Praprotnik v. City of St. Louis

ROSS, Senior Circuit Judge.

This case is before us after reversal and remand from the United States Supreme *1574Court. City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). The Supreme Court, in a plurality opinion, held that this court had applied an improper legal standard for determining municipal liability, and reversed this court’s finding that the City of St. Louis was liable under 42 U.S.C. § 1983 for the decisions of its subordinate city officials to transfer and later terminate James H. Praprotnik, the appellee. See Praprotnik v. City of St. Louis, 798 F.2d 1168, 1173-75 (8th Cir.1986) (applying a standard under which a municipal “policymaker” is one whose employment decisions are not subjected to de novo review by higher-ranking officials). Applying the principles set forth in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court concluded that municipalities, such as St. Louis, cannot be charged with the alleged wrongful actions of its employees unless the particular acting city officials in question have acted pursuant to an unconstitutional municipal policy and have been granted final policymaking authority for making policy in that area of the city’s business under state or local law. Finding no' evidence of an unconstitutional municipal policy or evidence that final poli-cymaking authority actually rested with the supervisors responsible for Praprot-nik’s transfer and termination, the Supreme Court reversed and remanded the case for further review of the record and state law.

On remand the parties were asked to further brief whether Praprotnik’s layoff was ordered pursuant to an unconstitutional city policy by an official or officials with final policymaking authority or as the result of any such official’s improper motivations. Oral argument was heard on September 19, 1988 and the matter was submitted for the court’s consideration.

DISCUSSION

We begin by considering the guiding principles for determining when the acts of a city official will be considered the acts of the city itself for purposes of municipal liability under § 1983. Those principles were summarized by Justice O’Connor in Praprotnik, supra, as follows:

First, * * * 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.” Second, only those municipal officials who have “final policymaking authority” may by their actions subject the government to § 1983 liability. Third, whether a particular official has “final policymaking authority” is a question of state law. 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.

City of St. Louis v. Praprotnik, supra, 108 S.Ct. at 924 (quoting Justice Brennan’s plurality opinion in Pembaur v. City of Cincinnati, supra, 475 U.S. at 480, 482-83 & n. 12, 106 S.Ct. at 1298, 1300 & n. 12) (citations omitted) (emphasis original).

The Supreme Court emphasized that final policymaking officials are to be identified by reference to state law (including valid local ordinances and regulations). “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 policy-making authority is a question of state law.” Id. 108 S.Ct. at 924 (quoting Pembaur v. City of Cincinnati, supra, 475 U.S. at 483, 106 S.Ct. at 1300). Thus, the Court concluded, “[TJhere 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.” Id. 108 S.Ct. at 925. The Court also emphasized that once the final policy-making officials have been identified under state law, the fact that such officials simply went along with a subordinate’s discretionary decisions, without having investigated the basis for those decisions, does not constitute a delegation of the official’s policymaking authority to the subordinate. Id. at 927. The Court noted, however, that:

*1575It 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. 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.

Id. (citations omitted).

Applying these principles to the evidence presented in this case, we conclude that Praprotnik failed to establish the elements necessary for holding the City of St. Louis liable under § 1983. First, we find that the supervisors responsible for Praprotnik’s transfer and layoff, CDA Director Frank Hamsher and H & UD Director Robert Killen, were not vested with final policy-making authority for making municipal policy in the area of personnel administration and layoffs. At most, these officials were entrusted with the authority for making discretionary personnel decisions in their departments.

Article XVIII of the St. Louis City Charter provides for a comprehensive system of personnel administration for the city. Under sections 3 and 7(a) of that article the Civil Service Commission (Commission) is empowered to make decisions with respect to the adoption, administration and enforcement of the city’s civil service rules, i.e., rules and procedures for handling personnel and employment matters. See St. Louis Civil Service Rules, App. 41-105. See also Fleming v. Holland, 260 S.W.2d 840, 841-42 (Mo.App.1953) (recognizing the Commission’s power to promulgate rules for the dismissal of an employee). The Commission is also authorized to make recommendations to the mayor and aldermen with respect to ordinances affecting personnel matters, to investigate issues affecting personnel administration, and to decide all employment matters raised on appeal from any act or decision by the Director of Personnel or appointing authority.1 City Charter, Article XVIII, § 7(b), (c), (d). In employment appeals, “[t]he decision of the [CJommission * * * shall be final,” subject only to an employee’s right of action in a court of law.2 Id. at § 7(d).

Separate from the powers granted to the Commission under § 7, the mayor and aldermen are granted the authority to enact ordinances, on recommendation of the Commission, which affect inter alia employee compensation rates, the civil service retirement system and appropriations to the department of personnel. See City Charter, Article XVIII, §§ 4 and 7(b). Related to citywide layoffs, the board of aldermen also approves the city’s annual budget, which is prepared and recommended by the city’s board of estimate and apportionment.3 See City Charter, Article XVI, § 3. Where appropriations for salaries and compensation have been reduced by the board of estimate and apportionment, the board of aldermen is without authority to restore funding in order to avoid necessary layoffs in personnel. See City of St. Louis v. Smith, 360 Mo. 406, 228 S.W.2d 780, 783-84 (1950) (en banc). We also note that the mayor is without authority to order layoffs unless appropriations for salaries have been reduced by the board of estimate and apportionment. Id.

Thus, it appears that the Commission possesses primary policymaking authority *1576for making general personnel policy and for making final decisions as to individual employees. Its decisions in these respects can fairly be said to be decisions of the city. The mayor and aldermen’s policy-making authority, on the other hand, appears to be limited to personnel matters of a more broad, all-encompassing nature (e.g., compensation rates, retirement plans, department appropriations). As a general rule, decisions of the mayor and aldermen which specifically address and adversely affect individual employees are not “final” for purposes of § 1983 because those decisions are subject to review by the Commission. See City of St. Louis v. Smith, supra, 228 S.W.2d at 784.

Clearly, Hamsher and Killen, who made the decisions to transfer and later terminate Praprotnik, did not possess final poli-cymaking authority under the city’s charter.4 Only the Civil Service Commission had final policymaking authority for that area of the city’s business. Further, we find no evidence that there was a delegation, official or otherwise, of the Commission's authority to any of the individually named defendants.

Second, we find no evidence of the existence of an unconstitutional municipal policy authorizing or otherwise permitting any form of retaliatory action against Praprot-nik or any other employee for exercising the right to appeal an adverse employment decision to the Commission. We note that Praprotnik does not even assert that the Commission authorized or permitted such a policy.

Praprotnik’s suit focuses on an alleged scheme,

that his supervisors were angered by his 1980 appeal to the Civil Service Commission;[5] 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 lay off.

City of St. Louis v. Praprotnik, supra, 108 S.Ct. at 926. Neither this theory of the case nor the evidence presented at trial support a finding of § 1983 municipal liability under the proper legal standard as set forth by the Supreme Court.

CONCLUSION

We conclude that Praprotnik failed to make a submissible case of municipal liability under 42 U.S.C. § 1983. Accordingly, we reverse the judgment of the trial court and remand the case for entry of judgment in favor of the City of St. Louis and against the plaintiff.

. Under Article XVIII, section 1(a) of the St. Louis City Charter, " ‘Appointing authority' means any person or group of persons having power by law or ordinance, or by lawfully delegated authority, to make appointments to any position in the city service * *

. We note that section 2(a) of Article XVIII of the St. Louis City Charter requires the Civil Service Commission, as well as other official final policymakers, to ensure that all appointments to and separations from the city’s civil service are "on the sole basis of merit and fitness * * *.” Layoffs of employees of an indefinite tenure may occur at any time, however, "on termination of the need for employment" or for lack of available funds. See City Charter, Article XVIII, § 3(f).

.The board of estimate and apportionment is comprised of the mayor, the comptroller, and the president of the board of aldermen.

. We also find that Charles Kindelberger, Deborah Patterson, Henry Jackson, Thomas Nash, or any of the other subordinate city officials whom Praprotnik considered to be his supervisors, did not possess final policymaking authority under the city's charter.

. Praprotnik’s assertion that the mayor and Pra-protnik’s supervisors retaliated against him for his testimony concerning the Serra Sculpture is not properly before this court. Praprotnik’s amended complaint makes no reference to the Serra Sculpture or to retaliatory actions stemming from his testimony on that subject. The case proceeded under the theory that defendants retaliated against him for appealing his 1980 suspension to the Civil Service Commission.