Don Karns v. Kathleen Shanahan

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 16-2171
____________

DON KARNS,
Appellant

v.

KATHLEEN SHANAHAN; SANDRA MCKEON CROWE;
NEW JERSEY TRANSIT; JOHN DOE SUPERVISORS #1-50

____________

No. 16-2172
____________

ROBERT PARKER,
Appellant

v.

KATHLEEN SHANAHAN; SANDRA MCKEON CROWE;
NEW JERSEY TRANSIT; JOHN DOE SUPERVISORS #1-50
____________
 Appeal from the United States District Court
for the District of New Jersey
(Nos. 3:14-cv-04429 & 3:14-cv-4104)
District Judge: Hon. Mary L. Cooper
__________

Argued: January 26, 2017

Before: CHAGARES, RESTREPO, and ROTH,
Circuit Judges
__________

(Filed: January 11, 2018)

John M. Bloor, Esq. [ARGUED]
Drinker Biddle & Reath
18th and Cherry Streets
One Logan Square, Suite 2000
Philadelphia, PA 19103

F. Michael Daily, Jr., Esq.
216 Haddon Avenue
Sentry Office Plaza, Suite 106
Westmont, NJ 08108

Counsel for Appellants

2
Jennifer J. McGruther, Esq. [ARGUED]
Stephen R. Tucker, Esq.
Benjamin H. Zieman, Esq.
Office of Attorney General of New Jersey
Department of Law & Public Safety
Division of Law
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, NJ 08625

Counsel for Appellees

____________

OPINION
____________

CHAGARES, Circuit Judge.

Don Karns and Robert Parker filed civil rights actions
against the New Jersey Transit Corporation (“NJ Transit”) and
NJ Transit Officers Kathleen Shanahan and Sandra McKeon
Crowe in their official and individual capacities, alleging
violations of the First, Fourth, and Fourteenth Amendments.
Officers Shanahan and Crowe arrested Karns and Parker for
defiant trespass and obstruction of justice after Karns and
Parker refused to vacate the NJ Transit train platform on which
they were preaching without the required permit. The District
Court granted the defendants’ motion for summary judgment
on Eleventh Amendment immunity and qualified immunity

3
grounds. This consolidated appeal followed. For the reasons
that follow, we will affirm the District Court’s judgment.

I.

Karns and Parker are evangelical Christian ministers
who regularly preach the Christian gospel. At around 6:00 a.m.
on June 26, 2012, Karns and Parker were loudly preaching on
the railway platform at the Princeton Junction station, which is
owned by NJ Transit. They also carried signs with Bible verses
on them. Parker had previously been informed that a permit
was required to preach on NJ Transit property pursuant to N.J.
Admin. Code § 16:83-1.1, which provides that persons wishing
to engage in non-commercial speech on NJ Transit property
are required to obtain a non-commercial certificate of
registration.1 Appendix (“App.”) 118. Karns was apparently
unaware of this requirement. App. 244–45. Neither Karns nor

1
Permits are available on a first-come, first-served basis. App.
241. All permits are approved as long as the applicant executes
the permit and states his or her understanding of the relevant
regulations. App. 243. NJ Transit typically issues ten to
twenty permits weekly. App. 243. Indeed, the record shows
that between June 2012 and July 2012, NJ Transit received
forty-six permit requests, including thirty from religious
organizations or entities and fifteen from political campaigns
or entities. App. 116; 118–19. Only two of these requests were
denied, either because the permit was returned too late or not
at all. App. 119–20. Permit holders are required to remain at
specific locations within the station as determined by the
station manager to ensure the safety of NJ Transit customers
and permit holders. App. 241–42.

4
Parker applied for or obtained such a permit during the period
leading up to the incident giving rise to this lawsuit.

Officers Shanahan and Crowe are law enforcement
officers who are NJ Transit employees. NJ Transit maintains
a policy that its officers be familiar with and uniformly enforce
the permitting regulations, and all NJ Transit officers were
instructed on this policy. App. 136; App. 470–71; App. 858.
This policy was communicated in an email dated May 6, 2010
from NJ Transit Deputy Chief Joseph Kelly. App. 136. The
email instructed that in the event a NJ Transit officer observes
an individual engaging in non-commercial speech without a
permit, the officer should explain the permitting rules and
provide information about the permit application process.
App. 136. The email directed that the officer shall take
“appropriate enforcement action” if the individual has been
made aware of the application process and permit requirement
and continues to engage in non-commercial expression. App.
136.

While on patrol on the morning of June 26, 2012,
Officers Shanahan and Crowe received a radio dispatch
informing them that individuals were preaching loudly on the
Princeton Junction station platform. This was not the first
incident of loud preaching on NJ Transit property. Rather,
there had been several incidents involving “[c]ommuters
complaining of loud preaching at different stations” throughout
the NJ Transit system. App. 470.

In response to the dispatch call, Officers Shanahan and
Crowe approached the Princeton Junction station. The officers
were able to hear shouting emanating from the platform from
as far as the parking lot beside the station. Once on the train

5
platform, Officers Shanahan and Crowe approached Karns and
Parker, noticing that Parker’s behavior “was not the normal
behavior of a commuter” and that he “was shaking
uncontrollably.” App. 208. Officer Crowe indicated that she
“wasn’t paying attention to what [the plaintiffs] were saying”
as she approached them. App. 197. Karns and Parker ceased
preaching as the officers approached them. Parker took out his
cell phone to record the encounter, but Officer Shanahan
requested that he put it away. Parker eventually complied. The
officers then asked Karns and Parker whether they had a permit
to speak at the station. They responded that they did not.
Officer Shanahan informed them that a permit was required,
but Parker responded that he had been preaching at the station
for years without any form of permit.

The officers then asked Parker to provide identification.
Parker produced an expired college identification card. Karns
refused to provide any form of identification. Believing that
Karns and Parker were interfering with their investigation by
failing to produce sufficient identification, the officers then
arrested Karns and Parker and charged them each with one
count of obstruction under N.J. Stat. Ann. § 2C:29-1(a) and
one count of obstruction under N.J. Stat. Ann. § 2C:29-1(b).
Karns and Parker were also each charged with one count of
defiant trespass in violation of N.J. Stat. Ann. § 2C:18-3(b) on
the basis of the officers’ belief that engaging in non-
commercial expression on NJ Transit property without a
permit constitutes trespassing.

Karns was ultimately acquitted of all charges. The
obstruction of justice charges against Parker were dismissed,
but he was convicted of defiant trespass. That charge was
ultimately reversed by the New Jersey Superior Court.

6
 On June 26, 2014, Karns and Parker jointly filed a
complaint against NJ Transit and Officers Shanahan and
Crowe in their official and individual capacities. The District
Court ordered Karns to file an amended complaint and Parker
to file a separate complaint. On July 14, 2014, Karns and
Parker filed individual complaints, each alleging violations of
the First, Fourth, and Fourteenth Amendments. The actions
were consolidated for discovery purposes, and NJ Transit and
the officers moved for summary judgment. On March 31,
2016, the District Court granted summary judgment in favor of
all of the defendants and against Karns and Parker.

Karns and Parker filed this timely appeal.

II.

The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. §
1291. We exercise plenary review over a grant of summary
judgment and apply the same standard as the District Court.
Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir.
2016); Beers–Capitol v. Whetzel, 256 F.3d 120, 130 n.6 (3d
Cir. 2001). We review de novo the legal grounds underpinning
a claim of qualified immunity or sovereign immunity. Halsey
v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014); Blanciak v.
Allegheny Ludlum Corp., 77 F.3d 690, 694 (3d Cir. 1996).

III.

Karns and Parker first argue that the District Court erred
by concluding that NJ Transit was an “arm of the state” entitled
to claim immunity from suit in federal court under the Eleventh

7
Amendment. They relatedly argue that NJ Transit is liable for
damages under 42 U.S.C. § 1983 for maintaining
unconstitutional policies relating to the permitting scheme. We
have considered Karns’s and Parker’s arguments and, for the
following reasons, we will affirm the District Court’s
judgment.

A.

The Eleventh Amendment to the United States
Constitution 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.” U.S. Const. amend. XI. The Supreme
Court in Hans v. Louisiana, 134 U.S. 1 (1890), “extended the
Eleventh Amendment’s reach to suits by in-state plaintiffs,
thereby barring all private suits against non-consenting States
in federal court.” Lombardo v. Pa., Dep’t of Pub. Welfare, 540
F.3d 190, 194 (3d Cir. 2008) (emphasis omitted). Immunity
from suit in federal court under the Eleventh Amendment is
designed to preserve the delicate and “proper balance between
the supremacy of federal law and the separate sovereignty of
the States.” Alden v. Maine, 527 U.S. 706, 757 (1999). The
Eleventh Amendment serves two fundamental imperatives:
safeguarding the dignity of the states and ensuring their
financial solvency. See Hess v. Port Auth. Trans-Hudson
Corp., 513 U.S. 30, 52 (1994) (identifying “States’ solvency
and dignity” as the concerns underpinning the Eleventh
Amendment).

It is “well established that even though a State is not
named a party to the action, the suit may nonetheless be barred

8
by the Eleventh Amendment.” Edelman v. Jordan, 415 U.S.
651, 663 (1974).2 The Eleventh Amendment immunizes from
suit in federal court both non-consenting states and those
entities that are so intertwined with them as to render them
“arms of the state.” Bowers v. Nat’l Collegiate Athletic Ass’n,
475 F.3d 524, 545 (3d Cir. 2007), amended on reh’g (Mar. 8,
2007). Eleventh Amendment immunity does not, however,
extend to counties and municipalities despite their status as
political subdivisions of a state. See Bolden v. Se. Pa. Transp.
Auth., 953 F.2d 807, 813 (3d Cir. 1991) (en banc). In
determining whether an entity is entitled to immunity, we must
consider “the provisions of state law that define the agency’s
character,” but the ultimate question of “whether a particular
state agency [is] . . . an arm of the State, and therefore ‘one of
the United States’ within the meaning of the Eleventh
Amendment, is a question of federal law.” Regents of the
Univ. of Cal. v. Doe, 519 U.S. 425, 430 n.5 (1997).

We apply a fact-intensive three-part test to determine
whether an entity is an “arm of the state” for Eleventh
Amendment purposes. Fitchik v. N.J. Transit Rail Operations,
Inc., 873 F.2d 655, 659 (3d Cir. 1989) (en banc) (citing Urbano
v. Bd. of Managers, 415 F.2d 247, 250–51 (3d Cir. 1969)). We

2
As we have discussed in other contexts, “the Eleventh
Amendment does not define the scope of the States’ sovereign
immunity; it is but one particular exemplification of that
immunity.” Lombardo, 540 F.3d at 195 (quoting Fed. Mar.
Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 753 (2002)).
This case principally concerns only immunity from suit in
federal court — Eleventh Amendment immunity — and not
immunity from liability, and thus we address only that aspect
of sovereign immunity herein.

9
examine the following factors: “(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.” Bowers, 475 F.3d at 546. Subsequent to
“identifying the direction in which each factor points, we
balance them to determine whether an entity amounts to an arm
of the State.” Maliandi v. Montclair State Univ., 845 F.3d 77,
84 (3d Cir. 2016).

We historically considered the first factor — the state-
treasury factor — as “most important.” Fitchik, 873 F.2d at
659; see also Bolden, 953 F.2d at 818. Hence, in Fitchik itself,
we concluded that because the funding factor disfavored
immunity and because the remaining two factors — status
under state law and the degree of autonomy — only “slightly”
favored a finding of immunity, NJ Transit was not entitled to
claim Eleventh Amendment immunity. 873 F.2d at 664. Since
our decision in Fitchik, however, we have “recalibrated the
factors,” Maliandi, 845 F.3d at 84, in light of the Supreme
Court’s intervening precedent in Regents of the University of
California v. Doe. In Regents of the University of California,
the Supreme Court recognized that “it is the entity’s potential
legal liability, rather than its ability or inability to require a
third party to reimburse it, or to discharge the liability in the
first instance, that is relevant” to the Eleventh Amendment
inquiry. 519 U.S. at 431. The Court emphasized that the
inquiry into immunity from suit in federal court is not merely
“a formalistic question of ultimate financial liability.” Id.; see
also Cooper v. Se. Pa. Transp. Auth., 548 F.3d 296, 302 (3d
Cir. 2008).

The Supreme Court’s holding in Regents of the
University of California has led us to depart from the analytical

10
framework articulated in Fitchik, and we thus “no longer
ascribe primacy to the [state-treasury] factor.” Benn v. First
Judicial Dist. of Pa., 426 F.3d 233, 239 (3d Cir. 2005). Under
this evolved approach, none of the three Fitchik factors is
“predominant.” Cooper, 548 F.3d at 301. Rather, each of the
factors is considered “co-equal,” Benn, 426 F.3d at 240, and
“on the same terms,” Cooper, 548 F.3d at 302. We emphasize
that courts should not simply engage in a formulaic or
mechanical counting up of the factors, nor do we do so
here. Rather, each case must be considered on its own terms,
with courts determining and then weighing the qualitative
strength of each individual factor in the unique factual
circumstances at issue. See Maliandi, 845 F.3d at 84
(explaining that each cases requires a “fresh analysis” and
“‘individualized determinations’ for each entity claiming
Eleventh Amendment immunity” (quoting Bowers v. Nat’l
Collegiate Athletic Ass’n, 475 F.3d 524, 546 (3d Cir.
2007))). While the Fitchik Court’s analysis of each individual
factor “remains instructive,” Cooper, 548 F.3d at 302, we
consider and weigh each factor on the record before us today.

Notwithstanding this fundamental shift in our approach
to Eleventh Amendment immunity analysis, Karns and Parker
argue that the balancing analysis we conducted in Fitchik must
control the outcome of this case. Karns and Parker specifically
maintain that NJ Transit is collaterally estopped3 from raising

3
Collateral estoppel, also known as issue preclusion, prohibits
relitigation of an issue that has been fully and fairly litigated
previously. The elements for collateral estoppel are satisfied
when: “(1) the issue sought to be precluded [is] the same as
that involved in the prior action; (2) that issue [was] actually
litigated; (3) it [was] determined by a final and valid judgment;

11
an Eleventh Amendment immunity defense because in Fitchik
we determined that the three factors, on balance, weighed
against affording Eleventh Amendment immunity to NJ
Transit. See Karns and Parker Br. 14–15. This argument
overlooks the significant evolution of Supreme Court
jurisprudence and our own conforming law in this area since
Fitchik. Contrary to Karns’s and Parker’s suggestion,
collateral estoppel is not appropriate when the “controlling
facts or legal principles have changed significantly since the
[prior] judgment.” Montana v. United States, 440 U.S. 147,
155 (1979); see also Duvall v. Att’y. Gen. of United States, 436
F.3d 382, 391 (3d Cir. 2006) (“[Collateral estoppel] . . . will
not preclude relitigation of the issue when there is . . . a material
intervening change in governing law.”). Collateral estoppel,
then, does not preclude us from reconsidering our balancing of
the Fitchik factors in light of intervening Supreme Court
precedent.

Our Internal Operating Procedures also do not prevent
us from revisiting the balancing analysis conducted in Fitchik.
Pursuant to those procedures, “the holding of a panel in a

and (4) the determination [was] essential to the prior
judgment.” Nat’l R.R. Passenger Corp. v. Pa. Pub. Util.
Comm’n, 342 F.3d 242, 252 (3d Cir. 2003) (alterations in
original) (quoting Nat’l R.R. Passenger Corp. v. Pa. Pub. Util.
Comm’n, 288 F.3d 519, 524–25 (3d Cir. 2002)). Karns and
Parker here invoke a variant of this doctrine, known as
offensive non-mutual collateral estoppel, in which “a plaintiff
[seeks] to estop a defendant from relitigating the issues which
the defendant previously litigated and lost against another
plaintiff.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322,
329 (1979).

12
precedential opinion is binding on subsequent panels.” 3d Cir.
I.O.P. 9.1. We are therefore generally obligated to follow our
precedent absent en banc reconsideration. United States v.
Tann, 577 F.3d 533, 541 (3d Cir. 2009). Nonetheless, a panel
may revisit a prior holding of the Court “which conflicts with
intervening Supreme Court precedent.” In re Krebs, 527 F.3d
82, 84 (3d Cir. 2008); see also Council of Alt. Political Parties
v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999) (observing that
reconsideration of an issue decided by another panel of our
Court in a prior appeal is appropriate when there has been an
intervening change in law). Indeed, we are “compelled to
apply the law announced by the Supreme Court as we find it
on the date of our decision.” Tann, 577 F.3d at 541 (quoting
United States v. City of Philadelphia, 644 F.2d 187, 192 n.3
(3d Cir. 1980)); see also Mennen Co. v. Atl. Mut. Ins. Co., 147
F.3d 287, 294 n.9 (3d Cir. 1998) (observing that our Court’s
Internal Operating Procedures must “give way when the prior
panel’s holding is in conflict with Supreme Court precedent”).
Our respect for the uniformity of decisions within this Court
therefore must succumb when a prior holding of our Court —
even an en banc decision — conflicts with a subsequent
Supreme Court holding. See United States v. Singletary, 268
F.3d 196, 202 (3d Cir. 2001).

Adherence to our holding in Fitchik here must yield in
light of the Supreme Court’s Regents of the University of
California decision, which unquestionably presents an
intervening shift in the applicable Eleventh Amendment
immunity analytical framework. Further, a reflexive
application of our original Fitchik framework here would be at
odds with the analytical approach employed by our esteemed
colleagues in many other Eleventh Amendment cases, thus
generating a potentially fractured body of jurisprudence.

13
Compare Cooper, 548 F.3d at 301, Febres v. Camden Bd. of
Educ., 445 F.3d 227, 235–36 (3d Cir. 2006), and Benn, 426
F.3d at 239, with Fitchik, 873 F.2d at 664. In these
circumstances, we are not bound to follow our prior balancing
of factors in Fitchik. We must instead examine each of the
three Fitchik factors, balancing them equally, to determine
whether NJ Transit’s relationship with the state entitles it to
immunity under the “holistic analysis” compelled by the
Regents of the University of California decision, see Benn, 426
F.3d at 241, and to which we have adhered in our subsequent
case law.

1.

Turning to the analysis of whether an entity is an arm of
the state, we first ask “[w]hether the money that would pay the
judgment would come from the state,” which includes
considering “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.” Fitchik, 873 F.2d
at 659. Our Court has observed that the “crux of the state-
treasury criterion” is not whether the state will be the principal
source of any funding, but rather whether the state is “legally
responsible for the payment of [the] judgment.” Febres, 445
F.3d at 233.

The Fitchik Court concluded that NJ Transit is
financially independent from the state. See Fitchik, 873 F.2d
at 660–62 (reviewing relevant financial details and observing
that NJ Transit’s “money does not come predominantly from
the state”). The parties have not offered updated financial
information to undermine this assessment. NJ Transit instead

14
argues that because it relies on state funds to meet its operating
deficit, an adverse judgment would have the practical effect of
impacting the state treasury. NJ Transit Br. 27–32. NJ Transit,
in support of this position, relies upon two cases in which
Courts of Appeals have deemed transit operations arms of the
state: Alaska Cargo Transportation, Inc. v. Alaska R.R. Corp.,
5 F.3d 378 (9th Cir. 1993) and Morris v. Washington
Metropolitan Area Transit Authority, 781 F.2d 218 (D.C. Cir.
1986). In Alaska Cargo Transportation, Inc., the Court of
Appeals for the Ninth Circuit afforded Eleventh Amendment
immunity to the Alaska Railroad Corporation. Although the
state disclaimed liability for it by statute, Alaska still provided
it a “financial safety net of broad dimension,” largely because
federal law effectively required Alaska to keep the railroad
operational. Alaska Cargo Transp., Inc., 5 F.3d at 381
(“Significantly, federal law further provides that, until 1994,
the State of Alaska must continue to provide rail carrier
services across its system.”). Similarly, in Morris, Eleventh
Amendment immunity was afforded to the Washington
Metropolitan Area Transit Authority (“WMATA”), an
interstate transit system created by a congressional compact
whose signatories were Maryland, Virginia, and the District of
Columbia. 781 F.2d at 219. The Court of Appeals for the
District of Columbia Circuit determined that the practical
result of any judgment against WMATA would be against the
treasuries of Maryland and Virginia. Id. at 225–26. As in
Alaska Cargo Transportation, Inc., the Morris Court’s
conclusion was premised on the fact that congressional funding
for the system was contingent on the states’ agreement to meet
WMATA’s operating deficits. Id. NJ Transit maintains that
both cases are applicable here, yielding the conclusion that the
state-treasury factor likewise favors immunity for NJ Transit.

15
 We do not agree, and NJ Transit’s reliance on both cases
is misplaced. We have consistently observed that both Alaska
Cargo Transportation and Morris are inapplicable when
Congress has not “put a proverbial ‘gun to the head’ of the
State to sustain the entity even without a legal obligation.”
Maliandi, 845 F.3d at 87 n.7; see also Cooper, 548 F.3d at 305
(discussing but rejecting reliance on both cases because of the
lack of congressional coercion); Febres, 445 F.3d at 235 n.9
(distinguishing the cases to the “limited circumstances” under
which federal law essentially requires the state to keep afloat
the agency claiming immunity). That is plainly not the case
here, where the state is under no legal or other obligation to pay
NJ Transit’s debts or to reimburse NJ Transit for any
judgments that it pays. See N.J. Stat. Ann. § 27:25-17. Indeed,
this case is much more similar to the Cooper case, where the
state treasury factor did not favor immunity because the
transportation agency claiming immunity could “satisfy the
deficit itself by raising fares, reducing service, and/or laying
off employees.” Cooper, 548 F.3d at 305. Moreover, New
Jersey may choose to appropriate funds to help NJ Transit
cover its operating deficit, but it is not obligated to do so. To
this end, NJ 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. NJ Transit Br. 31.
We therefore reject NJ Transit’s suggestion that the “practical
effect” of a judgment would be equivalent to a “legal
obligation” sufficient to satisfy the funding factor. See
Maliandi, 845 F.3d at 87 n.7. The state-treasury factor, as a
result, does not favor a finding of immunity in this case.

2.

16
 We turn next to the second Fitchik factor, which
requires consideration of the status of the agency under state
law. Considerations include “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.” Fitchik, 873 F.2d
at 659. We have also considered “the entity’s authority to
exercise the power of eminent domain, application of state
administrative procedure and civil service laws to the entity,
the entity’s ability to enter contracts and make purchases on its
own behalf, and whether the entity owns its own real estate.”
Maliandi, 845 F.3d at 91. The Fitchik Court concluded that
“[b]ecause [NJ Transit’s] status under New Jersey law is
uncertain, the analysis of this factor does not significantly help
in determining whether [NJ Transit] is entitled to immunity
from suit in federal court.” Fitchik, 873 F.2d at 662. In the
twenty-eight years since our Court’s decision in Fitchik,
however, it has become much more apparent that New Jersey
law regards NJ Transit as an arm of the state. The state law
factor therefore weighs strongly in favor of immunity.

There is considerable indication that New Jersey law
considers NJ Transit an arm of the state. First, consistent with
the New Jersey Constitution, NJ Transit is “allocated within
the Department of Transportation,” N.J. Stat. Ann. § 27:25-4,
which is a principal department within the Executive Branch
of the State of New Jersey, N.J. Stat. Ann. § 27:1A-2. NJ
Transit, moreover, is statutorily “constituted as an
instrumentality of the State exercising public and essential
governmental functions.” N.J. Stat. Ann. § 27:25-4. Although
NJ Transit can sue and be sued, N.J. Stat. Ann. § 27:25-5, this
is not dispositive. Cf. Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 (1999)

17
(observing that a state does not “consent to suit in federal court
merely by stating its intention to ‘sue and be sued’”). NJ
Transit is also considered state property for tax purposes and is
exempt from state taxation. N.J. Stat. Ann. § 27:25-16. These
factors favor immunity. See, e.g., Christy v. Pa. Tpk. Comm’n,
54 F.3d 1140, 1148 (3d Cir. 1995) (noting that exemption from
state property taxation is an attribute associated with
sovereignty); Skehan v. State Sys. of Higher Educ., 815 F.2d
244, 249 (3d Cir. 1987) (concluding that immunity from local
taxation of real property favors immunity). NJ Transit also has
the power of eminent domain, N.J. Stat. § 27:25-13(a), (c)(1),
which likewise favors immunity. See, e.g., Christy, 54 F.3d at
1148 (recognizing that the power of eminent domain is
associated with sovereignty). Finally, NJ Transit officers are
vested with “general authority, without limitation, to exercise
police powers and duties . . . in all criminal and traffic matters
at all times throughout the State.” N.J. Stat. Ann. § 27:25-
15.1(a). This fact, too, supports the conclusion that New Jersey
law regards NJ Transit as exercising the official police powers
of the state.

State case law also regards NJ Transit as an agency of
the state. For instance, in Muhammad v. New Jersey Transit,
821 A.2d 1148 (N.J. 2003), the New Jersey Supreme Court
surveyed its relevant case law and, to “remove any doubt,”
declared that NJ Transit “is a public entity within the ambit of
the [New Jersey Tort Claims Act].” Id. at 1153; see also
Cavuoti v. N.J. Transit Corp., 735 A.2d 548, 563 (N.J. 1999)
(holding that the New Jersey discrimination statute “allows the
award of punitive damages against public entities” and
affirming an award of punitive damages against NJ
Transit); Weiss v. N.J. Transit, 608 A.2d 254, 258 (N.J. 1992)
(holding that NJ Transit is entitled to legislative immunity as a

18
public entity); Maison v. NJ Transit Corp., No. A-1761-14T2,
2015 WL 4067411, at *3 (N.J. Super. Ct. App. Div. (July 6,
2015) (unpublished) (“NJ Transit is a public entity.”); Lopez
v. N.J. Transit, 684 A.2d 986, 988 (N.J. Super. Ct. App. Div.
1996) (“Plaintiffs’ claim [is] against New Jersey Transit, a
public entity”). Several other New Jersey cases have also
determined that NJ Transit is a surrogate of the state or is a
state agency responsible for performing essential
governmental functions. See, e.g., Davis v. N.J. Transit, No.
A-4901-10T1, 2012 WL 3192716, at *3 (N.J. Super. Ct. App.
Div. Aug. 8, 2012) (unpublished) (“[NJ Transit] is a ‘surrogate
of the State.’” (quoting Geod Corp. v. N.J. Transit Corp., 678
F. Supp. 2d 276, 288 (D.N.J. 2009))); N.J. Transit PBA Local
304 v. N.J. Transit Corp., 675 A.2d 1180, 1181 (N.J. Super. Ct.
App. Div. 1996) (“[NJ Transit] is a state agency responsible
for operating and improving public transportation in New
Jersey.”), aff’d, 701 A.2d 1243 (N.J. 1997); see also N.J.
Transit Corp. v. Mori, 89 A.3d 237, 239-40 (N.J. Super. Ct.
App. Div. 2014) (holding, in a condemnation action instituted
by NJ Transit, that “[b]ecause NJ Transit was a public entity,
it was entitled to a discounted 2.3 to 1 ratio of filled wetlands
to mitigation credits. A private developer, such as Mori, would
have paid a high ratio.”).4 In light of this case law, it is apparent
that the second Fitchik factor strongly favors a finding of

4
Our dissenting colleague does not address these significant
changes in New Jersey law, all of which post-dated
our Fitchik decision. Even assuming that the factual record
has remained largely unchanged since our Court
decided Fitchik, we cannot consider that “status under state
law” factor as it was in 1989. Rather, we must contend with
relevant legal developments in the twenty-eight years since we
first considered the issue.

19
immunity — a determination that has become that much more
apparent since the original Fitchik decision.

3.

Third, we must consider the autonomy of the entity.
The Fitchik Court concluded that state’s fairly “substantial
control” over NJ Transit counseled in favor of according it
Eleventh Amendment immunity. Fitchik, 873 F.2d at 664.
Our consideration of this factor is largely in accord. NJ Transit
is subject to several operational constraints by the New Jersey
Legislature and the Governor, who is also responsible for
appointing the entire NJ Transit governing board, which is
composed of several members of the Executive Branch. N.J.
Stat. Ann. § 27:25-4(b); see, e.g., Bowers, 475 F.3d at 548–49
(holding that a governor’s appointment of a state university’s
entire governing board demonstrated a lack of autonomy
favoring immunity); see also Irizarry-Mora v. Univ. of P.R.,
647 F.3d 9, 15 (1st Cir. 2011) (“In further support of the
proposition that the University is an arm of the
Commonwealth, we note that ten of the thirteen members of its
governing board are appointed by the governor.”); Md.
Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 257 (4th
Cir. 2005). The Commissioner of Transportation, an Executive
Branch official who is the chairman of the NJ Transit
governing board, has the power and duty to review NJ Transit’s
expenditures and budget. N.J. Stat. Ann. § 27:25-20(a).
Moreover, NJ Transit must annually report on its condition and
its budget to the Governor and the Legislature and is subject to
audit at any time. N.J. Stat. Ann. § 27:25-20. The Governor
can veto any action taken by NJ Transit’s governing board.
N.J. Stat. Ann. § 27:25-4(f); see also Fitchik, 873 F.2d at 664
(“[T]he degree of control [of NJ Transit] by the governor is

20
fairly substantial.”). Certain of its acquisitions are also subject
to legislative veto. See N.J. Stat. Ann. § 27:25-13(h).

All of these facts suggest that NJ Transit is an
instrumentality of the state, exercising limited autonomy apart
from it. See, e.g., Bowers, 475 F.3d at 548–49. We conclude
that the autonomy factor weighs in favor of immunity.

* * * * *

After giving equal consideration to all three factors, we
weigh and balance them. We no longer adhere to the balancing
analysis conducted in Fitchik in light of intervening changes in
Eleventh Amendment immunity analysis articulated by the
Supreme Court. Applying the revised analysis, we determine
that 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. Weighing and balancing the qualitative
strength of each factor in the context of the circumstances
presented, we hold that NJ Transit is an arm of the state. We
therefore conclude that NJ Transit is entitled to claim the
protections of Eleventh Amendment immunity, which in turn
functions as an absolute bar to any claims in this case against
NJ Transit and the officers in their official capacities.5

5
Defendants sued in their official capacities are entitled to
claim the same Eleventh Amendment immunity that the
“entity, qua entity, may possess.” Kentucky v. Graham, 473
U.S. 159, 167 (1985).

21
 B.

Karns and Parker argue that NJ Transit is liable for
damages under 42 U.S.C. § 1983 for purportedly maintaining
an unconstitutional custom of discriminatory enforcement of
the permitting requirement. Karns and Parker Br. 24. They
also claim that NJ Transit maintained a policy of promoting
illegal arrests unsupported by probable cause. Karns and
Parker Br. 33–35. Neither claim is viable.

A plaintiff seeking relief under 42 U.S.C. § 1983 must
establish that the individual or entity who allegedly committed
the constitutional violation is a “person” for the purposes of §
1983. 42 U.S.C. § 1983; see also Indep. Enters. Inc. v.
Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1172 (3d Cir.
1997). “States or governmental entities that are considered
‘arms of the State’ for Eleventh Amendment purposes” are not
“persons” under § 1983. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 70 (1989); see also Howlett By & Through
Howlett v. Rose, 496 U.S. 356, 365 (1990) (“Will establishes
that the State and arms of the State, which have traditionally
enjoyed Eleventh Amendment immunity, are not subject to suit
under § 1983 in either federal court or state court.”). As
discussed at length above, see Section III(A), supra, NJ Transit
is an arm of the state. The Eleventh Amendment therefore
functions as a complete bar, immunizing NJ Transit from any

22
§ 1983 liability.6 Accordingly, the District Court did not err in
granting summary judgment in favor of NJ Transit as to the
claims that it maintained unconstitutional policies.7

IV.

Karns and Parker also brought several claims of
constitutional wrongdoing pursuant to 42 U.S.C. § 1983
against Officers Crowe and Shanahan in their individual
capacities. Karns and Parker specifically alleged that the
officers violated: (1) the First and Fourteenth Amendments by
selectively enforcing N.J. Admin. Code § 16:83-1.4; (2) the
First Amendment by arresting them in retaliation for their
protected speech; (3) the Fourth Amendment by arresting them
without probable cause; and (4) the First Amendment by

6
We emphasize that the Eleventh Amendment and § 1983
determinations are “analytically distinct,” although sometimes
overlapping. Estate of Lagano v. Bergen Cty. Prosecutor’s
Office, 769 F.3d 850, 857 (3d Cir. 2014); see also Callahan v.
City of Philadelphia, 207 F.3d 668, 669 (3d Cir. 2000). Where,
as here, the entity claiming immunity is determined to be an
arm of the state, however, it is beyond dispute that it is not a
“person” for § 1983 purposes. See Will, 491 U.S. at 71.
7
NJ Transit additionally argues that summary judgment is
appropriate because Karns and Parker have failed to adduce
sufficient evidence to support their unconstitutional permitting
policy. NJ Transit Br. 50. The District Court did not reach the
factual underpinnings of this claim against NJ Transit. We,
too, deem it unnecessary to analyze this claim because it is
apparent that Karns and Parker cannot overcome the Eleventh
Amendment bar in this case.

23
curtailing their right to record police officers during an
investigative detention. The District Court concluded that
Crowe and Shanahan were entitled to qualified immunity as to
each of these claims. For the following reasons, we agree.

A plaintiff seeking relief under 42 U.S.C. § 1983 must
demonstrate “that the defendants, acting under color of law,
violated the plaintiff’s federal constitutional or statutory rights,
and thereby caused the complained of injury.” Elmore v.
Cleary, 399 F.3d 279, 281 (3d Cir. 2005). The doctrine of
qualified immunity, however, insulates government officials
from lawsuits, shielding them “from undue interference with
their duties and from potentially disabling threats of liability.”
Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir.
2005) (quoting Elder v. Holloway, 510 U.S. 510, 514 (1994)).
In determining the applicability of qualified immunity, courts
examine two prongs. First, whether the facts alleged (in the
context of a motion to dismiss or for judgment on the
pleadings) or shown (in the context of a motion for summary
judgment or a trial) “make out a violation of a constitutional
right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Second, “whether the right at issue was ‘clearly established’ at
the time of defendants’ alleged
misconduct.” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)). A right is “clearly established” when its “contours . .
. [are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Wilson
v. Layne, 526 U.S. 603, 615 (1999) (quotation marks omitted).
Courts need not evaluate the two prongs sequentially, Pearson,
555 U.S. at 236, and the failure of either prong will result in
application of qualified immunity, James v. City of Wilkes-
Barre, 700 F.3d 675, 679 (3d Cir. 2012).

24
 A.

Karns and Parker first argue that the officers were not
entitled to qualified immunity on their selective enforcement
claim8 under the First and Fourteenth Amendments. Upon
reviewing the record and considering the evidence in the light
most favorable to the plaintiffs, we agree with the District
Court that Karns and Parker failed to establish a selective
enforcement claim adequate to survive a motion for summary
judgment. Saucier, 533 U.S. at 201 (“If no constitutional right
would have been violated were the allegations established,
there is no necessity for further inquiries concerning qualified
immunity.”).

A plaintiff seeking to establish a selective enforcement
claim must demonstrate (1) that he was treated differently from
other similarly situated individuals;9 and (2) that this selective
treatment was based on an unjustifiable standard, such as race,
religion, some other arbitrary factor or to prevent the exercise
of a fundamental right. Dique v. N.J. State Police, 603 F.3d
181, 184 n.5 (3d Cir. 2010); Gov’t of V.I. v. Harrigan, 791 F.2d
34, 36 (3d Cir. 1986). Hence, to maintain a selective

8
This claim arises from Karns’s and Parker’s contention that
NJ Transit’s permitting policy was selectively enforced against
religious speech or speech that the officers deemed
“subjectively objectionable.” Karns and Parker Br. 19.
9
“Persons are similarly situated . . . when they are alike in ‘all
relevant aspects.’” Startzell v. City of Philadelphia, 533 F.3d
183, 203 (3d Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S.
1, 10 (1992)).

25
enforcement claim, a plaintiff must provide “evidence of
discriminatory purpose, not mere unequal treatment or adverse
effect.” Jewish Home of E. Pa. v. Ctrs. for Medicare &
Medicaid Servs., 693 F.3d 359, 363 (3d Cir. 2012); see also
Zahra v. Town of Southold, 48 F.3d 674, 684 (2d Cir. 1995)
(recognizing that the mere fact that similarly situated parties
are treated differently does not by itself establish an actionable
selective enforcement claim). A federal constitutional
violation does not exist merely because of the “exercise of
some selectivity in enforcement.” Oyler v. Boles, 368 U.S.
448, 456 (1962); see also Gardenhire v. Schubert, 205 F.3d
303, 319 (6th Cir. 2000) (“[T]here is a strong presumption that
the state actors have properly discharged their official duties,
and to overcome that presumption the plaintiff must present
clear evidence to the contrary; the standard is a demanding
one.” (quoting Stemler v. City of Florence, 126 F.3d 856, 873
(6th Cir. 1997))).

Karns and Parker have proffered insufficient evidence
to support a cognizable selective enforcement claim as a matter
of law. Indeed, apart from their wholly generalized allegation
that “selective enforcement of the law by a state officer is a
violation of the constitution,” Karns and Parker Br. 20, Karns
and Parker point to no evidence that Officers Shanahan and
Crowe treated similarly situated individuals differently. They
do not even identify other individuals who might be similarly

26
situated.10 Nor have Karns and Parker offered evidence of
discriminatory purpose. This lack of record evidence compels
us to conclude that the selective enforcement claim lacks merit.
See, e.g., Jewish Home of E. Pa., 693 F.3d at 363 (affirming
judgment as a matter of law on a selective enforcement claim
when the plaintiff failed to show that it was treated differently
from other similarly situated entities and did not show
discriminatory purpose); Doninger v. Niehoff, 642 F.3d 334,
357 (2d Cir. 2011) (affirming summary judgment for the
defendants when the plaintiff failed to produce any comparator
evidence); Zahra, 48 F.3d at 684. Even without inquiring as to
whether the right Karns and Parker identify here is clearly
established, the failure to establish a factual basis for the
purported constitutional violation is an independently
sufficient ground on which to affirm the grant of summary
judgment in favor of the individual officers. See, e.g., Spady
v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015)
(holding that courts may affirm on either prong of the qualified

10
The sole evidence that Karns and Parker proffer in support
of this claim is the deposition testimony of two NJ Transit
employees who are responsible for preparing and approving
non-commercial speech permits. App. 559, 628. According to
that testimony, political candidates are not required to obtain
permits to speak on NJ Transit property. App. 559, 628. Karns
and Parker have not, however, offered any factual detail as to
the identities of the political candidates against whom the
permit requirement was purportedly unenforced. Karns and
Parker have also adduced no facts suggesting that Crowe and
Shanahan were aware of such a purportedly discriminatory
policy, much less involved in executing it with respect to the
individual plaintiffs in this case.

27
immunity analysis). Accordingly, the officers were entitled to
qualified immunity and summary judgment was properly
granted on the selective enforcement claim.

B.

We next address Karns’s and Parker’s retaliation claim.
To establish unlawful retaliation under the First Amendment,
a plaintiff must prove: “(1) constitutionally protected conduct,
(2) retaliatory action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights, and (3) a
causal link between the constitutionally protected conduct and
the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285,
296 (3d Cir. 2006) (citing Mitchell v. Horn, 318 F.3d 523, 530
(3d Cir. 2003)). Karns and Parker maintain that there was a
genuine factual dispute as to whether their exercise of their
First Amendment rights — namely, their protesting of the
officers’ demands and their attempt to make a video recording
of the officers — caused their subsequent arrest, thus
precluding the entry of summary judgment. Karns and Parker
Br. 19, 23.

Even assuming Karns and Parker could show sufficient
facts supporting their retaliation claim, their claim fails on the
“clearly established” prong of the qualified immunity analysis.
Karns and Parker maintain that the law was clearly established
that the First Amendment prohibits government officials from
subjecting individuals to retaliation for their protected speech.
Karns and Parker Br. 22–23. This articulation of the relevant
right, however, “put[s] the question of whether the ‘clearly
established’ standard has been met at much too high a level of
abstraction.” Zaloga v. Borough of Moosic, 841 F.3d 170, 175
(3d Cir. 2016); see also Wilson, 526 U.S. at 615; Sharp v.

28
Johnson, 669 F.3d 144, 159 (3d Cir. 2012). The proper inquiry,
instead, is whether Karns and Parker had a “more specific right
to be free from retaliatory arrest that is otherwise supported by
probable cause.” Zaloga, 841 F.3d at 175 (quoting Reichle v.
Howards, 566 U.S. 658, 665 (2012)).

The Supreme Court’s decision in Reichle, which was
decided just weeks before Karns’s and Parkers’ arrests,
conclusively disposes of this inquiry. The Court, on the facts
of that case, held that “it was not clearly established that an
arrest supported by probable cause could give rise to a First
Amendment violation.” 566 U.S. at 670. As we discuss in the
next section, ample probable cause supported the arrests of
Karns and Parker. Given the state of the law at the relevant
time period, it was therefore reasonable for the officers to
believe that an arrest otherwise supported by probable cause
would not violate Karns’s and Parker’s First Amendment
rights. The District Court did not err in concluding that the
officers were entitled to qualified immunity on the retaliation
claim.

C.

We turn to Karns’s and Parker’s claim alleging that the
officers lacked probable cause to arrest them. As noted, the
determination of whether there was sufficient probable cause
to support Karns’s and Parker’s arrests is relevant both to their
First Amendment retaliation claim and to their Fourth
Amendment claim that the officers lacked a reasonably
objective basis for their arrests.

Officers who “reasonably but mistakenly conclude that
probable cause is present” are entitled to qualified immunity.

29
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting Anderson
v. Creighton, 483 U.S. 635, 641 (1987)). We employ an
objective test to determine whether an arrest is without
probable cause, looking to “the facts available to the officers at
the moment of arrest.” Barna v. City of Perth Amboy, 42 F.3d
809, 819 (3d Cir. 1994) (quoting Beck v. Ohio, 379 U.S. 89,
96 (1964)). Probable cause exists when “the facts and
circumstances within the arresting officer’s knowledge are
sufficient in themselves to warrant a reasonable person to
believe that an offense has been or is being committed by the
person to be arrested.” United States v. Cruz, 910 F.2d 1072,
1076 (3d Cir. 1990). Although the probable cause inquiry is
usually a question for the jury, courts “may conclude in the
appropriate case . . . that probable cause did exist as a matter
of law if the evidence, viewed most favorably to [the p]laintiff,
reasonably would not support a contrary factual finding.”
Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997).

We look to the elements of the offense to determine
whether an arrest was supported by probable cause. See
Wright, 409 F.3d at 602. Karns and Parker were first charged
with trespass under N.J. Stat. Ann. § 2C:18-3(b). Under that
statute, “[a] person commits a petty disorderly persons offense
if, knowing that he is not licensed or privileged to do so, he
enters or remains in any place as to which notice against
trespass is given by . . . [a]ctual communication to the actor.”
N.J. Stat. Ann. § 2C:18-3(b). Generally, there will be
“sufficient circumstantial evidence to constitute probable
cause” when there is “information supporting a conclusion that
the potential defendant in a trespass case was not licensed or
privileged and that he was so advised by the custodian of the
property.” Paff v. Kaltenbach, 204 F.3d 425, 437 (3d Cir.
2000). This will “normally be true even where the potential

30
defendant, upon being confronted by a law enforcement
officer, makes a claim of entitlement to be on the premises.”
Id.

The record in this case indicates that Parker knew that a
permit was required to engage in speech at the station. App.
118, 244–45. Moreover, the officers affirmatively informed
Karns and Parker of this requirement before requesting that
they vacate the platform. Karns and Parker were, thus, well
aware that they were not licensed to be on the train platform.
Karns and Parker also led the officers to believe that they
would remain on the platform despite knowing that they lacked
the requisite permit. These facts amply support the officers’
determination of probable cause that Karns and Parker were
engaged in criminal trespass. See Paff, 204 F.3d at 437.

As a result, Officers Shanahan and Crowe were entitled
to qualified immunity on their claim that the officers arrested
them without probable cause.11

11
We decline to address whether Karns’s and Parker’s failure
to produce valid identification created probable cause for the
obstruction offenses, N.J. Stat. Ann. § 2C:29-1(a), (b). The
existence of probable cause as to the trespass offense is an
independently adequate ground on which to affirm the award
of qualified immunity to the officers on the Fourth Amendment
claim. See Barna, 42 F.3d at 819 (“[A]s long as the officers
had some reasonable basis to believe [the arrestee] had
committed a crime, the arrest is justified as being based on
probable cause. Probable cause need only exist as to any
offense that could be charged under the circumstances.”
(emphasis added)).

31
 D.

Turning finally to Karns’s and Parker’s “right to record”
claim, it was not clearly established as of the date of Karns’s
and Parker’s arrests that there was a First Amendment right to
videotape police officers during an investigative stop. In Kelly
v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), we
concluded that there was “insufficient case law establishing a
right to videotape police officers during a traffic stop to put a
reasonably competent officer on ‘fair notice’ that seizing a
camera or arresting an individual for videotaping police during
the stop would violate the First Amendment.” Id. at 262. In
light of this precedent, it was not unreasonable for the officers
to regard their conduct as lawful. Moreover, even if the instant
case is distinguishable from Kelly on the basis that the
encounter here was not a traffic stop, Karns and Parker have
not offered a Circuit-level case supporting their position that
the right to record was clearly established. See Taylor v.
Barkes, 135 S. Ct. 2042, 2044 (2015) (“We do not require a
case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.”
(quoting al-Kidd, 563 U.S. at 744)).12 The District Court

12
In the intervening period since Karns’s and Parker’s arrests
in 2012, our Court has held that “the First Amendment protects
the act of photographing, filming, or otherwise recording
police officers conducting their official duties in public.”
Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir.
2017). However, as in Fields itself, this right was not clearly
established at the time of the challenged conduct. Id. at 362
(“[W]e cannot say that the state of the law at the time of our
cases (2012 and 2013) gave fair warning so that every

32
therefore did not err in concluding that the officers were
entitled to qualified immunity on the “right to record” claim.

V.

For the foregoing reasons, we will affirm the District
Court’s entry of summary judgment.

reasonable officer knew that, absent some sort of expressive
intent, recording public police activity was constitutionally
protected.”). Accordingly, although the right identified by
Karns and Parker is now clearly established in this Circuit, our
qualified immunity analysis in this case remains unchanged.
See Brosseau v. Haugen, 543 U.S. 194, 200 n.4 (2004)
(observing that decisions “that postdate the conduct in question
. . . are of no use in the clearly established inquiry” (citations
omitted)).

33
ROTH, Circuit Judge, dissenting.

Were we writing on a blank slate, it would be within
the prerogative of the Majority to decide this case as it does.
But the slate is not blank. The precise question that we
examine here, whether NJ Transit is an “arm of the state”
entitled to Eleventh Amendment sovereign immunity,” we
have already fully considered and resolved en banc in Fitchik
v. N.J. Transit Rail Operations, Inc.1 Little has changed since
we decided this question. Thus, stare decisis, principles of
estoppel, and our own Internal Operating Procedures all
require that we decline the invitation to overrule Fitchik. For
this reason, I respectfully dissent from Part III of the majority
opinion.

I.

The doctrine of stare decisis is simple: Like cases
should be decided alike. We should not overturn our
precedential opinions absent special justification. Adherence
to stare decisis thereby “permits society to presume that
bedrock principles are founded in the law rather than in the
proclivities of individuals[.]”2 Our effort to maintain a

1
873 F.2d 655 (3d Cir. 1989) (en banc).
2
United States v. Babich, 785 F.2d 415, 417 (3d Cir. 1986)
(quoting Vasquez v. Hillery, 474 U.S. 254, 266 (1986)); see
also Payne v. Tennessee, 501 U.S. 808, 827 (1991) (“Stare
decisis is the preferred course because it promotes the
evenhanded, predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial
process.”).

1
consistent and reliable body of jurisprudence is memorialized
in our Internal Operating Procedures (I.O.P.), which state
explicitly that “it is the tradition of this court that the holding
of a panel in a precedential opinions is binding on subsequent
panels.”3 En banc consideration by the full Court is required
to overrule a prior precedential opinion.4

To be sure, there are exceptions to this rule. As the
Majority notes, we may—even without the blessing of an en
banc majority—depart from a precedential opinion when its
holding is in conflict with intervening Supreme Court
authority.5 My colleagues permit New Jersey Transit and the
Transit officers to wriggle through this loophole. They
suggest that Fitchik is no longer binding in light of the
Supreme Court’s intervening decision in Regents of the
University of California. The Majority then concludes that
changes in the legal underpinnings of Fitchik justify
overruling it. I disagree with both holdings.

A. Intervening Legal Changes Do Not Require

Fitchik’s Overruling

Fitchik explains the analytical framework that we use
to determine whether a state entity, such as NJ Transit, is “an
arm of the state,” entitled to Eleventh Amendment immunity.
Fitchik instructs us to employ a fact-intensive, three-factor
balancing test. We consider the funding factor, the status

3
3d Cir. I.O.P. 9.1 (2015).
4
3d Cir. I.O.P. 9.1.
5
See Maj. Op. 11-12; Mennen Co. v. Atl. Mut. Ins. Co., 147
F.3d 287, 294 n.9 (3d Cir. 1998).

2
under state law factor, and the autonomy factor.6 After
making an individual determination as to whether each factor
supports a finding for or against immunity, we balance them
to decide whether an entity is an arm of the state.7 After a
thorough review of the facts as they pertain to each factor, the
Fitchik Court held that NJ Transit is “not the alter ego of New
Jersey [and] is not entitled to eleventh amendment
immunity.”8

Fitchik treats the funding factor as the most important.9
We recently explained, however, that “[w]hile our
jurisprudence had long afforded the first factor—state
funding—more weight than the others, we recalibrated the
factors in light of the Supreme Court’s observation in Regents
of the University of California v. Doe that an Eleventh
Amendment inquiry should not be a ‘formalistic question of
ultimate financial liability.’”10 Thus, “[w]e now treat all three
Fitchik factors as ‘co-equals,’ with the funding factor
breaking the tie in a close case.”11
Even though Fitchik explicitly acknowledges that no
single factor is determinative in its evaluation, the Majority
believes that its treatment of the funding factor as the most
important warrants a complete overruling of the opinion. But
in Fitchik, we engaged in a qualitative assessment of each
factor; we explicitly considered the degree to which each

6
Maliandi v. Montclair State Univ., 845 F.3d 77, 83 (3d Cir.
2016).
7
Id. at 84 (citing Fitchik, 873 F.2d at 664).
8
Fitchik, 873 F.2d at 664.
9
Id. at 659-60.
10
Maliandi, 845 F.3d at 84 (internal citations omitted).
11
Id. (internal citations omitted).

3
factor counseled in favor of or against immunity. Based on
the record that was before us—which is largely unchanged
today—we held that NJ Transit is not entitled to immunity
because the funding factor “provides extremely strong
indication that NJT is not the alter ego of New Jersey” while
“[t]he other factors—NJT’s treatment under state law, and its
degree of autonomy—provide only weak support for the
conclusion that NJT is New Jersey’s alter ego.”12 Thus,
Fitchik established that a showing of one factor can be strong
enough to outweigh two factors that make weaker showings
for the opposite outcome. Central to this holding was the idea
that the strength of each factor must be qualitatively weighed.

Neither the Supreme Court’s Regents of the University
of California decision nor Benn v. First Judicial Dist. of Pa.’s
pronouncement that the factors are now “co-equal”13
undercuts this aspect of Fitchik. The Majority believes that
Regents of the University of California requires courts to
count the factors that favor or disfavor immunity, however
slightly, and simply rule on the side of where two of the three
factors lie. The “holistic analysis” compelled by Regents of
the University of California does not require this formalistic
approach, and our subsequent cases—including Benn—do not
either. Benn, which explicitly considered Regents of the
University of California, established only that no single
Fitchik factor is “predominant” in our analysis.14 Our cases
have since understood that no factor is entitled to presumptive

12
Fitchik, 873 F.2d at 664.
13
Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 240 (3d
Cir. 2005).
14
Cooper v. Se. PA Transp. Auth., 548 F.3d 296, 301 (3d Cir.
2008) (citing Benn, 426 F.3d at 240).

4
weight, and no factor is independently dispositive. This
approach does not preclude Fitchik’s qualitative method, and
we have not understood it to have done so.

The qualitative strength of each factor has consistently
guided our analysis. Febres v. Camden Board of Education15
is demonstrative. There we found that the autonomy factor
“slightly favor[ed]” immunity while the other two factors—
funding and status—counseled against immunity.16
Ultimately, we declined to recognize any immunity.17 In
Cooper v. Southeastern Pennsylvania Transit Authority, we
again declined to recognize Eleventh Amendment immunity
because, unlike the state status factor—which weighed
“slightly” in favor of immunity—the autonomy and state
funding factors together weighed “slightly” against a finding
of immunity.18 Our consideration in Bowers v. National
Collegiate Athletic Association also explicitly considered the
qualitative strength of each Fitchik factor.19 There we
concluded that the university was an arm of the state because
the state-treasury factor weighed only “slightly” against
immunity and the status and autonomy factors weighed
“heavily” in favor of it.20 As demonstrated, the cases we have
decided after Regents of the University of California and
Benn do not merely rely on a mechanical counting of the
factors. Instead, they explicitly assess the degree to which

15
445 F.3d 227 (3d Cir. 2006).
16
Id. at 232, 237 (emphasis added).
17
Id. at 237.
18
548 F.3d 296, 311 (3d Cir. 2008).
19
475 F.3d 524, 549-50 (3d Cir. 2007), amended on reh’g
(Mar. 8, 2007).
20
Id.

5
each factor makes a showing. That is because Fitchik
requires—and Regents of the University of California
permits—us to do so.

The fact that in cases such as Febres, Cooper, and
Bowers, our assessment of the factors has declined to
recognize immunity when at least two Fitchik factors have
cautioned against such a finding does not change our
conclusion. Our post-Regents of the University of California
cases have not considered a situation like the one we
confronted in Fitchik—where one factor provides “extremely
strong” support for one conclusion while the other two factors
provide only “weak” support for the opposite outcome. Thus,
those decisions are distinguishable and do not necessarily
conflict with Fitchik. As a result, I do not believe that the
circumstances here rise to the kind of exceptional
circumstances we ordinarily require to warrant a departure
from a precedential opinion absent en banc consideration.
Fitchik can and should be read harmoniously with Regents of
the University of California and our subsequent opinions.
Only an en banc majority of our Court should decide whether
the “strong indication” compelled by New Jersey Transit’s
funding can be overcome by the “weak support” of the “state
law” and “autonomy” factors.

The Majority, however, fears that our continued
application of Fitchik could generate “a potentially fractured
body of jurisprudence.”21 Indeed, when two of our decisions
are inconsistent, one of them must yield. But as I have
explained, there is no inconsistency here. And even if there
were, overruling Fitchik would be the improper course. We

21
Maj. Op. 12.

6
have “long held that if [this Circuit’s] cases conflict, the
earlier is the controlling authority and the latter is ineffective
as precedents.”22 In light of Fitchik’s continuing validity, it
remains the opinion that governs because it came first. So, to
the extent that our post-Fitchik precedents are inconsistent
with Fitchik in ways not required by Regents of the University
of California, they are without effect.23 Fitchik remains the
controlling authority and, as a result, this panel is foreclosed
from reconsidering the question re-presented here.
B. The Circumstances Have Not Changed So
Significantly That Our Reexamination Is Required

Our Court has long recognized that principles of
estoppel permit a litigant who was not a party to a prior
judgment to use that judgment to prevent a defendant from

22
Pardini v. Allegheny Intermediate Unit, 524 F.3d 419, 426
(3d Cir. 2008) (internal quotation marks and citation omitted);
see also United States v. Tann, 577 F.3d 533, 541 (3d Cir.
2009) (“In the unique circumstance when our panel decisions
conflict and our Court has not spoken en banc, . . .the earlier
decision is generally the controlling authority.” (citation
omitted))
23
Holland v. N.J. Dep’t of Corrections, 246 F.3d 267, 278 n.8
(3d Cir. 2001) (“[T]o the extent that [a case within the circuit]
is read to be inconsistent with earlier case law, the earlier case
law . . . controls.”); O. Hommel Co. v. Ferro Corp., 659 F.2d
340, 354 (3d Cir.1981) (“[A] panel of this court cannot
overrule a prior panel precedent. To the extent that [the later
case] is inconsistent with [the earlier case, the later case] must
be deemed without effect.” (internal citation omitted)).

7
relitigating issues resolved in the earlier proceeding.24
Relying on this recognition, Karns and Parker argue that NJ
Transit is collaterally estopped from claiming that it is an arm
of the state because Fitchik conclusively rejected that
argument. They are right. The Majority, however, believes
that our reconsideration is appropriate because legal
developments over the past twenty-seven years have changed
the weighing of the factors upon which Fitchik was based.25
In its view, a re-balancing of the factors in light of these
alleged new circumstances clearly weighs in favor of
sovereign immunity. I disagree because the circumstances
have remained largely unchanged.26

Fitchik held that the first factor—“whether the
judgment would be paid by state funds—provides an
extremely strong indication that NJT is not the alter ego of
New Jersey.”27 As the Majority observes, NJ Transit has “not
offered updated financial information to undermine this
assessment.”28 Thus, for the reasons my colleagues note, this
factor continues to “provide[] extremely strong indication”

24
Burlington N. R.R. Co. v. Hyundai Merch. Marine Co., 63
F.3d 1227, 1232 (3d Cir. 1995) (citation omitted).
25
Resp’t’s Br. 19; Maj. Op. 14-15 (contending that “[i]n the
twenty-seven years since our Court’s decision in Fitchik,. . . it
has become much more apparent that New Jersey law regards
NJ Transit as an arm of the state.”).
26
In addition, as we state in Part A above, the strength of each
of the factors found in Fitchik was weighed qualitatively, a
procedure which is consistent with the approach of the Court
in Regents of the University of California.
27
Fitchik, 873 F.2d at 664.
28
Maj. Op. at 13.

8
that NJ Transit is not the entitled to Eleventh Amendment
immunity.29

The second Fitchik factor requires us to consider “[t]he
status of the agency under state law . . ..”30 In Fitchik¸ we
held that this factor “tilt[s] in favor of [the transit authority’s]
contention that [NJ Transit Rail Operations] is entitled to
sovereign immunity, but only slightly.”31 The Majority
contends that “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.”32 I
disagree.

My colleagues conclude that the state law factor now
favors a finding of immunity because NJ Transit is statutorily
constituted as an instrumentality of the State, constitutionally
allocated within the Department of Transportation, vested
with the authority to exercise police powers, considered state
property under state tax laws, designated as an “alter ego of
the State” by a state’s trial and intermediate level courts,
subject to the Administrative Procedures Act, and has the
power of eminent domain.33 This evidence might be more
compelling had our Court not considered it when NJ Transit
first raised its immunity defense in Fitchik. We explicitly
recognized that “[t]here is some indication that New Jersey

29
Fitchik, 873 F.2d at 664.
30
Id. at 663.
31
Id. (emphasis added).
32
Maj. Op. 19.
33
Maj. Op. 15-17.

9
law considers [NJ Transit] to be an arm of the state,” 34 noting
that

[NJ Transit] is subject to New Jersey Tort
Claims Act; is immune from state property
tax; has the power of eminent domain; and is
subject to the strictures of the state
administrative procedure act. Further, the
New Jersey Supreme Court has declared [NJ
Transit] to be a “public” entity, although not
in the context of sovereign immunity.35

Thus, NJ Transit’s allocation under the state constitution and
the fact that it possesses official police powers are the only
facts set forth here that we did not explicitly consider in
Fitchik. I doubt that these facts are so significant that they
warrant a new determination by this panel. NJ Transit offers
the fact of the constitution’s treatment of the transit body to
show that New Jersey deems it an instrumentality of the State
exercising essential governmental functions. But Fitchik
fully appreciated that, under state law, NJ Transit seems to be
an arm of the state.36 That fact, however, was not
37
conclusive. I also doubt that the grant of official police
powers to NJ Transit alone requires a change in our Fitchik

34
Fitchik, 873 F.2d at 662.
35
Id. at 662-663 (citations omitted).
36
Id. at 662 (“There is some indication that New Jersey law
considers [NJ Transit] to be an arm of the state.”).
37
Id. at 663 (“On the other side of the equation, New Jersey
has given power to NJT in two spheres that Urbano identified
as indicative that an agency is not entitled to sovereign
immunity.”).

10
holding.38 In light of the foregoing, I cannot conclude that NJ
Transit has presented new evidence requiring us to hold that
the second Fitchik factor now “strongly favors a finding of
immunity.”39

Under the third factor, we consider the degree of
autonomy the entity has from the State.40 Weighing the
pertinent facts—which have not since changed in any
meaningful way—the Fitchik Court concluded that although
NJ Transit is “significantly autonomous,” the final Fitchik
factor “counsels slightly in favor of according immunity.”41
That is principally because “the degree of control by the
governor is fairly substantial . . ..”42 The Majority’s
“consideration of this factor is largely in accord,” and thus
does not suggest that new circumstances with respect to this
factor warrant our reexamination.43
NJ Transit suggests that there are additional
considerations that compel us to conclude that the factor here
“weighs heavily in finding immunity.”44 Their argument is
based on the fact that (1) NJ Transit’s board must present its
annual budget to the governor and legislature, (2) the New

38
NJ Transit does not suggest that its enforcement officers
did not have general police authority at the time Fitchik was
decided. Indeed, the statutory provision granting New Jersey
Transit officers general police powers appears to have been
passed in 1989, well before Fitchik.
39
Maj. Op. 17.
40
Fitchik, 873 F.2d at 659.
41
Id. at 664.
42
Id.
43
Maj. Op. 18.
44
Resp’t’s Br. 27.

11
Jersey governor appoints the entire board, and (3) the transit
system’s acquisition of privately owned transportation entities
are subject to legislative veto. These arguments were all
made in Fitchik’s dissenting opinion.45 Because the Fitchik
majority considered them and remained unpersuaded, we are
bound by its conclusion. Accordingly, this factor continues to
only “counsel slightly in favor of according immunity to
NJT” in light of Fitchik.46

As demonstrated, NJ Transit’s funding scheme, status
under state law, and organizational structure have remained
largely unchanged over the last twenty-seven years. NJ
Transit’s arguments here were fully considered and resolved
in Fitchik; as a result, principles of collateral estoppel
preclude NJ Transit from relitigating them here.

III.

In light of the principles underlying the doctrines of
stare decisis and collateral estoppel, it has been the tradition
of this court to refrain from overturning our precedents
“lightly.”47 Today we depart from that tradition. Because I
believe we do so unjustifiably, I respectfully dissent.

45
Fitchik, 873 F.2d at 667-68 (Rosenn, J., dissenting)
46
Id. at 664.
47
Al-Sharif v. U.S. Citizenship & Immigration Servs., 734
F.3d 207, 212 (3d Cir. 2013).

12