amendment also shields Pennsylvania's State
System of Higher Education. Skehan v. State Sys. of
Higher Educ., 815 F.2d 244, 249 (3d Cir. 1987)
(Skehan II). That same year, we concluded in
Kovats v. Rutgers, The State University, 822 F.2d
1303 (3d Cir. 1987), that Rutgers-a New Jersey public
university that was initially chartered as a private
institution-was not an arm of the State under our
Urbano framework. Then in 2007, we considered the
status of the University of Iowa in Bowers and
determined that, under Fitchik, it was an arm of the
State on account of two of the three factors supporting
immunity. See Bowers, 475 F.3d at 549.
cases provide guidance as we consider MSU and are
"helpful in terms of analytic models, " but they
ultimately do not "govern our decision as to [MSU]
because 'each state university exists in a unique
governmental context, and each must be considered on the
basis of its own peculiar circumstances'"-including
the specific statutes at play and the practical reality of
the institution's autonomy. Kovats, 822 F.2d at
1312 (quoting Soni v. Bd. of Trs. of the Univ. of
Tenn., 513 F.2d 347, 352 (6th Cir. 1975)).
case law from our Sister Circuits is also illuminating. As
MSU points out, they have almost uniformly concluded that
state-affiliated universities are arms of their respective
States. See, e.g., Kreipke v. Wayne State
Univ., 807 F.3d 768 (6th Cir. 2015), cert.
docketed, No. 15-1419 (May 23, 2016); Irizarry-Mora
v. Univ. of P.R., 647 F.3d 9 (1st Cir. 2011); Md.
Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 262
(4th Cir. 2005) (collecting cases for proposition that state
universities are "[a]lmost universally" found to be
arms of the State); Watson v. Univ. of Utah Med.
Ctr., 75 F.3d 569, 575 (10th Cir. 1996) (collecting
cases for the proposition that the Tenth Circuit has
"consistently found state universities are arms of the
state"); Kashani v. Purdue Univ., 813 F.2d 843,
845 (7th Cir.), cert. denied, 484 U.S. 846 (1987)
("The vast majority of cases considering the issue have
found state universities to be forfended by the Eleventh
Amendment."); id. ("[While] [t]here are
district court opinions to the contrary[, ] . . . it would be
an usual state university that would not receive
immunity."); Hall v. Med. Coll. of Ohio at
Toledo, 742 F.2d 299, 301-02 (6th Cir. 1984), cert.
denied, 469 U.S. 1113 (1985) (collecting cases for the
proposition that "[t]he great majority of cases
addressing the question of Eleventh Amendment immunity for
public colleges and universities have found such institutions
to be arms of their respective state governments and thus
immune from suit").
proceed with our own analysis, we are mindful of the near
unanimity among the Courts of Appeals that the factors
relevant to an Eleventh Amendment inquiry typically favor
immunity in the state college setting. However, because the
particulars of our Fitchik test differ from
analogous tests in other Circuits and because each entity
seeking immunity warrants an individualized analysis, these
cases do not dictate the answer to the question of first
impression with which we are presented today.
question has bedeviled district judges in our Circuit, who
are divided in their application of the Fitchik test
to MSU. Compare Maliandi v. Montclair State Univ.,
C.A. No. 14-01398 (SRC), 2014 WL 3778259 (D.N.J. July 31,
2014) (not published) (concluding MSU is not an arm of the
State), and Ventura v. Montclair State Univ., C.A.
No. 08-5792 (SRC), 2011 WL 550720 (D.N.J. Feb. 9, 2011) (not
published) (same), with Sarmiento v. Montclair State
Univ., C.A. No. 04-cv-4176, letter op. (D.N.J. Mar. 31,
2005) (concluding MSU is an arm of the State). We now resolve
this dispute by concluding that MSU is an arm of the State,
and in the process, we seek to synthesize our jurisprudence
regarding the Fitchik factors for the benefit of
district courts in future Eleventh Amendment cases.
Fitchik Analysis for MSU
undertaking our own analysis of MSU's Eleventh Amendment
immunity, we cannot agree with the District Court's
determination that all three Fitchik factors counsel
against immunity. For the reasons set forth below, we
conclude that the funding factor counsels against immunity,
but that the status under state law and autonomy
factors-while close-tilt in favor of extending MSU immunity
from suit. On balance, because two of the three co- equal
factors support MSU's claim for immunity, we hold that
MSU is an arm of the State that enjoys the protections
afforded by the Eleventh Amendment.
The Funding Factor
funding factor, also called the "state-treasury
criterion, " Febres, 445 F.3d at 232 & n.4,
hinges on "[w]hether the money that would pay [a]
judgment [against the entity] would come from the state,
" Fitchik, 873 F.2d at 659. We consider three
subfactors: (1) a State's legal obligation to pay a money
judgment entered against the alleged arm of the State; (2)
alternative sources of funding (i.e., monies not
appropriated by the State) from which the entity could pay
such judgments; and (3) specific statutory provisions that
immunize the State from liability for money judgments.
Id.; see also Cooper, 548 F.3d at 302-06.
The State's Legal Obligation to Pay Money
Supreme Court has made clear in the years since
Fitchik that we must focus our Eleventh Amendment
inquiry not on a mechanical analysis of whether a State will
ultimately pay a judgment, but rather "the crux of the
state-treasury criterion [is] whether the state treasury is
legally responsible for the payment of a judgment against the
[alleged arm of the State]." Febres, 445 F.3d
at 233; id. at 236 ("The absence of any legal
obligation on the part of New Jersey to provide funds in
response to an adverse judgment . . . is a compelling
indicator that the state-treasury criterion . . . weighs
against immunity."); accord Bowers, 475 F.3d at
546-47 (citing Doe, 519 U.S. at 431). Specifically,
the Supreme Court has characterized the operative question as
"whether a money judgment against a state
instrumentality or official would be enforceable against the
State, " Doe, 519 U.S. at 430, meaning that if
a State only voluntarily indemnifies an entity, the funding
factor is unlikely to tip in favor of immunity, despite the
practical reality that the State foots the bill for a money
judgment, Bowers, 475 F.3d at 547.
than identify a legally enforceable obligation on the part of
the State to pay money judgments entered against it, MSU
relies largely on the argument that such money judgments
would indirectly affect the state treasury because "the
University financial statements are included in the
State's annual financial accounting."
Appellant's Br. 27-28. MSU's primary argument thus
appears to be that this reporting requirement would cause New
Jersey to increase appropriations to cover losses that result
from money judgments entered against the university.
Maliandi, 2014 WL 3778259, at *2.
consistently rejected the argument that a State's
voluntary choice to pay a state-affiliated entity's
liabilities-even if that choice might be a foregone
conclusion because of the State's desire to keep the
entity afloat-favors Eleventh Amendment immunity.
E.g., Bowers, 475 F.3d at 547;
Febres, 445 F.3d at 236; Bolden v. Se. Pa.
Transp. Auth., 953 F.2d 807, 819 (3d Cir. 1991) (en
banc); Fitchik, 873 F.2d at 661; Kovats,
822 F.2d at 1309. Instead, in conformance with Doe,
we have made clear that "practical or indirect financial
effects of a judgment may enter a court's calculus, but
rarely have significant bearing on a determination of an
entity's status as an arm of the state"; rather,
"[a] state's legal liability (or lack thereof) for
an entity's debts merits far greater weight, and is
therefore the key factor in our assessment of" the
funding factor. Febres, 445 F.3d at 236.
MSU's indirect effects argument is therefore unavailing.
does not argue that judgments against it would have a direct
effect on the state treasury-and with good reason. We have
identified only two exceptions to the rule that New Jersey
law imposes no all-encompassing legal obligation on the part
of the State to pay judgments entered against MSU. First,
N.J. Stat. Ann. § 18A:3B-6(h) allows state colleges to
elect to have the Attorney General represent them in suits
brought under the New Jersey Tort Claims Act (the "Tort
Claims Act"), id. §§ 59:1-1 to:12-3,
in which case the State is obligated to indemnify a college
(or its employees) for any resulting judgment. See also
id. §§ 59:10-1 to -10. Second, the New Jersey
Contractual Liability Act (the "Contractual Liability
Act"), id. §§ 59:13-1 to ...