John W. Banks, III - Page 15




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               With the enactment of 42 U.S.C. sec. 1983, the Congress                
          created a “federal cause of action unknown at common law, [for]             
          the deprivation of any rights, privileges, or immunities secured            
          by the Constitution and laws [of the United States.] * * * In the           
          broad sense, every cause of action under � 1983 which is well-              
          founded results from ‘personal injuries’.”  Almond v. Kent, 459             
          F.2d 200, 204 (4th Cir. 1972).  The Supreme Court has declared              
          that 42 U.S.C. sec. 1983 was intended to create a species of tort           
          liability.  See Carey v. Piphus, 435 U.S. 247, 253 (1978).  This            
          Court has held that damages received in a suit under 42 U.S.C.              
          sec. 1983 for a violation of a first amendment right were                   
          excludable under section 104(a)(2).  See Bent v. Commissioner, 87           
          T.C. 236 (1986), affd. 835 F.2d 67 (3d Cir. 1987).                          
               However, in the instant case the pretrial order explicitly             
          limits the remedies sought by petitioner: “Plaintiff seeks only             
          reinstatement, back pay, and attorneys’ fees”.  These remedies              
          are available under title VII.  The remedies do not include both            
          equitable and legal relief, including compensatory and punitive             
          damages allowable under 42 U.S.C. secs. 1981 or 1983.  On the               
          basis of the pretrial order, we find that petitioner had, at the            
          time of settlement, abandoned his claims under 42 U.S.C. secs.              
          1981 and 1983.  Consequently none of the settlement amount is               
          attributable to a claim of personal injury.                                 








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