Burt v. Board of Trustees of Edgefield County School District

PER CURIAM: For reasons stated in our separate opinions, we join in the following decision: We unanimously agree to vacate the judgment below and remand for further proceedings. On remand, the district court will comply with the directions contained in Judge Craven’s opinion, which has the support of Judge Winter, except with respect to the measure of damages. As to damages, with respect to subsequent proceedings at law, the district court will follow Judge Winter’s opinion, which has the support of Judge Russell. With respect to further proceedings in equity, the district court will follow Judge Craven’s opinion, which has the support of Judge Russell. Reversed and remanded with instructions. CRAVEN, Circuit Judge: This is an appeal by a plaintiff school teacher, Mrs. Burt, and a cross appeal by the trustees of the Edgefield County School Board and the county school superintendent from the judgment of the district court. Mrs. Burt’s May 1972 complaint under 42 U.S.C. § 1983, alleging that her discharge was both racially motivated and effected without proper notice and hearing, stated both equitable and legal causes of action. She sought (1) $25,000 to compensate for the damage done to her “character and person;” and (2) reinstatement to her teaching position together with back pay and an order requiring defendants to contribute to her retirement fund an amount equal to that which would have been contributed had she not been unlawfully terminated. With their answer (a general denial), defendants demanded a jury trial “for that portion of the Plaintiff’s cause of action wherein she seeks actual damages as opposed to equitable relief.” Appx. 10. Sometime prior to the pre-trial conference, Mrs. Burt withdrew her claim at law for “a money judgment against the individual members of the school board.” Appx. 316. At the July 1973 pre-trial conference, Mrs. Burt also withdrew her prayer in equity for reinstatement, apparently because she had reached normal retirement age, but counsel for Mrs. Burt asserted, and the district court agreed, that the remaining claims for back pay and retirement fund contributions retained their equitable coloration, i. e., her abandonment of her alleged right to reinstatement was not for the purpose of resorting to another theory of recovery.1 Construing what remained of [1204] her cause of action as equitable, the district court sat as the trier of fact and did not impanel a jury. The court found that Mrs. Burt’s discharge was not racially motivated and that she was not competent to teach, but that her discharge without adequate notice and hearing denied her due process. He proceeded to award back pay, declining, in his discretion, to grant relief with respect to retirement fund contributions. We would be inclined to affirm except that the order and judgment entered, together with certain statements appearing in the trial transcript, are ambiguous as to whether the named defendants were sued in their official or individual capacities. Since the named defendants possessed the power to reinstate and cause disbursement of back pay from public funds only in their official capacities as trustees, any judgment, to be consistent with the initial characterization of the action as “equitable,” must necessarily run against defendants as officials. Private citizens are not empowered to reinstate or order back pay out of school board or county funds. The judgment on its face2 appears to be against the defendants in their individual capacities and leviable against their own personal resources. The order of October 10, 1973, however, clearly shows by detailed computation that the award is “back pay.” The ambiguity is heightened by the colloquy just prior to trial between court and counsel. The record shows that the parties and the court were clearly concerned with the effect of City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), on the question of whether any § 1983 relief — legal or equitable — could be secured against the Board qua Board, on the grounds that neither the Edge-field County School District nor the Board, is a “person” under the statute.3 Agreeing that the Board itself could not be reached, Mrs. Burt’s counsel stated that the “action . . . will be against those trustees as individuals.” Appx. 17. The court thereafter stated: “He is seeking equitable relief against the individual trustees in the form of back pay and any other incidental and equitable relief that may be justifiable.” Appx. 18. It is simply not clear whether the discussion went merely to the proper party under Kenosha — “individual trustees” instead of “Board,” or went further to the capacity necessary for equitable relief — “official” as opposed to “individual.” If the suit thereafter proceeded against defendants in their individual capacities, which is indicated by the language in the judgment, the district court erred. If the defendants are liable in their individual capacities, the measure of damages would not be the equitable one of back pay but instead the value of the contract defendants wrongfully broke. If Mrs. Burt was an incompetent teacher, as alleged, and as found by the district judge (sitting in equity), the value of the broken contract would be relatively little and might well be nominal. But whatever the amount, the award would clearly be money damages and not equitable in nature. Thus it is clear that the defendants’ demand for a jury trial should have been granted in what appar [1205] ently evolved into a suit against them in their individual capacities.4 The judgment must therefore be vacated and the case remanded for further proceedings with these instructions: 1. To the extent the complaint seeks relief against the Board of Trustees of the Edgefield County School District it must be dismissed because neither the district nor the Board is a “person” within the meaning of § 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Singleton v. Vance County Board of Education, 501 F.2d 429 (4th Cir. 1974). But see Keckeisen v. Independent School District 612, 509 F.2d 1062 (8th Cir. 1975). 2. Plaintiff will be allowed to amend her complaint under Rule 15, Fed. R.Civ.P., to allege other possible bases of jurisdiction against the school board, qua board. See Singleton v. Vance County Board of Education, supra, at 430 and 434 (Winter, J., concurring and dissenting). 3. To the extent the complaint seeks equitable relief under § 1983 against the members of the Board in their official capacities it may be prosecuted, for such municipal officers are “persons” within the meaning of § 1983. Harper v. Kloster, 486 F.2d 1134, 1138 (4th Cir. 1973); Incarcerated Men of Allen Co. Jail v. Fair, 507 F.2d 281, 287-88 (6th Cir. 1974); Ybarra v. City of Town of Los Altos Hills, 503 F.2d 250, 253 (9th Cir. 1974). For cases in which equitable relief under § 1983 was allowed against defendants in their capacity as municipal officials, see, e. g., Griffin v. County School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), cited in Monroe v. Pape, 365 U.S. 167, 191, n. 50, 81 S.Ct. 473. But see Moye v. City of Raleigh, 503 F.2d 631, 635, n. 11 (4th Cir. 1974) (caveat); Bennett v. Gravelle, 323 F.Supp. 203, 211 (D.Md.1971), aff’d on other grounds, 451 F.2d 1011 (4th Cir.), cert. petition dismissed, 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692 (1972). 4. Prosecution of this suit is not barred by the eleventh amendment. While the actions of counties and other subdivisions of a state generally constitute “state action” for purposes of the fourteenth amendment, a county or other state subdivision defendant “is not necessarily a state defendant for purposes of the Eleventh Amendment.” Edelman v. Jordan, 415 U.S. 651, 667, n. 12, 94 S.Ct. 1347, 1358 (1974) (emphasis added).5 5. To the extent that the suit proceeds in equity against the Board itself, assuming a proper jurisdictional basis other than § 1983, and/or against the defendants in their official capacities, it is clearly within the power of the district court to award back pay as an equitable remedy6 without the requirement of tri [1206] al by jury. Smith v. Hampton Training School, 360 F.2d 577, 581, n. 8 (4th Cir. 1966) (en banc), cited in Curtis v. Loether, 415 U.S. 189, 196, n. 13, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). If Mrs. Burt does so pursue equitable relief, the district judge may reinstate the judgment he previously entered specifying that it run against the Board (again, assuming jurisdiction) and/or the defendants in their official capacities. In holding that he may so reinstate, we necessarily express our approval of: (1) the factual finding that the failure to rehire Mrs. Burt was proper except for the violation of her due process rights, i. e., that it was not racially motivated — we cannot on this record say that it was clearly erroneous; (2) the court’s refusal in its discretion to award, in “equity,” a sum which would be the present. equivalent of what Mrs. Burt would have received in the future in additional retirement benefits (given her life expectancy when she retired) had she been permitted to teach for those last two years and had then retired — approximately $25,000. The court stated that it did “not feel [such damages] should come within the scope of the equitable relief in this particular case, that is, certain monetary damages in the future. And even if they do come within the scope of the equitable relief, the court under the circumstances of this case would not feel it appropriate to award such damages, and the court so finds that.” Appx. 311 — 12. Assuming this kind of damage award — a present grant of damages in lieu of additional retirement benefits accruing over Mrs. Burt’s life expectancy, all to redress a past deprivation of due process — could be characterized as “equitable,” we hold that the court did not abuse its discretion in failing to grant such relief. 6. To the extent that Mrs. Burt presses her suit against the defendants in their individual capacities, the district court must grant the defendants’ demand for trial by jury. If the suit proceeds solely as a legal claim for damages, all factual issues — including the claim of racial discrimination — can be contested before the jury. And if the suit proceeds both as legal and equitable, “the right to jury trial on the legal claim, including all issues common to both claims, remains intact.” Curtis v. Loether, supra, 415 U.S. at 196, n. 11, 94 S.Ct. at 1009. See Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470-73, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). The measure of damages, if the constitutional torts are proved, will be the value of the contract the defendants wrongfully broke, damage to her character and reputation due to invidious discrimination, plus exemplary or punitive damages if the evidence suffices to support such a claim. The defendants will be entitled to assert the defenses that her discharge was not racially motivated, that she was an incompetent teacher (which would relate to the value of her contract), and that they possessed the qualified immunity from liability for damages as set out in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). 7. Counsel fees. The district court allowed counsel fees to plaintiff from July .l, 1972, to December 1, 1972, on which date her attorney was employed by the American Civil Liberties Union on a salaried basis. The district court reasoned that counsel fees should not be awarded for the benefit of the ACLU. We have recently decided that question to the contrary. Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 517 F.2d 1141 (4th Cir. 1975). But meanwhile, the Supreme Court has held that attorneys fees may not be allowed under a private attorney general theory unless authorized by statute. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, [1207] 44 L.Ed.2d 141 (1975). On remand, the district court should reconsider the matter of attorneys fees in light of Alyeska and Wheaton-Haven. Vacated and remanded. Footnotes [1] In a sense, Mrs. Burt, having at the time of her complaint reached 65, the normal, but not mandatory, retirement age, can be said to have sought retroactive “reinstatement” from the [1204] time of her discharge to the date of the court’s judgment or the date that she would have retired, whichever happened to occur first depending on the length of the litigation. This is in fact the theory of tying back pay awards to reinstatement: equity can treat that which is done unfairly or illegally as not having been done at all. The record is clear that Mrs. Burt would have taught in the school year 1970-71, had she not been discharged in the spring of 1970. The district court found, on conflicting evidence, that she would have continued to teach for the year 1971-72, and then retired in July 1972, having reached 65 in November 1971. Instead, she retired effective July 1, 1971. [2] It reads, in pertinent part: “It is Ordered and Adjudged [that] Plaintiff . . recover of the Defendants, C. Ashley Abel, James Cooper, Cecil Yonce, Jr., Mott Bann, and Herman E. Cain, the sum of [$6,665.77].” Appx. 13. [3] Their assumption that the Board itself was not a suable party under § 1983 was correct under our recent decision in Singleton v. Vance County Board of Education, 501 F.2d 429 (4th Cir. 1974). [4] On the other hand, defendants on appeal raised the possibility that the “equitable” award might be barred by the eleventh amendment under Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). While we disagree with their contention, see ÍÍ 4 infra, counsel would hardly have raised the point if they thought the judgment went against defendants in their individual capacities. Such a jurisdictional defense would make sense only if counsel for defendants had assumed that the back pay award would be drawn from the Board’s or the county’s funds by the trustees acting officially. We think, therefore, that the question simply cannot be resolved on this appeal. [5] Without considering situations in which suits against subdivisions might be barred under the eleventh amendment, we agree that, as here, it is “not a bar to an award that may be satisfied out of a county’s treasury.” Incarcerated Men of Alien County Jail v. Fair, 507 F.2d 281, 287 (6th Cir. 1974). See Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890); Griffin v. County School Board, supra. [6] While ordinarily back pay is not awarded except as part of an equitable decree of reinstatement, we think that in this type of case, given the dominant purpose to protect an employee’s property interest from procedural unfairness, an award of back pay alone is within [1206] the sound discretion of an equity court. Horton v. Orange County Bd. of Educ., 464 F.2d 536 (4th Cir. 1972). See Garcia v. Daniel, 490 F.2d 290, 292 (7th Cir. 1973) (back pay not proper where no “property” interest is at stake). See also Burton v. Cascade Union Dist. High School No. 5, 512 F.2d 850 (9th Cir. 1975).