Appeal by defendant Palisades Interstate Park Commission by permission pursuant to 28 U.S.C. § 1292(b), from an order of the United States District Court for the Southern District of New York (Knapp, J.) denying defendant's motion to dismiss on the ground of Eleventh Amendment immunity from suit. Reversed.
Gurfein and Meskill, Circuit Judges, and Bartels, District Judge.*fn*
Plaintiffs bring this civil rights action against Palisades Interstate Park Commission ("Commission") and three officers of the Commission under 42 U.S.C. §§ 1983 and 1988, alleging jurisdiction under 28 U.S.C. §§ 1331 and 1343, seeking compensatory and punitive damages of $600,000 predicated upon false arrest, illegal search and seizure and certain pendent state claims of prima facie tort and defamation.
The facts inferred from the rather vague allegations of the complaint, which we accept as true, are as follows: On June 15, 1974, plaintiff Franklin Mitchell was driving his automobile with plaintiff Alvin Trotman as occupant on Palisades Interstate Parkway when they were halted without a warrant by two park policemen, employees of the State of New York assigned to the Commission, who forced the plaintiffs outside of the automobile at gunpoint and searched the car. The plaintiffs were not arrested but at the end of the search the defendant falsely accused the plaintiffs of possessing a quantity of marihuana in the car and thereafter defamed the plaintiffs by reporting such false information to their employer, which resulted in their suspension from work, loss of pay, embarrassment and humiliation. Plaintiffs contend that the officers' action violated the plaintiffs' rights under the Fourth, Fifth, Eighth and Fourteenth Amendments and that the Commission is liable under a pendent state claim under the doctrine of Respondeat Superior.
The Commission moved pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss the complaint upon the ground of Eleventh Amendment immunity from suit. Judge Knapp denied the motion, holding that the Commission was not entitled to immunity from suit under the Eleventh Amendment granted to the states primarily because the Commission could not pledge the credit of either state except by and with the authority of the legislature thereof, and certified this issue for interlocutory appeal. We disagree.
The fundamental issue on this appeal is whether the plaintiffs may bring this suit in the federal court, which poses two inquiries: (i) whether this suit against the Commission may be considered a suit against the State of New York itself; and, if so, (ii) whether the ensuing Eleventh Amendment immunity from suit in the federal court has been waived by the state. Not involved is the question of state immunity from tort liability (cf. The Onteora, 298 F. 553 (S.D.N.Y. 1923)) as distinguished from Eleventh Amendment immunity or from liability under 42 U.S.C. §§ 1983 and 1988.
On June 2, 1937, New York and New Jersey, in order to provide greater flexibility and harmony in the management of the park lands within their borders known as Palisades Interstate Park, entered into a compact approved by Congress on August 19, 1937, creating a "body corporate and politic" known as the "Palisades Interstate Park Commission."*fn1 Among other things, the articles of the compact vested title to the park lands in the Commission and provided for the appointment of its members by the Governors of both states. Article II provided that the Commission "shall be a joint corporate municipal instrumentality of both the state of New York and the state of New Jersey for the purpose of effecting the objects of this compact and which shall be deemed to be performing governmental functions of the two states in the performance of its duties"; that the Commission "shall have power to sue and be sued, to use a common seal and to make and adopt suitable by-laws" and further, that "the members of the commission shall constitute a board." Article III of the compact permits each state unilaterally to modify the functions and powers of the Commission with respect to those park lands lying within the particular state, and the Commission has been given functions and powers in New York different from those in New Jersey.*fn2 Article VI of the compact provided that the Commission "shall not pledge the credit of either state except by and with the authority of the legislature thereof." Article VII of the compact covered tort liability and expressly stated that:
"Neither the state of New York nor the state of New Jersey shall be liable for any torts of the commission, its members, officers or employees, except as provided by the laws of such state, but each member, officer and employee of the commission shall, with respect to any tort committed by him in the exercise of his duties or in the course of his employment as such member, officer or employee, be deemed to be an officer or employee of the state where such tort was committed, and any liability arising from such tort shall be governed by the laws of such state."
While there are many factors*fn3 which must be considered in determining whether a state instrumentality can raise the bar of the Eleventh Amendment in a particular suit, the most significant is whether any liability against the agency must be paid from public funds in the state treasury. The Supreme Court held in Edelman v. Jordan, 415 U.S. 651, 663, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974):
"Thus the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. Great Northern Life Insurance Co. v. Read [322 U.S. 47, 88 L. Ed. 1121, 64 S. Ct. 873 (1944)]; Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 90 L. Ed. 862, 66 S. Ct. 745 (1946)."
The Court held later in Fitzpatrick v. Bitzer, 427 U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976), that when Congress, acting under section five of the Fourteenth Amendment, authorizes federal courts to award money damages in favor of a private individual against a state guilty of discrimination under Title VII of the Civil Rights Act of 1964, the Eleventh Amendment is no bar. This action is brought, however, under 42 U.S.C. §§ 1983 & 1988 which contain no such authorization for the award of money damages against the states. The Supreme Court noted in Edelman that there is no remedial power in a federal court to require the payment of funds from a state treasury in a § 1983 action. We believe that ...