                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-4223
                                      _____________

                       JESSIE DENKINS; CHERYL SHELTON;
                       EMMA WARING; MAXINE CAMPBELL,
                                         Appellants

                                             v.

                    STATE OPERATED SCHOOL DISTRICT OF
                THE CITY OF CAMDEN; PAYMON ROUHANIFARD;
                  ANGELA GILBERT; JOHN DOE; JANE DOE 1-10
                               ______________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                                (D.N.J.. No. 1-16-cv-00653)
                      District Judge: Honorable Jerome B. Simandle
                                      ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    May 11, 2017
                                  ______________

              Before: AMBRO, RESTREPO, and COWEN, Circuit Judges.

                                (Filed: November 9, 2017)

                                     ______________

                                        OPINION*
                                     ______________



       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
RESTREPO, Circuit Judge.

       Jessie Denkins and other former school leaders in the city of Camden, New Jersey,

appeal the decision of the District Court to dismiss their § 1983 suit for deprivation of a

property interest without due process against the State Operated School District,

Superintendent Paymon Rouhanifard, former evaluator Angela Gilbert, and others, on the

basis of sovereign and qualified immunity. We will affirm.

                                                  I

       As we write for the benefit of the parties, we set out only the facts necessary for

the discussion that follows. In 2013, the state of New Jersey took over the Camden

School District. As part of the full takeover, the State appointed a new superintendent,

Rouhanifard, accountable directly to the State’s Commissioner of Education. Early in his

tenure, Rouhanifard hired a group of school leader trainer/evaluators, including Angela

Gilbert. Those evaluators’ duties included observing and grading all school leaders in the

District on a four-point scale. Leaders with average scores falling below 3.0 stood at risk

of removal on the basis of ineffectiveness. Denkins and the other Plaintiff-Appellants

received evaluations, including at least one each from Gilbert, that prompted the District

to begin (or to threaten to begin) proceedings to adjudicate them as ineffective and

abrogate their tenure. Because such a finding would cause collateral consequences with

respect to their professional licensure and state pension, each of the Appellants

preemptively resigned rather than contest the low ratings.



                                              2
       While conducting school leader evaluations, Gilbert did not possess the license

required by then-existing state law for a person in her position. Prior to her hire, Gilbert

informed the District of this fact, but the District hired her anyway and allowed her begin

her job without even a provisional certification. When Appellants discovered this fact in

2015, they instituted this suit, alleging that they had been deprived of a property right to

their continued, tenure-protected employment without due process of law.1 The District

Court granted Defendants’ motions to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). For the State Operated School District, the District Court applied

sovereign immunity under the Eleventh Amendment. Rouhanifard received sovereign

immunity, as well. For Gilbert, the District Court dismissed on the basis of qualified

immunity. Plaintiffs appeal the dismissals as to all three Defendants.

                                             II2

                                              A

       Under the Eleventh Amendment, a state is immune to suit from its own citizens.

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). That immunity


       1
         Plaintiffs also raised other causes of action under state law, over which the
District Court declined to exercise supplemental jurisdiction after dismissing the federal
claims. The New Jersey state court is currently holding those state claims in abeyance
pending the outcome of this action.
       2
         The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review of a District Court’s
grant of a motion to dismiss is plenary. N.Y. Shipping Ass’n Inc. v. Waterfront Comm’n
of N.Y. Harbor, 835 F.3d 344, 352 (3d Cir. 2016). On review, we apply the same
standard as the District Court. Id. To survive a motion to dismiss, a complaint must state
a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

                                              3
extends to entities that are not the state itself if the state is the real party in interest in the

suit. Edelman v. Jordan, 415 U.S. 651, 663 (1974). In assessing whether the state is the

real party in interest in suits against non-state public entities, our Court has set out a

comprehensive list of nine factors, Urbano v. Bd. of Managers, 415 F.2d 247 (3d Cir.

1969), cert. denied, 397 U.S. 948 (1970), and subsequently “divide[d] the nine Urbano

factors into three larger questions.” Fitchik v. N.J. Transit Rail Ops., Inc., 873 F.2d 655,

659 (3d Cir. 1989) (en banc). Those questions are: (1) whether the money that would pay

the judgment would come from the state treasury; (2) the status of the entity under state

law; and (3) the degree of autonomy of the entity. Id. Although we formerly assigned

primacy to the funding factor, we have recalibrated those factors at the direction of the

Supreme Court, and now weight them co-equally. First Jud. Dist. of Penn. v. Benn, 426

F.3d 233, 240 (3d Cir. 2005); see also Regents of Univ. of Calif. v. Doe, 519 U.S. 425,

431 (1997).

       Our Court last addressed the sovereign immunity status of the Camden School

District in 2006, holding that the Board of Education was not an arm of the state and

therefore not deserving of sovereign immunity. Febres v. Camden Bd. of Educ., 445 F.3d

227, 228 (3d Cir. 2006). The parties agree that factual changes since Febres—

specifically, the full state takeover and the relocation of responsibilities from the Board to

the state-appointed Superintendent—necessitate a reassessment of that analysis. We

address each factor in turn.




                                                 4
                                    State Treasury Factor

       In assessing the state treasury prong of the Fitchik analysis, “[w]e consider three

subfactors: (1) a State’s legal obligation to pay a money judgment entered against the

alleged arm of the State; (2) alternative sources of funding (i.e., monies not appropriated

by the State) from which the entity could pay such judgments; and (3) specific statutory

provisions that immunize the State from liability for money judgments.” Maliandi v.

Montclair State Univ., 845 F.3d 77, 86 (3d Cir. 2016). Although the District Court

assessed this prong as supporting a grant of sovereign immunity for the School District,

we disagree.

       With respect to the first subfactor, the State is not legally obligated to pay a

judgment entered against the District. Although the District might pay a judgment with

funds that originated with the State, the State is not legally obligated to pour additional

money into the budget to fund such a judgment. “Although the [state] might well choose

to appropriate money to [an entity] to enable it to meet a shortfall caused by an adverse

judgment, such voluntary payments by a state simply do not trigger Eleventh Amendment

immunity.” Febres, 445 F.3d at 234. By contrast, “a state’s legal liability (or lack

thereof) for an entity’s debts merits far greater weight, and is therefore the key factor in

our assessment of the state-treasury prong.” Id. at 236.

       With respect to the second subfactor, alternative sources of funding, the Febres

Court explicitly rejected the argument that, because (at the time) 85% of the Camden

School District’s funding came from the State of New Jersey, the District could not

satisfy a judgment except with State money. Id. at 233. Noting that non-State funds

                                              5
“still total a significant sum,” the Court rejected the idea that the city’s “relatively poor

tax base” ought to control the outcome. Id. at 233, 234. Holding to the contrary would

work an injustice against people seeking redress for wrongs committed by (or by

employees of) poorer school districts with less robust local tax bases. To the extent that

State dollars come with strings that abrogate local autonomy or increase State control, we

consider that dynamic under the appropriate Fitchik factor that addresses autonomy and

control.

       The state treasury factor thus cuts against immunity.

                                   Status Under State Law

       “The second Fitchik factor requires us to ascertain the status of the agency under

state law, which includes such considerations as 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.” Maliandi, 845 F.3d

at 91 (internal quotations omitted). In considering status under state law, “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.” Id.

       The District Court found that “in light of the specific circumstances of the State

take-over,” the status under state law prong cut in favor of immunity. J.A. 18. We agree.

As Plaintiffs acknowledged in their complaint, N.J. Stat. Ann. § 18A:7A-34, titled

“Creation of school district under full State intervention upon determination of failure of

                                               6
local school district,” applies to the Camden State Operated School District. J.A. 287.

Subsequent statutes concerning full State takeover make the status of such districts quite

clear.3

          The second Fitchik factor weighs in favor of immunity.

                                    Autonomy of the Entity

          “Fitchik directs that autonomy be analyzed as a distinct factor, focusing on the

entity’s governing structure and the oversight and control exerted by a State’s governor

and legislature.” Maliandi, 845 F.3d at 96. “The lesser the autonomy of the entity and

greater the control by the State, the greater the likelihood the entity will share in the

State’s Eleventh Amendment immunity.” Id. In assessing state control, the Maliandi

Court looked to whether local boards were empowered to act “without recourse or

reference to any department or agency of the state,” id., and the number of “state-

imposed limitations” with minimal effect. Id. at 97. It considered whether the entity




          N.J. Stat. Ann. § 18A:7A-35(a) (“The schools of a school district under full State
          3

intervention may be conducted by and under the supervision of a State district
superintendent of schools appointed by the State board upon recommendation of the
commissioner.”); id. at 7A-35(f) (“The State district superintendent may, if deemed
appropriate by the commissioner, make, amend and repeal district rules, policies and
guidelines, not inconsistent with law for the proper conduct, maintenance and supervision
of the schools in the district.”); N.J. Stat. Ann. § 18A:7A-39(a)(1) (providing that the
State district superintendent takes over the power to “sue in the district’s corporate
name.”); id. at 7A-39(1)(d) (“all warrants for claims or expenditures approvable by a
district board of education . . . may be authorized by the State district superintendent.”);
id. at 7A-39(1)(e) (“Authority . . . relative to the acquisition and disposition of property
. . . may, in a school district under full State intervention, be exercised by the State
district superintendent.”); id. at 7A-39(1)(f) (“[T]he authority and powers vested in
boards of education by . . . New Jersey Statutes may in a school district under full State
intervention, be exercised by the State district superintendent.”).
                                                7
could make “unregulated spending decisions,” and whether the people with decision-

making authority enjoyed for-cause protection. Id. at 98.

      At the time of Febres, Camden’s school district was under a more limited form of

state intervention under the New Jersey Municipal Rehabilitation and Economic

Recovery Act (“MRERA”). Febres, 445 F.3d at 231. Under that law, the local school

board retained decision-making power, but its powers were subjected to the Governor’s

“constrained” veto power under MRERA’s “limited school district oversight.” Id. Even

under that fact pattern, the Febres Court held that the autonomy factor favored immunity.

Id. at 232. Since Febres, the Camden School District has transitioned from limited

intervention under the MRERA to full State intervention under N.J. Stat. Ann. § 18A:7A-

34 et seq. As described above, control of budgetary decisions and the day-to-day

governance of the school system is vested with a superintendent appointed by the State,

who enjoys no for-cause protection and exerts State policy and will. Given that the State

exercises more control over the District now than it did when the Febres Court

considered this issue and held that even that more limited intervention favored immunity,

we similarly hold that the autonomy factor weighs in favor of immunity.



      In sum, two of the three co-equal Fitchik factors—status under state law, and

autonomy—weigh strongly in favor of immunity. Accordingly, we affirm the District

Court’s grant of sovereign immunity to the State Operated School District. See Benn,

426 F.3d at 240.

                                            B
                                            8
       The District Court also granted Rouhanifard’s 12(b)(6) motion on the basis of

sovereign immunity. Sovereign immunity extends to both state agencies and state

officers, as long as the state is the real party in interest. Estate of Lagano v. Bergen Cty.

Prosecutor’s Office, 769 F.3d 850, 857 (3d Cir. 2014) (quoting Fitchik, 873 F.2d at 659).

Appellants’ primary argument for reversing the District Court on sovereign immunity for

Rouhanifard relies on the proposition that the State Operated District does not deserve

sovereign immunity for itself. Appellants’ Br. at 25. That argument is unavailing.

       Even if analyzed distinctly, Rouhanifard deserves sovereign immunity in this

context, as the State is the real party in interest. As the State-appointed superintendent,

Rouhanifard “shall perform such duties and possess such powers as deemed appropriate

by the commissioner.” N.J. Stat. Ann. § 18A:7A-35(d). “[N]o person so appointed shall

acquire tenure nor shall the commissioner, with approval of the State board, be precluded

from terminating the superintendent’s services pursuant to the terms of the

superintendent’s individual contract of employment.” Id. at 7A-35(b). Appellants argue

that the New Jersey statutory section mandating that “[f]or the purpose of the New Jersey

Tort Claims Act . . . the State district superintendent shall be considered a State officer,”

N.J. Stat. Ann. § 18A:7A-35(b), does not answer the immunity question as to federal law

issues. Regardless of the answer to that question, the superintendent’s appointment by

the State’s Commissioner of Education, his/her lack of for-cause protection, and his/her

earning a salary set by the Commissioner, all suggest the superintendent’s status under

state law is as a state official, and that the superintendent lacks autonomy from the State.

We will affirm the District Court’s grant of sovereign immunity to Rouhanifard.

                                              9
                                               C

       The District Court also granted Defendant Gilbert’s 12(b)(6) motion after finding

that she was entitled to qualified immunity. “The doctrine of qualified immunity protects

government officials from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). That two-step

analysis—was there a violation of a Constitutional right, and was the right clearly

established—may begin with either step. Id. at 236. We exercise our discretion to begin

with the second step of the analysis. Appellants may well make out a constitutional due

process violation in having been deprived of a property interest in continued tenure-

protected public employment, see Bd. of Regents v. Roth, 408 U.S. 564, 576 (1972), by

the District having obtained their involuntary resignations “by deceiving or mispresenting

a material fact to the employee,” Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir.

1999). At step two, however, we must assess whether a “reasonable official would

understand that what [s]he [did] violate[d] that right.” Anderson v. Creighton, 483 U.S.

635, 640 (1987).

       To determine the objective reasonableness of an official’s action, “there must be

sufficient precedent at the time of action, factually similar to the plaintiff’s allegations, to

put defendant on notice that his or her conduct is constitutionally prohibited.” Mammaro

v. N.J. Div. of Child Protec. & Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (citation

omitted). In context, we consider whether a reasonable school evaluator-trainer in

Gilbert’s position would have believed that her conduct was unlawful. Here, as Plaintiffs

                                               10
admitted in their initial complaint, “[a]fter her acceptance of employment but prior to the

actual hire date, Defendant Gilbert provided to the Defendant District information that

she did not possess a valid New Jersey Administrator certificate/endorsement.” J.A. 289.

There exists no precedent “factually similar to the plaintiff’s allegations” that would have

put Gilbert on notice that evaluating the Plaintiffs after the District knowingly hired her

without a license might amount to a due process violation.

       Therefore, we affirm qualified immunity as to Gilbert.

                                             III

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                             11
