CAMDEN COUNTY HISTORICAL SOCIETY v. STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION et al

Filing 79

OPINION. Signed by Judge Renee Marie Bumb on 6/12/2019. (rss, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

CAMDEN COUNTY HISTORICAL
SOCIETY,
Plaintiff,

Civil No. 17-5270 (RMB/AMD)

v.

OPINION

STATE OF NEW JERSEY DEPARTMENT
OF TRANSPORTATION, et al.,
Defendants.

APPEARANCES:
POSTERNOCK APELL, P.C.
By: Matthew R. Litt, Esq.
400 N. Church Street, Suite 250
Moorestown, New Jersey 08057
Counsel for Plaintiff Camden County Historical Society
OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY
By: Brad M. Reiter, Esq.
Fredric R. Cohen, Esq.
Michael R. Sarno, Esq.
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 114
Trenton, New Jersey 08625
Counsel for Defendants the New Jersey Department of
Transportation, Richard T. Hammer, and David C. Mudge
OFFICE OF THE UNITED STATES ATTORNEY, DISTRICT OF NEW JERSEY
By: Elizabeth A. Pascal, Esq.
401 Market Street, P.O. Box 2098
Camden, New Jersey 08101
Counsel for U.S. Department of Transportation;
Secretary of the U.S. Department of Transportation,
Elaine L. Chao; the Federal Highway Administration;
and Former Acting Director of the Federal Highway
Administration, Walter Waidelich, Jr.

1

BUMB, UNITED STATES DISTRICT JUDGE:
This suit arises out of the demolition of the historic
Harrison House to make room for a federally-funded highway
project.

This opinion is the second of three opinions

addressing the arguments raised by Defendants in their
respective motions.

The first opinion held that the National

Historic Preservation Act, 54 U.S.C. § 306108 (“NHPA”), does not
create a private right of action, and therefore dismissed Count
1 of the Amended Complaint.

See Camden Cty. Historical Soc’y v.

Dep’t of Transportation, 371 F. Supp. 3d 187 (D.N.J. 2019).

The

Court will address, in a third opinion to be issued at a later
date, the Federal Defendants’ Motion for Summary Judgment as to
the Administrative Procedure Act, 5 U.S.C. § 706(2)(a), claim
against them (Count 2 of the Amended Complaint).

This opinion

addresses the State Defendants’ argument that they are entitled
to Eleventh Amendment sovereign immunity as to Plaintiff Camden
County Historical Society’s state law tort claims of fraudulent
concealment of evidence and negligent spoliation of evidence
(Counts 3 and 5 of the Amended Complaint).

As set forth below,

the Court holds that the State of New Jersey has not waived its
Eleventh Amendment sovereign immunity to the state law claims
asserted by the Historical Society and therefore the State
Defendants’ Motion to Dismiss will be granted.
I.

2

Plaintiff asserts that the State and Federal Defendants
conspired to prevent the Harrison House from being formally
recognized and protected as a historic building pursuant to the
NHPA, and that by “initiat[ing] a furtive and expedited
demolition” of the house in the early morning hours of March 3,
2017, while Plaintiff’s state court application to temporarily
enjoin the demolition was pending (Amend. Compl. ¶¶ 20-21), the
State Defendants fraudulently concealed evidence and/or
negligently spoliated evidence.
Relevant to the instant motion, the Amended Complaint
alleges that “NJDOT was delegated responsibility for compliance
with [the NHPA], and is therefore an ‘agency official’ as that
term is defined by 36 CFR § 800.2.”

(Amend. Compl. ¶ 32)

II.
Rule 12(b)(1) motions may challenge subject-matter
jurisdiction based upon the complaint’s face or its underlying
facts.

Pittman v. Metuchen Police Dept., No. 08–2373, 2009 WL

3207854, *1 (D.N.J. Sept. 29, 2009) (citing James Wm. Moore, 2
Moore's Federal Practice § 12.30[4] (3d ed. 2007)).

“A facial

attack questions the sufficiency of the pleading, and in
reviewing a facial attack, a trial court accepts the allegations
in the complaint as true.”

Id.
III.

3

The Eleventh Amendment to the United States Constitution
states that federal courts may not hear “any suit in law or
equity, commenced or prosecuted against one of the United States
by Citizens of another State....”

U.S. Const. XI.

The

amendment also applies to suits against states by their own
citizens.

Hans v. Louisiana, 134 U.S. 1 (1890).

It is

undisputed that this is a suit against the State of New Jersey
in federal court and therefore the Eleventh Amendment bars the
state law tort claims at issue unless, as the Historical Society
asserts, the State Defendants have waived sovereign immunity.
Initially, the Historical Society argued that the State has
waived sovereign immunity as to the state law claims through the
New Jersey Tort Claims Act, N.J. Stat. Ann. § 59:2–2(a) (NJTCA),
and has waived sovereign immunity as to the NHPA claim by
accepting the delegation of authority pursuant to 36 CFR §
800.2. (Brief, Dkt. 73, p. 7-9)
The State Defendants, relying upon Hyatt v. Cty. of
Passaic, 340 Fed. App’x 833, 837 (3d Cir. 2009), responded that
the NJTCA does not waive Eleventh Amendment immunity.

Indeed,

Hyatt so holds, and several other courts, including this Court,
have applied Hyatt’s holding to conclude that the NJTCA does not
waive New Jersey’s sovereign immunity to suit in federal court. 1

1

Whether, or under what circumstances, the NJTCA waives
New Jersey’s sovereign immunity from suit in its own courts is a
4

See, e.g., Chitester v. Dep’t of Child Prot. Permanency, 2018 WL
6600099 at *5 (D.N.J. Dec. 17, 2018);

Dukes v. New Jersey

Transit Corp., 2018 WL 1378726 at *5 (D.N.J. Mar. 19, 2018);
Abulkhair v. Office of Attorney Ethics, 2018 WL 1352065 at *12
(D.N.J. Mar. 15, 2018), aff’d, 753 F. App’x 132 (3d Cir. 2018);
Brown v. Ancora Psychiatric Hosp., 2012 WL 4857570 at *2 (D.N.J.
Oct. 11, 2012) (Bumb, D.J.).
Faced with Hyatt, the Historical Society has now changed
its argument.

Whereas before, it argued that the delegation

pursuant to 36 CFR § 800.2 which the State accepted effected a
waiver of sovereign immunity as to the NHPA claim, and the NJTCA
effected a waiver as to the state law claims, the Historical
Society now argues that the acceptance of the delegation effects
a waiver as to the state law claims.
This argument confuses the two issues.

(Brief, Dkt. 78, p. 7)
The State Defendants

could not have consented to be sued for state law tort claims by
accepting a delegation under the federal NHPA and its
regulations.

At most, it might be argued that by accepting the

delegation the State Defendants consented to be sued for NHPA
violations-- indeed, that is what Plaintiff originally argued-however, the Court need not (and does not) decide that issue 2

different issue, which this Court need not, and does not,
address.
2

The Court notes that the State Defendants, relying on
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996) and
5

because as this Court has already comprehensively explained in
its previous opinion, the NHPA claim fails for an entirely
independent reason: there is no private right of action under
the NHPA.

Camden Cty. Historical Soc’y, 371 F. Supp. 3d 187

(D.N.J. 2019).
A waiver of sovereign immunity is claim specific.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121
(1984) (“A federal court must examine each claim in a case to
see if the court’s jurisdiction over that claim is barred by the
Eleventh Amendment.”).

That the State of New Jersey is asserted

to have waived sovereign immunity as to a claim under federal
law that fails for an independent reason is irrelevant to the
issue of whether the state has waived sovereign immunity as to
state law claims allegedly arising out of the same case or
controversy.

In this regard, the Historical Society appears to

confuse two distinct jurisdictional concepts.

Even if, as the

Historical Society asserts, New Jersey has waived its Eleventh
Amendment immunity to the NHPA claim, thereby allowing the Court
to exercise federal question subject matter jurisdiction over
that claim pursuant to 28 U.S.C. § 1331, it does not follow that
the Court may exercise supplemental jurisdiction over the other
state law claims pursuant to 28 U.S.C. § 1367.

The Eleventh

Dellmuth v. Muth, 491 U.S. 223, 229-30 (1989), assert that a
state’s sovereign immunity can only be abrogated by Congress
through statute, not by a federal agency through regulation.
6

Amendment to the United States Constitution acts as an
independent bar to this Court’s exercise of statutory
supplemental jurisdiction pursuant to § 1367.

Pennhurst State

Sch. & Hosp., 465 U.S. at 121 (“neither pendent jurisdiction nor
any other basis of jurisdiction may override the Eleventh
Amendment.”).

Thus, in the absence of constitutional authority

to adjudicate a claim, the presence of statutory authority is
irrelevant.

See generally, Erwin Chemerinsky, Federal

Jurisdiction, § 5.1 at 258 (3d ed. 1999) (“Federal courts have
limited subject matter jurisdiction and may only hear a case
when there is both constitutional and statutory authority for
federal jurisdiction.”). 3
The Court holds that the State of New Jersey has not waived
its Eleventh Amendment immunity to suits in federal court as to
the state law tort claims, and therefore those claims must be
dismissed.
IV.

3

This concept is commonly illustrated in cases where the
Court has statutory federal question subject matter jurisdiction
but lacks jurisdiction pursuant to Article III of the
Constitution. See, e.g., Purpura v. Sebelius, 446 F. App’x 496,
498 (3d Cir. 2011) (“In support of their standing argument,
appellants cite Bond v. United States, 564 U.S. 211 (2011), for
the proposition that federal courts possess jurisdiction over an
action as long as that action presents a federal question.
However, contrary to appellants’ argument, Bond did nothing to
upend the well-established [Article III] standing rules detailed
above.”).
7

For the above-stated reasons, the State Defendants’ Motion
to Dismiss the state law tort claims will be granted, and the
State Defendants will be terminated as parties to this suit.
appropriate Order accompanies this Opinion.

Dated:

June 12, 2019

__s/ Renée Marie Bumb____
Renée Marie Bumb, U.S.D.J.

8

An