Reply Brief — New York City Transit Authority v. Beazer

=—T

Boat, U. &

ILEQD

MAY 26 ISTE

| MICHAEL ROBAK, JR.CLERK |

IN THE .

Supreme Court of the United States

Octoser Term, 1977

No. 77-1427

_

New York City Transit Avruorirty, et c’/..

Petitioners,

—_—V —

Cart Beazer, et al.,

Respondents.

PETITIONERS’ REPLY TO RESPONDENTS’ BRIEF

IN OPPOSITION TO CERTIORARI

—

————

AutpHonse E. D’AmsBrose

Attorney for Petitioners

New York City Transit

Authority, et al.

370 Jay Street

Brooklyn, New York 11201

Joan OFFNER

EvGENE FREIDUS

Of Counsel

TABLE OF CONTENTS

TaBLe or Cases

Farnsworth v. Orem City, 421 F. Supp. 830 (D. Utah

ED ~ ‘chdlacteitinntactincaiaitiabiie RT SS ARM kt eee a UD

Forman v. Community Services, Inc., 500 F. 2d 1246

(2d Cir. 1974) rev'd. on other grounds sub nom.

United Housing Foundation, Inc. vy. Forman, 421

SI HIEUT TETIIPUITI ceases bsnciesessstitisnsipusiintetsbanscsintepbtlianendageditiiniciats

Kermit Construction Co. vy. Banco Credito y Ahorro

Ponceno, 547 F. 2d 1 (ist Cir. 1976) ............................

Kostka v. Hogg, 560 F. 2d 37 (1st Cir. 1977) —.............

Lerner v. Casey, 2 N.Y. 2d 355 (1957) ............................

McKnight vy. Southeastern Penn. Transportation Au-

thority, 438 F. Supp. 8138 (D.C. Pa. 1977) —..............

Mitchell v. Libby, 409 F. Supp. 1098 (D. Vt. 1976) ........

Monell v. Department of Social Services, 532 F. 2d 259

(2d Cir. 1976), cert. granted, 429 U.S. 1071 (1977) ....

Mount Health City School District Board of Educa-

tion v. Doyle, 429 U.S. 274 (1976) -....................cceseeeees

Perzanowski y. Salvio, 369 F. Supp. 223 (D. Conn.

TITY -scicnpddnctensetdin Nesialaicsdneapeleeeenitintindiddadetmnshnasalabnadbepeauiienesaiits

Pitrone v. Mercadante, 420 F. Supp. 1384 (E.D. Pa.

TEE ccsthcisiniisaaestpetguasiaiinsninntondiniintimabaamineamnie

Rafferty v. Prince George's County, 423 F. Supp.

I yy

Smetanka v. Borough of Ambridge, 378 F. Supp. 1366

CURD Br, BDI) ccccteectcencececnsssenteseenensneinescenesnsncssenmnanencsste

PAGE

2,3

4,5

PAGE

Snead v. Department of Social Services of the City of

New York, 409 F. Supp. 995, 1001-2 (S.D.N.Y. 1975)

[three judge court] (Mulligan, J. concurring) ........ 3

Turano v. Board of Education of the Island Trees

Union Free School Dist. No. 26, 411 F. Supp. 205

STEINER CITUIIEED * ceciiinsinmscehistinensdsitsistpniemnasibibdbenniiiidiintnaiabiniamee 3

Weathers v. West Yuma County School Dist. R-J-1,

387 F. Supp. 552 (D. Colo. 1974) aff'd 530 F. 2d 1335

A EUDUIE sectdsesisseniilizsdclidnariehictciancchcontalibbihanatenseiionnen 3

Taste or Statutes, Laws, etc.

I a a a islaielanion 1,2

42 U.S.C. §1983, Civil Rights Act of 1871 ................. 1235

New York Public Authorities Law:

RSE Ee Oe en Oa +

TSE TAA ee eee eee 4

ENE NS Ee See ean ee ee 4

1203 .. Pie eee CDOT OE Sen +

1383 .... seaiictaleadianidtdiiaa teaches 4

42 Fed. Reg. 22675, May 14, 1977 (HEW regulation) ... 6,7

In THE

Supreme Court of the United States

Octroser Term, 1977

No. 77-1427

—_>-

New York Crry Transit Auruoriry, et al.,

Petitioners,

—Y.—

Car. Beazer, et al.,

Respondents.

—

PETITIONERS’ REPLY TO RESPONDENTS’ BRIEF

IN OPPOSITION TO CERTIORARI

This reply is submitted to correct certain inaccuracies

and misstatements by the Respondents herein in their

Brief in Opposition to Certiorari.

I.

Respondents’ brief attempts to base jurisdiction on 28

U.S.C. §1331, asserting that the District Court “expressly

rested jurisdiction on §1331”. (Resp’s. brief, p. 16). In

fact, neither the District Court nor the Court of Appeals

based jurisdiction on §1331.

The District Court decision found plaintiffs entitled to

relief “under the Fourteenth Amendment and under 42

U.S.C. §1983” (Petitioners’ Petition, p. 68a*). It is no-

* Unless otherwise indicated, all page references will be to

Petitioners’ Petition for a Writ of Certiorari.

2

where stated that the court’s decision was grounded on

28 U.S.C. §1331.

Likewise, the Court of Appeals for the Second Cireuit

found that the employment policy

. in this action brought under 42 U.S.C. §1983—

violated the equal protection and due process clauses

of the Fourteenth Amendment. (Petition, p. 2a)

Respondents apparently infer §1331 jurisdiction from the

lower courts’ reference to the Fourteenth Amendment.

However, 42 U.S.C. §1983 is expressly designed as a vehicle

for assertion of constitutional rights. It is apparent from

the above quoted language of the Court of Appeals that

the finding of a violation of the Fourteenth Amendment

was an integral part of the finding of a violation of 42

U.S.C. $1983, and did not have reference to any other

jurisdictional base.

Where jurisdiction is found lacking under §1983, juris-

diction under §1331 is not to be lightly inferred. This Court

has recently observed that the question of whether an

action for damages may be maintained under 28 U.S.C.

§1331 against a public agency which is immune from lia-

bility for damages under 42 U.S.C. $1983, is “an extremely

important question” (Mt. Healthy City School District

Board of Education vy. Doyle, 429 U.S. 274, 278 (1976).

Numerous cases have supported the proposition that the

Congressional intent to immunize public agencies from lia-

bility for damages under §1983, would be thwarted by the

use of $1331 as the basis for an award of damages.

The Court of Appeals in Kostka v. Hogg, 560 F. 2d 37,

40 (ist Cir. 1977) stated:

Even if we assume that an implied right of action

might exist [independently] under the Fourteenth

Amendment, the policies underlying the qualified priv-

ilege for officials sued under §1983 would be fully ap-

plicable to a damages action based on the Fourteenth

Amendment. The policies in question . . . have equal

force regardless of the source of the plaintiff's right

of action. See Aermit Construction Co. v. Banco

Credito y Ahorro Ponceno, 547 F. 2d 1 (1st Cir. 1976).

In light of ... the deliberate exclusion of municipalities

from $1983, the power of federal courts to make such

entities liable through a different means should not be

lightly inferred. 560 F. 2d at 44 fn. 6.

See also McA night v. Southeastern Penn. Transportation

Authority, 488 F. Supp. 815 (D.C. Pa. 1977); Rafferty

v. Prince George's County, 423 F. Supp. 1045 (D. Md.

1976); Farnsworth v. Orem City, 421 F. Supp. 830 (D.

Utah 1976); Pitrone v. Mercadante, 420 F. Supp. 1384

(E.D. Pa. 1976); Turano y. Board of Educ. of Island Trees

Union Free School Dist. No. 26, 411 F. Supp. 205 (F.D.N.Y.

1976); Mitchell v. Libby, 409 F. Supp. 1098 (D. Vt. 1976);

Snead v. Depariment of Social Services of the City of

N.Y., 409 F. Supp. 995, 1001-02 (S.D.N.Y. 1975) (three-

judge court) (Mulligan, J. concurring); Weathers v.

West Yuma County School Dist. R-J-1, 387 F. Supp. 552

(D. Colo. 1974), aff'd 530 F. 2d 1335 (10th Cir. 1976);

Smetanka v. Borough of Ambridge, 378 F. Supp. 1366

(W.D. Pa. 1974); Perzanowski v. Salvio, 369 F. Supp, 223

(D. Conn, 1974).

4

Il.

Respondents seek to distinguish the case at bar from

Monell vy. Department of Social Services, 532 F. 2d 259

(2d Cir. 1976), cert. granted, 429 U.S. 1071 (1977) on the

ground that the Transit Authority, unlike the Board of

Education, is an “independent” public body with revenue

raising powers. Respondents chose to omit from their brief

the clear language of the Court of Appeals in Monell:

We think that the Board of Education is no more a

‘person’ than the State University, the City Employees’

Retirement System or the City Transit Authority.

(emphasis added) 532 F. 2d at 263.

The Transit Authority was created by the Legislature

as a “body corporate and politic constituting a public

benefit corporation.” (Publie Authorities Law, §1201.1.)

The Public Authorities Law expressly declares that the

Authority “shall be regarded as performing a govern-

mental function in carrying out its corporate purpose and

in exercising the powers granted by this title.” (P.A.L.

§1202.2) The Authority operates the transit facilities

owned by the City of New York. (P.A.L. §1203) It is com-

posed of members appointed by the governor by and with

the advice and consent of the senate. (P.A.L. §§1201.1,

1263) The Authority performs the functions previously

vested in the Board of Transportation of the City of New

York, a former city agency. (P.A.L. §1202.1)

In Lerner v. Casey, 2 N.Y. 2d 355 (1957), the New York

Court of Appeals observed that the City of New York owns

the rapid transit facilities which constitute the New York

City Transit System, that those facilities are leased by

the City to the Transit Authority, that under the lease,

the City is required to pay the costs of the capital improve-

ments on the transit system, and that the City thus has

a proprietary interest in those facilities. The Court con-

cluded that “the operation of the rapid transit facilities

is a basic governmental service indispensable to the con-

duct of all other governmental as well as private activities

necessary for the public welfare.”

The basic governmental! role of the Transit Authority

closely parallels the governmental] role of the local inde.

pendent school board in Monell. The case at bar thus

shares with Monell the question of jurisdiction over a public

agency and its officials under 42 U.S.C. §1983.

Respondents’ quotation of Forman v. Community Ser-

vices, Inc., 500 F. 2d 1246 (2d Cir. 1974), rev’d on other

grounds sub nom. United Housing Foundation, Inc. v.

Forman, 421 U.S. 837 (1975), for the proposition that

agencies are deemed “persons” under the Civil Rights Act

(Respondents’ Brief, pp. 13-14), is thoroughly misleading,

in view of the repudiation of the Forman language by the

same Second Circuit Court of Appeals in Monell. The

Monell Court specifically stated:

To the extent that the language of the Forman opinion

may be read to imply that all ‘agencies’ are persons

under §1983, 500 F. 2d at 1255, we are not bound by

the broad nature of the generalization and we doubt

that it was so intended. 532 F. 2d at 263.

IIl.

The respondents seek to minimize the effect that the

award of back pay would have on the petitioners, assert-

ing that only five plaintiffs have been awarded back pay.

However, respondents’ characterization of the back pay

as “but a minor adjunct of the equitable relief granted”

is belied by the respondents’ further statement that “the

district court has not yet determined what relief wil! be

afforded the plaintiff class.” (Respondents’ brief, p. 15).

Respondents’ apparent intention to return to the district

court to seek back pay for the entire “plaintiff class”

demonstrates the magnitude of the potential back pay lia-

bility in this case. The impact on the public treasury would

not be diminished in any way by the “equitable” label.

IV.

Respondents’ brief asserts that “recent federal legislative

develornents” concerning employment of the handicapped

0°, ate the necessity for review of the constitutional issues

in thus ease,

The legislative developments referred to by respondents

are a recent regulation promulgated by the Department

of Health, Education and Welfare (HEW) under Section

504 of the Rehabilitation Act of 1973, and an opinion of

the Attorney General declaring drug addicts to be handi-

capped persons within the meaning of the regulation.

The HEW regulation (42 Fed. Reg. 22675, May 14, 1977)

is limited specifically to recipients of federal funds from

HEW. Since the Transit Authority does not receive funds

—

7

from HEW, it is not affected by the HEW regulation.

The Transit Authority is a recipient of funds from the

Department of Transportation (DOT) and will be affected

by regulations yet to be promulgated by that Department.

The extent to which the DOT may require the employ-

ment of drug addicts will not be known until the DOT

regulation is promulgated and interpreted. Speculation as

to the scope and effect of a future DOT regulation is irre|e-

vant to consideration of the significant constitutional issucs

presented by the petition herein.

CONCLUSION

For the reasons stated above, as well as those stated

in the Petition for Certiorari, Petitioners pray that the

Petition for Certiorari be granted.

Respectfully submitted,

Dated: May 1978

AupHonse E. D’Amprose

Attorney for Petitioners

New York City Transit

Authority, et al.

370 Jay Street

Brooklyn, New York 11201

Joan OFFNER

Evcene Freipus

Of Counsel