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December 10, 1975

Marie SNEAD, Plaintiff,
DEPARTMENT OF SOCIAL SERVICES OF the CITY OF NEW YORK, a governmental agency, et al., Defendants

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. *fn1"

 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. *fn2"

 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). *fn3" 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. *fn4" 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. *fn5" 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. *fn6" 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 *fn10" 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 court . . . must entertain-the suit.


. . .


"Jurisdiction . . . is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.


. . .


"[The] right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another." *fn11"

 This holding was reaffirmed in Wheeldin v. Wheeler,12 and recently adopted by the Second Circuit in a case cited by the parties which considered but did not pass upon the very question raised here -- whether there is an implied right to damages under the Fourteenth Amendment. *fn13"

 The defendants' reliance upon City of Kenosha v. Bruno,14 the Supreme Court's latest ruling which recognized that a municipality is immune from a claim under the Civil Rights Act and consequently that the Court lacks jurisdiction under section 1343, is misplaced. It is significant that the majority remanded the case to the district court to consider the availability of section 1331 jurisdiction, which had been alleged but not passed upon by the court below. Additionally, Mr. Justice Brennan, in his concurrence, joined in by Mr. Justice Marshall, stated:


"If appellees can prove their allegation that at least $10,000 is in controversy, then ยง 1331 jurisdiction is available. Bell v. Hood, 327 U.S. 678 [66 S. Ct. 773, 90 L. Ed. 939] (1946); cf. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 [91 S. Ct. 1999, 29 L. Ed. 2d 619] (1971) . . . ." *fn15"

 Plaintiff's claim was in excess of $10,000 and recovery was sought for a violation of her constitutional rights. The court had jurisdiction to hear and determine the suit under section 1331(a). *fn16"

 Although the defendants now expressly disavow any attack "based upon plaintiff's failure to allege facts sufficient to state a cause of action," *fn17" in view of the history of this case this branch of the motion also should be resolved and put to rest. First, to the extent that this attack is a renewal of the City's earlier motion to dismiss, it may properly be denied for failure to comply with Local General Rule 9(m). *fn18" But there are additional and weightier reasons for its denial.

 Plaintiff's claim for back wages has been in the case from its very inception, and the three-judge court in its original disposition on March 12, 1973 "ordered that plaintiff be reinstated with back pay for the period of her involuntary leave of absence." On March 27, 1973, the municipal defendants and plaintiff stipulated "that the back pay award be stayed pending the final deposition [sic] of the appeal of the adjudicated decision." The recognition that a claim for back pay had been made and allowed, and the failure of defendants to raise their current contention until long after the adjudication upon the merits in plaintiff's favor, forecloses defendants' attack for failure to state a claim. If, as stated in Bell v. Hood, "the failure to state a proper cause of action calls for a judgment on the merits," then a litigant should not be permitted to raise such a failure after a determination on the merits. This view finds support in Rule 12(h)(2) of the Federal Rules of Civil Procedure, which provides that "[a] defense of failure to state a claim upon which relief can be granted . . . may be made in any pleading . . .

 or by motion for judgment on the pleadings, or at trial on the merits." The clear thrust of the Rule is that a failure to state a claim may be raised at any time before a disposition on the merits but not after. Any other construction would not only add to intolerable delay, but create uncertainty as to the validity of a final judgment on the merits.

 Finally, at this post-judgment stage of this long-drawn litigation, to hold, assuming defendants are correct, that plaintiff has failed to state a claim for back wages would reward defendants for dilatoriness and penalize plaintiff. Upon argument the City defendants conceded that were this action dismissed and plaintiff now required to commence anew an action in the state court for recovery of her unpaid back wages, the claim would be barred by the statute of limitations.

 Accordingly, we hold that defendants have waived their objection that the complaint fails to state a cause of action for damages. *fn19" The plaintiff's motion for entry of judgment is granted.

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