DocketNumber： Nos. 75-1506-75-1508, 75-1678, 75-1679, 75-1751, 75-1792, 75-1948, 75-1951, 75-1963, 75-1973, 75-1989 and 75-1990
Citation Numbers： 612 F.2d 848, 28 Fed. R. Serv. 2d 923, 1980 U.S. App. LEXIS 21705, 21 Fair Empl. Prac. Cas. (BNA) 895
Judges： Haynsworth, Phillips, Russell, Widener, Winter
Filed Date： 1/2/1980
Status： Precedential
Modified Date： 11/4/2024
I
All of the members of the court except Judge Phillips concur in parts I, II, III, and IV of Judge Widener’s opinion. Judge Phillips concurs in parts I, III, and IV of that opinion and concurs in the result in part II thereof, but for reasons expressed in his separate opinion.
II
Four judges would deny monetary relief.
Judges Haynsworth and Phillips concur in the denial of monetary relief for the reasons expressed in their separate opinions.
Judges Winter, Butzner, and Hall dissent from part V of Judge Widener’s opinion and would grant monetary relief for the reasons expressed in Judge Winter’s opinion. For the same reasons, they do not agree with Judges Haynsworth and Phillips in the reasoning for their votes to deny monetary relief. Neither do they agree with Judge Russell’s reasons for denying monetary relief to Mrs. Paxman.
III
Four judges would grant reinstatement. Judges Winter, Butzner, Widener, and Hall concur in part VI of Judge Widener’s opinion and would grant reinstatement for the reasons expressed therein.
Judge Haynsworth and Judge Phillips dissent from part VI of Judge Widener’s opinion for the reasons expressed in their opinions. They would not grant reinstatement.
While Judge Russell agrees with the principles expressed in part VI of Judge Widener’s opinion, he dissents from the result reached therein for the reasons expressed in his separate opinion.
IV
All the members of the court concur in that part of part VII of Judge Widener’s opinion which remands to the district court the question of attorneys’ fees in that court.
Four judges would remand the case for ascertainment of an appellate attorneys’ fee in excess of $500.
Judges Winter, Butzner, and Hall believe the $500 appellate attorneys’ fee mentioned in part VII of Judge Widener’s opinion is grossly inadequate. They would remand for ascertainment of an appellate attorneys’ fee in excess of $500 for the reasons set forth in part III of Judge Winter’s opinion in which they concur.
Judge Haynsworth also believes the appellate attorneys’ fee mentioned in Judge Widener’s opinion is inadequate. He would remand for the ascertainment of such attorneys’ fees for the reasons set forth in his opinion.
Judges Russell, Widener, and Phillips would grant an appellate attorneys’ fee of $500 as set forth in part VII of Judge Widener’s opinion.
The mandate of this court will require that the case be remanded for action not inconsistent with this opinion, and, in addition, upon remand, the district court will inquire into and ascertain appropriate appellate attorneys’ fees for the plaintiffs’ attorneys as set forth in part III of Judge Winter’s opinion and part IV of Judge Haynsworth’s opinion.
All the members of the court concur in this per curiam opinion.
The judgment of the district court is accordingly
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
This litigation arises out of allegedly unconstitutional maternity leave policies enforced by the Albemarle and Henrico, County, Virginia school boards in 1971. Appel-lees, Susan Paxman and Leslie Gough, brought a class action under 42 U.S.C.A. § 1983
From a judgment of the district court permitting this suit to be maintained as a class action under FRCP 23(b)(2) and granting broad monetary and injunctive relief against the defendant members of school boards in both their official and personal capacities this appeal was taken.
For reasons that follow, we reverse the district court’s judgment permitting this suit to proceed as a class action under Rule 23(b)(2). We also reverse the district court’s granting of monetary relief against the named defendants in either their official or personal capacities. We affirm, however, the holding below that the maternity leave policies under which Mrs. Pax-man and Mrs. Gough were required to leave their jobs violated the due process clause of the Fourteenth Amendment, and hold that injunctive relief, in the form of reinstatement, is available against the Division Superintendents and members of the Henrico and Albemarle County School Boards in their personal capacities.
I
The facts are rather uncomplicated and are similar in all material respects for each of the appellees. Susan Paxman was an English teacher employed by the Albemarle County School Board. On May 6, 1971, she signed an employment contract for the 1971 — 72 school year. Shortly thereafter, she discovered she was pregnant, and, on July 26,1971, was notified by the Chairman of the Albemarle High School English Department that she would have to terminate her contract in accordance with school policy requiring immediate termination if pregnancy occurred prior to the start of the school year.
On April 30, 1971, Leslie Gough signed a contract with the Henrico County School Board to teach mathematics during the 1971-72 school year. She informed the School Board of her pregnancy on about October 1, 1971, and requested permission to complete the semester. On October 6, 1971, she was notified that her contract would be terminated as of November 23 under a policy deeming pregnancy of four months’ duration sufficient cause for termination.
On December 6, 1971, this suit was filed in the district court. It was conditionally certified as a class action by the district court on October 30, 1972, with the defendant class composed of all public, county, and city school boards in Virginia with mandatory maternity leave policies. On November 15, 1972, arguments were heard on motions for summary judgment, and, in its order dated November 22, 1972, the district court entered summary judgment in favor of the plaintiff class. In that same order, the district court determined that the suit should be maintained as a class action under FRCP 23(b)(1).
On January 15,1973, this court, sitting en banc, reversed an earlier panel decision in Cohen v. Chesterfield County School Board, 474 F.2d 395 (4th Cir. 1973), and upheld the constitutionality of a maternity leave policy substantially similar to the ones involved in this case. The district court properly overruled itself and entered summary judgment in favor of the defendant class. That judgment was stayed, however, pending final disposition of the Cohen case by the Supreme Court.
On January 21, 1974, that Court reversed our decision in Cohen and held certain mandatory maternity leave policies, not substantially dissimilar to those in question here, violative of the due process clause of the Fourteenth Amendment. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). The district court then re-entered its grant of summary judgment for the plaintiffs in the instant case, and at the same time, in the same order modified its previous rulings in two respects that are critical to certain aspects of the disposition of this appeal. First, it amended the defendant class to consist of members of school boards rather than school boards themselves.
II
A class action is maintainable under Rule 23(b)(2) if the four requirements of Rule 23(a)
“the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief with respect to the class as a whole.” FRCP 23(b)(2).
As is clear from the language of the Rule, it is applicable to situations in which a class of plaintiffs seeks injunctive relief against a single defendant — the party opposing the class — who has acted on grounds generally applicable to the plaintiff class. See Judicial Conference Advisory Committee, Notes to Rule 23(b)(2), 39 F.R.D. 69, 102 (1966). To proceed under 23(b)(2) against a class of defendants would constitute the plaintiffs as “the party opposing the class,” and would create the anomalous situation in which the plaintiffs’ own actions or inactions could make injunctive relief against the defendants appropriate. Wright and Miller, Federal Practice and Procedure, Civil, § 1775 at 21-22 (1972), states the proposition:
It should be noted that the injunctive relief must be sought in favor of the class. As a result, an action to enjoin a class from pursuing or failing to pursue some course of conduct would not fall under Rule 23(b)(2) and would have to qualify under Rule 23(b)(1) or Rule 23(b)(3) in order to be given class action treatment.
To the same effect is the 1978 pocket part of the text. We do not feel that the presence of a plaintiff class in this action alters our construction of the Rule, for, in addition to the literal language of Rule 23(b)(2), we rely upon the clearly expressed purpose for which the Rule was adopted:
Subdivision (b)(2). This subdivision is intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, is appropriate. Judicial Conference Advisory Committee, Notes on Rule 23(b)(2), 39 F.R.D. 69, 102 (1966).
We therefore hold that the district court erred in certifying this case as a class action under Rule 23(b)(2), and direct that the unnamed members of the defendant class be dismissed (that is, all defendants except those connected with Albemarle and Henri-co Counties), such dismissal, however, being without prejudice as to the merits of the controversy.
Such action renders unnecessary our consideration of whether summary judgment was entered against those defendants in the court below without meeting the fundamental requisites of due process of law. Members of the school boards other than Albemarle and Henrico strenuously argue
Whether a class action by classes of plaintiffs could have been maintained against the Albemarle and Henrico defendants does not appear from the record. The plaintiffs did not attempt to establish that such a class would be sufficiently numerous under Rule 23(a), and the district court did not enter a class certification under Rule 23(c)(1) with respect to such a class.
The plaintiffs have the burden of establishing that the requisites of Rule 23(a) are met before they may proceed as class representatives. Carracter v. Morgan, 491 F.2d 458, 459 (4th Cir. 1973); Poindexter v. Teubert, 462 F.2d 1096 (4th Cir. 1972). We are of opinion, however, that a remand for a class action determination is not necessary to a fair disposition of potential claims arising out of the Henrico and Albemarle County maternity leave policies. In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Supreme Court held that
where class action status has been denied solely because of failure to demonstrate that ‘the class is so numerous that joinder of all members is impracticable’, the commencement of the original class suit tolls the running of the [statute of limitations] for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status. Id. at 552-53, 94 S.Ct. at 766.
We follow American Pipe and remand to the district court to entertain sympathetically motions for intervention under FRCP 24 for a reasonable period of time to be set by the district court for those members of the plaintiff class who taught in Henrico or Albemarle Counties.
III
Appellants’ contention that the maternity leave policies under which Mrs. Paxman and Mrs. Gough lost their jobs were not constitutionally defective under Cleveland Board of Education, supra, does not need extended discussion. The district court found that the two policies contained the same “irrebuttable presumptions of unfitness” found unconstitutional by the Supreme Court. We agree, and, for reasons stated by the district court, affirm its judgment on that point. We note that Mrs. Paxman’s and Mrs. Gough’s pregnancies were to terminate during the school year, as did Mrs. Cohen’s.
IV
We next consider whether the district court erred in awarding monetary relief, in the form of back pay, against the individual defendants in their individual capacities. We hold that the defense of qualified immunity applies to this case and is sustained as a matter of law.
We reject the distinction, urged by appel-lees, that, since they characterize the relief sought as equitable, the qualified immunity doctrine has no application. Assuming, ar-guendo, that such characterization is correct, money would yet flow from the pockets of individual school board members to satisfy a judgment, and the policies enunciated in Wood are no less persuasive.
While school officials may not be able to avail themselves of ignorance or disregard of “basic, unquestioned, constitutional rights,” Wood, supra, 420 U.S. at 322, 95 S.Ct. 992, neither should they be charged with bad faith for not anticipating the eventual outcome of constitutional issues over which, for an example especially applicable here, federal courts were differing. See Wood, p. 317, 95 S.Ct. 992. The Albe-marle and Henrico County School Boards enforced a policy the validity of which was the subject of conflicting opinions in two United States Courts of Appeals, compare Cohen v. Chesterfield County School Board, 474 F.2d 395 (4th Cir. 1973), with LaFleur v. Cleveland Board of Education, 465 F.2d 1184 (6th Cir. 1972), not to mention the divided panel and en banc opinions of this court in Cohen, as well as the Supreme Court’s division in LaFleur. It is also worth noting that both named school boards rescinded their maternity leave policies following the initial panel decision of this court declaring such policies unconstitutional. Under these circumstances, and in the absence of any evidence indicating a reason the rule should not apply, we are of opinion the good faith immunity defense is established as a matter of law. There is no indication the individual defendants “knew or reasonably should have known that the action[s] [t]he[y] took within the[ir] sphere of official responsibility would violate the constitutional rights of the [plaintiffs], or that . . . [they] took the action . . . with . . . malicious intention.” Wood, 420 U.S. p. 322, 95 S.Ct. p. 1001.
V
The next issue before us is whether, under 42 U.S.C. § 1983, monetary relief in the form of backpay may be awarded from the school board’s treasury by suing individual school board members in their official capacities. We hold that in the instant case it may not.
Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), held that school boards were “person[s]” within the meaning of § 1983 in the context of a suit for backpay. It also held that their members sued in their official capacities were such “person[s].” Monell, n. 55. By so ruling, the Court overturned its holding in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that Congress had not intended that municipal corporations be included as “person[s]” within the meaning of the statute. Municipality liability can only result where a constitutional tort results “pursuant to official municipal policy of some nature.” Monell, 436 U.S. at 691, 98 S.Ct. at 2036. The Court by so stating left intact that part of Monroe that rejected the presence of liability on the grounds of respondeat superior. It stated:
*857 We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
436 U.S. at 694, 98 S.Ct. at 2038.
The Court in Monell, while rejecting the doctrine of absolute immunity for local governing bodies, refrained from commenting on the scope of any municipal immunity. Monell, supra, at 701, 98 S.Ct. 2018. Although that issue was not before it, the Court, in a separate part of the opinion devoted solely to the subject of immunity, chose to state: “[W]e express no views on the scope of any municipal immunity beyond holding that municipal bodies sued under § 1983 cannot be entitled to an absolute immunity, lest our decision that such bodies are subject to suit under § 1983 ‘be drained of meaning’.” Monell, at 701, 98 S.Ct. at 2041.
Applying Monell to our case, the members of the school boards and school administrative offices sued in their official capacities are “person[s]” under § 1983 and are therefore subject to suit for their unconstitutional acts. The acts complained of here were the result of policies set out by the school boards involved. Therefore, the defendants are among those who may be liable under Monell. Burt v. Abel, 585 F.2d 613 (4th Cir. 1978).
The remaining issue, then, is whether the Court’s decision in Monell leaves available any qualified immunity as a bar to liability of a school board official sued in his official capacity. We think that it does.
Prior to Monell, we had held in Eslinger v. Thomas, 476 F.2d 225 (4th Cir. 1973), that good faith immunized a state official sued only in his official capacity from liability for money damages. Eslinger was a case in which a female student at the University of South Carolina was deprived of employment as a page in the South Carolina Senate because of her sex. She brought suit against the State Senators and various officers of the State Senate, including Thomas, the Clerk thereof. She did not sue Thomas in his individual capacity, rather only in his official capacity as Clerk of the Senate. 340 F.Supp. 866, 890, 895. We held that the clerk was “. . . acting in good faith and, we agree, should not be liable for damages.” 476 F.2d at 228. We reasoned that “. . .in the area of sex-discrimination, the inchoate state of legal guidelines suggests that good faith, coupled with reasonable grounds to believe one is acting within the law, should be sufficient to preclude liability for damages. [Footnote omitted] Properly applied, such a test, based on the circumstances of each case, maintains the effectiveness of § 1983 actions, while providing conscientious state officials with some protection against the cutting edge of a rapidly developing legal doctrine.” 476 F.2d at 229. While we did require the district court to give injunctive and declaratory relief in Eslinger, the only money item sued for was $40 per week “. . . wages as a result of the defendants’ discriminatory refusal to hire her as a page.” 340 F.Supp. at 889. We stated that no question of reinstatement was involved in the case, and the damage claim, although labeled as one for backpay, was independent from plaintiff’s claim for injunctive relief to ban invidious sex classifications in the hiring of pages. 476 F.2d at 230, n. 10. We see no distinction between lost wages as a result of an unconstitutional resolution of the South Carolina State Senate and lost wages as a result of an unconstitutional resolution of a school board, whether the lost wages be called backpay or damages. The Court, in Monell, we think has ended any distinction, sometimes made, between backpay and money damages, for it described the “backpay,” sued for as “equitable
New courts have ruled on the issue of the existence of good faith immunity as a defense to a § 1983 suit since the decision in Monell. A search of the circuits finds only a handful of cases discussing this matter. Those courts which have ruled on the issue support our belief that the defense of good faith immunity must be made available to municipal government officials acting in their official capacities.
In Bertot v. School District No. 1, Albany Co., 613 F.2d 245 (10th Cir. 1978), over a dissent, the court held that a school district was immune from monetary damages on the ground that the school district and its members, acting in their official capacities, acted in good faith. The court there reasoned that if the doctrine of qualified immunity for good faith actions were available to officers acting in their individual capacities, it should likewise be available to the board collectively and its members acting in official capacities. The reasons compelling the good faith immunity are just as compelling in all instances, the individuals are the same, and the restrictions on independent judgment are the same, the court said.
In Owen v. City of Independence, Mo., 589 F.2d 335 (8th Cir. 1978), cert. granted, -U.S. -, 100 S.Ct. 42, 62 L.Ed.2d 28 (1979), the court construed Monell to imply the local governing bodies may assert a limited immunity defense in § 1983 suits brought against them. Here, the court concluded that although the defendant city had stigmatized the plaintiff, a former police chief, through the city’s actions regarding the plaintiff’s firing and subsequent grand jury investigation, and as a result had violated the plaintiff’s constitutional rights, the plaintiff could not recover backpay from the city because the city and its officials had acted in good faith. The court recognized the validity of a defense of good faith immunity to cover both individual defendants and the city as well, insulating them from monetary liability. Owens, supra, at 338.
In Ohland v. City of Montpelier, 467 F.Supp. 324 (D.Vt.1979), the district court of Vermont applied the good faith immunity defense to local governing bodies. The court reasoned that the arguments in favor of strict governmental liability are not stronger than those in favor of vicarious liability which was specifically rejected by the Court in Monell. The court further reasoned that both the legislative history of § 1983 and the unique problems inherent in the public sector require the insulation of government from monetary responsibility for acts done with no knowledge that those acts may later be ruled unconstitutional in the same manner as individuals would be so protected.
The district court of Maryland in Gross v. Pomerleau, 465 F.Supp. 1167 (1979), held the defense of good faith immunity was available to local governing bodies and their members acting in their official capacities. Relying upon O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), and Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), the court noted that the Court’s holding in Mo-nell, that municipalities could be sued, did not mean that they could not avail themselves of the defense of good faith immunity that is necessary for the continuation of government operating vigorously for the public interest.
All of these decisions support this court’s ruling in Eslinger and illustrate that Monell should not disturb our reasoning there. There, to repeat, in a § 1983 case, we held
The Court in recent years has decided that a variety of public officials are entitled to a degree of immunity if their work is to go forward. E. g., Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Those and other cases are based on the reasons that public decision makers should not bear the burden of mistakes made in good faith in the course of exercising their discretion; that a too rigid standard of liability would inhibit their actions which are necessary for the public good; that the good faith fulfillment of their responsibilities within the bounds of reason will not be punished; and that they should not exercise their discretion with undue timidity. Wood established such an immunity defense for members of school boards and quoted Scheuer as follows, 420 U.S. at p. 321, 95 S.Ct. at p. 1000:
“Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity — absolute or qualified — for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.”
Wood went on to establish a two-prong test for ascertaining whether or not school board members should receive a limited immunity for their official acts, and, although that was in the context of student discipline, we see no reason it should not apply here. The rule is that a member of a school board is entitled to immunity in a suit for damages if he is acting sincerely and with a belief that he is doing right, but he is “not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. That is not to say that school board members are ‘charged with predicting the future course of constitutional law.’ A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student’s clear established constitutional rights that his action cannot reasonably be characterized as being in good faith.” 420 U.S. at 322, 95 S.Ct. at 1001.
While it may be true that there is additional reason to extend immunity to school board members sued in their individual capacities than those sued only in their official capacities, the fear of having to pay a judgment out of personal resources being an added consideration, we, nevertheless, do not believe that the additional reason to grant a defense of good faith immunity to a school board member sued in his individual capacity detracts from the reasons we have mentioned, which apply equally to the member whether sued in his individual or representative capacity. As one court has pointed out, a conscientious school board member will hesitate to act if he knows that his actions, although taken in the utmost good faith and belief in their validity, may subject the board or municipality which he serves to extensive financial liabil
Perhaps the best reasoned analysis of this problem we have found is in Ohland, at p. 345, which we quote and endorse:
“We hesitate to extend the logic of strict liability in the realm of private enterprise to the governmental arena. Taxpayers are not private investors willingly accepting the risks of doing business in return for anticipated profits. Moreover, governments, unlike private business, cannot choose to avoid acting in areas of greater risk. Nor can governments minimize liability for constitutional torts by engaging in ‘product development’ or improved procedures when the contours of future constitutional decisions are unknown, and the rights of different groups of possible plaintiffs are potentially in conflict.” [Citations omitted]
“Because so many governmental decisions affect large numbers of potential plaintiffs, a rule of retroactive liability would pose a substantial threat to the quality and efficiency of governmental decision-making. The losses that some persons may be forced to bear because a court’s finding of unconstitutionality comes too late are not fundamentally different from the losses that many individuals bear as a result of governmental decision-making in the areas of health and safety and economic regulation. [Citation omitted] In all these cases, absent an explicit legislative determination that these losses will be shared, they should be considered part of the accepted risk attending governmental decisionmaking in a complex society.”14
Applying the Wood test, then, to the facts in this case, there is no evidence at all of any impermissible motivation on the part of any defendant in entering into or administering the contracts involved. The federal circuits were divided on the question, as was this court. No rule of settled indisputable law was established on the subject until LaFleur, and before the decision in LaFleur both Henrico and Albemarle Counties had revoked their previous pregnancy regulations following our panel opinion, and did not even attempt to reinstate them when that opinion had itself been overruled by the en banc court. Malicious intention on the part of the defendants is not even claimed, .and, if it were, there is no evidence to support it.
Accordingly, we are of opinion and hold that the defendant school officials connected with Henrico and Albemarle Counties, in their official capacities, are immune from the claims of backpay because they acted in good faith without knowledge that the acts they took would violate the constitutional rights of the plaintiffs, and because they did not act with malicious intent.
VI
As we have noted, Monell decided that a municipality (school board) in a suit for backpay was a “person” within the meaning of 42 U.S.C. § 1983. As well, it decided that in such suits individual members of the school board sued in their official capacities were such “person[s]”. The case went on to state that local governing bodies can be sued directly under § 1983 for monetary, declaratory, or injunctive relief, as can local government officials be sued in their official capacities in those cases in which the local government could be sued. 436 U.S. p. 690 and note 55, 98 S.Ct. 2018.
Were these statements of the Court not enough, we think the individual defendants involved here may be required to perform their official duties in a constitutional manner under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
In Ex parte Young, the Attorney General of Minnesota was enjoined to conform his future conduct of that office to the requirements of the Fourteenth Amendment. The relief there “was prospective only.” Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). When an official acts under color of state law in a manner which violates the Constitution, “ . . . he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.” Young, 209 U.S. p. 160, 28 S.Ct. p. 454. We see no difference between Ex parte Young and the case at hand. The officials here, acting in good faith under color of state law, have, as municipal officials, nevertheless acted in an unconstitutional manner. They should be stripped of their “official or representative character,” Young, p. 160, 28 S.Ct. 441, and required to “conform” their “future conduct of . office,” Edelman, 415 U.S. p. 664, 94 S.Ct. 1347, to the requirements of the Constitution. The individual defendants, conforming their conduct of office to the requirements of the Constitution, must offer reinstatement
VII
While the defendants have substantially prevailed in these appeals, we think the plaintiffs are entitled to an attorney’s fee, from the Henrico and Albemarle defendants, in the amount of $500, for defending their reinstatement on appeal, for in that one aspect they prevailed.
On remand, the district court will decide the question of attorneys’ fees for the proceedings in that court. See Burt, p. 617—618; Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979).
. § 1983. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party
Jurisdiction is claimed under 28 U.S.C. §§ 1343 and 2201. § 2201, a part of the Declaratory Judgment Act, of course, is not a section upon which jurisdiction may be based. There must be an independent basis for jurisdiction before declaratory relief may be sought under § 2201. Wright & Miller, Federal Practice and Procedure, § 2766 (1973), and cases there cited. Jurisdiction, here, is thus based on § 1343, and the cause of action on § 1983. Our holding applies to cases under these statutes only. The Supreme Court made this same point clear in its decision in City of Kenosha v. Bruno, 412 U.S. 507, esp. pp. 513-514, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973).
. The record indicates that in late 1972 both the Albemarle and Henrico County School Boards rescinded their maternity leave policies. Therefore, any issues relating to declaratory or injunctive relief against the future enforcement of those policies have become moot.
. The Albemarle County maternity leave policy . provided: A teacher who becomes pregnant prior to reporting for duty at the beginning of a new school term shall report this fact to the Superintendent and obtain a release from her contract.
A teacher who becomes pregnant after commencing her contractual duties shall relinquish her position four months before the expected date of delivery except when the four months period occurs with only one report card period remaining to complete the contractual obligations for the term. The teacher will be required to submit to her principal a physician’s statement giving the approximate date of delivery when the pregnancy becomes known. Teachers in good standing who have completed one year of service are eligible for maternity leave without pay. Such teachers will be allowed to return to the system at a time mutually acceptable to the teacher and the administration.
At the discretion of the Superintendent and Principal, teachers who become pregnant may continue beyond the established termination date whenever suitable replacements cannot be found.
. The Henrico County policy provided, in pertinent part:
Pregnancy of four months duration shall be sufficient cause for termination of contract, and earlier if deemed advisable. This regulation may be waived by the superintendent or his designated representative in individual cases whereby the teacher may continue for another thirty (30) days or so if deemed to be in the best interest of the school system.
. The school semester ended on January 23, 1972.
. FRCP 23(b)(1):
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.
. The Court stated it followed Singleton v. Vance County Board of Education, 501 F.2d 429 (4th Cir. 1974), in which this court held that a school board is not a person within the meaning of § 1983.
. Under Rule 23(a), it is requisite to the maintenance of all class actions that:
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect the interests of the class.
. Our holding in no way prevents the utilization of Rule 23(b)(2) in cases in which a class of plaintiffs brings suit against more than one named defendant, each one of which has taken like action affecting directly the individual members of the plaintiff class. See East Texas Motor Freight v. Rodriquez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977); Hill v. Western Electric Co., Inc., 596 F.2d 99 (4th Cir. 1979). Indeed, an intention of the Rule was to facilitate class action treatment in the civil rights area, such as where, for example, an employer and a union are joined as defendants in a complaint alleging racial discrimination in employment. See Wright, supra, § 1775.
In this case, in contrast, more than 130 different school boards were free to adopt maternity leave policies of entirely unknown differences or similarities. It is uncontradicted that there was no state-wide policy in force, centrally directed or otherwise.
. Prior to the district court’s March 5, 1975 holding, in which the court held that the plaintiff class was entitled to summary judgment, members of such school boards that maintained allegedly discriminatory maternity leave policies were not part of the defendant class as it had been previously defined.
. FRCP 24(b) provides for intervention in the discretion of the district judge upon timely application when, inter alia, an applicant’s claim or defense and the main action have a question of law or fact in common. Rule 24(a) concerns intervention as a matter of right. See American Pipe, p. 552, n. 22, 94 S.Ct. 756.
While our remand pertaining to intervention applies only to school teachers in Henrico and Albemarle Counties, there is broad language in American Pipe indicating that the statute of limitations would be tolled for all members of the class originally certified by the district court. “We are convinced that the rule most consistent with federal class action procedure must be that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” 414 U.S. at 554, 94 S.Ct. at 766.
. In Burt and in Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978), we considered the application of Monell, but in neither case was the question of immunity considered or decided.
. For a discussion of those reasons, see Wood v. Strickland, 420 U.S. 308 at 313-322, 95 S.Ct. 992. The court relied on Wood and Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), and Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
. By quoting from Ohland, we do not imply our decision is based on retroactivity; rather, it is based on good faith immunity.
. Sala v. County of Suffolk, 604 F.2d 207 (2d Cir. 1979), decided while our case was pending, is consistent with this opinion.
. The declaratory and injunctive aspects of the case were moot, as the Court acknowledged in its opinion. Monell, p. 661, 98 S.Ct. 2018.
. Whether Mrs. Paxman was eligible for medical leave without pay and its accompanying provision for return to work appears not to have been considered.