531 F.2d 1264 (5th Cir. 1976), 74--4200, Thurston v. Dekle

Docket Nº:74--4200.
Citation:531 F.2d 1264
Party Name:George R. THURSTON, Individually, and on behalf of all others similarly situated, Plaintiffs-Appellees, v. Joseph C. DEKLE, as Chairman, Civil Service Board, Jacksonville, Florida, et al., Defendants-Appellants.
Case Date:May 20, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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531 F.2d 1264 (5th Cir. 1976)

George R. THURSTON, Individually, and on behalf of all

others similarly situated, Plaintiffs-Appellees,


Joseph C. DEKLE, as Chairman, Civil Service Board,

Jacksonville, Florida, et al., Defendants-Appellants.

No. 74--4200.

United States Court of Appeals, Fifth Circuit

May 20, 1976

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[Copyrighted Material Omitted]

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Wm. Lee Allen, Asst. Counsel, Harry L. Shorstein, Gen. Counsel, Jacksonville, Fla., for defendants-appellants.

Robert L. Shevin, Atty. Gen., James D. Whisenand, Asst. Atty. Gen., Tallahassee, Fla., for amicus curiae.

Paul C. Doyle, Duval City Legal Aid Assoc., Carolyn S. Zisser, Jacksonville, Fla., for plaintiffs-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before MORGAN, CLARK and TJOFLAT, Circuit Judges.

CLARK, Circuit Judge:

The issue in this litigation is whether the suspension and dismissal rules of a municipality provide constitutionally adequate pretermination procedures to nonprobationary city employees. The resolution of this issue requires an analysis of Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) and Davis v. Vandiver, 494 F.2d 830 (5th Cir. 1974). After ascertaining that jurisdiction and standing exist, we also determine the minimum due process protection against loss of nonprobationary city employment required by the Fourteenth Amendment.

The plaintiff class in this action was certified to include 'all permanent civil service employees of the City of Jacksonville, who have been or will be suspended from employment. . . .' The defendants were individual members of the Civil Service Board and the director of the Department of Housing and Urban Development of the City of Jacksonville. The employees sought declaratory relief and to enjoin the city from terminating their employment absent constitutionally sufficient pretermination proceedings. In addition, they requested restitution in the form of backpay.

The named plaintiff, Thurston, was given a letter dated August 10, 1973 on August 13, 1973, which suspended him as an employee of the Department of Housing and Urban Development of the City of Jacksonville for 30 days without pay effective August 13, 1970. At the end of the suspension period he was to be discharged permanently. The letter informed him of his right to appeal. He requested an appeal. After a hearing on September 10, 1973, his suspension and termination were upheld by the City Civil Service Board.

The applicable Rules and Regulations of the Consolidated Civil Service Board of the City of Jacksonville provide that suspension and dismissal of a nonprobationary city employee may only be 'for cause.' 1 Suspended or dismissed employees are given a right

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to appeal. 2 The appeal consists of a public hearing; the employee may have counsel present, may subpoena witnesses, and use the services of a court reporter. 3 The hearing

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must take place within 20 days of its request. 4

The lower court determined that these civil service rules violated due process. An injunction issued preventing suspension or dismissal without pay of any nonprobationary employee without prior notice and an opportunity for a hearing until the city had promulgated sufficient procedural safeguards which were specifically designed to minimize the risk of error attendant to initial removal.

I. Subject Matter Jurisdiction

Thurston rests jurisdiction for this action upon 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. The City of Jacksonville claims this suit is, in reality, a suit against the city; that the jurisdictional grant included in42 U.S.C. § 1983 is limited to suits against 'persons'; that municipalities are not persons; and therefore, suits against municipalities are not allowed under § 1983. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). This

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claim misses the mark. Obviously aware of Kenosha's jurisdictional bar, plaintiffs brought the instant litigation against individual members of municipal agencies in their official capacities. Such suits are cognizable under § 1983's jurisdictional grant. Muzquiz v. City of San Antonio, 528 F.2d 499 (5th Cir. 1976) (en banc).

However, as in Muzquiz, the plaintiffs in the instant action seek not only declaratory and injunctive relief, but also restitution. In Muzquiz we refused to allow § 1983 suits against the individual members of a municipal board or agency for restitution or damages where the practical effect was to use those defendants as conduits to the city treasury. The lower court's award of backpay to class members, therefore, must be reversed for lack of subject matter jurisdiction.

II. Standing

Although the lower court lacked subject matter jurisdiction to hear Thurston's claim seeking backpay on behalf of himself and members of the class, it did not lack subject matter jurisdiction to hear a claim requesting a declaratory judgment that Jacksonville's pretermination procedures are unconstitutional and an injunction preventing unconstitutional employment termination. But, before a court of the United States has the power under Art. III, § 2 of the Constitution to hear a particular claim, it must be presented in a solid adversary context. Muskrat v. United States, 219 S.Ct. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911). In other words, there must exist a case or controversy.

The threshold case-or-controversy inquiry is whether there existed a named plaintiff with standing to raise the issue before the court. The hindsight provided by Muzquiz now enables us to clearly see that Thurston never did satisfy the traditional tests which would indicate he had standing to present this class' claims.

When this suit was instituted, there were three categories of individuals who could have had standing to raise this issue: First, an employee who had been suspended without pay and whose termination had been upheld on appeal to the Civil Service Board; second, an employee who had been suspended without pay but who had not yet received a post-termination appeal by the Civil Service Board; and third, an employee threatened with suspension without pay.

Thurston was suspended without pay on August 13, 1973; his termination was upheld on appeal by the Civil Service Board on September 10, 1973. The instant action was not filed until September 26, 1973. Therefore, Thurston's standing must be found in the first category. Thurston does not attack his final termination; his claim is only directed to the initial suspension without pay absent constitutional pretermination protection. The only remedy he could invoke was backpay for the period of time between his initial suspension without pay and the date he was entitled to post-termination procedures. Therefore, Thurston's standing to attack the pretermination procedure is solely limited to his claim for backpay--relief which Muzquiz now teaches the court lacked jurisdiction to grant.

Thurston is the only named plaintiff in this action preserved on appeal. The court lacked jurisdiction to hear any claim Thurston had standing to raise and Thurston lacks standing to raise any claim the court had jurisdiction to hear. The net result is that there was no named plaintiff with standing to question Jacksonville's pretermination procedures at the time this litigation was filed.

The fact that some members of the class may have had standing to raise this claim is irrelevant. The record does not disclose that any class member had ever been in either the second or third category discussed above. But, more importantly, the necessary requirement is for a named plaintiff to have standing at the time the

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litigation is filed. 5 We are unaware of any case where any federal court has reached a substantive issue absent a named plaintiff who had standing at the time the action was filed. We are also confident that had Muzquiz been available to it, the lower court would not have heard this action.

Thurston's standing was not factualy mooted; it fell away because of a subsequent legal interpretation. Thus, we are not faced here with a named plaintiff whose standing has been mooted by a fact occurring subsequent to the filing of his case. This kind of fact-created mootness is common-place when plaintiffs attack pretermination procedures or residency requirements. The law is settled that such factcreated mootness will not prevent the complete hearing of a case when such a refusal to proceed would enable the case to continue to evade review. 6

Use of the conventional form of standing analysis leads to the conclusion that this case should be reversed because no named plaintiff had standing. However, to do so exalts form over substance because such a formalistic approach never pauses to look past the usual procedural requisites to test for the basic substance these procedures seek to enforce. 7 Muzquiz, which denied subject matter jurisdiction to Thurston, and thereby took away his standing, was unknown to the parties and the lower court throughout the trial. Both parties briefed and argued this case with a vigor nurtured by ignorance of an upcoming en banc reversal of the panel opinion that provided vitality to Thurston's side of this case. Throughout this case Thurston believed (as did the lower court) that he had a real stake in the outcome. Thus it would not serve standing's ultimate purpose to hold that the adversary context that truly prevailed throughout the cause was somehow lost even before Thurston, or any other party, or the court knew it was gone. 8

To reverse this case on the ground of lack of standing will predictably result in another attack on these same ordinances before the same trial court by some other...

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