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Flakker v. New Jersey Transit Rail Operations Inc.

United States District Court, E.D. Pennsylvania

June 18, 2018

JAMES FLAKKER
v.
NEW JERSEY TRANSIT RAIL OPERATIONS, INC.

          MEMORANDUM

          KEARNEY, J.

         This district court must follow a precedential opinion on point from our court of appeals regardless of whether the opinion is issued from a three judge or en banc panel. In January 2018, a three judge panel of our court of appeals reversed an earlier en banc opinion and held N.J. Transit is immune from suit under the Eleventh Amendment. The court of appeals later declined to re-hear the appeal in an en banc panel. When a citizen then later sues N.J. Transit under federal law after our court of appeals holding, he must explain why we are not bound to follow the law in this Circuit. When, as today, the plaintiff fails to do so and there is no basis to find either Congress abrogated or the state waived sovereign immunity for the claim, we will follow the precedential holding immunizing N.J. Transit from a federal lawsuit. We grant the motion for judgment on the pleadings in the accompanying Order.

         I. Material plead facts.

         James Flakker sued his employer, New Jersey Transit Rail Operations, for retaliating against him for reporting an injury he suffered while working as a foreman in its railroad yard.[1] Mr. Flakker alleges New Jersey Transit Rail Operation's retaliation violates the Federal Railroad Safety Act.[2]

II. Analysis

         New Jersey Transit Rail Operation moves for judgment on pleadings arguing it is immune from Mr. Flakker's claim as a subsidiary of N.J. Transit which enjoys sovereign immunity under the Eleventh Amendment.[3] N.J. Transit also argues Congress did not abrogate states' sovereign immunity in the Whistleblower Provision of the Federal Rail Safety Act and N.J. Transit does not waive its sovereign immunity or consent to be sued under the Whistleblower Provision of the Act.

         Mr. Flakker does not dispute New Jersey Transit Rail Operation's status as a subsidiary of N.J. Transit or dispute whether Congress abrogated sovereign immunity in the Federal Railroad Safety Act.[4] We earlier granted New Jersey Transit Rail Operation's motion on the merits but noted Mr. Flakker failed to timely oppose the motion. Five days after our Order and Memorandum, Mr. Flakker moved to vacate our judgment and requested an opportunity to respond to the judgment on the pleadings citing excusable neglect based on counsel's unexpected serious health crisis. We granted Mr. Flakker's motion so we could review with the benefit of Mr. Flakker's input. Mr. Flakker promptly responded and attached an over 2, 000 page appendix.[5] We carefully reviewed Mr. Flakker's response. While he raises facts not raised earlier, we are not persuaded by his argument and cannot decline following our court of appeals' opinion directly on point.

         A. N.J. Transit is entitled to sovereign immunity as an arm of the state.

         On January 11, 2018, our court of appeals decided Karns v. Shanahan holding N.J. Transit is an arm of the State of New Jersey and "entitled to claim the protections of Eleventh Amendment immunity, which in turn functions as an absolute bar to any claims ... against N.J. Transit...."[6] Our court of appeals in Karns reversed its 1989 en banc decision in Fitchik v. New Jersey Transit Rail Operations, Inc. which after balancing state-treasury funding, status under state law, and autonomy, held N.J. Transit is not entitled to Eleventh Amendment sovereign immunity.[7] Our court of appeals later denied the request for en banc rehearing of Karns.

         In Karns, our court of appeals examined the same three factors as in Fitchik "(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" to determine if N.J. Transit is an "arm of the state."[8] Our court of appeals noted, however, intervening Supreme Court caselaw changed the weighing of the three factors, meaning the first factor, funding, is no longer predominant but all three factors are now equal.[9]

         Our court of appeals held the state-treasury funding factor weighs against finding sovereign immunity because 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."[10]The second factor, status under state law, "strongly favor[ed]" finding sovereign immunity because N.J. Transit is part of New Jersey's executive branch, New Jersey's statutes consider it an instrumentality of the State, " its transit officers are vested with state police powers, and New Jersey state caselaw regards it as an agency of the state.[11] Our court of appeals commented in the twenty-eight years since Fitchik it "has become that much more apparent" New Jersey regards N.J. Transit as an arm of the state.[12] For the third factor, "autonomy of the entity, " our court of appeals agreed with Fitchik finding New Jersey's "fairly 'substantial control' over N.J. Transit counseled in favor of according it Eleventh Amendment immunity."[13]

         Our court of appeals then balanced the three factors finding "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."[14] Our court of appeals concluded N.J. Transit is an arm of the state and entitled to Eleventh Amendment immunity.[15]

         Mr. Flakker argues we should not follow Karns because it is not an en banc decision so it cannot overrule the en banc decision Fitchik. He also argues Karns is not controlling because our court of appeals lacked a factual record and overruled Fitchik based on 1989 facts and failed to examine factual changes from then until 2018. Neither argument has merit.

         Karns is a precedential opinion from our court of appeals. "It is axiomatic that a district court is bound to apply its appellate court's precedent."[16] In Karns, our court of appeals addressed Mr. Flakker's argument Fitchik is still precedential because it is en banc. Our court of appeals analyzed and found it was not bound by Fitchik because of intervening conflicting Supreme Court decisions. In Karns, our court of appeals addressed its general obligation to follow "precedent absent en banc reconsideration, " however, "a panel may revisit a prior holding of the Court 'which conflicts with intervening Supreme Court precedent."[17] Our court of appeals held its "respect for the uniformity of decisions within [the Court of Appeals of the Third Circuit] therefore must succumb" because its en banc holding in Fitchik''s conflicts with Supreme Court's intervening decision in Regents of the University of California.[18]Mr. Flakker's argument Fitchik is still precedential only because it is en banc and Karns is not has no merit because the Supreme Court's decision "unquestionably presents an intervening shift in the applicable Eleventh Amendment immunity analytical framework" meaning our court of appeals was "not bound to follow [its] prior balancing of the factors in Fitchik."[19]

         Mr. Flakker's argument our court of appeals did not have a full factual record is also unpersuasive. Our court of appeals addressed intervening caselaw and facts since it decided Fitchik. In Karns, our court of appeals found two factors, the second and third, weighed in favor of finding sovereign immunity and outweighed the first factor. Besides vague assertions of a deficient factual record, Mr. Flakker failed to identify intervening facts, court decisions, or state laws not reviewed by our court of appeals in Karns which would change the outcome of one of the three factors. Mr. Flakker argued he should be allowed to conduct discovery to show a change in circumstances for N.J. Transit since Fitchik. Mr. Flakker's request for discovery is futile because the analysis for the second and third factors rely on caselaw, statutes, and other public government records fully available to our court of appeals when it decided Karns. As for the first state-treasury funding factor, our court of appeals found this factor weighs against sovereign immunity, and N.J. Transit concedes this fact here, making discovery futile because this factor already weighs in Mr. Flakker's favor.

         In its analysis of the second factor, our court of appeals, after examining intervening cases and facts since Fitchik, reaffirmed this factor weighs in favor of sovereign immunity, noting its finding became "much more apparent since the original Fitchik decision."[20] As for the third factor, our court of appeals examined New Jersey's statutes relating to N.J. Transit and reaffirmed these statutes show New Jersey exercises "substantial ...


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