Court concludes that the activities of the Defendants in connection with their position as members of the Board of the Juniata Valley Office are sufficiently connected with state activities so that any award of back pay against them in their official capacities as Board members is prevented by the Eleventh Amendment.
Assuming, however, that because the Juniata Valley Office is not a separate legal entity and because the Defendants were sued in their official capacities as commissioners of the respective counties and that the counties' participation in the funding of the Juniata Valley Office renders them potentially liable to Dr. Farr for an award of back pay, the Court is not convinced that such an award should be made. Farr urges this Court to follow the case of Incarcerated Men of Allen County Jail v. Fair, 507 F.2d 281 (6th Cir. 1974), which held that a federal court may award equitable relief against local officials even though it will have a severe impact on local governmental funds without infringing upon 42 U.S.C. § 1983's policy of preventing local governmental agencies from being sued directly under that statute. The Court in Incarcerated Men relied upon Harkless v. Sweeny Independent School District, 427 F.2d 319, 324 (5th Cir. 1970) which stated that back pay was an integral part of the equitable remedy of injunctive reinstatement and that to impose such a remedy upon a local governmental unit through its officers acting in their official capacity did not offend § 1983. However, the Fifth Circuit's decision in Harkless preceded the decision of the United States Supreme Court in City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973) which held that neither legal nor equitable relief could be imposed upon a municipality under 42 U.S.C. § 1983. There are strong indications that that portion of Harkless relied upon by the Sixth Circuit in Incarcerated Men of Allen County Jail v. Fair, 507 F.2d 281 (6th Cir. 1974) is no longer law. In Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976), the Court stated that a claim for back pay could not be maintained under § 1983 against municipal officers where they were being used as "conduits to the city treasury." The Court noted that in Muzquiz v. City of San Antonio, 528 F.2d 499 (5th Cir. 1976) it held that based upon City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973), Moor v. County of Alameda, 411 U.S. 693, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973), and Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), if the real party in interest in a suit for restitution and back pay is a municipal or county governmental unit, then § 1983 may not be used as a vehicle to reach that unit through its officers acting in their official capacities. See also Campbell v. Gadsden County School Board, 534 F.2d 650, 655 n.10 (5th Cir. 1976); Wade v. Mississippi Cooperative Extension Service, 424 F. Supp. 1242, 1253 (N.D. Miss. 1976).
It is this Court's view that to award Dr. Farr back pay from the Defendants in their official capacities which would clearly be paid from funds allocated to the Juniata Valley Office by Huntingdon, Mifflin, and Juniata Counties would contravene the policy of 42 U.S.C. § 1983. Congress made it very clear that municipalities, including counties, could not be sued directly under that section, see Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), and to permit disbursements out of county funds through the medium of county officials being held liable under that section would contravene that congressional intent. Just as the Commonwealth may not be held liable because of its sovereign immunity, the County may not be forced to pay because of Congress' desire to exclude it from liability under § 1983. Therefore, as an alternative holding, the Court concludes that the 10% of the funds which would necessarily be used for satisfying an award of back pay to Dr. Farr provided by Huntingdon, Mifflin and Juniata Counties may not be reached under 42 U.S.C. § 1983. The Court is aware that this holding might prevent awards of back pay to many persons in positions similar to Dr. Farr who have established constitutional violations under § 1983 but notes that apparently all Commonwealth employees are subject to a similar prohibition on back pay awards, see Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53, 62 (3d Cir. 1976), and that nothing in this decision precludes Dr. Farr from instituting suit in a state court for breach of contract or prevents other litigants from attempting to establish an entitlement to such an award under a different statute and in an action directly against the Counties.
Dr. Farr brought this action under 28 U.S.C. §§ 1331 & 1343, the latter of which is the jurisdictional counterpart of 42 U.S.C. § 1983. Therefore, the holding that § 1983 does not provide a means for reaching the county's funds does not end the Court's inquiry. However, it is this Court's view that to allow a Plaintiff such as Dr. Farr to circumvent the Congressional intent behind 42 U.S.C. § 1983 by bringing an almost identical cause of action under § 1331 might not be justified. Although the Court has jurisdiction over Dr. Farr's claims under the Fourteenth Amendment pursuant to 28 U.S.C. § 1331, see Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977), slip op. at 5-6, the Court has not made a determination of whether Farr has stated a cause of action based independently upon the Fourteenth Amendment. The Court of Appeals in Mahone left open the question of whether the Fourteenth Amendment by itself may be a basis for such a cause of action. In addition, because of the policy behind § 1983, it is debatable whether a municipality or local governmental unit such as a county could be reached in such an action assuming that a remedy may be implied. See Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977), slip op. at 35-41 (Garth, J., dissenting). The posture of this case, and the claims advanced by both parties, simply do not permit the Court to make a determination of whether Farr has stated a cause of action under the Fourteenth Amendment and 28 U.S.C. § 1331 against the Defendants and that if she has, whether the three counties' funds might be reached through the Defendants acting in their official capacities. Since Farr chose not to join the counties as Defendants in this action, the issue of whether a cause of action could have been stated against them under § 1331 is not before the Court.
The Court concludes that although Dr. Farr has demonstrated an entitlement to the equitable remedy of back pay, because the award would necessarily come from state and county funds, the Eleventh Amendment constitutes a bar to the former and no jurisdiction exists under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 to reach the latter. Consequently, an order will be entered denying Farr's request for equitable remedies.
Malcohm Muir / MUIR, U.S. District Judge
Farr's request for the equitable remedy of back pay is denied.
Malcohm Muir / MUIR, U.S. District Judge
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