Muzquiz v. City of San Antonio

• Citation: 528 F.2d 499
• Decision Date: 27 February 1976
• Docket Number: No. 74--3177,74--3177
• Parties: Raymond MUZQUIZ et al., Plaintiffs-Appellants, v. CITY OF SAN ANTONIO et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 499

528 F.2d 499

Raymond MUZQUIZ et al., Plaintiffs-Appellants, v. CITY OF SAN ANTONIO et al., Defendants-Appellees.

No. 74--3177.

United States Court of Appeals, Fifth Circuit.

Feb. 27, 1976.

Kermitt L. Waters, Las Vegas, Nev., for plaintiffs-appellants.

Harvey L. Hardy, San Antonio, Tex., for defendants-appellees.

Edgar A. Pfeil, Asst. City Atty., San Antonio, Tex., for City of San Antonio.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, Chief Judge, TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, MORGAN, CLARK, RONEY, GEE and TJOFLAT, Circuit Judges.

DYER, Circuit Judge:

Former San Antonio policemen and firemen filed this class action against the Pension Fund Board of Trustees and its individual members seeking damages and refunds of the amounts they obligatorily contributed to a pension fund during their employment but which they were barred from receiving after their separation under Article 6243f, § 19, Vernon's Texas Civil Statutes. ¹ They raised a myriad of constitutional challenges to the no-refund provisions of the statute. The district court granted summary judgment for the defendants. A panel of this Court, finding that the no-refund provisions of Article 6243f were reasonable and constitutional, affirmed on the merits. ²

The Court took this case en banc because it posed questions of jurisdictional importance in the ever burgeoning area of relief sought under42 U.S.C.A. § 1983. ³ Two basic questions are presented. First, is the Board of Trustees of the Pension Fund a 'person' and therefore suable under Section 1983? Second, is there jurisdiction over the individual members of the Board of Trustees to require them to cause payments from the fund to be made to the plaintiffs as restitution for the money paid into the fund? ⁴ We answer both questions in the negative.

I.

In his dissent to the panel opinion Judge Godbold adopted the rationale underlying the grant of immunity to cities, Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; Kenosha v. Bruno, 1973, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109, to the governmental entity here involved, the Board of Trustees of the Pension Fund, and concluded that the Board was not a 'person' within the contemplation of Section 1983. We agree with the reasons undergirding this holding and without iterating them, we approve and adopt them as the opinion of the Court en banc.

II.

With respect to the court's jurisdiction over the individual members of the Board of Trustees, again we agree with Judge Godbold's dissent, and his conclusion that there is a want of jurisdiction under Section 1983 to entertain plaintiffs' suit seeking an accounting, restitution and refunds, all of which 'strik(e) directly for the pocket of the Pension Fund.' Muzquiz at 1007. ⁵ We only wish to make clear the basis for this decision.

The panel opinion argues that it is incongruous to hold that the individual board members are 'persons' within the meaning of § 1983 when some forms of relief, such as money damages, are sought, and at the same time to hold that the board members are not 'persons' when other forms of relief, such as restitution, is sought. But this is not the basis of our decision. We do not hold that the status of the board members as 'persons' is variable, dependent upon the relief sought. Rather, we hold that this is a suit not against the nominal defendants, the individual board members who are 'persons', but instead is a suit against an unnamed, though very real, party defendant, the Pension Board itself, an entity which, as we have held previously, is not a 'person'. Therefore, § 1983 jurisdiction must fail.

In form, plaintiffs seek against the individual members of the board a mandatory injunction ordering the individual members to refund past contributions to the fund. However, in substance, this is nothing more than restitution against the fund itself. If we allowed this action to proceed, then the bar which has been created by the judicial interpretations of § 1983 would be effectively eliminated, for any action which seeks restitution against a 'nonperson' may be framed in terms of a mandatory injunction against the officials responsible for the fund from which restitution is sought. The congressional intent which impels the 'nonperson' limitation cannot be so lightly construed. The detailed analysis of Judge Godbold's dissent fully supports this position.

We take issue with only one aspect of that dissent. Judge Godbold concludes that the action against the individual members of the board should be dismissed insofar as it seeks monetary relief in the form of restitution. However, he also concludes that the action against the individual members is maintainable, insofar as it seeks declaratory and injunctive relief. The declaratory and injunctive relief sought is a declaration that Article 6243f is unconstitutional, and an injunction against its enforcement. Article 6243f is prohibitory in nature, barring refunds of monies previously paid into the fund. A declaration that it is unconstitutional, or an injunction against its enforcement, is in substance a determination of plaintiffs' entitlement to restitution from the fund itself. This determination, as we have held, is barred under § 1983 because of the 'nonperson' status of the fund's Board of Trustees.

Thus, we conclude that under the peculiar facts of this case, either a mandatory injunction directed against the individual members of the board, or injunctive and declaratory relief with respect to the statute is tantamount to a money judgment for restitution against the fund, an entity against which relief may not be directed under the court's § 1983 jurisdiction.

III.

Since jurisdiction fails, we do not reach the merits.

Affirmed.

JOHN R. BROWN, Chief Judge (dissenting and concurring in part).

With respect to the meaning of 'person' under § 1983, I concur in Judge Tuttle's opinion.

With respect to the remedy against individual members of the Board of Trustees in either their personal or official capacities, I concur in the result in Part II of Judge Dyer's opinion for the Court. I also concur in the opinion except that I reserve the question as to declaratory orders or injunctions which do not have the operative effect of directing restitution of the public funds.

TUTTLE, Circuit Judge, with whom WISDOM, GOLDBERG and MORGAN, Circuit Judges, join (dissenting).

With deference I dissent. Apparently because of its concern with the 'ever burgeoning area of relief sought under 42 U.S.C.A. § 1983' the court seems to me to have whittled down the clear statutory grant of civil rights litigation under color of state law to little more than an empty promise. This is so because it is hard to conceive of a situation where a person acts under color of state law without being involved in a governmental type body.

It must be borne in mind that all we are doing is construing a statute. Section 1983 provides:

'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'

The Supreme Court has held that a municipal corporation is not a 'person' within the contemplation of this statute. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). The Court has also held that a county is sufficiently like a municipality that it must also be accounted to be a non-person under this section. Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973).

The Court has not held that a true 'person' cannot be sued merely because by means of the suit the public fisc would be reached through the court's equity powers. Such a holding, as in my judgment is the decision of the court here, flies in the face of a literal reading of the language: 'Every person, who, under color of any statute . . . shall be liable . . . in . . . (a) suit in equity, or other . . . proceeding for redress.'

The error which, respectfully, I think the court has made here is that it treats § 1983 as a statute granting or creating some sort of immunity to a municipal corporation. It does nothing of the sort. It merely does not include a municipal corporation within the word 'person.' The clearest evidence of the Supreme Court's understanding of this basic fact is the treatment it gave to the case of Moor v. County of Alameda. There the Court held that a suit could not be maintained against Alameda County in California because the County was not a 'person.' The Court did not stop there, however. It gave instead what might to some be considered a very liberal construction of the word 'citizen' in the diversity jurisdiction clause ¹ in order to permit the action against Alameda County to proceed on the theory that it was a citizen of the State of California.

In its use of the word 'person' in § 1983 Congress did not intend for it to have an arcane or restricted meaning to be determined on the basis of the effect the created cause of action might have on the public moneys of a municipality. The majority writes a new definition which says a true live and breathing person who is a trustee of a fund created by a municipality is not a 'person' because the Congressional policy is not to permit a suit to be maintained against the city itself.

This approach is even less understandable to me in light of a post-Kenosha case of the Supreme Court. In Bradley v. School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Court permitted a suit under § 1983 to require...