Delaware River Port Authority v. Fraternal

PRECEDENTIAL
Filed May 14, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-1866
DELAWARE RIVER PORT AUTHORITY;
PORT AUTHORITY TRANSIT CORPORATION,
a subsidiary of the Delaware River Port Authority
v.
FRATERNAL ORDER OF POLICE, PENN-JERSEY LODGE
30, an unincorporated labor organization; JAMES R.
STEWART, in his capacity as President of FOP Lodge 30;
NEW JERSEY POLICEMEN’S BENEVOLENT ASSOCIATION
INTERCOUNTIES LOCAL #30, an unincorporated labor
organization; ANTHONY CAPPELLO, JR., in his capacity
as President of New Jersey Policeman’s Benevolent
Association Intercounties Local #30
Fraternal Order of Police, Penn-Jersey
Lodge #30; James R. Stewart,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 99-cv-05367
(Honorable Eduardo C. Robreno)
Argued January 17, 2002
Before: SCIRICA and ROSENN, Circuit Judges,
and KANE, District Judge*
_________________________________________________________________
* Honorable Yvette Kane, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
(Filed May 14, 2002)
CHARLES T. JOYCE, ESQUIRE
(ARGUED)
BENJAMIN EISNER, ESQUIRE
Spear, Wilderman, Borish, Endy,
Spear & Runckel
230 South Broad Street, Suite 1400
Philadelphia, Pennsylvania 19102
GARY M. LIGHTMAN, ESQUIRE
Lightman & Welby
2705 North Front Street
P.O. Box 911
Harrisburg, Pennsylvania 17108

-- 1 of 15 --

Attorneys for Appellants,
Fraternal Order of Police,
Penn-Jersey Lodge 30 and
James R. Stewart
PATRICK MATUSKY, ESQUIRE
(ARGUED)
JEROME J. SHESTACK, ESQUIRE
LAURA E. KRABILL, ESQUIRE
Wolf, Block, Schorr & Solis-Cohen
1650 Arch Street, 22nd Floor
Philadelphia, Pennsylvania 19103
WILLIAM H. ROBERTS, ESQUIRE
PETER A. GOLD, ESQUIRE
SCOTT A. MAYER, ESQUIRE
Blank, Rome, Comisky & McCauley
One Logan Square
Philadelphia, Pennsylvania 19103
Attorneys for Appellees,
Delaware River Port Authority and
Port Authority Transit Corporation
2
DONALD F. BURKE, ESQUIRE
Port Authority of New York and
New Jersey
One Riverfront Plaza, Suite 327
Newark, New Jersey 07102
Attorney for Amici Curiae-Appellee,
The Port Authority of New York
and New Jersey
DAVID B. GREENFIELD, ESQUIRE
Waterfront Commission of
New York Harbor
39 Broadway
New York, New York 10006
Attorney for Amici Curiae-Appellee,
The Waterfront Commission of
New York Harbor
MICHAEL HOUGHTON, ESQUIRE
Morris, Nichols, Arsht & Tunnell
1201 North Market Street
P.O. Box 1347
Wilmington, Delaware 19899
RICHARD S. MROZ, ESQUIRE
Stradley, Ronon, Stevens & Young
Woodland Falls Corporate Park
210 Lake Drive East, Suite 102
Cherry Hill, New Jersey 08002

-- 2 of 15 --

Attorneys for Amici Curiae-
Appellee, The Delaware River and
Bay Authority
OPINION OF THE COURT
SCIRICA, Circuit Judge:
At issue is whether we should give preclusive effect to a
state court judgment on a collective bargaining matter. In
a declaratory judgment action, the District Court held that
despite a prior New Jersey judgment, the Delaware River
3
Port Authority had no duty under its congressionally
approved bi-state compact to recognize certain collective
bargaining rights of supervisory employees. We will reverse.
I.
In 1999 the Fraternal Order of Police, Penn-Jersey Lodge
30 ("Lodge 30") and the Policemen’s Benevolent Association
Intercounties Local 30 ("Local 30") sought recognition and
the right to collectively bargain for supervisory law
enforcement personnel from the Delaware River Port
Authority (DRPA) and the Port Authority Transit
Corporation (PATCO), a subsidiary of the DRPA. A majority
of "superior officers" -- corporals and sergeants with
supervisory capacity -- employed by the DRPA and the
PATCO had authorized the unions to represent them as
their exclusive bargaining agents.1
The DRPA sought a declaratory judgment in the United
States District Court for the Eastern District of
Pennsylvania that (1) the authority to fix and determine
terms and conditions of employment, including
compensation of the superior officers, rests solely with the
DRPA; and (2) the DRPA was not required to recognize or
bargain collectively with the unions. The unions contended
a prior New Jersey judgment merited preclusive effect.
Fraternal Order of Police, Penn-Jersey Lodge 30 v. DRPA,
733 A.2d 545, 547 (N.J. App. Div.), cert. denied , 745 A.2d
1213 (N.J. 1999), cert. denied, 530 U.S. 1275 (2000)
("Lodge 30").
There is a prior history of labor-management relations
between the parties. In 1975, the DRPA voluntarily
recognized Lodge 30 as the collective bargaining agent for
_________________________________________________________________
1. Because the PATCO’s interests in this litigation coincide with the
DRPA’s interests, we will collectively refer to the two as "the DRPA."
The DRPA has two separate police forces. Lodge 30 seeks to represent
the sergeants and corporals employed by the DRPA itself. Local 30 seeks
to represent the sergeants, corporals, and detectives employed by the
PATCO’s Police Department. The reasons why the different unions seek
to represent the different officers are irrelevant to this appeal, so we will

-- 3 of 15 --

not distinguish Lodge 30’s arguments from Local 30’s arguments.
4
DRPA patrol officers and until 1996, negotiated a series of
collective bargaining agreements.2 In 1996, labor
negotiations stalled between the DRPA and Lodge 30. After
the DRPA altered the employment terms and conditions for
patrol officers, Lodge 30 brought suit in New Jersey state
court to "require the continuation of good faith bargaining"
under the prior arrangement. Id. The New Jersey Superior
Court agreed, finding New Jersey and Pennsylvania had
"parallel or complementary legislation of a different nature
. . . which . . . clearly gives public employees a right to
freely organize and designate representatives and also to
negotiate in good faith." Id. (quotation and citation omitted).
Holding the New Jersey and Pennsylvania statutes
demonstrated a shared public policy favoring labor
arbitration, the Superior Court granted Lodge 30’s motion
for summary judgment. Id. at 547-48.
The New Jersey Superior Court, Appellate Division,
affirmed, holding:
Although neither of the creator states of a bi-state
agency may unilaterally impose its legislative will on
the bi-state agency . . . the agency may be subject to
complementary or parallel state legislation. . . . This
parallel or complementary legislation need not be
nearly identical and specifically apply to the agency.
Rather, the public policy of both states, articulated in
parallel statutes that are substantially similar but do
not specifically include defendant, is applicable to a bi-
state agency, although the statutory scheme of each
state is not.
Id. at 551 (quotations and citations omitted). The New
Jersey Supreme Court denied a petition for certification.
745 A.2d 1213 (1999). The United States Supreme Court
denied certiorari. 530 U.S. 1275 (2000).
The unions cite the preclusive effect of Lodge 30.
Additionally, they claim the New Jersey and Pennsylvania
statutes providing collective bargaining rights to patrol
_________________________________________________________________
2. These officers were considered "rank and file" members of the
departments. The officers seeking recognition and bargaining rights in
the present suit are their "superiors."
5
officers also apply to the DRPA. See N.J. S TAT. ANN.
S 34:13A-1 et seq. (West 1990 & Supp. 1993), P A. STAT. ANN.
tit. 43, S 217.1 et seq. (1961 & Supp. 1993). These
"complementary" statutory schemes, the unions contend,
demonstrate each legislature has "concurred in" the
legislation of the other, effectively modifying the DRPA

-- 4 of 15 --

Compact.
The District Court granted the DRPA’s motion for
summary judgment, concluding that under federal
constitutional and statutory law, the DRPA Compact can
only be amended by legislation of both New Jersey and
Pennsylvania that (1) "expressly applies" to the DRPA; and
(2) is "substantially similar" in substance, imposing specific
additional duties on the DRPA. DRPA v. Fraternal Order of
Police, 135 F. Supp. 2d 596, 606-09 (E.D. Pa. 2001).
Because neither legislature expressly applied their state’s
labor laws to the DRPA, the District Court ruled the DRPA
was not obligated to comply with state laws regarding union
recognition and collective bargaining for law enforcement
officers. Id. The District Court also rejected the unions’
issue preclusion arguments, holding Lodge 30 only
addressed the DRPA’s obligation to bargain with a
voluntarily recognized union. Id. at 609-11. 3 This appeal
followed.4
II.
In 1931, the State of New Jersey and the Commonwealth
of Pennsylvania legislatively created the Delaware River Port
Authority to develop the ports of Philadelphia and Camden
and to operate bridges and provide mass transportation
across the Delaware River. N.J. STAT. A NN. S 32:3-2 et seq.;
_________________________________________________________________
3. The District Court cited cases interpreting New Jersey-New York
interstate agencies: the Waterfront Commission, e.g., Malverty v.
Waterfront Comm’n, 524 N.E.2d 421 (N.Y. 1988), and the Port Authority
of New York and New Jersey, e.g., Bailey v. Port Auth., 627 N.Y.S.2d 921
(App. Div. 1995). Those cases adopted an "express intent" standard,
requiring that both legislatures expressly state an intention to alter a bi-
state compact. DRPA, 135 F. Supp. 2d at 604-06.
4. The District Court had jurisdiction under 28 U.S.C. S 1331. We have
jurisdiction under 28 U.S.C. S 1291.
6
PA. STAT. ANN. tit. 36, S 3503 et seq. Under the Compact
Clause of the United States Constitution, "No State shall,
without the Consent of Congress . . . enter into any
Agreement or Compact with another State." U.S. C ONST. art.
I, S 10, cl. 3. The United States Congress formally approved
the DRPA Compact in 1932.
The DRPA is a "public corporate instrumentality of the
Commonwealth of Pennsylvania and the State of New
Jersey." N.J. STAT. ANN. S 32:3-2, PA. STAT.ANN. tit. 36,
S 3503. But it is not an "arm" of either state. Nor is it
vested with attributes of state sovereignty. Peters v. DRPA,
16 F.3d 1346, 1351-52 (3d Cir. 1994). The DRPA’s powers
and duties are framed entirely by the Compact. It is
governed by a sixteen-member Board of Commissioners. 5 A
majority of each state’s delegates to the Board must
approve any DRPA action. Id. The Compact allows either

-- 5 of 15 --

state’s legislature to grant the DRPA additional powers or
impose on it additional duties by passing legislation that is
"concurred in by the legislation of the other[state]." N.J.
STAT. ANN. S 32:3-5,PA. STAT. ANN. tit. 36, S 3503.
Article IV(e) of the Compact provides the DRPA
Commissioners the right to "appoint, hire or employ . . .
agents and employes, as it may require for the performance
of its duties, by contract or otherwise, and fix and
determine their qualifications, duties and compensation."
N.J. STAT. ANN. S 32:3-5, PA. STAT. ANN. tit. 36, S 3503. Under
Article IV(e), the DRPA maintains a Bureau of Police to
protect the public and DRPA property. The Bureau consists
of patrol officers, sergeants, and corporals, who are
accorded "all of the powers . . . and all of the immunities
conferred by law on police officers or municipal police
officers in . . . the State of New Jersey and the
Commonwealth of Pennsylvania." N.J. STAT. ANN. S 32:4-6,
_________________________________________________________________
5. Eight of the Commissioners are appointed by the Governor of New
Jersey for periods of five years. The Governor of Pennsylvania appoints
six Commissioners for five-year terms, with the elected Auditor General
and the elected State Treasurer of Pennsylvania filling the remaining two
positions for their four-year terms. All Commissioners, other than the
Pennsylvania Auditor General and State Treasurer, continue to hold
office after the expiration of their terms and until their successors are
appointed and qualified.
7
PA. STAT. ANN. tit. 36, S 3504.1. The DRPA Compact itself
does not expressly grant DRPA employees collective
bargaining rights. Nor does the Compact impose a duty on
the DRPA’s management to bargain collectively with unions.
III.
First, we consider whether the District Court wrongfully
declined to give issue preclusive effect to Lodge 30, which
held that legislation need not "specifically" apply to the
DRPA Compact to modify the DRPA’s obligations to
collectively bargain with its police officers. We exercise
plenary review over this question of law.6
Under the doctrine of issue preclusion, a determination
_________________________________________________________________
6. The DRPA urges us to review for abuse of discretion. New Jersey
courts have sometimes applied the issue preclusion doctrine in a
discretionary way. See, e.g., New Jersey v. Gonzalez, 380 A.2d 1128,
1132 (N.J. 1977) ("a variety of factors may make[the use of issue
preclusion] in a particular case either unjust or counterproductive"). Our
circuit has not always been consistent. See, e.g., Witkowski v. Welsch,
173 F.3d 192, 198 n.7 (3d Cir. 1999) (collecting cases employing
different standards). But in Dici v. Pennsylvania, 91 F.3d 542 (3d Cir.
1996), we said, "On appeal, our review of the district court’s grant of
summary judgment in favor of the Appellees on the ground of issue
preclusion is plenary." Id. at 547. A majority of our sister circuits have

-- 6 of 15 --

also endorsed a de novo analysis. E.g., Chartier v. Marlin Mgmt., 202
F.3d 89, 93 (2d Cir. 2000); Keystone Shipping Co. v. New England Power
Co., 109 F.3d 46, 50 (1st Cir. 1997); United States v. Shenberg, 89 F.3d
1461, 1478 (11th Cir. 1996); Sandberg v. Va. Bankshares, Inc., 979 F.2d
332, 334 (4th Cir. 1992), vacated and remanded for dismissal, 1993 WL
524680 (4th Cir. 1993); United States v. Sandoz Pharm. Corp., 894 F.2d
825, 826 (6th Cir. 1990). The Courts of Appeals for the Fifth and Eighth
Circuits have endorsed an abuse of discretion standard, but they have
done so only when reviewing the refusal to apply"offensive collateral
estoppel," a "less favored" type of issue preclusion than the "defensive
collateral estoppel" involved here. Accord Parklane Hosiery Co. v. Shore,
439 U.S. 322, 326-30 (1979).
We exercise plenary review over the grant of summary judgment and
the legal interpretation of the Compact. Witkowski, 173 F.3d at 198.
Because this appeal does not address the potential overturning of a state
court judgment, no "Rooker-Feldman issues" arise. Cf. Homola v.
McNamara, 59 F.3d 647, 650 (7th Cir. 1995).
8
by a court of competent jurisdiction on an issue necessary
to support its judgment is conclusive in subsequent suits
based on a cause of action involving a party or one in
privity. E.g., Kremer v. Chem. Constr. Corp., 456 U.S. 461,
485 (1982) ("[T]he usual rule is that merits of a legal claim
once decided in a court of competent jurisdiction are not
subject to redetermination in another forum."); Allen v.
McCurry, 449 U.S. 90, 96 (1980) ("Congress has specifically
required all federal courts to give preclusive effect to state-
court judgments whenever the courts of the State from
which the judgments emerged would do so."); Montana v.
United States, 440 U.S. 147, 153 (1979) ("Under collateral
estoppel, once an issue is actually and necessarily
determined by a court of competent jurisdiction, that
determination is conclusive in subsequent suits based on a
different cause of action involving a party to the prior
litigation."). Stated broadly, issue preclusion prevents
relitigation of the same issues in a later case. 7
More than two hundred years ago, the first Congress
enacted the predecessor to 28 U.S.C. S 1738, the Full Faith
and Credit Act, which now provides:
The . . . judicial proceedings of any court of any .. .
State, Territory, or Possession [of the United States]
. . . shall have the same full faith and credit in every
court within the United States and its Territories and
Possessions as they have by law or usage in the courts
of such State, Territory or Possession from which they
are taken.
Section 1738 therefore requires state court decisions be
given the same preclusive effect in federal court they would
be given in the courts of the rendering state. The phrase
"every court within the United States" encompasses all
courts, regardless of jurisdiction. The statute directs federal
courts considering the preclusive effect of another
jurisdiction’s prior judgment to look not to federal

-- 7 of 15 --

_________________________________________________________________
7. We have observed that issue preclusion can avoid the costly litigation
of issues already determined. O’Shea v. Amoco Oil Co., 886 F.2d 584,
593 (3d Cir. 1989).
9
preclusion law or practice but to what the other jurisdiction
would decide regarding its preclusive effect.8
The threshold issue on appeal is whether the District
Court should have given preclusive effect to the narrow
issue of the DRPA’s collective bargaining obligations,
previously litigated in Lodge 30.9 A federal court looks to
the law of the adjudicating state to determine its preclusive
effect. Greenleaf v. Garlock, Inc., 174 F.3d 352, 357 (3d Cir.
1999). In New Jersey, when a judgment of a court of
competent jurisdiction determines a question in issue, the
judgment estops the parties and privies from relitigating the
same issue in a subsequent proceeding. City of Plainfield v.
Pub. Serv. Elec. & Gas Co., 412 A.2d 759, 765 (N.J. 1980).
Such a determination is conclusive on either the same or a
different claim. Id. at 766.
New Jersey courts apply a five-pronged test to determine
whether collateral estoppel should bar relitigation of an
issue: (1) the issue must be identical; (2) the issue must
have actually been litigated in a prior proceeding; (3) the
prior court must have issued a final judgment on the
merits; (4) the determination of the issue must have been
essential to the prior judgment; and (5) the party against
whom collateral estoppel is asserted must have been a
party or in privity with a party to the earlier proceeding. In
re Estate of Dawson, 641 A.2d 1026, 1034-35 (N.J. 1994).10
_________________________________________________________________
8. In Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518 (1986), the
Supreme Court considered a state court’s refusal to give preclusive effect
to a prior federal judgment, where the state court reached a judgment
contrary to that of the federal court. Even in this circumstance, where
the state court -- arguably wrongly -- did not find any preclusive effect,
the Supreme Court unanimously refused to allow the prior federal
winner to seek a federal court injunction against further proceedings. Id.
at 525. That the first federal judgment came in a federal question case
was of no consequence. The Court stated the remedy for a possible state
court error lay "by way of appeal through the state-court system and
certiorari from this Court." Id.
9. Accord Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373,
384 (1985); N.J.-Philadelphia Presbytery of the Bible Presbyterian Church
v. N.J. Bd. of Higher Educ., 654 F.2d 868, 876 (3d Cir. 1981).
10. Under federal common law the standards are almost identical. In
Board of Trustees of Trucking Employees of New Jersey Welfare Fund,
10

-- 8 of 15 --

As noted, the District Court rejected any preclusive effect
of Lodge 30:
The issue in this case, but not present in Lodge 30, is
whether, in the absence of voluntary recognition, DRPA
is obligated under the terms of the Compact to
recognize and bargain collectively with the Unions. . . .
Therefore, because the duty of the DRPA under the
Compact to recognize and bargain collectively with
police officers was not relevant to the cause of action or
the issues involved in Lodge 30 and was not considered
by the Appellate Division, Lodge 30 is not a bar to the
instant action.
135 F. Supp. 2d at 611.11
We disagree. Lodge 30 satisfies the requirements outlined
in Dawson and has preclusive effect here. In Lodge 30, the
"identical issue" -- whether an "express statement" is
necessary to modify the DRPA’s obligations to bargain with
its patrol officers -- was "litigated in the prior proceeding."
See 733 A.2d at 550 (referencing the DRPA’s contention
that only "the adoption by both Compact States of nearly
identical State legislation expressly intended to apply" to
the DRPA may alter the Compact); id. at 551:
The DRPA contends . . . that these voluntary acts[of
union recognition] do not provide any basis to impose
on it the impasse-resolution procedures applicable to
public employers in New Jersey to resolve the current
impasse between it and its police officers. . . .[T]he
_________________________________________________________________
Inc. v. Centra, 983 F.2d 495 (3d Cir. 1992), we held preclusion was
appropriate when an issue was distinctly put in issue, directly
determined adversely to the party against whom estoppel is asserted,
and where: "(1) the identical issue was decided in a prior adjudication;
(2) there was a final judgment on the merits; (3) the party against whom
the bar is asserted was a party or in privity with a party to the prior
adjudication; and (4) the party against whom the bar is asserted had a
full and fair opportunity to litigate the issue in question." Id. at 504.
11. In a footnote, the District Court added,"The DRPA is of course free
to voluntarily recognize and bargain collectively with its superior officers.
The issue presented by this case is not whether the DRPA has the power
to recognize and bargain collectively, but whether it is under any legal
duty to do so." Id. at 611 n.18.
11
agency may be subject to complementary or parallel
state legislation. This parallel or complementary
legislation need not be nearly identical and specifically
apply to the agency. Rather, the public policy of both
states, articulated in parallel statutes that are
substantially similar but do not specifically include
defendant, is applicable to a bi-state agency . . . .
(quotations and citations of New Jersey cases omitted).

-- 9 of 15 --

There was a "final judgment on the merits." The
"determination" that an express statement is unnecessary
to modify the DRPA Compact was "essential to the prior
judgment." And the party against whom issue preclusion is
asserted was "a party or in privity with a party to the prior
adjudication." As noted, the DRPA litigated both lawsuits.
Cf. United States v. Silliman, 167 F.2d 607, 616-18 (3d Cir.
1948).
Additional factors support our conclusion. The DRPA
could have removed Lodge 30, which presented federal
constitutional questions, but chose instead to litigate in
state court. Also, Lodge 30 was decided less than three
years ago and New Jersey courts have not called it into
question in the interim. Furthermore, the Lodge 30 decision
has not proven "inequitable." Nor do we review the
soundness of the Lodge 30 decision. The issues in that case
are not before us and have been rejected in the state
appellate proceedings where the parties elected to litigate.
Whether we would have reached the same result as the
New Jersey court is not at issue.
The effort to distinguish the facts and issues between this
litigation and Lodge 30 is unavailing. For the purposes of
issue preclusion, any distinction between this litigation and
Lodge 30 is legally insignificant.12 The plaintiffs in Lodge 30
_________________________________________________________________
12. The DRPA claims that even where a prior and a subsequent
proceeding turn on a common underlying issue, if the factual
circumstances of the cases differ, the issue may not be "identical" for
estoppel purposes. Dawson, 641 A.2d at 1035. But the "differences" in
Dawson were significant. There, the case hinged on whether particular
stock distributions were better labeled as dividends or splits. Id. Because
the corporation in the case with the alleged estoppel effect was different
from the one in Dawson, the court found no issue preclusion: "Inasmuch
as the corporations and their corresponding stock transactions are
different, the issues to be litigated in the accountings are different as
well." Id. Additionally, no "sufficient identity of parties" existed in
Dawson to bind the court to a prior result. Id.
12
sought to represent patrol officers, whose union the DRPA
had recognized for more than twenty years, while the
plaintiffs here seek to represent their "superior officers." It
is true that there was no voluntary recognition of a
bargaining unit for the superior officers. But the Lodge 30
judgment was not based on prior voluntary recognition. 733
A.2d at 551.13 The Lodge 30 court held the unions’ right to
negotiate was statutory, not contractual, so the"voluntary"
recognition issue was irrelevant to its judgment.
Under this set of facts, we must give effect to the Lodge
30 court’s determination that in the context of collective
bargaining for law enforcement officers, amending the
DRPA Compact does not require "express" statutory
amendment by its creator states. 733 A.2d at 551 (finding
the DRPA "may be subject to complementary or parallel

-- 10 of 15 --

state legislation . . . . [that] need not be nearly identical and
specifically apply to the agency," provided the"public policy
of both states, [as] articulated in parallel statutes that are
substantially similar" is complementary).14 If a New Jersey
state court had heard this case in the first instance, we
believe it would find Lodge 30 controlling. 15 Issue
_________________________________________________________________
13. The DRPA disputes that New Jersey courts always disavowed the
"express intent" requirement. In DRBA v. Int’l Org. of Masters, Mates &
Pilots, 211 A.2d 789 (N.J. 1965), the court held a union representing
Delaware River and Bay Authority (DRBA) employees was prevented from
striking by a New Jersey law, but refused to reach the opposite
conclusion that the DRBA was bound by New Jersey labor laws. Id. at
794; see also Bell v. Bell, 416 A.2d 829, 833 (N.J. 1980) (agreements
governing bi-state agencies must be agreed upon by both states
involved). The DRPA argues the "abrupt departure" in jurisprudence
occurred in recent New Jersey state court decisions allowing statutes not
expressly applying to bi-state agencies to bind the entity to a certain
public policy. But it is not our task to correct"departures" in New Jersey
jurisprudence.
14. The Constitution’s Full Faith and Credit Clause does not apply in
this context. The Clause only indicates that full faith and credit shall be
given in each state to the judicial proceedings of every other state. U.S.
CONST. art. IV, S 1.
15. In Switlik v. Hardwicke Co., Inc., 651 F.2d 852 (3d Cir. 1981), the
plaintiff filed a 42 U.S.C. S 1983 action claiming the Supreme Court’s
denial of certiorari of a state court conviction constituted state action
13
preclusion is proper when factual differences "are of no
legal significance whatever in resolving the issue presented
in both cases." United States v. Stauffer Chem. Co., 464
U.S. 165, 174 (1984).
That the litigation concerns federal law does not alter the
analysis in this case.16 Compacts, though approved by
Congress, are contracts between states. These contracts
rarely contain uniform terms. As Justice Frankfurter
observed:
Since a Compact comes into being through an Act of
Congress, its construction gives rise to a federal
question. But a federal question does not require a
federal answer by way of a blanket, nationwide
substantive doctrine where essentially local interests
are at stake. A Compact, is after all, a contract.
Ordinarily, in the interpretation of a contract, the
meaning the parties attribute to the words governs the
obligations assumed in the agreement. Similarly, since
these States had the freedom to waive or to refuse to
waive immunity granted by the Eleventh Amendment,
_________________________________________________________________
violating his constitutional rights. We found the"very issues presented
by this civil rights action were raised and litigated in at least the

-- 11 of 15 --

appellate courts of New Jersey and were presented to the United States
Supreme Court in the petition seeking a writ of certiorari." Id. at 857.
After "freely and forcefully" pressing their claims in the state system, we
noted, the plaintiffs "now seek to have the same issues heard again in
the federal system. . . . This is the precise situation in which the
doctrines of res judicata and collateral estoppel operate as a bar." Id. at
859. Although the issue before the federal and state courts in Switlik
were identical, its holding demonstrates the res judicata effect of certain
final judgments.
16. Accord Hickerson v. City of New York, 146 F.3d 99, 103-13 (2d Cir.
1998) (finding state court’s rejection of plaintiffs’ state constitutional
claims foreclosed plaintiffs from relitigating, in the form of a First
Amendment claim in federal court, the same issues resolved against
them in state court); see also Marrese, 470 U.S. at 385-86 (finding a
state court decision can even preclude federal litigation over certain
claims over which Congress vests federal courts with exclusive
jurisdiction). As the District Court correctly observed, issues relating to
the interpretation of a bi-state contract present federal questions. Cuyler
v. Adams, 449 U.S. 433, 440 (1981).
14
the language they employed in the Compact, not
modified by Congress, should be limited to the legal
significance that these States have placed upon such
language, not to avoid the obligations they undertook,
but to enforce the meaning of conventional language
used in their law.
Petty v. Tenn.-Mo. Bridge Comm’n, 359 U.S. 275, 285 (1959)
(Frankfurter, J., dissenting) (citations omitted); see also
Hess, 513 U.S. at 43-44.
State courts may answer federal questions.17 The unions
and the DRPA agreed to litigate this issue of federal law in
New Jersey courts. If those courts answered federal
questions erroneously, it remained for state appellate
courts, and ultimately for the United States Supreme
Court, to correct any mistakes. Error in a prior judgment is
not a sufficient ground for refusing to give it preclusive
effect. Cf. Salazar v. United States Air Force , 849 F.2d 1542,
1548 (5th Cir. 1988) (finding a prior state court decision
"wrong and unacceptable," but holding that under 28
U.S.C. S 1738, a later federal court was bound to enforce it
"[n]o matter how intrinsically erroneous the state district
court’s unappeased judgment"). New Jersey courts have
found that New Jersey and Pennsylvania, the parties to the
Compact, have not required an "express statement" to
modify the DRPA’s obligations to collectively bargain with
its patrol officers.18 Under this set of facts, that
_________________________________________________________________
17. Discussing one New Jersey Supreme Court case, the District Court
held, "Because the . . . Court was professedly interpreting federal law,
their pronouncements are only persuasive authority with respect to this
court. Of course, if New Jersey state law applied and the New Jersey
Supreme Court was construing New Jersey law, its holdings would be
binding on this court." 135 F. Supp. 2d at 606 n.9. We believe this

-- 12 of 15 --

statement erroneously stated the doctrine of issue preclusion, which can
prohibit relitigation in federal court of issues decided in state court.
18. The District Court’s public policy analysis of whether the "concurred
in" requirement was satisfied absent "express" statutory statements was
unnecessary. Cf. Montana, 440 U.S. 147, 153 (1979). The District Court
held the DRPA represented a "surrender" of sovereignty from New Jersey
and Pennsylvania that must be "strictly construed." 135 F. Supp. 2d at
603. Because neither New Jersey nor Pennsylvania expressly required
15
determination must be granted preclusive effect. 19
The United States Supreme Court has cautioned that a
"question or right distinctly adjudged in the original action
cannot be disputed in a subsequent action, even though
the determination was reached upon an erroneous view or
by an erroneous application of the law," where"a party . . .
freely and without reservation submits his federal claims
for decision by the state courts . . . and has them decided
there." Montana, 440 U.S. at 163 (quotation and citation
omitted); see also Fed. Dept. Stores, Inc. v. Moitie, 452 U.S.
394, 398 (1981) ("A judgment merely voidable because
based upon an erroneous view of the law is not open to
collateral attack."). Were we sitting on the New Jersey
courts, we might have interpreted the respective statutes
and the DRPA’s obligations to its patrol officers differently.
But we may not reconsider the New Jersey judgment.
_________________________________________________________________
the DRPA to bargain with its superior officers, the Court held nothing
demonstrated collective bargaining rights applied to the superior officers.
Id. Given Lodge 30, we need not reach this issue. But we do not believe
cases interpreting compacts between New Jersey and New York, on
which the District Court relied, are apposite. E.g., Dezaio v. Port Auth.,
205 F.3d 62, 65 (2d Cir.), cert. denied, 531 U.S. 818 (2000) (refusing to
apply New York’s or New Jersey’s antidiscrimination laws to the Port
Authority); Settecase v. Port Auth., 13 F. Supp. 2d 530 (S.D.N.Y. 1998);
Baron v. Port Auth., 968 F. Supp. 924 (S.D.N.Y. 1997); King v. Port Auth.,
909 F. Supp. 938 (D.N.J. 1995); C. T. Hellmuth & Assocs., Inc. v. Wash.
Metro. Area Transit Auth., 414 F. Supp. 408 (D. Md. 1976); Malverty, 524
N.E.2d at 421.
19. The District Court held International Union of Operating Engineers,
Local 68 v. Delaware River & Bay Authority, 688 A.2d 569 (N.J. 1997)
("Local 68"), and Bunk v. Port Authority, 676 A.2d 118 (N.J. 1996), were
"wrongly decided" and deserved no preclusive effect. The District Court
characterized Bunk’s treatment of the "law dealing with bistate agencies"
as "incomplete and thus inaccurate." 135 F. Supp. 2d at 607. Regarding
Local 68, the District Court found the New Jersey Supreme Court had
again "incorrectly conflated the two prongs of the Eastern Paralyzed-
Nardi-Malverty rule." Id. at 608. The District Court also found the
"authority of Local 68 . . . further undermined by a lengthy dissent,"
which argued the majority opinion was "flawed as a matter of statutory
construction, use of precedent, and public policy." Id.
16

-- 13 of 15 --

IV.
We turn now to a matter not considered by the District
Court.20 Because the District Court found no "express
statement" authorizing collective bargaining, it did not
consider whether New Jersey and Pennsylvania law
enforcement labor laws, providing police officers the right to
organize and collectively bargain, were "complementary and
parallel." As noted, the District Court refused to grant
preclusive effect to Lodge 30’s determination that an
"express statement" was not necessary to modify the
DRPA’s collective bargaining obligations for law
enforcement officers. For the same reasons, the District
Court should have given preclusive effect to Lodge 30’s
holding New Jersey and Pennsylvania law enforcement
labor laws apply to the DRPA.
Lodge 30 held that New Jersey and Pennsylvania have
enacted parallel legislation that gave law enforcement
employees the right to freely organize and designate
representatives for good-faith negotiations. 733 A.2d at
548-49. The court elaborated:
Our review of each state’s enactments governing police
and fire labor relations, the New Jersey Police and Fire
Public Interest Arbitration Reform Act and the
Pennsylvania Collective Bargaining by Policemen or
Firemen Act, reveals that each state has made a policy
decision in favor of public interest arbitration for police
officers. Certainly, there are some differences in each
scheme. . . . Although we discern some differences in
each state’s legislation governing public employer-
employee labor disputes, we conclude that those
differences do not negate the basic public policy of
each state that their public employees are entitled to
engage in collective negotiations with their employer.
The discrepancies are not so significant to render the
two statutory schemes substantially dissimilar. Thus,
the New Jersey statutes and the Pennsylvania statutes
are complementary and parallel.
_________________________________________________________________
20. Perhaps for this reason, the parties have not extensively briefed the
issue.
17
Id. at 552-54 (citations omitted).
The DRPA suggests the differences between the statutory
schemes are too numerous to label them "complementary."
There are some "differences" -- including the different
bargaining rights of first-level supervisors in New Jersey
and Pennsylvania.21 But for our purposes, the New Jersey
courts have declared the similarities between the schemes
significant enough to label them "complementary."
Therefore, we will give preclusive effect to the

-- 14 of 15 --

determination that DRPA and PATCO supervisory law
enforcement officers have the right to bargain collectively
with management.22 But we express no opinion on other
issues relating to bi-state compacts that fall outside the
specific context of labor negotiations with DRPA and PATCO
law enforcement employees.
V.
For the foregoing reasons we will reverse and remand for
proceedings consistent with this opinion.23
_________________________________________________________________
21. And under 43 Pa. Cons. Stat. S 1101.1301, Pennsylvania’s PLRB has
exclusive jurisdiction over all labor matters. Under N.J. Stat. Ann.
S 34:13A-5.2, New Jersey’s PERC is vested with such jurisdiction.
22. The DRPA contends New Jersey courts can allow relitigation of a
purely legal issue, even where the usual prerequisites for issue
preclusion are satisfied. E.g., Dawson , 641 A.2d at 1034-35; City of
Plainfield, 412 A.2d at 766; see also RESTATEMENT (SECOND) OF JUDGMENTS
S 28(2) (observing an exception to the doctrine where the issue "is one of
law"). The DRPA suggests this issue, which concerns an abstruse issue
of federal constitutional law, merits litigation. But the doctrine of issue
preclusion applies equally to issues of law. RESTATEMENT (SECOND) OF
JUDGMENTS S 27 cmt. c ("An issue on which litigation is foreclosed may be
one of evidentiary fact, of ‘ultimate fact’ (i.e., the application of law to
fact), or of law . . . if the issue [is] one of law, new arguments may not
be presented to obtain a different determination of that issue.").
23. We need not reach the constitutional inquiry of whether
congressional consent is necessary to impose additional duties, as
opposed to additional powers, under DRPA.
18
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
19

-- 15 of 15 --