FLAKKER v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC.

Filing 20

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 6/7/18. 6/7/18 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES FLAKKER

v.

CIVIL ACTION
NO. 18-1046

NEW JERSEY TRANSIT RAIL
OPERATIONS, INC.

MEMORANDUM
KEARNEY,J.

June 7, 2018

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 bane panel. In January 2018,
a three judge panel of our court of appeals reversed an earlier en bane opinion and held NJ
Transit is immune from suit under the Eleventh Amendment. When a plaintiff then sues NJ
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 or the state abrogated the sovereign immunity for the claim, we will
follow the precedential holding immunizing NJ 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 NJ Transit which enjoys sovereign
immunity under the Eleventh Amendment. 3 NJ Transit also argues Congress did not abrogate
states' sovereign immunity in the Whistleblower Provision of the Federal Rail Safety Act and NJ
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 NJ Transit or dispute whether Congress abrogated sovereign immunity in the Federal Railroad
Safety Act. 4 While presenting oral argument in opposition to the motion, Mr. Flakker did not
file an opposition.
A. NJ 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 NJ Transit
1s 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 NJ
Transit .... " 5 Our court of appeals in Karns reversed its 1989 en bane decision in Fitchik v. New

Jersey Transit Rail Operations, Inc. which balanced three factors, state-treasury funding, status
under state law, and autonomy and held N.J. Transit is not entitled to Eleventh Amendment
sovereign immunity. 6
In Karns, our court of appeals examined the same three factors as in Fitchik "(l) 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 NJ Transit is an "arm
of the state." 7 Our court of appeals noted, however, intervening Supreme Court case law changed

2

the weighing of the three factors, meaning the first factor, funding, is no longer predominant but
all three factors are now equal. 8
Our court of appeals held the state-treasury funding factor weighs against finding
sovereign immunity because 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."9
The second factor, status under state law, "strongly favor[ed]" finding sovereign immunity
because NJ 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. 10 Our court of appeals commented in
the twenty-eight years since Fitchik it "has become that much more apparent" New Jersey
regards NJ Transit as an arm of the state. 11 For the third factor, "autonomy of the entity," our
court of appeals agreed with Fitchik finding New Jersey's "fairly 'substantial control' over NJ
Transit counseled in favor of according it Eleventh Amendment immunity." 12
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." 13 Our court of appeals concluded NJ Transit is an arm of the state and entitled to
Eleventh Amendment immunity. 14
While Mr. Flakker did not file an opposition to the motion for judgment on the pleadings,
at our pre-trial conference we asked Mr. Flakker how his claims against NJ Transit were not
barred by the Eleventh Amendment and Karns. Mr. Flakker argued we should not follow Karns
because it is not an en bane decision so it cannot overrule the en bane decision Fitchik. He also

3

argues Karns is not controlling because our court of appeals lacked a factual record and
overruled Fitehik based on 1989 facts and failed to examine factual changes from then until
2018. Neither argument has merit.
Our court of appeals analyzed and found it was not bound by Fitehik because of
intervening conflicting Supreme Court decisions. In Karns, our court of appeals addressed its
general obligation to follow "precedent absent en bane reconsideration," however, "a panel may
revisit a prior holding of the Court 'which conflicts with intervening Supreme Court
precedent." 15 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 bane holding in
Fitehik's conflicts with Supreme Court's intervening decision in Regents of the University of
California. 16 Mr. Flakker's argument Fitehik is still precedential only because it is en bane 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
Fitehik." 17

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
Fitehik. 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 any 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 NJ Transit since Fitehik. Mr. Flakker's request for discovery is

4

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 NJ Transit concedes this fact here, making discovery futile because this
factor is already 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." 18 As for the
third factor, our court of appeals examined New Jersey's statutes relating to NJ Transit and
reaffirmed these statutes show New Jersey exercises "substantial control" over NJ Transit and
reaffirmed its holding this factor weighs in favor of sovereign immunity. 19
Without identifying a single fact, case, or statute overlooked by our court of appeals, we
decline Mr. Flakker's request to find the January 2018 order in Karns is not binding upon us.
B.

Congress did not abrogate sovereign immunity for the Whistleblower
Provision of the Federal Railroad Safety Act.

"[T]he Eleventh Amendment provides states with immunity not only from suits brought
by citizens of other states, but also from suits brought by their own citizens."20 When it comes to
immunity from federal suits under the Eleventh Amendment, New Jersey does not have an
absolute right to claim immunity. 21

There are two exceptions to New Jersey's sovereign

immunity from federal suit: "[f]irst, Congress may authorize such a suit under its power 'to
enforce the Fourteenth Amendment-an Amendment enacted after the Eleventh Amendment and
specifically designed to alter the federal-state balance. Second, a State may waive its sovereign
immunity by consenting to suit. " 22

5

The first exception does not apply. Congress enacted the Whistleblower provision, §
20109, of the Federal Railroad Safety Act through its Article I Section XIII commerce clause
powers and the provision protects employees of railroad carriers "engaged in interstate or foreign
commerce" from retaliation based on an employee, among other things, reporting on violations
of federal law, refusing to violate a federal law, and reporting work-related injuries. 23 Congress
did not abrogate New Jersey's sovereign immunity from suits under § 20109 because it is
enacted under Congress' commerce clause powers, not the Fourteenth Amendment and Congress
makes no mention in the Act of abrogating states' sovereign immunity.
The second exception also does not apply because NJ Transit has not consented to be
sued under the Whistleblower Provision of the Federal Railroad Safety Act. "A state waives its
immunity 'if the State makes a 'clear declaration' that it intends to submit itself to our
jurisdiction."24 "The law requires a clear declaration by the State of its waiver to ensure that the
State in fact consents to suit and because there is little reason to assume actual consent based
upon the State's mere presence in the field subject to congressional regulation." 25
Mr. Flakker does not identify conduct by NJ Transit/New Jersey Transit Rail Operation
which is a clear waiver of its sovereign immunity. In the record before us today, there is no
"clear declaration" of NJ Transit's consent to this suit or its waiver of immunity.

Mr. Flakker

sued New Jersey Transit Rail Operation so it is brought involuntarily before us. 26 We cannot
find authority, and Mr. Flakker has not shown us authority, where NJ Transit or New Jersey
Transit Rail Operation consented to suit under the Whistleblower Provision of Federal Railroad
Safety Act.
NJ Transit, and its subsidiary New Jersey Transit Rail Operation, are immune from suit
under the Whistleblower Provision of Federal Railroad Safety Act as Congress did not abrogate

6

New Jersey's sovereign immunity and New Jersey did not waive its immunity or consent to be
sued.

III.

Conclusion
In the accompanying Order, we follow our court of appeals in Karns and grant judgment

on the pleadings to New Jersey Transit Rail Operation because it is an arm of the state of New
Jersey and is entitled to sovereign immunity under the Eleventh Amendment from suits under the
Whistleblower Provision of Federal Railroad Safety Act.
1

ECF Doc. No. 1, ilil 9-13.

2

49 U.S.C. § 20109(a)(4).

3

A party may move for judgment on the pleadings "[a]fter the pleadings are closed--but early
enough not to delay trial..." Fed. R. Civ. P. 12(c). In so doing, "the moving party must show
that no issues of material fact exist and that judgment should be entered in its favor as a matter of
law." Collinson v. City of Philadelphia, No., No. 12-6114, 2015 WL 221070, at *1 (E.D. Pa.
Jan. 14, 2015) (quoting S.B. v. United of Omaha Life Ins. Co., No. 13-1463, 2013 WL 2915973,
at *3 (E.D. Pa. 2013)). The standard applied to motions under Rule 12(c) is the same standard as
applied to motions to dismiss under Rule 12(b)(6). Szczurek v. Prof! Mgmt., Inc., No. 14-4790,
2014 WL 6388484, at * 1 (E.D. Pa. Nov. 17, 2014). Rule 12(c) motion "should not be granted
unless the moving party has established that there is no material issue of fact to resolve, and that
it is entitled to judgment in its favor as a matter of law." D.E. v. Cent. Dauphin Sch. Dist., 765
F.3d 260, 271 (3d Cir. 2014) (internal quotations and citations omitted).
4

See Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 664 (3d Cir. 1989)
("Since [New Jersey Transit Rail Operations] is a wholly owned subsidiary of [NJ Transit], any
[E]leventh [A]mendment immunity conferred upon [New Jersey Transit Rail Operations] would
be derivative of that possessed by [NJ Transit].").
5

879 F .3d 504, 519 (3d Cir. 2018).

6

873 F.2d at 664.

7

Karns, 879 F.3d at 513 (quoting Bowers v. Nat'! Collegiate Athletic Ass'n, 475 F.3d 524, 545
(3d Cir. 2017) and citing Fitchik, 873 F.2d at 659)).
8

Id. at 513-14 (citing Regents of the University of California v. Doe, 519 U.S. 425, 431 (1997)).

9

Id. at516.
7

10

Id. at 517-518.

11

1d.at518.

12

Id. (quoting Fitchik, 873 F.2d at 664)).

13

Id. at 519.

14

Id.

15

Karns, 879 F.3d at 514 (quoting United States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009) and
In re Krebs, 527 F.33d 82, 84 (3d Cir. 2008)).
16

Id. at 515 (citing United States v. Singletary, 268 F.3d 196, 202 (3d Cir. 2001)).

17

Id. (citing Regents of the University of California, 519 U.S. at 431).

18

Id. at 518.

19

Id.

2

°

Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 167 (3d Cir. 2002) (citing Hans v.
Louisiana, 134 U.S. 1, 13 (1890)).
21

See id. at 168.

22

In re Flonase Antitrust Litigation, 879 F.3d 61, 68 (3d Cir. 2017) (quoting Coll. Sav. Bank v.
Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999)). A third exception is
not relevant today: "[A] private party may sue a state official to prevent the official from
violating federal law." Id. at 69.
23

§ 20109(a)(l)-(9)

24

In re Flonase Antitrust Litigation, 879 F.3d at 69 (quoting Coll. Sav. Bank, 527 U.S. at 67576).

25

Id. at 69 (quoting Coll. Sav. Bank, 527 U.S. at 680) (internal quotations omitted).

26

See Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613, 620 (2002)
(finding a state defendant waived its sovereign immunity by removing the case to federal court
because it voluntarily invoked our jurisdiction and distinguishing it from cases where a state
defendant is sued and haled involuntarily into federal court).

8