SPROUSE, Circuit Judge:
Alvin S. Adams and David A. Gootee appeal the dismissal of their claims brought under 42 U.S.C. § 1983,
York County, Virginia, is governed by an elected Board of Supervisors. Management of county activities is performed on a daily basis by a County Administrator, who at the time of the dispute in question was appellee Bain.
Fire protection in York County is provided by the York County Fire Department, whose fire fighting forces consist of two groups: a group of full-time salaried fire fighters, and members of the York County Volunteer Fire Department (VFD). The VFD is a membership organization. Although its members are not salaried employees of the county, they are covered by the county's workmen's compensation policy. The VFD receives fire fighting equipment from the county and uses the county fire department building and other county property.
VFD members are required to participate in fifty percent of the organization's activities in order to maintain membership. The VFD elects its own officers and holds regular meetings at the county-owned fire station. York County's Fire Chief, appellee Robertson, is a member of the VFD and is also a member of its Executive Committee. Both volunteer and full-time fire fighters serve under the command of the Fire Chief when participating in fire fighting activities. The Fire Chief, in turn, is accountable to the County Administrator and the Board of Supervisors.
The present case arose out of actions taken by appellees following the appearance
Appellees argue, and the district court apparently agreed, that the VFD is a private entity with control over its membership. They urge that even though the Fire Chief and County Administrator dismissed the appellants from further service as fire fighters, the Chief and Administrator acted under a misunderstanding of their official authority. Alternatively, appellees contend that the appellants voluntarily "resigned after their dismissal." They thus contend that the dismissals were ineffective and not made "under color of state law." Appellees further claim that because service as a volunteer fire fighter is not a "right" in any sense of the word, it does not merit constitutional protection. Appellants, on the other hand, allege that they were discharged by county officials, the VFD, or by joint action of the VFD and county officials, concededly for the exercise of rights protected by the first amendment.
The district court conducted an evidentiary hearing, which it characterized as a hearing on the jurisdictional issues, but initially held the case in abeyance pending possible state court resolution of the appellants' then current membership status in the VFD. The district court's later order indicates only that the court granted dismissal after consideration of defendants' motion and supporting memorandum. Neither the memorandum nor the pleaded facts of the case, however, suggest any support for considering a 12(b)(2) dismissal. We assume, therefore, that the district court's action was based on Fed.R.Civ.P. 12(b)(1), that it lacked subject matter jurisdiction, and on Fed.R.Civ.P. 12(b)(6), due to its belief that the complaint failed to state a claim upon which relief could be granted. We review the court's action as based independently on each of these two grounds and find it erred in dismissing the case on either ground.
We first consider the court's action as a 12(b)(6) dismissal. In reviewing a court's action grounded on this rule, we accept as true the allegations of the complaint. As this court has noted, a complaint should not be so dismissed "unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim." Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969). A complaint should not be thus dismissed merely because the court doubts that the plaintiff will ultimately prevail; so long as a plaintiff colorably states facts which, if proven, would entitle him to relief, the motion to dismiss should not be granted. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see generally, C. Wright & A. Miller, Federal Practice and Procedure § 1357 (1969 & 1981 Supp.). In the present case, the appellants alternatively allege that they were dismissed by individual state officials, by the VFD, or by state officials acting jointly with the VFD, in retaliation for exercising their first amendment right to address the Board of Supervisors. We believe that these allegations clearly state a claim under section 1983.
The appellees do not deny that the appellants' dismissals resulted from their efforts to change the manner in which York County provides fire and rescue services, by speaking at a public meeting of the Board of Supervisors. That fact is not an issue on this appeal.
The Supreme Court has recently outlined an approach for resolving issues of this type. Lugar v. Edmondson Oil Co., ___ U.S. ___, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). In Lugar, Justice White aptly expressed the principle which should be applied to the facts of this case:
Id. at ___, 102 S.Ct. at 2754.
The issue of whether the deprivation alleged here can be fairly attributable to the state involves questions of whether there was state action and whether the alleged wrongs were perpetrated by state actors. These questions, however, tend "to collapse into each other," and require resolution of issues of fact. There are therefore several reasons why it was improper to dismiss the complaint on a 12(b)(6) motion without receiving evidence and deciding the issues on the merits. For example, one of the appellants' claims is that the VFD removed them from membership as a result of the actions taken by Bain and Robertson. It is well settled that prohibited action taken in concert by public officials and a private entity is state action regardless of whether the ultimate illegal sanctions were imposed by the private entity or a public official. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Thus, if appellants' dismissals resulted from the concerted actions of Bain
Appellants also claim that York County violated their constitutional rights by acting through its full-time paid officials, Bain and Robertson. The County admits that there was official action, but asserts that such action was void ab initio because neither the two officials nor York County had the authority to dismiss the appellants from the VFD, as it was a private organization having control over its membership. Absent from this rationale is any consideration of the ultimate effect of the Robertson-initiated action. Arguably, only a majority vote of the VFD could dismiss the appellants from its membership. Robertson and Bain, however, had the authority, and forcefully exercised it, to exclude the appellants from the county-owned property occupied by the VFD, from operating the equipment used by the organization, and from engaging in the very act of fire fighting. Consequently, even if appellants had continued as members of the VFD, their membership would have been stripped of all substance — bare of the essential reasons for which they obviously joined — the opportunity to engage in fire fighting and other emergency activity.
Finally, even assuming that the VFD acted solely on its own to deprive appellants of their rights or privileges of membership in retaliation for their conduct at the public meeting, there is an issue as to whether the organization was exercising a "traditional public function," making it a "state actor" for fourteenth amendment purposes. The Supreme Court has emphasized that a private entity can in some circumstances so completely perform the functions normally reserved to a traditionally public entity that its activity can be fairly characterized as "state action." See Rendell-Baker v. Kohn, supra; Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); see also Janusaitis v. Middlebury Vol. Fire Dept., 607 F.2d 17 (2d Cir.1979). As observed in Flagg Brothers:
436 U.S. at 163-64, 98 S.Ct. at 1737 (footnotes omitted). In Rendell-Baker, supra, the Court stated:
Id. at ___, 102 S.Ct. at 2772.
We need not decide whether the VFD is a private organization and, if so, whether fire fighting per se is an activity "traditionally the exclusive prerogative of the State." Whether, however, responsibility for public
We next consider the district court's dismissal as based on Rule 12(b)(1). There are two critically different ways in which to present a motion to dismiss for lack of subject matter jurisdiction. First, it may be contended that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based. In that event, all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.
In judging this evidentiary attack, the trial court necessarily assumes a different role than in a proceeding to resolve a 12(b)(1) motion based on contentions that the complaint was jurisdictionally deficient on its face. The burden of proving subject matter jurisdiction on a motion to dismiss is on the plaintiff, the party asserting jurisdiction. A trial court may consider evidence by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment. See Mims v. Kemp, 516 F.2d 21 (4th Cir.1975). Unlike the procedure in a 12(b)(6) motion where there is a presumption reserving the truth finding role to the ultimate factfinder, the court in a 12(b)(1) hearing weighs the evidence to determine its jurisdiction. This does not usually present a serious problem except in those cases where the jurisdictional facts are intertwined with the facts central to the merits of the dispute. It is the better view that in such cases the entire factual dispute is appropriately resolved only by a proceeding on the merits. See Chatham Condominium Ass'n. v. Century Village, Inc., 597 F.2d 1002 (5th Cir.1979); McBeath v. Inter-American Citizens for Decency Comm., 374 F.2d 359 (5th Cir.), cert. denied, 389 U.S. 896, 88 S.Ct. 216, 19 L.Ed.2d 214 (1967); Mortensen v. First Federal Sav. and Loan Ass'n., 549 F.2d 884 (3d Cir.1977); see also Hospital Building Co. v. Trustees of Rex Hospital, 511 F.2d 678, 680-81 (4th Cir.1975), rev'd. on other grounds, 425 U.S. 738, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976);
The trial court in this case made no finding of fact, but we assume that the portion of its dismissal order resting on jurisdictional grounds was based on the testimony produced at the hearing it conducted. That evidence established: the appellants appeared before the Board of Supervisors in an exercise of their first amendment
The reasons for the appellants' participation in the "resignations" after their discharge is not clear. Nor is there sufficient evidence in the record to determine the legal effect of such "resignations" under state law.
We express no opinion on the merits of the appellants' case. It may well be that the actions allegedly taken by York County and the VFD were constitutionally permissible. That is an ultimate conclusion that can be reached only after a full trial. The judgment of the district court dismissing the case is reversed, and the cause remanded for proceedings consistent with the views expressed in this opinion.
REVERSED AND REMANDED.