Amicus Curiae Brief — Cedric Galette, Petitioner v. New Jersey Transit Corporation

No. 24-1021

In the Supreme Court of the United States

CEDRIC GALETTE, PETITIONER

v.

NEW JERSEY TRANSIT CORPORATION,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

BRIEF FOR THE STATES OF TEXAS, ALABAMA,

ALASKA, ARKANSAS, GEORGIA, IDAHO, INDIANA,

IOWA, KANSAS, LOUISIANA, MICHIGAN,

MINNESOTA, MISSOURI, MONTANA, NEBRASKA,

NORTH DAKOTA, OHIO, OKLAHOMA,

PENNSYLVANIA, TENNESSEE, VIRGINIA, AND

WYOMING AS AMICI CURIAE IN SUPPORT OF

RESPONDENT

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

OFFICE OF THE TEXAS

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Aaron.Nielson@oag.texas.gov

(512) 936-1700

AARON L. NIELSON

Solicitor General

Counsel of Record

WILLIAM F. COLE

Principal Deputy Solicitor

General

JEFFREY A. STEPHENS

Assistant Solicitor General

TABL E OF C O NTENTS

Page

Table of Contents ...................................................... I

Table of Authorities ................................................ II

Interest of Amici Curiae ...........................................1

Summary of Argument .............................................2

Argument ...................................................................4

I. Predictable Rules Foster Federalism. ........4

A. The benefits of federalism. .....................5

B. Sovereign immunity is key to

federalism. ................................................8

C. Multifactor balancing tests can

undermine federalism. .......................... 10

D. This case shows why courts should

avoid multifactor balancing tests in this

context..................................................... 12

II. NJ Transit Should Be Immune. ................. 15

A. A State’s characterization of the entities

it creates should control. ....................... 15

B. New Jersey’s characterization thus

should control. ........................................ 20

Conclusion ................................................................ 22

(I)

II

TABLE OF AUTHORITIE S

Page(s)

Cases:

Alden v. Maine,

527 U.S. 706 (1999) .................................................... 2, 15

Atascadero State Hosp. v. Scanlon,

473 U.S. 234 (1985) .................................................... 9, 17

Axon Enter., Inc. v. FTC,

598 U.S. 175 (2023) ........................................................ 11

Berger v. N.C. State Conf. of the NAACP,

597 U.S. 179 (2022) .......................................................... 6

Bond v. United States,

572 U.S. 844 (2014) .......................................................... 5

Buck v. Davis,

580 U.S. 100 (2017) .......................................................... 7

Clark v. Barnard,

108 U.S. 436 (1883) ........................................................ 17

College Sav. Bank v. Fla. Prepaid Postsecondary

Educ. Expense Bd.,

527 U.S. 666 (1999) ...................................................17-19

Colt v. NJ Transit Corp.,

No. 72, 2024 WL 4874365 (N.Y. Nov.

25, 2024) .................................................. 2-3, 12-14, 18-19

Edelman v. Jordan,

415 U.S. 651 (1974) .......................................................... 9

Fed. Mar. Comm’n v. S.C. Ports Auth.,

535 U.S. 743 (2002) .......................................................... 4

Franchise Tax Bd. of Cal. v. Hyatt,

587 U.S. 230 (2019) ........................... 1- 2, 4-5, 8-9, 15, 19

III

Galette v. NJ Transit,

293 A.3d 649 (Pa. Super. 2023) .................................... 14

Galette v. NJ Transit,

No. 4 EAP 2024, 2024 WL 5457879 (Pa.

Mar. 12, 2025) ............................................................12-14

Goldman v. Se. Pa. Transp. Auth.,

57 A.3d 1154 (Pa. 2012) ........................................... 14, 19

Great N. Life Ins. Co. v. Read,

322 U.S. 47 (1944) .......................................................... 17

Gregory v. Ashcroft,

501 U.S. 452 (1991) .......................................................... 7

Hans v. Louisiana,

134 U.S. 1 (1890) .............................................................. 9

Hertz Corp. v. Friend,

559 U.S. 77 (2010) .......................................................... 20

Hess v. Port Auth. Trans-Hudson Corp.,

513 U.S. 30 (1994) .....................................................11-12

Highland Farms Dairy v. Agnew,

300 U.S. 608 (1937) .......................................................... 8

INS v. Chadha,

462 U.S. 919 (1983) .......................................................... 6

Kiowa Tribe of Okla. v. Mfg. Techs., Inc.,

523 U.S. 751 (1998) ........................................................ 11

Lane v. Peña,

518 U.S. 187 (1996) ........................................................ 18

Luther v. Borden,

48 U.S. 1 (1849) .............................................................. 16

Luxton v. N. River Bridge Co.,

153 U.S. 525 (1894) ........................................................ 17

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ......................................... 5

IV

Michigan v. Long,

463 U.S. 1032 (1983) .................................................16-17

Mitchell v. Forsyth,

472 U.S. 511 (1985) ........................................................ 10

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) .......................................................... 6

PennEast Pipeline Co. v. New Jersey,

594 U.S. 482 (2021) ........................................................ 17

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984) .......................................................... 17

Principality of Monaco v. Mississippi,

292 U.S. 313 (1934) .......................................................... 9

Sossamon v. Texas,

563 U.S. 277 (2011) ........................................................ 18

United States v. Lopez,

514 U.S. 549 (1995) .......................................................... 5

United States v. Mitchell,

463 U.S. 206 (1983) ........................................................ 20

Contitutional Provisions, Statutes, and Rules:

U.S. Const.

art. I, § 8, cl. 7................................................................. 21

art. IV, § 4 ....................................................................... 16

N.J. Stat.

§ 27:25-2(a) ..................................................................... 20

§ 27:25-4(a) ....................................................... 2, 4, 20, 21

Other Authorities:

Antonin Scalia, The Rule of Law as a Law

of Rules, 56 U. Chi. L. Rev. 1175 (1989) ..........11, 19-20

Bradford R. Clark, Separation of Powers

as a Safeguard of Federalism, 79 Tex.

L. Rev. 1321, 1324 (2001) ................................................ 6

V

Dan B. Dobbs et. al, The Law of Torts §252

(2d ed.)............................................................................. 10

The Federalist No. 9 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) ............................................ 5

The Federalist No. 45 (James Madison)

(Clinton Rossiter ed., 1961) ............................................ 5

Federalist No. 51 (James Madison)

(Clinton Rossiter ed., 1961) ............................................ 8

Jeffrey S. Sutton, Who Decides?: States as

Laboratories of Constitutional

Experimentation (2022) ................................................. 7

Kathleen M. Sullivan, The Justices of

Rules and Standards, 106 Harv. L.

Rev. 22 (1992) ................................................................. 11

Kim Robak, The Nebraska Unicameral

and Its Lasting Benefits, 76 Neb. L.

Rev. 791 (1997) .............................................................. 7-8

Maria Ponomarenko, Some Realism About

Criminal Justice Localism, 173 U. Pa.

L. Rev. 789 (2025) ............................................................ 8

Michael W. McConnell, Federalism:

Evaluating The Founders’ Design, 54

U. Chi. L. Rev. 1484 (1987) ............................................ 6

Miriam Seifter, Gubernatorial

Administration, 131 Harv. L. Rev. 483

(2017) ................................................................................. 7

Nat’l Ass’n of Att’ys Gen., Attorney

General Office Characteristics,

https://www.naag.org/newsresources/research-data/attorneygeneral-office-characteristics ........................................ 7

VI

Roman Road System, Encyclopedia

Britannica,

https://www.britannica.com/technology/

Roman-road-system ...................................................... 21

INTEREST OF AMIC I CURIAE

Amici curiae are the States of Texas, Alabama,

Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Missouri, Montana,

Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, Tennessee, Virginia, and Wyoming.1 Amici States

file this brief because few principles of law are more

foundational to constitutional federalism than sovereign

immunity. Courts around the country, however, are

splintered regarding how to determine whether instrumentalities that States use for important public functions

are immune from suit. In fact, the highest courts of two

States disagree about whether the same entity is entitled

to immunity. Not only does this stark split of authority

undermine New Jersey’s sovereignty, but it reflects

more general confusion about what States must do to

protect their instrumentalities from suit in sister States.

Such a disagreement about a core feature of federalism

calls out for certiorari. See, e.g., Franchise Tax Bd. of

Cal. v. Hyatt, 587 U.S. 230 (2019).

States also have an interest in avoiding tests that disfavor sovereign immunity or unnecessarily use multifactor balancing tests with respect to it. States can best exercise their police powers when the law is predictable.

Many tests used to evaluate immunity, however, essentially guarantee unpredictability. Amici States thus submit this brief in support of New Jersey and urge the

Court to accept a State’s characterization of its own

No counsel for any party authored this brief, in whole or in

part. No person or entity other than amici contributed monetarily

to its preparation or submission. On April 11, 2025, counsel of record

for all parties received notice of the Amici States’ intention to file

this brief.

1

(1)

2

entities. Under that bright-line rule, this would be an

easy case because New Jersey has declared that the New

Jersey Transit Corporation (NJ Transit) is “an instrumentality of the State.” N.J. Stat. § 27:25-4(a).

SUMMARY OF ARGUMENT

“After independence, the States considered

themselves fully sovereign nations” protected by

sovereign immunity. Hyatt, 587 U.S. at 237. And “as the

Constitution’s structure, its history, and the authoritative interpretations by this Court make clear, the States’

immunity from suit is a fundamental aspect of the sovereignty which the States … retain today.” Alden v. Maine,

527 U.S. 706, 713 (1999). “The founding generation thus

took as given that States could not be haled involuntarily

before each other’s courts.” Hyatt, 587 U.S. at 239. “Consistent with this understanding of state sovereign immunity, this Court has held that the Constitution bars

suits against nonconsenting States in a wide range of

cases.” Id. at 243–44 (collecting citations). Accordingly,

“one State” cannot “hale another into its courts without

the latter’s consent.” Id. at 245.

This principle of federalism is foundational. Unfortunately, judicial implementation has created significant

confusion across the country—particularly with respect

to identifying which State-created entities are entitled to

sovereign immunity. As the parties’ briefing demonstrates, this question has led to a direct conflict between

the highest courts of Pennsylvania and New York with

respect to the same entity: NJ Transit. Such a black-andwhite split of authority is significant but should not be

surprising. Because courts “have identified … an array

of multifactor and multistep tests” to assess whether sovereign immunity applies, Colt v. NJ Transit Corp., No.

3

72, 2024 WL 4874365, at *4 (N.Y. Nov. 25, 2024), disagreement is all but inevitable.

Amici States file this brief because they agree with

New Jersey that certiorari is warranted. Amici States

also wish to make two additional, related points.

First, multifactor balancing tests are especially inappropriate in cases like this one where a State already has

characterized the entity at issue as a State instrumentality. Federalism is a bedrock of American constitutionalism, and sovereign immunity is a bedrock of federalism.

Effective federalism, however, requires predictability.

States organize themselves in a host of ways and assign

similar functions to very different types of entities.

States also take different approaches to handling certain

activities through government or the private sector. Not

only does federalism allow different States to create systems best suited to their own circumstances and voter

preferences, but it also allows for policy experimentation

regarding such questions. If States cannot know ex ante

what courts will do, however, the space for policy experimentation necessarily shrinks. Rather than trying to design the best system, lawmakers may focus on mitigating

litigation risk. The factors used by both the Pennsylvania

and New York courts illustrate the problem.

Second, and relatedly, rather than relying on multifactor balancing tests, the Court should adopt a brightline rule in favor of immunity where a State itself characterizes the entities it creates as instrumentalities of

the State. Such self-characterizations arguably should be

dispositive. But at a minimum, they should control unless

rebutted by a compelling showing that a State-created

entity’s functions have no connection to the State’s police

powers. This test best reflects the reality that States differ and that courts are ill-suited to evaluate how States

4

choose to distribute and exercise sovereign authority.

Because sovereign immunity is a threshold jurisdictional

matter, moreover, such a clear rule would reduce burdens on courts and litigants alike.

To be sure, if a State has not characterized an entity

as an arm or instrumentality of that State, additional factors may be considered. But even in cases like that—

which does not include this one—there should be a

strong presumption favoring sovereign immunity. New

Jersey is correct, moreover, that a State’s disclaimer of

liability for the entity should not weigh against that entity’s eligibility for sovereign immunity. Contrary decisions are wrong and the Court should not follow them.

Here, applying the correct test, NJ Transit easily

should be entitled to immunity because New Jersey created NJ Transit and decreed by statute that it is “an instrumentality of the State,” N.J. Stat. § 27:25-4(a). Furthermore, to the extent that NJ Transit’s functions are

relevant, governments for millennia have built and operated transportation systems.

A R GUM EN T

I. Predictable Rules Foster Federalism.

“‘An integral component’ of the States’ sovereignty

[is] ‘their immunity from private suits.’” Hyatt, 587 U.S.

at 238 (quoting Fed. Mar. Comm’n v. S.C. Ports Auth.,

535 U.S. 743, 751-52 (2002)). Not only does it respect the

dignity of States, but sovereign immunity also serves important functions in a federalist system, including giving

States more room to experiment with new policy approaches. Multifactor balancing tests that reduce legal

certainty undermine those benefits. The analysis used by

the highest courts of Pennsylvania and New York exemplify the problems that arise when courts unnecessarily

assess sovereign immunity with such tests in cases like

5

this one where a State has already said how to characterize its own entity that it created.

A. The benefits of federalism.

1. The States were sovereign before the United

States was founded, and retained sovereignty following

the nation’s founding. See, e.g., Hyatt, 587 U.S. at 237–

41; The Federalist No. 9, at 71 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) (“The proposed Constitution,

so far from implying an abolition of the State governments, … leaves in their possession certain exclusive and

very important portions of sovereign power.”). In fact,

the States in many respects are preeminent sovereigns.

“In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder,” including the “broad authority to

enact legislation for the public good—what we have often

called a ‘police power.’” Bond v. United States, 572 U.S.

844, 854 (2014) (quoting United States v. Lopez, 514 U.S.

549, 567 (1995)). By contrast, the federal government

“has no such authority and ‘can exercise only the powers

granted to it.’” Id. (quoting McCulloch v. Maryland, 17

U.S. (4 Wheat.) 316, 405 (1819)).

This structural feature means that the States often

enjoy primacy with respect to lawmaking. As James

Madison explained, “[t]he powers reserved to the several

States will extend to all the objects which, in the ordinary

course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement,

and prosperity of the State.” The Federalist No. 45, at

289 (James Madison) (Clinton Rossiter ed., 1961). By

contrast, the federal government can only impose obligations on the People if (i) a policy falls within an enumerated power and (ii) valid federal legislation has been enacted.

6

Both of those requirements reinforce the primacy of

the States. The federal government can only act within

its assigned sphere, and legislation must pass both

Houses of Congress and survive a veto—a process that

effectively requires national consensus. “[T]he Framers

were acutely conscious that the bicameral requirement

and the Presentment Clauses would serve essential constitutional functions” by “protect[ing] the whole people

from improvident laws” and “assur[ing] that the legislative power would be exercised only after opportunity for

full study and debate in separate settings.” INS v.

Chadha, 462 U.S. 919, 951 (1983). Through such means,

“federal lawmaking procedures … preserve federalism

both by making federal law more difficult to adopt, and

by assigning lawmaking power solely to actors subject to

the political safeguards of federalism.” Bradford R.

Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1324 (2001).

2. In operation, the lawmaking diversity created by

federalism means that there often is no one single national rule. Because lawmakers in each State are accountable to their own voters, laws within a State can be

tailored to the needs of each State’s citizens. See, e.g.,

Berger v. N.C. State Conf. of the NAACP, 597 U.S. 179,

192 (2022) (explaining that federalism “permits States to

accommodate government to local conditions and circumstances”); Michael W. McConnell, Federalism: Evaluating The Founders’ Design, 54 U. Chi. L. Rev. 1484,

1493 (1987) (“The first, and most axiomatic, advantage of

decentralized government is that local laws can be

adapted to local conditions and local tastes ….”).

Because of federalism, greater policy experimentation is also possible. See, e.g., New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting);

7

see generally Jeffrey S. Sutton, Who Decides?: States as

Laboratories of Constitutional Experimentation (2022)

(detailing benefits of state-led innovation). Lawmakers

in a federalist system can try different approaches and

then borrow what works from other jurisdictions. Federalism thus “assures a decentralized government that will

be more sensitive to the diverse needs of a heterogenous

society,” “increases opportunity for citizen involvement

in democratic processes,” “allows for more innovation,”

and “makes government more responsive by putting the

States in competition for a mobile citizenry.” Gregory v.

Ashcroft, 501 U.S. 452, 458 (1991).

3. States also often organize themselves differently.

Some States vest executive power in a single office, while

others spread it around. In some States, the attorney

general is independently elected, while in others, it is an

appointed position by the governor, the legislature, or

even the judiciary. See, e.g., Nat’l Ass’n of Att’ys Gen.,

Attorney

General

Office

Characteristics,

https://www.naag.org/news-resources/research-data/attorney-general-office-characteristics (last visited Apr.

22, 2025). Some States also have a single prosecutorial

authority, while others have local prosecutors. In Texas,

for example, the “Attorney General represents state respondents in federal habeas cases, but not state habeas

cases,” which are handled by local district attorneys.

Buck v. Davis, 580 U.S. 100, 110 (2017).

Nor are these the only examples of how States structure themselves differently. See, e.g., Miriam Seifter,

Gubernatorial Administration, 131 Harv. L. Rev. 483,

491 (2017) (“There are fifty different approaches to each

development discussed herein ….”). In fact, not every

State even has a bicameral legislature, e.g., Kim Robak,

The Nebraska Unicameral and Its Lasting Benefits, 76

8

Neb. L. Rev. 791 (1997), and States differ markedly as to

how much “home rule” power localities may exercise,

e.g., Maria Ponomarenko, Some Realism About Criminal Justice Localism, 173 U. Pa. L. Rev. 789, 841 (2025).

Such diversity—as to policy and even first-order constitutional allocations of power—was a selling point for

the U.S. Constitution. See, e.g., Federalist No. 51, at 320

(James Madison) (Clinton Rossiter ed., 1961) (explaining

that the Constitution preserves “two distinct governments,” each of which has its “distinct and separate departments”). States differ from each other, with their

own histories, geography, constitutions, separation-ofpowers doctrines, instrumentalities, and priorities. Thus

“[h]ow power shall be distributed by a state among its

governmental organs is commonly, if not always, a question for the state itself.” Highland Farms Dairy v. Agnew, 300 U.S. 608, 612 (1937).

B. Sovereign immunity is key to federalism.

Key to federalism is the rule that the Constitution

does not “permit[] a State to be sued by a private party

without its consent in the courts of a different State.”

Hyatt, 587 U.S. at 233. Indeed, “[t]he Constitution does

not merely allow states to afford each other immunity as

a matter of comity; it embeds interstate sovereign immunity within the constitutional design.” Id. at 245.

After declaring their independence, the States that

would become the United States were “fully sovereign,”

and “[a]n integral component of the States’ sovereignty

was their immunity from private suits.” Id. at 237-38

(quotation omitted). As the Court has explained, “[t]he

Founders believed that both ‘common law sovereign immunity’ and ‘law-of-nations sovereign immunity’ prevented States from being amenable to process in any

court without their consent.” Id. at 238 (citations

9

omitted). “The Constitution’s use of the term ‘States’ reflects both of these kinds of traditional immunity.” Id. at

241. “Federalists and Antifederalists alike [consequently] agreed in their preratification debates that

States could not be sued in the courts of other States.”

Id. at 240. “The Constitution never would have been ratified if the States and their courts were to be stripped of

their sovereign authority except as expressly provided

by the Constitution itself.” Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 239 n. 2 (1985); accord Edelman

v. Jordan, 415 U.S. 651, 660 (1974).

To be sure, sovereign immunity is not unlimited. The

Constitution “abrogated certain aspects of … traditional

immunity” by “provid[ing] a neutral federal forum in

which the States agreed to be amenable to suits brought

by other States.” Hyatt, 587 U.S. at 241. The Court has

also held that the States effectively “consent[ed] to suits

brought against them by the United States in federal

courts.” Id. (citing, inter alia, Principality of Monaco v.

Mississippi, 292 U.S. 313, 328 (1934)). The Constitution

does not, however, displace immunity for suits brought

by private citizens against a State. “The Eleventh

Amendment confirmed that the Constitution was not

meant to ‘rais[e] up’ any suits against the States that

were ‘anomalous and unheard of when the Constitution

was adopted.’” Id. at 243 (quoting Hans v. Louisiana,

134 U.S. 1, 18 (1890)). A State therefore cannot “be sued

by a private party without its consent in the courts of a

different State.” Id. at 233.

Robust sovereign immunity is part and parcel of the

dignity of the States. Beyond each State’s dignity as a

sovereign, however, sovereign immunity also enables

States to engage in the policy experimentation that is a

hallmark of federalism—including whether and under

10

what circumstances to waive sovereign immunity, as

States often do. Absent such immunity, States would be

less able to implement public preferences because lawmakers would be forced to speculate about potential liability rather than focusing on innovation.

C. Multifactor balancing tests can undermine

federalism.

Despite the importance of sovereign immunity to

meaningful federalism, courts are divided regarding how

to determine whether State-created entities are immune

from suit. Part of the conflict—demonstrated by this

very case, in which the same New Jersey entity receives

immunity in Pennsylvania but not New York—results

from courts’ use of multifactor balancing tests for sovereign immunity even where a State itself has already

characterized the nature of the entity it created.

Sovereign immunity is a context in which rules are

especially valuable. Like other forms of immunity, sovereign immunity is immunity from suit, and the value of

that immunity can be “effectively lost” if a State is forced

to expend significant resources defending the immunity’s applicability. Mitchell v. Forsyth, 472 U.S. 511, 526

(1985). By itself, that point counsels in favor of a brightline rule respecting sovereign immunity where a State

has characterized its own creations, so all parties can

know in advance whether immunity exists. See, e.g., Dan

B. Dobbs et. al, The Law of Torts §252 (2d ed.) (explaining that immunities “tend to be—or at least judges want

them to be—bright line rules that can intercept the claim

early” and that the “value” of immunity from suit “is to

save the defendant from the costs and uncertainties of a

trial”).

Equally important, the benefits of federalism are

threatened by unpredictable sovereign-immunity tests.

11

Clear rules help States exercise their sovereign powers,

while unpredictable tests—applied by out-of-state courts

no less—impair State dignity. Clear rules also allow

States to focus on creating beneficial laws rather than

avoiding litigation risk. This concern has special force

where no one disputes that a State could craft a law such

that those who implement it are protected by sovereign

immunity, for instance by vesting execution of the law in

the governor’s hands directly. Where immunity is permissible, everyone benefits if States know what they

must do to safeguard—or knowingly waive—their immunity. The value of “predictable and precise rules” for

sovereign immunity is apparent. Kiowa Tribe of Okla. v.

Mfg. Techs., Inc., 523 U.S. 751, 759 (1998).

By their nature, however, multifactor balancing tests

reduce predictability. See, e.g., Kathleen M. Sullivan, The

Justices of Rules and Standards, 106 Harv. L. Rev. 22,

65 (1992) (discussing Antonin Scalia, The Rule of Law as

a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989)). This is

particularly true when factors may receive different

weights in different cases or some factors point in different directions. Cf. Axon Enter., Inc. v. FTC, 598 U.S. 175,

207 (2023) (Gorsuch, J., concurring in judgment)

(“[W]hat happens when the factors point in different directions, some in favor and others against immediate judicial review? No one knows. You get to guess.”); Hess v.

Port Auth. Trans-Hudson Corp., 513 U.S. 30, 59 (1994)

(O’Connor, J., dissenting) (“The Court wisely recognizes

that [a] six-factor test … ostensibly a balancing scheme,

provides meager guidance for lower courts when the factors point in different directions.”). When a slew of factors are evaluated and weighed at once, it is more difficult to predict what a court will do. Such unpredictability

hinders planning and may require lawmakers to change

12

or jettison projects altogether or at least spend more

time designing them to lessen litigation risk.

Given the importance of federalism, courts evaluating

whether sovereign immunity is available should use clear

rules rather than multifactor balancing tests whenever

possible. Without clear rules, States even in best-case

scenarios will be forced to expend more resources in program design, and States and private litigants alike will

be forced to expend more resources in litigation. In

worst-case scenarios, States will abandon projects altogether, not because they are not worthwhile or because

sovereign immunity law could not protect their implementation, but because structuring the program to avoid

litigation risk is too difficult. Sovereign immunity should

safeguard the “critical flexibility in internal governance

that is essential to sovereign authority.” Hess, 513 U.S.

at 62 (O’Connor, J., dissenting).

D. This case shows why courts should avoid

multifactor balancing tests in this context.

The unpredictability and inaccuracy of multifactor

balancing tests in situations where a State has already

characterized its own creation is aptly illustrated by this

case. The Court of Appeals of New York and the Supreme Court of Pennsylvania reached opposite conclusions regarding whether NJ Transit is protected by New

Jersey’s sovereign immunity. Compare Colt, 2024 WL

4874365 (rejecting immunity) with Galette v. NJ Transit,

No. 4 EAP 2024, 2024 WL 5457879 (Pa. Mar. 12, 2025)

(upholding it). Both courts, however, answered the question by using different multifactor balancing tests that

pose more questions than they answer and do not provide clear guidance for anyone.

For example, the majority of the New York Court of

Appeals emphasized three factors: “(1) how the State

13

defines the entity and its functions, (2) the State’s power

to direct the entity’s conduct, and (3) the effect on the

State of a judgment against the entity.” Colt, 2024 WL

4874365, at *5. The majority, however, also observed that

judges “need not give equal weight to each consideration,

and the underlying indicia may vary by case and from

one party to another.” Id.

In Colt, the court determined that the first factor

“leans toward according NJT sovereign immunity,” noting among other things that New Jersey law “characterizes NJT as ‘an instrumentality of the State exercising

public and essential governmental functions.’” Id. at *6.

The court explained that the second factor “does not

weigh heavily in either direction” because “NJT remains

beholden to the state in some respects,” but “exercises

significant independence from New Jersey’s control.” Id.

For the third factor, however, the court determined that

New Jersey had “clearly disclaimed any legal liability for

judgments against NJT, counseling against treating

NJT as an arm of New Jersey,” id. at *7. The court then

explained its final “balancing” of these factors:

Balancing each consideration, we conclude that

New Jersey’s lack of legal liability or ultimate financial responsibility for a judgment in this case

outweighs the relatively weak support provided

by the other factors. Put simply, allowing this suit

to proceed would not be an affront to New Jersey’s dignity because a judgment would not be imposed against the State, and the entity that would

bear legal liability has a significant degree of autonomy from the State.

Id.

In Galette, by contrast, the Pennsylvania Supreme

Court reached the opposite conclusion—but also used a

14

balancing test. Despite correctly acknowledging the

“primacy” of the “expression of the sister State’s intention in designing the entity in question,” 2024 WL

5457879, at *7, the court nonetheless reviewed six factors2 and concluded that three “weigh heavily in favor of

concluding that NJ Transit is an arm of the state of New

Jersey,” while three others “to some extent indicate that

NJ Transit is a separate entity from the State of New

Jersey.” Id. at *8-9. The court ultimately concluded that

“[a]s a coequal sovereign to New Jersey, Pennsylvania

must honor this decision and refuse to allow NJ Transit

to be haled into Pennsylvania courts to defend against

private suits.” Id. at *9.

Even a glance at Colt and Galette—as well as the

lower court decisions in each—shows that there can be

almost as many viewpoints on how to balance the totality

of factors as there are judges to do the balancing. Even

applying similar tests, jurists reach different results,

which is unsurprising given the degree of latitude afforded by multifactor balancing tests. This unpredictability undermines federalism. What is required instead

in a case such as this one where the State itself has already characterized its own State-created entity is not a

Specifically, the court considered the six-factor test from Goldman v. Southeastern Pennsylvania Transportation Authority, 57

A.3d 1154, 1179 (Pa. 2012): “(1) the legal classification and description of the entity within the governmental structure of the State,

both statutorily and under its caselaw; (2) the degree of control the

State exercises over the entity; (3) the extent to which the entity

may independently raise revenue; (4) the extent to which the State

provides funding to the entity; (5) whether the monetary obligations

of the entity are binding upon the State; and (6) whether the core

function of the entity is normally performed by the State.” Galette,

2024 WL 5457879, at *2 (quoting Galette v. NJ Transit, 293 A.3d

649, 655 (Pa. Super. 2023)).

2

15

tweaking of what factors to consider or a reweighing of

those factors. Rather, something more substantial is

warranted: A bright-line rule that reliably upholds sovereign immunity as an “integral component” of sovereignty. Hyatt, 587 U.S. at 238 (quotation omitted).

II. NJ Transit Should Be Immune.

Rather than a multifactor balancing test, the Court

should adopt a bright-line rule that entities created by a

State are protected by sovereign immunity in situations

like this one where that State characterizes them as state

instrumentalities. Such a presumption should only be rebuttable, if ever, when an entity’s functions are well outside of the State’s police powers. Only in situations where

a State has not characterized a State-created entity as an

arm or instrumentality should additional factors be considered. Even then, however, there should be a strong

presumption in favor of immunity and a State’s disclaimer of liability for that entity should not weigh

against sovereign immunity. Under no circumstances

should the Court adopt analyses like New York’s.

Applying such a straightforward rule, NJ Transit

easily would be immune because New Jersey has already

answered the question. New Jersey’s own characterization of the entity it created should control.

A. A State’s characterization of the entities it

creates should control.

Because sovereign immunity “is a fundamental aspect of the sovereignty which the States enjoy[],” Alden,

527 U.S. at 713, the Court should adopt a bright-line rule

favoring a State’s own characterization of the entities it

creates. At a minimum, such a characterization should

control so long as the entity performs a function within

the broad scope of the State’s police powers. Because a

16

State constitutionally could vest such functions in an entity indisputably protected by sovereign immunity—like

a governor or attorney general—there is no reason in law

or logic why courts should second guess a State’s vesting

of those same functions in a different State entity. After

all, under our Constitution, States decide for themselves

how to organize governmental authority subject only to

the non-justiciable Guarantee Clause. See, e.g., Luther v.

Borden, 48 U.S. 1, 42 (1849) (citing U.S. Const., art. IV,

§ 4)).

As explained above, State diversity in governmental

organization and authority allocation is not just theoretical—it happens in the real world. States organize themselves in many ways across many dimensions and have

done so since before the founding. See supra pp. 7–8. Because States can (and do) decide for themselves how to

allocate executive authority, it is a recipe for confusion

for out-of-state judges to attempt to define via multifactor balancing tests which entities are instrumentalities

entitled to immunity and which are not. States are too

different from each other, and it is too easy for judges

who are not familiar with the internal structuring of

other States to err. See, e.g., N.J.Br.27 (explaining a feature of New Jersey law that “may look odd to a non-New

Jerseyan”). Such analysis, moreover, should be unnecessary when the State itself has characterized its own entity. Because States know best what their own law requires and whether State-created entities wield sovereign authority, States are best positioned to say whether

State-created entities are protected by the State’s immunity. Cf. Michigan v. Long, 463 U.S. 1032, 1041 (1983)

(“If the state court decision indicates clearly and expressly that [an independent and adequate state ground

17

exists], we, of course, will not undertake to review the

decision.”).

Such a bright-line rule in cases like this one where a

State has already characterized State-created entities

would best vindicate federalism. Governments may exercise sovereign power directly or indirectly. See, e.g., PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 496

(2021) (“Congress ‘may, at its discretion, use its sovereign powers, directly or through a corporation created

for that object ….’”) (quoting Luxton v. N. River Bridge

Co., 153 U.S. 525, 530 (1894)). Forcing a State to perform

sovereign acts through an entity with a particular structure to maintain immunity is an encroachment on sovereignty and an unnecessary burden on flexibility and creativity. Courts should not elevate form over substance

and limit the States’ ability to govern.

A bright-line rule in cases such as this one would also

comport with this Court’s precedent more generally. The

Court has “long recognized that a State’s sovereign immunity is ‘a personal privilege which it may waive at

pleasure.’” College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999)

(quoting Clark v. Barnard, 108 U.S. 436, 447 (1883)). To

prevent confusion about whether such a waiver has occurred, the Court’s “‘test for determining whether a

State has waived its immunity from federal-court jurisdiction is a stringent one.’” Id. (quoting Atascadero, 473

U.S. at 241). “Generally, [the Court] will find a waiver …

if the State makes a ‘clear declaration’ that it intends to

submit itself to our jurisdiction.” Id. at 675-76 (quoting

Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54

(1944)). Put differently, States do not waive immunity

without “unequivocally” saying so. Pennhurst State Sch.

& Hosp. v. Halderman, 465 U.S. 89, 99 (1984).

18

Accordingly, a State does not “consent to suit in federal

court merely by stating its intention to sue and be sued,”

College Savings, 527 U.S. at 676, and “a waiver of sovereign immunity ‘will be strictly construed, in terms of its

scope, in favor of the sovereign,’” Sossamon v. Texas, 563

U.S. 277, 285 & n.4 (2011) (quoting Lane v. Peña, 518

U.S. 187, 192 (1996)). Courts should not conclude that a

State instrumentality lacks sovereign immunity in the

absence of an equally unequivocal expression from the

State.

Especially in cases where a State has already indicated how to treat its own entities, multifactor balancing

tests cannot be squared with the principle that a clear

statement is required to waive immunity. Contrary to

Colt, for example, a law that the State will not pay a judgment against a State instrumentality confirms that the

State is not waiving sovereign immunity, and should not

be interpreted as a factor in favor of finding the entity is

not immune. Contra. Colt, 2024 WL 4874365, at *7. One

of the characteristics of sovereign immunity is that no

payment will be forthcoming. Such a provision thus

would seem to support sovereign immunity—not undermine it. See, e.g., N.J.Br.22 (explaining this point). Regardless, rather than trying to suss out what inference

to draw, it is far more consistent with sovereign immunity’s constitutional foundation to recognize that such a

provision cannot possibly be a clear statement.

Likewise, the mere fact that lawmakers could also allow a private person to engage in the conduct should not

matter where a State has already characterized the entity. After all, “the constitutionally grounded principle of

state sovereign immunity is [no] less robust” just because “the asserted basis for constructive waiver is conduct that the State realistically could choose to abandon,

19

that is undertaken for profit, that is traditionally performed by private citizens and corporations, and that

otherwise resembles the behavior of ‘market participants.’” College Sav. Bank, 527 U.S. at 684. Yet the multifactor balancing test many courts use treats this factor

as counting against sovereign immunity. See, e.g., Goldman, 57 A.3d at 1179 (Pa. 2012) (considering “whether

the core function” of the agency “can be categorized as a

function which is normally performed by local government or state government”). Again, a bright-line rule respecting a State’s own characterization of the entity is

better.

Because they are unpredictable, moreover, using

multifactor balancing test to assess sovereign immunity

would allow courts to infuse their analysis with concerns

this Court has rejected. Some judges, including one writing separately in Colt, appear to believe that sovereign

immunity should be extremely limited. E.g., Colt, 2024

WL 4874365, at *15 (Wilson, C.J., concurring) (“Applying sovereign immunity to bar New York’s courts from

hearing a case concerning injury to one of its own residents that occurred within its own territory would deny

an essential element of New York’s own sovereignty,

while not protecting any core function of New Jersey’s”).

But interstate sovereign immunity recognized in Hyatt

is not so limited. As Hyatt holds, the “States retained immunity from private suits, both in their own courts and

in other courts.” 587 U.S. at 249.

With a multifactor balancing test, decisions may be

driven by a disdain for sovereign immunity generally, despite it being embedded in our constitutional system.

This point also counsels in favor of a bright-line rule. See,

e.g., Scalia, The Rule of Law as a Law of Rules, supra, at

1179–80 (explaining how bright-line rules “constrain”

20

courts, and that “it displays more judicial restraint” to

adopt a general rule “than to announce that, ‘on balance,’

we think the law was violated here—leaving ourselves

free to say in the next case that, ‘on balance,’ it was not”).

Finally, sovereign immunity is jurisdictional. See,

e.g., United States v. Mitchell, 463 U.S. 206, 212 (1983)

(“[T]he existence of consent is a prerequisite for jurisdiction.”). Because jurisdiction goes to a court’s power to act

and may determine whether litigation is possible, “administrative simplicity is a major virtue.” Hertz Corp. v.

Friend, 559 U.S. 77, 94 (2010). As this case confirms,

multifactor balancing tests are not easily administered.

By contrast, a bright-line rule focusing on what the State

says about the entities it creates is straightforward.

To be sure, a different test is required where a State

has not indicated whether an entity is a sovereign instrumentality. Even then, however, the rule should still

broadly favor—not disfavor—sovereign immunity and

require a clear statement to forego immunity. The analysis from New York is thus wrong for all the reasons

New Jersey has identified in its brief to the Court. Additionally, however, in cases like this one, the key point

should be that where a State states that the entity is a

State instrumentality, a court should respect that statement and uphold sovereign immunity.

B. New Jersey’s characterization thus should

control.

Applying the correct bright-line rule, NJ Transit is

immune. “New Jersey understands NJ Transit to be ‘an

instrumentality of the State exercising public and essential governmental functions,’ and to serve ‘an essential

public purpose.’” N.J.Br.24-25 (quoting App.17-18, in

turn quoting N.J. Stat. §27:25-2(a), -4(a)); see also id. at

25 (explaining that “the exercise by the corporation of

21

the powers conferred” by New Jersey “shall be deemed

and held to be an essential governmental function of the

State”) (quoting App.18, in turn quoting N.J. Stat.

§27:25-4(a))”). Such “provisions” of law “leave no doubt

that New Jersey considers NJ Transit to be a part of itself—underscoring the affront to New Jersey’s dignity

from another state contradicting its coequal sovereign on

that score.” Id. Under the correct test, those statements

of New Jersey law about the status of an entity created

by New Jersey should be sufficient by themselves to resolve the immunity question.

Furthermore, if relevant, building and operating a

transportation system is within New Jersey’s police powers. Since at least the Roman Empire, sovereigns have

been constructing roadways and bridges to facilitate

transportation. See, e.g., Roman Road System, Encyclopedia Britannica, https://www.britannica.com/technology/Roman-road-system (last accessed Apr. 16, 2025);

accord U.S. Const. art. I, § 8, cl. 7) (vesting power to create post roads). New Jersey could allow private actors to

create such a transportation system, but placing the authority in a State-created entity is also within New Jersey’s sovereign authority. Federalism demands respecting New Jersey’s expressly stated view that NJ Transit

is an instrumentality of New Jersey.

22

C O NCL USI O N

The Court should grant the petition, announce a

bright-line rule focused on a State’s own characterization

of the status of State-created entities, and affirm the

judgment of the court below.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

AARON L. NIELSON

Solicitor General

Counsel of Record

WILLIAM F. COLE

Principal Deputy Solicitor

General

JEFFREY A. STEPHENS

Assistant Solicitor General

OFFICE OF THE TEXAS

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Aaron.Nielson@oag.texas.gov

(512) 936-1700

APRIL 2025

Counsel for Additional Amici States:

(additional counsel on next page)

STEVE MARSHALL

Attorney General

of Alabama

TIM GRIFFIN

Attorney General

of Arkansas

TREG TAYLOR

Attorney General

of Alaska

CHRISTOPHER M. CARR

Attorney General

of Georgia

23

RAÚL LABRADOR

Attorney General

of Idaho

DREW WRIGLEY

Attorney General

of North Dakota

THEODORE E. ROKITA

Attorney General

of Indiana

DAVE YOST

Attorney General

of Ohio

BRENNA BIRD

Attorney General

of Iowa

GENTNER DRUMMOND

Attorney General

of Oklahoma

KRIS W. KOBACH

Attorney General

of Kansas

DAVE SUNDAY

Attorney General

of Pennsylvania

LIZ MURRILL

Attorney General

of Louisiana

JONATHAN SKRMETTI

Attorney General

of Tennessee

DANA NESSEL

Attorney General

of Michigan

JASON MIYARES

Attorney General

of Virginia

KEITH ELLISON

Attorney General

of Minnesota

BRIDGET HILL

Attorney General

of Wyoming

ANDREW BAILEY

Attorney General

of Missouri

AUSTIN KNUDSEN

Attorney General

of Montana

MICHAEL T. HILGERS

Attorney General

of Nebraska