On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 01-cv-02844). District Judge: Honorable Robert B. Kugler.
The opinion of the court was delivered by: Pollak, District Judge
Argued: November 16, 2005
Before: BARRY and AMBRO, Circuit Judges, and POLLAK,*fn1 District Judge.
Appellants Herminio Febres, Larry Williams, David Sims, Derek Copeland, Charles Smith, Juan Diaz, Nelson Alexander, and now-deceased Angel Pagan and Robert Hawkins were employed by the appellee Camden Board of Education ("Board") as custodians and mechanics. On or about June 26, 2000, they were fired for excessive absenteeism. Appellants brought this suit in the United States District Court for the District of New Jersey, invoking the self-care provision of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2612(a)(1)(D), to contest their terminations. The District Court granted appellee's motion to dismiss on Eleventh Amendment jurisdictional grounds, holding that the Board is an "arm of the state." Cf. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). The District Court concurrently denied appellants' motion for leave to amend their complaint to add claims under 42 U.S.C. § 1983 against various school district administrators and officials of the Board.
Appellants now appeal the District Court's order. Appellants' primary target is the Eleventh Amendment ruling: if we reverse the District Court's jurisdictional ruling, then we are not asked to address the denial of appellants' motion for leave to amend.
We have appellate jurisdiction under 28 U.S.C. § 1291. Our review is plenary. See Farley v. Phila. Housing Auth., 102 F.3d 697 (3d Cir. 1996). Because we conclude that the Board has not established it is an arm of the state, we will reverse.
The Eleventh Amendment provides unconsenting states with immunity from suits brought in federal courts by private parties. See Edelman v. Jordan, 415 U.S. 651 (1974). The Supreme Court has long held that counties, municipalities and political subdivisions of a state are not protected by the Eleventh Amendment. See Mt. Healthy, 429 U.S. at 280; see also Bolden v. Se. Pa. Transp. Auth., 953 F.2d 807, 814 (3d Cir. 1991) (en banc). School boards and school districts are typically considered political subdivisions of a state, not entitled to immunity. See, e.g., Mt. Healthy, 429 U.S. at 280-281; Lester H. v. Gilhool, 916 F.2d 865, 870-71 (3d Cir. 1990). In some cases, however, such entities may be viewed as "arm[s] of the State partaking of the State's Eleventh Amendment immunity . . . ." Mt. Healthy, 429 U.S. at 280; see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) (holding that the Eleventh Amendment bars actions in federal court whenever "the state is the real, substantial party in interest"). The party asserting immunity bears the burden of production and persuasion. See Christy v. Pa. Turnpike Comm'n, 54 F.3d 1140, 1144 (3d Cir. 1995).
More than thirty-five years ago the Third Circuit identified nine factors to be considered when determining whether an entity is an arm or alter ego of the state for Eleventh Amendment purposes. Urbano v. Bd. of Managers, 415 F.2d 247, 250-51 (3d Cir. 1969). The numerous factors articulated in Urbano were subsequently condensed into three major criteria:
(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. Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989) (en banc).*fn2
The three-part test----sometimes referred to as the Fitchik test----has been reiterated and applied many times since. See, e.g., Carter v. City of Phila., 181 F.3d 339, 347 (3d Cir. 1999); Christy, 54 F.3d at 1144-45; Peters v. Del. River Port Auth., 16 F.3d 1346, 1350-52 (3d Cir. 1994); Bolden, 953 F.2d at 816.
We now accord equal consideration to all three prongs of the analysis----payment from the state treasury, status under state law, and autonomy. Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 239-40 (3d Cir. 2005).*fn3 However, in Hess v. Port Authority Trans-Hudson Corp., the Supreme Court instructed that in close cases, where "indicators of immunity point in different directions," 513 U.S. 30, 47 (1994), the principal rationale behind the Eleventh Amendment----protection of the sovereignty of states through "the prevention of federal-court judgments that must be paid out of a State's treasury," id. at ...