Cale v. City of Covington

• Decision Date: 03 November 1978
• Docket Number: No. 77-1239,77-1239
• Parties: Donald L. CALE, Appellant, v. The CITY OF COVINGTON, Virginia, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 311

586 F.2d 311

Donald L. CALE, Appellant, v. The CITY OF COVINGTON, Virginia, Appellee.

No. 77-1239.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 13, 1977.

Decided Nov. 3, 1978.

William A. Parks, Jr., Hot Springs, Va. (Erwin S. Solomon, Erwin S. Solomon & Associates, Hot Springs, Va., on brief), for appellant.

Joseph A. Matthews, Jr., and T. T. Lawson, Roanoke, Va. (William B. Poff, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., on brief), for appellee.

Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit Judges.

WIDENER, Circuit Judge:

On November 30, 1973, Donald L. Cale was discharged from his duties as a police officer for the City of Covington, Virginia. Chief of Police Donald Leet dismissed Cale for taking, while he was on duty, a plastic scalpel from the office of a deceased physician. Cale then brought this wrongful discharge action in the district court, only against the City of Covington, resting jurisdiction upon the existence of a federal question and an amount in controversy exceeding $10,000. The cause of action was alleged to have arisen under the Fifth and Fourteenth Amendments to the Constitution. The complaint also included State law claims, the dismissal of which is not here contested. He demanded damages of $50,000.

In its answer, the City pleaded that Cale's complaint failed to state a cause of action, and, following discovery, moved for summary judgment. Considering Cale's "complaint as a suit for monetary relief under 42 U.S.C. § 1983," the district court granted the City's motion on the "well settled principle of law that a municipality is not a 'person' within the meaning of § 1983 and therefore is not amenable to suit for monetary relief under these statutes," citing City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

The first of three questions for review is whether the district court erred in deciding that 42 U.S.C. § 1983 provided Cale no remedy. While the decision of the district court was correct at the time of its decision, e. g., City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the law has since changed. The Supreme Court in the recent decision of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), overruled the absolute immunity of municipalities from suits under § 1983 which had been established in Monroe. As we should apply the law as it exists at the time of our decision, Cort v. Ash, 422 U.S. 66, 76, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), we vacate the decision of the district court dismissing Cale's case as a suit under § 1983 and remand for further proceedings consistent with Monell. We add only that the liability of the City of Covington under § 1983 may depend upon factual issues not developed in the current state of the record, for Monell makes it clear that "a municipality cannot be held liable under § 1983 on a Respondeat superior theory," 436 U.S. at 691, 98 S.Ct. at 2036, and that only a local government which "under color of some official policy 'causes' an employee to violate another's constitutional rights" may be liable. 436 U.S. at 692, 98 S.Ct. at 2036.

The next question is whether the amount in controversy was sufficient to invoke the district court's subject matter jurisdiction under 28 U.S.C. § 1331. The City disputes Cale's claim of $50,000 in damages, and argues that because Cale was later able to secure subsequent employment with about the same salary or wages, his damages were in fact less than the $10,000 jurisdictional amount required under § 1331. To agree with the City, however, we must determine "to a legal certainty that the claim is really for less than the jurisdictional amount . . .," Mt. Healthy, infra, 429 U.S. at 276, 97 S.Ct. at 570, quoting St. Paul Indemnity Co. v. Red Cab Co.,303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). "(T)he sum claimed by the plaintiff controls if the claim is apparently made in good faith." Id. Viewing Cale's complaint under these criteria, we cannot find to a legal certainty that the amount in controversy was insufficient, and the bona fides of his claim for $50,000 in damages have not been questioned here.

Although often litigated of late in the inferior federal courts, neither this court nor the Supreme Court has yet answered the question of whether or not an implied cause of action for damages exists against a municipality for the act of its employee under the Fourteenth Amendment with jurisdiction under 28 U.S.C. § 1331, without the limitations imposed by § 1983. We hold that it does not. Our opinion that no action of the type exemplified by Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), should be so implied from the Fourteenth Amendment rests upon our opinion as to the meaning of the amendment in the light of its wording, background, congressional action, and court decisions construing it.

While it is true that the federal courts have determined the constitutionality of State and federal legislation under the Fourteenth Amendment, ¹ Cale does not ask us merely to enforce the prohibitions of the Fourteenth Amendment as measured against a statute or regulation. Rather, he asks us to imply a cause of action for damages in that he was discharged in violation of the due process clause of the Fourteenth Amendment because the discharge was without proper notice or hearing.

The beginning point of our analysis is the amendment itself, ratified in 1868. Our particular concerns are §§ 1 and 5 thereof. Section 1, in pertinent part, provides that no State shall "deprive any person of life, liberty, or property without due process of law." Section 5 states that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." We also consider 28 U.S.C. § 1331(a), which, for our purposes, was enacted in 1875. ² It provides for original jurisdiction in the district courts over "all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. . . ."

It is too well documented to bear citation that federal courts are courts of limited jurisdiction and especially the inferior federal courts. And "in the legal system generally a jurisdictional grant does not in and of itself necessarily or even ordinarily imply a power to make substantive rules of decision. . . ." The Federal Courts and the Federal System, Bator, Shapiro, Mishkin, and Wechsler (2d ed. 1973), p. 786. We need go no further than these elementary rules to arrive at our conclusion that the enactment of § 1331 did not of itself create any cause of action, nor do we think that one may be implied from the mere grant of jurisdiction. So, if there is to be a cause of action implied in favor of the plaintiff against the City of Covington, it must be directly under the Constitution and in our case more particularly under the due process clause of the Fourteenth Amendment.

Due process decisions, especially in recent years, have reached endless number. To repeat, plaintiff's claim is based on the now familiar allegation that he was discharged as a policeman by the Chief of Police of the City of Covington without a hearing. He claims that his discharge without a hearing is a violation of the due process clause.

Assuming for the moment, without deciding, the validity of the plaintiff's cause of action as alleged, the question arises as to whether there is jurisdiction in a federal court to hear it. This question has been answered in the affirmative for suits under § 1331 in Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), but the consideration of whether or not there is jurisdiction and whether or not a cause of action is stated are different questions. Mt. Healthy, p. 278, 97 S.Ct. 568; Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

Had the plaintiff sued the Chief of Police, he clearly may have stated a cause of action under § 1983, and we have directed remand on the issue of the City's liability under § 1983 as construed by Monell. But the plaintiff persists that he has a right to sue the City, even apart from § 1983, for damages directly under the Fourteenth Amendment, claiming jurisdiction under § 1331. We thus turn to the question of whether or not to imply a cause of action under the Fourteenth Amendment against the City of Covington on account of the actions of its employee.

There have been many opinions in the inferior federal courts which discuss the question, and we do not attempt to analyze them all or collect them here. Some are holdings directly on the point; some are more or less on the point; and some decide the jurisdictional question but speak of the cause of action. ³

On facts very similar to the case at hand, the Eighth Circuit, in Owen v. City of Independence, 560 F.2d 925 (8th Cir. 1977), on account of the firing of a Chief of Police by the City Manager, held, under § 1331 jurisdiction, that there was an implied cause of action under the Fourteenth Amendment due process clause. ⁴ A similar holding was apparently made in Hanna v. Drobnick, 514 F.2d 393 (6th Cir. 1975), on account of the inspections of a building inspector under a city ordinance claimed to be invalid. The question in Hanna, however, concerned Fourth Amendment rights asserted under the Fourteenth Amendment. Both Hanna and Owen relied on Bivens. The Second Circuit, in Gentile v. Wallen, 562 F.2d 193 (2d Cir. 1977), a suit against a School Board, made the same holding against the board when it refused to grant tenure. As did Hanna and Owen, Gentile...