421 F.2d 560 (2nd Cir. 1969), 16, Eisen v. Eastman

Docket Nº:16, 32909.
Citation:421 F.2d 560
Party Name:Clarence EISEN, Plaintiff-Appellant, v. Oliver C. EASTMAN, Defendant-Appellee.
Case Date:November 28, 1969
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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421 F.2d 560 (2nd Cir. 1969)

Clarence EISEN, Plaintiff-Appellant,


Oliver C. EASTMAN, Defendant-Appellee.

No. 16, 32909.

United States Court of Appeals, Second Circuit.

November 28, 1969

Argued Oct. 17, 1969.

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Clarence Eisen, pro se.

Harry Michelson, New York City (Daniel W. Joy, Acting Gen. Counsel, Office of Rent Control, Dept. of Rent and Housing Maintenance, New York City Housing and Development Administration, New York City, of counsel), for defendant-appellee.

Before FRIENDLY, HAYS and ANDERSON, Circuit Judges.

FRIENDLY, Circuit Judge:

This action, brought by a landlord appearing pro se, is typical of the many cases in which, by virtue of a plaintiff's invocation of § 1 of the Civil Rights Act of 1871, 17 Stat. 13, now 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343(3), federal courts are now being asked to determine a great variety of controversies between city or state officials and citizens who prefer litigating in the federal courts to pursuing their state remedies. 1 The existing and prospective

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importance of the problems thus presented has prompted us to examine them at greater length than disposition of this case might demand.

Eisen's one page pro se complaint against Eastman, a New York City District Rent and Rehabilitation Director, asserts that Eastman violated his constitutional right not to be deprived of property without due process of law by reducing the rents to which Eisen was restricted under the City's Rent and Rehabilitation Law, N.Y. City Adm. Code, Ch. 51, Title Y. The rent reductions in two buildings owned by the plaintiff had resulted in losses of some $1300 at the date of the defendant's motion to dismiss and of some $1800 at the time of the district court's decision. The complaint and other papers, when read with appropriate benevolence, challenge the rent control law, the general level of rents fixed for Eisen's buildings thereunder, and the Director's recent reductions, as violating plaintiff's rights under the due process clause of the Fourteenth Amendment.

The district judge held that the action could not be sustained under 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C.A. § 1343(3), 2 since the Civil Rights Act does not apply to suits against municipalities. Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). He considered, however, that the showing that losses from the rent reductions would exceed $10,000 within an additional three years might satisfy the requirement of 28 U.S.C. § 1331. Proceeding to the merits, the judge held that the City's rent control statute was constitutional, citing Israel v. City Rent & Rehabilitation Administration, 285 F.Supp. 908 (S.D.N.Y.1968), and that consequently the particular orders raised no federal question 'in the absence of any allegations of extraordinary circumstances or arbitrary action.' In his brief here Eastman contends that federal inquiry into the particular orders, and also, we should suppose, into the general rate level, was foreclosed by Eisen's failure to take the administrative appeal to the main office of the Rent Administration allowed by § Y51-8.0 of the Rent & Rehabilitation Law.

The district court's conclusion that the Civil Rights Act could not be invoked gets no support from the holding in Monroe v. Pape barring suits thereunder against municipalities. The action here was not against New York City but against Eastman. Actions against

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a government official acting 'under color of' statutes and ordinances are what 42 U.S.C. § 1983 is mainly about. Still it does not necessarily follow that 28 U.S.C. § 1343(3) covers an action such as this.

There has been no thorough discussion by the Supreme Court of the scope of 28 U.S.C. § 1343(3) since Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). Apart from its age, Hague casts an uncertain light because of the absence of a majority opinion. The lead opinion by Mr. Justice Roberts, joined on the jurisdictional aspect solely by Mr. Justice Black, who, as one will be pardoned for supposing, would scarcely take the same view today, held that the reference in the statute to 'any right, privilege or immunity secured by the Constitution of the United States' only covered actions alleging violations of the clause in § 1 of the Fourteenth Amendment which says 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' and was thus limited to the privileges and immunities of national citizenship-- a requirement Justice Roberts thought satisfied by the individual plaintiffs since they were citizens complaining of abridgement of their right to disseminate information about the National Labor Relations Act. This interpretation of § 1343(3) encounters serious obstacles, both textual 3 and historical, 4 which are sketched in the margin, and was apparently rejected by all the Justices in Monroe v. Pape, 365 U.S. at 170-171, 81 S.Ct. 473 (majority opinion of Mr. Justice Douglas), 205-206, 81 S.Ct. 473 (dissenting opinion of Mr. Justice Frankfurter). 5

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Mr. Justice Stone, joined by Mr. Justice Reed and apparently by Chief Justice Hughes, 307 U.S. at 518, 532, 6 59 S.Ct. 954, sustained federal jurisdiction in Hague upon a different and more appealing view. Taking off from the seemingly unchallengeable but somewhat unilluminating statement in Holt v. Indiana Mfg. Co., 176 U.S. 68, 72, 20 S.Ct. 272, 44 L.Ed. 374 (1900), that the civil rights jurisdictional provision applied only to suits alleging deprivation of 'civil rights,' he stressed the incongruity of reading what is now 28 U.S.C. § 1343(3) so broadly that it would cover the entire ground later embraced by the present 28 U.S.C. § 1331, with its requirement of a jurisdictional amount, in all cases where natural persons complained of acts by state officers as violating the Constitution. Essaying the task of definition, which the Court had side-stepped in Pleasants v. Greenhow, 114 U.S. 323, 330, 5 S.Ct. 931, 29 L.Ed. 204 (1885), and Holt v. Indiana Mfg. Co., supra, he thought the special jurisdictional statute applied 'whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights.' 307 U.S. at 531, 59 S.Ct. at 971. 7

So far as our research has disclosed, Mr. Justice Stone's definition would encompass all the cases in which the Supreme Court has sustained jurisdiction under 28 U.S.C. § 1343(3), with the possible exception of King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), where the applicability of the Civil Rights Act was neither challenged nor discussed. Moreover, it is quite arguable that King came within Justice Stone's formulation on the basis that Alabama's 'substitute father' regulation not merely caused economic loss to Mrs. Smith's children, but also infringed their 'liberty' to grow up with financial aid for their subsistence and her 'liberty' to have Mr. Williams visit her on weekends.

Like so many definitions, Justice Stone's has been considerably easier to state than to apply. Attacks on the constitutionality of state tax statutes rather plainly fall beyond it, and one of its virtues is in excluding them. See, e.g., Reiling v. Lacey, 93 F.Supp. 462 (D.Md.1950), appeal dismissed, 341 U.S. 901, 71 S.Ct. 614, 95 L.Ed. 1341 (1951); Abernathy v. Carpenter, 208 F.Supp. 793 (W.D.Mo.1962) (alternative ground), aff'd, 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409 (1963); Gray v. Morgan, 371 F.2d 172 (7 Cir. 1966), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 596 (1967); Bussie v. Long, 383 F.2d 766 (5 Cir. 1967); Hornbeak v. Hamm, 283 F.Supp. 549 (M.D.Ala.), aff'd, 393 U.S. 9, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968). So also does an action addressed solely to the taking of property. Ream v. Handley, 359 F.2d 728 (7 Cir. 1966); Howard v. Higgins, 379 F.2d 227 (10 Cir. 1967). At the other end of the spectrum, cases involving, e.g., the right to distribute literature free of a municipal license tax, Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); the right to vote and to have an equal effect given to one's vote, Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Baker v. Carr, 369 U.S. 186, 200 & n. 19, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); the right to freedom of speech and of petition for the redress of grievances, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); the right to be free from unreasonable searches and arrests, Monroe v. Pape, supra, 365 U.S. 167, 81 S.Ct. 473;

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and the right to attend an integrated school, McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), fit snugly under the Stone formula. Greater difficulty has been experienced with cases involving denials or revocations of licenses or discharges from public employment. These can be viewed about equally well as complaining of a deprivation of the personal liberty to pursue a calling of one's choice or of the profits or emoluments deriving therefrom. See Glicker v. Michigan Liquor Control Comm'n, 160 F.2d 96 (6 Cir. 1947); Hornsby v. Allen, 326 F.2d 605 (5 Cir. 1964), other cases cited in Hart & Wechsler, The Federal Courts and the Federal System 842 (1953), and in D. Currie, Federal Courts 428-29 (1968); and the recent decision in Berry v. Allen, 411 F.2d 1142 (6 Cir. 1969). 8

This circuit has not squarely faced the issue. See American Commuters Ass'n v. Levitt, 405 F.2d 1148, 1151 n. 4 (2 Cir. 1969). In Burt v. City of New York, 156 F.2d 791 (2 Cir. 1946), this court upheld civil rights jurisdiction over an architect's damage action against city building officials for purposeful discrimination in rejecting...

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