holding that neither the city nor the Board of Trustees of the policeman and fireman pension fund was a § 1983 “person”
How later courts described this case
- holding that neither the city nor the Board of Trustees of the policeman and fireman pension fund was a § 1983 “person”
- adopting in pertinent part 520 F.2d 1002, 1009 (Godbold, J., dissenting)
Written by the judges who cited it.
Distinguished
Distinguished by Richard Franklin Miller v. Dale Carson, Individually and in His Capacity as Sheriff of Duval County, Florida, 563 F.2d 741 (1977)
This Court held that the suit would fail because the relief requested was “tantamount to a money judgment for restitution against the fund”. 528 F.2d at 501. Muzquiz is distinguishable from the case we face now: the plaintiffs seek no transfer of money to themselves.
The opinion
GODBOLD, Circuit Judge
(concurring in part and dissenting in part).
I am unable to fully join in Judge Dyer’s opinion despite the fact that it adopts in large part the dissenting opinion that I filed to the panel opinion. I disagree with the holding with respect to declaratory and injunctive relief against the individual Trustees. I now see this issue more clearly, and hopefully can discuss it more clearly, than in my earlier dissent. To the extent that anything said in the original dissent is broader than what is here said, I recede from it.
Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961), proscribed § 1983 suits against cities for damages. It did not decide whether its proscription applied to forms of relief other than damages. City of Kenosha v. Bruno, 412 U.S. 507 , 93 S.Ct. 2222 , 37 L.Ed.2d 109 (1973), answered that question by holding that in a suit against a city the Monroe rule applies to injunctive and declaratory relief sought against the city. Kenosha was not concerned with whether injunctive and declaratory relief is available under § 1983 against public officers. Since Kenosha, both the Supreme Court and this court have approved injunctions issued against public officers under § 1983. Goss v. Lopez, 419 U.S. 565 , 95 S.Ct. 729 , 42 L.Ed.2d 725 (1975) (school officials); Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974) (prison officials); United Farmworkers v. City of Delray Beach, 493 F.2d 799 (CA 5, 1974) (municipal officials).
Is injunctive and declaratory relief against public officials, ordinarily available under § 1983, unavailable if the relief will have some financial impact upon the public fisc? The answer to this question lies in recognizing that Monroe , and its roots in the Civil Rights Acts, protect the municipal treasury against damages. Also, of course, injunctive and declaratory relief against a public officer is not available under § 1983 if it is a sham device to reach into the public treasury in pursuit of a claim for damages. But dollar impact on the public treasury resulting from bona fide equitable or declaratory relief that requires public officers to make restitution out of the public treasury is another matter. Monroe did not deal with such claims. Kenosha did not broaden the policy implemented by Monroe into a broader policy of insulating public funds from the impact of non-damage claims asserted under § 1983.
Arguably a city treasury does not have full title to funds that it possesses but in equity or under principles of restitution is bound to turn over to others property entitled to them. Thus it might be said that such funds are not part of the public fisc at all. But one need not embark on the intricacies of property concepts. More fundamentally, Monroe protects the treasury from damages in the narrow sense, not from non-damage claims.
We recognized and followed this distinction in Harkless v. Sweeny Ind. School Dist., 427 F.2d 319 (CA 5, 1970), cert. denied, 400 U.S. 991 , 91 S.Ct. 451 , 27 L.Ed.2d 439 (1971). In Part II of that case we held that Monroe did not prohibit § 1983 suits against public officials for equitable relief, and in Part III we held that turning over to improperly discharged teachers their back pay was an integral part of the equitable remedy of reinstatement. These parts of Harkless remain viable, unaffected by Kenosha. 1
The ultimate result in this case is an overreaction by the Court en banc. The plaintiffs sought restitution, assorted eq *505 uitable relief, and damages of almost every kind and variety within the ingenuity of a legal draftsman. The panel opinion, ignoring the damage claims, characterized the suit as an “action seeking a refund” and upheld jurisdiction, making no distinction between suits seeking damages from the public treasury and suits not for damages that nevertheless might have a dollar impact on the fisc. This left open the possibility that in future cases judgments for damages might be entered against individual city officers and sought to be enforced against public treasuries. To close off this end run around Monroe the court en banc, while recognizing that the plaintiffs now disclaim damages, has proceeded to give to Monroe wider scope than that case was intended to have.
In summary, I concur in the holding that the Pension Fund is not a person and in the implicit holding that § 1983 proscribes suit against the individual Trustees for damages. I dissent from the holding that § 1983 also proscribes suit against the individual officers for restitution and other equitable relief not in the nature of damages.
. Part I of Harkless , in which we held that a suit could be maintained against the School District for equitable relief has, of course, been supplanted by Kenosha. See Adkins v. Duval County School Board, 511 F.2d 690, 692 (CA 5, 1975).