Two years after respondent, a management-level employee in one
of petitioner city's agencies, successfully appealed a temporary
suspension to petitioner's Civil Service Commission (Commission),
he was transferred to a clerical position in another city agency,
from which he was laid off the next year. In respondent's suit
under 42 U.S.C. § 1983, the jury found petitioner liable on the
theory that respondent's First Amendment rights had been violated
through retaliatory actions taken in response to his suspension
appeal. The Court of Appeals affirmed the judgment entered on this
verdict, finding that the jury had implicitly determined that
respondent's layoff was brought about by an unconstitutional city
policy. Applying a test under which a "policymaker" is one whose
employment decisions are "final" in the sense that they are not
subjected to
de novo review by higher ranking officials,
the court concluded that petitioner could be held liable for
adverse personnel decisions made by respondent's supervisors.
Held: The judgment is reversed, and the case is
remanded.
798 F.2d 1168, reversed and remanded.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE,
and JUSTICE SCALIA, concluded that:
1. Petitioner's failure to timely object under Federal Rule of
Civil Procedure 51 to a jury instruction on municipalities' § 1983
liability for their employees' unconstitutional acts does not
deprive this Court of jurisdiction to determine the proper legal
standard for imposing such liability. The same legal issue was
raised by petitioner's motions for summary judgment and a directed
verdict, was considered and decided by the Court of Appeals, and is
likely to recur in § 1983 litigation against municipalities. Review
in this Court will not undermine the policy of judicial efficiency
that underlies Rule 51. Pp.
485 U. S.
118-121.
2. The Court of Appeals applied an incorrect legal standard for
determining when isolated decisions by municipal officials or
employees may expose the municipality to § 1983 liability. The
identification of officials having "final policymaking authority"
is a question of state (including local) law, rather than a
question of fact for the jury. Here, it appears that petitioner's
City Charter gives the authority to set employment policy to the
Mayor and Aldermen, who are empowered to enact ordinances,
Page 485 U. S. 113
and to the Commission, whose function is to hear employees'
appeals. Petitioner cannot be held liable unless respondent proved
the existence of an unconstitutional policy promulgated by
officials having such authority. The Mayor and Aldermen did not
enact an ordinance permitting retaliatory transfers or layoffs. Nor
has the Commission indicated that such actions were permissible; it
has, on the contrary, granted respondent at least partial relief in
a series of appeals from adverse personnel decisions. The Court of
Appeals' findings that the decisions of respondent's supervisors
were not individually reviewed for "substantive propriety" by
higher supervisory officials, and were accorded substantial
deference by the Commission on appeal, are insufficient to support
the conclusion that the supervisors had been delegated the
authority to establish transfer and layoff policy. When a
subordinate's discretionary decisions are constrained or subjected
to review by authorized policymakers, they, and not the
subordinate, have
final policymaking authority. Positing a
delegation based on their mere acquiescence in, or failure to
investigate the basis of, the subordinate's decisions does not
serve § 1983's purposes where (as here) the wrongfulness of those
decisions arises from a retaliatory motive or other unstated
rationale. Pp.
485 U. S.
122-131.
JUSTICE BRENNAN, joined by JUSTICE MARSHALL and JUSTICE
BLACKMUN, agreed that respondent's supervisor at his first agency
did not possess delegated authority to establish final employment
policy such that petitioner could be held liable under § 1983 for
the allegedly unlawful decision to transfer respondent to a
dead-end job, but concluded that, in any case in which the
policymaking authority of a municipal tortfeasor is in doubt,
although state law will naturally be the appropriate starting
point, ultimately the factfinder must determine where such
policymaking authority actually resides, and not simply where the
applicable state law purports to put it. JUSTICE BRENNAN also
concluded that the "custom or usage" doctrine cannot compensate for
the inherent inflexibility of an approach that relies exclusively
on state law, for that doctrine simply does not apply to isolated
unconstitutional acts by subordinates having
de facto, but
not statutory, final policymaking authority; that a subordinate's
decisions are not rendered nonfinal simply because they are subject
to some form of review, however limited; and that the question is
open whether a municipality can be subjected to liability for a
policy that, while not unconstitutional in and of itself, may give
rise to constitutional deprivations. Pp.
485 U. S.
132-147.
O'CONNOR, J., announced the judgment of the Court and delivered
an opinion, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ.,
joined. BRENNAN, J., filed an opinion concurring in the judgment,
in which MARSHALL and BLACKMUN, JJ., joined U.S.
485 U. S. 132.
STEVENS, J., filed a dissenting
Page 485 U. S. 114
opinion,
post, p.
485 U. S. 147.
KENNEDY, J., took no part in the consideration or decision of the
case.
JUSTICE O'CONNOR announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE,
and JUSTICE SCALIA join.
This case calls upon us to define the proper legal standard for
determining when isolated decisions by municipal officials or
employees may expose the municipality itself to liability under 42
U.S.C. § 1983.
I
The principal facts are not in dispute. Respondent James H.
Praprotnik is an architect who began working for petitioner city of
St. Louis in 1968. For several years, respondent consistently
received favorable evaluations of his job performance, uncommonly
quick promotions, and significant increases in salary. By 1980, he
was serving in a management-level city planning position at
petitioner's Community Development Agency (CDA).
The Director of CDA, Donald Spaid, had instituted a requirement
that the agency's professional employees, including architects,
obtain advance approval before taking on private clients.
Respondent and other CDA employees objected
Page 485 U. S. 115
to the requirement. In April, 1980, respondent was suspended for
15 days by CDA's Director of Urban Design, Charles Kindleberger,
for having accepted outside employment without prior approval.
Respondent appealed to the city's Civil Service Commission, a body
charged with reviewing employee grievances. Finding the penalty too
harsh, the Commission reversed the suspension, awarded respondent
backpay, and directed that he be reprimanded for having failed to
secure a clear understanding of the rule.
The Commission's decision was not well received by respondent's
supervisors at CDA. Kindleberger later testified that he believed
respondent had lied to the Commission, and that Spaid was angry
with respondent.
Respondent's next two annual job performance evaluations were
markedly less favorable than those in previous years. In discussing
one of these evaluations with respondent, Kindleberger apparently
mentioned his displeasure with respondent's 1980 appeal to the
Civil Service Commission. Respondent appealed both evaluations to
the Department of Personnel. In each case, the Department ordered
partial relief and was upheld by the city's Director of Personnel
or the Civil Service Commission.
In April, 1981, a new Mayor came into office, and Donald Spaid
was replaced as Director of CDA by Frank Hamsher. As a result of
budget cuts, a number of layoffs and transfers significantly
reduced the size of CDA and of the planning section in which
respondent worked. Respondent, however, was retained.
In the spring of 1982, a second round of layoffs and transfers
occurred at CDA. At that time, the city's Heritage and Urban Design
Commission (Heritage) was seeking approval to hire someone who was
qualified in architecture and urban planning. Hamsher arranged with
the Director of Heritage, Henry Jackson, for certain functions to
be transferred from CDA to Heritage. This arrangement, which made
it possible for Heritage to employ a relatively high-level "city
planning
Page 485 U. S. 116
manager," was approved by Jackson's supervisor, Thomas Nash.
Hamsher then transferred respondent to Heritage to fill this
position.
Respondent objected to the transfer, and appealed to the Civil
Service Commission. The Commission declined to hear the appeal
because respondent had not suffered a reduction in his pay or
grade. Respondent then filed suit in Federal District Court,
alleging that the transfer was unconstitutional. The city was named
as a defendant, along with Kindleberger, Hamsher, Jackson (whom
respondent deleted from the list before trial), and Deborah
Patterson, who had succeeded Hamsher at CDA.
At Heritage, respondent became embroiled in a series of disputes
with Jackson and Jackson's successor, Robert Killen. Respondent was
dissatisfied with the work he was assigned, which consisted of
unchallenging clerical functions far below the level of
responsibilities that he had previously enjoyed. At least one
adverse personnel decision was taken against respondent, and he
obtained partial relief after appealing that decision.
In December 1983, respondent was laid off from Heritage. The
layoff was attributed to a lack of funds, and this apparently meant
that respondent's supervisors had concluded that they could create
two lower level positions with the funds that were being used to
pay respondent's salary. Respondent then amended the complaint in
his lawsuit to include a challenge to the layoff. He also appealed
to the Civil Service Commission, but proceedings in that forum were
postponed because of the pending lawsuit and have never been
completed. Tr. Oral Arg. 31-32.
The case went to trial on two theories: (1) that respondent's
First Amendment rights had been violated through retaliatory
actions taken in response to his appeal of his 1980 suspension; and
(2) that respondent's layoff from Heritage was carried out for
pretextual reasons in violation of due process. The jury returned
special verdicts exonerating
Page 485 U. S. 117
each of the three individual defendants, but finding the city
liable under both theories. Judgment was entered on the verdicts,
and the city appealed.
A panel of the Court of Appeals for the Eighth Circuit found
that the due process claim had been submitted to the jury on an
erroneous legal theory, and vacated that portion of the judgment.
With one judge dissenting, however, the panel affirmed the verdict
holding the city liable for violating respondent's First Amendment
rights. 798 F.2d 1168 (1986). Only the second of these holdings is
challenged here.
The Court of Appeals found that the jury had implicitly
determined that respondent's layoff from Heritage was brought about
by an unconstitutional city policy.
Id. at 1173. Applying
a test under which a "policymaker" is one whose employment
decisions are "final" in the sense that they are not subjected to
de novo review by higher ranking officials, the Court of
Appeals concluded that the city could be held liable for adverse
personnel decisions taken by respondent's supervisors.
Id.
at 1173-1175. In response to petitioner's contention that the
city's personnel policies are actually set by the Civil Service
Commission, the Court of Appeals concluded that the scope of review
before that body was too "highly circumscribed" to allow it fairly
to be said that the Commission, rather than the officials who
initiated the actions leading to respondent's injury, were the
"final authority" responsible for setting city policy.
Id.
at 1175.
Turning to the question whether a rational jury could have
concluded that respondent had been injured by an unconstitutional
policy, the Court of Appeals found that respondent's transfer from
CDA to Heritage had been "orchestrated" by Hamsher, that the
transfer had amounted to a "constructive discharge," and that the
injury had reached fruition when respondent was eventually laid off
by Nash and Killen.
Id. at 1175-1176, and n. 8. The court
held that the jury's verdict exonerating Hamsher and the other
individual defendants could be reconciled with a finding of
liability
Page 485 U. S. 118
against the city because "the named defendants were not the
supervisors directly causing the lay off, when the actual damages
arose."
Id. at 1173, n. 3.
Cf. Los Angeles v.
Heller, 475 U. S. 796
(1986).
The dissenting judge relied on our decision in
Pembaur v.
Cincinnati, 475 U. S. 469
(1986). He found that the power to set employment policy for
petitioner city of St. Louis lay with the Mayor and Aldermen, who
were authorized to enact ordinances, and with the Civil Service
Commission, whose function was to hear appeals from city employees
who believed that their rights under the city's Charter, or under
applicable rules and ordinances, had not been properly respected.
798 F.2d at 1180. The dissent concluded that respondent had
submitted no evidence proving that the Mayor and Aldermen, or the
Commission, had established a policy of retaliating against
employees for appealing from adverse personnel decisions.
Id. at 1179-1181. The dissenting judge also concluded
that, even if there were such a policy, the record evidence would
not support a finding that respondent was in fact transferred or
laid off in retaliation for the 1980 appeal from his suspension.
Id. at 1181-1182.
We granted certiorari, 479 U.S. 1029 (1987), and we now
reverse.
II
We begin by addressing a threshold procedural issue. The second
question presented in the petition for certiorari reads as
follows:
"Whether the failure of a local government to establish an
appellate procedure for the review of officials' decisions which
does not defer in substantial part to the original decisionmaker's
decision constitutes a delegation of authority to establish final
government policy such that liability may be imposed on the local
government on the basis of the decisionmaker's act alone when the
act is neither taken pursuant to a rule of general
applicability
Page 485 U. S. 119
nor is a decision of specific application adopted as the result
of a formal process?"
Pet. for Cert.
i.
Although this question was manifestly framed in light of the
holding of the Court of Appeals, respondent argues that petitioner
failed to preserve the question through a timely objection to the
jury instructions under Federal Rule of Civil Procedure 51. Arguing
that both parties treated the identification of municipal
"policymakers" as a question of fact at trial, respondent
emphasizes that the jury was given the following instruction, which
was offered by the city itself:
"As a general principle, a municipality is not liable under 42
U.S.C.1983 for the actions of its employees. However, a
municipality may be held liable under 42 U.S.C.1983 if the
allegedly unconstitutional act was committed by an official high
enough in the government so that his or her actions can be said to
represent a government decision."
App. 113.
Relying on
Oklahoma City v. Tuttle, 471 U.
S. 808 (1985), and
Springfield v. Kibbe,
480 U. S. 257
(1987), respondent contends that the jury instructions should be
reviewed only for plain error, and that the jury's verdict should
be tested only for sufficiency of the evidence. Declining to defend
the legal standard adopted by the Court of Appeals, respondent
vigorously insists that the judgment should be affirmed on the
basis of the jury's verdict and petitioner's alleged failure to
comply with Rule 51.
Petitioner argues that it preserved the legal issues presented
by its petition for certiorari in at least two ways. First, it
filed a pretrial motion for summary judgment, or alternatively for
judgment on the pleadings. In support of that motion, petitioner
argued that respondent had failed to allege the existence of any
impermissible municipal policy or of any facts that would indicate
that such a policy existed. Second, petitioner filed a motion for
directed verdict at the close of respondent's case, renewed that
motion at the close
Page 485 U. S. 120
of all the evidence, and eventually filed a motion for judgment
notwithstanding the verdict.
Respondent's arguments do not bring our jurisdiction into
question, and we must not lose sight of the fact, stressed in
Tuttle, that the
"decision to grant certiorari represents a commitment of scarce
judicial resources with a view to deciding the merits of one or
more of the questions presented in the petition."
471 U.S. at
471 U. S. 816.
In
Kibbe, it is true, the writ was dismissed in part
because the petitioner sought to challenge a jury instruction to
which it had not objected at trial. In the case before us, the
focus of petitioner's challenge is not on the jury instruction
itself, but on the denial of its motions for summary judgment and a
directed verdict. Although the same legal issue was raised both by
those motions and by the jury instruction,
"the failure to object to an instruction does not render the
instruction the 'law of the case' for purposes of appellate review
of the denial of a directed verdict or judgment notwithstanding the
verdict."
Kibbe, supra, at
480 U. S. 264
(dissenting opinion) (citations omitted). Petitioner's legal
position in the District Court -- that respondent had failed to
establish an unconstitutional municipal policy -- was consistent
with the legal standard that it now advocates. It should not be
surprising if petitioner's arguments in the District Court were
much less detailed than the arguments it now makes in response to
the decision of the
Page 485 U. S. 121
Court of Appeals. That, however, does not imply that petitioner
failed to preserve the issue raised in its petition for certiorari.
Cf. post at
485 U. S.
165-167 (STEVENS, J., dissenting). Accordingly, we find
no obstacle to reviewing the question presented in the petition for
certiorari, a question that was very clearly considered, and
decided, by the Court of Appeals.
We note, too, that petitioner has, throughout this litigation,
been confronted with a legal landscape whose contours are "in a
state of evolving definition and uncertainty."
Newport v. Fact
Concerts, Inc., 453 U. S. 247,
453 U. S. 256
(1981). We therefore do not believe that our review of the decision
of the Court of Appeals, a decision raising a question that "is
important and appears likely to recur in § 1983 litigation against
municipalities,"
id. at
453 U. S. 257,
will undermine the policy of judicial efficiency that underlies
Rule 51. The definition of municipal liability manifestly needs
clarification, at least in part to give lower courts and litigants
a fairer chance to craft jury instructions that will not require
scrutiny on appellate review.
III
A
Section 1 of the Ku Klux Act of 1871, Rev.Stat. § 1979, as
amended, 42 U.S.C. § 1983, provides:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . . 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. . . ."
Ten years ago, this Court held that municipalities and other
bodies of local government are "persons" within the meaning of this
statute. Such a body may therefore be sued directly if it is
alleged to have caused a constitutional tort through "a policy
statement, ordinance, regulation, or decision officially adopted
and promulgated by that body's officers."
Monell v. New York
City Dept. of Social Services, 436 U.
S. 658,
436 U. S. 690
(1978). The Court pointed out that § 1983 also authorizes suit
"for constitutional deprivations visited pursuant to
governmental 'custom,' even though such a custom has not received
formal approval through the body's official decisionmaking
channels."
Id. at
436 U. S.
690-691. At the same time, the Court rejected the use of
the doctrine of
respondeat superior, and concluded that
municipalities could be held liable only when an injury was
inflicted by a government's
Page 485 U. S. 122
"lawmakers or by those whose edicts or acts may fairly be said
to represent official policy."
Id. at
436 U. S.
694.
Monell's rejection of
respondeat superior, and
its insistence that local governments could be held liable only for
the results of unconstitutional governmental "policies," arose from
the language and history of § 1983. For our purposes here, the
crucial terms of the statute are those that provide for liability
when a government "subjects [a person], or causes [that person] to
be subjected," to a deprivation of constitutional rights. Aware
that governmental bodies can act only through natural persons, the
Court concluded that these governments should be held responsible
when, and only when, their official policies cause their employees
to violate another person's constitutional rights. Reading the
statute's language in the light of its legislative history, the
Court found that vicarious liability would be incompatible with the
causation requirement set out on the face of § 1983.
See
id. at
436 U. S. 691.
That conclusion, like decisions that have widened the scope of §
1983 by recognizing constitutional rights that were unheard of in
1871, has been repeatedly reaffirmed.
See, e.g., Owen v. City
of Independence, 445 U. S. 622,
445 U. S. 633,
445 U. S. 655,
n. 39 (1980);
Polk County v. Dodson, 454 U.
S. 312,
454 U. S. 325
(1981);
Tuttle, 471 U.S. at
471 U. S. 818,
and n. 5 (plurality opinion);
id. at
471 U. S. 828
(BRENNAN, J., concurring in part and concurring in judgment);
Pembaur v. Cincinnati, 475 U.S. at
475 U. S.
478-480, and nn. 7-8.
Cf. Newport v. Fact Concerts,
Inc., supra, at
453 U. S. 259
("[B]ecause the 1871 Act was designed to expose state and local
officials to a new form of liability, it would defeat the promise
of the statute to recognize any preexisting immunity without
determining both the policies that it serves and its compatibility
with the purposes of § 1983").
In
Monell itself, it was undisputed that there had been
an official policy requiring city employees to take actions that
were unconstitutional under this Court's decisions. Without
attempting to draw the line between actions taken pursuant to
official policy and the independent actions of employees
Page 485 U. S. 123
and agents, the
Monell Court left the "full contours"
of municipal liability under § 1983 to be developed further on
"another day." 436 U.S. at
436 U. S. 695.
In the years since
Monell was decided, the Court has
considered several cases involving isolated acts by government
officials and employees. We have assumed that an unconstitutional
governmental policy could be inferred from a single decision taken
by the highest officials responsible for setting policy in that
area of the government's business.
See, e.g., Owen v. City of
Independence, supra; Newport v. Fact Concerts, Inc.,
453 U. S. 247
(1981).
Cf. Pembaur, supra, at
475 U. S. 480.
At the other end of the spectrum, we have held that an unjustified
shooting by a police officer cannot, without more, be thought to
result from official policy.
Tuttle, 471 U.S. at
471 U. S. 821
(plurality opinion);
id. at
471 U. S.
830-831, and n. 5 (BRENNAN, J., concurring in part and
concurring in judgment).
Cf. Kibbe, 480 U.S. at
480 U. S. 260
(dissenting opinion).
Two Terms ago, in
Pembaur, supra, we undertook to
define more precisely when a decision on a single occasion may be
enough to establish an unconstitutional municipal policy. Although
the Court was unable to settle on a general formulation, JUSTICE
BRENNAN's opinion articulated several guiding principles. First, a
majority of the Court agreed that municipalities may be held liable
under § 1983 only for acts for which the municipality itself is
actually responsible, "that is, acts which the municipality has
officially sanctioned or ordered."
Id. at
475 U. S. 480.
Second, only those municipal officials who have "final policymaking
authority" may by their actions subject the government to § 1983
liability.
Id. at
475 U. S. 483 (plurality opinion). Third, whether a
particular official has "final policymaking authority" is a
question of
state law. Ibid. (plurality opinion).
Fourth, the challenged action must have been taken pursuant to a
policy adopted by the official or officials responsible under state
law for making policy in
that area of the city's business.
Id. at
475 U. S.
482-483, and n. 12 (plurality opinion).
Page 485 U. S. 124
The Courts of Appeals have already diverged in their
interpretations of these principles.
Compare, for example,
Williams v. Butler, 802 F.2d 296, 299-302 (CA8 1986) (en
banc),
cert. pending sub nom. Little Rock v. Williams, No.
86-1049,
with Jett v. Dallas Independent School Dist., 798
F.2d 748, 759-760 (CA5 1986) (dictum). Today, we set out again to
clarify the issue that we last addressed in
Pembaur.
B
We begin by reiterating that the identification of policymaking
officials is a question of state law.
"Authority to make municipal policy may be granted directly by a
legislative enactment or may be delegated by an official who
possesses such authority, and of course, whether an official had
final policymaking authority is a question of state law."
Pembaur v. Cincinnati, supra, at
475 U. S. 483
(plurality opinion). [
Footnote
1] Thus the identification of policymaking officials is not a
question of federal law, and it is not a question of fact in the
usual sense. The States have extremely wide latitude in determining
the form that local government takes, and local preferences have
led to a profusion of distinct forms. Among the many kinds of
municipal corporations, political subdivisions, and special
districts of all sorts, one may expect to find a rich variety of
ways in which the power of government
Page 485 U. S. 125
is distributed among a host of different officials and official
bodies.
See generally C. Rhyne, The Law of Local
Government Operations §§ 1.3-1.7 (1980). Without attempting to
canvass the numberless factual scenarios that may come to light in
litigation, we can be confident that state law (which may include
valid local ordinances and regulations) will always direct a court
to some official or body that has the responsibility for making law
or setting policy in any given area of a local government's
business. [
Footnote 2]
We are not, of course, predicting that state law will always
speak with perfect clarity. We have no reason to suppose,
Page 485 U. S. 126
however, that federal courts will face greater difficulties here
than those that they routinely address in other contexts. We are
also aware that there will be cases in which policymaking
responsibility is shared among more than one official or body. In
the case before us, for example, it appears that the Mayor and
Aldermen are authorized to adopt such ordinances relating to
personnel administration as are compatible with the City Charter.
See St. Louis City Charter, Art. XVIII, § 7(b), App.
62-63. The Civil Service Commission, for its part, is required
to
"prescribe . . . rules for the administration and enforcement of
the provisions of this article, and of any ordinance adopted in
pursuance thereof, and not inconsistent therewith."
§ 7(a), App. 62. Assuming that applicable law does not make the
decisions of the Commission reviewable by the Mayor and Aldermen,
or vice versa, one would have to conclude that policy decisions
made either by the Mayor and Aldermen or by the Commission would be
attributable to the city itself. In any event, however, a federal
court would not be justified in assuming that municipal
policymaking authority lies somewhere other than where the
applicable law purports to put it. And certainly there can be no
justification for giving a jury the discretion to determine which
officials are high enough in the government that their actions can
be said to represent a decision of the government itself.
As the plurality in
Pembaur recognized, special
difficulties can arise when it is contended that a municipal
policymaker has delegated his policymaking authority to another
official. 475 U.S. at
475 U. S.
482-483, and n. 12. If the mere exercise of discretion
by an employee could give rise to a constitutional violation, the
result would be indistinguishable from
respondeat superior
liability. If, however, a city's lawful policymakers could insulate
the government from liability simply by delegating their
policymaking authority to others, § 1983 could not serve its
intended purpose. It may not be possible to draw an
Page 485 U. S. 127
elegant line that will resolve this conundrum, but certain
principles should provide useful guidance.
First, whatever analysis is used to identify municipal
policymakers, egregious attempts by local governments to insulate
themselves from liability for unconstitutional policies are
precluded by a separate doctrine. Relying on the language of §
1983, the Court has long recognized that a plaintiff may be able to
prove the existence of a widespread practice that, although not
authorized by written law or express municipal policy, is "so
permanent and well settled as to constitute a
custom or usage'
with the force of law." Adickes v. S. H. Kress & Co.,
398 U. S. 144,
398 U. S.
167-168 (1970). That principle, which has not been
affected by Monell or subsequent cases, ensures that most
deliberate municipal evasions of the Constitution will be sharply
limited.
Second, as the
Pembaur plurality recognized, the
authority to make municipal policy is necessarily the authority to
make
final policy. 475 U.S. at
475 U. S.
481-484. When an official's discretionary decisions are
constrained by policies not of that official's making, those
policies, rather than the subordinate's departures from them, are
the act of the municipality. Similarly, when a subordinate's
decision is subject to review by the municipality's authorized
policymakers, they have retained the authority to measure the
official's conduct for conformance with
their policies. If
the authorized policymakers approve a subordinate's decision and
the basis for it, their ratification would be chargeable to the
municipality because their decision is final.
C
Whatever refinements of these principles may be suggested in the
future, we have little difficulty concluding that the Court of
Appeals applied an incorrect legal standard in this case. In
reaching this conclusion, we do not decide whether the First
Amendment forbade the city to retaliate against respondent for
having taken advantage of the grievance mechanism in 1980. Nor do
we decide whether there
Page 485 U. S. 128
was evidence in this record from which a rational jury could
conclude either that such retaliation actually occurred or that
respondent suffered any compensable injury from whatever
retaliatory action may have been taken. Finally, we do not address
petitioner's contention that the jury verdict exonerating the
individual defendants cannot be reconciled with the verdict against
the city. Even assuming that all these issues were properly
resolved in respondent's favor, we would not be able to affirm the
decision of the Court of Appeals.
The city cannot be held liable under § 1983 unless respondent
proved the existence of an unconstitutional municipal policy.
Respondent does not contend that anyone in city government ever
promulgated, or even articulated, such a policy. Nor did he attempt
to prove that such retaliation was ever directed against anyone
other than himself. Respondent contends that the record can be read
to establish that his supervisors were angered by his 1980 appeal
to the Civil Service Commission; that new supervisors in a new
administration chose, for reasons passed on through some informal
means, to retaliate against respondent two years later by
transferring him to another agency; and that this transfer was part
of a scheme that led, another year and a half later, to his layoff.
Even if one assumes that all this was true, it says nothing about
the actions of those whom the law established as the makers of
municipal policy in matters of personnel administration. The Mayor
and Aldermen enacted no ordinance designed to retaliate against
respondent or against similarly situated employees. On the
contrary, the city established an independent Civil Service
Commission and empowered it to review and correct improper
personnel actions. Respondent does not deny that his repeated
appeals from adverse personnel decisions repeatedly brought him at
least partial relief, and the Civil Service Commission never so
much as hinted that retaliatory transfers or layoffs were
permissible. Respondent points to no evidence indicating that the
Commission delegated to anyone its final authority to
Page 485 U. S. 129
interpret and enforce the following policy set out in Article
XVIII of the city's Charter, § 2(a), App. 49:
"Merit and fitness. All appointments and promotions to positions
in the service of the city and all measures for the control and
regulation of employment in such positions, and separation
therefrom, shall be on the sole basis of merit and fitness. . .
."
The Court of Appeals concluded that "appointing authorities,"
like Hamsher and Killen, who had the authority to initiate
transfers and layoffs, were municipal "policymakers." The court
based this conclusion on its findings (1) that the decisions of
these employees were not individually reviewed for "substantive
propriety" by higher supervisory officials; and (2) that the Civil
Service Commission decided appeals from such decisions, if at all,
in a circumscribed manner that gave substantial deference to the
original decisionmaker. 798 F.2d at 1174-1175. We find these
propositions insufficient to support the conclusion that Hamsher
and Killen were authorized to establish employment policy for the
city with respect to transfers and layoffs. To the contrary, the
City Charter expressly states that the Civil Service Commission has
the power and the duty:
"To consider and determine any matter involved in the
administration and enforcement of this [Civil Service] article and
the rules and ordinances adopted in accordance therewith that may
be referred to it for decision by the director [of personnel], or
on appeal by any appointing authority, employee, or taxpayer of the
city, from any act of the director or of any appointing authority.
The decision of the commission in all such matters shall be final,
subject, however, to any right of action under any law of the state
or of the United States."
St. Louis City Charter, Art. XVIII, § 7(d), App. 63.
This case therefore resembles the hypothetical example in
Pembaur:
"[I]f [city] employment policy was set by the
Page 485 U. S. 130
[Mayor and Aldermen and by the Civil Service Commission], only
[those] bod[ies'] decisions would provide a basis for [city]
liability. This would be true even if the [Mayor and Aldermen and
the Commission] left the [appointing authorities] discretion to
hire and fire employees and [they] exercised that discretion in an
unconstitutional manner. . . ."
475 U.S. at
475 U. S. 483,
n. 12. A majority of the Court of Appeals panel determined that the
Civil Service Commission's review of individual employment actions
gave too much deference to the decisions of appointing authorities
like Hamsher and Killen. Simply going along with discretionary
decisions made by one's subordinates, however, is not a delegation
to them of the authority to make policy. It is equally consistent
with a presumption that the subordinates are faithfully attempting
to comply with the policies that are supposed to guide them. It
would be a different matter if a particular decision by a
subordinate was cast in the form of a policy statement and
expressly approved by the supervising policymaker. It would also be
a different matter if a series of decisions by a subordinate
official manifested a "custom or usage" of which the supervisor
must have been aware.
See supra at
485 U. S. 127.
In both those cases, the supervisor could realistically be deemed
to have adopted a policy that happened to have been formulated or
initiated by a lower ranking official. But the mere failure to
investigate the basis of a subordinate's discretionary decisions
does not amount to a delegation of policymaking authority,
especially where (as here) the wrongfulness of the subordinate's
decision arises from a retaliatory motive or other unstated
rationale. In such circumstances, the purposes of § 1983 would not
be served by treating a subordinate employee's decision as if it
were a reflection of municipal policy.
JUSTICE BRENNAN's opinion, concurring in the judgment, finds
implications in our discussion that we do not think necessary or
correct.
See post at
485 U. S.
142-147. We nowhere say or imply, for example, that
"a municipal charter's precatory
Page 485 U. S. 131
admonition against discrimination or any other employment
practice not based on merit and fitness effectively insulates the
municipality from any liability based on acts inconsistent with
that policy."
Post at
485 U. S. 145,
n. 7. Rather, we would respect the decisions, embodied in state and
local law, that allocate policymaking authority among particular
individuals and bodies. Refusals to carry out stated policies could
obviously help to show that a municipality's actual policies were
different from the ones that had been announced. If such a showing
were made, we would be confronted with a different case than the
one we decide today.
Nor do we believe that we have left a "gaping hole" in § 1983
that needs to be filled with the vague concept of "
de
facto final policymaking authority."
Post at
485 U. S. 144.
Except perhaps as a step towards overruling
Monell and
adopting the doctrine of
respondeat superior, ad hoc
searches for officials possessing such "
de facto"
authority would serve primarily to foster needless unpredictability
in the application of § 1983.
IV
We cannot accept either the Court of Appeals' broad definition
of municipal policymakers or respondent's suggestion that a jury
should be entitled to define for itself which officials' decisions
should expose a municipality to liability. Respondent has suggested
that the record will support an inference that policymaking
authority was in fact delegated to individuals who took retaliatory
action against him and who were not exonerated by the jury.
Respondent's arguments appear to depend on a legal standard similar
to the one suggested in JUSTICE STEVENS' dissenting opinion,
post at
485 U. S. 171,
which we do not accept. Our examination of the record and state
law, however, suggests that further review of this case may be
warranted in light of the principles we have discussed. That task
is best left to the Court of Appeals, which will be free to invite
additional briefing and argument if necessary. Accordingly, the
decision of the Court of Appeals is
Page 485 U. S. 132
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of
this case.
[
Footnote 1]
Unlike JUSTICE BRENNAN, we would not replace this standard with
a new approach in which state law becomes merely an "appropriate
starting point" for an "assessment of a municipality's actual power
structure."
Post at
485 U. S. 143,
485 U. S. 145.
Municipalities cannot be expected to predict how courts or juries
will assess their "actual power structures," and this uncertainty
could easily lead to results that would be hard in practice to
distinguish from the results of a regime governed by the doctrine
of
respondeat superior. It is one thing to charge a
municipality with responsibility for the decisions of officials
invested by law, or by a "custom or usage" having the force of law,
with policymaking authority. It would be something else, and
something inevitably more capricious, to hold a municipality
responsible for every decision that is perceived as "final" through
the lens of a particular factfinder's evaluation of the city's
"actual power structure."
[
Footnote 2]
JUSTICE STEVENS, who believes that
Monell incorrectly
rejected the doctrine of
respondeat superior, suggests a
new theory that reflects his perceptions of the congressional
purposes underlying § 1983.
See post at
485 U. S. 148,
n. 1. This theory would apparently ignore state law, and
distinguish between "high" officials and "low" officials on the
basis of an independent evaluation of the extent to which a
particular official's actions have "the potential of controlling
governmental decisionmaking," or are "perceived as the actions of
the city itself."
Post at
485 U. S. 171.
Whether this evaluation would be conducted by judges or juries, we
think the legal test is too imprecise to hold much promise of
consistent adjudication or principled analysis. We can see no
reason, except perhaps a desire to come as close as possible to
respondeat superior without expressly adopting that
doctrine, that could justify introducing such unpredictability into
a body of law that is already so difficult.
As JUSTICE STEVENS acknowledges,
see post at
485 U. S. 148,
n. 1, this Court has repeatedly rejected his interpretation of
Congress' intent. We have held that Congress intended to hold
municipalities responsible under § 1983 only for the execution of
official policies and customs, and not for injuries inflicted
solely by employees or agents.
See, e.g., Monell v. New York
City Dept. of Social Services, 436 U.
S. 658,
436 U. S. 694
(1978);
Pembaur v. Cincinnati, 475 U.
S. 469,
475 U. S.
478-480 (1986). Like the
Pembaur plurality, we
think it is self-evident that official policies can only be adopted
by those legally charged with doing so.
See supra, at
485 U. S. 124,
and n. 1. We are aware of nothing in § 1983 or its legislative
history, and JUSTICE STEVENS points to nothing, that would support
the notion that unauthorized acts of subordinate employees are
official policies because they may have the "potential" to become
official policies or may be "perceived as" official policies.
Accordingly, we conclude that JUSTICE STEVENS' proposal is without
a basis in the law.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN
join, concurring in the judgment.
Despite its somewhat confusing procedural background, this case
at bottom presents a relatively straightforward question: whether
respondent's supervisor at the Community Development Agency, Frank
Hamsher, possessed the authority to establish final employment
policy for the city of St. Louis such that the city can be held
liable under 42 U.S.C. § 1983 for Hamsher's allegedly unlawful
decision to transfer respondent to a dead-end job. Applying the
test set out two Terms ago by the plurality in
Pembaur v.
Cincinnati, 475 U. S. 469
(1986), I conclude that Hamsher did not possess such authority, and
I therefore concur in the Court's judgment reversing the decision
below. I write separately, however, because I believe that the
commendable desire of today's plurality to "define more precisely
when a decision on a single occasion may be enough" to subject a
municipality to § 1983 liability,
ante at
485 U. S. 123,
has led it to embrace a theory of municipal liability that is both
unduly narrow and unrealistic, and one that ultimately would permit
municipalities to insulate themselves from liability for the acts
of all but a small minority of actual city policymakers.
I
Respondent James H. Praprotnik worked for petitioner city of St.
Louis for 15 years. A licensed architect, he began his career in
1968 as city planner, and by 1980 had risen to a mid-level
management position in the city's Community Development Agency
(CDA), garnering consistently high job evaluations, substantial pay
raises, and rapid promotions
Page 485 U. S. 133
during the intervening 12 years. 1980, however, marked the
turning point in respondent's fortunes as a civil servant. In April
of that year, his supervisor, Charles Kindleberger, suspended him
for 15 days for failing to comply with a secondary employment
policy that required all city professionals to obtain prior
approval before undertaking any outside work. Respondent, who had
objected to the policy since the head of the agency, CDA Director
Donald Spaid, first announced it in 1978, appealed the suspension
to the city's Civil Service Commission (CSC), arguing that the
advance approval requirement was an improper invasion of his
privacy, and that, in any event, he had consistently complied with
it. Although the CSC apparently did not question the validity of
the policy, it found the penalty excessive, and therefore directed
respondent's supervisors to reinstate him with backpay and to issue
a letter of reprimand in lieu of the suspension.
Testimony at the trial below revealed that neither Spaid nor
Kindleberger was pleased with respondent's actions, and that Spaid
in particular was "very down on" respondent for his testimony
before the CSC. 3 Record 1-54 to 1-55, 5
id. at 3-237. In
October 1980, just before the CSC rendered its decision,
Kindleberger gave respondent an overall rating of "good" for the
year, but recommended a two-step decrease in his salary.
Kindleberger, who had just six months earlier proposed raising
respondent's salary two grades, justified the reduction as part of
a city-wide pay scale reorganization. Respondent, however, viewed
the recommendation as retaliation for his CSC appeal and petitioned
the Department of Personnel for relief; the Department, which
considers initial challenges to all performance ratings, granted
partial relief, approving a one-step reduction, and the CSC
affirmed this disposition on final appeal.
The following year witnessed a change in city administrations
and the arrival of Frank Hamsher, who succeeded Spaid as CDA
Director. Kindleberger, however, remained the supervisor
responsible for respondent's performance
Page 485 U. S. 134
evaluation, and in October, 1981, he rated respondent merely
"adequate" overall. A confidential memorandum from one of
respondent's superiors to Kindleberger explained that respondent
did not get along well with others, citing as an example
respondent's prior difficulties with former Director Spaid.
Respondent, who had previously never received a rating of less than
"good," again appealed to the Department of Personnel, which again
ordered partial relief.
Six months later, CDA underwent major budget and staff
reductions and, as part of the resulting reorganization, Director
Hamsher proposed transferring respondent's duties to the Heritage
and Urban Design Commission (Heritage) and consolidating his
functions with those of a vacant position at Heritage. Although
there was testimony indicating that Heritage Commissioner Henry
Jackson thought the transfer unnecessary, both Jackson and his
superior, Director of Public Safety Thomas Nash, agreed to the
consolidation, and the Director of Personnel formally approved the
proposal. Respondent objected to the move, and appealed to the CSC,
but the CSC declined to review the decision, reasoning that,
because Heritage classified the consolidated position at the same
grade as respondent's former job, the transfer was merely
"lateral," and respondent had therefore suffered no "adverse"
employment action. Thereafter, respondent filed this § 1983 suit
against the city, Kindleberger, Hamsher, and Hamsher's successor at
CDA, Deborah Patterson, alleging that the transfer violated his
constitutional rights. [
Footnote
2/1]
In the meantime, Jackson took over many of the architectural
tasks CDA had ostensibly transferred to the new position and
assigned respondent mainly clerical duties, an arrangement the
latter found highly unsatisfactory. In November, 1982, Jackson
rated respondent "inadequate" overall, and recommended a one-step
reduction in his salary, as well
Page 485 U. S. 135
as an overall reduction in the classification of his position.
Respondent successfully appealed his performance rating to the
Personnel Department, which again granted partial relief.
Nonetheless, in March, 1983, his position was substantially
downgraded, and, by the summer of that year, Jackson's successor at
Heritage, Robert Killen, proposed abolishing the position
altogether. In December, 1983, Killen carried through on his plan
and, with the approval of Public Safety Director Nash, laid
respondent off. Respondent amended his complaint in the District
Court to reflect the layoff, and simultaneously appealed the action
to the CSC, but the CSC stayed its proceedings in light of the
pendency of this lawsuit.
At trial, respondent sought to prove that the individual
defendants had transferred him and eventually laid him off in
retaliation for his use of the city's grievance machinery, thereby
violating his First Amendment and due process rights. For its part,
the city contended that the individual defendants were not
personally responsible for the alleged ills that had befallen
respondent. Conspicuous by their absence, city counsel argued, were
Donald Spaid, whose displeasure over respondent's testimony before
the CSC was allegedly the motivating force behind respondent's
first proposed grade reduction and allegedly infected later
performance evaluations; Robert Killen, who initiated and
ultimately authorized the elimination of respondent's position at
Heritage; and Thomas Nash, who approved the layoff. Respondent's
counsel, however, defended the choice of defendants as those
"primarily responsible" for the constitutional deprivations. 6
id. at 4-56.
The District Court instructed the jury that generally a city is
not liable under § 1983 for the acts of its employees, but that it
may be held to answer for constitutional wrongs "committed by an
official high enough in the government so that his or her actions
can be said to represent a government decision." App. 113. In a
lengthy and involved instruction, the court further advised the
jury that it must find in favor of
Page 485 U. S. 136
respondent, and against the individual defendants, if it found
six facts to be true, one of which was that "Hamsher and
Kindleberger were personally involved in causing [respondent's]
transfer and/or layoff."
Id. at 118. The jury exonerated
the three individual defendants, but awarded respondent $15,000 on
each of his constitutional claims against petitioner.
The Court of Appeals for the Eighth Circuit vacated the judgment
entered on respondent's due process claim (a ruling not at issue
here), but affirmed the judgment as to the First Amendment claim.
798 F.2d 1168 (1986). With respect to this latter claim, the court
reasoned that the city could be held accountable for an improperly
motivated transfer and layoff if it had delegated to the
responsible officials, either directly or indirectly, the authority
to act on behalf of the city, and if the decisions made within the
scope of this delegated authority were essentially final. Applying
this test, the court noted that, under the City Charter,
"appointing authorities," or department heads, such as Hamsher,
could undertake transfers and layoffs subject only to the approval
of the Director of Personnel, who undertook no substantive review
of such decisions and simply conditioned his approval on formal
compliance with city procedures. Moreover, because the CSC engaged
in highly circumscribed and deferential review of layoffs and, at
least so far as this case reveals, no review whatever of lateral
transfers, the court concluded that an appointing authority's
transfer and layoff decisions were final.
Id. at
1174-1175.
Having found that Hamsher was a final policymaker whose acts
could subject petitioner to § 1983 liability, the court determined
that the jury had ample evidence from which it could find that
Hamsher transferred respondent in retaliation for the latter's
exercise of his First Amendment rights, and that the transfer, in
turn, precipitated respondent's layoff. This constructive discharge
theory, the majority found, also reconciled the jury's apparently
inconsistent verdicts: the
Page 485 U. S. 137
jury could have viewed Hamsher's unlawful motivation as the
proximate cause of respondent's dismissal but, because Nash and
Killen administered the final blows, it could have concluded that
Hamsher, Kindleberger, and Patterson were not "personally involved"
in the layoff, as required by the instructions; accordingly, the
jury could have reasonably exonerated the individual defendants
while finding the city liable.
Id. at 1176, and n. 8.
[
Footnote 2/2]
II
In light of the jury instructions below, the central question
before us is whether the city delegated to CDA Director Frank
Hamsher the authority to establish final employment policy for the
city respecting transfers. For if it did not, then his allegedly
unlawful decision to move respondent to an unfulfilling, dead-end
position is simply not an act for which the city can be held
responsible under § 1983. I am constrained to conclude that Hamsher
possessed no such policymaking power here, and that, on the
contrary, his allegedly retaliatory act simply constituted an abuse
of the discretionary authority the city had entrusted to him.
The scope of Hamsher's authority with respect to transfers
derives its significance from our determination in
Monell v.
New York City Dept. of Social Services, 436 U.
S. 658 (1978), that a municipality is not liable under §
1983 for each and every wrong committed by its employees. In
rejecting the concept of vicarious municipal liability, we
emphasized that
Page 485 U. S. 138
the touchstone of the § 1983 action against a government body is
an allegation that official policy is responsible for the
deprivation of rights protected by the Constitution."
Id.
at 690. More recently we have explained that the touchstone of
"official policy" is designed
"to distinguish acts of the
municipality from acts of
employees of the municipality, and thereby make clear that
municipal liability is limited to action for which the municipality
is actually responsible."
Pembaur v. Cincinnati, 475 U.S. at
475 U. S.
479-480 (emphasis in original).
Municipalities, of course, conduct much of the business of
governing through human agents. Where those agents act in
accordance with formal policies, or pursuant to informal practices
"so permanent and well settled as to constitute a
custom or
usage' with the force of law," Adickes v. S. H. Kress &
Co., 398 U. S. 144,
398 U. S.
167-168 (1970), we naturally ascribe their acts to the
municipalities themselves, and hold the latter responsible for any
resulting constitutional deprivations. Monell, which
involved a challenge to a city-wide policy requiring all pregnant
employees to take unpaid leave after their fifth month of
pregnancy, was just such a case. Nor have we ever doubted that a
single decision of a city's properly constituted legislative body
is a municipal act capable of subjecting the city to liability.
See, e.g., Newport v. Fact Concerts, Inc., 453 U.
S. 247 (1981) (City Council canceled concert permit for
content-based reasons); Owen v. City of Independence,
445 U. S. 622
(1980) (City Council passed resolution firing Police Chief without
any pretermination hearing). In these cases, we neither required
nor, as the plurality suggests, assumed that these decisions
reflected generally applicable "policies" as that term is commonly
understood, because it was perfectly obvious that the actions of
the municipalities' policymaking organs, whether isolated or not,
were properly charged to the municipalities themselves. [Footnote 2/3]
Page 485 U. S. 139
And, in
Pembaur we recognized that "the power to
establish policy is no more the exclusive province of the
legislature at the local level than at the state or national
level," 475 U.S. at
475 U. S. 480,
and that the isolated decision of an executive municipal
policymaker, therefore, could likewise give rise to municipal
liability under § 1983.
In concluding that Frank Hamsher was a policymaker, the Court of
Appeals relied on the fact that the city had delegated to him "the
authority, either directly or indirectly, to act on [its] behalf,"
and that his decisions within the scope of this delegated authority
were effectively final. 798 F.2d at 1174. In
Pembaur,
however, we made clear that a municipality is not liable merely
because the official who inflicted the constitutional injury had
the final authority to act on its behalf; rather, as four of us
explained, the official in question must possess "final authority
to establish municipal policy with respect to the [challenged]
action." 475 U.S. at
475 U. S. 481.
Thus, we noted,
"[t]he fact that a particular official -- even a policymaking
official -- has discretion in the exercise of particular functions
does not, without more, give rise to municipal
Page 485 U. S. 140
liability based on an exercise of that discretion."
Id. at
475 U. S.
481-482. By way of illustration, we explained that if,
in a given county, the Board of County Commissioners established
county employment policy and delegated to the County Sheriff alone
the discretion to hire and fire employees, the county itself would
not be liable if the Sheriff exercised this authority in an
unconstitutional manner, because "the decision to act unlawfully
would not be a decision of the Board."
Id. at
475 U. S. 483,
n. 12. We pointed out, however, that in that same county the
Sheriff could be the final policymaker in other areas, such as law
enforcement practices, and that, if so, his or her decisions in
such matters
could give rise to municipal liability.
Ibid. In short, just as in
Owen and
Fact
Concerts we deemed it fair to hold municipalities liable for
the isolated, unconstitutional acts of their legislative bodies,
regardless of whether those acts were meant to establish generally
applicable "policies," so too in
Pembaur four of us
concluded that it is equally appropriate to hold municipalities
accountable for the isolated constitutional injury inflicted by an
executive final municipal policymaker, even though the decision
giving rise to the injury is not intended to govern future
situations. In either case, as long as the contested decision is
made in an area over which the official or legislative body
could establish a final policy capable of governing future
municipal conduct, it is both fair and consistent with the purposes
of § 1983 to treat the decision as that of the municipality itself,
and to hold it liable for the resulting constitutional
deprivation.
In my view,
Pembaur controls this case. As an
"appointing authority," Hamsher was empowered under the City
Charter to initiate lateral transfers such as the one challenged
here, subject to the approval of both the Director of Personnel and
the appointing authority of the transferee agency. The Charter,
however, nowhere confers upon
Page 485 U. S. 141
agency heads any authority to establish city
policy,
final or otherwise, with respect to such transfers. Thus, for
example, Hamsher was not authorized to promulgate binding
guidelines or criteria governing how or when lateral transfers were
to be accomplished. Nor does the record reveal that he in fact
sought to exercise any such authority in these matters. There is no
indication, for example, that Hamsher ever purported to institute
or announce a practice of general applicability concerning
transfers. Instead, the evidence discloses but one transfer
decision -- the one involving respondent -- which Hamsher
ostensibly undertook pursuant to a city-wide program of fiscal
restraint and budgetary reductions. At most, then, the record
demonstrates that Hamsher had the authority to determine how best
to
effectuate a policy announced by his superiors, rather
than the power to
establish that policy. Like the
hypothetical Sheriff in
Pembaur's n 12, Hamsher had discretionary authority to
transfer CDA employees laterally; that he may have used this
authority to punish respondent for the exercise of his First
Amendment rights does not, without more, render the city liable for
respondent's resulting constitutional injury. [
Footnote 2/4] The court below did not suggest that
either Killen or Nash, who together orchestrated respondent's
ultimate layoff,
Page 485 U. S. 142
shared Hamsher's constitutionally impermissible animus. Because
the court identified only one unlawfully motivated municipal
employee involved in respondent's transfer and layoff, and because
that employee did not possess final policymaking authority with
respect to the contested decision, [
Footnote 2/5] the city may not be held accountable for
any constitutional wrong respondent may have suffered.
III
These determinations, it seems to me, are sufficient to dispose
of this case, and I therefore think it unnecessary to decide, as
the plurality does, who the actual policymakers in St. Louis are. I
question more than the mere necessity of these determinations,
however, for I believe that, in the course of passing on issues not
before us, the plurality announces legal principles that are
inconsistent with our earlier cases and unduly restrict the reach
of § 1983 in cases involving municipalities.
The plurality begins its assessment of St. Louis' power
structure by asserting that the identification of policymaking
officials is a question of state law, by which it means that the
question is neither one of federal law nor of fact, at least "not .
. . in the usual sense."
See ante at
485 U. S. 124.
Instead, the plurality explains, courts are to identify municipal
policymakers
Page 485 U. S. 143
by referring exclusively to applicable state statutory law.
Ibid. Not surprisingly, the plurality cites no authority
for this startling proposition, nor could it, for we have never
suggested that municipal liability should be determined in so
formulaic and unrealistic a fashion. In any case in which the
policymaking authority of a municipal tortfeasor is in doubt, state
law will naturally be the appropriate starting point, but
ultimately the factfinder must determine where such policymaking
authority actually resides, and not simply "where the applicable
law purports to put it."
Ante at
485 U. S. 126.
As the plurality itself acknowledges, local governing bodies may
take myriad forms. We in no way slight the dignity of
municipalities by recognizing that, in not a few of them, real and
apparent authority may diverge, and that, in still others, state
statutory law will simply fail to disclose where such authority
ultimately rests. Indeed, in upholding the Court of Appeals'
determination in
Pembaur that the County Prosecutor was a
policymaking official with respect to county law enforcement
practices, a majority of this Court relied on testimony which
revealed that the County Sheriff's office routinely forwarded
certain matters to the Prosecutor and followed his instructions in
those areas.
See 475 U.S. at
475 U. S. 485;
ibid. (WHITE, J., concurring);
id. at
475 U. S. 491
(O'CONNOR, J., concurring). While the majority splintered into
three separate camps on the ultimate theory of municipal liability,
and the case generated five opinions in all, not a single Member of
the Court suggested that reliance on such extrastatutory evidence
of the county's actual allocation of policymaking authority was in
any way improper. Thus, although I agree with the plurality that
juries should not be given open-ended
"
discretion to determine which officials are high
enough in the government that their actions can be said to
represent a decision of the government itself,"
ante at
485 U. S. 126
(emphasis added), juries can and must find the predicate facts
necessary to a determination whether a given official possesses
final policymaking authority. While the jury instructions in this
case were regrettably vague, the plurality's solution tosses
Page 485 U. S. 144
the baby out with the bathwater. The identification of municipal
policymakers is an essentially factual determination "in the usual
sense," and is therefore rightly entrusted to a properly instructed
jury.
Nor does the "custom or usage" doctrine adequately compensate
for the inherent inflexibility of a rule that leaves the
identification of policymakers exclusively to state statutory law.
That doctrine, under which municipalities and States can be held
liable for unconstitutional practices so well settled and permanent
that they have the force of law,
see Adickes v. S. H. Kress
& Co., 398 U.S. at
398 U. S. 167,
has little if any bearing on the question whether a city has
delegated
de facto final policymaking authority to a given
official. A city practice of delegating final policymaking
authority to a subordinate or mid-level official would not be
unconstitutional in and of itself, and an isolated unconstitutional
act by an official entrusted with such authority would obviously
not amount to a municipal "custom or usage." Under
Pembaur, of course, such an isolated act
should
give rise to municipal liability. Yet a case such as this would
fall through the gaping hole the plurality's construction leaves in
§ 1983, because state statutory law would not identify the
municipal actor as a policymaking official, and a single
constitutional deprivation, by definition, is not a well-settled
and permanent municipal practice carrying the force of law.
[
Footnote 2/6]
For these same reasons, I cannot subscribe to the plurality's
narrow and overly rigid view of when a municipal official's
policymaking authority is "final." Attempting to place a gloss on
Pembaur's finality requirement, the plurality suggests
that, whenever the decisions of an official are subject to
Page 485 U. S. 145
some form of review -- however limited -- that official's
decisions are nonfinal. Under the plurality's theory, therefore,
even where an official wields policymaking authority with respect
to a challenged decision, the city would not be liable for that
official's policy decision unless
reviewing officials
affirmatively approved both the "decision and the basis for it."
Ante at
485 U. S. 127.
Reviewing officials, however, may as a matter of practice never
invoke their plenary oversight authority, or their review powers
may be highly circumscribed.
See 485
U.S. 112fn2/4|>n. 4,
supra. Under such
circumstances, the subordinate's decision is in effect the final
municipal pronouncement on the subject. Certainly a § 1983
plaintiff is entitled to place such considerations before the jury,
for the law is concerned not with the niceties of legislative
draftsmanship, but with the realities of municipal decisionmaking,
and any assessment of a municipality's actual power structure is
necessarily a factual and practical one. [
Footnote 2/7]
Accordingly, I cannot endorse the plurality's determination,
based on nothing more than its own review of the City Charter, that
the Mayor, the Aldermen, and the CSC are the only policymakers for
the city of St. Louis. While these officials
Page 485 U. S. 146
may well have policymaking authority, that hardly ends the
matter; the question before us is whether the officials responsible
for respondent's allegedly unlawful transfer were final
policymakers. As I have previously indicated, I do not believe that
CDA Director Frank Hamsher possessed any policymaking authority
with respect to lateral transfers, and thus I do not believe that
his allegedly improper decision to transfer respondent could,
without more, give rise to municipal liability. Although the
plurality reaches the same result, it does so by reasoning that,
because others could have reviewed the decisions of Hamsher and
Killen, the latter officials simply could not have been final
policymakers.
This analysis, however, turns a blind eye to reality, for it
ignores not only the lower court's determination, nowhere disputed,
that CSC review was highly circumscribed and deferential, but also
the fact that, in this very case, the CSC refused to judge the
propriety of Hamsher's transfer decision because a lateral transfer
was not an "adverse" employment action falling within its
jurisdiction. Nor does the plurality account for the fact that
Hamsher's predecessor, Donald Spaid, promulgated what the city
readily acknowledges was a binding policy regarding secondary
employment; [
Footnote 2/8] although
the CSC ultimately modified the sanctions respondent suffered as a
result of his apparent failure to comply with that policy, the
record is devoid of any suggestion that the CSC reviewed the
substance or validity of the policy itself. Under the plurality's
analysis, therefore, even the hollowest promise of review is
sufficient to divest all city officials save the mayor and
governing legislative body of final policymaking authority. While
clarity and ease of application may
Page 485 U. S. 147
commend such a rule, we have remained steadfast in our
conviction that Congress intended to hold municipalities
accountable for those constitutional injuries inflicted not only by
their lawmakers, but also "by those whose edicts or acts may fairly
be said to represent official policy."
Monell, 436 U.S. at
436 U. S. 694.
Because the plurality's mechanical "finality" test is fundamentally
at odds with the pragmatic and factual inquiry contemplated by
Monell, I cannot join what I perceive to be its
unwarranted abandonment of the traditional factfinding process in §
1983 actions involving municipalities.
Finally, I think it necessary to emphasize that, despite certain
language in the plurality opinion suggesting otherwise, the Court
today need not and therefore does not decide that a city can only
be held liable under § 1983 where the plaintiff "prove[s] the
existence of an unconstitutional municipal policy."
See
ante at
485 U. S. 128.
Just last Term, we left open for the second time the question
whether a city can be subjected to liability for a policy that,
while not unconstitutional in and of itself, may give rise to
constitutional deprivations.
See Spring.field v. Kibbe,
480 U. S. 257
(1987);
see also Oklahoma City v. Tuttle, 471 U.
S. 808 (1985). That question is certainly not presented
by this case, and nothing we say today forecloses its future
consideration.
IV
For the reasons stated above, I concur in the judgment of the
Court reversing the decision below and remanding the case so that
the Court of Appeals may determine whether respondent's layoff
resulted from the actions of any improperly motivated final
policymakers.
[
Footnote 2/1]
Respondent also initially named Heritage Commissioner Henry
Jackson as a defendant, but later dropped him from the suit after
the latter left city government and moved out of the
jurisdiction.
[
Footnote 2/2]
The instruction in question directed the jury to find in favor
of respondent and against the individual defendants if it found,
among other things, that Hamsher and Kindleberger "were personally
involved in causing [respondent's] transfer and/
or
layoff." App. 118 (emphasis added). Although Hamsher was personally
involved in the transfer, the Court of Appeals found the phrase
"and/or" confusing, and thus decided that the jury must have
understood it to mean simply "and." 798 F.2d at 1172-1173, n. 3.
Because I believe Hamsher was not a final policymaking official, I
find it unnecessary to decide whether the court below properly
construed the jury instructions or to determine whether the jury's
verdicts were in fact inconsistent.
[
Footnote 2/3]
The plurality's suggestion that in
Owen and
Fact
Concerts we "
assumed that an unconstitutional
governmental policy could be
inferred from a single
decision,"
see ante at
485 U. S. 123
(emphasis added), elevates the identification of municipal policy
from touchstone to talisman. Section 1983 imposes liability where a
municipality
"subjects [a person], or causes [a person] to be subjected . . .
to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws. . . . "
Our decision in
Monell, interpreting the statute to
require a showing that such deprivations arise from municipal
policy, did not employ the policy requirement as an end in itself,
but rather as a means of determining which acts by municipal
employees are properly attributed to the municipality. Congress, we
held, did not intend to subject cities to liability simply because
they employ tortfeasors. But where a municipality's governing
legislative body inflicts the constitutional injury, the municipal
policy inquiry is essentially superfluous: the city is liable under
the statute whether its decision reflects a considered policy
judgment or nothing more than the bare desire to inflict harm.
[
Footnote 2/4]
While the Court of Appeals erred to the extent it equated the
authority to act on behalf of a city with the power to establish
municipal policy, in my view the lower court quite correctly
concluded that the CSC's highly circumscribed and deferential
review of Hamsher's decisions in no way rendered those decisions
less than final. We of course generally accord great deference to
the interpretation and application of state law by the courts of
appeals,
see Brockett v. Spokane Arcades, Inc.,
472 U. S. 491,
472 U. S. 500
(1985);
United States v. Varig Airlines, 467 U.
S. 797,
467 U. S. 815,
n. 12 (1984), and that deference is certainly applicable to the
Court of Appeals' assessment of the scope of CSC review. Moreover,
the facts of this case reveal that the CSC believed it lacked the
authority to review lateral transfers. Accordingly, had Hamsher
actually possessed policymaking authority with respect to such
decisions, I would have little difficulty concluding that such
authority was final.
See infra at
485 U. S.
145-146.
[
Footnote 2/5]
I am unable to agree with JUSTICE STEVENS that the record
provides sufficient evidence of complicity on the part of other
municipal policymakers such that we may sustain the jury's verdict
against petitioner on a conspiracy theory neither espoused nor
addressed by the court below. JUSTICE STEVENS' dissent relies to a
large extent on respondent's controversial public testimony about
the Serra sculpture, and the unwelcome reception that testimony
drew in the Mayor's office.
See post at
485 U. S.
149-155. Whatever else may be said about the strength of
this evidence, however, the dissent's reliance on it is flawed in
one crucial respect: the jury instructions concerning respondent's
First Amendment claim refer exclusively to the exercise of his
appellate rights before the CSC, and make no mention whatever of
his public testimony. Under these circumstances, the jury was
simply not at liberty to impose liability against petitioner based
on the allegedly retaliatory actions of the Mayor and his close
associates; thus we may not sustain its verdict on the basis of
such evidence.
[
Footnote 2/6]
Indeed, the plurality appears to acknowledge as much when it
explains that the "custom or usage" doctrine will forestall
"
egregious attempts by local governments to insulate
themselves from liability for unconstitutional policies," and that
"
most deliberate municipal evasions of the Constitution
will be sharply limited."
Ante at
485 U. S. 127
(emphases added). Congress, however, did not enact § 1983 simply to
provide redress for "most" constitutional deprivations, nor did it
limit the statute's reach only to those deprivations that are truly
"egregious."
[
Footnote 2/7]
The plurality also asserts that
"[w]hen an official's discretionary decisions are constrained by
policies not of that official's making, those policies, rather than
the subordinate's departures from them, are the act of the
municipality."
Ante at
485 U. S. 127.
While I have no quarrel with such a proposition in the abstract, I
cannot accept the plurality's apparent view that a municipal
charter's precatory admonition against discrimination or any other
employment practice not based on merit and fitness effectively
insulates the municipality from any liability based on acts
inconsistent with that policy. Again, the relevant inquiry is
whether the policy in question is actually and effectively enforced
through the city's review mechanisms. Thus in this case, a policy
prohibiting lateral transfers for unconstitutional or
discriminatory reasons would not shield the city from liability if
an official possessing final policymaking authority over such
transfers acted in violation of the prohibition, because the CSC
would lack jurisdiction to review the decision, and thus could not
enforce the city policy. Where, as here, however, the official
merely possesses discretionary authority over transfers, the city
policy is irrelevant, because the official's actions cannot subject
the city to liability in any event.
[
Footnote 2/8]
Although the plurality is careful in its discussion of the facts
to label Director Spaid's directive a "requirement," rather than a
"policy," the city itself draws no such fine semantic distinctions.
Rather, it states plainly that Spaid "promulgated a
secondary
employment' policy that sought to control outside
employment by CDA architects," and that "[respondent] resented the
policy. . . ." Brief for Petitioner 2-3 (emphasis added).
JUSTICE STEVENS, dissenting.
If this case involved nothing more than a personal vendetta
between a municipal employee and his superiors, it would be quite
wrong to impose liability on the city of St. Louis. In fact,
however, the jury found that top officials in the city
administration, relying on pretextual grounds, had taken a
series
Page 485 U. S. 148
of retaliatory actions against respondent because he had
testified truthfully on two occasions, one relating to personnel
policy and the other involving a public controversy of importance
to the Mayor and the members of his cabinet. No matter how narrowly
the Court may define the standards for imposing liability upon
municipalities in § 1983 litigation, the judgment entered by the
District Court in this case should be affirmed.
In order to explain why I believe that affirmance is required by
this Court's precedents, [
Footnote
3/1] it is necessary to begin with a more complete statement of
the disputed factual issues that the jury resolved in respondent's
favor, and then to comment on the procedural posture of the case.
Finally, I shall discuss the special importance of the character of
the wrongful conduct disclosed by this record.
I
The city of St. Louis hired respondent as a licensed architect
in 1968. During the ensuing decade, he was repeatedly
Page 485 U. S. 149
promoted and consistently given "superior" performance ratings.
In April, 1980, while serving as the Director of Urban Design in
the Community Development Agency (CDA), he was recommended for a
two-step salary increase by his immediate superior.
See 3
Record 1-51.
Thereafter, on two occasions, he gave public testimony that was
critical of official city policy. In 1980, he testified before the
Civil Service Commission (CSC) in support of his successful appeal
from a 15-day suspension. In that testimony, he explained that he
had received advance oral approval of his outside employment and
voiced his objections to the requirement of prior written approval.
[
Footnote 3/2] The record
demonstrates
Page 485 U. S. 150
that this testimony offended his immediate superiors at the CDA.
[
Footnote 3/3]
In 1981 respondent testified before the Heritage and Urban
Design Commission (HUD) in connection with a proposal
Page 485 U. S. 151
to acquire a controversial rusting steel sculpture by Richard
Serra. In his testimony, he revealed the previously undisclosed
fact that an earlier city administration had rejected an offer to
acquire the same sculpture, and also explained that the erection of
the sculpture would require the removal of structures on which the
city had recently expended about $250,000. [
Footnote 3/4] This testimony offended top officials
Page 485 U. S. 152
of the city government, possibly including the Mayor, who
supported the acquisition of the Serra sculpture, as well as
respondent's agency superiors. [
Footnote 3/5] They made it perfectly
Page 485 U. S. 153
clear that they believed that respondent had violated a duty of
loyalty to the Mayor by expressing his personal opinion about the
sculpture. Thus, defendant Hamsher testified:
Page 485 U. S. 154
"I'm not fond of the sculpture and wasn't then. But the mayor
was elected by the people, and he made the decision. He was going
to support the installation of the sculpture."
"Therefore, it was my responsibility and the responsibility of
others who worked for my agency to do so
Page 485 U. S. 155
as well, and not to express personal opinions in public forums
about what that sculpture was going to be and what it would look
like."
5
id. at 3-180. Defendant Kindleberger made the same
point:
"Well, I think the obligation for a senior management individual
is to represent fairly the position of his boss which, in our case,
happens to be the mayor. And I would -- I just think that is
something that is appropriate for senior management to do."
5
id. at 3-250.
After this testimony, respondent was the recipient of a series
of adverse personnel actions that culminated in his transfer from
an important management-level professional position to a rather
menial assignment for which he was "grossly overqualified," 3
id. at 1-80, and his eventual layoff. [
Footnote 3/6] In
Page 485 U. S. 156
preparing respondent's service ratings after the Serra sculpture
incident, his superiors followed a "highly unusual" procedure that
may have violated the city's personnel regulations. [
Footnote 3/7] Moreover, management
officials who were involved in implementing the decision to
transfer respondent to a menial assignment made it clear that
"there was no reason" for the transfer -- except, it would seem,
for the possible connection
Page 485 U. S. 157
with "the Serra sculpture incident." [
Footnote 3/8] It is equally clear that the city's
asserted basis for respondent's ultimate layoff in 1983 -- a lack
of funds -- was pretextual. [
Footnote
3/9]
Thus, evidence in the record amply supports the conclusion that
respondent was first transferred and then laid off, not for fiscal
and administrative reasons, but in retaliation for his public
testimony before the CSC and HUD. [
Footnote 3/10] It is undisputed
Page 485 U. S. 158
that respondent's right to testify in support of his civil
service appeal and his right to testify in opposition to the city's
acquisition of the Serra sculpture were protected by the First
Amendment to the Federal Constitution. Given the jury's verdict,
the case is therefore one in which a municipal employee's federal
constitutional rights were violated by officials of the city
government. There is, however, a dispute over the identity of the
persons who were responsible for that violation. At trial,
respondent relied on alternative theories: either his immediate
superiors at CDA (who were named as individual defendants) should
be held accountable or, if the decisions were made at a higher
level of government, the city should be held responsible.
The record contains a good deal of evidence of participation in
the constitutional tort by respondent's superiors at CDA, by those
directly under the Mayor, and perhaps by the Mayor himself.
[
Footnote 3/11] Moreover, in
closing argument, defense counsel
Page 485 U. S. 159
attempted to exonerate the three individual defendants by
referring to the actions of higher officials who were not named as
defendants. [
Footnote 3/12]
Page 485 U. S. 160
Thus, we have a case in which, after a full trial, a jury
reasonably concluded that top officials in a city's administration,
possibly including the Mayor, acting under color of
Page 485 U. S. 161
law, took retaliatory action against a gifted but freethinking
municipal employee for exercising rights protected by the First
Amendment to the Federal Constitution. The legal
Page 485 U. S. 162
question is whether the city itself is liable for such conduct
under § 1983. [
Footnote 3/13]
II
In the trial court, there was little, if any, dispute over the
governing rules of law. In advance of trial, the city filed a
Page 485 U. S. 163
motion for summary judgment that the District Court ultimately
denied because the record contained an affidavit stating that
respondent "was transferred due to
connivance' of the mayor,
the mayor's chief of staff, and the city's personnel director." 1
Record 130. No one appears to have questioned the proposition that,
if such facts could be proved at trial, the city could be held
liable. [Footnote 3/14]
Page 485 U. S.
164
After respondent's evidence had been presented at trial, the
city made a motion for a directed verdict, again advancing the
argument that there was insufficient evidence in the record to
support a judgment against the city. The argument on that motion
does not indicate that the parties had any dispute about the
applicable rules of law. For counsel for the city argued:
"I understand that you can be liable -- a municipality can be
held liable if its high ranking officials are allowed to violate
someone's constitutional rights. I fail to see how you can find any
evidence that the City of St. Louis did that."
5
id. at 3-28. The jury obviously disagreed with this
assessment of the evidence. Moreover, the judge denied that motion,
initially and at the close of all evidence, as well as the city's
motion for a judgment notwithstanding the verdict.
Finally, the ultimate instruction to the jury on the issue of
municipal liability was in fact proposed by the city's attorney, as
the plurality acknowledges,
ante at
485 U. S. 119;
see Brief for Respondent 48; Reply Brief for Petitioner
6:
"As a general principle, a municipality is not liable under 42
U.S.C. § 1983 for the actions of its employees. However, a
municipality may be held liable under 42 U.S.C. § 1983 if the
allegedly unconstitutional act was
Page 485 U. S. 165
committed by an official high enough in the government so that
his or her actions can be said to represent a government
decision."
Instruction No. 15, App. 113. [
Footnote 3/15]
In my opinion, it is far too late for the city to contend that
the jury instructions on municipal liability were insufficient or
erroneous. [
Footnote 3/16] In
Oklahoma City v. Tuttle, 471 U. S. 808
(1985), we permitted an objection to an instruction by defendant
for the first time on appeal only because plaintiff failed to raise
the contemporaneous-objection argument until its brief on the
merits in this Court. We stated that such arguments "should be
brought to our attention
no later than in respondent's
brief in opposition to the petition for certiorari."
Id.
at
471 U. S. 816
(emphasis in original). In this case, respondent properly pointed
out in his response to the petition for a writ of
Page 485 U. S. 166
certiorari that petitioner had failed to object to the relevant
jury instruction. Brief in Opposition 10-11. [
Footnote 3/17]
Apparently acknowledging that this case cannot be decided on the
basis of any possible error in any of the jury instructions, the
plurality views petitioner's motions for summary judgment and a
directed verdict as raising and preserving a legal question
concerning the standard for determining municipal liability.
Ante at
485 U. S. 120.
But these motions did not raise any legal issue that was disputed.
It is most unfair to permit a defeated litigant in a civil case
tried to a verdict before a jury to advance legal arguments that
were not made in the District Court, especially when that litigant
agrees, both in its motions and proposed instructions, with its
opponent's view of the law. [
Footnote
3/18] Although, as the plurality points out, the
Page 485 U. S. 167
question presented in the certiorari petition "was manifestly
framed in light of the holding of the Court of Appeals,"
ante at
485 U. S. 119,
the legal issue of municipal liability had never been raised in the
District Court.
Given the procedural history, it is not only unfair to
respondent, but also poor judicial practice, to use this case as a
bulldozer to reshape "a legal landscape whose contours are
in a
state of evolving definition and uncertainty.'" Ante at
485 U. S. 120
(plurality opinion) (citation omitted). It would be far wiser in
the long run simply to resolve the issues that have been properly
framed by the litigants and preserved for review. Nevertheless, in
view of the fact that the Court has "set out again to clarify the
issue that we last addressed in Pembaur," ante at
485 U. S. 124
(plurality opinion), it is appropriate to explain my view of how
our precedents in this area apply to this case.
III
In
Monell v. New York City Dept. of Social Services,
436 U. S. 658
(1978), we held that municipal corporations are "persons" within
the meaning of 42 U.S.C. § 1983. Since a corporation is incapable
of doing anything except through the agency of human beings, that
holding necessarily gave rise to the question of what human
activity undertaken by agents of the corporation may create
municipal liability in § 1983 litigation. [
Footnote 3/19]
The first case dealing with this question was, of course,
Monell, in which female employees of the Department of
Social
Page 485 U. S. 168
Services and the Board of Education of New York City challenged
the constitutionality of a city-wide policy concerning pregnancy
leave. Once it was decided that the city was a "person," it
obviously followed that the city had to assume responsibility for
that policy. Even if some departments had followed a lawful policy,
I have no doubt that the city would nevertheless have been
responsible for the decisions made by either of the two major
departments that were directly involved in the litigation.
In
Owen v. City of Independence, 445 U.
S. 622 (1980), the Court held that municipalities are
not entitled to qualified immunity based on the good faith of their
officials. As a premise to this decision, we agreed with the Court
of Appeals that the city "was responsible for the deprivation of
petitioner's constitutional rights."
Id. at
445 U. S. 633;
see also id. at
445 U. S. 655,
n. 39. Petitioner had been fired as City Chief of Police without a
notice of reasons and without a hearing, after the City Council and
the City Manager had publicly reprimanded him for his
administration of the Police Department property room. This
isolated personnel action was clearly not taken pursuant to a rule
of general applicability; nonetheless, we had no problem with the
Court of Appeals' conclusion that the action of the City Council
and City Manager was binding on the city. [
Footnote 3/20]
Page 485 U. S. 169
In the next municipal liability case, the Court held that an
isolated unconstitutional seizure by a sole police officer did not
bind the municipality.
Oklahoma City v. Tuttle,
471 U. S. 808
(1985). [
Footnote 3/21] Thus,
that holding rejected the common law doctrine of
respondeat
superior as the standard for measuring municipal liability
under § 1983. It did not, of course, reject the possibility that
liability might be predicated on the conduct of management level
personnel with policymaking authority.
Finally, in
Pembaur v. Cincinnati, 475 U.S. at
475 U. S. 471,
we definitively held that a "decision by municipal policymakers on
a single occasion" was sufficient to support an award of damages
against the municipality. In
Pembaur, a County Prosecutor
had advised County Sheriffs at the doorstep of a recalcitrant
doctor to "go in and get [the witnesses]" to alleged charges of
fraud by the doctor.
Id. at
475 U. S. 473.
Because the Sheriffs possessed only arrest warrants for the
witnesses, and not a search warrant for the doctor's office as
well, the
Page 485 U. S. 170
advice was unconstitutional,
see Steagald v. United
States, 451 U. S. 204
(1981), and the question was whether the County Prosecutor's
isolated act could subject the county to damages under § 1983 in a
suit by the doctor. In the part of his opinion that commanded a
majority of the Court, JUSTICE BRENNAN wrote:
"[A] government frequently chooses a course of action tailored
to a particular situation and not intended to control decisions in
later situations. If the decision to adopt that particular course
of action is properly made by that government's authorized
decisionmakers, it surely represents an act of official government
'policy' as that term is commonly understood. More importantly,
where action is directed by those who establish governmental
policy, the municipality is equally responsible whether that action
is to be taken only once or to be taken repeatedly."
Pembaur v. Cincinnati, 475 U.S. at
475 U. S. 481
(footnote omitted). Since the County Prosecutor was authorized to
establish law enforcement policy, his decision in that area could
be attributed to the county for purposes of § 1983 liability. As
Justice Powell correctly pointed out in his dissent, "the Court . .
. focus[ed] almost exclusively on the status of the decisionmaker."
Id. at
475 U. S.
498.
Thus, the Court has permitted a municipality to be held liable
for the unconstitutional actions of its agents when those agents
enforced a rule of general applicability (
Monell); were of
sufficiently high stature and acted through a formal process
(
Owen); or were authorized to establish policy in the
particular area of city government in which the tort was committed
(
Pembaur). Under these precedents, the city of St. Louis
should be held liable in this case.
Both
Pembaur and the plurality and concurring opinions
today acknowledge that a high official who has ultimate control
over a certain area of city government can bind the city
Page 485 U. S. 171
through his unconstitutional actions even though those actions
are not in the form of formal rules or regulations.
See Pembaur
v. Cincinnati, supra, at
475 U. S.
479-481;
ante at
485 U. S. 123
(plurality), at
485 U. S.
139-140 (concurrence). Although the Court has explained
its holdings by reference to the nonstatutory term "policy," it
plainly has not embraced the standard understanding of that word as
covering a rule of general applicability. Instead it has used that
term to include isolated acts not intended to be binding over a
class of situations. But when one remembers that the real question
in cases such as this is not "what constitutes city policy?" but
rather "when should a city be liable for the acts of its agents?",
the inclusion of single acts by high officials makes sense, for
those acts bind a municipality in a way that the misdeeds of low
officials do not.
Every act of a high official constitutes a kind of "statement"
about how similar decisions will be carried out; the assumption is
that the same decision would have been made, and would again be
made, across a class of cases. Lower officials do not control
others in the same way. Since their actions do not dictate the
responses of various subordinates, those actions lack the potential
of controlling governmental decisionmaking; they are not perceived
as the actions of the city itself. If a county police officer had
broken down Dr. Pembaur's door on the officer's own initiative,
this would have been seen as the action of an overanxious officer,
and would not have sent a message to other officers that similar
actions would be countenanced. One reason for this is that the
County Prosecutor himself could step forward and say "that was
wrong"; when the County Prosecutor authorized the action himself,
only a self-correction would accomplish the same task, and until
such time, his action would have count-ywide ramifications. Here,
the Mayor, those working for him, and the agency heads are
high-ranking officials; accordingly, we must assume that their
actions have city-wide ramifications, both through their similar
response to a like
Page 485 U. S. 172
class of situations, and through the response of subordinates
who follow their lead. [
Footnote
3/22]
Just as the actions of high-ranking and low-ranking municipal
employees differ in nature, so do constitutional torts differ. An
illegal search (
Pembaur) or seizure (
Tuttle) is
quite different from a firing without due process (
Owen);
the retaliatory personnel action involved in today's case is in
still another category. One thing that the torts in
Pembaur,
Tuttle, and
Owen had in common is that they occurred
"in the open"; in each of those cases, the ultimate judgment of
unconstitutionality was based on whether undisputed events (the
breaking-in in
Pembaur, the shooting in
Tuttle,
the firing in
Owen) comported with accepted constitutional
norms. But
Page 485 U. S. 173
the typical retaliatory personnel action claim pits one story
against another; although everyone admits that the transfer and
discharge of respondent occurred, there is sharp, and ultimately
central, dispute over the reasons -- the motivation -- behind the
actions.
The very nature of the tort is to avoid a formal
process. Owen's relevance should thus be clear. For
if the Court is willing to recognize the existence of municipal
policy in a nonrule case as long as high enough officials engaged
in a formal enough process, it should not deny the existence of
such a policy merely because those same officials act
"underground," as it were. It would be a truly remarkable doctrine
for this Court to recognize municipal liability in an employee
discharge case when high officials are foolish enough to act
through a "formal process," but not when similarly high officials
attempt to avoid liability by acting on the pretext of budgetary
concerns, which is what this jury found based on the evidence
presented at trial.
Thus, holding St. Louis liable in this case is supported by both
Pembaur and
Owen. We hold a municipality liable
for the decisions of its high officials in large part because those
decisions, by definition, would be applied across a class of cases.
Just as we assume in
Pembaur that the County Prosecutor
(or his subordinates) would issue the same break-down-the-door
order in similar cases, and just as we assume in
Owen that
the City Council (or those following its lead) would fire an
employee without notice of reasons or opportunity to be heard in
similar cases, so too must we assume that whistleblowers like
respondent would be dealt with in similar retaliatory fashion if
they offend the Mayor, his staff, and relevant agency heads, or if
they offend those lower ranking officials who follow the example of
their superiors. Furthermore, just as we hold a municipality liable
for discharging an employee without due process when its city
council acts formally -- for a due process violation is precisely
the
type of constitutional tort that a city council might
commit when it acts formally -- so too must we hold a municipality
liable for discharging an employee in retaliation against his
public speech
Page 485 U. S. 174
when similarly high officials act informally -- for a First
Amendment retaliation tort is precisely the
type of
constitutional tort that high officials might commit when they act
in concert and informally.
Whatever difficulties the Court may have with binding
municipalities on the basis of the unconstitutional conduct of
individuals, it should have no such difficulties binding a city
when many of its high officials -- including officials directly
under the Mayor, agency heads, and possibly the Mayor himself --
cooperate to retaliate against a whistleblower for the exercise of
his First Amendment rights. [
Footnote
3/23]
I would affirm the judgment of the Court of Appeals.
[
Footnote 3/1]
This would, of course, be an easy case if the Court disavowed
its dicta in Part II of the opinion in
Monell v. New York City
Dept. of Social Services, 436 U. S. 658,
436 U. S.
691-695 (1978).
See id. at
436 U. S. 714
(STEVENS, J., concurring in part). Like many commentators who have
confronted the question, I remain convinced that Congress intended
the doctrine of
respondeat superior to apply in § 1983
litigation.
See Oklahoma City v. Tuttle, 471 U.
S. 808,
471 U. S.
834-844 (1985) (STEVENS, J., dissenting);
Pembaur v.
Cincinnati, 475 U. S. 469,
475 U. S. 489,
n. 4 (1986) (STEVENS, J., concurring in part and concurring in
judgment);
see also Whitman, Government Responsibility for
Constitutional Torts, 85 Mich.L.Rev. 225, 236, n. 43 (1986). Given
the Court's reiteration of the contrary
ipse dixit in
Monell and subsequent opinions, however,
see Oklahoma
City v. Tuttle, supra, at
471 U. S. 818;
Pembaur v. Cincinnati, supra, at
475 U. S.
477-480, I shall join the Court's attempt to draw an
intelligible boundary between municipal agents' actions that bind
and those that do not. Since it represents a departure from
Congress' initial intention that
respondeat superior
principles apply in this context, this endeavor necessarily
involves the Court in some consideration of "new theory,"
see
ante at
485 U. S. 125,
n. 2 (plurality). Even so, we should be guided by the congressional
purposes that motivated the enactment of § 1983, rather than by a
nonstatutory judge-made presumption that gives "extremely wide
latitude" to a profusion of "local preferences."
Ante at
485 U. S.
124.
[
Footnote 3/2]
"Q. [Mr. Oldham, respondent's attorney] Mr. Praprotnik, during
this period of time, was there a salary limit on salaries imposed
by the City Charter?"
"A. [Mr. Praprotnik] Yes. It was established at $25,000
annually."
"Q. All right. And were employees in CDA permitted to have
secondary employment -- "
"A. Yes, they were."
"Q. And were you required to fill out any particular type of
form or document?"
"A. Yes. We had to fill out an employee secondary employment
questionnaire on an annual basis at the time of our review of our
service rating."
"Q. Now, did you fill out a secondary employment form?"
"A. Yes, I did, for each year."
"Q. Now. Were you then at any time suspended for a matter
involving the secondary employment?"
"A. Yes. I was suspended in April, April 29th, 1980, for failure
to provide information to my immediate supervisors."
"Q. And did you provide that information to your immediate
supervisors?"
"A. Yes, I did."
"Q. Did you fill out a form which gave, in detail, the places
where you had worked?"
"A. Yes. As had always been required in the past, I had filled
out the questionnaire and submitted it each year explaining that I
had practiced architecture."
"Q. Now after you were suspended, did you take any action to
protest that suspension or petition anybody for correction of the
action taken against you?"
"A. Yes. I had appealed that to the Civil Service
Commission."
"
* * * *"
"Q. And after the hearing, was there a decision by the
Commission?"
"A. Yes. The Commission had ruled in favor of myself."
"Q. Could you tell me what your length of suspension was?"
"A. It was for fifteen days."
"Q. And were you reinstated with back pay?"
"A. Yes, I was."
3 Record 1-45 - 1-47.
"A. [Mr. Praprotnik to Ms. Ronzio, petitioner's attorney] I had
been singled out to provide this information. No one else, as was
-- in the Civil Service Commission, no one else was asked to do
this, to provide the listing of clients. And this was -- and I had
indicated the reason for that, because of the standards of ethical
practice."
4
id. at 2-35.
[
Footnote 3/3]
"Q. [Mr. Oldham] And in this rating, what recommendation is made
for you?"
"A. [Mr. Praprotnik] This recommendation is -- this is October
30th, 1980. This is a recommendation for a two-step decrease in
salary."
"Q. Did you ever discuss with Mr. Kindleberger [Director of
Planning, CDA] the reason why you were given two ratings on almost
the same day, one for no change and one for a two-step
decrease?"
"A. Yes. I could not understand, you know, with the same
evaluation performance being similar, that -- at one point the
recommendation of a two-step increase -- and this occurring shortly
thereafter with a two-step decrease."
"Q. All right. What did Mr. Kindleberger say to you about
that?"
"A. At the time, it was that,
The director, Mr. Spaid
[Director, CDA, until April, 1981], is very down on you.' That was
his exact words."
"Q. Did he tell you why he was down on you?"
"A. He stated that I had lied before the Commission, the Civil
Service Commission."
3
id. at 1-54 - 1-55.
"A. [Mr. Kindleberger to Ms. Ronzio] I guess I was somewhat
irritated at the whole process at this point. And I thought that
Mr. Praprotnik had gotten an adequate rating and that he was being
dealt with fairly and that he was not being as cooperative as he
might. I also thought, and still believe, that the process for
appealing a rating was one that involved the Department of
Personnel looking at the rating and participating in some kind of
conciliatory procedures of the kind that were described earlier by
Mr. Duffe [City Director of Personnel], whereby an attempt was made
to get the individual that was unsatisfied and the supervisor
together and get them talking to each other. And that, after that,
if there was still dissatisfaction, there was a process of going
through the Civil Service Commission. And I thought it was
inappropriate for Jim Praprotnik and his lawyer to get involved
before it got over to the Department of Personnel, and I told that
to Mr. Brewster [Deputy Director, CDA]."
5
id. at 3-230 - 3-231.
"Q. [Mr. Oldham] Did Mr. Spaid say something to the effect that
he was down on Praprotnik?"
"A. [Mr. Kindleberger] That sounds right."
"Q. And that he felt he had not been honest, had not testified
honestly at the Civil Service Commission, or words to that
effect?"
"A. I don't know if Mr. Spaid said it, but I know I felt it at
the time."
5
id. at 3-237.
See also 3
id. at
1-57, 1-58, 1-60, 1-66, 4
id. at 2-94, 2-141.
[
Footnote 3/4]
"Q. [Mr. Oldham] I want to direct your attention to a period
which involved a discussion of the Serra sculpture. Does that
refresh your memory or do you have a recollection of that
incident?"
"A. [Mr. Praprotnik] Yes, I do."
"Q. What -- could you tell me approximately when this incident
occurred?"
"A. This was immediately prior to the erection of the rusting
steel sculpture which we have right out here on Market Street, the
erection of that. And it was a meeting of the Heritage and Urban
Design Commission of which I served as liaison from the Community
Development Agency."
"Q. Were you requested to testify before the Commission?"
"A. Yes, I was requested by the chairperson of that
Commission."
"
* * * *"
"Q. And were you required to make some comment on the Serra
sculpture and its appropriateness at that spot?"
"A. That's correct. I was. And whether it conformed to the
overall plan for the Gateway Mall, the center open space all the
way down to the courthouse."
4
id. at 2-3 - 2-4.
"Q. [Mr. Oldham] Do you know anything about the time that Mr.
Praprotnik appeared before the Commission in regard to testimony
involving the Serra sculpture?"
"A. [Ms. Buckley, Chairperson, HUD] Yes, I do because, I asked
him to attend that meeting of the Commission."
"
* * * *"
"Mr. Praprotnik appeared and this was the first time I had seen
him in this capacity. This was at this committee meeting of the
Commission. He stated that the City had been presented the Serra
sculpture once before. The people who were presenting it said this
was the first time it was being presented to the City."
"
* * * *"
"Q. Could you describe who was present in the hearing room and
the amount of interest there was in regard to the Serra
sculpture?"
"A. There was a great deal of interest. The hearing room was
always filled because there were so many applicants of people
[
sic] who had projects they wanted to bring. But whenever
something came in -- "
"Q. Was the mayor's office in there, too?"
"A. I don't know all the people in the mayor's office but, yes,
I knew from the whispering around me and from some of the faces
that were familiar that, yes, these were the mayor's people, or at
least the City people who came in to watch."
4
id. at 2-88 - 2-90.
[
Footnote 3/5]
"Q. [Mr. Oldham] All right. Now, after you testified before the
Commission, did you have any conversation with Mr. Hamsher
[Director, CDA, when respondent was transferred; elevated to Deputy
Director of Development, Mayor's Office, in June, 1982, and present
at that position when respondent was laid off]?"
"A. [Mr. Praprotnik] Yes. I was called into the office
immediately after that meeting the following morning. And together
with Mr. Hamsher and also Mr. Kindleberger, was told that certain
information that I had stated at that Commission meeting that I
should have 'muffed it.'"
"Q. You shouldn't have -- "
"A. Meaning that I should have concealed it, you know, from
their -- from exposure to the Commission."
"Q. What information was Mr. Hamsher talking about?"
"A. This was regarding the City's original expenditure of funds
for that block amounting to an open space grant of approximately
$250,000 to develop the block originally, and the City was going to
remove all of that for erection of this rusting steel
sculpture."
"
* * * *"
"Q. Did that discussion result -- was that discussion one of the
factors that was used in your service rating?"
"A. Yes, it was."
4
id. at 2-4 - 2-6.
"Q. [Mr. Oldham] You did rate him on the Serra sculpture?"
"A. [Mr. Karetski, Deputy City Planning Director, CDA] That was
a factor, yes."
5
id. at 3-45.
"Q. [Ms. Ronzio] [L]et me make a break at this point and ask you
about something that happened while Mr. Praprotnik was at the
Community Development Agency. There's been some discussion of the
Serra sculpture incident?"
"A. [Mr. Hamsher] Yes."
"Q. Did you have occasion to reprimand Mr. Praprotnik for
something he said concerning the Serra sculpture, the rusting steel
sculpture as someone described it, downtown here?"
"A. I don't know that reprimand is the right term. I did have a
discussion about something that occurred on that sculpture,
yes."
"Q. Did you indicate you were displeased with what he had
done?"
"A. Yes, I did."
"Q. Will you tell us what it was you had the discussion with him
about and what you were upset about?"
"A. Yes. I read in the newspaper one morning that Mr. Praprotnik
was quoted, something about his personal opinion about the merit or
lack of merit of the sculpture. And I was concerned about that
because a decision had been made by the City administration that we
all worked for, that we wanted to recommend -- that the City
administration wanted to recommend the installation of the Serra
sculpture."
"I happened to disagree with the decision myself. I'm not fond
of the sculpture, and wasn't then. But the mayor was elected by the
people, and he made the decision. He was going to support the
installation of the sculpture."
"Therefore, it was my responsibility and the responsibility of
others who worked for my agency to do so as well, and not to
express personal opinions in public forums about what that
sculpture was going to be and what it would look like."
"Q. Did you take any disciplinary actions such as suspension or
reduction in pay?"
"A. No, I did not. I believe I sent Mr. Praprotnik a note about
it to make him understand that I thought this was important, but
that's all my recollection was, and I had a discussion with him.
But I didn't take any personnel action about it. Frankly, I didn't
give any further thought to it."
5
id. at 3-179 - 3-181.
"Q. [Mr. Oldham] Did you know that Mr. Praprotnik had been
requested to appear before the Heritage and Urban Design
Committee?"
"A. [Mr. Kindleberger] I think I did."
"Q. Is it an obligation of a City employee who is requested to
testify before one of these commissions to enter [
sic]
honestly and truthfully?"
"A. Well, I think the obligation for a senior management
individual is to represent fairly the position of his boss which,
in our case, happens to be the mayor. And I would -- I just think
that is something that is appropriate for senior management to
do."
"Q. Now, when he was asked whether or not this had been
presented to the City before, and he said that it had -- "
"A. Well, obviously, any questions of fact, one should be
truthful."
"Q. And if he's asked his professional opinion, what should he
do?"
"A. Well, if someone is asked their own personal, professional
opinion, they should render it. But one has to be awfully careful
that you don't somehow imply that is the staff's opinion, or that
is the agency's opinion. And I think it's a question of judgment,
but that is one of the things that senior managers need to have, is
judgment."
"Q. The mayor was quite upset, wasn't he?"
"A. I don't know that for a fact. He never spoke to me about
it."
"Q. Isn't it true the Pulitzer family was very interested in
this?"
"A. The Serra sculpture?"
"Q. Yes."
"A. Emily Pulitzer is a person who has long wanted that
sculpture."
"Q. She is connected with the Post-Dispatch?"
"A. I believe she is married to the publisher."
5
id. at 3-249 - 3-251.
[
Footnote 3/6]
"Q. [Mr. Oldham] I'd like to direct your attention to March of
1982. Was that the period of time that there was a transfer?"
"A. [Mr. Praprotnik] Yes. [O]n March 23rd, I was called to the
director's office, Mr. Frank Hamsher, and was told that I would be
transferred to the Heritage and Urban Design Commission. And this
was two weeks prior to the pending layoff recommendations at the
agency."
"
* * * *"
"Q. Did [Mr. Jackson, Commissioner, HUD] make any statement to
you as to whether he had sought your services?"
"A. Yes. He stated that he didn't want me in the first place,
that he had requested a historic preservation planner for that
position, which was several grades below my management position
level."
"
* * * *"
"Q. Now, just prior to [the then unknown attempt to fire
respondent, one year prior to his actual dismissal], did you
receive a rating?"
"A. Yes, I did, in October [1982]."
"Q. Let me hand you that rating, which is Plaintiff's Exhibit
92, and ask you to look at the second page thereof. In that rating,
does it make any statement about your qualifications or your
overqualifications for the position?"
"A. Yes. It states in the paragraph related to 'Have the duties
in the employee's position changed significantly during this rating
period,' it states -- Mr. Jackson places in this space: 'Mr.
Praprotnik's former position was as a supervisor at CDA . . . which
included administration of his unit and supervision of staff. In
his new capacity here, there is no supervision of any professional
staff and, in fact, the original vacancy was for an historic
preservation planner I or II, and which is intended to function as
a junior staff position to existing staff, and for which Mr.
Praprotnik is grossly overqualified.'"
3
id. at 1-66 - 1-67, 1-71, 1-79 - 1-80.
"Q. [Mr. Oldham] Would you describe [Mr. Praprotnik's tasks at
HUD] as menial?"
"A. [Ms. Buckley] I would."
4
id. at 2-88.
[
Footnote 3/7]
"Q. [Mr. Oldham] Is he entitled to know the basis on which the
service rating is given?"
"A. [Mr. Brewster] That is standard operating procedure, I
think, in any management procedure. Certainly at CDA it was."
"Q. So this [Mr. Kindleberger's telling Mr. Brewster not to
discuss the rating with Mr. Praprotnik] was unusual?"
"A. I would say highly unusual."
"Q. After you made a study of the evaluation, what
determinations did you make as to whether or not it had been
properly and fairly done?"
"A. As I recall, I found several discrepancies for which I did
write a memo of finding on -- I don't have it."
"Q. Can you recall, Mr. Brewster? We have enough exhibits. If
you can recall from your own memory?"
"A. Well, the substance of it, as I recall, would be that the
so-called standards that they were rating Mr. Praprotnik on were
standards that could not even be measured, either quantifiably or
qualifiably. So, therefore, there were not, in any actuality, they
did not have any merit to them."
"
* * * *"
"And, as I recall, the two, Karetski, who was rater number one,
and Kindleberger, who was rater number two, actually collaborated
in the rating prior to the rating being done, which, in my
estimation, was completely in violation of the City rules and
regulations which specifically state that rater number one is not
supposed to be influenced in his rating by any person."
4
id. at 2-106 - 2-107, 2-109.
[
Footnote 3/8]
"Q. [Mr. Oldham] Did you ever discuss Mr. Praprotnik with Mr.
Jackson as to whether they needed his services in the
facility?"
"A. [Ms. Buckley] I'll have to go back a minute to the Serra
sculpture incident. After that meeting, the major meeting where the
Serra sculpture was approved by the Commission, unfortunately, it
must have been two or three weeks or a month or so later that Mr.
Jackson called me and said that Mr. Praprotnik was going to come
over to the Heritage office."
"He expressed, I guess I would say, disappointment and
displeasure at this, saying there was no need."
"On a separate occasion shortly after that, Mr. Killen also
called me and said Mr. Praprotnik was coming, and there was no
reason for him to come."
4
id. at 2-90.
[
Footnote 3/9]
"Q. [Mr. Oldham] What's the total [HUD] budget for [1982]
then?"
"A. [Mr. Praprotnik] The total budget for the year was
$144,339."
"
* * * *"
"Q. And what is the total budget for [1984]?"
"A. The total budget is a hundred and fifty thousand."
"Q. So there's an increase of approximately $6,000?"
"A. Yes."
"
* * * *"
"Q. Now, what was the reason given for your layoff?"
"A. Insufficient funds."
"Q. Is that the only reason that they gave in your notice?"
"A. Yes."
3
id. at 1-83, 1-85.
[
Footnote 3/10]
As respondent's counsel put it in responding to petitioner's
motion for a directed verdict at the close of plaintiff's
evidence:
"Plaintiff written reprimand contrary to thrust of the decision
of the Civil Service Commission. That's in evidence. That's true.
Required plaintiff to make secondary employment reports that
weren't required of others. There's evidence to that effect.
Reduced his staff from nine to three. There's evidence of that
allegation. Given plaintiff a low service rating on October 1st.
There's evidence of that. Transferring him to a nonmanagement,
nonsupervisory junior staff position. There's evidence to that.
Failure to establish goals against which he could be measured. All
of these things. Finally, we say laying plaintiff off from a
position on December 30th for the pretextual reason of lack of
funds and a furtherance of the conspiracy to remove plaintiff from
the Civil Service Commission. There's evidence of that, that he was
laid off, that the reason was pretextual."
5
id. at 3-26 - 3-27.
[
Footnote 3/11]
"Q. [Mr. Oldham] [T]here had to be a change in [HUD's] budget in
order for you to be brought on board; is that correct?"
"A. [Mr. Praprotnik] Yes."
"Q. Now, in order to get a change of budget, who had to be
involved in that?"
"A. That would involve the Board of Estimate and Apportionment,
including the Mayor, the president of the Board of Aldermen, and
the budget director -- I'm sorry, the comptroller."
"Q. The comptroller. Those three people?"
"A. Yes."
"Q. They're all high officials of the City."
"A. That's correct."
3
id. at 1-74 - 1-75.
"Q. [Ms. Ronzio] [A]fter you got transferred to Heritage and
Urban Design in April or May of '82, are you claiming that Frank
Hamsher did anything to injure or damage you thereafter once you
were transferred out from under his supervision?"
"A. [Mr. Praprotnik] Yes, I am."
"Q. All right. What would that be?"
"A. That would be the control through the mayor's office of the
budget situation within the Community Development Agency and the
recommendations of the staffing and the funding coming to the
Heritage and Urban Design Commission."
"Q. All right. Do you know what Mr. Hamsher's position was after
you were transferred to Heritage? Did he remain director of
CDA?"
"A. He was director of CDA, yes, for a period of time after
that."
"Q. For how long? Do you know?"
"A. He had implemented the layoff [of various CDA personnel at
the time respondent was transferred to HUD]."
"Q. For how long? He implemented the layoff; that would have
been in May. How long thereafter did he continue as director?"
"A. I don't know when he was switched to the mayor's
office."
"Q. Then he went to the mayor's office as an assistant;
right?"
"A. That's correct."
"Q. As an executive aide."
"You are claiming that from the mayor's office he controlled
Heritage Department's budget?"
"A. Yes."
"Q. And how did that affect you?"
"A. It affected me by I was laid off for lack of funds to that
agency."
"Q. So how did Mr. Hamsher do that?"
"A. By control through the Community Development Agency and
recommendations that could be made to its, you know, director at
this time."
"Q. He was not director of Community Development Agency. Are you
still maintaining that he controlled their budget?"
"A. I'm saying that he influenced their budget. The mayor's
office played a very strong control within the influence of various
City departments."
"
* * * *"
"Q. [W]hat are you claiming, if anything, that Mr. Kindleberger
did to damage you after you were out from under his
supervision?"
"A. He had influenced the direction of the demise of duties, all
the way up to that time, with the planner options that he had made
available to Mr. Hamsher."
"Q. I'm asking after you transferred."
"A. After the transfer? Yes, he could still play a strong role
because he was retained within the mayor's group and made
recommendations to the Board of E&A that could have influenced
the funding of our agency, the Heritage and Urban Design
Commission."
"Q. You're using the word 'could.' Do you know for a fact that
he did any of these things?"
"A. Well, the budget had to go through the Community Development
Agency, the approval. I'm saying he could have had that
influence."
"Q. All right. So you don't know for a fact that he did do
anything?"
"A. I would say it was very likely that he would have had that
influence."
"Q. [H]ow about Deborah Patterson [Director, CDA], who is also a
defendant? Now, she never supervised you at all; is that correct?
You were never under her supervision?"
"A. She did not, that's correct."
"Q. She became director of CDA after you had already left the
agency?"
"A. That is correct."
"Q. What, if anything, are you claiming that she did to damage
you, to injure you?"
"A. There were meetings between my immediate supervisors at
Heritage and Urban Design Commission and Deborah Patterson and CDA
officials. So that influenced the budget going through and having
to be approved by the Community Development Agency, and also going
through the mayor's office and the Board of E&A."
4
id. at 2-75 - 2-77, 2-81 - 2-82.
"Q. [Ms. Ronzio] [W]hy do you think [Mr. Praprotnik] wasn't
being treated fairly?"
"A. [Mr. Zelsman, architect colleague of respondent at CDA] In
my opinion, it was someone above him who did not want him in that
position."
4
id. at 2-97 - 2-98.
[From deposition; read at trial]
"Q. [Mr. Oldham] Were there meetings in the mayor's office which
involved you and his advisors and the mayor concerning the function
and purpose of CDA?"
"A. [Mr. Hamsher] I have had countless such meetings."
"
* * * *"
"Q. [Mr. Praprotnik] hadn't requested the transfer?"
"A. No."
"Q. Had Mr. Jackson requested the transfer?"
"A. No."
"Q. It was done on your initiative then?"
"A. It was done upon approval by the mayor of the transfer. It
was done by me, Mr. Jackson, and Mr. Nash [City Director of the
Department of Public Safety], all of whom assigned the appropriate
paperwork to transfer Mr. Praprotnik."
"Q. Did Mr. Nash request the transfer?"
"A. No, but he approved it."
"Q. So nobody from Heritage and Urban Design requested the
transfer?"
"A. That's correct."
"Q. And it was a decision that was made in the mayor's office
and carried out by you; is that correct?"
"A. It was a recommendation I made to the mayor, and the mayor
concurred with it, and Mr. Nash and Mr. Jackson and myself carried
it out."
4
id. at 2-174, 2-177 - 2-178.
[From deposition; read at trial]
"Q. [Mr. Oldham] Who would have the authority to take functions
out of one appointing authority and move them over to another
appointing authority? Who would have that authority?"
"A. [Mr. Duffe] Well, it depends on the situation. The Board of
Estimate and Apportionment in some cases; in other cases, it would
be the mayor to the best of my knowledge."
4
id. at 2-180.
[From deposition; read at trial]
"Q. [Mr. Oldham] Anybody else other than Mr. Hamsher, and
yourself, and the mayor, who had the final decisions on these
matters [transfer of functions between agencies]?"
"A. [Mr. Edwards, City Executive Director of Development] Well,
particularly I guess, the mayor had the final decision. As I
recall, the recommendations of Mr. Hamsher were adopted, you know,
pretty generally. I don't remember any major divergence from his
recommendation."
4
id. at 2-185 - 2-186.
"Q. [Ms. Ronzio] What do you do, Mr. Hamsher? What is your
occupation?"
"A. [Mr. Hamsher] I am the counsel for development in the
mayor's office, City of Saint Louis."
"
* * * *"
[Discussion of CDA's 1982 layoffs]
"Q. Did you voice your concerns to the mayor?"
"A. Oh, yes."
"Q. What was his reaction to your concerns?"
"A. He listened. He and I discussed it back and forth. And he
was elected by the people, so he made the decision."
"Q. He said 'Go ahead and lay off'?"
"A. Yes."
5
id. at 3-134, 3-167.
"Q. [Mr. Oldham] [Y]ou indicated that you work for the mayor; is
that correct?"
"A. [Mr. Hamsher] Yes."
"Q. And doesn't the mayor keep a pretty tight rein on operations
within the City?"
"A. Sure."
"
* * * *"
"Q. Isn't it fair to say, Mr. Hamsher, that you initiated the
[transfer], that you had sort of recommended it through the mayor's
office, sort of pushed to get it done?"
"A. I wouldn't say I pushed to get it done. I recommended it to
the mayor. The mayor made a decision. And when the mayor makes a
decision, all of us who work for him try to carry it out."
5
id. at 3-184 - 3-185, 3-200.
[
Footnote 3/12]
"Now, another thing I would seriously like you to consider is,
who is not a defendant in this matter. Who is not a defendant?
Donald Spaid is not a defendant. Donald Spaid is the guy who laid
that first suspension on or who was the one -- not laid the
suspension on, but set up that secondary employment policy. He is
the man who allegedly, according to Mr. Praprotnik, got so angry
that he would go to any lengths to retaliate, directed his
subordinates to retaliate."
"Don Spaid is not a defendant in this case. Okay?"
"Who laid Jim Praprotnik off? Who really laid him off? Who
signed off on the form? Rob Killen signed the form. At the time Mr.
Praprotnik was at Heritage and Urban Design and got laid off, Rob
Killen was his appointing authority. It was his decision. He's the
one who prepared that budget that went to Deborah Patterson."
"Who else is not a defendant? Rob Killen's boss, Tom Nash. Tom
Nash allegedly approved it and went along with Rob Killen. Do you
see him here? Nope.
Let's hang it on these guys."
6
id. at 4-50 - 4-51 (emphasis added).
[
Footnote 3/13]
The concurrence disapproves of any reliance on evidence
regarding the reaction of various high officials to respondent's
Serra sculpture testimony on the ground that
"the jury instructions concerning respondent's First Amendment
claim refer exclusively to the exercise of his appellate rights
before the CSC, and make no mention whatever of his public
testimony."
Ante at
485 U. S. 142,
n. 5. Two points should suffice in response. First, the instruction
in question told the jury that it "must" find for respondent if it
found certain facts relating to the CSC appeals, but did not
preclude the jury from finding for respondent on other grounds as
well. Second, as the concurrence itself recognizes,
see
ante at
485 U. S. 135,
a separate instruction, which I quote below in the text at
485
U.S. 112fn3/15|>n. 15, told the jury it could hold the city
liable for actions committed by high enough officials. This
instruction did not limit the field of high officials' actions that
could give rise to municipal liability.
The concurrence also states that the record fails to provide
"sufficient evidence of complicity on the part of other
municipal policymakers such that we may sustain the jury's verdict
against petitioner on a conspiracy theory neither espoused nor
addressed by the court below."
Ante at
485 U. S. 142,
n. 5. But we are reviewing the Court of Appeals'
judgment,
not its
opinion, and however flawed the latter, the former
must be sustained if sufficient evidence exists to support, under a
proper view of municipal liability, the verdict actually rendered.
Moreover, as I discuss in greater detail in Part II, the jury was
given wide rein to examine the conduct of the city's officials and
to conclude whether or not high officials retaliated against
respondent's exercise of his constitutional right to freedom of
speech. The lengthy quotations from the record make it clear that
sufficient evidence was introduced to support the jury's
verdict.
[
Footnote 3/14]
Petitioner points to the following argument made in support of
its motion for summary judgment:
"In the instant case, Plaintiff has failed to even allege the
existence of any such [municipal] policy. In fact, Plaintiff refers
to City 'policy' only in one instance in his complaint -- at
paragraph 29(c), wherein he claims the City's layoff policy . . .
was
not followed. In the absence of allegations of
impermissible policy, or of facts indicative that such policy
exists, the City, itself, may not be held liable."
Memorandum in Support of Motion for Summary Judgment or, in the
Alternative, for Judgment on the Pleadings 16, Reply Brief for
Petitioner 5 (emphasis in original).
This argument, like all of petitioner's contentions in the trial
court on the subject of municipal liability, was addressed to the
sufficiency of respondent's factual support for binding the city,
not to any legal issue regarding who could and who could not bind
the city. The District Court, indeed, initially granted summary
judgment for the city on the ground that "the Court is unable to
discern any suggestion that defendants' allegedly wrongful actions
were in accordance with city policy." 1 Record 126. But after
receiving respondent's motion for reconsideration, accompanied by
his affidavit, discussed in the text,
supra, the District
Court reversed itself and denied the city's motion.
[
Footnote 3/15]
Proposing this instruction made good sense as litigation
strategy, for respondent had sued not only the city but also three
individual city officials, Frank Hamsher, Charles Kindleberger, and
Deborah Patterson. Presumably the city's attorney, who was
representing both the city and the officials, hoped that the jury
would focus on the individual defendants, exonerate them, and,
having focused on these defendants, hold the city innocent as well
by concluding that higher-ups were not implicated. As we know from
the verdict -- judgment for the individual defendants but against
the city -- this strategy partially failed. Although petitioner
argues that the verdicts were inconsistent, they actually make
perfect sense in light of the evidence that officials in the
Mayor's office, possibly including the Mayor himself, and various
agency heads participated in a deliberate plan to deprive
respondent of his job in violation of his First Amendment
rights.
[
Footnote 3/16]
Federal Rule of Civil Procedure 51 is quite clear about a
litigant's method of preserving objections to instructions:
"At the close of the evidence or at such earlier time during the
trial as the court reasonably directs, any party may file written
requests that the court instruct the jury on the law as set forth
in the requests. The court shall inform counsel of its proposed
action upon the requests prior to their arguments to the jury. The
court, at its election, may instruct the jury before or after
argument, or both.
No party may assign as error the giving or
the failure to give an instruction unless that party objects
thereto before the jury retires to consider its verdict,
stating distinctly the matter objected to and the grounds of the
objection. Opportunity shall be given to make the objection out of
the hearing of the jury."
(Emphasis added.)
[
Footnote 3/17]
In the Court of Appeals, the city had argued that the trial
court should have accepted the following instruction regarding
municipal liability:
"An isolated incident of illegal conduct on the part of a
municipality's agents, servants or employees is not sufficient to
establish a governmental custom, usage or official policy such as
would give rise to liability on the part of a municipality pursuant
to 42 U.S.C. § 1983."
Instruction No. A, App. 127. The Court of Appeals properly
upheld the trial court's rejection of this instruction,
see
Pembaur v. Cincinnati, 475 U. S. 469
(1986), and petitioner does not take issue with this holding.
[
Footnote 3/18]
The plurality states that petitioner's motions, although "much
less detailed than the arguments it now makes in response to the
decision of the Court of Appeals," nonetheless properly
"preserve[d] the issue raised in its petition for certiorari."
Ante at
485 U. S. 120.
But petitioner made no arguments in these motions, much less
sparsely detailed ones, on behalf of any legal standard for
municipal liability. The plurality does not overcome the fact that
petitioner's motions were made on the basis of evidentiary
insufficiency. Finally, even if the mere making of motions for
summary judgment, directed verdict, and judgment notwithstanding
the verdict could preserve any legal issue that might arise in a
case -- a proposition we should be slow to accept -- such
preservation should quickly spoil when the moving party admits, in
both an offered instruction and an argument on behalf of one of the
motions, that the law is as its opponent would have it. As I have
shown above, petitioner did just that in offering Instruction No.
15 and in arguing in support of a directed verdict.
[
Footnote 3/19]
The "theme" of
Monell -- "that some basis for
government liability other than vicarious liability for the acts of
individuals must be found" -- has proved to be a "difficult" one
largely because "there is no obvious way to distinguish the acts of
a municipality from the acts of the individuals whom it employs."
Whitman,
supra, n. 1, at 236. In other words, every time a
municipality is held liable in tort, even in a case like
Monell, actions of its human agents are necessarily
involved. Accordingly, our task is not to draw a line between the
actions of the city and the actions of its employees, but rather to
develop a principle for determining which human acts should bind a
municipality.
[
Footnote 3/20]
Since
Owen, Members of the Court have offered varying
explanations for that conclusion: "[T]he release of the information
was an official action -- that is, a policy or custom -- of the
city,"
Oklahoma City v. Tuttle, 471 U.S. at
471 U. S. 832
(BRENNAN, J., concurring in the judgment);
"[A] municipality may be liable under § 1983 for a single
decision by its properly constituted legislative body -- whether or
not that body had taken similar action in the past or intended to
do so in the future -- because even a single decision by such a
body unquestionably constitutes an act of official government
policy,"
Pembaur v. Cincinnati, 475 U.S. at
475 U. S. 480
(BRENNAN, J.); "Formal procedures that involve, for example, voting
by elected officials, prepared reports, extended deliberation, or
official records indicate that the resulting decisions taken
may fairly be said to represent official policy.'" Id.
at 475 U. S. 500
(Powell, J., dissenting). Today, the plurality offers an
explanation for Owen similar to that offered by Justice
Powell in his Pembaur dissent: "We have assumed that an
unconstitutional governmental policy could be inferred from a
single decision taken by the highest officials responsible for
setting policy in that area of the government's business."
Ante at 485 U. S. 123.
For its part, the concurrence's explanation of Owen
resembles that offered by JUSTICE BRENNAN in Pembaur: "Nor
have we ever doubted that a single decision of a city's properly
constituted legislative body is a municipal act capable of
subjecting the city to liability." Ante at 485 U. S. 138;
see also ante at 485 U. S. 139,
n. 3. But neither opinion explains why a single personnel decision
by a legislature ought bind a municipality any differently than any
other duly authorized personnel decision.
[
Footnote 3/21]
Although no one opinion commanded a majority of the Court, the
narrowest reason for the holding was stated by JUSTICE BRENNAN. The
jury had been instructed that it could infer
from the seizure
alone that the city had an unconstitutional policy of
inadequate police training. Such an inference, according to JUSTICE
BRENNAN, would be little more than
respondeat superior in
disguise. Whether independent proof of inadequate police training
could result in municipal liability was a question that would have
to wait for another day.
See Springfield v. Kibbe,
480 U. S. 257
(1987) (dismissing as improvidently granted a writ of certiorari in
a case raising this issue). Central to the holding in Tuttle was
the fact that no high official was found to have been involved in
the unconstitutional act.
[
Footnote 3/22]
That high officials may bind a municipality in ways that low
officials may not should not surprise, for the pyramidal structure
of authority pervades the law. For instance, the law of agency
distinguishes between a general agent and a special agent; the
former is "authorized to conduct a series of transactions involving
a continuity of service," while the latter is "authorized to
conduct a single transaction or a series of transactions not
involving continuity of service." Restatement (Second) of Agency §§
3(1) (2) (1958). The distinction matters, because only a general
agent
"subjects his principal to liability for acts done on his
account which usually accompany or are incidental to transactions
which the agent is authorized to conduct if, although they are
forbidden by the principal, the other party reasonably believes
that the agent is authorized to do them and has no notice that he
is not so authorized."
Id. § 161. A special agent, to the contrary, "has no
power to bind his principal by contracts or conveyances which he is
not authorized or apparently authorized to make," with some
exceptions.
Id., § 161A. A general agent thus binds his
principal even through unauthorized acts precisely because those
dealing with him perceive him as possessing broad authority to act
on behalf of his principal. A special agent, possessing and known
to possess only limited authority, cannot bind his principal for
unauthorized acts because those dealing with him are on notice that
his authority extends only so far. Likewise, a high municipal
official can bind his principal (the city) for unauthorized actions
because others -- both lower officials and members of the public
with whom he deals -- perceive him as acting with broad authority,
and rely upon his actions in organizing their own behavior. The
distinction between general agents and special agents has a firm
"basis in the law."
See ante at
485 U. S. 125
n. 2 (plurality opinion).
[
Footnote 3/23]
The plurality incorrectly claims that I have suggested "a new
theory" for determining when a municipality should be bound by the
acts of its agents.
Ante at
485 U. S. 125,
n. 2. As both the plurality and the concurrence recognize, a
municipality, like any institution, can only act through the agency
of human beings. By holding that isolated actions of high officials
may give rise to municipal liability,
see, e.g., Owen v. City
of Independence; Pembaur v. Cincinnati, the Court has
indicated that the mere status of city officials matters in
determining whether the city may be held liable for the officials'
actions. The argument of both the plurality and the concurrence
that this principle should be applied only in the particular area
of government that the erring official controls is unpersuasive,
given the multifarious ways in which governmental agents may
inflict constitutional harm. This case is a perfect example of why
the "area-by-area" approach will not do; personnel actions may be
taken in response to an employee's protected speech by a number of
high officials, none of whom possesses specific authority over
"personnel" policy. Nevertheless, simply by virtue of their high
rank, their actions may influence the actions of other municipal
officials. It is that kind of influence that provides the common
thread binding
Monell and the later § 1983 municipal
liability cases. In short, what the Court has characterized as "a
new theory" is actually a way of understanding our precedents that
will permit a judge to explain to a jury that "policy" means
nothing if not "influence," and that, while the isolated gunshot of
an errant police officer would not influence his colleagues,
see Oklahoma City v. Tuttle, adverse personnel actions
taken by a city's highest officials in response to an employee's
Civil Service Commission appeals and his public testimony would set
an example for other, lower officials to follow.