Brandon v. Holt

Justice Rehnquist,

dissenting.

The Court’s decision in this case announces two propositions, both of which seem wrong to me, but which in any event are mutually inconsistent.

Part I holds that petitioners are entitled to amend their pleadings in this Court to add the city of Memphis as a party defendant. The Court relies for this holding on Federal Rule of Civil Procedure 15(b), and on citations to texts discussing that Rule. The entire presentation of this issue in this Court consisted of one sentence in petitioners’ reply brief, and therefore the Court is seriously handicapped in deciding the question — particularly since it is the sort of issue with which this Court almost never deals, but which is dealt with regularly by the district courts. I think the Court is wrong in deciding this issue as it does.

Rule 15(b) by its terms deals with “amendments to conform to the evidence.” It states in part:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.”

*475 To come within the purview of the Rule, an issue must have been tried “by express or implied consent of the parties,” and it seems to me that Rule 15(b) must deal with the sort of amendments to the pleadings that have in fact been impliedly consented to by parties already in the case, who raised no objection when the factual matters that would support findings on such an issue were offered in evidence. It cannot, by definition, deal with a motion to add a party defendant, since that sort of an amendment could never have been “tried by express or implied consent of the parties.”

Even if the Rule could be construed to allow the addition of a party defendant, however, the Rule still requires a finding that the added party somehow consented to its addition through the conduct of the trial. The Court glosses over this problem by citing statements of petitioners’ counsel at trial, and some other actions that occurred after trial, ante, at 469-471, but it is hard to see how these references bear on the city’s consent. Given the differences in proof that might be involved in a suit against a city as opposed to a suit against an individual, the opportunity for prejudice is obvious, and I note that the Court reaches its conclusion based upon a trial record that is not nearly as clear as the Court would have one believe.

The Court’s halfhearted and thoroughly unenlightening effort to bring this case within the ambit of Federal Rules would be unfortunate if confined only to the facts of this case, but I fear that it bids fair to spawn uncertainty and upset settled authority in an area with which we as a Court have virtually no experience, and on a point that for all intents and purposes was not even briefed.

Part II of the Court’s opinion announces the novel proposition that in suing a public official under 42 U. S. C. § 1983 , a money judgment against a public official “in his official capacity” is collectible against the public entity that employs the official. This startling doctrine — that a plaintiff may name as defendant only an agent, but nonetheless succeed in im *476 posing damages on the principal who was not named — would seem to be at odds with the most rudimentary notions of pleading, parties, and of due process. It has long been the practice, of course, to sue a government official in his “official capacity” when seeking injunctive relief against a government entity. But I suspect that process arose in no small part from the fact that equity courts traditionally acted in personam, enforcing their decrees through the contempt power over the individual defendant. See H. McClintock, Equity § 34 (2d ed. 1948); W. Stafford, Handbook of Equity, ch. 6 (1934). Money damages suits are different; since the entity can be named as a defendant and its property proceeded against in rem, there is absolutely no need for the rule adopted by the Court today, and indeed, no cases of this Court can be cited in which money damages were awarded from a government treasury when the only defendant named was an individual sued “in his official capacity.”

To support its result the Court relies upon its characterization of three of our recent opinions. Quoting footnote 55 from the opinion in Monell v. New York City Dept. of Social Services, 436 U. S. 658, 690 (1978), it concludes that “our opinion clearly equated the actions of the Director of the Department in his official capacity with the actions of the city itself.” Ante, at 472. But to say that the “actions of the Director” are equated with the actions of the city itself falls far short of saying that an action naming only the Director as defendant can result in the judgment against the city itself.

The Court also relies on the opinion in Hutto v. Finney, 437 U. S. 678 (1978), because, we are told, “we considered it obvious that the State would pay the award because the defendants had been sued in their ‘official capacities.’” Ante, at 472. The Court in Hutto said, at the page cited in the present opinion:

“The order does not expressly direct the Department of Correction to pay the award, but since petitioners are sued in their official capacities, and since they are repre *477 sented by the Attorney General, it is obvious that the award will be paid with state funds.” 437 U. S., at 693 .

Again, this observation is more readily interpreted as an estimate of what would probably happen in the particular case, than as a cryptic announcement of the novel doctrine for which the Court now says that it stands.

The third case upon which the Court relies is Owen v. City of Independence, 445 U. S. 622 (1980), which, as the Court points out, was a suit that named the municipal corporation as a defendant as well as the public officials. The statement of the Court in that case in footnote 18 that “[h]ere, in contrast, only the liability of the municipality itself is at issue” would seem a straightforward recognition of the fact that the city had been named as a defendant, not an announcement of the new rule of pleading for which the Court takes it today.

I think, therefore, that both “prongs” of the Court’s decision are wrong. But right or wrong, they cannot both be applied to the same case. If in fact naming an official as a defendant “in his official capacity” is sufficient to impose liability upon a municipal corporation that was not named as a defendant, there is absolutely no need to amend the pleadings at this late date to add the city as a defendant. And if, at this late date, it is proper on the basis of this record to add the city as a defendant, petitioners have no need of the strained rule deduced from Monell, Hutto, and Owen that one need not name a defendant in a lawsuit in order to take judgment against that defendant.