# Raymond Muzquiz v. City of San Antonio

> Court of Appeals for the Fifth Circuit · October 8, 1975 · 520 F.2d 993

URL: https://www.frixlaw.com/law-library/cases/9462013

## Case

- **Full name:** Raymond MUZQUIZ Et Al., Plaintiffs-Appellants, v. CITY OF SAN ANTONIO Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** October 8, 1975
- **Citations:** 520 F.2d 993; 1975 U.S. App. LEXIS 12447
- **Precedential status:** Published
- **Opinion:** Dissent by Godbold
- **Judges:** Tuttle, Godbold, Morgan
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9462013

## Opinion text

GODBOLD, Circuit Judge
(dissenting in part).
I do not agree that this § 1983 suit can be maintained against the Board of Trustees of the Pension Fund, that is, the Board as an entity or agency. Nor do I agree that there is jurisdiction under § 1983 against the individual members of the Board for any relief other than declaratory and injunctive. I would hold that the only federal jurisdiction is over the individual Trustees of the Pension Fund and then only for purposes of injunctive and declaratory re *1003 lief. In the exercise of that jurisdiction I would direct the entry of a judgment (against only the individual members) declaring that plaintiffs are not entitled to relief and holding that their prayer for an injunction was properly denied. To that extent, and no more, I agree with Judge Tuttle’s opinion on the merits.
In the beginning, it is necessary to correctly identify who the defendants are and what the relief is that is asked. The defendants named in the caption of the complaint are the City of San Antonio, the Board of Trustees of the Pension Fund, and “the members of said Board, individually and in their capacity as members of said Board.” 1 The District Court dismissed the action against the city. In the body of the complaint the plaintiffs refer at times to the Pension Fund as a defendant. This ambiguity makes no substantive difference since for purposes of this case the collective Board of Trustees of the Fund and the Fund itself are the same arm or agency of the city. 2
Judge Tuttle describes this case as an “action seeking a refund” of amounts contributed to the Pension Fund. I have to say, with deference, that this is an incorrect description. The complaint itself shows the suit to be much more than that. Plaintiffs claimed to be entitled to at least the following:
(1) A declaration that the Texas statute, Article 6243f, is unconstitutional (A. 61, 74).
(2) An injunction against the enforcement of that statute (A. 61, 74).
(3) “An accounting, restitution, damages, both general and special, and/or just compensation for the taking of Class Plaintiffs’ private property for public use.” (A. 61; see also A. 72 — 75).
(4) “Damages and/or refunds against the above-styled Pension Fund and/or the City of San Antonio, which is the alter ego of said Pension Fund.” (A. 62).
(5) The imposition of a constructive trust “on the amount of money in the defendant FIREMEN AND POLICEMEN’S PENSION FUND OF SAN ANTONIO, which belongs to Plaintiffs and Class Plaintiffs, equal to the present value of all the money withheld by the Defendants.” (A. 69; see also A. 73).
(6) In Section XVI of the complaint, entitled “Restitution,” (at A. 70), these forms of relief were requested:
Plaintiffs request this Court for a mandatory injunction compelling the Defendants to give an accounting of all the Plaintiffs’ and Class Plaintiffs’ contributions and to refund the amount or present value of said contributions plus the value of the money earned by the Defendants on said funds and/or alternatively a reasonable rate of interest, and/or for just compensation to Plaintiffs for the unconstitutional taking, plus attorney’s fees and costs.
(7) Elsewhere plaintiffs request “a single liquid fund judgment” for amounts contributed, money wrongfully earned thereon, costs and attorney fees and any other relief legal or equitable that the court deems just (A. 70).
(8) And elsewhere plaintiffs ask for a judgment justly compensating them for “special damage or injury” under each one of their five alleged causes of action. The alleged “special damages” include “just compensation for taking of Plaintiffs’ and Class Plaintiffs’ private property for public use,” and also' such sums at the present value of money as will justly compensate plaintiffs and make them whole, considering that some contributions were made in the 1930’s and 1940’s in “100 cent dollars” and are now to be repaid in “19 cent dollars,” and to include the value or amounts of money earned by defendants on contributions (A. 72-75).
First, as to jurisdiction over the Board of Trustees of the Pension Fund — the governmental entity. Monroe v. Pape, *1004 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961), and City of Kenosha v. Bruno, 412 U.S. 507 , 93 S.Ct. 2222 , 37 L.Ed.2d 109 (1973), specifically dealt with the immunity of municipalities, the City of Chicago and the City of Kenosha. Similarly a municipality was involved in Moor v. County of Alameda, 411 U.S. 693 , 93 S.Ct. 1785 , 36 L.Ed.2d 596 (1973), where the Supreme Court held that counties were protected by the same immunity. The rationale underlying the grant of immunity, however, has been held to extend to a wide variety of governmental entities. The Circuit Courts have indicated that the immunity extends to states, 3 agencies and departments of the state, 4 agencies of counties, 5 agencies and departments of cities 6 and various other governmental entities. 7 In determining whether the Board of Trustees of the Pension Fund falls within the Monroe-Kenosha exception, Judge Tuttle essentially ignores this developed area of federal law. He centers upon the phrase “in the nature of a municipality” used in Sterzing v. Fort Bend Independent School District, 496 F.2d 92 (CA5, 1974), with respect to a Texas school district. That phrase is, of course, not a means of analysis but a statement of a conclusion. To reach a decision in this case that the Board of Trustees of the Pension Fund is not “in the nature of a municipality” the majority opinion points out that the Board lacks broad governmental powers and functions. This is not enough. It is true that if a governmental entity, such as a state or city, possesses broad governmental powers and functions it falls within the Monroe-Kenosha municipal corporation exemption. But such characteristics, though sufficient to bring an entity within Monroe-Kenosha, are not *1005 necessary to its being within that exemption. Entities that do not possess broad governmental powers and functions can, and frequently do, fall within the Monroe-Kenosha exemption. 8 In cases involving entities lacking such powers and functions, the deciding factor is not the characteristics of the entity viewed in isolation but rather the purposes and status of the entity revealed by analysis of its relationship to the larger governmental body with which it is connected. The inquiry in such a case becomes whether the public body is so connected — administratively, functionally, fiscally, and in other ways — to a state, city or county that it is not suable under § 1983, not because of its characteristics as an independent entity but because it is in effect an arm or agency of the state, city or county.
This court recently reviewed the rationale of Monroe-Kenosha and the legislative history of § 1983 on which those cases are based and concluded that much wider groups of entities than simply municipalities are outside the term “person” and, therefore, are not suable under § 1983. Adkins v. Duval County School Board, 511 F.2d 690 (CA5, 1975). 9 In reviewing our prior decisions, we noted that municipalities, counties and states certainly fall within the Monroe-Kenosha immunity. Furthermore, since the “state itself [is] obviously not . a ‘person’ . . ., the entities through which the state functions should be excluded.” 511 F.2d at 693 . Consistent with this analysis, since the City of San Antonio is obviously not a “person,” the Board of Trustees of the Pension Fund, as an entity through which that city functions, should be excluded from the term “person.”
There is a close connection between the City of San Antonio and the Pension Fund and the Board of Trustees thereof. The Board of Trustees consists of the mayor of San Antonio, two aldermen, councilmen or commissioners of San Antonio, two active San Antonio firemen and two active San Antonio policemen. Vernon’s Ann.Civ.St. art. 6243f, § 2. Beginning August 1, 1963, the City of San Antonio was required to pay into the Fund sums of money (varying from $30,-000 to $40,000 per month) until “the Board notifies the city that the Fund is actuarially sound.” Vernon’s Ann.Civ.St. art. 6243f, § 4. The city pays in an amount matching the sums deducted from the salaries of firemen and policemen. Vernon’s Ann.Civ.St. art. 6243f, § 4. In addition the city contributes all sums collected from parking meters. Vernon’s Ann.Civ.St. art. 6243f, § 16. The city is additionally authorized to contribute money to the Fund from other sources. Vernon’s Ann.Civ.St. art. 6243f, § 16. The Treasurer of San Antonio is specifically designated to be the Treasurer of the Fund, collecting all money paid into the Fund and, on the basis of a monthly written list from the Board, paying out benefits. Vernon’s Ann.Civ.St. art. 6243f, §§ 5, 6. Any deficiency between the money procured by the Fund and the amount of the pay- *1006 merits made out of the Fund is paid by the City of San Antonio. Vernon’s Ann. Civ.St. art. 6243f, § 21.
The extent of this administrative, functional and fiscal interrelation compels the conclusion that the Board of Trustees of the Pension Fund is in essence an arm of the city. The non-municipal character of the Board of Trustees, discovered by the majority on this appeal, was neither revealed by nor claimed by the plaintiffs below. To the contrary, plaintiffs in their complaint described the city as the alter ego of the Fund (A. 61, 62). They also alleged that the Pension Fund “operates for the benefit of and under the direction of the City of San Antonio.” (A. 66) (emphasis added). In the face of the revealed facts and plaintiffs’ claims, to view the Board as an independent, non-governmental entity for § 1983 purposes overlooks the interrelationship between Fund and city and does violence to the concept of municipal corporation immunity discussed in Monroe and Kenosha. This is not to say that every public entity performing some function that a larger and related governmental entity might perform enjoys Monroe-Kenosha immunity. Necessarily a body of federal law must develop on a case-by-case basis, and, indeed, that process is already well under way. See footnotes 3-8, supra.
The majority describe the function of the Fund as “essentially private,” pointing out that what it does could be as well performed by a non-governmental agency such as a bank or an insurance company. This is a dubious distinction at best, since many functions actually performed by cities — garbage collection and operation of hospitals, for example— can be, and at times are, contracted out to non-governmental agencies or left to the private sector. The Eighth Circuit has recently declined to “import the often nebulous distinction between the proprietary and governmental functions of a municipal corporation into the federal law question of its civil liability under § 1983.” Jorden v. Metropolitan Utilities District, 498 F.2d 514 (CA8, 1974). The term “private” [versus “public”] accomplishes by a semantical device essentially the same importation.
Judge Tuttle relies upon language drawn from a Texas decision. 10 This decision, concerned with Texas constitutional provisions which restrict the types of investments that can be made by the state, counties, cities, towns and other political corporations and subdivisions, involved considerations of state policy and precedent largely unrelated to the question before us. Federal courts must make their own decisions, based upon federal law, of the status of a governmental agency as a “person” under 42 U.S.C. § 1983 . Unless we cling to the rudder of the Supreme Court in Monroe and Kenosha, we will find ourselves lost in a sea of state court decisions concluding that various public entities are or are not “governmental entities” for purposes of some particular state constitutional or statutory provision. State court decisions may guide us in understanding, as a factual matter, the purposes, functions and status of the entity in question. But this court, in resolving the legal issue of Monroe-Kenosha immunity, must take direction from the multitudinous body of federal law, cited above, 11 which has addressed this precise question. No state court, however well respected, can override the body of federal law that guides us with respect to § 1983.
Second, I turn to the majority’s theory that there is jurisdiction over the individual members of the Board of Trustees with respect to all types of relief sought. I believe there is jurisdiction to grant injunctive and declaratory relief against the Trustees but no more than that.
Obviously the Trustees are “persons” in the sense that they are human beings. But before drawing any conclusions about the Trustees’ amenability to suit, *1007 one should consider what is really at stake in this litigation. Upon piercing the veil — indeed there really is no veil— it is easy to perceive what the plaintiffs have in mind. In seeking an accounting, restitution, refunds, damages for wrongful taking, and imposition of a constructive trust, plaintiffs are striking directly for the pocket of the Pension Fund. It is perfectly apparent, for example, that the constructive trust is not sought to be imposed on a fund in the individual pockets and bank accounts of the individual Trustees, but upon the assets of the Pension Fund. 12 The minimum that plaintiffs want in this case is a judgment enforceable against the assets of the Pension Fund through the medium of a judgment naming as judgment debtors the members of the Board of Trustees. 13 This case is quite different from those situations in which plaintiffs have brought damage actions in order to hold officers personally liable for maladministration or abuse of their positions. See, e. g., Wood v. Strickland, - U.S. -, 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975); Monroe v. Pape, 365 U.S. 167, 187 , 81 S.Ct. 473 , 5 L.Ed.2d 492, 505 (1961). Although a federal court has jurisdiction to hear such claims, none appear to be raised in the complaint before us. The Trustees’ presence here is purely nominal. 14
In Warner v. Board of Trustees of the Police Pension Fund of the City of New Orleans, No. 74-2303, a companion case pending before this panel, plaintiffs raised substantive claims like those in the instant case, but they eschewed any charade of “individual liability” of Trustees and met head-on the situation as it really existed. They explicitly stated that they did not desire a judgment against Board members as individuals and had no intent that the Board member defendants ever suffer personal liability. Rather, they said, they desired a judgment that would force the Board members to serve as conduits for the processing of claims that would be paid out of the pension fund and from no other source. The District Judge in that case treated the suit as just what it was, one in which the only claim against the trustees in their official capacities was a prayer for a declaration that would have the effect of requiring the Board to make refunds. 15 The instant plaintiffs have made no such affirmative disclaimer, but their target is unmistakable. One need only read the complaint.
I agree with the Eighth Circuit’s recent statement that “individuals and associations acting under color, of state law are not immune to the sanctions of the Civil Rights Acts and may be sued, unless it is clear to the court that the claim is actually a ruse by which personal jurisdiction over the state is sought to be exercised.” Keckeisen v. Independent School District 612, 509 F.2d 1062, 1064 (CA8, 1975) (emphasis added). Such a ruse is before us today. The kind of attack on the public fisc that is represented by Warner and by this case strikes at the core of what was discussed in Monroe and Moor v. County of Alameda, supra. Both of those decisions traced the legislative history of the Civil Rights Act and found compelling indications that “Congress did not intend . to impose vicarious liability on municipalities for violations of federal civil rights by their employees.” Moor, supra, 411 U.S. at 710 n.27, 93 S.Ct. at 1797, 36 L.Ed.2d at 610 n.27. Judge Tuttle’s opinion trivializes those decisions. Surely Monroe and Moor represent more than a rule of artful pleading — name the city as defendant and one is barred from ac *1008 cess to the public treasury; name city officials as defendants and through a judgment against them condemn public funds.
The majority gloss over the far-reaching implications of their action by noting that in Monroe “the Court seemed not the least concerned about whether substantial damages against the police officers of the City of Chicago would be paid only out of the pockets of the individual officers or out of appropriations made by the city government, or by their insurers.” I agree that in cases where an individual’s abuse of his authority is alleged a municipality’s decision to indemnify or insure its employees is a question that does not concern us. Such payments could be viewed as part of the consideration a city pays for its officers’ services. We would not pay attention to them in passing on the officers’ personal liability, just as we would ordinarily not consider whether the official had taken out his own liability insurance policy. In a case like the present one, however, the question of who it is intended ultimately will pay is crucial, because it raises the possibility that a jurisdictional bar Congress intended to erect will be evaded. There is quite a difference between payment by the city that is voluntarily undertaken as a form of compensation, or for other reasons, and involuntary payment by the city that is inherent in the nature of the plaintiffs’ claim.
The Supreme Court in Edelman v. Jordan, 415 U.S. 651 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974), was faced with an effort similar to the one undertaken in the present case. In Edelman plaintiffs sought, inter alia, to obtain welfare benefits wrongfully withheld by the State of Illinois. To escape the state’s Eleventh Amendment defense, plaintiffs named individual state officials as defendants. The Supreme Court, quoting from Rothstein v. Wyman, 467 F.2d 226 (CA2, 1972), cert. denied, 411 U.S. 921 , 93 S.Ct. 1552 , 36 L.Ed.2d 315 (1973), rejected this:
It is not pretended that these payments are to come from the personal resources of these appellants. Appellees expressly contemplate that they will, rather, involve substantial expenditures from the public funds of the state. .
It is one thing to tell the Commissioner of Social Services that he must comply with the federal standards for the future if the state is to have the benefit of federal funds in the programs he administers. It is quite another thing to order the Commissioner to use state funds to make reparation for the past. The latter would appear to us to fall afoul of the Eleventh Amendment if that basic constitutional provision is to be conceived of as having any present force. Id., at 236-237 (footnotes omitted).
415 U.S. at 665 , 94 S.Ct. at 1356 , 39 L.Ed.2d at 673-674 . If the interpretation of § 1983 set forth in Monroe and Moor “is to be conceived of as having any present force,” then the fiction adopted in the present case must be rejected. Since Edelman was an Eleventh Amendment case and our present inquiry is statutory, I make no contention that Edelman “expands” Monroe . 16 What it does do is to remind us that damage suits purporting to be against officers may in reality be suits against the government itself and that, when this is so, courts do not put on blinders to avoid seeing what is apparent.
As Judge Tuttle points out, we and other courts, post-Kenosha, have held that § 1983 actions can proceed against individual officers as parties defendant for injunctive relief, despite the fact that the ultimate judgment would “surely be felt by the City.” United Farmworkers of Florida Housing Project, Inc., supra. See, e. g., Gresham v. Chambers, 501 F.2d 687 (CA2, 1974); Harper v. *1009 Kloster, 486 F.2d 1134 (CA4, 1973); 17 Cason v. City of Jacksonville, 497 F.2d 949 (CA5, 1973); Bramlet v. Wilson, 495 F.2d 714 (CA8, 1974); Ybarra v. City of Town of Los Altos Hills, 503 F.2d 250 (CA9, 1974). See also Edelman v. Jordan, supra, 415 U.S. at 675 , 94 S.Ct. at 1361 , 39 L.Ed.2d at 679-80 (dictum). Kenosha does not, however, foreclose any and all distinctions between these injunction suits and suits for such monetary relief as pension refunds. In Kenosha the Court said:
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, . . . they are outside of its ambit for purposes of equitable relief as well as for damages.
412 U.S. at 513 , 93 S.Ct. at 2226, 37 L.Ed.2d at 116 (citations omitted). Manifestly, this language, by its terms, merely precludes distinctions based on the relief sought when “municipal corporations” are the defendants. The problem before us is different: when a complaint names a city official as the defendant, what claims for relief should be treated as analytically distinct from claims against the municipality, and what claims should be rejected as subterfuges that contravene the exemption from § 1983 announced in Monroe ?
It would appear that the courts’ willingness to take § 1983 jurisdiction in injunction suits against officers has stemmed from the well-established fiction of Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908). Under that doctrine, a state official who seeks to enforce an unconstitutional act is to that extent “stripped of his official or representative character and is subjected in his person to the consequence of his individual conduct.” Id. at 160 , 28 S.Ct. at 454 , 52 L.Ed. at 729 . The case stands as a familiar cornerstone of our legal system, and one can readily understand why the courts in § 1983 cases have had no qualms about distinguishing between a city and its officials in the injunction context. See Ybarra v. City of Town of Los Altos Hills, supra, at 252-53. At the same time, although these courts have sometimes stated broadly that named city officials may be sued under § 1983, Judge Tuttle points to no decision sustaining an award from municipal funds by means of a suit against municipal officers. 18
The distinction between an injunction against city officials and one against the *1010 city itself is a commonplace and sometimes may have real-life consequences. It may mean, for example, that the relief granted against one official will not bind his successor. See United Farmworkers of Florida Housing Project, Inc., supra, at 802 n.3; cf. Mayor of City of Philadelphia v. Educational Equality League, 415 U.S. 605, 622 , 94 S.Ct. 1323, 1334 , 39 L.Ed.2d 630, 646 (1974); Spomer v. Littleton, 414 U.S. 514 , 94 S.Ct. 685 , 38 L.Ed.2d 694 (1974). The line drawn by the majority is not only unprecedented; it is a pleading device and nothing more, inasmuch as the Pension Fund Trustees are nominal defendants from whose personal assets a recovery is not seriously contemplated.
The action against the Board of Trustees of the Pension Fund, as a Board, should be dismissed. The action against the individual members of that Board should be dismissed insofar as it seeks monetary relief. The action against the individual Trustees for declaratory and injunctive relief, however, is maintainable. With respect to that relief, I reach the merits and concur in Part II of Judge Tuttle’s opinion.
. Seven persons are named as serving in this capacity plus John Does as well.
. However, as discussed below, this ambiguity helps to lay bare the erroneous theory that this is a mere suit against individuals.
. See, e. g., Cheramie v. Tucker, 493 F.2d 586 (CA5), cert. denied, 419 U.S. 868 , 95 S.Ct. 126 , 42 L.Ed.2d 107 (1974); U. S. ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (CA3, 1969), cert. denied, 396 U.S. 1046 , 90 S.Ct. 696 , 24 L.Ed.2d 691 (1970); U. S. ex rel. Lee v. Illinois, 343 F.2d 120 (CA7, 1965); Williford v. California, 352 F.2d 474 (CA9, 1965).
. See, e. g., Cheramie v. Tucker, 493 F.2d 586 (CA5), cert. denied, 419 U.S. 868 , 95 S.Ct. 126 , 42 L.Ed.2d 107 (1974) (state department of highways); United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, Fla., 493 F.2d 799 (CA5, 1974) (state department of pollution control); Sykes v. California, 497 F.2d 197 (CA9, 1974) (state department of motor vehicles); Burris v. State Dept. of Public Welfare of So. Carolina, 491 F.2d 762 (CA4, 1974) (state department of public welfare); Curtis v. Everette, 489 F.2d 516 (CA3, 1973), cert. denied, 416 U.S. 995 , 94 S.Ct. 2409 , 40 L.Ed.2d 774 (1974) (state bureau of corrections); Coopersmith v. Supreme Court, State of Colorado, 465 F.2d 993 (CA10, 1972) (state supreme court, court of appeals, district court, state bar association); Avins v. Mangum, 450 F.2d 932 (CA2, 1971) (state university); Zuckerman v. Appellate Division, Second Department, Supreme Court of State of New York, 421 F.2d 625 (CA2, 1970) (New York Appellate Division); Rosado v. Wyman, 414 F.2d 170 (CA2, 1969), rev’d on other gnds., 397 U.S. 397 , 90 S.Ct. 1207 , 25 L.Ed.2d 442 (1970) (state department of social services); Clark v. Washington, 366 F.2d 678 (CA9, 1966) (state bar association). But see Forman v. Community Services, Inc., 500 F.2d 1246 (CA2, 1974), rev’d on other grds., 421 U.S. 837 , 95 S.Ct. 2051 , 44 L.Ed.2d 621 (1975) (state housing finance agency).
. See, e. g., United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, Fla., 493 F.2d 799 (CA5, 1974) (county area planning board); Robinson v. McCorkle, 462 F.2d 111 (CA3), cert. denied, 409 U.S. 1042 , 93 S.Ct. 529 , 34 L.Ed.2d 492 (1972) (county hospital).
. See, e. g., Garrett v. City of Hamtramck, 503 F.2d 1236 (CA6, 1974) (city planning commission); Hathaway v. Worcester City Hospital, 475 F.2d 701 (CA1, 1973) (city hospital); Lehman v. City of Pittsburgh, 474 F.2d 21 (CA3, 1973) (city civil service commission); Henschel v. Worcester Police Department, 445 F.2d 624 (CA1, 1971) (city police department); Davis v. U. S., 439 F.2d 1118 (CA8, 1971) (city department of public welfare); U. S. ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (CA3, 1969), cert. denied, 396 U.S. 1046 , 90 S.Ct. 696 , 24 L.Ed.2d 691 (1970) (city hospital); U. S. ex rel. Lee v. Illinois, 343 F.2d 120 (CA7, 1965) (city police department).
. See, e. g., Jorden v. Metropolitan Utilities District, 498 F.2d 514 (CA8, 1974) (utilities district providing gas, water and sewer services). Compare Wright v. Arkansas Activities Ass’n, 501 F.2d 25 (CA8, 1974), where it was held that “a regulatory agency established and supported by local school systems in the State on a voluntary basis” which “was not created by the Constitution or by any statute of the State of Arkansas” was not immune from a § 1983 action.
. See, e. g., Sykes v. California, 497 F.2d 197 (CA9, 1974) (state department of motor vehicles); United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, Fla., 493 F.2d 799 (CA5, 1974) (state department of pollution control); Curtis v. Everette, 489 F.2d 516 (CA3, 1973), cert. denied, 416 U.S. 995 , 94 S.Ct. 2409 , 40 L.Ed.2d 774 (1974) (state bureau of corrections); Lehman v. City of Pittsburgh, 474 F.2d 21 (CA3, 1973) (city civil service commission); U. S. ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (CA3, 1969), cert. denied, 396 U.S. 1046 , 90 S.Ct. 696 , 24 L.Ed.2d 691 (1970) (city hospital). For other examples see footnotes 3-7, supra.
. See Comment, Suing Public Entities Under the Federal Civil Rights Act: Monroe v. Pape Reconsidered, 43 U.Colorado L.Rev. 105, 111 (1971): “[I]t has even been suggested that the holding in Monroe should apply only to cities, counties and parishes. However, this attempt to distinguish Monroe cannot be rationally supported within the framework of that case. The Monroe decision was based on the legislative history of the Civil Rights Act . and the reasoning of the Court would require the same result no matter what type of governmental entity was being sued.”
. Bolen v. Board of Firemen, Policemen & Fire Alarm Operators’ Trustees of San Antonio, Texas, 308 S.W.2d 904 (Tex.Civ.App., 1957) (Writ Ref.)
. See footnotes 3-8, supra.
. In fact, that is what the complaint specifically asks.
. As already pointed out, some of the claimed relief is specifically asked against the Pension Fund itself, and the Fund is described as a “defendant.”
. For example, relief is claimed for a period of time extending back to the 1930’s. It is obvious that there have been numerous predecessor trustees for whose acts the present members of the Board could not be held responsible.
. The plaintiffs in Warner also sought a declaration as to the constitutionality of the statute. There, as here, § 1983 jurisdiction exists to enter such a declaration.
. I agree with the majority that neither municipalities nor their officers are wholly immune from suits for damages in federal courts. The only issue before us is the scope of § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343 (3).
. Judge Tuttle’s reliance on Harper is misplaced. In Harper the plaintiffs sought declaratory and injunctive relief only. No attempt was made by the plaintiffs in that case to obtain public funds.
. Sterzing v. Fort Bend Independent School District, 496 F.2d 92 (CA5, 1974), involved a § 1983 action by a school teacher to obtain damages and reinstatement after he had been wrongfully discharged from his teaching position in violation of his constitutional rights. The District Court awarded damages but denied reinstatement. On appeal this court held that the District Court had denied reinstatement for improper reasons and therefore the District Court on remand should “fully reconsider” the appropriate remedy. This court further held that the defendant Texas school district, which is “in the nature of a municipality,” was immune from suit under Monroe-Kenosha. The named school officials, however, were found to be proper defendants. Although the per curiam opinion is somewhat ambiguous, the conclusion that jurisdiction is proper as to the named officials may well have referred only to the remedy of reinstatement to be considered on remand. Such equitable non-monetary relief against officials is of course permissible. The citation in Sterzing, 496 F.2d at 93, n.2 , to United Farm Workers of Florida Housing Project, supra, supports jurisdiction only to this extent. Insofar as the decision may permit the award of monetary damages, it would appear that the money would have had to come from the pockets of the individual defendants rather than the school district. The decision expresses no approval of employing the defendant officials as tools to reach into the school district fisc.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9462013. Public record. Not legal advice.