The opinion of the court was delivered by: LORD, III
This is an action against the City of Philadelphia and certain individual defendants based on plaintiff's dismissal from his employment in the Department of Public Health for allegedly racially discriminatory reasons. Plaintiff brings the action under the Thirteenth and Fourteenth Amendments to the Constitution and the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981 and 1983. Jurisdiction is alleged under 28 U.S.C. § 1343(3) and (4) and 28 U.S.C. § 1331.
On October 4, 1973 we entered an order dismissing the action as to the City of Philadelphia, under §§ 1981 and 1983, based on the conclusion that the City is not a "person" within the meaning of § 1983. We have before us now a motion to reconsider that order as well as a motion to file an amended complaint. The purpose of the amended complaint appears to be to clarify that a cause of action is alleged directly upon the Thirteenth and Fourteenth Amendments to the Constitution.
There remains no doubt that no cause of action exists against the City under § 1983. CITY OF KENOSHA v. BRUNO, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973). However, the posture of the City as defendant under § 1981 and as sued directly for a violation of plaintiff's constitutional rights is different.
The Supreme Court has made clear that an action to redress the deprivation of a constitutional right may be viable regardless of the existence of an applicable civil rights statute. Thus, in BIVENS v. SIX UNKNOWN FEDERAL NARCOTICS AGENTS, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), the Court held that an action for damages lay against federal officers alleged to have violated plaintiff's Fourth Amendment rights against unreasonable searches and seizures, and that federal jurisdiction existed under 28 U.S.C. § 1331, where there was more than $10,000 in controversy.
Even more relevant to the instant case is CITY OF KENOSHA v. BRUNO, supra. In that case, involving a constitutional challenge to the procedures set up under the Wisconsin statute governing liquor license renewals, the Court remanded the case to the district court for consideration of whether § 1331 jurisdiction existed against the cities of Kenosha and Racine. As to Racine, the Court noted that the defendant had put plaintiffs to their proof as to the amount in controversy and that "[since] the cases were submitted and decided on cross-motions for summary judgment and stipulations of fact, and no stipulation as to the amount in controversy was filed, we cannot say on this state of the record whether or not jurisdiction over the complaints was affirmatively established." 412 U.S. at 514. As far as the City of Kenosha was concerned, although there originally had been a stipulation as to the amount in controversy, this was before the amended complaint was filed which for the first time challenged the constitutionality of the Wisconsin licensing scheme. After that, no answer was filed and no stipulation agreed to. The Court therefore remanded for consideration by the district court of the availability of § 1331 jurisdiction "in view of the state of the record below." 412 U.S. at 514. Without at any time clearly stating so, this discussion suggests that the Court recognized that if there were $10,000 in controversy, then there would be § 1331 jurisdiction.
To clarify this point, Justice Brennan, in his brief concurring opinion joined by Justice Marshall, stressed his agreement
"with the Court's conclusion that existence of the requisite amount in controversy is not, on this record, clearly established. If appellees can prove their allegation that at least $10,000 is in controversy, then § 1331 jurisdiction is available, Bell v. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. 773 (1946); cf. Bivens v. Six Fed. Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), and they are clearly entitled to relief." 412 U.S. at 516.
This Circuit has recognized these principles in its recent opinion of SKEHAN v. BOARD OF TRUSTEES OF BLOOMSBURG STATE COLLEGE, 501 F.2d 31 (C.A. 3, filed May 3, 1974). That case, like the instant one, involved dismissal from employment, although the unconstitutional action alleged in that case concerned interference with First Amendment freedoms, as well as failure to comply with the requirements of due process. In discussing jurisdiction, (at 44), the court found a jurisdictional basis under § 1331:
"Skehan asserts jurisdiction under 28 U.S.C. § 1331 and under 28 U.S.C. § 1343(3), (4) and the Civil Rights Acts. The jurisdictional amount requisite to support jurisdiction under § 1331 is pleaded, and the claim for recovery in excess of $10,000 clearly is not frivolous. Jurisdiction over the individual defendants is clear both under § 1331 and under § 1343 and 42 U.S.C. § 1983. Because the requisite jurisdictional amount for § 1331 is pleaded, the fact that the College is not a 'person' within the meaning of 42 U.S.C. § 1983 is not significant. Thus we have no occasion in this case to determine whether, in view of the Commonwealth's abandonment of state sovereign immunity with respect to subgovernmental units in the Ayala case, those units may be sued in a federal court where, because the claim is less than $10,000, jurisdiction must be predicated on 28 U.S.C. § 1343(3), (4). * * * There is § 1331 jurisdiction to award relief against the College if under Pennsylvania law it is not an agency of the Commonwealth covered by the Commonwealth's immunity."
Under the Third Circuit's reading of AYALA v. PHILADELPHIA BOARD OF PUBLIC EDUCATION, 453 Pa. 584, 305 A.2d 877 (1973), Pennsylvania has abolished governmental immunity in general (SKEHAN, at 41).
Therefore, since the City of Philadelphia is not immune from suit, and since there is an allegation that the amount in controversy is more than $10,000, we must reverse our determination that the City of Philadelphia be dismissed from this suit at this time. If in the future the amount in controversy is put into question, we may then reconsider whether jurisdiction exists under § 1331.
The applicability of § 1981 to municipalities has been sparsely dealt with by the courts. One which has considered the issue suggested that given the exclusion of municipal liability from the ambit of § 1983, explicit in its legislative history as interpreted by the Supreme Court, "an interpretation of section 1981 which authorizes damage actions against states and municipalities deprives section 1983 of its essential significance." BENNETT v. GRAVELLE, 363 F. Supp. 203, 215 (D. Md. 1971). See also ARUNGA v. WELDON, 469 F.2d 675 (C.A. 9, 1972). We considered this question in UNITED STATES ex rel. WASHINGTON v. CHESTER COUNTY POLICE DEPARTMENT, 294 F. Supp. 1157 and 300 F. Supp. 1279 (E.D. Pa. 1969), but we held only that plaintiffs should be allowed to proceed in forma pauperis in an action under § 1981 because "[the] law under that section is not as clear, crystallized and well-settled as is the judicial gloss on § 1983." 294 F. Supp. at 1159. However, we never definitively decided whether the City or the police department could be sued under § 1981.
Now the issue is again before us. We have received no assistance from the defendant City by way of a memorandum in opposition to plaintiff's motion for reconsideration, which in any way deals with the issue of the City's liability under § 1981. However, having read plaintiff's memorandum and after considering all of the relevant ...