Aldinger v. Howard, 73-3129

• Decision Date: 07 April 1975
• Docket Number: No. 73-3129,73-3129
• Parties: Monica ALDINGER, a single woman, Plaintiff-Appellant, v. Merton L. HOWARD, Individually and in his capacity as Treasurer of SpokaneCounty, and Jane Doe Howard, his wife, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1257

513 F.2d 1257

Monica ALDINGER, a single woman, Plaintiff-Appellant, v. Merton L. HOWARD, Individually and in his capacity as

Treasurer of SpokaneCounty, and Jane Doe Howard,

his wife, Defendants-Appellees.

No. 73-3129.

United States Court of Appeals, Ninth Circuit.

April 7, 1975.

Norman R. Rosenberg (argued) Spokane, Wash., for plaintiff-appellant.

Garald A. Gesinger, Deputy Pros. Atty., for defendants-appellees.

OPINION

Before CARTER, WRIGHT and WALLACE, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

This is an appeal from an order dismissing appellant's action against Spokane County, Washington. The order of dismissal was certified by the district court, pursuant to Fed.R.Civ.P. 54(b), as appropriate for immediate appellate review. We have jurisdiction under 28 U.S.C. § 1292(b).

Appellant Monica Aldinger sued Spokane County, its county commissioners, and its elected county treasurer, Howard, and his wife. She sought injunctive and declaratory relief and damages for what she claimed was her wrongful dismissal from employment in the county treasurer's office.

This dismissal, she asserted, was based solely on the allegation that she had been "living with (her) boy friend," and as such was subject to redress under the Civil Rights Act of 1871 (42 U.S.C. §§ 1983 and 1988) as a violation, under color of state law, of her constitutional rights under the First, Fifth, Ninth, and Fourteenth Amendments. Appellant also asserted that these same facts gave rise to a cause of action against the county under Wash.Rev.Code § 4.08.120 (1973) (providing for vicarious liability of counties in certain situations), and asked the district court to exercise pendent jurisdiction over these state law claims.

In granting the county's motion that it be dismissed as a party, the district court ruled that neither 42 U.S.C. § 1983 nor § 1988 provides for a federal cause of action against a county under 28 U.S.C. § 1343, and that the pendent state law claim against the county must therefore also be dismissed "inasmuch as this court now has no independent basis of jurisdiction over this defendant." We affirm.

A. FEDERAL QUESTION JURISDICTION.

Appellant contends that her second amended complaint stated a cause of action under the Civil Rights Act of 1871 (42 U.S.C. §§ 1983 and 1988 (1970)) which fell within the district court's 28 U.S.C. § 1343 jurisdiction. ¹ This argument is foreclosed by the Supreme Court's holding in Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), aff'g in part and rev'g in part Moor v. Madigan, 458 F.2d 1217 (9th Cir. 1972).

In Moor, the Supreme Court addressed the same question as that presented here: whether these Civil Rights Act provisions apply to political subdivisions of a state. Relying heavily on its earlier decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Court concluded that:

" . . . § 1983 is unavailable to these petitioners insofar as they seek to sue the County. And § 1988, in light of the express limitation contained within it, cannot be used to accomplish what Congress clearly refused to do in enacting § 1983."

411 U.S. at 710, 93 S.Ct. at 1796.

Both Moor v. County of Alameda and Monroe v. Pape were civil rights actions wherein the relief sought was money damages. In the case before us, the appellant sought declaratory and injunctive relief as well as damages.

However, any possibility that a political subdivision might be a suable "person" under §§ 1983 and 1988 for purposes of declaratory and injunctive relief was eliminated by the Court's subsequent decision in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). In that case, the Court reviewed a three-judge court's determination that § 1983 provided for 28 U.S.C. § 1343 jurisdiction over an action by owners of a retail liquor establishment against the city of Kenosha, Wisconsin. Their action challenged that city's failure to conduct formal adversary hearings before refusing to renew plaintiffs' liquor license. Reversing, the Court stated:

"We find nothing in the legislative history discussed in Monroe, or in the language actually used by Congress, to suggest that the generic word 'person' in § 1983 was intended to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them. Since, as the Court held in Monroe, 'Congress did not undertake to bring municipal corporations within the ambit of' § 1983, id., (365 U.S.) at 187 (81 S.Ct. 473, at 484), they are outside of its ambit for purposes of equitable relief as well as for damages. The District Court was therefore wrong in concluding that it had jurisdiction of appellees' complaints under § 1343."

Id. at 513, 93 S.Ct. at 2226.

Finally, we consider City of Kenosha v. Bruno controlling even though plaintiffs in that case sought to enjoin the actions of a city rather than a county. Moor v. County of Alameda clearly indicates that this difference is inconsequential as to § 1983 liability by using the terms "municipality" and "political subdivision" interchangeably. See, e. g., 411 U.S. at 708, 93 S.Ct. 1785. Consequently, the district court correctly determined that appellant failed to state a federal cause of action for either damages or for injunctive and declaratory relief.

B. JURISDICTION OVER THE PENDENT STATE LAW CLAIMS.

Appellant admits that, if the district court lacked jurisdiction over her federal causes of action against the county, it was required to dismiss her pendent state law claims against this defendant, together with the federal claims, by this court's decisions in Hymer v. Chai, 407 F.2d 136 (9th Cir. 1969) and Moor v. Madigan, supra. She suggests, however, that we should now abandon the Hymer rationale because: (1) the Supreme Court's opinion in Moor v. County of Alameda left the continued validity of Hymer in considerable doubt; and (2) the great majority of other courts which have considered this question have determined that pendent jurisdiction should be available to join parties as well as claims. We disagree.

In Moor v. County of Alameda, the Court was presented with the very question which is before us: Can a district court hear a party's state law claims against a named defendant over whom there is no independent federal basis for jurisdiction, where the nonfederal claims arise out of the same facts and circumstances as viable federal claims against other parties?

The Moor Court, however, purported to avoid reaching this question. Instead, it chose to affirm the alternative holding of the lower courts that "as a purely discretionary matter the federal court was an inappropriate forum to hear these state claims," (458 F.2d at 1221), even if there was federal court power to adjudicate them. 411 U.S. at 715-17, 93 S.Ct. 1785.

In the case before us, the district judge made no alternative ruling on the suitability of this case for the discretionary exercise of pendent jurisdiction. Rather, he based his dismissal of the state law claims against Spokane County exclusively on the ground that, under this court's decisions in Hymer v. Chai and Moor v. Madigan, he had no power to hear claims against "pendent parties."

Appellant contends that Moor v. County of Alameda contains language which compels a re-examination of this court's opinions in Hymer and Moor.

In Hymer v. Chai, we first considered whether the Supreme Court's expansion of the doctrine of pendent jurisdiction in United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), allowed joinder of additional parties as well as joinder of state law claims arising out of "a common nucleus of operative fact" with viable federal claims. We said that "(j) oinder of claims, not joinder of parties, is the object of the doctrine," 407 F.2d at 137, and held such an expansion unwarranted.

In Moor v. Madigan, we said:

"We are thus confronted with a question on which there is an apparent conflict, but on which this court has previously taken a stand in Hymer. Having found ample support for the position taken by this court in Hymer and having been shown no compelling reason to reverse that stand, we conclude that the court below properly relied on Hymer in refusing to exercise jurisdiction over the pendent state claims."

458 F.2d at 1221 (footnote omitted).

In Moor v. County of Alameda, the Supreme Court noted that "Hymer stands virtually alone against (the) post-Gibbs trend in the courts of appeals" to permit district courts to hear pendent claims involving additional parties, where the entire action arises out of a single constitutional "case" as defined in Gibbs. 411 U.S. at 713-14, 93 S.Ct. 1785, 1798. The Moor Court went on to note the substantial analogies between the joinder of parties under pendent jurisdiction and under expanded concepts of ancillary jurisdiction reflected in Fed.R.Civ.P. 13(a), 13(h), and 14(a).

However, the Supreme Court's opinion also recognized that there are strong arguments in favor of restricting at least certain types of state law actions to available state forums rather than hearing them in federal courts. The Court concluded that the question of federal judicial power to hear such state law claims against "pendent parties" is "a subtle and complex question with far-reaching implications," presenting difficult issues not appropriate for resolution in the case there before it. 411 U.S. at 715, 93 S.Ct. 1785 at 1799.

It seems clear to us that we are not bound by any of the above-noted dicta in Moor v. County of Alameda to reconsider our decisions in Hymer v. Chai and Moor v. Madigan. We are therefore free to dispose of this issue on the basis of our previous stand in Hymer just as this court disposed of the similar challenge to the Hymer rationale in Moor v. Madigan. See 458 F.2d at 1221.

Appellants have also asked that this case be considered en banc, in the event that we should affirm the...