UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: February 24, 1975.
GERARD AND GEMMA BRAULT, PLAINTIFFS-APPELLANTS,
TOWN OF MILTON, DEFENDANT-APPELLEE
Appeal from the order of the United States District Court for the District of Vermont, Albert W. Coffrin, Judge, dismissing complaint against municipality for alleged violation of federal rights for failure to state a claim upon which relief may be granted.
Smith, Oakes and Timbers, Circuit Judges. Timbers, Circuit Judge, dissenting.
SMITH, Circuit Judge:
Gerard and Gemma Brault initiated suit against the Town of Milton, Vermont, in the United States District Court for the District of Vermont to recover damages for the Town's alleged infringement of their property rights under the Due Process Clause of the federal Constitution's Fourteenth Amendment. On the defendant's pretrial motion, the court, Albert W. Coffrin, Judge, dismissed the complaint on October 8, 1974, for failure to state a claim on which relief may be granted. Fed. R. Civ. P. 12(b) (6). The court held in its one-sentence order that 42 U.S.C. § 1983,*fn1 cited by the plaintiffs in their complaint as creating a cause of action, does not authorize a suit against the Town because a municipality is not a "person" for purposes of the statute's designation of potential defendants. On appeal the Braults concede, and quite correctly,*fn2 the validity of this rationale. They do take issue, however, with the court's failure to recognize an alternative theory contained in their complaint: that the Fourteenth Amendment itself gives rise to a claim for relief based upon its violation, and that the district court has federal question jurisdiction, 28 U.S.C. § 1331 (a),*fn3 over any such claims where the amount in controversy exceeds $10,000. We agree that the appellants have stated a cause of action for which the United States Constitution authorizes that relief may be granted. In ruling on the Town's motion to dismiss, the district court was obliged to accept the plaintiffs' representation that the amount in controversy exceeded the jurisdictional minimum prescribed by 28 U.S.C. § 1331 (a). The district court therefore erred in dismissing the complaint in the absence of any showing that the amount in controversy was not as alleged. We reverse the court's order dismissing the complaint and remand for trial.
In May, 1967, the Town of Milton secured a temporary injunction prohibiting the Braults from using their land as a trailer park. The injunction was predicated on a zoning ordinance adopted by the Town's voters in the same year. In 1971, the Vermont Supreme Court vacated the injunction (made permanent in 1969) because the vote adopting the ordinance was taken at a town meeting of which those eligible to vote had not received adequate notice. Town of Milton v. Brault, 129 Vt. 431, 282 A.2d 681 (1971).*fn4 On remand, the Chittenden County court awarded the Braults $86,411 pursuant to 12 Vt. Stat. Ann. § 4447, which then provided:
When an injunction in chancery is dissolved by final decree in favor of the defendant, he shall be entitled to recover his actual damages caused by the wrongful issuing of the injunction.
The Vermont Supreme Court held on appeal, however, that the municipality was immune from liability except to the extent that it waived such immunity by voluntarily filing an injunction bond. The Braults' recovery was thus limited to the amount of the bond, or $500. Town of Milton v. Brault, 132 Vt. 377, 320 A.2d 630 (1974).
Soon after the Vermont Supreme Court denied their motion for reargument, the Braults filed in federal district court the suit now before us. In this suit they alleged for the first time that their federal constitutional rights had been violated.*fn5
10. The acts of Defendant Town in obtaining and maintaining the injunction is referred to under a zoning ordinance that they knew, or should have known, to be invalid, deprived Plaintiffs of the use, enjoyment, profits and value of property without due process of law in contravention of the 14th Amendment of the Constitution of the United States [.]
The plaintiffs' argument, that they have a cause of action based directly on the Fourteenth Amendment's Due Process Clause and over which the court has jurisdiction under 28 U.S.C. § 1331, was not presented in the complaint with the utmost clarity:
1. This is an action for damages under 42 U.S.C. § 1983 and this Court is vested with jurisdiction pursuant to 28 U.S.C. § 1331, the amount in controversy being in excess of $10,000.00 and the controversy arising under the Constitution and laws of the United States [.]
Admittedly, despite the later mention of due process rights in paragraph 10 of the complaint, quoted supra, the complaint may at first glance appear to be stating only a single cause of action -- one under 42 U.S.C. § 1983. Closer examination, however, would reveal that the plaintiffs are also pursuing a separate claim for unconstitutional deprivation of property with jurisdiction based on 28 U.S.C. § 1331. First of all, the complaint mentions only one jurisdictional provision (28 U.S.C. § 1331) and that provision is not the one implementing the cause of action created by 42 U.S.C. § 1983 (see 28 U.S.C. § 1343*fn6). Secondly, if the only cause of action were one based on § 1983, the complaint's assertion of more than $10,000 in controversy would be irrelevant because § 1983 suits may proceed regardless of the amount in controversy. Lynch v. Household Finance Corp., 405 U.S. 538, 31 L. Ed. 2d 424, 92 S. Ct. 1113 (1972); Douglas v. City of Jeannette, 319 U.S. 157, 161, 87 L. Ed. 1324, 63 S. Ct. 877 (1943). The artlessness of the complaint's draftsmanship notwithstanding, "substantial justice" required that the district court take cognizance of the plaintiffs' § 1331-related theory of relief. Fed. R. Civ. P. 8(f); 2A J.W. Moore, Federal Practice para. 8.34 (2d ed. 1974). At the outset, then, we reject the appellee's contention that the appellants are precluded from pursuing this theory on appeal by their alleged failure to raise it first in the court below.
In holding that the plaintiffs' complaint states a cause of action stemming from the Due Process Clause of the Fourteenth Amendment, we are guided by the Supreme Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). The plaintiff Bivens alleged that federal narcotics agents acting under color of federal law illegally entered and searched his apartment and manacled and arrested him for supposed narcotics violations. As in the instant case, only 42 U.S.C. § 1983 was cited in the complaint's jurisdictional statement as creating the cause of action. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 276 F. Supp. 12, 13 (E.D.N.Y. 1967). This provision was obviously inapplicable, however, for its scope is very expressly limited to deprivations of federal rights under color of state or territorial law. The district court so held, id. at 13-14, but it went on to find, on the basis of the complaint's reliance on 28 U.S.C. § 1331 (as well as 28 U.S.C. § 1343) and allusion to a violation of "constitutional rights," that Bivens was also resting his suit for damages directly on the Fourth Amendment with its prohibition against "unreasonable searches and seizures." The court rejected this latter claim, though, as lacking both a substantive source and jurisdictional basis. Id. at 14-16. As the Court of Appeals indicated, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 409 F.2d 718, 719-20 (2d Cir. 1969), the district court's alternative, jurisdictional ground for dismissing the Fourth Amendment-based claim ran afoul of Bell v. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. 773 (1946), which established that federal courts have federal question jurisdiction over a cause of action arising out of the Constitution. This court agreed, on the other hand, with the district court's resolution of the issue not reached in Bell : whether a cause of action based on a provision of the Constitution was one upon which relief could be granted. Id. at 720-26.
In reversing, the Supreme Court addressed itself only to the viability of causes of action predicated on the Fourth Amendment. The Bivens Court stated its rationale for upholding the complaint against a motion to dismiss, however, in terms inviting broader application:
Of course, the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation. But "it is . . . well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Bell v. Hood, 327 U.S., at 684 . . . The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. [Citations omitted] . . . "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 163, 2 L. Ed. 60 (1803).
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396-97, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). We conclude, therefore, that the Braults' invocation of the Fourteenth Amendment's Due Process Clause as the source of their claim for relief comes within Bivens ' sweeping approbation of constitutionally-based causes of action.
As the Court in Bivens indicated, however, the adjudication of some claims rooted in the Constitution may be precluded by "special factors counselling hesitation in the absence of affirmative action by Congress." Id. at 396. In the case now before us, the appellee has brought to the court's attention only one potential "special factor": the defendant is a municipality. Since Congress excluded municipalities from the scope of 42 U.S.C. § 1983,*fn7 Monroe v. Pape, 365 U.S. 167, 187-92, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), it may be argued that courts should be slow to infer that Congress meant in later enacting 28 U.S.C. § 1331*fn8 to provide an alternative device to sue municipalities for violations of federal rights. See Perzanowski v. Salvio, 369 F. Supp. 223, 230 (D. Conn. 1974). If a construction of § 1331 as authorizing such suits would render meaningless the immunity enjoyed by municipalities under § 1983, we might find this argument more persuasive. This is not in fact the case, however, for § 1331, with its amount in controversy requirement,*fn9 would preserve the municipality's § 1983 immunity as to actions not involving this minimum sum; suits based on § 1983, it will be remembered, see supra, need not satisfy an amount in controversy requirement. Bell v. Hood and Bivens itself, moreover, caution against assuming that Congress' exemption for municipalities under § 1983 informed its efforts four years later in establishing federal question jurisdiction. For while Congress placed suits against federal officials beyond the scope of § 1983 with no less -- and, indeed, probably far more -- clarity than it proscribed suits against municipalities, the Court in these two cases confirmed that § 1331 vested federal jurisdiction over civil rights actions against federal officers. We reject the view, therefore, that municipalities enjoy any special status which would immunize them from suits to redress deprivations of federal constitutional rights. See City of Kenosha v. Bruno, 412 U.S. 507, 516, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973) (concurring opinion of Brennan & Marshall, JJ.);*fn10 Dupree v. City of Chattanooga, 362 F. Supp. 1136, 1138-39 (E.D. Tenn. 1973); Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv. L. Rev. 1532, 1558-59 (1972).
The plaintiffs have stated a cause of action under the Due Process Clause of the Fourteenth Amendment for which relief may be granted. We therefore reverse the district court's dismissal of the complaint and remand for trial.
Reversed and remanded.
Reversed and remanded.
TIMBERS, Circuit Judge, dissenting:
With deference, I respectfully decline to join in the majority's discovery of a federal cause of action for damages against a municipality springing directly from the due process clause of the Fourteenth Amendment.
Despite the majority's ingenuity in suggesting that such a cause of action may be supported by what it characterizes as the "sweeping approbation of constitutionally-based causes of action" which the majority finds in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396-97, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), it seems to me that the majority has minimized the admonition of the Supreme Court that constitutionally derived remedies should not be lightly implied where Congress has expressed a contrary intent. 403 U.S. at 396, 397. There is present in the instant case precisely that "affirmative action by Congress", 403 U.S. at 396, counselling hesitation which was absent in Bivens.
The Supreme Court has held that Congress, in implementing the Fourteenth Amendment through enactment of 42 U.S.C. § 1983 (1970) and its predecessors, specifically intended to exempt municipalities from liability in damages for violations of the Fourteenth Amendment. Monroe v. Pape, 365 U.S. 167, 187-92, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961); see City of Kenosha v. Bruno, 412 U.S. 507, 512-13, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973). The majority's holding today that creates such liability stemming directly from the Fourteenth Amendment strikes me as wholly ignoring this Congressional intent. Cf. Perzanowski v. Salvio, 369 F. Supp. 223, 229-31 (D. Conn. 1974) (Clarie, Chief Judge).
Such holding, virtually of first impression, surely will work mischief in every municipality in the land.
I respectfully but most emphatically dissent.