Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 73 C 611 WILLIAM J. LYNCH, Judge.
Castle, Senior Circuit Judge, and Stevens and Sprecher, Circuit Judges.
The issue raised by this appeal is whether the complaint, mounting a constitutional attack on the Hatch Act insofar as it affects state and local employees, was properly dismissed as lacking a substantial federal question.
At the outset we are faced with pleading deficiencies which go to the propriety of federal jurisdiction.
The plaintiffs in their amended complaint for declaratory judgment and injunctive relief have alleged that jurisdiction is conferred by 28 U.S.C. § 1331 and § 1343 (3).*fn1
Section 1343(3) grants jurisdiction of an action commenced "to redress the deprivation, under color of any state law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States" (emphasis added). The plaintiffs further allege that they seek redress under Section 1983, which provides:
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 injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983 (emphasis added).
Inasmuch as the plaintiffs are here complaining about acts done by the defendants under color of federal law rather than state law, 42 U.S.C. § 1983 does not apply. Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1346 (2d Cir. 1972); Norton v. McShane, 332 F.2d 855, 862 (5th Cir. 1964), cert. denied, 380 U.S. 981, 14 L. Ed. 2d 274, 85 S. Ct. 1345. Consequently, jurisdiction is not conferred by 28 U.S.C. § 1343 (3).
The jurisdictional basis for this case must be 28 U.S.C. § 1331(a), Bivens v. Six Unknown Named Agents, 403 U.S. 388, 398, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) (Harlen, J., concurring), which provides:
The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution law, or treaties of the United States.
The amended complaint does not contain allegations satisfying the jurisdictional amount and was properly dismissed on that ground alone, although not raised by the parties nor mentioned as a ground by the district court in its dismissal order.
Although we could permit the plaintiffs to amend their complaint in this court to allege the proper jurisdictional amount for each plaintiff, assuming that such allegations could, in good faith be made,*fn2 it would be futile to do so if we ultimately concluded that the amended complaint was also properly dismissed for the ground assigned by the district court, namely lack of a substantial federal question.
The section of the Hatch Act which the plaintiffs specifically ...