William J. Warner, Jr., Etc. v. Board of Trustees of the Police Pension Fund of the City of New Orleans, and Its Members, Capt. Alvin H. Rankin, 528 F.2d 505

William J. Warner, Jr., Etc. v. Board of Trustees of the Police Pension Fund of the City of New Orleans, and Its Members, Capt. Alvin H. Rankin

528 F.2d 505

5th Cir.

1976

Check Treatment

William J. WARNER, Jr., et al., etc., Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF the POLICE PENSION FUND OF the CITY OF NEW ORLEANS, and its members, Capt. Alvin H. Rankin, et al., Defendants-Appellees.

No. 74-2303.

United States Court of Appeals, Fifth Circuit.

Feb. 27, 1976.

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 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.

Henry L. Klein, New Orleans, La., for plaintiffs-appellants.

Lamar Richardson, Jr., Metairie, La., for John Suitt.

Richard A. Dowling, Dorothy D. Wolbrette, Bucker F. Amann, Asst. City Atty., New Orleans, La., for Police Pension.

William J. Guste, Jr., Atty. Gen., Baton Rouge, La., Philip D. Lorio, III, Asst. City Atty., New Orleans, La., for defendants-appellees.

Before BROWN, Chief Judge, TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, MORGAN, CLARK, RONEY, GEE and TJOFLAT, Circuit Judges.

PER CURIAM:

This appeal presents the same jurisdictional issues as are involved in

Muzquiz v. City of San Antonio, 5 Cir. 1976, 528 F.2d 499, today decided.

The trial court‘s order dismissing the complaint for want of § 1983 jurisdiction was proper for the reasons stated by us in

Muzquiz.

Affirmed.

JOHN R. BROWN, Chief Judge (dissenting and concurring in part).

I dissent in part and concur in part as set forth in my opinion in

Muzquiz v. City of San Antonio, 5 Cir. 1976, 528 F.2d 499, decided this day.

TUTTLE, Circuit Judge, with whom WISDOM, GOLDBERG and MORGAN, Circuit Judges, join (dissenting).

I dissent from the decision in this case on the grounds stated by me in the dissent in

Muzquiz v. City of San Antonio, et al., 5 Cir. 1976, 528 F.2d 499, announced this day.

THORNBERRY, Circuit Judge (concurring in part and dissenting in part).

I concur in part and dissent in part in accordance with the views set forth in my partial concurrence and partial dissent in

Muzquiz v. City of San Antonio, 528 F.2d 499 (5 Cir. 1976), decided this day.

GODBOLD, Circuit Judge (concurring in part and dissenting in part).

I dissent in part and concur in part as set forth in my opinion in

Muzquiz v. City of San Antonio, 528 F.2d 499 [No. 74-3177] (CA 5, 1976), decided this day.