# Petition — Blazer Corp. v. New Jersey Sports & Exposition Authority > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0715%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 462 U.S. 1119 ## Text 82. 2° 1 6 1 4 Office-Supreme Court, U.S. —_—--- my j j L D MAR 29 1993 IN THE ANDER L. STEVAS, Supreme Court of the United States: OCTOBER TERM, 1982 oe BLAZER CORPORATION, Petitioner, af, ame NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, DAVID A. WERBLIN, CHARLES SERRAINO, ADRIAN M. FOLEY, JR., GEORGE F. KUGLER, JR., AUBREY C. LEWIS, JOSEPH M. MCCRAINE and “JOHN DOES”, said names being ficti- tious ‘ Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Of Counsel: ROBERT S. TOBIN Harry E. Youtt Counsel of Record 152 Market Street Paterson, New Jersey 07505 (201) 881-8554 HARRY E. YOUTT 350 Broadway New York, New York 10013 (212) 334-9000 Dated: March 29, 1983 Attorneys for Petitioner STATEMENT OF QUESTIONS PRESENTED FOR REVIEW The following issues are presented for review of this peti- tion: i. Whether state statutes of limitation which extend spe- cial status to public agencies or officials may be “bor- rowed” to exclude liability for deprivations alleged under 42 U.S.C. § 1983. . Whether the Courts below erred in creating an expan- sive interpretation of the “respondeat superior” exclu- sion from 42 U.S.C. § 1983 liability so as to prevent the imputation of public agency wrongdoing to mem- bers of a public agency and to immunize such members from liability for passive or culpable neglect. Whether the Courts below erred in creating an exclu- sion from the 42 U.S.C. § 1983 liability of a public agency chief executive for failure to perform statutor- ily mandated acts, because they are part of “an ad- ministrative plan to help the state regulate its officers’ conduct.” Whether post-deprivation remedies under the New Jer- sey Eminent Domain and Relocation Benefits statutes existed sufficient to cure the deprivation of petitioner’s rights to due process and equal protection of law. _- TABLE OF CONTENTS STATEMENT OF QUESTIONS PRESENTED FOR OTT Te Tree rereTrerrrer ee errey PE SP FAAP UNUIREBEEED so cc cccccccccccsovcsaces eT os beveercvcceserenveveseceves STATEMENT OF GROUNDS ON WHICH THE JURISDICTION OF THIS COURT IS INVOKED .. CONSTITUTIONAL PROVISIONS, STATUTES AND REGULATIONS WHICH THE CASE INVOKES... STATEMENT OF THE CASE .......ccccccccscccecs REASONS FOR GRANTING THE WRIT........... 1. Granting New Jersey Tort Claims Act statute of limitations protection to the respondent Sports Authority conflicts with applicable decisions of this Court which deny the protection of sovereign immunity to such agencies in cases under 42 Ee ee ee 2. A conflict among the Circuits exists with respect to the Tort Claims Act statute of limitations issue, which should be resolved by this Court ......... 3. The decisions below interpreting the scope of the respondeat superior exclusion from § 1983 liabil- ity is in conflict with this Court’s decision in Monell v. Dept. of Soc. Serv. of the City of New SE EP GREP UED coscccdccccccesesess PAGE 4. Whether there should be an exclusion of liability for administrative acts to regulate agency conduct should be settled by this Court to prevent an unwarranted dilution of the effectiveness of 42 Ries OS Ps 0 dk Oca sige badacusuebibacanaens 5. The scope of this Court’s decision in Parratt v. Taylor with respect to the extent to which the availability of postdeprivation remedies may cure due process violations should be settled by this Css chcauwa te Cadbennweawh bes eeses teas PR ETT TE CeO C CT TE CCT TY TCT eT er APPENDIX: New Jersey Eminent Domain Act of 1971 ............ New Jersey Relocation Assistance Act of 1971 ........ New Jersey Relocation Assistance Act of 1967 ......... Pilger a TU CH POE ioc kccccsvecesvesicvedes Rules and Regulations Adopted by (New Jersey) Depart- ment of Community Affairs, Chapter VI, 478...... Rules and Regulations Adopted by (New Jersey) Depart- ment of Community Affairs, Chapter 2, 3(a)(3)..... AB UBL. 9 TUGD cccadoncescascrccncsobccnecsceves Decision of Chief Judge Clarkson S. Fischer dated PN Oh Se ons fasecerceccueenes+éssnccceens Decision of Judge Harold A. Ackerman dated Novem- I i EE sn dek suds cs vabieatasedsecessseaunens PAGE 20 la 2a 3a Ja 12a l3a PAGE Decision of Judge Harold A. Ackerman dated March 1, SE ER Perry re hry Torr re ree ere er 25a Judgment of the Court of Appeals for the Third Circuit Gated Tegel: SZ, 19GZ. co ccceccverescvescassancens 35a Order Denying Motion for Hearing En Banc dated SEE ch outreebiwnwerdvanddusnceess 38a vi TABLE OF AUTHORITIES Cases PAGE Ammburg v. City of Chester, 494 F.2d 811 (3rd Cir. DMS Siac we beAnenee ee eh ebecunaws 10 Bell v. Bell, 83 N.J. 417 at 423, 416 A.2d 829 (1980)... 10 Board of Regents v. Tomanio, 446 U.S. 478 (1980) .... 9 Burt v. City of New York, 156 F.2d 791 (2d Cir. 1946) Cordeco Devel. Corp. v. Vasquez, 539 F.2d 256 (ist Cir. 1976) cert. denied, 429 U.S. 978......... 0.000 e eee 7 Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970)... .11, 13, 14 Duncan v. Poythress, 657 F.2d 691 (Sth Cir. 1981) cert. granted, 102 S.Ct. 1426, cert. dismissed, _. U.S. Fo PET TED PET Eee e eee TOT TTT eee TT Te ST 7,19 Erdmann v. Board of Ed., Union Co. 541 F.Supp. 388 PPP TCTT TUTE Te TPTeTeeTe eee riTe 14 Gipson v. Bass River, 82 F.R.D. 122 (D.N.J. 1979) .... 14 Gunther v. Miller, 498 F.Supp. 882 (D.N.M. 1980)..... 14 Johnson v. Railway Express Agency, 421 U.S. 454 (1975) 9 Lake Country Estates Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979).......... cece ee eens 9, 11, 18 Landon v. Plasencia, U.S. 103 S.Ct. 321 (1982)....... 7 Malloy v. State, 76 N.J. 515, 388 A.2d 622 (1978)..... 10 McFarland v. American Sugar Ref. Co. 241 U.S. 79 Sas bacn Gh hve seseeeswenpaed Os eenesee esas 7 Monell v. Dept. of Soc. Serv. of the City of New York, lk Rt Prererreree 8, 9, 10, 11, 13, 15, 17 Monroe v. Pape, 365 U.S. 167 (1961)..........00000: 12 Vii Naughton v. Bevilacqua, 605 F.2d 586 (Ist Cir. 1979) .. 17 Ney v. State of California, 439 F.2d 1285 (9th Cir. 1971) 13 Occidental Life Ins. Co. of Calif. v. E.E.O.C., 432 U.S. i fei. Cake igaenewbsedsbbbiecebeses 11 Owen v. City of Independence, 445 U.S. 622 (1980) rehearing denied, 446 U.S. 993 ........0.060005. 8,9, 11, 15 Parvast v. Dagens, 451 U.S. S27 CISSI). 0 wc ccccvccccces 19 Pauk v. Board of Trustees of City U. of New York, 654 F.2d 856 (2d Cir. 1981) cert. denied, 455 U.S. 1000 .. 13 Perrote v. Percy, 452 F.Supp. 604 (E.D.Wis. 1978)..... 14 Peters v. Township of Hopewell, 534 F.Supp. 1324 sewer gach aeedaveese 14 Peterson v. Fink, 515 F.2d 815 (8th Cir. 1975)......... 12 Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d eles stake bse deb ie beesenwe 13 Shouse v. Pierce County, 559 F.2d 1142 (9th Cir. 1977) 13 Skrapits v. Skala, 314 F.Supp. 510 (N.D.III. 1970)..... 14 Snowden v. Hughes, 321 U.S. 1 (1944)............05. 7 Swan v. Board of Higher Education, 319 F.2d 56 (2d Cir. Da ats 0S 13 Taylor v. Mayone, 626 F.2d 247 (2d Cir. 1980) ........ i, 83 United States v. Jiles, 658 F.2d 194 (3rd Cir. 1981) cert. i tckdbakhevdkebeeeseseens 18 Willis v. Dept. of Conservation Devel., 55 N.J. 534, 264 EE a Tae od 686 6,690 050 0020 eedecenes 10 Statutes and Court Rules: United States Code: Title 28: PEE cc cncaeues ened dee sedecresrecsees 2 viii PAGE SE cd cccemecibesnatuaee BLAZER CORPORATION, Petitioner, —_—Vo— NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, DAVID A. WERBLIN, CHARLES SERRAINO, ADRIAN M. FOLEY, JR., GEORGE F. KUGLER, JR., AUBREY C. LEWIS, JOSEPH M. MCCRAINE and “JOHN DOES”, said names being ficti- tious, Respondents. > PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT The Petitioner, Blazer Corporation, respectfully prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Third Circuit entered in this proceeding on December 2, 1982. OPINIONS BELOW The judgment of the Court of Appeals is reproduced in the Appendix hereto at p. 36a. The unreported opinions of the District Court for the District of New Jersey from which appeal was taken dated November 16, 1981 and March 1, 1982, are also reproduced in the Appendix hereto at pp. 16a and 26a respectively. STATEMENT OF GROUNDS ON WHICH THE JURISDICTION OF THIS COURT IS INVOKED On December 2, 1982, the Court of Appeals for the Third Circuit entered its judgment in the matter for which review is sought on this petition. On December 29, 1982, the Court of Appeals entered its order denying petitioner’s application for rehearing and for other relief. Jurisdiction to seek the writ of certiorari prayed for in this petition is invoked pursuant to 28 U.S.C. § 1254(1). CONSTITUTIONAL PROVISIONS, STATUTES AND REGULATIONS WHICH THE CASE INVOKES Relevant Constitutional provisions, statutes, and regulations are quoted verbatim in the appendix annexed to this petition. STATEMENT OF THE CASE Petitioner, a small business dislocated and forced into bank- ruptcy so that Respondent New Jersey Sports and Exposition Authority (Sports Authority) could build a racetrack-stadium- sports arena complex, asserted claims pursuant to 42 U.S.C. § 1983 complaining of a systematic deprivation of New Jersey statutory relocation benefits. Petitioner contends that its con- stitutional rights to procedural due process (entitling it to timely notice of available benefits), substantive due process (entitling it to a fairly administered eminent domain system consistent with statutory mandates), and equal protection of the laws (entitling it to the same access to benefits which other agencies, which properly follow statutory mandates, extend to New Jersey property owners) have been violated by the system- atic failure of the respondent Sports Authority, its chief execu- tive (respondent Werblin) and the members of its Board (respondents Serraino, Foley, Kugler, Lewis, McCrane and Werblin) to carry out the mandates of the relevant New Jersey statutes and regulations. The Courts below granted summary 3 judgment dismissing all respondents on non-substantive grounds, including defenses of the statute of limitations (with respect to the Sports Authority only) and non-liability for the acts of subordinates under the doctrine of respondeat superior. Deprivation of State Statutory Rights The State of New Jersey has adopted a comprehensive statutory scheme securing to real property owners a series of rights in the event their property is taken by eminent domain. These statutory guarantees are set forth in the New Jersey Eminent Domain Act of 1971 (Chapter 361, Laws of 1971 N.J.S.A. 20:3-1 et seq.), the Relocation Assistance Law of 1967 (P.L. 1967, Chapter 79, N.J.S.A. 52:31B-1 et seq.), and the Relocation Assistance Act of 1971 (P.L. 1971, Chapter 362, N.J.S.A. 20:4-1, et seq.) (Relevant sections of said statutes are set forth in the appendix annexed hereto.) The statutes are implemented by a series of Regulations promulgated pursuant to statutory authority by the New sereey Department of Com- munity Affairs. Among the rights guaranteed to property owners about to be displaced are the right to prompt payment of authorized relocation benefits and in “hardship cases”, the right to such payments “in advance” of the property owner’s removal from its premises. N.J.S.A. 20:4-10(a)(2) (A. 2a).* Petitioner was never given notice of the existence of this statutory right, and as a result of its displacement by eminent domain, it “|. . was compelled and driven first into receivership and then into bankruptcy, with a total loss of its business including, but not limited to, inventory, personal prop- erty, good will, ability to finance its business, and loss of contracts. . .” (Amended Complaint 4 28 (R. 837a)). ° References in this Petition to materials contained in the appendix annexed hereto are designated by the abbreviation “A” followed by relevant page numbers. References to the record below which is comprised of two volumes entitled “Appendix on Behalf of Plaintiff Appellant” are designated by the abbreviation “R” followed by the relevant page number. 4 Also among the statutory rights conferred upon New Jersey displaced property owners is the right to payment for direct losses of tangible personal property such as inventory or work in process. N.J.S.A. 20:4-4(a)(2) (A. 2a). Petitioner was never given notice of its right to these benefits; it was never offered or paid any such benefits; and it lost personal property and inventory through destruction, theft and vandalism. (Amended Complaint 4 29 R. 837a) Also among the rights of New Jersey displaced property owners is the right, pursuant to adminstrative regulation, to recover payment for physical and structural changes at its new location. Rules and Regulations of New Jersey Department of Community Affairs, Ch.6 4 78 promulgated pursuant to Relo- cation Assistance Act of 1971 (A. 8a-10a). Petitioner was never given notice of its right to such a payment. No offer was made, and indeed, misrepresentations were made by certain respond- ents that petitioner would not be entitled to be paid for physical or structural changes at a new location. As a conse- quence, petitioner was unable to find a suitable new location, which contributed to the destruction of its business. (Amended Complaint 44 30 and 31 (R. 837a)). Also among the stautory rights of a displaced property owner which were denied to petitioner was the right to be paid for reasonable expenses in searching for a replacement business (N.J.S.A. 20:4-4(a)(3) (A. 2a)). New Jersey’s Statutory Scheme of Administrative Accountability In order to assure that state agencies focus upon the needs, interests and statutory rights of property owners to be dis- placed by eminent domain, New Jersey also requires that before any dislocation of property owners, agencies must formulate and implement an approved Workable Relocation Assistance Program (WRAP). Such a program must include: “. . , such measures, facilities, techniques or services as may be necessary. . . to determine the needs of displaced 5 persons and business concerns for relocation assistance . and to assist in minimizing hardships . . . (3) to assist owners of displaced business concerns in obtaining and becoming established in suitable business locations; . . . (5) and to provide for fair and reasonable relocation assistance payments pursuant to Section 4. . .” N.J.S.A. 52:31B-5 (A. 3a). Respondents failed to forumulate a proper WRAP, in that the procedures they devised failed to contemplate and provide for the statutory benefits discussed above. (See Amended Com- plaint 44 20 and 21 (R. 835a)). To secure further the rights conferred upon property owners by the New Jersey eminent domain statutes and to insure administrative accountability, N.J.S.A. 52:31B-5 mandates upon the chief executive officer of any state agency acquiring property for public use the obligation to certify to the Commis- sioner of the Department of Community Affairs “. . . that a workable relocation assistance program (WRAP) for displaced concerns, offering the . . . [statutorily mandated] services . is available to reduce hardship to those affected.” N.J.S.A. 52:31B-5 (A. 3a). Implicit in such a requirement of course is the duty conferred upon an agency chief executive to review proposed programs to assure that their provisions comply with statutory requirements. The respondent chief executive David A. Werblin failed to certify such a program. Consequently approval of the program was never properly based upon the informed certification of the chief executive, as was also required by the statutory scheme. (Amended Com- plaint ¢ 54(b) R. 843a). Thus petitioner was deprived of the benefit of administrative review and screening by the respond- ent Werblin and informed approval by the Commissioner of the Department of Community Affairs. Had such screening, review and informed approval taken place, it could well have revealed and corrected the deficiences noted above. In purported implementation of its uncertified relocation program, the Sports Authority and other respondents engaged 6 in and countenanced a pattern of failures to satisfy other mandated requirements, which included a failure to inform petitioner of the relocation benefits and assistance available, a failure to determine the extent of petitioner’s need for assist- ance, a failure to provide current and continuing information on the availability of prices and locations of comparable com- mercial properties. Amended Complaint 4 22 (R. 835a-836a) Among the more stunning institutional failures to satisfy express statutory requirements respondent Werblin caused a booklet entitled “If | Must Move” to be disseminated to relocatees through subcontract with the New Jersey Depart- ment of Transportation. The pamphlet was distributed to targeted property owners, ostensibly to advise them fully of their rights. /t failed, among other things, to notify and alert property owners to the availability of advance relocation bene- fits in hardship cases. N.J.S.A. 20:4-10(a)(2) (A. 2a). (See also opinion at 30a), text of booklet reproduced at R. 559-567a). Petitioner was evicted from its premises without ever receiv- ing notice of the mandated benefits described above, and without knowledge of the deficiencies in WRAP certification and approval described above, in violation of the express provisions of N.J.S.A. 20:3-19, (A. la), that section requires that an eviction may take place only upon a judicial determina- tion that the property owner has had adequate opportunity to obtain funds and expenses to which the law entitles it. (Amended Complaint 4 12, (R. 832a-833a)). The Lawsuit In this action commenced under 42 U.S.C.§ 1983,* peti- tioner complains of the entire panoply of statutory denials. The underlying property rights include petitioner’s right to possession of its real property and its right to relocation benefits under the applicable New Jersey statutes. Petitioner seeks damages resulting from the failure of the Sports Author- ity to timely apprise it of its rights to benefits and for unlawful : Jurisdiction in the District Court below was originally invoked pursuant to 28 U.S.C. § 1343 and 1331(a). 7 termination of possession of its property. The resulting losses included petitioner’s insolvency and the destruction of its business and goodwill. It has asserted that the respondents’ conduct denies its Fourteenth Amendment constitutional rights to: a) b ~" c) d) e) procedural due process in that it was never notified of valuable statutory rights to relocation benefits so as to enable it to claim and timely receive them in order to salvage its business from bankruptcy; a procedural due process right to administrative screening and certification, derived from the statutory obligation of respondent Werblin to screen and certify a WRAP relocation plan conforming to state statutory mandates; procedural due process which should have imposed the burden of proof upon respondent Sports Authority at its judicial eviction hearing to establish that the re- quirements of WRAP certification and approval had been satisfied (Landon v. Plasencia, _. U.S. __ (1982), 103 S.Ct. 321); substantive due process in that the wholesale depriva- tions of petitoner’s rights and undermines the basic fairness and integrity of the eminent domain system (See Duncan v. Poythress, 657 F.2d 691 (Sth Cir. 1981), cert. granted 102 S.Ct. 1426, cert. dismissed sissies SG ideal equal protection of the laws in that the pattern of official misfeasance referred to above results in dis- crimination against petitoner and all property owners dislocated by the respondent Sports Authority, since it systematically denies to them the statutory benefits which the legislature intended to confer upon all prop- erty owners. See Snowden v. Hughes, 539 F.2d 256 (ist Cir. 1976); Cordeco Devel. Corp. v. Vasquez, 539 F.2d 256 (ist Cir. 1976); Burt v. City of New York, 156 F.2d 791 (2d Cir. 1946); McFarland v. American Sugar Ref. Co., 241 U.S. 79 (1916). ) Dismissal in the District Court Without grappling directly with the merits of petitioner’s claims, the District Court below, piecemeal, has dismissed all of the respondents. In a decision dated November 16, 1981, respondent Sports Authority was granted the benefit of a two year statute of limitations under the New Jersey Tort Claims Act (A. 16a-25a) (Relevant provisions are set forth in the appendix attached herc.o at 7a). Later, in a decision dated March 1, 1982, respondents members of the Sports Authority were dismissed because the allegations against them were construed as seeking to impose liability for the acts of subordi- nates on a respondeat superior theory not supportable under § 1983 interpretations (A. 26a-31a)). And respondent Werblin was dismissed upon the ground that his failure to screen and certify the agency-wide WRAP relocation program did not deny petitioner any constitutional rights but instead was only a part of an administrative plan to help New Jersey regulate official conduct. (A. 3la-35a). On appeal, the Third Circuit, without opinion, cryptically affirmed the decisions below. (A. 36a-38a) For the reasons which follow, Petitioner respectfully submits that the dismissal of all of the respondents was erroneous, involves substantial departures from § 1983 doctrine, and pre- sents significant issues for decision by this Court. REASONS FOR GRANTING THE WRIT 1. Granting New Jersey Tort Claims Act statute of limita- tions protection to the respondent Sports Authority con- flicts with applicable decisions of this Court which deny the protection of sovereign immunity to such agencies in cases under 42 U.S.C. § 1983 This Court has repeatedly proclaimed that a public body is a “person” under the terms of 42 U.S.C. § 1983 and not entitled to immunity except in rare circumstances not applicable here. Monell v. Dept. of Soc. Serv. of the City of New York, 436 U.S. 690 (1978) (local government bodies), Owen v. City of 9 Independence, 445 U.S. 622 (1980), and Lake Country Estates Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979) (public agencies). No effort has been made by respondents below, nor, we submit, would one have prevailed, to contend that the Sports Authority was structured with a specific intent to enable it to enjoy the protection of state sovereign immunity. See Lake Country Estates, supra at 401-402. Accordingly the Sports Authority, like municipalities in Monell and Owen, supra must be construed as a “person” in the parlance of Section 1983. As this Court elaborated in Owen, “By including municipalities within the class of ‘persons’ subject to liability for violations of the Federal Constitu- tion and Laws, Congress—the supreme sovereign on mat- ters of federal law—abolished whatever vestige of the State’s sovereign immunity the municipality possessed.” 445 U.S. at 647-48. This case presents a prime example of a departure from Monell, Owen and Lake Country, supra, since the Courts below applied a six year statute of limitations to the individual respondent “persons” (denying their motion to dismiss on limitations grounds) and applied a two year statute to the respondent Sports Authority (granting its limitations dismissal motion). The sole distinction justifying the application of different statutes was the status of the Sports Authority as a public agency. We submit that in reaching this result, the Courts below, contrary to the above authorities, improperly bestowed upon the Sports Authority a status paramount to that of the individual “persons” before it. Purporting to follow the “resemblance” test standard autho- rized in Board of Regents v. Tomanio, 446 U.S. 478 (1980); Johnson v. Railway Express Agency, 421 U.S. 454 (1975) for purposes of borrowing local statutes of limitations, the District Court held that the Sports Authority was protected by the two year limitations period of the New Jerscy Tort Claims Act, N.J.S.A. 59:8-8 (A. 7a). In establishing a limitations period, 10 that Act does not focus upon the nature of the tortious conduct. It merely provides that: “The claimant shall be forever barred from recovering against a public entity if . . . (b) two years have elapsed since the accrual of the claim.” When it denied the limitations claims of individual respond- ents, the court ruled that the § 1983 constitutional tort most resembles the tort of “unjustified interference with right to pursue lawful business relations, which is subject to a six year limitations period.” (A. 20a-23a). However, with respect to the Sports Authority, the Court characterized the claim as being one “. . . for tortious injury to property at the hands of a public authority.” (A. 20a), subject to a two year limitation period. Although the District Court thought it was merely applying the authorized resemblance test, what it in fact did when it incorporated the New Jersey Tort Claims Act was to “borrow” a portion of sovereign immunity. New Jersey’s Tort Claims Act is clearly a child of the sovereign immunity doctrine. Its inception came in response to the New Jersey Supreme Court’s decision in Willis v. Dept. of Conservation Development, 55 N.J. 534, 264 A.2d 34 (1970) which denied sovereign immunity protection for tort claims but invited the Legislature to define the limits of tort liability. The basic approach of the Act is to re-establish sovereign immunity against tort claims except where the Act otherwise provides. See Be// v. Bell, 83 N.J. 417 at 423, 416 A.2d 829 (1980); Malloy v. State, 76 N.J. 515 at 518, 388 A.2d 622 (1978). The resemblence test can be accommodated with the Monell doctrine by limiting it to an evaluation of the nature of the tortious character of the wrongs complained of, excluding as irrelevant the character of the targeted defendant as either a private person or a public agency. See Ammburg v. City of Chester, 494 F.2d 811 (3rd Cir. 1974); “. . . the applicable statute of limitations must be determined from the nature of the conduct involved” /d. at 814. Only in this manner can any meaning be preserved to the clear declaration in Monell that local governments (and government agencies, see Lake Coun- try Estates, Inc., supra), “. . . like every other § 1983 ‘per- son’, by the very terms of the statute, may be sued for constitutional deprivations” 436 U.S. at 690-91. Permitting state agencies or municipalities to claim the benefit of state Tort Claims Acts is also tantamount to grant- ing them Eleventh Amendment immunity from suit, contrary to this Court’s holding in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979) that Eleventh Amendment immunity is not to be conferred: “(Unless there is good reason to believe that the States structured the new agency to enable it to enjoy the special constitutional protection of the States themselves.” 440 U.S. at 401 No evidence of such an intent appears in the record below, and the Court’s decision thus cannot be bolstered on this issue. As the Court has mandated in the past: “State limitations periods will not be borrowed if their application would be inconsistent with the underlying policies of the federal statute.” Occidental Life Ins. Co. of Calif. v. E.E.O.C., 432 U.S. 355 (1977) at 367 That directive has been violated by the Courts below, and petitioner respectfully requests that this Court issue the writ in order to review the matter. 2. BLAZER CORPORATION, Appellant —vVs.— NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, DAVID A. WERBLIN, CHARLES SERRAINO, ADRIAN M. FOLEY, JR., GEORGE F,. KUGLER, JR., AUBREY C. LEWIS, JOSEPH M. MCCRANE, and “JOHN DOES,” said names being fictitious (D.C. Civil No. 80-2587) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY - NEWARK > ARGUED NOVEMBER 19, 1982 Before: GIBBONS, HIGGINBOTHAM and BECKER, Circuit Judges. >. ROBERT S. TOBIN (Argued) 152 Market Street Paterson, New Jersey 07505 Attorney for Appellant 37a DONALD A. KLEIN (Argued) WINNE, BANTA & RIZZI 25 East Salem Street Hackensack, New Jersey 07602 Of Counsel: JOSEPH A. RIZZI, DONALD A. KLEIN. On The Brief: DONALD A. KLEIN, VIRGINIA ANNE GLYNN. Attorneys for Appellee New Jersey Sports and Exposition Authority KENNETH I. NOWAK (Argued) ZAZZALI, ZAZZALI & KROLL Gateway | Newark, New Jersey 07102 Of Counsel: JAMES R. ZAZZALI. On The Brief: KENNETH I. NOWAK. Attorneys for Appellees, Werblin, Serraino, Foley, Kugler, Lewis and McCrane > JUDGMENT ORDER Blazer Corporation appeals from a final order granting summary judgment against it on its Section 1983 complaint against the New Jersey Sports and Exposition Authority and certain of its officials. Since the complaint fails to state a cause of action for violation of that section, it is 38a ORDERED, ADJUDGED and DECREED that the judgment be and is hereby affirmed. Costs are taxed in favor of appellees. BY THE COURT, /s/ JOHN GIBBONS Circuit Judge Attest: /s/ SALLY MRVOS Sally Mrvos, Clerk Dated: Dec. 2, 1982 39a Order Denying Motion for Hearing En Banc dated December 29, 1982 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 82-5239 > BLAZER CORPORATION, Appellant, —Vvs.— NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, DAVID A. WERBLIN, CHARLES SERRAINO, ADRIAN M. FOLEY, JR., GEORGE F. KUGLER, JR., AUBREY C. LEWIS, JOSEPH M. MCCRANE, and “JOHN DOES,”, said names being ficti- tious, (D.C. Civil No. 80-2587) > SUR PETITION FOR REHEARING Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges. The petition for rehearing filed by appellant in the above entitled case having been submitted to the judges who partici- pated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no 40a judge who concurred in the decision having asked for re- hearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. By the Court, s/ JOHN J. GIBBONS Judge Dated: Dec. 29, 1982 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0715%3A1. Public record. Not legal advice.