                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-12-2005

Benn v. First Judicial Dist
Precedential or Non-Precedential: Precedential

Docket No. 01-3769




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                                       PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT




                   Nos. 01-3769, 01-4012




                        DONALD BENN,
                                  Appellant
                             v.

   FIRST JUDICIAL DISTRICT OF PENNSYLVANIA;
             CITY OF PHILADELPHIA;
 BOARD OF PENSIONS AND RETIREMENT MUNICIPAL
   PENSION FUND OF THE CITY OF PHILADELPHIA




       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                   (D.C. No. 98-cv-05730)
       District Judge: Honorable Eduardo C. Robreno


         Submitted Under Third Circuit LAR 34.1(a)
                    September 16, 2005

  Before: SLOVITER, BARRY and SMITH, Circuit Judges

                  (Filed: October 12, 2005)


Ross Begelman
Begelman & Orlow
Cherry Hill, NJ 08034

      Attorney for Appellant
David M. Donaldson
Administrative Office of Pennsylvania Courts
Philadelphia, PA l9l02

       Attorney for Appellee

                  OPINION OF THE COURT


SLOVITER, Circuit Judge

       Plaintiff Donald Benn, who had been a probation and
parole officer for the First Judicial District of Pennsylvania
(“Judicial District”),1 brought suit against his former employer
alleging violations of Title I of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101 et seq. The District Court, by
order dated September 6, 2001, granted summary judgment to
the Judicial District. The District Court held that the Judicial
District is a state agency and therefore is entitled to Eleventh
Amendment immunity, a holding Benn vehemently opposes.
The Judicial District states that “[t]he present case is an
opportunity for this Court to finally issue a published precedent
which holds that state courts have Eleventh Amendment
immunity, in order to guide district courts and to quell repeated
and unnecessary litigation of this issue.” Appellee’s Br. at 8.

       We will proceed to consider that issue. Before we do so
we must consider the Judicial District’s contention that Benn’s
appeal was untimely.



       1
          The Pennsylvania court system is divided into 60 judicial
districts. See 42 Pa. Cons. Stat. Ann. § 901(a) (West 2005). The
Judicial District is composed of the three courts that make up the
Philadelphia County court system: the Court of Common Pleas
(which includes a trial division, an orphans’ court division, and a
family court division); Municipal Court (which includes a civil
division and a criminal division); and Traffic Court. See id. § 951
(Common Pleas), § 1121 (Municipal Court), § 1321 (Traffic
Court).

                                2
                                 I.

                              FACTS

        Benn was employed by the Judicial District as a probation
and parole officer from 1977 until 1997. Throughout most of
that period he was engaged in clerical and administrative tasks.
In 1996, he was transferred to work in the Enforcement Unit and
was appointed a Special Deputy by the United States Marshals
Office. It is apparent from the record that Benn was not pleased
by the transfer. As his brief recites, in the new position he had to
wear a firearm and a bullet-proof vest, use handcuffs, and locate
and apprehend dangerous criminals. In his complaint, Benn
alleges that “he was not mentally suited for this position” and,
shortly after his transfer, began experiencing job-related anxiety
and stress. App. at 19. He allegedly suffered post-traumatic
shock after seeing a co-worker assaulted. In October 1996, he
was accidentally struck by a car after seeing a probation violator
on the street. He took leave from work for the next eight
months, citing physical injuries from the accident, post-traumatic
shock disorder, and chronic depression. Benn alleges that the
Judicial District refused to offer any accommodation for his
stress disorder, and that he was wrongfully terminated.

        Benn filed a formal charge with the EEOC and received a
right to sue letter on August 20, 1998. He filed suit in United
States District Court for the Eastern District of Pennsylvania on
October 29, 1998, claiming not only discrimination and
retaliation in violation of the ADA but also violations of state
law by the Judicial District, the City of Philadelphia, and the
Board of Pensions and Retirement Municipal Pension Fund of
the City of Philadelphia (“Board of Pensions”).2 After some
activity in the District Court, the Judicial District filed a motion



       2
         In its answer to the complaint, the Judicial District denied
Benn’s allegation that it failed to offer him accommodation, and
denied Benn’s allegation that he was wrongfully terminated. For
purposes of this appeal, the Judicial District accepts Benn’s alleged
facts as true.

                                 3
for summary judgment on September 27, 1999 on the ground of
its entitlement to Eleventh Amendment immunity. That motion
was granted by order of the District Court dated September 6,
2001 and entered on the docket on September 10, 2001.

                                II.

                 THE JURISDICTION ISSUE

       On the same day that the District Court entered the
summary judgment order, September 10, 2001, it also entered an
order dismissing without prejudice defendant Board of Pensions
and defendant City of Philadelphia. It is the coincidence of two
orders on the same day in the same case that gives rise to the
Judicial District’s argument that we lack jurisdiction to consider
the case because Benn did not file a proper, timely notice of
appeal.

        Rule 3 of the Federal Rules of Appellate Procedure
requires that a notice of appeal “designate the judgment, order,
or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B).
Rule 4 requires that the notice be filed “within 30 days after the
judgment or order appealed from is entered.” Fed. R. App. P.
4(a)(1)(A).

        Benn filed a notice of appeal dated October 4, 2001 that
reads, in full:

       Notice is hereby given that Plaintiff Donald Benn
       by and through his undersigned counsel hereby
       appeals to the United States Court of Appeals for
       the Third Circuit from the Order of the Honorable
       Eduardo C. Robreno, entered in the above
       captioned proceeding on the 6th day of September,
       2001.

Pl.’s Notice of Appeal (emphasis added).

       When Benn filed the October 4 Notice, which was
admittedly timely, he mistakenly attached a copy of the order

                                 4
dismissing the claims against the Board of Pensions and the City
of Philadelphia, rather than a copy of the order entering
summary judgment in favor of the Judicial District. When Benn
recognized his mistake, he filed another notice of appeal dated
October 22 which was intended to clarify that “[i]t was [his]
intention to appeal the Order of September 6, 2001, issued
regarding the [Judicial District].” Pl.’s Amended Notice of
Appeal (emphasis added). If we regard the October 22, 2001
Notice of Appeal as the operative notice, the Judicial District
would be correct that the appeal was untimely because filed
outside the 30-day period prescribed by Rule 4.

        Compliance with the Rules of Appellate Procedure for
proper filing of a notice of appeal is “mandatory and
jurisdictional.” Lusardi v. Xerox Corp., 975 F.2d 964, 970 n.7
(3d Cir. 1992). A court may not waive the jurisdictional
requirements of Rules 3 and 4, even for “good cause shown”
under Rule 2. Torres v. Oakland Scavenger Co., 487 U.S. 312,
317 (1988). Benn argues that, because the Rules do not require
an attachment of the order that is the subject of the appeal, we
may and should disregard the copy of the incorrect order that he
attached to the October 4 Notice. We approach the issue
somewhat differently.

        In Shea v. Smith, 966 F.2d 127, 129 (3d Cir. 1992), this
court stated that we “liberally construe the requirements of Rule
3.” Moreover, the Supreme Court has stated that even if a notice
does not meet the letter of Rule 3, there is appellate jurisdiction
if the appellant has filed a “functional equivalent” of a proper
notice. Torres, 487 U.S. at 316-17; see also Shea, 966 F.2d at
130.

        Although we have not previously been presented with a
case precisely like this one, where the ambiguity in the notice of
appeal arises from the District Court’s issuance of two orders on
the same day, we have sustained our jurisdiction in cases where
the appellant’s notice of appeal implicated two different orders
in the same action and failed to specify the correct order
appealed. See, e.g., Shea, 966 F.2d 127 (involving notice of
appeal specifying order granting summary judgment in favor of

                                 5
two defendants, when appeal was actually also intended from
prior order granting summary judgment in favor of a third
defendant); CTC Imports & Exports v. Nigerian Petroleum
Corp., 951 F.2d 573 (3d Cir. 1991) (involving notice of appeal
specifying order granting summary judgment in favor of another
party in the case, when appeal was actually intended from prior
order imposing sanctions on appellant); Gooding v. Warner-
Lambert Co., 744 F.2d 354 (3d Cir. 1984) (involving notice of
appeal specifying order granting summary judgment on one
claim, when appeal was actually also intended from prior order
dismissing another claim in the case). For all intents and
purposes, the defect in Benn’s October 4 Notice was a failure to
specify the correct order that was being appealed.

        We have held that a notice may be construed as bringing
up an unspecified order for review if it appears from the notice
of appeal itself and the subsequent proceedings on appeal that
the appeal was intended to have been taken from the unspecified
judgment, order, or part thereof. See Elfman Motors, Inc. v.
Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977) (citing
Foman v. Davis, 371 U.S. 178 (1962)). To determine whether
appellate jurisdiction vests over an order that is not specified in
the notice of appeal, we consider in particular whether there is a
connection between the specified and unspecified orders,
whether the intention to appeal the unspecified order is apparent,
whether the opposing party was prejudiced by the appellant’s
failure to specify the correct order, and whether the opposing
party has had a full opportunity to brief the issues. Shea, 966
F.2d at 129 (citing Williams v. Guzzardi, 875 F.2d 46, 49 (3d
Cir. 1989)).

       In Benn’s case, treating the order attached to the
complaint as the specified order and the order Benn sought to
appeal as the unspecified order, it is apparent that both orders
were connected in that they were dispositive of the same case
and issued on the same day, albeit as to different parties. The
Judicial District had notice of Benn’s intention to appeal the
grant of summary judgment in a telephone conference held with
the District Court on September 6, 2001, the day on which the
relevant orders were issued. Indeed, the Judicial District does

                                 6
not dispute that it had notice of Benn’s intention to appeal the
grant of summary judgment, nor does it argue that it was in any
way prejudiced by the defective October 4 Notice. Nor could it
so argue realistically, as Benn’s mistake was caught and
corrected in time to afford the Judicial District a full and fair
opportunity to brief the issues, including the adequacy of the
notice, which it has done. The October 4 Notice of Appeal,
albeit imperfect, constitutes the “functional equivalent” of a
proper notice, and it is therefore sufficient to vest us with
jurisdiction to decide the question of the Judicial District’s
immunity. We reject the Judicial District’s contention to the
contrary.

                                III.

          ELEVENTH AMENDMENT IMMUNITY

        We thus turn to consider the central question in this case -
whether the Judicial District is an instrumentality of the
Commonwealth of Pennsylvania entitled to immunity under the
Eleventh Amendment from a suit for damages brought by a
former employee pursuant to the ADA. Our review of the
District Court’s grant of summary judgment is de novo, Union
Pacific R.R. Co. v. Greentree Transp. Trucking Co., 293 F.3d
120, 125 (3d Cir. 2002), particularly because in this case the
issue is a legal one.

        It is too late in the jurisprudence of the Eleventh
Amendment for this court (and perhaps even for the Supreme
Court) to interpret that Amendment in light of its explicit
language as applicable only to suits against a state brought by
citizens of another state. The Supreme Court has consistently
held that the Eleventh Amendment immunizes an unconsenting
state from suits brought in federal court by its own citizens as
well as by citizens of another state. See e.g., Hans v. Louisiana,
134 U.S. 1 (1890); Seminole Tribe of Fla. v. Florida, 517 U.S.
44 (1996). Congress may abrogate the States’ Eleventh
Amendment immunity pursuant to its authority under § 5 of the
Fourteenth Amendment provided it has unequivocally expressed
its intent to do so. See Kimel v. Fla. Bd. of Regents, 528 U.S.

                                 7
62, 73-74, 79 (2000); College Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999).

        Because Benn’s action invokes Title I of the ADA, his
claim is governed by Board of Trustees of the University of
Alabama v. Garrett, 531 U.S. 356 (2001). Even when Congress’
intent to abrogate the States’ Eleventh Amendment immunity is
beyond dispute, as the Supreme Court conceded it was in Title I
of the ADA,3 the Supreme Court may hold, as it did in Garrett,
id. at 363, that Congress did not act pursuant to a valid grant of
constitutional authority.4 It follows that Pennsylvania, if sued
under Title I, retains its Eleventh Amendment immunity.

       Moreover, a suit may be barred by the Eleventh
Amendment even though a state is not named a party to the
action, so long as the state is deemed to be the real party in
interest. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429
(1997); Edelman v. Jordan, 415 U.S. 651, 663 (1974); Fitchik v.
N.J. Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir.


       3
          In Garrett, the Court considered only Title I, the Title at
issue here. The Court expressly reserved the issue of abrogation of
Title II of the ADA, dealing with the “services, programs, and
activities of a public entity.” 42 U.S.C. § 12132. In Tennessee v.
Lane, 541 U.S. 509 (2004), the Court held that the plaintiff could
maintain an action under Title II of the ADA against the state for
its failure to provide access to judicial proceedings for disabled
parties. Presently pending before the Court is the question of
whether the immunity of the state has been abrogated for a suit
under Title II by a disabled state prisoner. Goodman v. Ray, 120
Fed. Appx. 785 (11th Cir. 2004), cert. granted sub nom. United
States v. Georgia, 73 U.S.L.W. 3671 (U.S. May 16, 2005) (No. 04-
1203), and Goodman v. Georgia, 73 U.S.L.W. 3671 (U.S. May 16,
2005) (No. 04-1236).


       4
        In 42 U.S.C. § 12202, Congress provides: “A State shall
not be immune under the eleventh amendment to the Constitution
of the United States from an action in [a] Federal or State court of
competent jurisdiction for a violation of this chapter.”

                                 8
1989). This court, in a series of cases, held that various
Pennsylvania agencies and entities are entitled to Eleventh
Amendment immunity even though the state itself has not been
named as a defendant. See, e.g., Sacred Heart Hosp. v. Dep’t of
Pub. Welfare, 133 F.3d 237 (3d Cir. 1998) (Pennsylvania
Department of Public Welfare); Blanciak v. Allegheny Ludlum
Corp., 77 F.3d 690 (3d Cir. 1996) (Pennsylvania Department of
Labor and Industry); Skehan v. State Sys. of Higher Educ., 815
F.2d 244 (3d Cir. 1987) (state university system); Allegheny
County Sanitary Auth. v. EPA, 732 F.2d 1167 (3d Cir. 1984)
(Pennsylvania Department of Environmental Resources); Daye
v. Pennsylvania, 483 F.2d 294 (3d Cir. 1973) (Pennsylvania
Department of Transportation).

       We broached but did not decide the issue of the Judicial
District’s Eleventh Amendment immunity in Callahan v. City of
Philadelphia, 207 F.3d 668 (3d Cir. 2000), where we dismissed a
suit under 28 U.S.C. § 1983 against, among other defendants, the
Judicial District on the ground that it is not a “person” within the
meaning of that statute. Id. at 673. In that case we assessed the
Judicial District’s relationship to the state by applying the factors
we had enumerated in our earlier decision in Fitchik, 873 F.2d at
655.

         In Fitchik, we held that to determine whether a suit
against an entity is actually a suit against the state itself, we must
consider: (1) the source of the money that would pay the
judgment (i.e., whether that source would be the state); (2) the
status of the entity under state law; and (3) the degree of
autonomy the entity has. Id. at 659 (distilling to three larger
questions the numerous factors set forth in Urbano v. Board of
Managers, 415 F.2d 247 (3d Cir. 1969)). Although none of the
three factors alone is dispositive, in Fitchik we stated that the
first is the most important. Fitchik, 873 F.2d at 659.

       The Judicial District argues that following the decision by
the Supreme Court in Doe, 519 U.S. at 425, we can no longer
ascribe primacy to the first factor. We agree. In Doe, the Court
made clear that the relevant inquiry is not merely a “formalistic



                                  9
question of ultimate financial liability.” Id. at 431. Instead, the
relevant inquiry 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.” Id. In a
decision that followed Doe, the Supreme Court explained that
“[w]hile state sovereign immunity serves the important function
of shielding state treasuries . . . the doctrine’s central purpose is
to accord the States the respect owed them as joint sovereigns.”
Fed. Mar. Comm’n v. S. C. State Ports Auth., 535 U.S. 743, 765
(2002) (internal citation and quotation omitted). We have
recently interpreted this purpose to entail nothing less than
“protect[ing] against the indignity of any kind of suit
whatsoever.” Hampe v. Butler, 364 F.3d 90, 97 (3d Cir. 2004).

        The relegation of financial liability to the status of one
factor co-equal with others in the immunity analysis does not
mean that it is to be ignored. Like the other two factors referred
to in Fitchik, it is simply to be considered as an indicator of the
relationship between the State and the entity at issue. See Doe,
519 U.S. at 430-31. In granting summary judgment for the
Judicial District in this case, the District Court looked to all three
Fitchik factors.

       In Callahan, we thoroughly analyzed the second and third
Fitchik factors as applied to the District, stating:

       [t]he Pennsylvania constitution provides for the
       vesting of the Commonwealth’s judicial power in a
       “unified judicial system” which includes all of the
       courts in Pennsylvania. Pa. Const. art. V, § 1.
       Moreover, the constitution provides that the
       Pennsylvania Supreme Court will exercise
       “general supervisory and administrative authority”
       over the unified judicial system. Pa. Const. art. V,
       §§ 1, 2, and 10. All courts and agencies of the
       unified judicial system, including the Philadelphia
       Municipal Court, are part of “Commonwealth
       government” and thus are state rather than local
       agencies. See Pa. Const. art. V, § 6(c); 42 Pa.
       Cons. Stat. Ann. § 102 (West Supp. 1999); 42 Pa.

                                  10
       Cons. Stat. § 301 (West 1981).

Callahan, 207 F.3d at 672.

       We concluded that “[t]he authorities we have reviewed
make it perfectly clear that the judicial defendants are not
independent of the Commonwealth and hardly can be regarded
as having significant autonomy from the Pennsylvania Supreme
Court. They are part of the unified judicial system subject to the
control of the Supreme Court.” Id. at 673. Benn has made no
arguments that alter our analysis, and we therefore conclude that
the Fitchik factors strongly favor Eleventh Amendment
immunity for the District.

        Benn recognizes that neither cities nor counties partake of
Pennsylvania’s Eleventh Amendment immunity. He thus argues
that the District is “merely a local entity undeserving of the
protection of the Eleventh Amendment,” Appellant’s Br. at 8,
and notes that his paycheck was issued by the City of
Philadelphia; the union to which he belonged negotiated its
contracts with the City; he was required to live within
Philadelphia city limits; and the car he was given for work
assignments was owned by the City, id. at 17. We noted in
Callahan that the statutory funding scheme for state courts places
considerable financial responsibility for the operation of the
courts onto the counties. Callahan, 207 F.3d at 670-71. In fact,
the Supreme Court of Pennsylvania has held that the bifurcated
funding scheme prescribed by the General Assembly is “in
conflict with the intent clearly expressed in the constitution that
the judicial system be unified.” County of Allegheny v.
Commonwealth, 534 A.2d 760, 765 (Pa. 1987).

       What is significant in County of Allegheny, for the issue
before us, is that under the Pennsylvania Supreme Court’s
interpretation of the state constitution, the Judicial District and
its counterparts are state entities. That they are locally funded
may be problematic for a variety of reasons, but it does not
transform them into local entities for Eleventh Amendment
purposes.



                                 11
        Nor is it decisive of the Judicial District’s entitlement to
immunity that the City may have an agreement for
indemnification with the Judicial District, as Benn asserts. That
question was decisively answered by the Supreme Court in Doe,
where the Court stated, “[t]he Eleventh Amendment protects the
State from the risk of adverse judgments even though the State
may be indemnified by a third party.” Doe, 519 U.S. at 431. The
Pennsylvania constitution envisions a unified state judicial
system, of which the Judicial District is an integral component.
From a holistic analysis of the Judicial District’s relationship
with the state, it is undeniable that Pennsylvania is the real party
in interest in Benn’s suit and would be subjected to both
indignity and an impermissible risk of legal liability if the suit
were allowed to proceed. We agree with the District Court that
the Judicial District has Eleventh Amendment immunity which
functions as an absolute bar to Benn’s ADA claim. We therefore
will affirm the order granting summary judgment.


____________________




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