George R. Thurston, Individually, and on Behalf of Allothers Similarly Situated, Plaintiffs-appellees, v. Joseph C. Dekle, As Chairman, Civil Service Board,jacksonville, Florida, et al., Defendants-appellants, 531 F.2d 1264 (5th Cir. 1976)

The issue in this litigation is whether the suspension and dismissal rules of a municipality provide constitutionally adequate pretermination procedures to nonprobationary city employees. The resolution of this issue requires an analysis of Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974) and Davis v. Vandiver, 494 F.2d 830 (5th Cir. 1974). After ascertaining that jurisdiction and standing exist, we also determine the minimum due process protection against loss of nonprobationary city employment required by the Fourteenth Amendment.

The plaintiff class in this action was certified to include 'all permanent civil service employees of the City of Jacksonville, who have been or will be suspended from employment. . . .' The defendants were individual members of the Civil Service Board and the director of the Department of Housing and Urban Development of the City of Jacksonville. The employees sought declaratory relief and to enjoin the city from terminating their employment absent constitutionally sufficient pretermination proceedings. In addition, they requested restitution in the form of backpay.

The named plaintiff, Thurston, was given a letter dated August 10, 1973 on August 13, 1973, which suspended him as an employee of the Department of Housing and Urban Development of the City of Jacksonville for 30 days without pay effective August 13, 1970. At the end of the suspension period he was to be discharged permanently. The letter informed him of his right to appeal. He requested an appeal. After a hearing on September 10, 1973, his suspension and termination were upheld by the City Civil Service Board.

The applicable Rules and Regulations of the Consolidated Civil Service Board of the City of Jacksonville provide that suspension and dismissal of a nonprobationary city employee may only be 'for cause.'¹  Suspended or dismissed employees are given a right to appeal.²  The appeal consists of a public hearing; the employee may have counsel present, may subpoena witnesses, and use the services of a court reporter.³  The hearing must take place within 20 days of its request.⁴ 

The lower court determined that these civil service rules violated due process. An injunction issued preventing suspension or dismissal without pay of any nonprobationary employee without prior notice and an opportunity for a hearing until the city had promulgated sufficient procedural safeguards which were specifically designed to minimize the risk of error attendant to initial removal.

Thurston rests jurisdiction for this action upon 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. The City of Jacksonville claims this suit is, in reality, a suit against the city; that the jurisdictional grant included in42 U.S.C. § 1983 is limited to suits against 'persons'; that municipalities are not persons; and therefore, suits against municipalities are not allowed under § 1983. City of Kenosha v. Bruno, 412 U.S. 507, 93 S. Ct. 2222, 37 L. Ed. 2d 109 (1973). This claim misses the mark. Obviously aware of Kenosha's jurisdictional bar, plaintiffs brought the instant litigation against individual members of municipal agencies in their official capacities. Such suits are cognizable under § 1983's jurisdictional grant. Muzquiz v. City of San Antonio, 528 F.2d 499 (5th Cir. 1976) (en banc).

However, as in Muzquiz, the plaintiffs in the instant action seek not only declaratory and injunctive relief, but also restitution. In Muzquiz we refused to allow § 1983 suits against the individual members of a municipal board or agency for restitution or damages where the practical effect was to use those defendants as conduits to the city treasury. The lower court's award of backpay to class members, therefore, must be reversed for lack of subject matter jurisdiction.

Although the lower court lacked subject matter jurisdiction to hear Thurston's claim seeking backpay on behalf of himself and members of the class, it did not lack subject matter jurisdiction to hear a claim requesting a declaratory judgment that Jacksonville's pretermination procedures are unconstitutional and an injunction preventing unconstitutional employment termination. But, before a court of the United States has the power under Art. III, § 2 of the Constitution to hear a particular claim, it must be presented in a solid adversary context. Muskrat v. United States, 219 S. Ct. 346, 31 S. Ct. 250, 55 L. Ed. 246 (1911). In other words, there must exist a case or controversy.

The threshold case-or-controversy inquiry is whether there existed a named plaintiff with standing to raise the issue before the court. The hindsight provided by Muzquiz now enables us to clearly see that Thurston never did satisfy the traditional tests which would indicate he had standing to present this class' claims.

When this suit was instituted, there were three categories of individuals who could have had standing to raise this issue: First, an employee who had been suspended without pay and whose termination had been upheld on appeal to the Civil Service Board; second, an employee who had been suspended without pay but who had not yet received a post-termination appeal by the Civil Service Board; and third, an employee threatened with suspension without pay.

Thurston was suspended without pay on August 13, 1973; his termination was upheld on appeal by the Civil Service Board on September 10, 1973. The instant action was not filed until September 26, 1973. Therefore, Thurston's standing must be found in the first category. Thurston does not attack his final termination; his claim is only directed to the initial suspension without pay absent constitutional pretermination protection. The only remedy he could invoke was backpay for the period of time between his initial suspension without pay and the date he was entitled to post-termination procedures. Therefore, Thurston's standing to attack the pretermination procedure is solely limited to his claim for backpay--relief which Muzquiz now teaches the court lacked jurisdiction to grant.

Thurston is the only named plaintiff in this action preserved on appeal. The court lacked jurisdiction to hear any claim Thurston had standing to raise and Thurston lacks standing to raise any claim the court had jurisdiction to hear. The net result is that there was no named plaintiff with standing to question Jacksonville's pretermination procedures at the time this litigation was filed.

The fact that some members of the class may have had standing to raise this claim is irrelevant. The record does not disclose that any class member had ever been in either the second or third category discussed above. But, more importantly, the necessary requirement is for a named plaintiff to have standing at the time the litigation is filed.⁵  We are unaware of any case where any federal court has reached a substantive issue absent a named plaintiff who had standing at the time the action was filed. We are also confident that had Muzquiz been available to it, the lower court would not have heard this action.

Thurston's standing was not factualy mooted; it fell away because of a subsequent legal interpretation. Thus, we are not faced here with a named plaintiff whose standing has been mooted by a fact occurring subsequent to the filing of his case. This kind of fact-created mootness is common-place when plaintiffs attack pretermination procedures or residency requirements. The law is settled that such factcreated mootness will not prevent the complete hearing of a case when such a refusal to proceed would enable the case to continue to evade review.⁶ 

Use of the conventional form of standing analysis leads to the conclusion that this case should be reversed because no named plaintiff had standing. However, to do so exalts form over substance because such a formalistic approach never pauses to look past the usual procedural requisites to test for the basic substance these procedures seek to enforce.⁷  Muzquiz, which denied subject matter jurisdiction to Thurston, and thereby took away his standing, was unknown to the parties and the lower court throughout the trial. Both parties briefed and argued this case with a vigor nurtured by ignorance of an upcoming en banc reversal of the panel opinion that provided vitality to Thurston's side of this case. Throughout this case Thurston believed (as did the lower court) that he had a real stake in the outcome. Thus it would not serve standing's ultimate purpose to hold that the adversary context that truly prevailed throughout the cause was somehow lost even before Thurston, or any other party, or the court knew it was gone.⁸ 

To reverse this case on the ground of lack of standing will predictably result in another attack on these same ordinances before the same trial court by some other City of Jacksonville employee. Such a procedure would add naught but further cost to the expense already incurred by both the city and the affected class and another case to the congestion of both the district and appellate court dockets.⁹  A decision which would accomplish no more than relitigation of a controversy already adequately litigated can serve no jurisprudential purpose.

Finally, the manner in which Thurston's loss of standing occurred due to a subsequent legal decision in the case at bar is analogous to a sole named plaintiff's loss of standing due to a subsequent factual change or adjudication.¹⁰  The same result should flow from each. That one result is couched in terms of loss of standing and the other in terms of mootness makes no real difference. The rights of the class to an adjudication of their claims should survive in either case.

Under the unique facts of this case, we hold that where the purpose of the standing requirement has been fulfilled by the presence of an adversary context which has remained concrete throughout the entire proceedings and where standing was subsequently determined not to exist because of a change in law affecting subject matter jurisdiction, this court should reach the merits.

The existence of a legitimate property or liberty interest is prerequisite to the examination of any claimed threat to procedural due process.¹¹  The City of Jacksonville relies on Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974), and Davis v. Vandiver, 494 F.2d 830 (5th Cir. 1974), to assert that its employees have a property interest in the retention of their employment only to the extent it is protected by the procedural safeguards in the ordinance and rules which govern their employment. Although the Arnett plurality opinion so states, six members of the Court unmistakably rejected that proposition. Arnett must be read as holding that 'while the State may define what is and what is not property, once having defined those rights the Constitution defines due process . . ..' 416 U.S. at 185, 94 S. Ct. at 1659--60, 40 L. Ed. 2d at 51. The existence of a nonprobationary employee's property interest in employment was not squarely presented in Davis.¹²  It is centered on whether due process required a full-evidentiary hearing before employee termination where pretermination procedural protections were adequate to prevent plain mistakes and a full-evidentiary hearing post-termination was available.¹³ 

City employment which allows termination only for cause creates a constitutionally protectable property interest.¹⁴  Once created, the employment property interest may not be taken away without due process.¹⁵  Civil Service Board Rule 12.4 allows suspension and dismissal of an employee 'only for cause.'¹⁶  Therefore, the plaintiff employees of the City of Jacksonville have a legitimate property interest in the continuation of their employment.

Even though the plaintiffs possess a property interest in their employment, due process does not mandate that they be accorded a full-evidentiary hearing prior to employment termination.¹⁷  The suspension and termination regulations of the City of Jacksonville require that an employee be given a 'detailed written statement' of the reasons for suspension prior to suspension. The employee may then immediately be suspended without pay for 30 days. At the end of this suspension period if the employee has not successfully prosecuted an appeal he automatically would be permanently dismissed. The only pretermination procedural protection a City of Jacksonville employee receives is a written statement listing the reasons for discharge.

The City argues that its employees may seek review of their suspension without pay. During this period of suspension without pay, however, the employees lose all benefits of employment. In addition, the suspension automatically becomes termination unless the Civil Service Board on review orders reinstatement and backpay. The lower court correctly saw this suspension process as no more than a facade. It held that 'in reality, 'suspension' under the present state of facts . . . is in the functional equivalent of permanent discharge subject to the condition subsequent that an employee may be reinstated with backpay upon successful appeal.' Since suspension without pay is in reality termination, the city must provide whatever pretermination procedures the Constitution mandates prior to suspension without pay.¹⁸ 

To determine the extent of due process procedures necessary to protect against the wrongful taking of property from an employee, a balance must be struck between the government's and the employee's respective interests.¹⁹  The government interest in efficient city operation is a weighty one. Requiring elaborate pretermination procedures or the payment of wages to misbehaving or unproductive employees militates against that interest. On the other hand, the immediate termination of an employee's wages and other benefits deserves protection from possible errors. Ideally, the balance would seek to minimize the risk of wrongful termination to an employee without burdening the government with elaborate pretermination proceedings. In both Arnett and Davis the applicable regulations required that prior to termination an employee be furnished with specific written reasons for termination and that he or she be given a reasonable time to study the reasons and an opportunity to respond in writing and orally to the official with responsibility for making the termination decision. This opportunity to explain was held to have sufficiently minimized the risk of wrongful initial termination so that postponement of a full-evidentiary hearing to post-termination passed constitutional muster.

Although both Arnett and Davis approved these regulations as being sufficient to meet the requirements of due process, neither case mandated the creation of any procedure as being prerequisite to the meeting of minimal pretermination due process requirements. Arnett and Divis only approved existing rules; they did not require new ones.

Since this order commands city action we must define the minimum pretermination procedural elements required by the due process clause of the Fourteenth Amendment. Arnett and Davis guide us to focus on procedures which will minimize the risk of improper termination associated with any dismissal process. Where a governmental employer chooses to postpone the opportunity of a nonprobationary employee to secure a full-evidentiary hearing until after dismissal, risk reducing procedures must be accorded. These must include, prior to termination, written notice of the reasons for termination and an effective opportunity to rebut those reasons.²⁰  Effective rebuttal must give the employee the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision.²¹ 

The lower court's order could reasonably be interpreted as requiring that full-evidentiary pretermination hearings be accorded to all employees in the plaintiff class until the city has promulgated sufficient safeguards which would minimize that risk of error. Even though the city has not yet promulgated sufficient procedural safeguards, the Constitution does not require this much.²²  However, since the district court's injunction is also reasonably susceptible to the interpretation that an employee must be given an opportunity, prior to suspension, to effectively respond to the reasons given for suspension, we place that construction on it.

The district court correctly recognized that there could be 'extraordinary situations' where even these minimal pretermination procedures would be improper. The court required the city to promulgate specific criteria which would allow for an objective determination of when such an 'extraordinary situation' might exist. It broadly outlined 'extraordinary situations' to include circumstances where retention would result in damage to municipal property, would be detrimental to the interest of city government or would result in injury to the employee, to a fellow employee or to the general public. Even in these situations the court required that an employee be given written notice of the specific reasons for termination within 24 hours and also to be given an opportunity for an evidentiary hearing within 20 days. Arnett recognized and implicitly approved similar 'extraordinary situation' procedures.

The order of the lower court concerning the payment of backpay is REVERSED for lack of subject matter jurisdiction. The lower court's order requiring additional pretermination procedures to minimize the risk of error associated with initial termination is AFFIRMED.