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Sarteschi v. Burlein

decided as amended dated january 23 1975: January 6, 1975.

LUCILLE SARTESCHI, APPELLANT
v.
LESTER F. BURLEIN, CHAIRMAN, PENNSYLVANIA TURNPIKE COMMISSION; RAY M. BOLLINGER, MEMBER, PENNSYLVANIA TURNPIKE COMMISSION; WILLIAM A. MEEHAN, MEMBER, PENNSYLVANIA TURNPIKE COMMISSION; ABRAHAM COHN, MEMBER, PENNSYLVANIA TURNPIKE COMMISSION; PATRICK E. KERWIN, FORMER MEMBER, PENNSYLVANIA TURNPIKE COMMISSION; ROBERT G. BARTLETT, FORMER SECRETARY OF HIGHWAYS OF THE COMMONWEALTH OF PENNSYLVANIA AND PAST MEMBER, EX-OFFICIO, OF THE PENNSYLVANIA TURNPIKE COMMISSION; JACOB KASSAB, SECRETARY OF TRANSPORTATION OF THE COMMONWEALTH OF PENNSYLVANIA AND MEMBER; EX-OFFICIO, OF THE PENNSYLVANIA TURNPIKE COMMISSION; WALTER COOPEY, DIRECTOR OF PERSONNEL OF THE PENNSYLVANIA TURNPIKE COMMISSION; AND THOMAS L. THROM, DISTRICT SUPERVISOR, PENNSYLVANIA TURNPIKE COMMISSION



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 73-704).

Van Dusen, Hunter and Garth, Circuit Judges.

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

The plaintiff brought this civil rights action to challenge her discharge from the employ of the defendants, present and former members and employees of the Pennsylvania Turnpike Commission; from the district court's January 23, 1974, jurisdictional dismissal the plaintiff has filed a timely appeal.

It appears from the plaintiff's August 17, 1973, complaint that she was employed as an "Officer-Collector" from October 9, 1968, until December 30, 1969. She contends that her discharge was in retaliation for her supporting the Teamsters Union's efforts to organize employees of the Commission and that such retaliation constituted an interference under color of state law both with her freedoms of speech and association and with her "rights to notice and an impartial hearing before discharging her from public employment." Plaintiff also alleges that most of the employees discharged during the Teamsters' organizing campaign were rehired during the 1970 gubernatorial campaign, but that she was not solely because she supported the then candidate Shapp instead of the incumbents; this reinstatement decision is alleged to have deprived her of "the right to participate in the electoral process and to openly support the candidate of her choice." The plaintiff prays damages, both compensatory and punitive, and reinstatement with seniority. On October 9, 1973,*fn1 the defendants filed a motion to dismiss.

On January 23, 1974, the district court granted the defendants' motion on the ground "that the above-styled cause is in substance a suit against said Commission for wrongful discharge and that appropriate relief, if merited, would require official action by said Commission, such as reinstatement, back pay, and the like; and the Court being of the opinion that it is an arguable question whether said Commission is a 'municipality' or is a 'person' suable under 42 U.S.C. 1983." The dismissal was granted "without prejudice . . . to the filing of a similar action against the said Turnpike Commission, in which the suability or immunity of said Commission may be directly decided." We have decided that the January 23, 1974, order of the district court is inconsistent with the decisions both of this Circuit and of the Supreme Court regarding civil rights actions against state officials, and we therefore reverse.

The Fourteenth Amendment to the United States Constitution prohibits states from depriving "any person of life, liberty, or property, without due process of law;" and from denying "to any person within [their] jurisdiction[s] the equal protection of the laws." The due process clause has been interpreted to protect the freedoms of speech and association against state interference. See, e.g., Edwards v. South Carolina, 372 U.S. 229, 235, 9 L. Ed. 2d 697, 83 S. Ct. 680 (1963); Whitney v. California, 274 U.S. 357, 373, 71 L. Ed. 1095, 47 S. Ct. 641 (1927) (Brandeis, J., concurring); Gitlow v. New York, 268 U.S. 652, 666, 69 L. Ed. 1138, 45 S. Ct. 625 (1925). Congress has given the federal courts jurisdiction over civil actions which concern alleged state violations of the Fourteenth Amendment rights. 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, relied on by the plaintiff, provide:

"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; . . . ." 28 U.S.C. § 1343(3)

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983.

The Eleventh Amendment to the Constitution provides:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

The Eleventh Amendment has been interpreted to prohibit suits against a state by its own citizens, as well. See Edelman v. Jordan, 415 U.S. 651, 662-63, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974).

The Supreme Court has accommodated both the Eleventh Amendment and the civil rights provisions, such as 42 U.S.C. § 1983, by prohibiting suits which seek to collect money judgments from the state treasury, while allowing suits which either seek personal money judgments against state officials as damages for unconstitutional deprivations or seek prospective injunctive relief from unconstitutional deprivations taken under color of state law. Compare Edelman v. Jordan, 415 U.S. 651, 668, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974) ("equitable restitution" of public aid amounts unconstitutionally withheld from the intended beneficiaries, which "is in practical effect indistinguishable in many aspects from an award of damages against the State," is barred by the Eleventh Amendment) with Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974) (suit to collect money damages from the Governor of the State of Ohio, the Adjutant General of the Ohio National Guard and his Assistant, various officers and enlisted members of the Ohio National Guard, and the president of Kent State University, for deployment of National Guard forces in a manner which deprived the plaintiffs of due process of law, not barred by ...


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