Raymond Muzquiz v. City of San Antonio

Before TUT- WISDOM, GEWIN, TLE, BELL, THORNBERRY, COLEMAN, GOLD- BERG, AINSWORTH, GODBOLD, MORGAN, CLARK, DYER, RONEY, TJOFLAT, Judges. GEE DYER, Judge: policemen Former San Antonio this class action firemen filed 1961, 167, and U.S. Board of Trustees its Pension Fund 492; 473, Kenosha v. 5 L.Ed.2d seeking damages and S.Ct. individual members Bruno, 1973, 412 93 S.Ct. they obligatorily amounts refunds of the enti- pension during fund 37 L.Ed.2d contributed to involved, of they the Board Trustees their but were here employment Fund, receiving separa- after their Pension and concluded that barred from 6243f, “person” was not a within the tion under Article Vernon’s the Board contemplation agree of 1983. We They Texas Statutes.1 raised a Section Civil undergirding challenges the reasons this hold- myriad of constitutional to with them, iterating ap- we provisions ing the of the statute. and no-refund adopt and them the of granted summary prove district en banc. panel the defendants. A the Court Court, finding of that the this no-refund II. 6243f

provisions Article were reasona- of constitutional, ble affirmed on the jurisdiction With to the court’s merits.2 the over individual members of Trustees, Board of again we agree with took case en The Court this dissent, Judge Godbold’s and his. conclu- juris of posed questions banc because sion that there is of a want in the ever bur importance dictional under Section plain- 1983 to entertain sought under 42 geoning of relief area seeking tiffs’ suit accounting, restitu- questions Two basic U.S.C.A. 1983.3 refunds, tion and all of which “strik[e] First, Board is the of presented. are directly for of pocket the Pension Pension Fund a Trustees of the Fund.” at 1007.5 We only suable under Section 1983? and therefore wish make clear the basis for this Second, jurisdiction over the in is there decision. dividual members of the Board Trus payments tees them to cause require panel opinion argues that it is in- plain from the fund to be made to congruous to hold money paid tiffs as for the “persons” board members are We answer ques into the both fund?4 1983 when some forms of negative. relief, tions in the money damages, such as are sought, and at time the same to hold

I. are “per- board members relief, panel opinion In his dissent when sons” other forms such as restitution, adopted sought. But Godbold the rationale un- is this is not the derlying cities, of our We do grant immunity basis decision. not hold n part: pertinent argument provides 4. oral The Act On withdrew their claims Depart- member of “[N]o either of said said ments or of Fund shall be entitled ever earlier, argument plain- 5. As we noted on oral any refund said Fund on account of tiffs withdrew their demand for If money deducted from that amount of seeking damages were a this pay money their . . which . itself individual members of the Board for their al- public money, proper- declared to be deprivations leged right, of a constitutional ty of said Fund for the benefit of the mem- jurisdiction under § 1983 exist. In that benefits, qualifying bers benefi- their instance, plaintiffs using would not be ciaries.” members the Board as conduits to reach the Plaintiffs, Fund. would have to issues The facts and stated prove fi'iir case and the board members could panel opinion, Muzquiz valid raise defenses. O’Connor See v. Donald- 520 F.2d 993. son, 95 S.Ct. jurisdictional 3. For like reasons also 396; Strickland, 1975, Wood v. considered banc en Warner v. Bd. Tr. of 43 L.Ed.2d 214. Fund, etc., Pol. Pen. 5 day decided, this 528 F.2d 505. of the fund’s status “nonperson” the board members as the status of Trustees. variable, upon dependent “persons” Rather, we hold that sought. the relief pe- that under the Thus, we conclude the nominal this is a suit defendants, case, either manda- culiar facts of the individual board mem- against the indi- injunction directed tory “persons”, who are but instead is a bers board, injunc- or vidual members unnamed, against very an declaratory respect relief with tive and real, defendant, party the Pension Board to a money is tantamount to the statute which, itself, we have held entity an as restitution Therefore, previously, “person”. is not a fund, may entity against an which fail. jurisdiction must court’s under the not be directed against the in- form, In seek jurisdiction. a manda- of the board dividual members ordering the individual tory injunction past contributions to

members -to refund III. substance, However, this is fund. fails, jurisdiction Since we do not nothing more than restitution reach the merits. this ac- allowed the fund itself. If we Affirmed. which proceed, then the bar has tion to interpreta- judicial been created effectively

tions of 1983 would be eliminated, which any action seeks Judge (dis- R. JOHN “nonperson” may a restitution concurring senting and injunc- mandatory framed in terms of a “per- to the respect With responsible tion the officials Judge I concur son” under § the fund from which restitution is opinion. Tuttle’s sought. congressional intent which remedy against to the With impels “nonperson” limitation cannot the Board of members of individual The detailed lightly be so construed. or offi- personal their Trustees in either analysis Judge Godbold’s dissent in the result I concur capacities, cial supports position. opinion for the Judge Dyer’s Part II of ex- I also concur Court. only aspect with one We take issue as to question I reserve the cept concludes that dissent. Godbold injunctions orders or declaratory effect of di- operative have the be dis- do not the board should members of public funds. monetary recting it seeks insofar as missed However, restitution. in the form of lief the action concludes that he also TUTTLE, with whom maintainable, is members WISDOM, MORGAN, GOLDBERG and declaratory and in- insofar as it seeks Judges, join (dissenting). declaratory and in- junctive relief. Apparently With deference I sought is a declaration dissent. junctive relief unconstitutional, because of its concern with the “ever Article 6243f is burgeoning area of relief its enforce- injunction against an the court seems to U.S.C.A. 1983” in na- prohibitory is ment. Article 6243f the clear to have whittled down stat- previous- monies ture, barring refunds litigation utory grant rights of civil un- declaration A into the fund. ly paid unconstitutional, color of state to little more injunc- an der law or that it is n enforcement, empty promise. is in This is so because it sub- tion its plaintiffs’ en- hard of a situation where a to conceive stance a determination from the fund of state person acts color law to restitution titlement determination, we have being governmen- involved in itself. held, because of type body. tal under § is barred gave case of is the treatment It must be borne in mind that all we County There the Moor of Alameda. doing construing statute. Sec- a suit could not be main- Court held that provides: tion 1983 County in Alameda Cali- tained who, “Every person under color of was not a fornia because ordinance, statute, any regulation, cus- there, stop did not “person.” The Court tom, usage, any State or Territo- gave what however. It instead subjects, ry, or causes to be subjected, liberal con- very some be considered any citizen of the United States the word “citizen” struction of other within clause1 in order to diversity jurisdiction any thereof deprivation against Alameda Coun- permit the action rights, privileges, or immunities se- that it theory proceed laws, cured Constitution citizen of the State of California. party injured liable to shall be law, at in equity, suit “person” in In its use word proceeding other proper redress.” did not intend for it to Congress 1983 Supreme The Court has held that a have an arcane restricted municipal corporation “person” a the on the basis of effect be determined of contemplation this statute. might have the cause of action created 365 U.S. 81 S.Ct. municipality. moneys of a public (1961); City 5 L.Ed.2d 492 of Keno- writes a new definition majority Bruno, sha v. 412 93 U.S. S.Ct. breathing per- true live and says (1973). 37 L.Ed.2d 109 The Court has created son who is a trustee of a fund also that a county held sufficiently “person” is not a because municipality like a municipality that must also be permit Congressional policy the is not accounted be a non-person under this a suit maintained the to be Alameda, section. Moor v. of itself. (1973). approach is even less understand- The Court has not held able true in light of a post-Kenosha merely cannot be sued case of Supreme because Court. In Bradley Board, means of the suit School fisc through would be reached eq- court’s 40 L.Ed.2d 476 (1974), the Court uity powers. permitted holding, Such a as my in a suit under 1983 to require is the of the payment decision of an attorney’s fee to be here, charged flies face of a literal reading the Board itself. I language: of “Every person, would who, suppose that no member of this under color of any statute Court would think this of board trustees shall be liable in of a pension fund would be less a “per- in equity, or other son” [a] than the Board of Education of the of Richmond. See Davis v. Bd. of proceeding for City redress.” School Commissioners of Mobile County, which, The error respectfully, I think (5th Cir. in which a the court has made here is that it treats panel of this Court recognized the identi- granting 1983 as statute or creating cal right recovery attorneys’ of fees some of sort immunity to a municipal against a board of education. corporation. It nothing does of the sort. ’ It merely does not include a municipal Pretermitting entirely question corporation within “person.” the word whether the “Pension Fund (cid:127) clearest evidence the Supreme of qualify Trustees” a person, would as I Court’s understanding of this basic fact no but doubt that the members original juris- (1) “The district courts shall have citizens different States.” 1332(a)(1). diction all civil where the actions matter 28 U.S.C. § controversy sum or exceeds value of $10,000 . . . and is between— Board, Moreover, seriously sued in their individual ca- practi- I doubt the trustees, are persons. ability cal pacities and Courts to determine of Edgefield v. Bd. of Trustees when an action falls See Burt within the ambit of (4th the this case. Co. Court’s decision In a apparently decision that is not though, by This is even overruled so them, by the we suing today, if Court held that plaintiff successful individ- able, government ual equity, may at officials be ob- through get ject injunctive they administering.2 Such funds even that relief would have much Supreme was the when case injunction the same effect as an directed carved Eleventh exception out the government body itself. United (a significant more Amendment much re- Housing Fla. sult, Project, Farmworkers of involved, since the Constitution Beach, Delray Inc. v. a stat- rather the construction of (5 1974). Indeed, ute) prison Young, cases parte Ex cases, school (1908). only to name a couple 52 L.Ed. examples, had trial court hold that clearly officials will as jurisdiction of this case quire expenditures by those officials from the applicable government coffers (con- as in action before us. We have also curring part and upheld equitable monetary awards of re- Judge I Part I concur in directed individual officials lief agreeing with the conclu- Dyer’s opinion, despite money the fact that would Fund Pension sion that San Antonio ultimately paid, through formal or in- sub- Trustees is not arrangements, formal indemnification 1983. ject to under 42 U.S.C. § governmental “non-person” involved. however, am to find, that I unable I Collier, g., (5 E. Gates v. opinion, Part II of that concur in 1973), Cir. vacated and remanded on oth- amenability of individual with the deals grounds, (5 1975) er (en Cir. Judge to 1983 suit. Board members § banc); Sweeny Ind. Harkless v. observation indisputably Tuttle's correct (5 Cir. “persons” under that such individuals to that it is suggest I do not mean of that term definition any reasonable distinctions between to draw impossible conclude alone seems to sufficient us today. such cases and the one before the Court certain the issue. However that cases fore- is, But I do contend these reality”, “in may be that upon based rela- non-per- close a distinction governmental at a one directed logical of whether tively clear and basis son, defend- is that the named the fact ultimately will come the relief equita- whom ants, ones against and the who is the immedi- If persons. from run, are ble relief would subject applicable order con- ate the statute to be Congress intended he entity with which is as- with its than in accordance strued other Instead, will be meaning, sociated. Courts it could natural and literal Court, wrestle, as has with give forced to this given could now —some —or vague question of wheth- and elusive that objective basis conclusion. “in reality” an action is “in sub- er none. There is (1955); Education, Northcross v. Board of See of Allen Jail Incarcerated Men Co. Fair, (6th (6th 1973).” (Emphasis origi F.2d 19 Cir. 507 F.2d 281 in which the nal) 507 court said: F.2d 288. impact I see no valid distinction between the however, may, equi “A award federal suits, by jail local on funds caused reform rein- officials, table relief local even pay suits, desegre- statement and back school impact govern it will have a severe on local gation impact pension suits and the funds, infringing policies mental restitutionary fund that a here award behind 1983. See v. Board Educa Brown cause. tion, 99 L.Ed. 1083 injunctive declaratory or a non- Is and relief stance” one that, officials, public ordinarily to me at least as person. availa- It seems decisions mentioned if long earlier law, ble under unavailable the re- as the thwart in- attempts to impact upon have some good remain lief will financial governmen- actions ques- direct fisc? The answer this public will cause the Monroe, Courts “non-persons” in recognizing tal tion lies that Acts, and result in decisions great difficulty Rights protect its roots Civil consistency and lacking in both municipal treasury that are logic. Also, injunctive and declarato- officer is ry public reasons, I dissent from Part For these if it is a sham available device to reach into the opinions. II of the Court’s public treasury GODBOLD, Judge (concurring pursuit a claim for But impact treasury on public dollar equitable from bona fide or de- sulting fully join I am unable to claratory requires public relief that offi- Dyer’s despite the fact out cers make restitution large part dissenting opin- adopts in treasury is another matter. Monroe did opinion. panel ion I I filed not deal with such claims. Kenosha did disagree holding with the with implemented the policy broaden declaratory and into a policy broader of insulat- I see Trustees. now ing public impact funds from the of non- can dis- clearly, hopefully issue more damage claims asserted clearly, my than in earlier cuss it more anything dissent. the extent treasury To Arguably does not have original said in dissent is broader possesses full title funds that it but in said, here it. what is recede equity principles or under property is bound to turn others over to Monroe v. entitled to them. Thus it be said 473, 5 492 (1961), proscribed that funds are part pub- such not 1983 § suits cities for damages. at all. lic fisc But one need embark It did not decide whether its proscription on property concepts. the intricacies of applied to forms of relief other than fundamentally, protects More Monroe damages. City of Bruno, Kenosha v. 412 damages treasury from in the nar- 507, 37 L.Ed.2d 109 sense, non-damage row claims. (1973), answered that question by hold- recognized We and followed this dis ing that suit against in a city the Mon- in Sweeny tinction Harkless v. Ind. roe rule applies and declar- (CA School F.2d 319 atory sought city. Ke- denied, 991, 91 cert. 400 U.S. S.Ct. nosha was not concerned with whether (1971). Part In II of that injunctive and declaratory relief is avail- prohib case we held that did not Monroe able officers. against public 1983 suits officials for Kenosha, Since both the Supreme Court relief, equitable and in Part III we held and this court approved injunctions turning improperly that over to dis issued against public officers under charged pay teachers their back was an § 1983. v. Lopez, Goss part equitable integral remedy of (1975) (school 42 L.Ed.2d 725 parts reinstatement. These Harkless officials); McDonnell, Wolff v. 418 viable, remain unaffected Kenosha.1 94 (1974) L.Ed.2d 935 ultimate this case (prison The result in is an officials); United Farmworkers banc. v. en City by Delray Beach, overreaction 493 F.2d 799 restitution, (CA 5, eq- assorted sought 1974) plaintiffs (municipal officials). Harkless, supplanted Part I of in which we held that a Adkins Kenosha. See v. Duval suit Board, could (CA be maintained the School has, equitable District for been Orleans, La., Klein, New Henry L. relief, damages of almost ev- uitable plaintiffs-appellants. ingenui- ery variety kind and legal panel opin- Metairie, La., of a draftsman. Richardson, Jr., Lamar claims, ion, damage ignoring the charac- for John Suitt. “action seeking terized the suit as an D. Wol- Dowling, Dorothy A. Richard upheld jurisdiction, making refund” and Amann, City brette, Bueker F. Asst. seeking no distinction between suits La., Orleans, for Police Pen- Atty., New damages public treasury from the and sion. not for damages suits that nevertheless Guste, Jr., Gen., Atty. J. Ba- William impact on the have a dollar fisc. Lorio, III, La., D. Rouge, Philip Asst. ton open possibility This left that in fu- Orleans, La., for New defend- City Atty., damages might ture cases judgments ants-appellees. be entered offi- BROWN, Before Chief TUT- cers and to be enforced GEWIN, BELL, TLE, WISDOM, close off this end public treasuries. To COLEMAN, GOLD- banc, run around Monroe the court en AINSWORTH, GODBOLD, BERG, recognizing while that the now CLARK, RONEY, DYER, MORGAN, proceeded give damages, disclaim has TJOFLAT, Judges. GEE and scope than that case wider have. was intended to PER CURIAM: summary, holding In I concur in the jurisdic- the same appeal presents the Pension Fund is not in Muzquiz issues as are involved tional implicit holding and in the City Antonio, proscribes suit today decided. Trustees dissent from dismissing the The trial court’s order holding proscribes 1983 also complaint for want of 1983 the individual officers for by us for the reasons stated proper equitable restitution and other relief not Muzquiz. in the nature of Affirmed. (dis- R.

JOHN concurring senting and part and concur I dissent my opinion set forth San decided this day. WARNER, Jr., al., etc., et William J. Plaintiffs-Appellants, TUTTLE, Judge, with Circuit whom v. MORGAN, WISDOM, GOLDBERG TRUSTEES OF the PO-

BOARD OF Judges, join (dissenting). LICE PENSION FUND OF CITY in this case I dissent from the decision ORLEANS, NEW and its mem- OF grounds stated the dis Rankin, al., bers, Capt. Alvin H. et Antonio, Muzquiz City sent in of San Defendants-Appellees. al., an et 74-2303. No. day. nounced Appeals, United States Judge (con- Fifth Circuit. curring in part). Feb. I concur in part and dissent in part

accordance with the views set forth in my partial concurrence partial dis- sent in

Case Details

Case Name: Raymond Muzquiz v. City of San Antonio

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 27, 1976

Citation: 528 F.2d 499

Docket Number: 74--3177

Court Abbreviation: 5th Cir.