Baroni v. Port Authority of New York and New Jersey

23-916-cv
Baroni v. Port Authority of New York and New Jersey
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2023
No. 23-916
WILLIAM E. BARONI, JR .
Plaintiff-Appellant,
v.
THE P ORT AUTHORITY OF N EW YORK AND N EW JERSEY ,
Defendant-Appellee.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: J ANUARY 16, 2024
D ECIDED: DECEMBER 2, 2025
Before: WALKER , C ARNEY , and MENASHI , Circuit Judges.
Defendant-Appellant William Baroni sued his former
employer, the Port Authority of New York and New Jersey, for
indemnification for legal expenses. The district court dismissed the
complaint for lack of subject matter jurisdiction on the ground that
Baroni failed to plead that the Port Authority had waived its state
sovereign immunity. As the Supreme Court has held, however, the

-- 1 of 31 --

2
Port Authority does not have the sovereign immunity “that a State
enjoys.” Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 33 (1994).
Baroni therefore did not need to plead that it had waived its
immunity. We vacate the judgment of the district court and remand
for further proceedings.
Judge Carney concurs in the judgment in a separate opinion.
MICHAEL A. L EVY (Christopher M. Egleson, Michael D.
Mann, Danica L. Brown, Alyssa M. Hasbrouck, James R.
Horner, on the brief), Sidley Austin LLP, New York, NY,
for Plaintiff-Appellant.
PETER G. N EIMAN (Anjan S. Sahni, Alan Schoenfeld,
Marissa M. Wenzel, on the brief), Wilmer Cutler Pickering
Hale & Dorr LLP, New York, NY, for Defendant-Appellee.
MENASHI , Circuit Judge:
Defendant-Appellant William Baroni was an employee of the
Port Authority of New York and New Jersey. He was tried and
convicted of crimes related to his role in the “Bridgegate” scandal.
Ultimately, however, his conviction was vacated and the indictment
dismissed. Baroni then sued the Port Authority for indemnification
covering the roughly $4 million in legal expenses he incurred for his
criminal defense.
The district court dismissed the complaint for lack of subject
matter jurisdiction on the ground that Baroni had failed to adequately
allege that the Port Authority had waived its state sovereign
immunity. The Supreme Court has held, however, that the Port

-- 2 of 31 --

3
Authority “is not cloaked” with the sovereign immunity “that a State
enjoys.” Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 32-33
(1994). Because the Port Authority lacks state sovereign immunity
from suit, Baroni did not need to allege that it had waived its
immunity. We vacate the judgment of the district court and remand
for further proceedings consistent with this opinion.1
BACKGROUND
The Port Authority is a bi-state agency created through a
compact between New York and New Jersey that Congress approved.
Through identical statutes in each respective jurisdiction, New York
and New Jersey consented to waive sovereign immunity for the Port
Authority
upon the condition that any suit, action or proceeding
prosecuted or maintained under this act shall be
commenced within one year after the cause of action
therefor shall have accrued, and upon the further
condition that in the case of any suit, action or
proceeding for the recovery or payment of money,
prosecuted or maintained under this act, a notice of claim
shall have been served upon the port authority by or on
1 We have previously held that the Port Authority may lack state sovereign
immunity under the federal Constitution but still retain sovereign
immunity from state law claims in federal court. See Caceres v. Port Auth. of
N.Y. & N.J., 631 F.3d 620, 625 (2d Cir. 2011). We overrule that precedent
through our mini en banc procedure. See United States v. Peguero, 34 F.4th
143, 158 n.9 (2022). In accordance with that procedure, “we have circulated
our opinion to all active judges of the court prior to filing and received no
objection.” United States v. Bedi, 15 F.4th 222, 232 (2d Cir. 2021). The role of
the en banc court is limited to overruling the holding of Caceres that the Port
Authority has sovereign immunity from state law claims in federal court
and does not extend to other issues in this appeal.

-- 3 of 31 --

4
behalf of the plaintiff or plaintiffs at least sixty days
before such suit, action or proceeding is commenced.
N.Y. Unconsol. Law § 7107 (McKinney 1950) (footnote omitted); see
also N.J. Stat. § 32:1-163.
I
William E. Baroni served as the deputy executive director of the
Port Authority. While serving in that position in September 2013,
Baroni approved a plan to modify the deployment of traffic cones in
the New Jersey approaches to the George Washington Bridge. The
plan substantially increased traffic for residents of Fort Lee, New
Jersey. It was reported in the press that the plan aimed to retaliate
against the mayor of Fort Lee, who had refused to endorse then-
Governor Chris Christie for re-election. The resulting political scandal
was known as “Bridgegate.” Baroni became a subject of investigations
by the New Jersey Legislature and the U.S. Attorney for the District
of New Jersey.
On December 12, 2013, Baroni received his first subpoena from
a select committee of the New Jersey Legislature. Within five days of
receiving the subpoena, Baroni “confirmed that the subpoena was
delivered to the general counsel of the Port Authority, either by
forwarding it himself or by confirming that the general counsel had
already received it.” J. App’x 233 (Proposed First Am. Compl. ¶ 20).
From December 13, 2013, to March 12, 2014, as Baroni’s conduct
continued to be investigated, Baroni repeatedly requested that the
Port Authority indemnify him pursuant to Paragraph 7 of Article XI
of the bylaws of the Port Authority. That paragraph provided as
follows:
The Port Authority may, consistent with applicable law,
provide for a defense when punitive damages are sought

-- 4 of 31 --

5
or criminal charges are asserted, in connection with any
alleged act or omission which occurred or is alleged in
the complaint to have occurred while the individual was
acting within the scope of Port Authority employment or
duties, based upon an investigation and review of the
facts and circumstances and a determination by General
Counsel that provision of such defense would be in the
best interest of the Port Authority; provided, however,
that the Port Authority shall provide reimbursement of
defense costs incurred by or on behalf of an indemnified
party in defense of a criminal proceeding arising out of
such an act or omission, upon acquittal or dismissal of
the criminal charges. Furthermore, the Port Authority
may, consistent with applicable law, indemnify or save
harmless an indemnified party with respect to fines or
penalties, based upon an investigation and review of the
facts and circumstances of the case and a determination
by General Counsel that to indemnify and save harmless
such indemnified party would be in the best interest of
the Port Authority.
Id. at 72. After several such requests, on February 18, 2014, the general
counsel of the Port Authority emailed Baroni, copying the executive
director of the Port Authority and Baroni’s counsel. The general
counsel stated that the Port Authority had received Baroni’s requests
for “legal representation and indemnification” and would review
those requests. Id. at 234 (Proposed First Am. Compl. ¶ 22).
Subsequently, the general counsel “informed” Baroni’s counsel that
“Baroni had done everything he needed to do to make his request for
payment of legal fees and indemnification, and that Mr. Baroni
should stop reiterating his request for payment of his legal fees and
indemnification.” Id. (Proposed First Am. Compl. ¶ 23). He added
that “the Port Authority had no immediate plan to act on Mr. Baroni’s

-- 5 of 31 --

6
requests.” Id. The Port Authority never provided the advance
payments that Baroni requested.
On April 23, 2015, a federal grand jury in New Jersey indicted
Baroni—along with Bridget Anne Kelly, an aide to Governor
Christie—on nine counts of fraud, deprivation of civil rights,
conspiracy to commit fraud, and conspiracy to commit deprivation of
civil rights. In a press release, the Port Authority stated that it had
received and was reviewing the indictment. According to Baroni’s
allegations, “delivery to the General Counsel of a copy of the
indictment was in fact made within five days after the indictment was
made public,” as the bylaws required for indemnification. Id. at 236
(Proposed First Am. Compl. ¶ 27) (internal quotation marks and
alterations omitted).
In November 2016, Baroni was convicted following a trial in the
U.S. District Court for the District of New Jersey and sentenced to
twenty-four months in prison. Jury Verdict at 1-3, United States v.
Baroni, No. 15-CR-193 (D.N.J. Nov. 4, 2016), ECF No. 283; Judgment
at 3, United States v. Baroni, No. 15-CR-193 (D.N.J. Mar. 30, 2017), ECF
No. 332. The U.S. Court of Appeals for the Third Circuit affirmed the
judgment of conviction with respect to the fraud counts but decided
to “reverse and vacate” with respect to the “civil rights convictions.”
United States v. Baroni, 909 F.3d 550, 588 (3d Cir. 2018). It remanded to
the district court with instructions to dismiss those counts of the
indictment and to resentence Baroni on the remaining counts. Id. at
588-89. On remand, Baroni received a sentence of eighteen months.
Amended Judgment at 2, United States v. Baroni, No. 15-CR-193
(D.N.J. Feb. 27, 2019), ECF No. 383. In 2020, the Supreme Court of the
United States reversed the judgment with respect to the fraud
convictions because the conduct “could not have violated the federal-
program fraud or wire fraud laws.” Kelly v. United States, 590 U.S. 391,

-- 6 of 31 --

7
404 (2020). On June 11, 2024, the district court dismissed the
indictment. Dismissal Order at 1-2, United States v. Baroni, No. 15-CR-
193 (D.N.J. June 11, 2020), ECF No. 415. Throughout this process,
Baroni incurred legal fees of about $4 million.
On September 25, 2020, following the reversal of his
convictions, Baroni sent the Port Authority a letter seeking
indemnification for his legal expenses under Paragraph 7. On October
23, 2020, the Port Authority rejected Baroni’s request on the ground
that Baroni was acting outside the scope of his employment when he
made the traffic decisions leading to his prosecution. On March 5,
2021, Baroni served a notice of claim on the Port Authority.
II
On June 9, 2021, Baroni sued the Port Authority in New York
state court. On July 12, the Port Authority removed the case to the
U.S. District Court for the Southern District of New York.
In federal court, the Port Authority moved to dismiss the
complaint on two grounds. First, it argued that the district court
lacked subject matter jurisdiction over the case. The state statutes that
waived the sovereign immunity of the Port Authority limited the
waiver to claims that had accrued. According to the Port Authority,
Baroni’s claim had not accrued because he had failed to provide the
required notice of his claim for indemnification. The notice
requirement proceeds from Paragraph 8 of Article XI of the bylaws,
which reads:
The benefits of this Article XI shall be conditioned upon
(i) delivery to General Counsel of the original or a copy
of any summons, complaint, process, notice, demand or
pleading within five days after receipt or service of such
document, such delivery being deemed a request by the

-- 7 of 31 --

8
party seeking indemnification that the Port Authority
provide for defense pursuant to this Article XI; (ii) the
full cooperation of the indemnified party in the
defense ...; and (iii) the agreement of the indemnified
party that the Port Authority shall be entitled to
withdraw such defense and demand reimbursement
from such party for costs.
J. App’x 72. The Port Authority argued that the first condition was not
satisfied because Baroni had not delivered to the Port Authority a
copy of the judgment of acquittal, which was the relevant “summons,
complaint, process, notice, demand or pleading.” According to the
Port Authority, the failure to make that delivery meant that the claim
for indemnification had not accrued, which in turn meant that the
waiver of sovereign immunity had not been triggered, depriving the
district court of subject matter jurisdiction.
Second, the Port Authority argued that Baroni failed to state a
claim because the conduct for which he sought indemnification fell
outside the scope of his employment at the Port Authority.
The district court granted the motion to dismiss for lack of
subject matter jurisdiction on the ground that the Port Authority had
not waived its sovereign immunity. The district court concluded that
“by failing to allege, or submit any evidentiary proffer, that [Baroni]
has fulfilled the condition precedent to his right to receive
indemnification from the Port Authority under Article XI of the By-
Laws, [Baroni] has failed to establish that the [district court] has
jurisdiction of the dispute by a preponderance of the evidence
because there is no showing that [the Port Authority] has waived its
sovereign immunity with respect to his claims.” Baroni v. Port Auth. of
N.Y. & N.J., No. 21-CV-5961, 2022 WL 4385585, at *5 (S.D.N.Y. Sept.
22, 2022).

-- 8 of 31 --

9
Normally, non-compliance with a condition precedent is an
affirmative defense. See Endovasc, Ltd. v. J.P. Turner & Co., LLC, 169
F. App’x 655, 657 (2d Cir. 2006). In this case, however, the district
court decided that the “failure to plead compliance with the condition
precedent to the Port Authority’s contractual obligation to provide
indemnification deprives the [district court] of jurisdiction of the
dispute,” Baroni, 2022 WL 4385585, at *5, on the ground that
“[d]etermining the existence of subject matter jurisdiction is a
threshold inquiry,” id. (quoting Morrison v. Nat’l Australia Bank Ltd.,
547 F.3d 167, 170 (2d Cir. 2008)). Because “[t]he Port Authority’s
waiver of sovereign immunity only applies to claims that have
accrued,” id., the district court concluded that it lacked jurisdiction
unless “the conditions precedent to filing suit have been satisfied,” id.
(quoting Hirth v. Am. Ins. Co., No. 15-CV-3245, 2016 WL 75420, at *4
(S.D.N.Y. Jan. 7, 2016)).
Following the dismissal of the complaint, Baroni sought leave
to amend the complaint to allege additional facts that would address
the concerns of the district court. In particular, in his proposed First
Amended Complaint, Baroni alleged that he complied with the notice
requirement through his repeated requests for reimbursement; that
the first condition of Paragraph 8 was satisfied because the Port
Authority received a copy of the indictment; and that the Port
Authority had waived any right to demand a different form of
compliance by telling Baroni that he had adequately made a request
for indemnification and did not need to take additional steps to
establish such a request.
The district court denied the motion for leave to amend on the
ground of futility. The district court held that the condition precedent
in Paragraph 8 required delivery of the judgment of acquittal, rather
than the indictment, because the judgment of acquittal was “the

-- 9 of 31 --

10
document on which his claim to entitlement to an award of attorney’s
fees is based.” Baroni v. Port Auth. of N.Y. & N.J., No. 21-CV-5961, 2023
WL 4029343, at *5 (S.D.N.Y. June 15, 2023). The district court
additionally held that the Port Authority “could not have ‘waived’
the By-Law requirements” and “cannot be estopped from arguing
that Mr. Baroni did not comply with the requirements of the By-
Laws.” Id. at *6-7. For these reasons, the proposed amended complaint
was “insufficient to demonstrate that the [district court] has subject
matter jurisdiction to hear Mr. Baroni’s claim because it does not
allege that Mr. Baroni delivered the judgment of acquittal within five
days after Mr. Baroni received that document” and accordingly filing
the amended complaint would be futile. Id. at *7.
On June 16, 2023, Baroni timely filed a notice of appeal.
LEGAL STANDARDS
“It is well settled that ‘where a district court grants a
defendant’s Rule 12(b)(1) motion to dismiss, an appellate court will
review the district court’s factual findings for clear error and its legal
conclusions de novo.’” Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120
(2d Cir. 2022) (alteration omitted) (quoting Aurecchione v. Schoolman
Transp. Sys., 426 F.3d 635, 638 (2d Cir. 2005)).
Because state sovereign immunity is “a jurisdictional limitation
on the power of federal courts,” In re Charter Oak Assocs., 361 F.3d 760,
765 (2d Cir. 2004), it may deprive such a court “of subject matter
jurisdiction,” McGinty v. New York, 251 F.3d 84, 90 (2d Cir. 2001).
Accordingly, state sovereign immunity raises “a threshold question
that must be resolved … before proceeding to the merits.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 88-89 (1998).

-- 10 of 31 --

11
DISCUSSION
“[T]he States entered the federal system with their sovereignty
intact,” and “the judicial authority in Article III is limited by this
sovereignty.” Blatchford v. Native Village of Noatak, 501 U.S. 775, 779,
(1991). The States therefore possess an “immunity from suit” that “is
a fundamental aspect of the sovereignty which the States enjoyed
before the ratification of the Constitution, and which they retain
today” because “[t]he federal system established by our Constitution
preserves the sovereign status of the States.” Alden v. Maine, 527 U.S.
706, 713-14 (1999).
The Port Authority, however, is not a State but a “bistate entity”
created through an interstate compact accorded congressional
consent. Hess, 513 U.S. at 43. The Port Authority occupies “a
significantly different position in our federal system than do the
States themselves.” Id. at 40. Indeed, the Supreme Court has
specifically held that the Port Authority “is not cloaked” with the
sovereign immunity “that a State enjoys.” Id. at 32-33. As a result, the
Port Authority is “not entitled” to “immunity from suit in federal
court.” Id. at 39.
In this case, the district court decided that state statutes
purporting to immunize the Port Authority from suit under certain
circumstances could deprive the federal courts of subject matter
jurisdiction over a lawsuit—even though the Port Authority
possesses no sovereign immunity that limits the judicial authority
conferred to the federal courts under Article III. That was erroneous.
“A State is free to develop its own justiciability rules governing state
tribunals,” and for that reason there may be a “state-law immunity
from suit in a state forum.” PennEast Pipeline Co., LLC v. New Jersey,

-- 11 of 31 --

12
594 U.S. 482, 509 n.1 (2021) (Gorsuch, J., dissenting). But “in federal
court, state-law immunity is not implicated.” Id.
Because the Port Authority does not possess state sovereign
immunity that limits the subject matter jurisdiction of a federal court,
the district court erred in dismissing the complaint for lack of subject
matter jurisdiction. We vacate the judgment of the district court and
remand for further proceedings consistent with this opinion.
I
“In our constitutional scheme, a federal court generally may
not hear a suit brought by any person against a nonconsenting State.”
Allen v. Cooper, 589 U.S. 248, 254 (2020). The Supreme Court has
“sometimes referred to the States’ immunity from suit as ‘Eleventh
Amendment immunity’” because the Eleventh Amendment “makes
explicit reference” to that immunity. Alden, 527 U.S. at 712-13. The
terms of the Eleventh Amendment describe the immunity of a State
from suits brought by citizens of other States. 2 “Despite the
narrowness of its terms,” however, the Supreme Court has
“understood the Eleventh Amendment to stand not so much for what
it says, but for the presupposition of our constitutional structure
which it confirms: that the States entered the federal system with their
2 The Eleventh Amendment reads: “The Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The
amendment was written narrowly because Congress did not aim “to enact
language codifying the traditional understanding of sovereign immunity
but rather to address the specific provisions of the Constitution that had
raised concerns during the ratification debates and formed the basis of the
Chisholm decision.” Alden, 527 U.S. at 723 (referencing Chisholm v. Georgia,
2 U.S. 419 (1793)).

-- 12 of 31 --

13
sovereignty intact; that the judicial authority in Article III is limited
by this sovereignty; and that a State will therefore not be subject to
suit in federal court unless it has consented to suit, either expressly or
in the ‘plan of the convention.’” Blatchford, 501 U.S. at 779 (citations
omitted). As the Court long ago explained, “the cognizance of suits
and actions unknown to the law, and forbidden by the law, was not
contemplated by the constitution when establishing the judicial
power of the United States,” and “[t]he suability of a state, without its
consent, was a thing unknown to the law.” Hans v. Louisiana, 134 U.S.
1, 15-16 (1890).
As a result, while the phrase “Eleventh Amendment
immunity” may be a “convenient shorthand,” it is “something of a
misnomer” because “the sovereign immunity of the States neither
derives from, nor is limited by, the terms of the Eleventh
Amendment.” Alden, 527 U.S. at 713. Instead, “the States’ immunity
from suit is a fundamental aspect of the sovereignty which the States
enjoyed before the ratification of the Constitution” and which “exists
today by constitutional design.” Id. at 713, 733. The Supreme Court
has consistently identified a single “principle of sovereign immunity
preserved by constitutional design.” Id. at 748.3
3 See also PennEast, 594 U.S. at 499 (majority opinion) (“Since Hans, we have
understood the Eleventh Amendment to stand not so much for what it says,
but for the presupposition of our constitutional structure which it
confirms.”) (internal quotation marks omitted); Allen, 589 U.S. at 254
(“[T]his Court has long understood [the Eleventh] Amendment to stand not
so much for what it says as for the broader presupposition of our
constitutional structure which it confirms.”) (internal quotation marks
omitted); Franchise Tax Bd. v. Hyatt, 587 U.S. 230, 243 (2019) (“The sovereign
immunity of the States, we have said, neither derives from, nor is limited
by, the terms of the Eleventh Amendment.”) (internal quotation marks
omitted); N. Ins. Co. of New York v. Chatham County, 547 U.S. 189, 193 (2006)

-- 13 of 31 --

14
A
“It has long been settled” that state sovereign immunity
precludes “not only actions in which a State is actually named as the
defendant, but also certain actions against state agents and state
instrumentalities.” Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429
(1997). To decide “whether a state instrumentality may invoke the
State’s immunity,” the Supreme Court has “inquired into the
relationship between the State and the entity in question.” Id. It has
“sometimes examined the essential nature and effect of the
proceeding and sometimes focused on the nature of the entity created
by state law to determine whether it should be treated as an arm of
the State.” Id. at 429-30 (internal quotation marks, citations, and
footnote omitted). The Court has explained that “whether a money
judgment against a state instrumentality or official would be
enforceable against the State is of considerable importance to any
evaluation of the relationship between the State and the entity or
individual being sued.” Id. at 430.
We need not apply this analysis in this appeal because the
Supreme Court has already expressly held that the Port Authority “is
not cloaked with the Eleventh Amendment immunity that a State
enjoys” and is “not entitled to Eleventh Amendment immunity from
suit in federal court.” Hess, 513 U.S. at 32-33, 39.
In Hess, the Court explained that a bistate entity such as the Port
Authority does not resemble the sovereign States that are “the
(“[T]he immunity of States from suit is a fundamental aspect of the
sovereignty which the States enjoyed before the ratification of the
Constitution, and which they retain today except as altered by the plan of
the Convention or certain constitutional Amendments.”) (internal
quotation marks and alteration omitted).

-- 14 of 31 --

15
constituent elements of the Union.” Id. at 40. Instead, the Port
Authority is the creation “of three discrete sovereigns”—two States
and the federal government—that, through Congress, approved the
interstate compact under the Compact Clause. Id. “Suit in federal
court is not an affront to the dignity of a Compact Clause entity”
because “the federal tribunal cannot be regarded as alien in this
cooperative, trigovernmental arrangement.” Id. at 41-42. Moreover,
“[b]ecause Compact Clause entities owe their existence to state and
federal sovereigns acting cooperatively, and not to any ‘one of the
United States,’ their political accountability is diffuse” and “they lack
the tight tie to the people of one State that an instrument of a single
State has.” Id. at 42 (citation omitted).
As a result of these features, a “Compact Clause agency does
not qualify for Eleventh Amendment immunity ‘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, and that Congress concurred in that purpose.’” Id. at 43-
44 (alteration omitted) (quoting Lake Country Ests., Inc. v. Tahoe Reg’l
Plan. Agency, 440 U.S. 391, 401 (1979)). The Court said that such a good
reason was lacking in the case of the Port Authority because “the Port
Authority is financially self-sufficient; it generates its own revenues,
and it pays its own debts,” such that “[r]equiring the Port Authority
to answer in federal court … does not touch the concerns—the States’
solvency and dignity—that underpin the Eleventh Amendment.” Id.
at 52.
Three years after Hess, the Supreme Court decided Regents of
the University of California v. Doe, in which it held that the University
of California retained state sovereign immunity even though the
federal government had agreed to indemnify it against the costs of
litigation. “In Hess,” the Court explained, “we evaluated the

-- 15 of 31 --

16
relationship between an entity created by a bistate compact and the
States that had joined to create that entity in order to determine
whether that entity could properly be denominated as an ‘arm’ of
either of its founding States for the purposes of the Eleventh
Amendment.” Regents, 519 U.S. at 430. The Court noted that it had
considered “the position of the bistate entity as a unique creature
within the federal system and the nature of the claims at issue in the
underlying proceeding” but “focused particular attention on the fact
that ‘both legally and practically’ neither of the relevant States would
have been obligated to pay a judgment obtained against the bistate
entity.” Id. (citation omitted) (quoting Hess, 513 U.S. at 51). In Regents,
by contrast, the State of California would be subject to an adverse
judgment against the University of California “even though the State
may be indemnified by a third party.” Id. at 431. The Court reaffirmed
Hess in holding that “it 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, that is relevant.” Id.
The holding of the Supreme Court in Hess was not unanimous.4
But “[w]e are bound to follow the existing precedent of the Supreme
Court until that Court tells us otherwise.” McKinney v. City of
Middletown, 49 F.4th 730, 746 (2d Cir. 2022) (quoting N.Y. State
Citizens’ Coal. for Children v. Poole, 922 F.3d 69, 79 (2d Cir. 2019)). Thus,
the Port Authority has no sovereign immunity from suit that limits
the jurisdiction of the federal courts.
4 See Hess, 513 U.S. at 56-57 (O’Connor, J., dissenting) (“[T]he Court attaches
undue significance to the requirement that Congress consent to interstate
compacts. … Once Congress consents to cooperative state activity, there is
no reason to presume that immunity does not attach. Sovereign immunity,
after all, inheres in the permissible exercise of state power.”).

-- 16 of 31 --

17
B
The district court might be forgiven for evading the binding
holding of Hess because the district court relied on a similar evasion
by our court. See Baroni, 2023 WL 4029343, at *4 (citing Caceres v. Port
Auth. of N.Y. & N.J., 631 F.3d 620, 624 (2d Cir. 2011)).
In Caceres v. Port Authority of New York and New Jersey, we
acknowledged that the Supreme Court held in Hess that “the Port
Authority lacked Eleventh Amendment sovereign immunity from
federal statutory claims,” but we said that “this holding does not bear
upon the validity of conditions for waiving sovereign immunity over
claims arising under state law.” 631 F.3d at 625. No party in the Caceres
litigation argued that the Port Authority had sovereign immunity
from suit. Yet our court explained that “[a]lthough this jurisdictional
issue was not raised by either party or the district court, it cannot be
waived and dismissal is mandatory.” Id.
In this way, our court in Caceres assumed that there were two
forms of state sovereign immunity. First, there was “Eleventh
Amendment sovereign immunity,” which applied only to “federal
statutory claims” and could be waived by a state entity consenting to
suit. Id. (emphasis omitted). Second, there was a separate “sovereign
immunity” that applied to “claims arising under state law” and
“cannot be waived.” Id. (emphasis omitted).
That assumption is incorrect and cannot be reconciled with
controlling precedent from the Supreme Court. Although the
Supreme Court has used the phrase “Eleventh Amendment
immunity,” it has explained that the phrase serves as “shorthand” for
“[t]he principle of sovereign immunity preserved by constitutional
design.” Alden, 527 U.S. at 713, 748. The Court has consistently
identified state sovereign immunity as a unitary concept that derives

-- 17 of 31 --

18
not from the Eleventh Amendment but from the constitutional
structure. See supra note 3.
In fact, the Court has specifically rejected the argument that a
public entity which lacks “Eleventh Amendment immunity” may
nevertheless claim “a distinct ‘residual’ immunity” that protects
entities exercising “power delegated from the State.” Chatham County,
547 U.S. at 192-94. In Chatham County, the County “conceded that
Eleventh Amendment immunity did not extend to counties” but
argued that “it was immune under ‘the universal rule of state
immunity from suit without the state’s consent.’” Id. at 192. The
appellate court agreed that “common law has carved out a ‘residual
immunity,’ which would protect a political subdivision such as
Chatham County from suit.” Id at 193. The Supreme Court, however,
held that there was no second form of state sovereign immunity that
limited the jurisdiction of the federal courts. “[T]his Court has
referenced only the States’ ‘residuary and inviolable sovereignty’ that
survived the Constitution.” Id. at 194 (quoting The Federalist No. 39,
at 245 (James Madison) (Clinton Rossiter ed., 1961)). Because that is
the only state sovereign immunity that Article III incorporates, “the
County is subject to suit unless it was acting as an arm of the State, as
delineated by this Court’s precedents,” such that it shares in the
sovereignty of the State. Id.
We know that the Port Authority lacks the sovereign immunity
“that a State enjoys,” Hess, 513 U.S. at 33, and that under the
applicable case law there is no other kind. We also know that the state
sovereign immunity reflected in the Eleventh Amendment applies to
state law claims. See, e.g., Hyatt, 587 U.S. at 234 (involving state law
tort claims); Regents, 519 U.S. at 428-29 (involving state law claim for
breach of contract); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 141 (1993) (involving “a diversity action …

-- 18 of 31 --

19
alleging breach of contract and damage to [a party’s] business
reputation”). Even those justices who have endorsed a more
restrictive view of state sovereign immunity have agreed that it
applies at least to claims “rooted in state law.” Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 91 n.14 (Stevens, J., dissenting); Alden, 527 U.S. at
775 n.13 (Souter, J., dissenting) (arguing that the framers “had in mind
only state immunity on state-law claims, not federal questions”).
Hess explained that “[t]he Eleventh Amendment largely shields
States from suit in federal court without their consent,” invoking the
principle of state sovereign immunity without limitation to claims
under federal law. 513 U.S. at 39. Neither that case nor any other from
the Supreme Court supports the conclusion that the Port Authority—
despite its not sharing the sovereign immunity of the States—might
possess some other form of sovereign immunity that shields it from
state law claims in federal court.
To be sure, while the type of claim does not alter the applicable
immunity doctrine, the choice of forum might. In addition to the state
sovereign immunity that the U.S. Constitution preserves, “States may
also have state-law immunity from suit in a state forum.” PennEast,
594 U.S. at 509 n.1 (Gorsuch, J., dissenting). Such immunity “derives
from a State’s ‘sole control’ of ‘its own courts,’” which leaves the State
“free to develop its own justiciability rules governing state tribunals.”
Id. (quoting Alden, 527 U.S. at 709). But state laws do not deprive the
federal courts of subject matter jurisdiction over a lawsuit. When the
parties appear “in federal court, state-law immunity is not
implicated.” Id. A federal court evaluating a state law claim will
respect state law regarding when a claim accrues or the applicable
statute of limitations. Cf. Guaranty Tr. Co. of N.Y. v. York, 326 U.S. 99,
110 (1945) (“[E]ven before Erie R. Co. v. Tompkins, federal courts relied
on statutes of limitations of the States in which they sat.”) (emphasis

-- 19 of 31 --

20
added). But those considerations concern the merits—whether the
plaintiff has stated a claim or is entitled to relief—rather than the
jurisdiction of the court.5
C
The question of whether an applicable rule is jurisdictional “is
not merely semantic but one of considerable practical importance for
judges and litigants” because “[b]randing a rule as going to a court’s
subject-matter jurisdiction alters the normal operation of our
adversarial system.” Henderson ex rel. Henderson v. Shinseki, 562 U.S.
428, 434 (2011). This case illustrates the problem.
In this case, the district court interpreted the bylaws of the Port
Authority to create “jurisdictional” requirements. Baroni, 2023 WL
4029343, at *4. The district court concluded that Baroni’s claim had
not accrued—and therefore that the Port Authority had not waived
its sovereign immunity—because Baroni failed to plead in his
complaint that he had timely delivered the judgment of acquittal, a
condition precedent to accrual. In reaching that conclusion, the
district court rejected Baroni’s argument that he substantially
complied with the delivery requirement of the bylaws because “the
5 We do not cast doubt on the judgment in Caceres—or in those cases
decided by summary order applying that precedent—because the
outcomes in those cases appear consistent with proper applications of state
law: requiring compliance with the applicable statute of limitations, Caceres,
631 F.3d at 624 (citing N.J. Stat. § 32:1-163; N.Y. Unconsol. Law § 7107), and
with the applicable notice-of-claim requirement, Weisshaus v. Port Auth. of
N.Y. & N.J., 497 F. App’x 102, 105 (2d Cir. 2012) (citing N.Y. Unconsol. Law
§ 7107; N.J. Stat. § 32:1-163); Aegis Ins. Servs., Inc. v. Port Auth. of N.Y. & N.J.,
435 F. App’x 18, 25 (2d Cir. 2011) (citing N.Y. Unconsol. Law § 7107). But it
was incorrect to hold that these provisions of state law limited the subject
matter jurisdiction of the federal courts.

-- 20 of 31 --

21
doctrine of substantial compliance is inapplicable to jurisdictional
prerequisites for a waiver of sovereign immunity.” Id. at *6 n.4.
In this way, the district court transformed a contractual dispute
into a jurisdictional question to which normal contract doctrines
could not apply. That was erroneous. Because the Port Authority has
no sovereign immunity from suit in federal court, its bylaws do not
have the power to deprive a federal court of subject matter
jurisdiction. There is no reason why Baroni’s contractual dispute with
the Port Authority cannot be decided according to ordinary contract
principles.
The district court dismissed Baroni’s complaint because his
“failure to plead compliance with the condition precedent to the Port
Authority’s contractual obligation to provide indemnification
deprives the [c]ourt of jurisdiction of this dispute.” Baroni, 2022 WL
4385585, at *5. But Baroni’s possible non-compliance with a
contractual precondition could not have affected the jurisdiction of
the district court. Such non-compliance might excuse the Port
Authority from contractual performance. But that is a merits question
to be decided under state law. “[U]nder New York law, the failure of
a plaintiff to comply with conditions precedent is an affirmative
defense” that the Port Authority may raise. Endovasc, 169 F. App’x at
657. Baroni, however, did not need to plead compliance in his
complaint and did not bear the burden of proving compliance. See
Taylor v. Sturgell, 553 U.S. 880, 907 (2008) (“Ordinarily, it is incumbent
on the defendant to plead and prove [an affirmative] defense.”); Clark
v. Hanley, 89 F.4th 78, 93-94 (2d Cir. 2023) (“The pleading
requirements of the Federal Rules of Civil Procedure ‘do not compel
a litigant to anticipate potential affirmative defenses … and to
affirmatively plead facts in avoidance of such defenses.’”) (quoting

-- 21 of 31 --

22
Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007)). Instead, the Port
Authority would be required to demonstrate a lack of compliance.
The district court reallocated these burdens based on its
erroneous conclusion that these contract questions implicated the
subject matter jurisdiction of the federal courts. We therefore vacate
the judgment and remand for further proceedings not tainted by that
conclusion.
D
The Port Authority argues that Hess does not require the
conclusion that it lacks state sovereign immunity from suit. See
Appellee’s Br. 38-39. It points to our opinion in Beaulieu v. Vermont, in
which we said that “there are two types of ‘sovereign immunity’” that
include “a particular species of sovereign immunity—Eleventh
Amendment immunity from suit in federal court,” on the one hand,
and “the states’ broader general sovereign immunity against all
suits,” on the other. 807 F.3d 478, 483 (2d Cir. 2015).
In Beaulieu, our court affirmed the judgment of dismissal based
on “[a] state’s sovereign immunity from private suit,” which we
described as “a common law doctrine historically recognized by both
state and federal courts, though most clearly explicated in federal
judicial precedents.” Id. at 486 (citing Alden, 527 U.S. at 715-16; Hans,
134 U.S. at 16). The state sovereign immunity explicated in those
precedents is the same sovereign immunity reflected in the Eleventh
Amendment. 6 For that reason, the statement in Beaulieu that the
6 See Alden, 527 U.S. at 729 (“[W]e have understood the Eleventh
Amendment to stand not so much for what it says, but for the
presupposition which it confirms. That presupposition, first observed over
a century ago in Hans v. Louisiana, has two parts: first, that each State is a
sovereign entity in our federal system; and second, that it is inherent in the

-- 22 of 31 --

23
Eleventh Amendment is a “particular species of sovereign immunity”
is consistent with the Supreme Court’s treatment of the Eleventh
Amendment as describing a particular application of the broader
principle of state sovereign immunity that the Constitution preserves.
And Beaulieu expressly relied on the precedents in which the Supreme
Court explained the relationship of the Eleventh Amendment to state
sovereign immunity in that way. We therefore see no conflict between
applicable precedent and the notion that the terms of the Eleventh
Amendment describe a “species” of the “broader” state sovereign
immunity under the Constitution.
Caceres is not reconcilable with that precedent because it drew
a different distinction—between sovereign immunity from federal-
law claims, on the one hand, and sovereign immunity from state-law
claims, on the other—that does not treat “Eleventh Amendment
immunity” as a particular application of the broader principle.
Justice Gorsuch has suggested, in a dissenting opinion in
PennEast, that “States have two distinct federal-law immunities from
suit.” 594 U.S. at 509 (Gorsuch, J., dissenting). The first is the
“structural immunity” that the Supreme Court has identified as the
presupposition of the Constitution that a sovereign State cannot be
sued by an individual without its consent. The second, which
according to Justice Gorsuch “is properly termed ‘Eleventh
Amendment immunity,’” derives “from the text of the Eleventh
Amendment.” Id. at 510. While that text “point[s] us back to the States’
structural immunity, it also provides an ironclad rule for a particular
category of diversity suits” in which a State is sued by a citizen of
nature of sovereignty not to be amenable to the suit of an individual
without its consent.”) (internal quotation marks, alterations, and citations
omitted) (quoting Seminole Tribe, 517 U.S. at 54).

-- 23 of 31 --

24
another State. Id. Because the text provides that the federal judicial
power shall not be construed to extend to such suits—and it does not
authorize such an extension of the judicial power even when the State
consents—Justice Gorsuch would conclude that the Eleventh
Amendment categorically “eliminates federal judicial power” over
that “set of cases.” Id. In other words, the general structural immunity
resembles a doctrine of personal jurisdiction because it can be waived,
but Eleventh Amendment immunity resembles a limit on subject
matter jurisdiction because it cannot be.7
There may be an academic argument for this two-immunities
theory. 8 But it remains inconsistent with the applicable precedent
describing a single doctrine of state sovereign immunity.9 And—most
7 But see Oneida Indian Nation v. Phillips, 981 F.3d 157, 179 (2d Cir. 2020)
(Menashi, J., concurring in part and concurring in the judgment) (“Nothing
inherent in the nature of subject-matter jurisdiction precludes it from
depending on a defendant’s choice.”).
8 See William Baude & Stephen E. Sachs, The Misunderstood Eleventh
Amendment, 169 U. Pa. L. Rev. 609, 612 (2021). But see Steven Menashi,
Article III as a Constitutional Compromise: Modern Textualism and State
Sovereign Immunity, 84 Notre Dame L. Rev. 1135, 1184 (2009) (suggesting
that “the Eleventh Amendment as adopted did not purport to change the
Constitution, but only to provide a rule of construction for further
interpretation of Article III”).
9 See PennEast, 594 U.S. at 506 (majority opinion) (“[T]he other dissent offers
a different theory—that even if the States consented in the plan of the
Convention to the proceedings below, the Eleventh Amendment
nonetheless divests federal courts of subject-matter jurisdiction over a suit
filed against a State by a diverse plaintiff. But under our precedents that no
party asks us to reconsider here, we have understood the Eleventh
Amendment to confer a personal privilege which a State may waive at
pleasure. When a State waives its immunity and consents to suit in federal
court, the Eleventh Amendment does not bar the action.”) (internal
quotation marks, alteration, and citations omitted).

-- 24 of 31 --

25
important here—it provides no justification for adhering to the very
different two-immunities theory adopted in Caceres, which described
(1) sovereign immunity from federal claims in federal court based on
the Eleventh Amendment, and (2) sovereign immunity from state
claims in federal court based on state law. No authority supports the
proposition that state law can create a sovereign immunity that
deprives the federal courts of subject matter jurisdiction. As Justice
Gorsuch explained, a State might “have state-law immunity from suit
in a state forum” because the State exercises “‘sole control’ of ‘its own
courts’” and “is free to develop its own justiciability rules governing
state tribunals.” PennEast, 594 U.S. at 509 n.1 (Gorsuch, J., dissenting)
(quoting Alden, 527 U.S. at 740, 749). But “in federal court, state-law
immunity is not implicated.” Id.
II
The district court denied Baroni’s motion for leave to amend
his complaint on the ground of futility. A district court “should freely
give leave” to amend a complaint “when justice so requires.” Fed. R.
Civ. P. 15(a)(2). This rule reflects a “permissive standard,” Loreley Fin.
(Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC, 797 F.3d 160, 190 (2d Cir.
2015), even when there are “heightened standards applicable to
postjudgment motions for leave to amend,” In re Buckskin Realty, Inc.,
845 F. App’x 68, 71 (2d Cir. 2021); see Foman v. Davis, 371 U.S. 178, 179-
82 (1962) (explaining that, even when the plaintiff “filed motions to
vacate the judgment and to amend the complaint,” the “leave sought
should, as the rules require, be ‘freely given’”). Still, a district court
may deny leave to amend based on futility. “An amendment to a
pleading is futile if the proposed claim could not withstand a motion
to dismiss.” Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002).

-- 25 of 31 --

26
Baroni sought to amend his complaint to allege facts showing
that he complied with the condition precedent. The district court
denied leave to amend on the ground that his proposed amendment
was “futile” and “could not withstand a motion to dismiss.” Baroni,
2023 WL 4029343, at *7 (quoting Lucente, 310 F.3d at 258). The district
court based that conclusion on the erroneous premise that compliance
with the condition precedent implicated the subject matter
jurisdiction of the federal courts. Because it did not, Baroni did not
need to allege such compliance—which implicates an affirmative
defense—in order to state a claim. Accordingly, the district court
erred in concluding that the amended complaint could not withstand
a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1).
The allegations are nevertheless relevant to the merits of
Baroni’s claims, so Baroni may want to include the allegations in an
amended complaint. We vacate the judgment insofar as the district
court denied the motion for leave to amend. We do so because the
complaint—even without the amendment—was sufficient to
withstand a motion to dismiss for lack of subject matter jurisdiction.
We remand to allow the district court to consider whether to accept
the amended complaint for further proceedings on the merits.
CONCLUSION
We vacate the judgment of the district court and remand for
further proceedings consistent with this opinion.

-- 26 of 31 --

No. 23-916
Baroni v. Port Auth. of N.Y. & N.J.
C ARNEY , Circuit Judge, concurring in the judgment:
I concur in the judgment reached by the Majority, and I agree with its two key
rulings in support of that judgment: first, that the Supreme Court held in Hess v. Port
Authority Trans-Hudson Corporation that the Port Authority of New York and New Jersey
is not shielded in federal court by the sovereign immunity of either of its founding
states, see 513 U.S. 30, 39, 52–53 (1994); and second, that our decision to the contrary in
Caceres v. Port Authority of New York & New Jersey, 631 F.3d 620, 625 (2d Cir. 2011), was
mistaken and must be abandoned, for, as the Majority explains, state law cannot give
rise to a sovereign immunity that defeats federal court jurisdiction, see Maj. Op. at 18-20.
In my view, these holdings suffice to decide the dispute before us.
The Majority goes further, however, pronouncing on its view of the correct
understanding of the doctrine of state sovereign immunity and its relationship to the
Eleventh Amendment. Respectfully, I decline to join the Majority’s opinion insofar as it
takes a position on these matters. The statements are dicta offered on a fraught question
and better left for a case that requires they be answered. Indeed, with these statements,
the Majority appears to adopt as definitive an interpretation of the Supreme Court
precedents on state sovereign immunity and the Eleventh Amendment that may not be
quite as certain as portrayed. The account the Majority gives is plausible and well-
informed, no doubt, but as one respected authority warns as to its own summary of
current state sovereign immunity doctrine,
It is important to understand that the discussion above reflects the Court’s
current views on sovereign immunity. These are not immutable. They have
not always been shared by a majority of the Court and they may not be
shared by a majority in the future. Indeed, this is an area characterized in
recent decades by five-to-four decisions and periodic overruling of what
had been thought to be strong precedent.
Wright & Miller, 13 Fed. Prac. & Proc § 3524 (3d ed. 2025).

-- 27 of 31 --

2
As Wright & Miller observe, the Court’s various decisions addressing the
Eleventh Amendment and its interplay with broader concepts of state sovereign
immunity have often commanded only a narrow majority. See, e.g., PennEast Pipeline Co.
v. New Jersey, 594 U.S. 482, 509–522 (5-4); Franchise Tax Bd. of Cal. v. Hyatt (“Hyatt”), 587
U.S. 230, 249–261 (2019) (5-4); Alden v. Maine, 527 U.S. 706, 760–814 (1999) (5-4); Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 76–185 (1996) (5-4). And these decisions have been
subject to varied interpretations by the lower courts.1 Scholars, too, have both praised
and criticized the Court’s various rulings; the related debates are of long standing.2 In
1 See Springboards to Educ., Inc. v. McAllen Indep. Sch. Dist., 62 F.4th 174, 190 (5th Cir. 2023)
(Oldham, J. concurring) (“Common-law sovereign immunity is different from Eleventh
Amendment sovereign immunity.”); WCI, Inc. v. Ohio Dep’t of Pub. Safety, 18 F.4th 509, 513–14
(6th Cir. 2021) (describing Eleventh Amendment immunity and sovereign immunity as
“conceptually distinct”); see also Galette v. NJ Transit, 332 A.3d 776, 786 (Pa. 2025) (“State
sovereign immunity is a complex doctrine that is not easily cabined into a singular concept.
Many courts have suggested that the States enjoy two forms of sovereign immunity: the
immunity expressed in Eleventh Amendment jurisprudence and a broader immunity that
originated in the common law but transformed as applied to the States after the ratification of
the Constitution, as explained by the High Court in Hyatt [].”), cert. granted in part sub nom.
Galette v. NJ Transit Corp., No. 24-1021, 2025 WL 1829160 (U.S. July 3, 2025); Colt v. N.J. Transit
Corp., No. 72, 2024 WL 4874365, at *2 (N.Y. Nov. 25, 2024) (4-3 majority describing Hyatt as
holding that “all state sovereign immunity derives from the structure of the Constitution, which
confirmed and retained pre-ratification notions of state sovereign immunity except as altered by
the plan of convention or certain constitutional amendments” (internal quotation marks
omitted)), cert. granted in part sub nom. NJ Transit Corp. v. Colt, No. 24-1113, 2025 WL 1829162
(U.S. July 3, 2025); id. at *22–24, n.13, & n.14 (Wilson, C.J., concurring) (criticizing N.Y. Court of
Appeals majority’s view that the Supreme Court’s decision in Hyatt eliminated distinction
between Eleventh Amendment and independently existing interstate sovereign immunity and
reading Hyatt instead to say that “interstate sovereign immunity exists independently of the
Eleventh Amendment and is not defined or cabined by the jurisprudence thereunder”).
2 See, e.g., Anthony J. Bellia Jr. & Bradford R. Clark, State Sovereign Immunity and the New
Purposivism, 65 William & Mary L. Rev. 485, 488–89 (2024) (“The Constitution’s precise effect on
state sovereign immunity has been contested since the Founding…. The Court’s new purposive
approach to sovereign immunity is incompatible with the original public meaning of the
Constitution.”); William Baude, Sovereign Immunity and the Constitutional Text, 103 U. Va. L. Rev.
1, 3 (March 2017) (“[T]he new [‘backdrop’] understanding explains how sovereign immunity

-- 28 of 31 --

3
such a setting, unnecessary comment on only modestly briefed questions should be
avoided.
Instead, the Majority, dismissing as “academic” other interpretations reflected in
Supreme Court decisions and advanced by scholars over the years, offers a sweeping
pronouncement that the Supreme Court “has consistently identified state sovereign
immunity as a unitary concept that derives not from the Eleventh Amendment but from
the constitutional structure,” Maj. Op. at 17–18, 24, seeming to embrace without
qualification the understanding that the Eleventh Amendment effected no change at all
to a freestanding, structural immunity enjoyed by the States before the Constitution was
adopted, see id. This leads the Majority to a firm rejection of the view expressed, for
example, by Justice Gorsuch, in dissent in PennEast, that “States have two distinct
federal-law immunities from suit.” 594 U.S. at 509; see Maj. Op. at 23.
But on my read, the Supreme Court has no more roundly rejected a theory like
that of Justice Gorsuch, who identifies in the Eleventh Amendment some independent
significance, than it has fully accepted such a theory. The Court has recognized
constitutional structure as a source of a state’s sovereign immunity, it appears; it is less
fits into the constitutional text and also makes sense of the Court’s sovereign immunity cases—
at least for now.” (footnote omitted)); David A. Strauss, The Supreme Court 2014 Term—Foreword:
Does the Constitution Mean What it Says?, 129 Harv. L. Rev. 2, 51 (2015) (“Not surprisingly, there
has been a great deal of controversy about both the historical claims about sovereign immunity
and the present-day significance of those claims, even assuming they are correct.” (footnote
omitted)); John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional
Texts, 113 Yale L.J. 1663, 1670–71 (2004) (noting the “continued application of strong
purposivism to clarify and extend state sovereign immunity creates an apparent methodological
incongruity that requires explanation” and arguing that the “Court should perhaps not be so
quick to dismiss the possibility that the Eleventh Amendment carries a negative implication”);
Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98
Yale L.J. 1, 4 (1988) (“The Eleventh Amendment, and the doctrine of state constitutional
immunity from suit in federal courts which it represents, has long been perceived as a doctrinal
abyss, replete with inconsistencies borne of pragmatic adjustments to the principle for which it
supposedly stands.”).

-- 29 of 31 --

4
apparent that its decisions have established for all time that structure is the sole source of
that immunity or that the Court has permanently foreclosed all other expressions of that
immunity. Rather, even a superficial review of the caselaw in this field reveals other,
quite different—and non-“unitary”—understandings of the relationship between the
Eleventh Amendment and state sovereign immunity. See, e.g., Va. Off. for Prot. & Advoc.
v. Stewart, 563 U.S. 247, 260 (2011) (in the context of state sovereign immunity claim,
observing that limits on the federal government’s power can stem from two distinct
sources: either a “textual provision or [a] structural premise of the Constitution”); id. at
253 (“States have retained their traditional immunity from suit” conferred by
constitutional structure, “except as altered by the plan of the Convention or certain
constitutional amendments.”); Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743,
753 (2002) (stating that “the Eleventh Amendment does not define the scope of the
States’ sovereign immunity[;] it is . . . one particular exemplification of that immunity”).
The variability in these decisions reinforces my view that our commentary in this case
should be restricted to what is necessary to explain our decision.
For similar reasons, I also part with the Majority insofar as it concludes that our
decision in Beaulieu v. Vermont, 807 F.3d 478 (2d Cir. 2015), reflects an endorsement of
the unitary, structural concept of sovereign immunity that the Majority promotes. It
describes Beaulieu as having identified the “state sovereign immunity explicated” in
Alden, 527 U.S. at 715–16, and Hans v. Louisiana, 134 U.S. 1, 16 (1890), as “the same
sovereign immunity reflected in the Eleventh Amendment.” Maj. Op. at 22. But in
Beaulieu, we commented that the “concept of state sovereign immunity encompasses
different species of immunity,” of which the Eleventh Amendment “identifies a single
species . . . .” 807 F.3d at 487. “Accordingly,” we said, “there are two types of ‘sovereign
immunity’ at issue here.” Id. These comments strike me as potentially consistent with
both a unitary understanding of sovereign immunity and with one that finds some

-- 30 of 31 --

5
separate force in the Eleventh Amendment. See Murphy v. Smith, 844 F.3d 653, 656 (7th
Cir. 2016) (characterizing Beaulieu as “distinguishing between Eleventh Amendment
immunity and broader state sovereign immunity under Vermont law”), aff’d, 583 U.S.
220 (2018); Church v. Missouri, 913 F.3d 736, 742–43 (8th Cir. 2019) (same).
But again, we have no need to eliminate any uncertainty about Beaulieu now. Its
description of sovereign immunity stands well apart from the mistaken understanding
relied on in Caceres and advanced here by the Port Authority, and it need not be further
scrutinized today. The Supreme Court has held the Port Authority in specific not to be
an arm of either of its founding States and not to be entitled by the doctrine of state
sovereign immunity to dismissal for want of jurisdiction in federal court. See Hess, 513
U.S. at 39. That alone, and sufficiently, requires vacatur and remand.
CONCLUSION
For the foregoing reasons, I respectfully decline to join the Majority’s opinion. I
concur, however, in the court’s judgment VACATING the judgment of the District
Court and REMANDING the matter for further proceedings consistent with our
decision.

-- 31 of 31 --