                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 19-3095
                                      _____________

                                 ISAAC W. SANDERS,
                                             Appellant

                                             v.

     PENNSYLVANIA’S STATE SYSTEM OF HIGHER EDUCATION; EAST
                   STROUDSBURG UNIVERSITY
                          _____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 3-18-cv-01423)
                        District Judge: Hon. A. Richard Caputo
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 30, 2020
                                  ______________

          Before: GREENAWAY, JR., PORTER, and MATEY, Circuit Judges.

                              (Opinion Filed: April 29, 2020)
                                    ______________

                                        OPINION*
                                     ______________

GREENAWAY, JR., Circuit Judge.

       In this case, we must decide whether Eleventh Amendment sovereign immunity


*
 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
protects Pennsylvania’s State System of Higher Education and its constituent universities.

For the reasons set forth below, we will affirm.

                                   I. BACKGROUND

       Plaintiff-Appellant Isaac W. Sanders (“Sanders”) sued Defendants-Appellees

Pennsylvania’s State System of Higher Education (“PASSHE”) and East Stroudsburg

University (collectively, “Defendants”) under 42 U.S.C. § 1983. Sanders argues that

Defendants violated his Fourth and Fourteenth Amendment rights by engaging in

“stigmatizing conduct” that has destroyed Sanders’s “good name, reputation, honor and

integrity.” JA9. He also alleged various causes of action under state law, including

intentional infliction of emotional distress and defamation. Sanders filed his first

complaint on July 17, 2018. The following facts are taken from Sanders’s second

amended complaint.

       In 2007, Sanders was employed at East Stroudsburg University as the Vice

President for Advancement, head of the Advancement Office, and the Chief Executive

Officer of the East Stroudsburg University Foundation. In August 2007, a student filed a

sexual harassment complaint against Sanders with the University’s Office of Diversity

and Equal Opportunity. Later that fall, the University received five anonymous letters

making various complaints against Sanders, some of which alleged that Sanders was

responsible for “financial misdeeds” and “sexual predatory behavior.” JA24. After an

investigation, the University president decided that there was insufficient evidence to

support the student’s allegations and closed the matter. The University also performed a

forensic audit of the foundation, which found no financial misdeeds. However,

                                             2
PASSHE’s counsel sent the anonymous complaints to the FBI.

       Additional complaints followed in 2008, some of which were covered in a local

paper. Sanders was then placed on administrative leave while an outside law firm

conducted an investigation. Based on this investigation, “Counsel for PASSHE

concluded that sufficient evidence of sexual harassment existed despite previous

conclusions of the first two investigations conducted by President Dillman, Provost

Borland, and/or their designees.” JA36.

       Sanders was terminated on October 22, 2008. According to Sanders, public

comments by members of the PASSHE board, including the Governor of Pennsylvania,

perpetuated a public perception that Sanders was guilty of criminal sexual acts against

students. Sanders alleges that Defendants have not attempted to remedy the reputational

harm that these incidents beset upon him.

       Six students filed a civil lawsuit against Sanders and other state defendants in

February 2009. The jury returned its verdict for Sanders in October 2014. This Court

affirmed and denied the plaintiffs’ petition for rehearing en banc in 2017. Defendants

never provided Sanders with defense counsel and did not agree to indemnify him for his

costs, even though the Commonwealth of Pennsylvania represented the other defendants

in the lawsuit.

       The Pennsylvania Attorney General issued an apology to the student plaintiffs in

2018. The Attorney General also withdrew its bill of costs against the unsuccessful

plaintiffs.

       Sanders initially filed suit against PASSHE, East Stroudsburg University, and

                                             3
several individual defendants. The District Court granted the individual defendants’

motion to dismiss on April 17, 2019. Sanders then filed a second amended complaint.

The District Court granted PASSHE and East Stroudsburg University’s motion to dismiss

on August 14, 2019. Sanders timely appealed.

                  II. JURISDICTION AND STANDARD OF REVIEW

         The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We review grants of motions to dismiss de

novo. Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014).

“[W]e accept all factual allegations in the complaint as true and view them in the light

most favorable to the plaintiff.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d

Cir. 2006). We may affirm on any basis which finds support in the record, even if the

district court did not reach it. See Kabakjian v. United States, 267 F.3d 208, 213 (3d Cir.

2001).

                                    III. DISCUSSION

         Defendants argue that we should affirm the District Court’s dismissal because

Sanders’s claims are barred by the Eleventh Amendment. We agree.

         The Eleventh Amendment provides: “The Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against

any one of the United States by Citizens of another State, or by Citizens or Subjects of

any Foreign State.” U.S. Const. amend. XI. The purpose of Eleventh Amendment is to

protect “the States’ solvency and dignity.” Hess v. Port Auth. Trans-Hudson Corp., 513

U.S. 30, 52 (1994); see also Maliandi v. Montclair State Univ., 845 F.3d 77, 83 (3d Cir.

                                             4
2016) (“[The Eleventh Amendment] has evolved into a potent tool for States to ensure

that States retain their sovereignty and integrity as constituent polities of our national

government.”). To further this goal, the Amendment “has been interpreted by the

Supreme Court to shield States and certain State-affiliated entities from suits for damages

in federal court.” Bradley v. W. Chester Univ. of Penn. State Sys. of Higher Educ., 880

F.3d 643, 654 (3d Cir. 2018). The Amendment protects a state from suit by its own

citizens as well. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100

(1984). There are exceptions to sovereign immunity. A state may consent to suit in

federal court and thereby waive its immunity, or Congress may abrogate states’ immunity

via legislation. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 (3d Cir.

1996).

         We perform a “fact-intensive, three-step balancing test” to determine whether a

state institution is protected by Eleventh Amendment immunity. Maliandi, 845 F.3d at

83. Specifically, we look at: (1) whether the state treasury would pay for an adverse

judgment against the institution; (2) the status of the institution under state law; and (3)

the degree of autonomy from state control that the institution maintains. Id. If a federal

court determines that a state institution is protected by Eleventh Amendment immunity,

the suit against that institution must be dismissed, as the court does not have jurisdiction.

See, e.g., id. at 99 (holding that, unless the district court determined on remand that the

state waived its immunity, the suit must be dismissed); Blanciak, 77 F.3d at 693 n.2

(“[T]he Eleventh Amendment is a jurisdictional bar which deprives federal courts of

subject matter jurisdiction.”).

                                              5
       In Bradley, we performed this three-part test and decided that PASSHE and its

universities are so protected. We therefore affirmed the dismissal of the appellant’s

§ 1983 complaint against PASSHE and one of its universities. Bradley, 880 F.3d at 654.

Sanders has not offered any basis on which to distinguish his case from Bradley. Indeed,

Sanders has not even responded to Defendants’ Eleventh Amendment argument, either

before this Court or before the District Court. We therefore affirm the District Court’s

dismissal of PASSHE and East Stroudsburg University because they are protected by

Eleventh Amendment sovereign immunity.1

                                   IV. CONCLUSION

       For the reasons set forth above, we will affirm.




       1
         Although Eleventh Amendment immunity is the death knell of Plaintiff’s appeal,
any consideration of the merits is also foreclosed by Sanders’s failure to comply with the
applicable two-year statute of limitations. Contrary to Sanders’s contention, the
continuing violations doctrine does not apply here. Sanders has not alleged that
Defendants committed any affirmative acts in the limitations period. See 287 Corp. Ctr.
Assocs. v. Twp. of Bridgewater, 101 F.3d 320, 324 (3d Cir. 1996) (noting that the focus
of the continuing violations doctrine is on whether the defendant committed any
affirmative acts in the limitations period). The two affirmative acts that Sanders alleges
in his complaint (his termination and Defendants’ failure to provide him with defense
counsel in the civil suit) took place in 2008 and 2009 respectively. By his own
admission, Sanders was aware of these acts when they occurred. See Montanez v. Sec’y
Pa. Dep’t of Corrs., 773 F.3d 472, 481 (3d Cir. 2014) (“[T]he continuing violation
doctrine does not apply when the plaintiff is aware of the injury at the time it occurred.”)
(internal quotation marks omitted). Sanders’s allegations within the limitations period
are no more than “continual ill effects” from Defendants’ original affirmative acts. Id.
        Further, the District Court did not err in dismissing Sanders’s complaint at the
Rule 12(b)(6) stage, as it was “apparent on the face of [Sanders’s] complaint” that he
failed to bring his claim within the statute of limitations. See Fried v. JP Morgan Chase
& Co., 850 F.3d 590, 604 (3d Cir. 2017) (quoting Schmidt v. Skolas, 770 F.3d 241, 249
(3d Cir. 2014)).
                                             6
