The opinion of the court was delivered by: WEINFELD
EDWARD WEINFELD, District Judge.
This belated motion by the City of New York defendants to dismiss the complaint on the ground that the court lacks jurisdiction to grant plaintiff's claim for damages requires a brief history of this litigation, now approaching its fourth year, in which time the case has been before the Supreme Court twice without a final determination on the merits.
Plaintiff, a Civil Service social worker in the employ of New York City's Department of Social Services, was placed on involuntary leave without a hearing. She commenced this action on October 25, 1972, upon a claim that section 72 of the New York Civil Service Law, which governs leaves of absence for mentally unfit Civil Service employees, was unconstitutional. She moved for (1) the convening of a three-judge court, and, pending the final determination of the merits by the panel, (2) a preliminary injunction and a temporary restraining order directing defendants to reinstate plaintiff with back pay. Jurisdiction was predicated upon 28 U.S.C., sections 1331, 1343(3) and 1343(4) and 42 U.S.C., section 1983.
The defendants cross-moved to dismiss the complaint pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure on the grounds that the court lacked subject matter jurisdiction and the complaint failed to state a claim upon which relief may be granted. The motion to convene a three-judge court was granted, but the motion for temporary injunctive relief directing her reinstatement with back pay was denied.
Thereafter, the defendants argued before the three-judge court for dismissal of the action upon the grounds (1) that the statute comported with due process requirements, (2) that plaintiff failed to exhaust administrative remedies, and (3) that this court should abstain from a determination on the merits in order to afford the state courts an opportunity to construe section 72 to meet plaintiff's constitutional challenge. The three-judge court rejected the defendants' contentions, declared section 72 of the New York Civil Service Law unconstitutional, enjoined defendants from taking any action thereunder, and ordered that plaintiff be reinstated with back pay for the period of her involuntary leave of absence.
Upon appeal, the Supreme Court vacated the judgment and remanded the case for further consideration of the due process issue in the light of its decision in Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974).
After hearing further argument following the remand, this court, holding that there were critical differences between Arnett and this case, adhered to its prior ruling that the New York statute did not comply with due process requirements.
Upon defendants' appeal from this determination, the Supreme Court again vacated the judgment, this time remanding the case to the three-judge court for consideration of the question of mootness.
While the Supreme Court did not identify the mootness issue, evidently its remand was based upon the fact that plaintiff had been reinstated to her former position. The three-judge court, upon this second remand, heard argument and determined on July 22, 1975 that the action was not moot since plaintiff's original prayer for relief, in addition to seeking a declaration that section 72 was unconstitutional, also sought reinstatement to her former position with back pay.
Although plaintiff had been reinstated, the "City stubbornly [refused] to give her back pay," which had been directed by the three-judge court in its original disposition in March 1973. Accordingly, the three-judge court held that plaintiff was entitled to judgment awarding her back pay.
Up to this point in the litigation, the defendants in the various challenges to plaintiff's claims for relief never made any contention as to lack of jurisdiction or failure to state a claim with respect to the demand for back pay. Following the three-judge court's latest ruling that the action was not moot, the plaintiff in August 1975 proposed a judgment which, among other matters, declared the state statute unconstitutional, directed plaintiff's reinstatement (which already was in effect), adjudged plaintiff entitled to recover $12,630 in back pay from the municipal defendants, and awarded her sick leave and vacation benefits of which she had been deprived during her involuntary leave of absence. After a delay occasioned by dilatory tactics of the Corporation Counsel assistants, during which they failed to object or consent to the form of the proposed judgment, plaintiff's counsel was forced to move for the entry of a formal judgment to effectuate this court's ruling. Then, for the first time during the entire course of this litigation, the municipal defendants raised the issue of lack of jurisdiction with respect to the plaintiff's claim for back pay. In opposing plaintiff's motion for entry of judgment, they renewed an earlier motion to dismiss the complaint denied almost three years ago, now moving to dismiss pursuant to Rules 12(b)(6) and 12(h)(3) on the new "grounds that the Court lacks jurisdiction to grant plaintiff's claim for damages." Essentially they urge, in reliance upon City of Kenosha v. Bruno7 and Monroe v. Pape,8 that municipalities may not be held liable for equitable relief or damages in an action for violation of civil rights under 42 U.S.C., section 1983, and hence the court was without jurisdiction over such a claim under 28 U.S.C., section 1343. But accepting the principle of nonliability of the municipal defendants under those provisions does not resolve the question now presented in this case, which from its inception has generated its own facts.
Preliminarily, it is observed that this is not a civil rights class action. While plaintiff asserted a claim under the Civil Rights Act, 42 U.S.C., section 1983, and with respect thereto alleged jurisdiction under 28 U.S.C., sections 1343(3) and (4), she did not confine her claim or jurisdiction to those provisions. Plaintiff, aggrieved by her suspension as a Civil Service employee, charged that the state statute was void for denial of her right to due process under the Fourteenth Amendment. Specifically, she alleged that the action was one "seeking redress for the deprivation of [her] constitutional and civil rights, the matter in controversy exceeding the value of $10,000, exclusive of interest and costs." Thus, in this aspect of her case, she squarely grounded jurisdiction on section 1331(a), which provides:
"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States."
Since plaintiff alleged a deprivation of her constitutional rights and her damage claim was in excess of $10,000, there can be no doubt that the court had "federal question" jurisdiction of her claim under that section.
Defendants' position is that plaintiff having been awarded a judgment declaring section 72 unconstitutional and having been reinstated to her job, the court had thereby exhausted its jurisdiction and had no subject matter jurisdiction over the back wage aspect of her claim, since it was not one "arising under" the Constitution or laws of the United States. This effort to truncate the court's jurisdiction with respect to the back pay claim after judgment in plaintiff's favor must fail.
The municipal defendants' challenge to an award of damages is that Congress did not expressly grant the district court power to hear such a cause of action premised directly upon the Fourteenth Amendment. The argument proceeds further that Congress affirmatively created such a cause of action to enforce the Fourteenth Amendment when it passed the Civil Rights Act of 1871 (now 42 U.S.C., section 1983), and since it created no other right of action predicated directly on the Fourteenth Amendment there is no jurisdiction under section 1331 -- in sum, absent an express congressional authorization to award damages for a violation of Fourteenth Amendment rights, the courts lack jurisdiction to make such an award.
This argument blurs the distinction between subject matter jurisdiction and failure to state a claim. It runs directly afoul of the principles announced in Bell v. Hood.9 There plaintiffs sought damages for alleged violations of their rights under the Fourth and Fifth Amendments and asserted jurisdiction under 28 U.S.C., section 41(1), the predecessor of section 1331. The district court dismissed the action, and the Court of Appeals affirmed
on the ground it was not one that arose "under the Constitution or laws of the United States . . .," as required by 28 U.S.C., section 41(1), and the court therefore lacked subject matter jurisdiction. The Supreme Court reversed, holding:
"[Where] the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal ...