UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: September 5, 1974.
ALDINE ROCHESTER, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, ROSE GIBSON, INDIVIDUALLY AND ON BEHALF OF HER SEVEN MINOR CHILDREN; INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, APPELLANTS,
JACK D. WHITE, SECRETARY OF HEALTH AND SOCIAL SERVICES, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND MIKLOS T. LAZAR, DIRECTOR OF SOCIAL SERVICES, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANTS, THIRD-PARTY PLAINTIFFS, V. CASPAR W. WEINBERGER, UNITED STATES SECRETARY OF HEALTH, EDUCATION AND WELFARE AND FRANCIS D. DEGEORGE, ADMINISTRATOR, SOCIAL AND REHABILITATION SERVICE, UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, THIRD-PARTY DEFENDANTS
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE. (District Court Civil Action No. 4265).
Adams, Hunter and Garth, Circuit Judges.
Opinion OF THE COURT
HUNTER, Circuit Judge:
This case raises jurisdictional issues under 28 U.S.C. § 1343(3) (1970)*fn1 and 42 U.S.C. § 1983 (1970)*fn2 and the Eleventh Amendment. The district court granted defendant-appellee's motion for summary judgment holding that a state official was not a "person" under Section 1983 and, that as such, there was no jurisdiction in the court to grant either declaratory or monetary relief. The judgment with respect to the absence of declaratory judgment jurisdiction must be reversed.
There is no dispute as to the facts in this case. Plaintiff-appellants challenge the propriety of defendant-administrator's 1971 reduction in Social Security benefits under Delaware's Aid to Families with Dependent Children (AFDC) public assistance program.*fn3 In this class action, plaintiffs alleged that failure to give proper notice of the reduction in benefits violated the due process clause of the Fourteenth Amendment and federal regulations. The notice issue was fully litigated both in the district court of Delaware and in this court*fn4 at which time the absence of jurisdiction was never raised. Speaking to the merits of the case in May of 1973, Judge Gibbons for this court found non-compliance with federal notice requirements and remanded the case to the district court for a determination of proper remedies. On remand, plaintiffs requested prospective declaratory and injunctive*fn5 relief and retroactive monetary damages. Alleging that the Eleventh Amendment barred any retroactive monetary relief, the defendant moved for partial summary judgment. The district judge sua sponte granted a complete summary judgment for the defendant upon finding that the court was without jurisdiction to grant either monetary or declaratory relief, 365 F. Supp. 179, 183. The court avoided difficult Eleventh Amendment issues raised in defendant's motion, 365 F. Supp. 179, 185. Reliance was instead placed on the notion that the defendant, as a representative of the state, was not a "person" under Section 1983. The court rightly cited Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961) for the proposition that a city or a state is not a person subject to suit under Section 1983. As a corollary of this rule, the trial judge concluded that when a state official represents the state, he stands in the shoes of the state, and that like the state he is not a person under Section 1983. This conclusion is erroneous.
When a state is named as a defendant under Section 1983, there are two impediments to suit. First, a state is not a person as required under Section 1983,*fn6 and second, the Eleventh Amendment bars suit against a state.*fn7 As written, the Eleventh Amendment prohibits suits in federal courts by citizens of one state against another state; the amendment, however, was early interpreted as a bar to suits in federal court by a citizen against his own state, Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890). If the State of Delaware had been named as a party to the instant action, the reasoning of the trial judge, that jurisdiction to redress a violation under Section 1983 was absent, would have been correct. Different results must obtain, however, when a state official, rather than the state itself, has been named as a party-defendant.
The district judge's ruling that he is without jurisdiction to grant prospective relief must be reversed since the public officials named as defendants are "persons" within Section 1983.
In conjunction with Section 1343(3), Section 1983 has served as the basis for many suits against public officials acting in their official capacities.
In Rosado v. Wyman, 397 U.S. 397, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970), Justice Harlan makes clear that when a complaint alleges the unconstitutionality of a state statute "the District Court sitting as a one-man tribunal . . . . [is] properly seised of jurisdiction over the case under §§ 1343(3) and (4) of Title 28. . . ." 397 U.S. 397, 403, 90 S. Ct. 1207, 25 L. Ed. 2d 442 to redress grievances under 42 U.S.C. 1983.*fn8 The defendant in Rosado was a New York State official who administered the same federally supported A.F.D.C. program as that in the present case. Although the opinion discusses jurisdiction in great detail, 397 U.S. 397, 402-407, 90 S. Ct. 1207, 25 L. Ed. 2d 442 there is not the slightest implication that defendant's status as a representative of the state is relevant under Sections 1343(3) and 1983. This use of Section 1983 as the means of suing state officials has gone unchallenged in both the Supreme Court and in this circuit court. King v. Smith, 392 U.S. 309, 20 L. Ed. 2d 1118, 88 S. Ct. 2128 (1968), Serritella v. Engelman, 462 F.2d 601 (3rd Cir., 1972), aff'g. 339 F. Supp. 738 (D. New Jersey, 1972).
If the trial judge's interpretation of Section 1983 were correct, very few cases could ever have been successful under the statute. Section 1983 specifically requires that the "person" to be sued has acted under color of state law. When a person acts under color of state law he most often represents the state. Under the trial judge's view, the state's status as a non-"person" could be asserted by the state representative who is sued under Section 1983. 365 F. Supp. 179, 183. As the logical consequence of the trial judge's view, Section 1983 would be used only where the state official had acted beyond the scope of his authority.*fn9 At other times, a state official would represent the state whose status he could assert. Section 1983 clearly is not restricted to redressing abusive conduct beyond the scope of the authority of the person acting under color of state law.*fn10 The district court's jurisdictional analysis under Section 1983 is, in our view, incorrect.
In addition, there is no Eleventh Amendment bar to granting prospective relief in the instant case. Following the reasoning of Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), the Eleventh Amendment does not bar a suit against a state official acting under a state statute allegedly violative of the U.S. Constitution. The Eleventh Amendment does not prevent a "federal court from directing a state official to bring his conduct into conformity with federal law." Rothstein v. Wyman, 467 F.2d 226, 236 (2nd Cir. 1972). This principle was most recently reaffirmed by the Supreme Court in Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). In Edelman, the Court does not question the view that Ex parte Young authorizes prospective relief. The court states:
Ex parte Young was a watershed case in which this Court held that the Eleventh Amendment did not bar an action in the federal courts seeking to enjoin the Attorney General of Minnesota from enforcing a statute claimed to violate the Fourteenth Amendment of the United States Constitution. This holding has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect. But the relief awarded in Ex parte Young was prospective only ; [emphasis added] 451 U.S. 651, 664. 42 L.W. 4419, 4423.
In light of these cases, the trial court's denial of jurisdiction to grant prospective relief must be reversed.*fn11
RETROACTIVE MONETARY RELIEF
The trial judge was correct in granting summary judgment for defendant on plaintiff's petition for retroactive monetary relief.*fn12 In light of Edelman v. Jordan, decided subsequent to the district court's opinion, the Eleventh Amendment bars an award of retroactive monetary relief against a state official*fn12a unless the state has waived its Eleventh Amendment objection by consenting to suit. Since consent, according to Edelman, will not be inferred from state participation in a federal program,*fn13 the Eleventh Amendment bars monetary relief.*fn14
The judgment of the district court will be reversed and the cause remanded for further proceedings consistent with this opinion.