Hirrill v. Merriweather
| Decision Date | 16 January 1980 |
| Docket Number | No. 79-1081,79-1081 |
| Citation | 629 F.2d 490 |
| Parties | George E. HIRRILL, Appellant, v. John T. MERRIWEATHER and Carelton E. McMullen, Individually and as City Managers of the City of Little Rock, Arkansas; George Wimberly, Individually and as Mayor, a member of the Board of Directors and a member of the Police Pension Fund Board; A. M. Keith, Warren Baldwin, Jr., William H. Walters, Jack Young, Perlesta Hollingsworth, Jim Dailey, Dwight Linkous and Charles Bussey, Individually and as members of the Board of Directors of the City of Little Rock; Peyton E. Rice, Fred G. Hook, Charles C. Crawford, Jr., Roy Beard and Glen F. Rogers, Individually and as members of the Civil Service Commission of the City of Little Rock, Arkansas; Gale F. Weeks, Individually and as Chief of Police of the City of Little Rock, Arkansas; Bill Sanford, Jack Murphy, Dr. Gordon Holt and Lloyd R. Haynes, Individually and as members of the Police Pension Fund Board of the City of Little Rock, Arkansas, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Clifford E. Jackson, Solloway & Jackson, Little Rock, Ark., for appellant.
R. Jack Magruder, III, City Atty., Little Rock, Ark., for appellees.
Before GIBSON, Chief Judge, * and STEPHENSON and HENLEY, Circuit Judges.
This is an appeal from a final order of the United States District Court for the Eastern District of Arkansas (The Honorable G. Thomas Eisele, Chief Judge) dismissing with prejudice a civil rights suit brought by plaintiff, George E. Hirrill, a former member of the Police Department of the City of Little Rock.
In 1973 plaintiff, while on accumulated sick leave as a patrolman, applied to the Board of Trustees of the Little Rock Policemen's Pension and Relief Fund (Pension Board) for an award of a disability pension due to a foot condition that plaintiff claimed rendered him unable to perform foot patrol duty to which he had been assigned by the then Chief of Police, Gale Weeks. The Pension Board ultimately denied the pension claim, and when plaintiff did not return to work after his sick leave expired he was terminated by Chief Weeks on account of absence without leave. That action of the Chief was upheld by the Little Rock Civil Service Commission, by the Circuit Court of Pulaski County, Arkansas on appeal by plaintiff from the Commission's ruling, and finally by the Arkansas Supreme Court in an opinion rendered on May 24, 1976. Hirrill v. Civil Service Commission of City of Little Rock, No. 75-372, no published opinion.
An earlier mandamus action that plaintiff had commenced in the Circuit Court against the Pension Board was ultimately dismissed by that court without opinion or statement of reasons in 1974. There was no appeal from that dismissal.
After the action of the Arkansas Supreme Court above mentioned, plaintiff commenced this action in the district court in October, 1976. He named as defendants the members of the Civil Service Commission and of the Pension Board, former Chief of Police Weeks, the present and immediate past City Managers of the City of Little Rock, and the members of the Board of Directors of the City, including the Director who serves as honorary Mayor. Federal subject matter jurisdiction was predicated upon 28 U.S.C. § 1343(3) read in connection with 42 U.S.C. § 1983.
The complaint was in two counts, which appear to have been alternative to each other. In both counts plaintiff sought declaratory and injunctive relief together with pecuniary awards, including an award of costs and an attorney's fee. In Count I plaintiff complained of the actions of the Chief of Police and the Civil Service Commission in terminating his employment. In Count II plaintiff complained of the action of the Pension Board in denying him a disability pension. With respect to both counts plaintiff claimed that the administrative actions complained of denied him rights guaranteed by the fourteenth amendment to the Constitution of the United States.
The defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted, Fed.R.Civ.P. 12(b)(6) and for alleged lack of jurisdiction on the part of the district court. 1 In an unpublished opinion the district judge held that the claims set out in both of the respective counts were barred by reference to the principle of res judicata, and the court felt that the holding of the Pulaski County Circuit Court as affirmed by the Supreme Court of Arkansas in No. 75-372 was dispositive of both of plaintiff's claims.
A final order having been entered, plaintiff filed a timely notice of appeal. The disposition by the district court of Count I gives us no trouble, but the problem with respect to Count II is more difficult, and an overall discussion of the entire controversy is required.
The City of Little Rock is the capitol of Arkansas and is the State's largest city. For many years its policemen have been protected by municipal civil service and have also been entitled to certain retirement and pension rights.
The civil service system is administered by an independent agency known as the Civil Service Commission. See Ark.Stat.Ann. §§ 19-1301, as amended, and 19-1601.1, as amended. The system was established originally by Arkansas Act 322 of 1937.
The pension system involved in this case was established by Act 250 of 1937, Ark.Stat.Ann. § 19-1801 et seq. That system is administered by the Pension Board which consists of five members and which is also an independent agency. One of those members is required to be a physician, and another member is required to be a representative of the public who holds no other public office. Ark.Stat.Ann. § 19-1803.
It is the function of the Pension Board to administer the pension fund established by the statute, and also to make pension eligibility determinations. Ark.Stat.Ann. § 19-1804. And that statute expressly provides that no pension determination made by the Board is to be subject to judicial review. Cf. 28 U.S.C. § 1346(d) and § 1501.
A police officer who is discharged or reduced in rank is entitled to written notice, and to an opportunity to be heard before the Civil Service Commission. If the Commission upholds the initial administrative action adverse to the officer affected, he may appeal to the local circuit court. In connection with such an appeal he is entitled to a bench trial de novo on the record, and the circuit judge may also permit the introduction of additional testimony at the request of either party. The judgment of the circuit court may be appealed to the Supreme Court of Arkansas. Ark.Stat.Ann. § 19-1305.
If in an action in a federal court it is claimed that prior action by a state court is res judicata, the district court is required to give full faith and credit to the prior state court action, that is to say, to give to that action the same effect that would be given to it by the state courts in later litigation in those courts. 28 U.S.C. § 1738.
Plaintiff was employed as a patrolman in 1960, and he was on active duty until 1973. In the spring of that year the Chief of Police for some reason changed the duty assignment of plaintiff and directed that he walk a beat along West Ninth Street in Little Rock, which street runs through a high crime area.
Plaintiff availed himself of accumulated sick leave, claiming that due to a condition of his feet he was not able to handle the new assignment which would have been somewhat physically strenuous and which might have exposed the plaintiff to physical encounters with criminals or disorderly persons.
While still on sick leave and prior to his final termination in October, 1973 plaintiff filed his application for a pension with the Pension Board and submitted letters from Little Rock doctors. The Board without having plaintiff examined by its own physician member, as provided by Ark.Stat.Ann. § 19-1809, advised plaintiff that for lack of satisfactory medical evidence his application was being denied "at this time." That initial action was clearly tentative and did not preclude plaintiff from submitting additional material to the Board or insisting upon an examination by the physician member of the Board.
Instead of taking either of those courses, plaintiff commenced his mandamus suit against the Board in the Circuit Court seeking to compel the Board to award him a pension. Plaintiff alleged that the Board action was illegal, arbitrary and in bad faith.
The Board moved to dismiss the complaint.
Before any further action was taken in the mandamus case, the Board caused its physician member, Dr. L. Gordon Holt of Little Rock, to examine plaintiff. Dr. Holt did so and also considered what appears to have been certain depositions that plaintiff had obtained from his own doctors. Dr. Holt did not consider that plaintiff was disabled to an extent entitling him to a pension and so advised his colleagues. Immediately after receiving that advice the Board finally denied the application.
It was after that denial that Chief Weeks terminated plaintiff, after which the proceedings before the Civil Service Commission and in the Arkansas courts took place.
After the Board filed its motion to dismiss the mandamus suit in the circuit court, nothing further was done in that case until June 24, 1974 when the circuit judge to whose docket the case was assigned entered a one line order dismissing the complaint without comment. Plaintiff never made any effort to reopen that case or to appeal the order of dismissal to the Arkansas Supreme Court.
There must, of course, have been some reason for the action of the circuit judge in dismissing the mandamus suit. It is possible that the suit was discontinued by agreement; it is possible that it was dismissed for simple lack of prosecution; or the circuit judge might have concluded that he had no jurisdiction in view of the preclusive language of Ark.Stat.Ann. § 19-1804. We do not know what...
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