2005 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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
The Pennsylvania court system is divided into 60 judicial 1

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

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”), brought suit against his former employer 1

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. 
 In its answer to the complaint, the Judicial District denied 2

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

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”). After some 2

activity in the District Court, the Judicial District filed a motion
4

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
5

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
6

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. WarnerLambert 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
7

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.
 In Garrett, the Court considered only Title I, the Title at 3

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).

 In 42 U.S.C. § 12202, Congress provides: “A State shall 4

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

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, the Supreme Court may hold, as it did in Garrett, 3

id. at 363, that Congress did not act pursuant to a valid grant of

constitutional authority. It follows that Pennsylvania, if sued 4

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.
9

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 
10

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.
11

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. 
12

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.

____________________