                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-18-2000

Langford v. Atlantic City
Precedential or Non-Precedential:

Docket 00-5194




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation
"Langford v. Atlantic City" (2000). 2000 Decisions. Paper 250.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/250


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed December 18, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-5194

LORENZO LANGFORD;
WILLIAM MARSH,

       Appellants

v.

CITY OF ATLANTIC CITY;
TIMOTHY MANCUSO;
BARBARA HUDGINS;
JOHN SCHULTZ;
EDWARD P. MCGETTIGAN;
GIBB R. JONES, JR.;
MICHAEL ZINGARELLI;
JAMES WHELAN

On Appeal from the United States District Court
For the District of New Jersey
(D.N.J. Crim. No. 99-cv-03064)
District Judge: Honorable Joseph E. Irenas

Argued: November 16, 2000

Before: SLOVITER, AMBRO and
GARTH, Circuit Judges

(Filed: December 18, 2000)
       Sidney L. Gold
       Lovitz & Gold
       1835 Market Street
       11 Penn Center, Suite 515
       Philadelphia, PA 19103

       Attorney for Appellant
       Lorenzo Langford

       Robert A. Davitch (Argued)
       Scott A. George
       Sidkoff, Pincus & Green, P.C.
       1101 Market Street
       Suite 2700
       Philadelphia, PA 19107

       Attorneys for Appellant
       William Marsh

       Gerald J. Corcoran (Argued)
       Debra B. Albuquerque
       Youngblood, Corcoran, Aleli, Laf ferty,
       Stackhouse, Grossman & Gormley,
        P.A.
       3205 Fire Road, P.O. Box 850
       Pleasantville, NJ 08232

       Attorneys for Appellees

OPINION OF THE COURT

GARTH, Circuit Judge:

The issue presented by this appeal is whether the
plaintiffs, Lorenzo Langford ("Langford") and William Marsh
("Marsh"), can state a cause of action against a
municipality, whose annual budget, by reason of a lack of
funding, eliminated their school positions. W e hold that
where the plaintiffs' Complaint char ging political retaliation
alleges that the municipality, Atlantic City, violated their
constitutional rights, it was error for the District Court to
dismiss their Complaint pursuant to Federal Rule of
Procedure 12(b)(6). We will r everse.

                                 2
I

In March 1998, the Atlantic City Board of Education,
which employed plaintiffs Langford and Marsh, adopted a
proposed budget for the 1998-99 school year . The budget
did not include funding for several programs and nine
supervisory jobs, including Langford's and Marsh's jobs.1 A
total of approximately $1.4 million was needed to fund
those programs and jobs which were excluded from the
proposed budget. The unfunded programs included certain
school sports, transportation for some extra-curricular
activities and the continued use and operation of
community schools. Funding for these programs and jobs
was not included in the budget because their pr ojected
costs exceeded the maximum budget increase allowable
under New Jersey law.

On March 31, 1998, the Board of Education passed a
resolution asking Atlantic City voters to appr ove a "Budget
Cap Waiver" in the amount of $1.477 million, to fund all of
the programs and positions. The voters r ejected the Budget
Cap Waiver proposal. Notwithstanding that rejection, the
City Council was empowered without review to approve
unilaterally the Cap Waiver, and thus fund the threatened
positions and programs.

Langford and Marsh had opposed Mayor James Whelan
and the City Council defendants in the 1994 and 1998
elections. In the Atlantic City mayoral election held on May
12, 1998, Langford had run against, and lost to, Mayor
_________________________________________________________________

1. Marsh was the Neighborhood Facilities Coordinator. His
responsibilities included coordinating and scheduling the community use
of high school facilities, supervising other employees, hiring staff for
adult and evening programs at school facilities, developing community
education programs for adults, and overseeing school buildings for civil
and community purposes. Marsh received an annual salary of $79,000
plus "lucrative employee benefits."

Langford was the Neighborhood Facilities Liaison. Langford's
responsibilities included organizing and supervising weeknight and
weekend community activities and events at a school facility, ensuring
maximum use of the school facility by the community, and assigning
security to cover events at the facility. His annual salary was $30,000,
together with employment benefits.

                               3
Whelan, Atlantic City's incumbent mayor. On May 15,
1998, the City Council voted to eliminate Langfor d's and
Marsh's jobs as part of the budget reduction plan. Plaintiffs
allege that their jobs were eliminated in r etaliation for their
political opposition to the Mayor in the 1998 election.

II

On June 29, 1999, Langford and Marsh filed the instant
action in the District of New Jersey against the City of
Atlantic City as well as its individual City Council members
and Mayor Whelan. The defendants moved to dismiss the
Complaint, asserting that it did not state a cause of action
under Federal Rule of Civil Procedure 12(b)(6). The District
Court granted that motion, and on December 27, 1999, the
District Court dismissed all counts of Langfor d's and
Marsh's Complaint against all defendants. In doing so, the
District Court held that the individual defendants had
immunity because their acts were legislative in nature.

As to Atlantic City, the District Court held that the
passage of a budget does not constitute an official policy,
custom, or practice triggering section 1983 municipal
liability under Monell v. New York City Dep't of Soc. Servs.,
436 U.S. 658, 691-95 (1978), and its progeny. The District
Court distinguished the Monell line of cases, asserting that
"[t]he single act in those cases is the act adopting the
policy, not the act in furtherance of carrying out the policy."
It reasoned that a single, official act cr eating policy suffices
under Monell and Pembaur v. City of Cincinnati, 475 U.S.
469, 485 (1986), to establish municipal liability.

Langford and Marsh appeal only the dismissal of their
section 1983 claims against the municipality -- Atlantic
City. They do not appeal the District Court's dismissal of
their section 1983 claims against the individual defendants.
Langford's and Marsh's appeal was timely filed on February
17, 2000, and we have jurisdiction over the District Court's
final order of December 27, 1999 pursuant to 28 U.S.C.
S 1291.2
_________________________________________________________________

2. Plaintiffs filed a motion to alter or amend the judgment, on January
6, 2000, pursuant to Federal Rule of Civil Pr ocedure 59(e). The District
Court denied plaintiffs' Rule 59(e) motion. Because we reverse the
District Court's dismissal of the Complaint, we do not reach appellants'
contention that the District Court erred in denying that motion.

                               4
III

Our standard of review is plenary and, in the context of
a Rule 12(b)(6) decision by the District Court which
dismissed all defendants and all counts of plaintif fs'
Complaint, we adhere to the precepts which we
summarized in Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.
1996):

       We must determine whether, under any reasonable
       reading of the pleadings, the plaintiffs may be entitled
       to relief, and we must accept as true the factual
       allegations in the complaint and all reasonable
       inferences that can be drawn therefr om. The complaint
       will be deemed to have alleged sufficient facts if it
       adequately put the defendants on notice of the
       essential elements of the plaintiffs' cause of action.
       Since this is a S 1983 action, the plaintif fs are entitled
       to relief if their complaint sufficiently alleges
       deprivation of any right secured by the Constitution. In
       considering a Rule 12(b)(6) motion, we do not inquir e
       whether the plaintiffs will ultimately pr evail, only
       whether they are entitled to offer evidence to support
       their claims. Thus, the district court's order granting
       the defendants' motion to dismiss will be affir med only
       if it appears that the plaintiffs could pr ove no set of
       facts that would entitle them to relief.

Id. (citations omitted).

IV

42 U.S.C. S 1983, the section relied upon by Langford
and Marsh in their Complaint, subjects to liability every
person who under color of state law or custom deprives a
citizen of his or her constitutional rights. The Supreme
Court in Monell, 436 U.S. 658, held that a municipality can
be held liable as a person under section 1983 when it
unconstitutionally implements or enforces "a policy
statement, ordinance, regulation, or decision officially
adopted and promulgated by" the officers of that
municipality. Id. at 690.3 By contrast, the Court expressly
_________________________________________________________________

3. Notwithstanding the Court's statement in Monell, the word "policy"
does not appear in the text of section 1983. See City of Oklahoma City
v. Tuttle, 471 U.S. 808, 841 (1985) (Stevens, J., dissenting).

                               5
rejected municipal S 1983 liability based on a respondeat
superior theory, finding "Congress did not intend
municipalities to be held liable unless action pursuant to
official municipal policy of some nature caused a
constitutional tort." Id. at 691.

In Monell, a class of female employees of the Department
of Social Services and the Board of Education of New York
City brought suit under section 1983, alleging that the City,
through its agencies, had as a matter of official policy
unconstitutionally compelled pregnant employees to take
unpaid leaves of absence before they wer e medically
necessary. Id. at 661. "[I]t is when execution of a
government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury that the
government as an entity is responsible under S 1983." Id. at
694. The Court concluded that New York City was liable
under section 1983 because its policy respecting the
unpaid leaves of absence for pregnant employees violated
their constitutional rights. Id. at 692.

A significant portion of the discussion conducted before
the District Court in this case focused on the Supr eme
Court's decision in Pembaur, 475 U.S. 469, where both the
county and the city were held liable for a county
prosecutor's instruction to deputy sherif fs to break into a
doctor's office to effect an arrest. Id. at 485. The Court
noted that the municipal policy requirement discussed in
Monell "was intended 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." Id. at 479.

Pembaur held that the Fourth Amendment was violated
and that a municipality is liable for "acts which the
municipality has officially sanctioned or or dered." Id. at
480. The Court concluded that "a municipality may be liable
under S 1983 for a single decision by its pr operly 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." Id. (emphasis added). "W e hold that municipal

                                6
liability under S 1983 attaches where-- and only where --
a deliberate choice to follow a course of action is made from
among various alternatives by the official or officials
responsible for establishing final policy with respect to the
subject matter in question." Id. at 483-84.

In both Owen v. City of Independence, 445 U.S. 622
(1980), and City of Newport v. Fact Concerts, Inc., 453 U.S.
247, 250-52 (1981), the Supreme Court consistently held
that a single decision of a properly constituted legislative
body is an act of official policy that may subject the
municipality to section 1983 liability. In Owen , the Court
ruled that the joint actions of the city manager and the city
council in firing Owen violated his constitutional right to a
pretermination hearing, even though the officials had acted
in good faith. Owen, 445 U.S. at 630, 657. In Newport, the
Court considered a section 1983 claim against a
municipality that was premised on the unconstitutional
conduct of the Newport City Council, Newport's legislative
body. The plaintiff alleged that the Newport City Council's
cancellation of its license to present musical concerts
amounted to a violation of its constitutional rights of free
expression and due process. Newport , 453 U.S. at 252. The
Court upheld a jury verdict imposing compensatory
damages against the city, although it held that a
municipality is immune from punitive damages under
section 1983. Id. at 271.

Concededly, Monell, Pembaur, Owen, and Newport were
not concerned with the enactment of budgets that affected
an aggrieved plaintiff. However, we have recognized that
municipalities may be subject to section 1983 liability for
legislatively-enacted budget decisions that have an
unconstitutional effect. See Carver v. Foerster, 102 F.3d 96
(3d Cir. 1996). In so holding, we have spoken in terms of
"legislative immunity." We recognize that Atlantic City did
not claim legislative immunity as a defense to its asserted
liability nor did the District Court refer to legislative
immunity in connection with Atlantic City's liability as it
did with respect to the individual defendants. Yet, the
budgetary decisions to which we refer, infra, have alluded
to and couched their liability analyses in ter ms of immunity
as well as the policy statements to which Monell refers.

                               7
In Carver, 102 F.3d 96, we held that Allegheny County
did not enjoy legislative immunity when it committed a
constitutional wrong. In Carver, the district court had
rejected claims that the defendants, including Allegheny
County, were entitled to legislative immunity from section
1983 suits. The plaintiffs there had char ged that Foerster,
who was the Chairman of the Board of Commissioners of
Allegheny County, and Allegheny County had eliminated
their positions because they had supported a candidate,
Joe Brimmeier, who had run in the Democratic primary for
Prothonotary. Foerster had opposed Brimmeier , but
Brimmeier had been supported by the Carver plaintif fs.
Brimmeier lost.

Ultimately, the plaintiffs were fir ed, and the Salary Board
eliminated their positions, after a "hit list" of Brimmeier
supporters had been compiled. We noted in Carver that the
"defendants assert that the positions wer e eliminated as
part of a larger attempt to keep down administrative costs.
The defendants further contended that at the same two
sessions where the plaintiffs lost their positions, the Salary
Board took additional actions affecting 19 other county
departments, resulting in the elimination of twenty two
other positions." Id. at 98.

We affirmed the district court's denial of summary
judgment, holding that a city did not enjoy legislative
immunity.4 As Carver explains, quoting Owen, 445 U.S. at
654:

       the central purpose of the Civil Rights Act was to
       provide citizens with a remedy against those who had
       abused state power. It hardly seems unjust to require
       a municipal defendant which has violated a citizen's
       constitutional rights to compensate him for the injury
       suffered thereby. Indeed Congr ess enacted S 1983
       precisely to provide a remedy for such abuses of official
_________________________________________________________________

4. The Carver court took jurisdiction over a denial of summary judgment
analyzing the claims of absolute immunity as falling within the collateral
order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949). Carver, 102 F.3d at 98-99. See also Mitchell v. Forsyth, 472
U.S. 511, 525 (1985), and Acierno v. Cloutier, 40 F.3d 597, 606 (3d Cir.
1994).

                               8
       power. . . . The knowledge that a municipality will be
       liable for all of its injurious conduct . . . should create
       an incentive for officials who may harbor doubts about
       the lawfulness of their intended actions to err on the
       side of protecting citizens' constitutional rights.

Carver, 102 F.3d at 104 (citation and internal quotations
omitted). In the present case, Atlantic City eliminated the
jobs of political opponents of the incumbent mayor . As in
Carver, budgetary shortfall was the ostensible r eason for
the elimination.

Carver is not alone in its holding that absolute immunity
is not available to a municipality under section 1983, even
in a budgetary context. The Fourth Circuit has held, en
banc, that budgetary decisions render ed through legislative
enactments may subject municipalities to section 1983
liability. Berkley v. Common Council of Charleston, 63 F.3d
295 (4th Cir. 1995) (en banc). Plaintif fs in that case
contended that, in enacting the annual budget,
Charleston's City Council denied plaintiffs a salary increase
in violation of the First Amendment because plaintif fs had
opposed the mayoral candidate supported by a majority of
the Council. Id. at 302. The district court dismissed the
plaintiffs' complaint, and the Fourth Cir cuit reversed. Id. at
303.5

In Goldberg v. Town of Rocky Hill , 973 F.2d 70, 74 (2d
Cir. 1992), the Second Circuit held that the Town was not
entitled to a legislative immunity defense for its elimination
of the plaintiff 's job by budgetary, and hence legislative,
action in alleged retaliation for his contr oversial views.
Plaintiff was one of the Town's five supernumerary, part-
time police officers. After the plaintiff publicly supported a
controversial act by the Town's police chief, the Town
Council "eliminated from the budget entir ely the positions
of all supernumerary police officers." The District Court
rejected the Town's absolute immunity defense and denied
_________________________________________________________________

5. In a spirited dissent, Judge Wilkinson, joined by Judges Russell and
Widener, argued that the imposition of section 1983 liability for
legislative budget decisions was unsupported by the text of section 1983,
by the canon of construction requiring clear statement, and by several
policy grounds. Id. at 303-10.

                               9
its motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Id. at 71. The Second
Circuit affirmed. Id. at 74-75.

The Eleventh Circuit has also held a municipality liable
under section 1983 for passing a budget ordinance that
had abolished the plaintiff 's job and demoted him into a
newly-created and lower-paying position. The plaintiff
alleged that it did so in retaliation for the exercise of his
First Amendment rights. Williams v. City of Valdosta, 689
F.2d 964, 969 (11th Cir. 1982). The Eleventh Circuit cited
Monell's holding that a municipality "can be sued directly
under S 1983 . . . where . . . the action that is alleged to be
unconstitutional implements or executes a[n] .. . ordinance
. . . officially adopted and promulgated by that body's
officers," id. (citing Monell, 436 U.S. at 690), and concluded
that municipal liability could be established.

Hence, despite the reservations expressed by the District
Court, we are satisfied and accordingly hold, as do Monell
and Carver, that a municipality (in this case, Atlantic City)
can be held liable for its unconstitutional acts in
formulating and passing its annual budget.

V

As previously stated, in reviewing a motion to dismiss
under Rule 12(b)(6), we must accept the allegations of the
complaint as true and draw all reasonable infer ences in the
light most favorable to the plaintiffs. Semerenko v. Cendant
Corp., 223 F.3d 165, 180 (3d Cir. 2000); Nami, 82 F.3d at
65. Here, the essence of Langford's and Marsh's Complaint
is that Atlantic City eliminated their school positions in
retaliation for their political views and activities. They allege
"that they were retaliated against by defendants, in
violation of S 1983, for engaging in political activities and
protected speech regarding matters of public concern, and
that their political activities and protected speech were a
substantial motivating factor in the decision by defendants
to eliminate their jobs." Compl. P 2. They claim that Atlantic
City deprived them of their First and Fourteenth
Amendment rights when it, as one of the defendants,
"under color of state law, eliminated and/or caused the

                               10
elimination of plaintiffs' positions with the Atlantic City
Board of Education in retaliation for plaintiffs' political
activities and/or plaintiffs' political campaigning and/or
plaintiffs' vigorous and public criticism of and opposition to
the political agendas, positions and endeavors of the said
defendants regarding matters and issues of public
concern." Id. PP 20, 92, 93, 96.

Throughout their Complaint, Langford and Marsh
describe the opposing political forces, the political activities,
and their political opposition to and public criticism of the
Atlantic City administration, culminating in the passage of
the budget that targeted their positions. For example,
paragraph 44 of the Complaint recites that"Langford
criticized and spoke out frequently, openly and publicly
against defendants and their political agendas, positions
and/or views regarding matters and issues of public
concern." Id. P 44. Similarly, paragraph 46 alleges that
"plaintiff Marsh criticized and spoke out openly, publicly
and frequently against the City Council defendants,
defendant Whelan and defendants' political agendas,
positions and views regarding matters of public concern."
Again, paragraph 50 includes allegations that "Langford
and Marsh openly, publicly and vigorously opposed,
rebuked and criticized the City Council defendants and
defendant Whelan for positions they had taken, endeavors
they had supported and/or agendas they had pr omoted on
a variety of matters and issues of public concer n."

It is true that the Complaint is redundant in many
respects, but it is clear that both Langfor d and Marsh have
made no secret of their position that "Defendants seized
upon and took advantage of their success in the 1998
elections as an opportunity to retaliate against and punish
plaintiffs for their political campaigning, political beliefs
and/or political opposition to and strong criticism of
defendants and defendants' political agendas, positions and
views; and defendants took retaliatory and punitive action
against plaintiffs at their first opportunity following the May
12, 1998 elections." Id. P 56. Those allegations more than
suffice for us to reverse the District Court's order of
dismissal. If for the purpose of this opinion we, as we must,
accept as true the allegations in the Complaint and the

                               11
inferences to be drawn therefrom, plaintiffs have alleged
that they are entitled to relief because they were deprived of
rights secured by the Constitution. Whether they can prove
the allegations they have set forth in their Complaint is not
for us to consider. It is sufficient at the Rule 12(b)(6) stage,
that crediting the plaintiffs' allegations as we must, they
are entitled to prevail against a motion to dismiss. Nami, 82
F.3d at 65.

VI

We will reverse the December 27, 1999 decision of the
District Court and remand to the District Court for further
proceedings in accordance with the for egoing opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               12
