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Mancuso v. New York State Thruway Auth.

ELR Citation: 26 ELR 21418
Nos. 95-7443, 86 F.3d 289/42 ERC 1961/(2d Cir., 06/13/1996) aff'd

The court holds that the New York State Thruway Authority is not immune from suit in federal court under the Eleventh Amendment to the U.S. Constitution. Plaintiffs sued the Thruway Authority and the city of New Rochelle, New York, alleging that defendants had violated the Federal Water Pollution Control Act by discharging pollutants into a bay. The court first holds that it has jurisdiction to hear an immediate appeal from the portion of the district court's order that denies the Thruway Authority's Eleventh Amendment claim, because that claim falls squarely within the collateral order exception set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). The court also has jurisdiction to hear the Thruway Authority's argument of immunity from state-law causes of action under New York law because that argument is both separate from the merits of plaintiffs' action and, if meritorious, would entitle the Thruway Authority not to be subject to suit. The court, however, lacks jurisdiction over the Thruway Authority's additional state-law defenses, because those defenses are neither inextricably intertwined with, nor necessary to the resolution of, its immunity claims.

Turning to the Thruway Authority's Eleventh Amendment defense, the court holds that the six factors set forth in Feeney v. Port Authority Trans-Hudson Corp., 873 F.2d 628 (2d Cir. 1989), for determining such immunity are evenly balanced. The first factor, how the Thruway Authority is referred to in the documents that created it, tips slightly in favor of Eleventh Amendment immunity, because the legislature has accorded the Thruway Authority some traditional state powers. The second factor, how the governing members of the Thruway Authority are appointed, favors a finding of immunity, because the Thruway Authority's board members are appointed by the governor with the advice and consent of the state senate. The third factor, how the Thruway Authority is funded, weighs against immunity, because no provision of New York law requires the state to fund the Thruway Authority's operations and the limited nature of the instances in which the state has allocated funds to the Thruway Authority establishes that in general the Thruway Authority is self-funded. The fourth factor, whether the Thruway Authority's function is traditionally one of state or local government, weighs in favor of immunity, because the Thruway Authority performs a function that a state would normally provide. The fifth factor, whether the state has veto power over the Thruway Authority's actions, weighs against immunity, because the state does not have this power. And the last factor, whether a judgment against the Thruway Authority will place the state treasury at risk, weighs against finding immunity, because the state is not legally obligated to pay for the Thruway Authority's debts and the Thruway Authority is structured to be self-sustaining. Turning to the purposes underlying the Eleventh Amendment, the court finds that the state treasury is not even minimally at risk and that subjecting the Thruway Authority to suit in federal court would not be an affront to the dignity of New York. The court, therefore, concludes that the Thruway Authority in not entitled to Eleventh Amendment immunity. Finally, the court holds that because the Thruway Authority's answer did not assert a defense based on §11(a) of the New York Court of Claims Act, it waived the defense that plaintiffs' failure to serve their notice of claim letters and complaint on the New York Attorney General requires dismissal of their state-law claims.

[The district court's opinion is digested at 26 ELR 20787.]

Counsel for Plaintiffs
John A. Tartaglia
535 N. Broadway, White Plains NY 10603
(914) 289-0800

Counsel for Defendant
Dennis C. Vacco, Attorney General
Attorney General's Office
New York State Department of Law
The Capitol, Albany NY 12224
(518) 474-7124

Before OAKES, MAHONEY, and WALKER, Circuit Judges.