Board of Sup'rs of Warren County v. VA. DSS

Citation731 F. Supp. 735
Decision Date05 March 1990
Docket NumberCiv. A. No. 89-0015-H.
CourtU.S. District Court — Western District of Virginia
PartiesBOARD OF SUPERVISORS OF WARREN COUNTY, et al., Plaintiffs, v. VIRGINIA DEPARTMENT OF SOCIAL SERVICES, et al., Defendants.

Douglas W. Napier, Napier & Napier, P.C., Front Royal, Va., for plaintiffs.

Thomas J. Czelusta, Kimberly S. Ritchie, Asst. Atty. Gen., Richmond, Va., for defendants.

MEMORANDUM OPINION

MICHAEL, District Judge.

Plaintiffs in this action are the Board of Supervisors of Warren County, Virginia,1 the County Board of Social Services, the County Department of Social Services and Ann Carbaugh, the Director of the County Department of Social Services.2 There are two institutional defendants — the Virginia Department of Social Services and the Virginia State Board of Social Services — and one individual defendant, Larry D. Jackson, the Commissioner of Social Services.3 The core of the complaint is the plaintiffs' allegation that the formula adopted by the State Board of Social Services for distributing federal monies under the Social Services Block Grant program (42 U.S.C. § 1397 et seq.) among the various local social services agencies is arbitrary and capricious, and not rationally related to a legitimate state purpose. This court has jurisdiction under 28 U.S.C. §§ 1331, 1343. The defendants have moved to dismiss, or in the alternative for summary judgment, raising a number of issues concerning standing and the ability of the present parties to either bring suit or be sued. These issues were briefed, both parties were heard at oral argument on December 21, 1989, and the court has received additional briefs; the defendants' motion is now ripe for disposition.

I

Perhaps more so than in the average case, the resolution of the issues presently before the court hinges on the nature of each of the parties involved. Therefore, the court will begin with a description of each of the protagonists. The County of Warren (the "County") is a political subdivision of the Commonwealth of Virginia. The Board of Supervisors (the "Board") is a group of elected officials who represent the political body and are charged with managing the ordinary affairs of the county. 5A Michie's Jurisprudence, Counties § 31 (1988). The Warren County Board of Social Services ("WBSS") and the Warren County Department of Social Services ("WDSS") are agencies of the County, the creation of which are authorized by state statute. Va.Code §§ 63.1-38, 63.1-38.1. Ann Carbaugh is the Director of WBSS. The defendant Virginia Department of Social Services is a state agency created within the executive department of the Commonwealth. Va.Code § 63.1-1.1. The defendant Larry D. Jackson is the Commissioner of Social Services and is charged with the supervision and management of DSS. Id. The defendant State Board of Social Services is also an agency of the Commonwealth. Va.Code § 63.1-14. It is charged with the task of advising the Commissioner. Va.Code § 63.1-24.

Before addressing the defendants' motion it is necessary to determine precisely how the plaintiffs' claims arise, since they may have viable claims in some situations, but not others. In § I of the complaint the plaintiffs state "this action arises under the Constitution and Laws of the United States, including the National Social Security Act in Title XX of the United States Code, The Declaratory Judgment Act, 29 sic U.S.C. Sections 2201 and 2202, and the Civil Rights Act of 1871, 42 U.S.C. Section 1983."

It has long been settled that the Declaratory Judgment Act does not expand this court's jurisdiction, but only authorizes a specific type of relief. Thus, clearly, the plaintiffs' claims do not "arise" under the Act. A careful review of both the complaint and the various memoranda filed by the plaintiffs reveals no support for their assertion that any portion of this case arises under the Social Security Act. As a result, the plaintiffs' claims must arise, if at all, under § 1983. They allege that the Commonwealth's distribution formula deprives them of rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment, traditional § 1983 claims. Consequently, the defendants' motion raises a straightforward question: may these plaintiffs bring suit against these defendants under § 1983? Defendants argue that they may not. The plaintiffs argue that they may, in both their own capacities, and in a representational capacity for the citizens of the County.

II

Defendants' motion involves four basic contentions: (1) that this action is barred by the Eleventh Amendment; (2) that the plaintiffs have failed to state a claim under § 1983 as they are not "persons" entitled to protection under the Fourteenth Amendment and thus (3) lack standing to bring suit under § 1983; and (4) that the institutional defendants are not "persons" under the Fourteenth Amendment and therefore may not be sued under it. Plaintiffs, obviously, maintain that precisely the opposite is true.

A. The Eleventh Amendment

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

While the Amendment does not specifically apply to suits brought against a State by its own citizens, the Amendment has "long been held" to govern such actions. Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 683, 102 S.Ct. 3304, 3313, 73 L.Ed.2d 1057 (1982). Under the Eleventh Amendment a "suit generally may not be maintained directly against the State itself, or against an agency or department of the State, unless the state has waived its sovereign immunity." Id. at 684, 102 S.Ct. at 3314; Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). It is clear, therefore, that unless Virginia has waived its sovereign immunity the Eleventh Amendment requires that the suit against the institutional defendants be dismissed since they are both "agencies or departments" of the State.4 Treasure Salvors, 458 U.S. at 684, 102 S.Ct. at 3314. The plaintiffs contend that such a waiver has taken place.

"A State will be deemed to have waived its immunity `only where stated by the most express language or by such overwhelming implication ... as will leave no room for any other reasonable construction.'" Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-240, 105 S.Ct. 3142, 3146, 87 L.Ed.2d 171 (1985), quoting Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974). Additionally, the State must note with particularity its intention to waive its immunity from suit in federal courts. "The test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one." Atascadero State Hosp., 473 U.S. at 241, 105 S.Ct. at 3146. It is not enough that the state have generally waived its sovereign immunity; a state statute or constitutional provision "must specify the State's intention to subject itself to suit in federal court." Id. "In the absence of an unequivocal waiver specifically applicable to federal-court jurisdiction" this court must decline to find such a waiver. Id. The standard for determining waiver is equally strict, if not more so, under Virginia law.

Virginia recognizes the doctrine of sovereign immunity, and the Commonwealth's immunity is absolute unless waived. James v. Jane, 221 Va. 43, 53, 282 S.E.2d 864 (1980). In Virginia there can be no waiver of sovereign immunity by implication, Hinchey v. Ogden, 226 Va. 234, 241, 307 S.E.2d 891 (1983), and statutory language granting consent to suit must be explicitly and expressly announced, Elizabeth River Tunnel District v. Beecher, 202 Va. 452, 457, 117 S.E.2d 685 (1961). Plaintiffs argue that by Art. VII, § 3 of the Constitution of Virginia, coupled with Va. Code §§ 15.1-507, 15.1-522 and 15.1-839, the Commonwealth and its agencies and officials have waived their immunity to suits against them by the County. In light of the precedent noted above this is clearly not the case.5

Article VII, § 3 of the Virginia Constitution states

The General Assembly may provide by general law or special act that any county, city, town, or other unit of government may exercise any of its powers or perform any of its functions and may participate in the financing thereof jointly or in cooperation with the Commonwealth or any other unit of government within or without the Commonwealth. The General Assembly may provide by general law or special act for transfer to or sharing with a regional government of any services, functions, and related facilities of any county, city, town, or other unit of government within the boundaries of such regional government.

There is certainly nothing in this passage which constitutes the express and explicit waiver of immunity required by state law, and, even if there were, it is equally clear that this language does not entail the unambiguous consent to suit in federal court mandated by Supreme Court precedent. The statutory sections cited by the plaintiffs are equally unpersuasive.

Section 15.1-507 deals solely with a Board of Supervisors' general powers to act to protect county property and defend suits against the county.6 Section 15.1-507 grants to boards of supervisors the same powers that are exercised by city and town councils in the Commonwealth, but again makes no reference to sovereign immunity.7 Section 15.1-839 is a general grant of power to municipal corporations in the Commonwealth, and while its language is broad,8 it could contain a waiver of immunity only by implication, and in Virginia such a waiver by implication is expressly prohibited. See Hinchey, 226 Va. at 241, 307 S.E.2d 891.

In light of the narrow construction given to the powers of counties in Virginia, and the absence of any express, explicit,...

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