PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 14

- 3812

_____________
PAULA MALIANDI

v.

MONTCLAIR STATE UNIVERSITY

, Appellant

_____________ On Appeal from the United States District Court for the District of New Jersey

(D.C. No. 2

- 14

- cv

- 01398 ) District Judge: Honorable Stanley R. Chesler

_____________ Argued : April 4 , 2016

Before: AMBRO , KRAUSE, Circuit Judges

, and THOMPSON

, ∗ District Judge

(O pinion filed: December 27, 2016 )

∗ The Honorable Anne E. Thompson, District Judge for the United States District Court for the District of New Jersey, sitting by designation.2 _____________
Jennifer J. McGruth er, Esq

. ( Argued) Office of Attorney General of New Jersey Department of Law & Public Safety Division of Law Richard J. Hughes Justice Complex 25 Market Street, P.O. Box 112 Trenton, NJ 086 25

Counsel for Appellant

Michael R. DiC hiara, Esq

. ( Argued) Krakower DiChiara 77 Ma rket Street Suite 2 Park Ridge, NJ 07656

Counsel for Appellee

_____________
OPINION OF THE COURT

_____________ KRAUSE, Circuit Judge

. Our federalist system of government accords respect for the sovereignty of the State s in a variet y of ways, including the Eleventh Amendment to the United States Constitution , which immunizes State s from suits brought in federal court by both their own citizens and citizens of other State s. The Eleventh Amendment’s protection , however, is not limited to the State s alone

, but rather extends to entities3 that function as “arms of the State .” In this case, we are asked to resolve a split among the district cour ts in our Circuit
as to whether Montclair State University ( “ MSU ” ) is an arm of the State of New Jersey , which would render it immune from the discrimination suit brought by Appellee Paula Maliandi . Applying the balancing test we have developed to make such determinations , we conclude that, while a close

case , MSU is an arm of the State , thus affording it access to the refuge of the Eleventh Amendment . Accordingly, we will

reverse the decision of the District Court and remand for proceedings consistent with this opinion.

I. Background
According to her complaint, Paula Maliandi began working for MSU in November 2007 and to ok medical leave for breast cancer treatment in early 2013

. Despite having complied with all pertinent policies and procedures for taking such leave, Maliandi allegedly was denied her original position when she returned and instead was offered an inferior position , which she declined

. She was subsequently terminated

. Maliandi then filed suit against MSU for wrongful termination, seeking money damages and equitable relief under both federal and state law. Maliandi’s federal claim arises under the Family Medical Leave Act (“FMLA”) for termination on account o f a “serious [health] condition. ” W hile she does not cite a specific provision in her complaint, it would appear her claim is rooted in the so

- called “self

- care provision ,” 29 U.S.C. § 2612(a)(1)(D )

, and its corresponding retaliation provision, 29 U.S.C. § 2614(a). Together, these provisions entitle a qualifying employee to twelve weeks of leave for a “serious health condition ” and require an employer to restore an employee who took leave under § 2612 to her prior position or an equivalent one upon her return

.4 Maliandi’s state law claim arises under the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. § § 10:5

- 1
to

- 49, which , among other things, prohibits discrimination on account of a disability or handicap.

MSU moved to dismiss Maliandi’s complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction based on its contention that, as an arm of the State , it is owed Eleventh Amendment immunity from su it in federal court. 1 The District Court denied the motion, determining that MSU is not t he State ’s alter ego and, in turn, concluding that MSU is subject to suit in federal court for both the federal and state law claims. 2 MSU appeals.

1 In both the District Court and on appeal, MSU has been represented by the Attorney General of the State of New Jersey.

2 Because neither party raises an argu ment on appeal as to whether Congress has, pursu ant to its authority under Section F ive of the Fourteenth Amendment, abrogated Eleventh Amendment immunity for claims brought under the FMLA, we do not address that question today. Assuming Maliandi is seeki ng to state a claim under § 2612(a)(1)(D) of the FMLA, however, such an argument would be unavailing

. Coleman v. Court of Appeals of Md. , 132 S. Ct. 1327, 1334

- 38 (2012) (plurality opinion) (concluding § 2612(a)(1)(D) does not abrogate Eleventh Amendment immunity); id. at 1338

- 39 (Scalia, J., concurring in judgment) (same) ; see also Hale v. Mann , 219 F.3d 61, 69 (2d Cir. 2000) (concluding that “ 29 U.S.C. § 2612(a)(1)(D), and the related retaliation section, see id. § 2614(a)(1) ” do not abrogate Eleventh Am endment immunity).5 The District Cou rt had jurisdiction under 28 U.S.C. § 1331 to a djudicate Maliandi’s FMLA claim and under 28 U.S.C. § 1367 to consider her associated state law claim . The District Court’s order denying MSU’s 12(b)(1) motion to dismiss on Eleventh Amendment immunity ground s is immediately appealable under the collateral order doctrine, imbuing us with jurisdiction under 28 U.S.C. § 1291. Cooper v. Se. Pa. Transp. Auth. , 548 F.3d 296, 298 (3d Cir. 2008) (citing P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.

, 506 U.S. 1 39, 144

- 45 (1993)). We consider whether MSU is owed Eleventh Amendment immunity de novo ; as “the party asserting immunity,” MSU “bears the burden of production

Similarly, beca use the issue s were not raised before us

, we do not address whether New Jersey has waived its Eleventh Amendment immunity from suit in federal court with regard to Maliandi’s NJLAD claim or the consequences for the Dist rict Court’s exercise of supplemental jurisdiction on remand

. S ee Wis. Dep’t of Corr. v. Schacht , 524 U.S. 381, 391

- 93 (1998) (implying that a federal court can retain jurisdiction over state law claims after federal claims are dismissed on Eleventh Amend ment grounds) ; Rudolph v. Adamar of N.J., Inc. , 153 F. Supp. 2d 528, 5 40

- 44 (D.N.J. 2001) (discussing differing applicability of the Eleventh Amendment to NJLAD claims brought in federal court against New Jersey in its capacity as an employer compare d
to t hose brought against the S tate in its legislative or executive capacity); see also Heine v. Comm’r of Dep’t of Cmty. Affairs

, C.A. No. 2:11

- 5347

, 2014 WL 4199203, at *5 (D.N.J. Aug. 22, 2014) (not published) ( discussing district court decisions regarding N ew Jersey’s immunity from suit in federal court for NJLAD claims ).6 and persuasion.” Febres v. Camden Bd. of Educ. , 445 F.3d 227, 228

- 29 (3d Cir. 2006)

.

II. Discussio n

Our Eleventh Amendment jurisprudence has wound its way through a number of variations

— both subtle and signif icant

— over the past decades. To distill the principles that govern our analysis today, we first review the constitutional underpinnings and prec edent relevant to the arm of the State inquiry , and we then apply those principles to determine whether MSU qualifie s as an arm of the State entitled to immunity.

A. History and Precedent

The Eleventh Amendment began as a simple rebuke of the Supreme Court’s decision in Chisolm v. Georgia

, 2 U.S. 419 (1793), that would have subjected State s to suits in federal court and saddled them with the weight of the burgeoning republic’s R evolutionary W ar debt s

. Hans v. Louisiana , 134 U.S. 1, 10

- 11 (1890) ; see also Hess v. Port Auth. Trans

- Hudson Corp. , 513 U.S. 30, 39 (1994) . More than two centuries later, however, it has evolved into a potent tool for State s to ensure that State s retain their sovereignty and integrity as constituent polities of our national government

. Hess , 513 U.S. at 39

- 40

. Thus

, the Supreme Court has recognized that the Amendment does not merely shield state treasuries . Instead, it advances two fundamental goals: safeguarding State s’ dignity and protecting their financial solvency. Id. at 52

. And although

, by its terms

, the Eleventh Amendment only withholds from the federal judiciary the power to decide cases brought against a State by a citizen of another State or a foreign government, U.S.7 Const. amend. XI, the Court has interpreted it t o ba r suits against a State by its own citizens

— not just those from other jurisdictions. Hans , 134 U.S. at 10

- 15 ; see also Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 54 (1996)

. Importantly for this case, the Court also has read the Amendment to bar not only suits against State s themselves, but also suits for damages against “arms of the State ”

— entities that, by their very nature, are so intertwined with the State that any suit against them renders the State the “real, substantial party in interest.” Ed elman v. Jordan , 415 U.S. 651, 663 (1974) ( quoting Ford Motor Co. v. Dep’t of Treasury , 323 U.S. 459 , 464 (1945)); see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 280 (1977) (using the term “arm of the S tate”); Febres , 445 F.3d
at 229.
Because the Eleventh Amendment provides the State s wi th sweeping immunity from suit, we ha ve been careful to ensure that its reach does not extend beyond proper bounds. Accordingly, w e employ a fact

- intensive, three

- step balancing
test to ascerta in whether a state

- affiliated entity is an “arm of the State ” that falls within the ambit of the Eleventh Amendment. Our initial recitation of the test came in Urbano v. Board of Managers , 415 F.2d 247 , 250

- 51 (3d Cir. 1969), cert. denied , 397 U.S. 948 (1 970)

, where we identified nine factors to consider. Two decades later in Fitchik v. New Jersey Transit Rail Operations, Inc. , 873 F.2d 655, 659 (3d Cir. 1989) (en banc)

, we attempted to consolidate those Urbano factors into a more manageable three

- factor test that still governs today

. As explained in more detail below

, the Fitchik factors

are (1) the funding factor: whether the state treasury is legally8 responsible for an adverse judgment entered against the alleged arm of the State ; (2) the status unde r state law factor : whether the entity is treated as an arm of the State under state case law and statute s ; and (3) the autonomy factor: whether

, based largely on the structure of its internal governance, the entity retains significant autonomy from state control. Id. B ecause , for the most part, we did not disagree with the Urbano fa ctor s , 3 but rather organized them under the headings of Fitchik ’s three factors, the layers of factors, sub factors, and consideration s that inform t hose subfactors can still m ake a n analysis seem dense, if not impenetrable. Moreover, each step of that analysis i s a “ fact

- intensive ” undertaking that requires a fresh analysis and “individualized

3 Although Urbano identified as a factor whether an entity performed a governmental or proprietary function, this factor was jettisoned in Fitchik in light of intervening Supreme Court pre cedent. Fitchik , 873 F.2d at 659 n.2 (citing Garcia v. San Antonio Metro. Transit Auth. , 469 U.S. 528, 546

- 47 (1985)). While the Supreme Court has since made reference to a “function” inquiry for Eleventh Amendment purposes, see Hess , 513 U.S. at 44

- 45 ( comparing the function of the entity at issue with that of an entity from a pre

- Garcia case and concluding the function was not “readily classified as typically state or unquestionably local”), and other Circuits still employ one in the Eleventh Amendment context, e.g. , Ernst v. Rising , 427 F.3d 351, 359 (6th Cir. 2005); Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & Caribbean Cardiovascular Ctr. Corp. , 322 F.3d 56, 65 & n.7 (1st Cir. 2003), we are bound by our C ourt’s Eleventh Amendment test that now eschews this inquiry, Fitchik , 873 F.2d at 659 n.2.9 determinations” for each entity claiming Eleventh Amendment immunity

. See Bowers v. Nat’l Collegiate Athletic Ass’n , 475 F.3d 524, 546 (3d Cir. 2007)

. After identifying the direction in which each factor points, we balance them to determine whether an entity amounts to an arm of the State

. Fitchik , 873 F.2d at 664; see also Cooper , 548 F.3d at 311. While our jurisprudence had long afforded the first factor

— state funding

— more weight than the others, see Fitchik , 655 F.2d at 664 , we recalibrated the factors in light of the Supreme Court ’s observation in Regents of the University of Califo rnia v. Doe , 519 U.S. 425

, 431 (1997)

, that an Eleventh Amendment inquiry should not be a “formalistic question of ultimate financial liability

. ” We
now treat all three Fitchik factors as co

- equals, Benn v. First Judicial Dist. of Pa. , 426 F.3d 233, 239

- 4 0 (3d Cir. 2005), with the funding factor breaking the tie in a close case, see Febres

, 445 F.3d at 229

- 30 (citing H ess , 513 U.S. at 47

- 48, 52).
We have had many occasions to apply the Fitchik (and, earlier, Urbano ) factors, ruling on the Eleventh Amendm ent status of entities ranging from school boards to public transit authorities to state

- affiliated institutions of higher learning . Of particular relevance to this case are our decisions concerning the Pennsylvania State College System, Rutgers Univers it y, and the University of Iowa. In 1976, we ruled en banc that Pennsylvania ’s Bloomsburg State Colleg e

was an arm of the State

, Skehan v. Bd. of Trs. of Bloomsburg State Coll. , 538 F.2d 53, 62 (3d Cir.) (en banc) ( Skehan I )

, cert. denied , 429 U.S. 979 (197 6), though our opinion there never mentioned, much less applied, Urbano . We later concluded

, under the Urbano rubric

, that the Eleventh Amendment also shields Pennsylvania’s State System of10 Higher Education

. Skehan v. State Sys. of Higher Educ. , 815 F.2d 244, 249 (3d Cir. 1987) ( Skehan II ). That same year, we concluded in Kovats v. Rutgers, The State University , 822 F.2d 1303 (3d Cir. 1987), that Rutgers

— a New Jersey public university that was initially chartered as a private institution

— was not an arm o f the State under our Urbano framework . Then in 2007, we considered the status of the University of Iowa in Bowers and determined that, under Fit c hi k , it was an ar m of the State on account of two of the three factors supporting immunity. See Bowers , 475 F.3d at 549.

These cases provide guidance as we consider MSU and are “helpful in terms of analytic models,” but they ultimately do not “ govern our decision as to [MSU] because

‘ e ach state university exists in a unique governmental context, and each must be considered on the basis of its own peculiar circumstances ’”

— including the specific statutes at play and the practical reality of the institution’s autonomy. Kovats
, 822 F.2d at 1312 ( quoting Soni v. Bd. of Trs. of the Univ. of Tenn. , 513 F.2d 347, 352 (6 th Cir. 1975) )

. 4

4 Indeed, all three of our past cases addressing institutions of higher learning are distinguishable in their own right. Skehan I

, which predates our modern Fitchik test, was based on the laws of Pe nnsylvania rather than New Jersey, and relied almost exclusively on a state court case that characterize d the college as an arm of the S tate, Skehan I , 538 F.2d at 62 (calling state court jurisprudence “dispositive of the sovereign immunity issue”)

— a myopi c analysis that is out of step with our multi

- factor test and that we have since held en banc should not be read to obviate the need to undertake a full Fitchik analysis

, Bolden v. Se. Pa. Transp. Auth. , 95311 The case law from our Sister Circuits is also illuminating. As MSU points out, they have almost uniformly concluded that state

- affiliated universities are arms of their respective State s. See, e.g.

, Kreipke v. Wayne State Univ.

, 807 F.3d 768 (6th Cir. 2015), cert. docketed , No. 15

- 1419 (May 23, 2016); Irizarry

- Mora v. Univ. of P.R. , 647 F.3d 9 (1st Cir. 2011); Md. Stadium Auth. v. Ellerbe Becket Inc. , 407 F.3d 255, 262 (4th Cir. 2005) (collecting cases for proposition that state universit ies are “[a]lmost universally” found to be arms of the State ); Watson v. Univ. of Utah Med. Ctr. , 75 F.3d 569 , 575 (10th Cir. 1996) (collecting cases for the proposition that the Tenth Circuit has “consistently found state uni versities are arms of the stat e ”); Kashani v. Purdue Univ. , 813 F.2d 843 , 845 (7th Cir.), cert. deni e d , 484 U.S. 846 (1987) (“The vast majority of cases considering the issue have found state universities to be forfended by the Eleventh Amendment.”); id. (“[While] [t]here are district court

F.2d 807, 815 n.8 (3d Cir. 1991) (en banc) (stat ing that it would be an “error” to read Skehan I to mean that “state law characterization is the only relevant consideration in determining if an agency is entitled to raise the Eleventh Amendment defense”). While Kovats dealt with a New Jersey institutio n, Rutgers is distinguishable from MSU both because of its unique origins as a private institution and the fact that it is governed by a different set of state laws. See 822 F.2d at 1310

- 12 ; c ompare N.J. Stat. Ann. §§ 18A:64

- 1 to

- 93 (laws governing state colleges like MSU)

, with id. §§ 18A:65

- 1 to

- 102 (Rutgers provisions). And Bowers si milarly dealt with a different S tate’s university system, which established the University of Iowa in the state constitution

— a trait not shared with New Jersey state coll eges like MSU. 475 F.3d at 548.12 opinions to the contrary[,]

. . . it would be an usual state university that would not receive immunity.”); Hall v. Med. Coll. of Ohio at Tol ed o , 742 F.2d 299 , 301

- 02 (6th Cir. 1984), cert. denied , 469 U.S. 1113 (1985) (collecting cases for the
propo sition that “[t]he great majority of cases addressing the question of Eleventh Amendment immunity for public colleges and universities have found such institutions to be arms of their respective state governments and thus immune from suit”).

As w e procee d with our own analysis , we are mindful of the near unanimity among the Courts of Appeals that the factors relevant to an Eleventh Amendment inquiry typically favor immunity in the state college setting . However, because the particulars of our Fitchik tes t differ from analogous tests in other C ircuits and because each entity seeking immunity warrants an individualized analysis, these cases do not di ctate the answer to the question of first impression with which we are presented today.
That question has bed eviled d istrict judges in our Circuit , who are divided in their application of the Fitchik test to MSU

. Compare Maliandi v. Montclair State Univ.

, C.A. No. 14

- 01398 (SRC), 2014 WL 3778259 (D.N.J. July 31, 2014) (not published ) (concluding MSU is not an ar m of the State ), and Ventura v. Montclair State Univ.
, C.A. No. 08

- 5792 (SRC), 2011 WL 550720 (D.N. J. Feb. 9, 2011) (not published ) (same), with Sarmiento v. Montclair State Univ.

, C.A. No. 04

- cv

- 4176, letter op. (D.N.J. Mar. 31, 2005) (concluding MSU is a n arm of the State )

. 5 W e now resolve

5 I t i s not just MSU sowing dissention among the district courts. Courts applying our Urbano and Fitchik rubrics to other New Jersey state colleges also have reached13 this dispute by concluding that MSU is an arm of the State

, and in the process , we seek to synthesize our jurisprudence regarding the Fitchik factors for the benefit of district courts in future Eleventh Amendment case s

.
B. Fitchik Analysis for MSU
After undertaking our own analysis of MSU’s Eleventh Amendment immunity, we cannot agree with the District Court’s determination that all three Fitchik factors counsel against immunity. For the reasons set forth below,

we conc lude that the funding factor counsels against immunity, but that the status under state law and autonomy factors

— while close

— tilt in favor of extending MSU immunity from suit. On balance, because two of the three co

-
inconsistent conclusions, in part because of the evolvin g nature of our case law and in part because the issue presents “a very close question,” N.J. Dep’t of Envtl. Prot. v. Glouchester Envtl. Mgmt. Servs. , Inc. , 923 F. Supp. 651, 655 (D.N.J. 1995). Compare Bostanci v. N.J. City Univ. , C.A. No. 08

- 4339 (SRC), 2010 WL 4961621 (D.N.J. Dec. 1, 2010) (not published) (denying immunity to New Jersey City University), and N.J. Dep’t of Envtl. Prot. , 923 F. Supp. at 665 (same to Glassboro State College and Trenton State College)

, with Nannay v. Rowan Coll

. , 101 F. Sup p. 2d 272 (D.N.J. 2000) (granting immunity to Rowan College), and Rehberg v . Glassboro State Coll. , 745 F. Supp. 1113 (E.D. Pa. 1990) (same to Glassboro State College). We note that Glassboro State College was later named Rowan College, and then renamed R owan University. Thus, a number of these cases rehashed the Eleventh Amendment immunity question for the same institution.14 equa l factors support MSU’s claim for i mmunity, we hold that MSU is an arm of the State that enjoys the protections afforded by the Eleventh Amendment

.
1. The Funding Factor
The funding factor , also called the “state

- treasury criterion,” Febres , 445 F.3d at 232 & n.4, hinges on “[w]hether the mon ey that would pay [a] judgment [against the entity] would come from the state,” Fitchik , 873 F.2d at 659

. We consider three subfactors: (1) a State ’s legal obligation to pay a money judgment entered against the alleged arm of the State ; (2) alternative so urces 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. Id. ; see also Cooper , 548 F.3d at 302

- 06.

i. The S tate’s Legal Obligation to Pay Money Judgments
The Supreme Court has made clear in the years since Fitchik that we must focus our Eleventh Amendment inquiry not on a mechanical analysis of whether a State will ultimately pay a judgment , but rather “ t he cr ux of the state

treasury criterion [is] whether the state treasury is legally responsible for the pa yment of a judgment against the [ alleged arm of the State ]

. ” Febres , 445 F.3d at 23 3 ; id. at 236 (“The absence of any legal obligation on the part of New J ersey to provide funds in response to an adverse judgment

. . . is a compelling indicator that the state

- treasury criterion

. . . weighs against immunity.”); accord Bowers , 475 F.3d at 546

- 47 (citing Doe , 519 U.S. at 431)

. Specifically, the Supreme Court has characterized the operative question as15 “whether a money judgment against a state instrumentality or official would b e enforceable against the State, ” Doe , 519 U.S. at 430, meaning that if a State only voluntarily indemnifies an entity, the funding fac tor is unlikely to tip in favor of immunity

, despite the practical reality that the State foots the bill for a money judgment, Bowers , 475 F.3d at 547. 6

Rather than identify a legally enforceable obligation on the part of t he State to pay money judgments entered against it, MSU relies largely on the argument that such money judgment s would indirectly affect the state treasury because “the University financial statements are included in the State’s annual financial accounting.” Appellant’s Br. 27

- 28

. MSU’ s primary argument thus appears to be that this reporting requirement would cause New Jersey to increase appropriations to cover losses that result from money judgments entered against the university

. Maliandi , 2014 WL 37782 59, at *2.

W e have consistent ly rejected the argument that a State ’s voluntary choice to pay a state

- affiliated entity’s li abilities

— even if that choice might be a foregone conclusion because of the State ’s desire to keep the entity afloat

— favors Eleventh Amendment immunity. E.g.
, Bo wers , 475 F.3d at 547; Febres , 445 F.3d at 236; Bolden v. Se. Pa. Transp. Auth. , 953 F.2d 807, 819 (3d Cir. 1991) (en

6 Conversely, the fact that a S tate is legally obligated to pay may be enough to satisfy this factor even if another entity

— e.g. , t he federal gove rnment

— will later indemnify the S t ate, causing the outlay by the S tate to have no actual impact on the state treasury. Doe , 519 U.S. at 431.16 banc); Fitchik , 873 F.2d at 661; Kovats , 822 F.2d at 1309. In stead, in conformance with Doe , we have made clear that “practical or indire ct financial effects of a judgment may enter a court’s calculus, but rarely have significant bearing on a determination of an entity’s status as an arm of the state”; rather , “[a] state’s legal liability (or lack thereof) for an entity’s debts merits far g reater weight, and is therefore the key factor in our assessment of” the funding factor. 7 Febres

, 445 F.3d at 236. MSU’s indirect effects argument is therefore unavailing.

MSU does not a r gue that judgmen ts against it would have a direct effect on the s ta t e t reasury

— and with good reason. We have iden tified only two exceptions to the rule that New Jersey law imposes no all

- encompassing legal obligation on the part of t he State to pay judgments entered against MSU. First, N.J. Stat. Ann. § 18A:3B

- 6(h) allo ws state colleges to elect to have the Attorney General represent them in suits brought under t he New Jersey Tort Claims Act

7 We have recognized two instances in which the “practical effect” of a judgment is tantamount to a legal obligation such that the entity may be entitled to Eleventh Amendment immunity. Cooper , 548 F.3d at 305 (discussing, but not applying, such scenarios); Febres , 445 F.3d at 235 n.9 (citing Hess , 513 U.S. at 50) (same). Both exceptions involve inst ances where Congress has put a prove rbial “gun to the head” of the S tate to sustain the entity even without a l egal obligation. See Alaska Cargo Transp., In c. v. Alaska R.R. Corp. , 5 F.3d 378 (9th Cir. 1993); Morris v. Wash. Metro Area Transit Auth. , 781 F.2d 218 (D.C

. Cir. 1986). Neither pertains to MSU.17 ( the “ Tort Claims Act”), id. § § 59:1

- 1 to : 12

- 3, in which case
t he State is obligated to indemnify a college (or its employees) for any resulting judgment. See also id. § § 59: 10

- 1 to

- 10. 8 Second, the New Jer sey Contractual Liability Act ( the “ Contractual Liability Act”), id. § § 59:13

- 1
to

- 10, expressly waives t he State ’s sovereign immunity for breach of contract claims arising fro m contracts entered into by “ S tate ” entitie s, id. § § 59:13

- 2,

- 3.

Even assuming that New Jersey would have the legal obligation to pay judgments against MSU under the Tort Claims Act and the Contractual Liability Act

, however, the exception s embodied in t hose statutes only prove the rule

, confirming the absence of a n overarching legal obligation on the part of t he State

. Abse nt such obligation, this subfactor counsels against treating MSU as an arm of the State

. Bowers , 475 F.3d at 546

- 47; Febres , 455 F. 3d at 236

.
ii. Alternative Sources of Funding
The second subfactor under the funding inquiry

— “whether the agency has the money to satisfy the judgment

8 Conversely, if a college opts not to use the Attorney General to represent and indemnify it in tort actions, the college may retain counsel of its choosing and has the legal obligation to pay money j udgments entered against it, N.J. Stat. Ann. § 18A:3B

- 6(h)

, counseling against immunity under the funding factor. A college’s ability to decide whether to impose a legal obligatio n on the S tate for tort claims obviously also bears on the other two Fitchik factors: status under state law and autonomy. See infra Parts II.B.2 & II.B.3.18 [itself], ” Fitchik , 873 F.2d at 659 , 662 9

— is more straightforward : we look to see if the entity has sources of funding aside from state appropriations and whether those funds c ould cover an adverse judgment. This necessarily involves a review of the percentage of funds a given entity receives from the State , but there is no hard

- and

- fast rule about how much fun ding from the State is enough to trigger immunity, and, in the wake of the Supreme Court’s decision in Doe, the question of legal liability ( i.e. , subfactor one, see supra Part II.B .1.i) remains paramount

. See Cooper , 548 F.3d at 303; accord Fitchik , 873 F.2d at 660 (“[T]he fact that an entity derives some of its income from the state does not mean that it is entitled to partake of the stat e’s immunity.

. . . What is significant is whether the money that pays the fine will come from the state treasury rath er than the agency’s funds

. . . .” ). Beyond budgetary percentages, we also consider under this subfactor the extent to which the State retains ownership over the funds it appropriates and whether the entity is insured against money judgments

. Fitchik , 8 73 F.2d at 660

- 62.
When reviewing the percentage of an entity’s funds that come from non

- state sources, we have regularly determined that alternative sources of funding

— even whe re only a small part of the entity’s overall budget

— counsel against immunity. For example, we have concluded that an entity has the capacity to pay money judgments out of its own funds even where the State appropriates 85

- 90% of the entity’s operating budget. Febres , 445 F.3d at 232

- 3 4 (noting

9 “[A]gency” here

— and elsewhere in our case law

— is used to describe an entity that has argued it is owed Eleventh Amendment immunity.19 that even where the State was the “pr incipal source” of the entity’s revenue, legal liability is the most important consideration post

- Doe ) ; accord Cooper , 548 F.3d at 303

- 06 (35

- 52% of the entity’s funds coming from the State ); Bowers
, 47 5 F.3d at 547 (21% of funds from the State ); Bolden , 9 53 F.2d at 818

- 19 (27% of funds from the State ); Fitchik , 873 F.2d at 660

- 62 ( less than 33% of funds from the State ); Kovats , 822 F.2d at 1308

- 09 ( 50

- 70% of funds in the general operating account from the State )

. In many of these
cases, we noted that the entity in question had the power to raise revenue itself, such as via fare increases for public transportation entities, or to dip into investments it had made in order to pay money judgments. See Cooper , 548 F.3d at 303

- 06 ; Christy v. Pa. Tpk. Comm’n

, 54 F.3d 1140, 1146 & n.7 (3d Cir. 1995); Bolden , 953 F.2d at 818

- 19; Fitchik , 873 F.2d at 661.

MSU directs us to its own 2013 and 2014 financial
statements to show that it is “ fiscally dependent” on t he State

, Appellant’s Br. 26

- 28. These reports indicate that, in the years 2012

- 2014, only 18.8

- 21.8% of MSU’s annual revenues came from state appropriations. 10 Meanwhile, MSU derives

10 See O’Connor Davies, LLP, Montclair State University (A Component Unit of the State of New Jersey) : Basic Financial Statements and Management’s Discussion and Analysis, June 30, 2014 and 2013 (“2013

- 2014 MSU Financial Statements”) 9

- 10 (2014), available at http://www.montclair.edu/media/mont clairedu/financetreasur er/controller/2014

- MSU

- Audit.pdf (last visited June 13, 2016); O’Connor Davies, LLP, Montclair State University (A Component Unit of The State of New Jersey): Basic Financial Statements and Management’s Discussion and Analysis and20 49.2

- 50.8% percent of its revenues from sources over which it has considerable co ntrol: e.g. , tuition, fees, and room and board

, 11 s ee N.J. Stat. Ann. §§ 18A:64

- 6(n), ( o ),

- 13

, - 18 , and is permitted to invest funds and retain the earnings on such investme nts, creating another source of funding sepa rate from the state coffers, id. § 18A : 64

- 18.2.

In addition to the mere existence of alternative sources of funding , we consider the degree to which funds appropriated by the State are owned by the State after being deposited into the entity’s bank account. 12 Fitchik , 873 F.2 d

Sc hedules of Expenditures of Federal and State of New Jersey Awards, June 30, 2013 and 2012 (“2012

- 2013 MSU Financial Statements”) 8

- 9, available at http://www.montclair.edu/media/montclairedu/financetreasur er/controller/FY13

- A

- 133

- (Awards).pdf (last visited June 13, 2016). Although these documents were not part of the record before the District Court, we may take judicial notice of them because they are “public documents,” N.J. Stat. Ann. § 18A:3B

- 6( l ); see also id. § 18A:3B

- 51, and because Maliandi does no t object to their consideration. See Oran v. Stafford , 226 F.3d 275, 289 (3d Cir. 2000) (citing to Federal Rule of Evidence 201(b)(2) and allowing, where the appellee does not object, an appellate court to take notice of the appellant’s properly authentic ated public documents that were required by law to be filed).

11 2013

- 2014 MSU Financial Statements 8

- 10; 2012

- 2013 MSU Financial Statements 8

- 9.

12 While Fitchik considered the S tate’s retention of ownership over appropriate funds in the second subfacto r21 at 66 1

- 62 (“[C]ontrol is

. . . significant to the funding facto r if it indicates ownership.”) ; see also Christy , 54 F.3d at 1145

- 46 (noting that a State lacks financial interest in the diminution of funds it no longer controls )

. Indeed, “[t]he magnitude of the state’s contribution” is of little rele vance if “once dep osited

. . . the [] funds belon g to the [entity]” because if
state

- appropriated funds are “ used to pay a judgment, we can say only that the judgment was satisfied with the [entity’s] monies .” Febres , 445 F.3d at 234; see also Kovats , 822 F.2d at 1308

- 09 (n oting that state contributions to Rutgers’s budget were comingled with the University’s tuition and other revenues into a discretionary pot of money over which Rutgers retained sole control )

. Here, although MSU must abi de by the “minimal” constraint tha t it spend its funds within the general parameters of t he State ’s overall budget appropriations, Kovats , 822 F.2d at 1311 (discussing Rutgers’s ability to spend freely in the context of autonomy), it otherwise may spend state

appropriated funds as it sees fit

, N.J. Stat. Ann. § 18A:64

- 6(e), (f). Further, leftover state funds are retained by MSU rather than returned to New Jersey’s t reasury. Id. § 18A: 64

- 18.1 (b)

. Thus, it cannot be said that t he State retains ownership over the funds once they have been a llocated to MSU

.

under the funding inquiry, 873 F.2d at 660

- 62, as we do here, later cases have considered it under the first subfactor, legal liability, discussed in Part II.B.1.i, Christy , 54 F.3d at 1146. Regardless, ownership is relevant to the funding factor and, i n addition, it bears on the third Fitchik factor: autonomy. See infra Part II.B.3.22 Another point we routinely consider in connection with alternative funding is whether a state

- affiliated agency has the authority to purchase liability insurance to prevent shortfalls that could arise in the wake of large money judgments

, so that the State is inoculated from a ny effect on its treasury. Bolden , 952 F.2d at 819; Fitchik , 873 F.2 d at 661

. That sheds little light here, however, as New Jersey authorizes state colleges to obtain liability insurance for tort, contract, and work ers’ compensation claims brought against them, N.J. Stat. Ann. § 18A:64

- 87, but does not authorize insurance across the board, cf. id. § 27:25

- 5(r) (authorizing the New Jersey Transit Corporation at issue in Fitchik to obtain “any type of insurance and ind emnify against loss or damage to property from any cause”).
On balance, MSU’s alternative sources of funding also tip against immunity.

iii. Statutory Immuni ty from Liability
The third subfactor stands for the simple proposition that where the State has exp ressly immunized itself from the entity’s liabilities, it thereby indicates the entity is not an arm of the State and hence not entitled to protection under the Eleventh Amendment

. 13 Here , New Jersey has immunized itself from the liability of its state col leges in two

13 We have been far from vigilant about separating this subfactor from the first, with some of our cases combining the consideration of statutory immunity with the legal l iability inquiry discussed in Part II.B.1.i. E.g.
, Cooper , 548 F.3d at 304. Here, we consider it separately in line with Fitchik ’s recitation of the three subfactors. 873 F.2d at 659.23 circumstances: (1) for loans taken out by a state college upon which the college later defaults, N.J. Stat. Ann. § 18A:64

- 6(t), i.e. , an exception to t he State ’s assumption of liability for contractual debts under the Contractual Liability Act ; and (2) for a state college’s violation of the requirements of the State College Contracts Law, 14 id. § 18A:64

- 6(k), an immunity of little significance to our analysis given that this law also immunizes the state colleges themselves

, id. § 18A:64

- 81

. T h ose isolated instances stand in stark contrast to the sweeping statutory immunity “f rom liability on judgments entered against Rutgers ” that we said counseled against Eleventh Amendment immunity in Kovats

. 822 F.2d at 1310

- 11 (citing N.J. Stat. Ann. § 18A : 65

- 8 ) ; accord Cooper , 548 F.3d at 304; Bolden , 953 F.2d at 819; Fitchik , 873 F.2d at 661

. 15

14 The State College Contracts Law imposes requirements and limitati ons on state colleges’ contractual authority, such as mandating that a college engage in competitive bidding for projects exceeding $26,200. See,
e.g. , N.J. Stat. Ann. § 18A:64

- 55.

15 We reject the argument that the S tate’s statutory immunity from liab ility in these two areas give s rise to a negative inference that the S tate is liable for judgments against MSU in all others

. Particularly in the absence of an y affirmative indication that the S tate has general responsibility for judgments against MSU, e. g. , N.J. Stat. Ann. § 18A:3B

6(h), we will not infer from two narrow statutory provisions

— one of which is an excepti on to an express waiver of the S tate’s immunity and the other of which simply makes clear that the statute does not serve as a waiver of24 * * *

In sum, while the third subfacto r tends to favor treating MSU as an arm of the State , the other funding subfactors tip decisively the other way. We th erefore c onclude that the funding factor counsels against Eleventh Amendment immunity.

2. The Status Under State Law Factor

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.” Fitchik , 873 F.2d at 659. In addition to these subfactors exp licitly listed in Fitchik , we have also considered the entity’s authority to exerc ise 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 m ake purchase s on its own behalf, and whether the entity owns its own real estate

. See,
e.g. , Bowers , 475 F.3d at 548 ; Bolden , 953 F.2d at 820; Fitchik , 873 F.2d at 662

- 63; Kovats , 822 F.2d at 1310.

imm unity

— a sub silent i o authorization of a raid on the state treasury

. Springer v. Gov’t of Philippine Islands , 277 U.S. 189, 206 (1928) ( explaining that courts do not draw negative inferences when “ a contrary intention on the part of the lawmaker is apparen t ”) ; Reilly v. Ozzard , 166 A.2d 360, 365 (N.J. 1960) (rejecting negative inferences when context indicates such inferences are improper)

.25 We have recognized that t he multifaceted nature of the status unde r state law factor can make it so hopelessly “checkered” that it does not “ significantly help in determining whether [ the entity] is entitled to immu nity from suit in federal court, ” and thus effectively drops out of our overall Fitchik analysis. Fitchik

, 873 F.2d at 662 (citing Kovats , 822 F.2d at 1310). That is not the case here, however. We address each consideration below and conclude that

, w hile MSU certainly has a ttributes that point both ways

, on the who le it s status under state law counsels in fa vor of extending Eleventh Amendment immunity.

Treatment Under State Law Generally. In determining “how s tate law treats the agency generally,” id. at 659, we look to (1) explicit statutory indications about how an entity should be regarded; (2) case law from the state courts

— especially the state supreme court

— regarding an entity’s immunity or status as an arm of the State ; and (3) whether the entity is subject to laws for which the State itself has waived its own immunity (such as state tort claims acts). E.g.
, Christy , 54 F.3d at 1148

- 49; Fitchik , 873 F.2d at 662

- 63; Skehan I , 538 F.2d at 62. Those i ndicators point both ways here , leading us to conclude that MSU’s general treatment under state law is simply inconclusive.
As for explicit statutory ind icators, MSU argues that New Jersey law squarely locates state colleges in the Department of State, thus indicating they e xist as agencies

— and therefore “arms”

— of the State . But the statute MSU cites is a double

- edged sword. True, N.J. Stat. Ann. § 18A : 3 B

- 27 provides that “any State institution of higher education

. . . shall be allocated to the Department of State

, ” but the statute continues: “[n] otwithstanding this allocation, any such institution shall be independent of any supervision26 or control of th e Department of State or any board, commission or officer thereof and the allocation shall not in any way affect the

. . . institutional autonomy ” of the college

. 16 MSU’s statutory “allocation” to t he State thus offers little guidance. 17

16 In a related argument directed at Fitchik ’s third factor, autonomy, MSU urges that New Jersey’s abolishment in 2011 of the Commission on Higher Education

— an entity that was designed to be a liaiso n between the colleges and the G overnor’s office and to engage in some administrative oversight of the colleges, N.J. Stat. Ann. § 18A:3B

- 13

— and its transfer of those duties to the Secretary of Higher Education, 43 N.J. Reg. § 1625(a), reflects a deliberate consolidation of power in a cabinet

- level official that strips the colleges of autonomy. As observed by the District Court, however, MSU’s characterization of this change is misplaced, for the implementing regulation expressly states that it was designed not only to “improve the effectiveness of the State’s oversight of higher education” but also to “improv[e] the strength and independence of boards of trustees

, ” id. ; thus it does not represent some sea change in the instituti ons’ autonomy under state law.

17 State colleges also are described with reference to the “State” or as “state agenc[ies]” in other statutory provisions. E.g.
, N.J. Stat. Ann. §§ 18A:3B

- 6(h) (referring to state colleges as “State entities”), 52:14B

- 2 (referring to entities subject to the New Jersey Administrative Procedure Act as “state agenc[ies]”), 59:1

- 3 (referring to certain entities subject to the Tort Claims Act as part of the “State”), 59:13

- 2 (s ame for the Contractual Liability Act). We attach only27 MSU’s treatment u nder New Jersey case law is likewise inconclusive. In Fuchilla v. Layman , 537 A.2d 652

, 655

- 67 (N.J.), cert. denied , 488 U.S. 826 (1988), the New Jersey Supreme Court invoked Urbano to determine that the University of Medicine and Dentistr y of New Jersey would not qualify as an alter ego of the State for purposes of Eleventh Amendment immunity and hence qualified as a “person” subject to liability for discrimination claims brought under 42 U.S.C. § 1983 and the NJLAD. Just three years later, however, the same C ourt explained that New Jersey City University (then known as Jersey City State College)

— a college very similar to MSU

— is a “State agency” for some purposes, suggesting that it would be immune from local regulations and property taxes, even though i t might not be for discrimination claims

. N.J. Educ. Facilities Auth. v. Gruzen P’ship , 592 A.2d 559 , 563 (N.J. 1991). 18 Thu s, the

limited significance to a S tate’s denominatio n of an entity as an arm of the S tate, however, for blind deference to a legislature’s description would abdicate the courts’ responsibility to conduct ind ividualized determ inations and would bestow up on S tates the unfettered ability to immunize the activities of any number of entities. See Christy , 52 F.3d at 1149 n.9 (citing Bolden , 953 F.2d at 815 n.8, 817).

18 We disagree with MSU that Fu chilla is not relevant to MSU because the college at issue in that case was then governed by a different set of statutes than those governing state colleges like MSU . While that is true as far as it goes, New Jersey Educational Facilities Authority then cited to Fuchil la to suggest that New Jersey City University

— a state college that is governed by the same statutes as MSU

— might not be immune from discrimination claims. 592 A.2d at 563.28 New Jersey Supreme Court

— purporting to adhere to our Urbano/Fitchik framework

— appears to have adopted a claim

- specific appro ach to immunity that turn s on “the fundamental purposes of the relevant laws or doctrines and the reasons [the court] believe[s] would best accord with the measure of independence the Legislature would intend to give to the State

- university system

. ” Id.

In Fitchik

, we cited Fuchilla favorab ly and characterized it as “ evinc[ ing ] some reluctance on the part of the New Jersey courts to accord immunity to agencies whose status under New Jersey statutes is ambiguous

. ” 873 F.2d at 663. Given the New Jersey Su preme Court’s subsequent decision in New Jersey Educational Facilities Authority

, however, its jurisprudence is of limited use to our analysis because

, to the extent it assumed our Urbano/ Fitchik test would authorize courts to parse claim

- specific Eleventh Amendment immunity , it was mistaken. We view that approach as untenable

— both practically and in principle

. Fitchik contemplated judicial determinations of Eleventh Amendment status for entities, not for claims, and carving discrimination claims out for special treatment does not square with that categorical model

. 19 Moreover, because

19 Of course, Congress may abrogate Eleventh Amendment immunity for specific claims pursuant to its authority under the Fourteenth Amendment, and S tates may waive their immunity to suit in federal court at their discretion if done unequivocally. Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 99 (1984); see also Pa. Fed’n of Spo rtsmen’s Clubs v. Hess , 297 F.3d 310, 323 (3d Cir. 2002).29 Fuchilla was decided before Fitchik condensed Urbano into three factors and before Benn rendered the funding factor co

equal, the propriety of Fuchilla ’s Eleventh Amendment analysis is suspect in light of those changes to our jurisprudence. See, e.g.

, Endl v. New Jersey , 5 F. Supp. 3d 689, 699

- 700 (D.N.J. 2014) (questioning the continued vitality of Fuchilla in a post

- Fitchik world); Overton v. Shrager , C.A. No. 09

- 6299 (MLC ), 2011 WL 2937363, at *4

- 5 (D.N.J. 2011) (same ). 20

20 MSU directs us to two additional state cases that do specifically address MSU, but neither purports to apply Fitchik

, and both give only mixed signals. In Chasin v. Montclair State University , the New Jersey Supreme Court implicitly recognized that MSU professors are state employees for purposes of the Tort C laims Act, thus entitling them to representation a nd indemnification by the S tate to the extent allowed by the Tort Claims Act , but that case also recognized that state colleges and their faculty retain significant autonomy regarding the defense of tort claims not afforded to other state entities and employees. See 732 A.2d 457, 469 (N.J. 1999); but cf. N.J. Educ. Facilities Auth. , 592 A.2 d at 563 (noting that state university employees may not be considered state employees in conflict

- of

- interest cases). And in Batkay v. Montclair State University , New Jersey’s intermediate appellate court called MSU “a state agency,” but it simultaneousl y recognized that, while MSU may be housed in the Department of State, it is deemed by statute to be
autonomous. See D kt. No. A

- 3806

- 02T2, slip op. at 4

- 6 (N.J. Super. Ct. App. Div. Jan

. 27, 2004) (per curiam) (citing N.J. Stat. Ann. § 18A:3B

- 27).30 The third indicator of treatment under stat e law

— whether the entity is subject to laws for which the State has waived its own immunity

— also does little to tip the scales here . On the one hand, MSU is sub ject to the Tort Claims Act, which typically counsels in favor of immunity because it implies that, like the State itself, MSU would be immune from tort claims absent the Act. On the other hand, this Tort Claims Act

— in contrast to the one we observed favo red immunity for the University of Iowa in Bowers
, 475 F.3d at 548 (citing Iowa Code ch. 699

, 670)

— also applies to municipalities and counties , which do not benefit from Eleventh Amendment immunity, Lake Country Estates, Inc. v. Tahoe Reg ’ l Planning Agency , 440 U.S. 391, 401 (1979), thus undercutting the inference that entities subject to this Act

a re otherwise immune from suit, Fitchik , 873 F.2d at 663 (discounting the pertinence to the immunity inquiry of New Jersey’s Tort Claims Act because it ap plies to political subdivisions as well)

. Separate Incorporation. Separate incorporation disassociates an entity from its State and thus weakens its claim to Eleventh Amendment immunity. See Fitchik , 873 F.2d at 663. This consideration has little bearing on MSU, however, for w hile New Jersey law provides that state colleges “have the power and duty to

. . . [ a]dopt and use a corporate seal,” N.J. Stat. Ann. § 18A:64

- 6(a), there is no indication that MSU has ever invoked this authority to actually incorporate. Cf. id. § 18A:65

- 2 and

- 11 (expressly preserving Rutgers’s corporate seal and independent corporate status from its time as a private institution)

. Ability to Sue and Be Sued. An entity is more likely to be an arm of the State and partake of Eleventh A mendment immunity if it lacks the ability to sue and be sued in its own31 name. S ee Fitchik , 873 F.2d at 663. State colleges like MSU enjoy no explicit grant of such authority, and state case law indicates that, in the absence of an affirmative grant of su ch power, a state college cannot sue and be sued in its own right. Frank Briscoe Co. v. Rutgers, the State Univ ersity , 327 A.2d 687, 693 (N.J. Super. Ct. Law Div. 1974). 21

Not only does the absence of an affirmative grant of the power to sue and be sued i ndicate MSU lacks such authority, but provisions of the New Jersey code that gov ern MSU support that conclusion as well

. For example, the Tort Claims Act and the Contractual Liability Act , which do not apply to entities that can sue and be sued, N.J. Stat . Ann. §§ 59:1

- 3, :13

- 2 , do apply to state colleges like MSU, see id. § 18A:3B

- 6(h) (authorizing state colleges to use the Attorney General to represen t them in Tort Claims Act suits ); id. § 59:13

- 2 (providing that entities that can sue and be sued are
not subject to the Contractual Liability Act); Stony Brook Constr. Co. v. Coll. of N.J. , 2008 N.J. Super. Unpub. LEXIS 799, at *38

- 39 (N.J. Super. Ct. App. Div. June 16, 2008) (unpublished) (concluding that because a state college governed by the same statute s as MSU cannot sue and be sued, it is subject to the Contractual Liability Act)

.

21 The New Jersey Superior Court deemed Rutgers an exception to this rule because it had the power to sue and be sued in its capacity as a private institution and, in the absence of contrary legislative intent, thereby retained that power when it became a public university, notwithstanding the absence of any affirmative grant of such authority by the legislature. Frank Briscoe Co.

, 327 A.2d at 693

.32 In addition, although state colleges like MSU were authorized by statute to make a binding election within a certain window of time to retain private counsel (instead of b eing represented by the Attorney General) to defend against tort claims, which might indicate an ability to sue and be sued generally, the same statute specifies that opting for private representation renders the college “a sue and be sued entity for the p urposes of the ‘New Jersey Tort claims Act’ only.” N.J. Stat. Ann. § 18A:3B

- 6(h). The statute also provides that, should a college opt for private representation, it must provide its employees with the “defense and indemnification” that they, as state em ployees, would “otherwise

. . . be entitled to from the Attorney General pursu ant to [the Tort Claims Act].” Id. These provisions make clear that, in the normal course, colleges like MSU are treated for litigation purposes like any state agency and thus may not sue and be sued under New Jersey law

. Indeed, the only indication that MSU can sue and be sued in its own name is that it hired a private law firm to bring a civil suit in 2012. See Montclair State Univ. v. Oracle USA, Inc. , C.A. No. 11

- 2867 (FLW ) , 2012 WL 3647427 (D.N.J. Aug. 23, 2012 ). In supplemental briefing, MSU argued that this suit was not evidence of any general statutory authorization to sue and be sued because MSU was specifically permitted to bring that suit under N.J. Stat. Ann. §§ 18 A:3B

- 6(h) and 18A:64

- 7. But neither statute supports that assertion. While § 18A:3B

- 6(h) authorizes state colleges “[t]o retain counsel of the institution’s choosing,” for the reasons explained above, the same provision indicates that state colleges are authorized to sue and be sued only in the limited context of Tort Claims Act claims. Setting aside the myriad reasons a college may have to retain counsel other33 than to pursue litigation, the lawsuit in Oracle proceeded on contractual claims

— after all tor tious claims had been dismissed

— in apparent defiance of the limited, torts

- only scope of sue and be sued authority afforded to state colleges by statute. 2012 WL 3647427, at *12. And § 18A:64

- 7 authorizes colleges to “ exercise the powers, rights and priv ileges that are incident to the proper government, conduct and management of the college

. . .,” but it does not reference litigation at all. That this appears to be the sole instance in which MSU has brought suit in its own name, and given its lack of au thority to sue and be sued outside the Tort Claims Act context, we suspect MSU acted outside of its authority when it filed suit in Oracle , and we will not abrogate Eleventh Amendment immunity on the basis of an apparent aberration. In sum, MSU’s inabilit y to sue and be sued favors immunity

. Immunity from State Taxes. It is undisputed that MSU and other state colleges are immune from state taxes and from municipal and county ordinances. O’Connell v. State

, 795 A.2d 857, 863 (N.J. 2002) (“Montclair [Sta te University] is exempt from federal and state taxation.”); s ee also N.J. Educ. Facilities Auth. , 592 A.2d at 563 ( indicating that New Jersey City University, which is governed by the same statutory scheme as MSU, would be immune from local land

- use regul ations ). This fact clearly weighs in favor of immunity. See Fitchik , 873 F.2d at 663.

Eminent Domain. S tate colleges have the power of eminent domain. N.J. Stat. Ann. § 18 A :64

- 6( l ). Because this is a sovereign power, it tips slightly in favor of immu nity, but, just as with the Tort Claims Act, we take this fact with a grain of salt because New Jersey’s political subdivisions also have this authority. Fitchik , 873 F.2d at 663.34 Administrative Procedure and Civil Service Laws. An entity’s claim to imm unity is stronger if it is subject to a State ’s administrative procedure and civil service laws. Kovats , 822 F.2d at 1310 (noting that Rutgers’s claim to immunity was weakened by the fact that

, “unlike other state agencies, [Rutgers is] not subject to civ il service laws

. . . or administrative procedure requirements”). State colleges like MSU are subject to the strictures of the New Jersey Administrative Procedure Act, N.J. Stat. Ann. §§ 52:14B

- 1 to

- 31, when carrying out certain disciplinary or employmen t proceedings, and the decisions rendered by the colleges in those instances are subject to judicial review. Id. § 18A:3B

6(f). Moreover, for a significant subset of employees, state colleges are subject to New Jersey’s civil service laws

, i d. § 18:64

- 6( i)

— a fact that, according to MSU , is unique among the State s

. MSU also notes that it should be viewed more like a state agency because its employees benefit from the state health care and pension programs, N.J. Stat. Ann. § 18A:66

- 170, and we agree this t rait is relevant. These attributes counsel in favor of immunity.

Power to Enter Contracts

. W e also consider whether an entity may enter contracts on its own accord , which cuts against immunity, see Kovats , 822 F.2d at 1310 (noting that Rutgers is not su bject to New Jersey’s competitive bidding statutes), and whether its contractual authority is subject to
state

- imposed limits , which cuts in favor

, s ee Bowers , 475 F.3d at 548 (noting that the University of Iowa “is unable to buy or transfer real estate wi thout the express permissi on of” another state agency)

. Unhelpfully, f or New Jersey state colleges, the answer is “yes” to both questions, s ee N.J. Stat. Ann. § 18A:64

- 6(k) (authorizing state colleges to enter contracts subject to the provisions of the St ate College35 Contracts Law, N.J. Stat. Ann. § § 18A:65

- 52 to

- 93 ), rend er ing this consideration of little relevance.
Ownership of Land. Finally, we take note of whether
a state

- affiliated institution of higher learning retains title of the land on which it sits, with state ownership tipping in favor of immunity. Bowers , 475 F.3d at 548 (noting that, per the state constitution, Iowa owne d the University of Iowa’s land) ; Kovats , 822 F.2d at 1309 (noting that Rutgers retained title to the land on which it sits ). Here this consideration slightly disfavors arm of the State status , as MSU appears to retain title to at least some of its land. New Jersey state colleges are authorized to purchase and own property without seeking state permission, implying that, in such instances, the property is titled under the college’s name. N.J. Stat. Ann. § 18A:64

- 6(k), (q). And although state law provides that parcels “titled in the name of the State Board of Higher Education or the State Department of Higher Education, whic h are occupied by a public institution of higher education [,] shall be titled in the name of the State of New Jersey
, ” i d. § 18A:72A

- 29, it also describes certain land as being “owned by [a] university or by [a] particular college,” id. § 18 A :72A

- 26, and c ontemplates land conveyances “executed and delivered in the name of the college, ” id. § 18A:72A

- 29.

* * *
We emerge from this analysis with subfactors on both sides of the scale as to MSU’s “status under state law.” One of them

— own ership of land

— po ints against immunity, and three others

— treatment under state law generally, separate incorporation , and power to enter contracts

— are inconclusive

. But c onsidering tha t MSU cannot sue and be36 sued in its own name , is immune from state taxes, can exercise t he power of eminent domain, and generally is subject to New Jersey administrative procedure and civil service laws, the balance of considerations defining MSU’s “status under state law” cuts in favor of immunity

. T he second Fitchik factor thus tips in MSU ’s favor

.
3. The Autonomy Factor
Although an entity’s treatment under state law has obvious repercussions for the autonomy of its operations, Fitchik directs that autonomy be analyzed as a distinct factor, focusing on the entity’s governing structure and th e oversight and control exerted by a State ’s g overnor and legislature

. See, e.g.

, Febres , 445 F.3d at 231

- 32 ; Fitchik , 873 F.2d at 663

- 64. The lesser the autonomy of the entity and greater the control by the State , the greater the likelihood the entity wi ll share in the State ’ s Eleventh Amendment immunity. While the New Jersey code again gives some inconsistent signals, we conclude it imposes sufficient constraints on MSU’s autonomy to favor immunity

. Our benchmarks, at the opposite ends of the spectrum,

are Rutgers and the University of Iowa

. In Kovats , we concluded Rutgers was “largely autonomous.” 822 F.2d at 1311. It had two governing boards: the eleven

- member Board of G overnors, o f which six were appointed by the G overnor of New Jersey , and the Bo ard of T rustees, a minority of which were appointed by the G overnor. Id. Because of the institution’s history as a private institution, the trustees held significant power, further insu lating decisionmaking from the G overnor’s control. Id. By statute, both boards were “given a high degree of self

- government ” and were empowered to act “without recourse or reference to37 any department or agency of the state, except as otherwise expressly provided

. ” Id. ( quoting N.J. Stat. Ann. §§ 18A:65

- 27(I)(a),

- 28 ). T he boards were encumbered by only two
state

- imposed limitations, the effect of which we deemed “minimal”: the Board of G overnors had to comply with the State ’s budget appropriations and abide by state laws and regulations. Id. Moreover, Rutgers was not r equired to manage its funds as public monies, could establish accounts and i nvest or withdraw funds as desired, could make unregulated spending decisions within the broad contours of the State ’s appropriations, only had to report its financial choices to t he State (rather than obtain approval from the State ) , and did not have to comply with civil service, competitive bidding, or administrative procedure requirements. Id. at 1311

- 12. In short, the G overnor and
state legislature had little power over the in ner workings of Rutgers aside from a small number of appointments and overall spending parameters for state funds.
Contrast the University of Iowa , where we concluded the entity was not autonomous

. The B oard of T rustees , we determined, was “tightly const rained by state authority” because all nine members of t he B oard were appointed by the G overnor for six

- year terms and were removable by the G overnor for cause (with state senate approval); the Board’s expenses were reimbursed by the State and reported to the G overnor; various state statute s constrained the B o ard’s procurement capabilities , ability to accept and administer trusts, and the number and loc ation of meetings allowed; the B oard could not acquire or transfer real estate without permission fr om a c ouncil that included the G overnor a nd members of his cabinet; the B oard had to turn over ownership of all patents and copyrights to the State ; the B oard was38 required to file biennial budget reports to the G overnor a nd legislature; and the B oard had to hire a budget analyst to prepare its budget. Bowers , 475 F.3d at 548

- 49.

While MSU shares characteristics of both of these schools, it is, on the whole, more akin to the University of Iowa, and hence, we conclude, not autonomous. The G overnor looms large in the affairs of New Jersey state colleges. All members of the Board of T rustees are appointed by the G overnor and confir med by the state senate for six

year terms, from which they are removable for cause. N.J. Stat. Ann. § 18A: 64

- 3. In addition, the G ov ernor is statutorily designated as the public “employer” of all college employees , which vests him with the sole power to collectively bargain on their behalf. Id. § 18A: 64

- 21.1

. Although the G overnor possess es no apparent veto authority over state colle ge decisions, 22 the Secretary of Higher Education , a member of the G overnor’s cabinet, has authority to issue master plans for higher education in t he

22 We did not consider the relevance of a gubernatorial
veto in Kovats or Bowers , but we did in Fitchik , where we d etermined the entity’s board was “sign ificantly autonomous,” but the G overnor could subsequently veto the board’s actions. 873 F.2d at 663

- 64; see also Febres , 445 F.3d at 230

- 31 (considering the effect of the G overnor’s “constrained” veto power on autono my). Our conclusion in Fitchik that the particular combination of significant autonomy and gubernatorial control counseled “slightly” in favor of immunity , 873 F.2d at 664, has little bearing here where MSU’s b oard cannot be described as “significantly

au tonomous.”39 State , license and accredit the institutions, impose ethics rules for them , approve certain new academic p rograms, review budget requests, and issue regulations relating to licensure, outside employment, tuition, personnel, tenure, and retirement programs. Id. §§ 18A:3B

- 14,

- 15 ; see also 43 N.J. Reg. § 1625(a). The Secretary may also

, “with the

concurrence o f the G overnor,” visit a school at any time to review its financials and compliance with all a ppropriate laws and regulations and may issue subpoenas to investigate suspected wrongdoing. N.J. Stat. Ann. § 18A: 3B

- 34. The colleges also are required to spen d their budgets in accordance with the general provisions of the state budget and appropriations, and may be subject to audit at any time to

e nsure such conformance. Id. § 18A: 64

- 6(f).

New Jersey law further constrains state colleges like MSU by subjecti ng them to the Administrative Procedure Act , the State College Contracts L aw, and the civil service laws

. 23 Id. §§ 18A : 3B

- 6(f) , : 64

- 6(h), (k), (w), (x)

, : 64

- 52 to

- 93

. In addition, they must comply with cert ain limitations on their ability to make deposit s in financial institutions absent security from the institution, id. § 18A : 64

- 18.5 ; restrict their government relations and lobbying activities according to statutory bounds, id. § 18A : 3B

- 54 ; and have their contractual obligations tied to the state coffer s under the Contractual

23 Academic faculty are excepted from the civil service laws, giving colleges considerable autonomy to set salaries for those individuals and to hire or fire them without being subject to review by the Vacancy Review Board . N.J. Stat. Ann. § § 18A:64

- 21.2,

- 21.3.40 Liability Act, id. § 59:13

- 1 to

- 10; Stony Brook Constr. Co.

, 2008 N.J. Super. Unpub. LEXIS

, at *38

- 39

.
These colleges are also subject to significant reporting requirements and rules for internal governance. For example, they m ust hire an independent auditor and prepare a publicly available audit, prepare an annual report on their general operations, prepare a long

- range facilities plan that includes a description of the source of non

- state funds , and present the G overnor and le gislature with an annual budget report. N.J. Stat. Ann. §§ 18A : 3B

- 6( l )

, - 35

, - 39

, - 48 to

- 51

, :64

- 6(d)

. Moreover, each college’s board of trustees is required to hold a September meeting every year

, and the presidents of each college (who are , themselves

, selected by the gubernatorial

appointed board

, id. § 18A:64

- 6(g) ) are required by law to sit on the President s ’ Council

. Id. §§ 18A:3B

- 7, :64

- 4.
At the same time, we recognize MSU bears some hallmark s of an autonomous entity. For example, the New Jers ey legislature has on many occasions declared its intention for state colleges to have “ institutional autonomy. ” Id. § 18A:3B

- 27

. 24 W hile trustees are appointed by the

24 See also N.J. Stat. Ann. § 18A : 64

- 7 (characterizing the boards’ powers as being “exercised without recourse or referenc e to any department or agency of the State ”); id. § 18A : 3B

- 2 (seeking “the elimination of unnecessary State

overs ight” and providing “greater decision making and accountability

. . . at the institutional level” ); id. § 18A : 64

- 1 (offering state colleges “a high degree of self

- government” ). Although we view skeptically a state legislature’s denomination of an entity a s an arm of the State, we do so to prevent S tates from sweeping too many entities into the ambit of the Eleventh Amendment, see supra n.17 ; that concern is41 G overnor, they receive no compensation and can only be removed from their six

- year term s for cause

, according them considerable decisional independence once appointed

. Id. § 18A:64

- 3,

- 5; accord Univ. of R.I. v. A.W. Chesterton Co. , 2 F.3d 1200, 1208 (1st Cir. 1993)

. But cf. Bowers , 475 F.3d at 549 ( noting that the University of Iowa was n ot autonomous in part because the G overnor could remove board members for cause)

. And th e Board of T rustees does retain some degree of self

- governance and significant authority to manage MSU

. 25 But we are not persuaded that these attributes of

absent when a legislature indicates an entity is no t an arm of the S tate by describing it as autonom ous, and we thus may give more weight to such pronouncements. Here, however, in the broader context of the colleges’ reporting obligations, government oversight, and statutory placement in the Department of State, we take these pronouncements to reflect
t he legislature’s effort to navigate between granting colleges the autonomy necessary for academic i ndependence and competitiveness on the one hand, and providing significant oversight over the ir internal governance on the other.

25 F or example, it retai ns power to choose its own size (between seven and fifteen members) and to set the number and dates of its meetings (aside from the required September meeting). N.J. Stat. Ann. § 18A:64

- 3,

- 4. In addition, it is authorized , among other things, to set, ra ise, and keep tuition and fees, id. §§ 18A:3B

- 6(c), :64

- 6(n), ( o ),

- 13,

- 18, to settle disputes (under the Administrative Procedure Act rules), id. § 18A:3B

- 6(f), to invest and reinvest funds (and save its earnings ), id. §§ 18A:3B

- 6(g), :64

- 18.2, to purcha se real estate and other property without preapproval (but subject to limits), id. § 18A:64

- 6(k), (q) , to set its own educational42 independen ce , when weighed against the indicia of state control, make MSU autonomous.

* * *

In sum, n otwithstanding that it retains some modicum of autonomy and that the indicia of state control are not as “tight[]” as in Bowers , 475 F.3d at 549, we conclude that MSU’s autonomy is constrained enough to tip this factor in favor of immunity.

4. Balancing
The upshot of our review is that Fitchik ’ s funding factor weighs against immunity, but its status under state law and autonomy factors both favor immunity. Thus , on balance, the Fitchik factors favor MSU’s claim to Eleventh Amendment protection. See Bowers , 475 F.3d at 549

- 50. We recognize that

, absent recourse to the federal courts, Maliandi may have limited and unsatisfying avenues to obtain relief for the al leged discrimination she suffered. Yet, comity and state sovereignty are constitutional precepts and lynchpins of our federalist system of government, and where, as here, the State creates an entity that functions on balance as an arm of the State , the El eventh Amendment’s protection must carry the day. Accordingly

, the constitutional right of the State of New Jersey to be free from private suit in fe deral court must be

curriculum and internal policies, id. § 18A:64

- 6(b), (c), to form, along with other state institutions, 501(c) organizations, id. § 18A:3B

- 6.1, to purchase some types of insurance

, id. § 18A:64

- 87, and to c ontrol its own grounds, buildings, and other property, id. § 18A:64

- 19

.43 respected, and , unless the District Court determines on remand that New Jersey has wai ved its immunity for Maliandi’s NJLAD claim, the suit against MSU must be dismissed

.
III. Conclusion
For the foregoing reasons, we will reverse and remand the case for proceedings consistent with this opinion.