DocketNumber： Nos. 96-1464, 96-1601 and 96-1652
Citation Numbers： 119 F.3d 1129
Judges： Against, Consideration, Ervin, From, Hall, Hamilton, Himself, Luttig, Michael, Motz, Murnaghan, Niemeyer, Russell, Took, Voted, Widener, Wilkins, Wilkinson, Williams
Filed Date： 7/16/1997
Status： Precedential
Modified Date： 11/4/2024
concurring in the denial of rehearing en banc:
When a government employee acts within the scope of his authority in an objectively reasonable manner, the qualified immunity doctrine shields his conduct from scrutiny in a § 1983 damages action. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In these circumstances qualified immunity not only insulates an official from liability, but also entitles him to escape trial. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). This court’s unanimous holding in the case at hand — that a government employee who performs acts “clearly established to be beyond the scope of his discretionary authority” cannot claim qualified immunity — completely accords with these principles. See In re Allen, 106 F.3d 582, 593 (4th Cir.1997).
Indeed, although Attorney General McGraw petitioned for rehearing, urging that we follow McElveen v. County of Prince William, 725 F.2d 954 (4th Cir.1984), and
Our dissenting colleagues, however, would grant rehearing on a basis never suggested by McGraw or adopted by any court. They would extend the powerful protection afforded by the qualified immunity doctrine to employees committing acts clearly established to be beyond the scope of official duties. Such a holding would be contrary to the purposes of the qualified immunity doctrine, undermine its validity, and conflict with Supreme Court directives as to when the doctrine is applicable. Such a holding would be both unprecedented and unwise.
The court’s opinion in this case sets forth my position; I write here only to respond to the call for rehearing.
I.
Our dissenting colleagues vociferously assert that the court’s opinion is contrary to controlling Supreme Court precedent. To the contrary, our holding is entirely consistent with, in fact compelled by, Supreme Court precedent.
At common law an official’s immunity was limited to acts within the scope of his authority, see Allen, 106 F.3d at 591-92, and long before the Harlow Court created modern qualified immunity “the decisions h[ad], indeed, always imposed as a limitation upon [official] immunity that the official’s act must have been within the scope of his powers.” Barr v. Matteo, 360 U.S. 564, 572, 79 S.Ct. 1335, 1340, 3 L.Ed.2d 1434 (1959) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949)) (plurality opinion) (internal citations omitted). The Supreme Court followed this unbroken line of precedent in applying qualified immunity under § 1983. See, e.g., Procunier v. Navarette, 434 U.S. 555, 561-62, 98 S.Ct. 855, 859-60, 55 L.Ed.2d 24 (1978) (holding § 1983 immunity dependent upon “the scope of discretion and responsibilities of the office”); Wood v. Strickland, 420 U.S. 308, 318, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975) (same). That approach is the only one consistent with the Court’s long held view, first expressed in absolute immunity cases, that “the relation of the act complained of to matters committed by law to [the official’s] control or supervision ... must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity.” Scheuer v. Rhodes, 416 U.S. 232, 247, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90 (1974) (quoting Barr, 360 U.S. at 573-74, 79 S.Ct. at 1340-41 (1959)) (quotation marks omitted). See also Butz v. Economou, 438 U.S. 478, 495, 98 S.Ct. 2894, 2905, 57 L.Ed.2d 895 (1978) (official immunity does not abolish the liability of officers “for actions manifestly beyond their line of duty.”).
Harlow did not signal a break with this long held understanding of official immunity. In Harlow and its progeny, the Supreme Court reiterated that a government official may claim qualified immunity only when “an official’s duties legitimately require action in which clearly established rights are not implicated.” Harlow, 457 U.S. at 819, 102 S.Ct. at 2739 (emphasis added); Mitchell, 472 U.S. at 525, 105 S.Ct. at 2814-15; see also Anderson, 483 U.S. at 639, 107 S.Ct. at 3038-39 (“whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action.”) (emphasis added); id. at 640, 107 S.Ct. at 3039 (discussing when clearly established law protects “an official action.”).
Furthermore, the policies that underlie Harlow support following the traditional scope of authority rule. In formulating the modern, objectively reasonable, qualified immunity doctrine, the Supreme Court recognized it was resolving the “balance between the evils inevitable in any available alterna
Thus the Court explained that governmental employees are accorded qualified immunity from the consequences of objectively reasonable official acts to prevent “the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office ” and “the danger that the fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’ ” Harlow, 457 U.S. at 814, 102 S.Ct. at 2736 (quoting Gregoire, 177 F.2d at 581) (bracketed material supplied by Harlow Court) (emphasis added). See also Wyatt, 504 U.S. at 168, 112 S.Ct. at 1833-34; Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815.
But, this “principal rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.” Clinton v. Jones, — U.S. -, -, 117 S.Ct. 1636, 1643, 137 L.Ed.2d 945 (1997) (emphasis added) (holding in § 1983 action no absolute immunity for damages arising from “unofficial conduct”). Thus, as the Supreme Court reaffirmed only a few days ago, the Court has “never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.” Id. at -, 117 S.Ct. at 1644 (emphasis added). By definition, government officials acting beyond the scope of their authority are not engaged in the “duties” of “public office,” involving “public issues.” Harlow, 457 U.S. at 814, 102 S.Ct. at 2736. They are instead acting outside the scope of any duty of public office, and thus neither the “principal rationale” for official immunity nor the immunity itself shields them. Clinton, at -, 117 S.Ct. at 1643-44.
When a government employee’s acts are clearly established to be beyond the scope of his official duties, obviously his acts are not “legitimately require[d]” by those duties as Harlow directs. Harlow, 457 U.S. at 819, 102 S.Ct. at 2738-39. The dissenters’ extension of' qualified immunity to those acts would totally undermine the careful test that the Supreme Court formulated in Harlow in light of and consistent with its decisions in Barr, Scheuer, Wood, Procunier, and Butz, and which it has reiterated in Clinton, Wyatt, Anderson, and Mitchell.
II.
The dissenters’ unwarranted extension of qualified immunity to acts clearly established to be beyond the scope of official duties also finds no support in the procedure the Supreme Court has mandated for determining whether an official can claim such immunity.
The Supreme Court has crafted a two-step process for determining whether an official may claim immunity: 1) was an official in similar circumstances granted a common law immunity at the time of passage of § 1983; 2) do the purpose and history of § 1983 or Harlow’s special policy considerations require providing immunity. Wyatt, 504 U.S. at 163-64, 112 S.Ct. at 1830-31 (cited and quoted in Allen, 106 F.3d at 590-92); id. at 175-76, 112 S.Ct. at 1837 (Rehnquist, C.J., dissenting); Malley v. Briggs, 475 U.S. 335, 339-340, 106 S.Ct. 1092, 1095-96, 89 L.Ed.2d 271 (1986). In fashioning our opinion, we closely followed this approach; the dissenters attempt to ignore it.
First, after examining Blackstone’s Commentaries and four nineteenth century Supreme Court cases, we concluded, as the Supreme Court did in Butz, 438 U.S. at 489-90, 98 S.Ct. at 2902-03, that at common law government officials received no immunity for actions that were beyond the scope of their authority. See Allen, 106 F.3d at 591-592.
We then considered “the special policy concerns involved in suing public officials.” Id. at 592-93. We concluded that these policy concerns — preservation of government officials’ “ability to serve the public good or to ensure that talented candidates[are] not deterred by the threat of damages from entering public service,” Wyatt, 504 U.S. at 167, 112 S.Ct. at 1827—are not implicated when an official acts totally beyond the bounds of his authority. See Clinton, at -, 117 S.Ct. 1636, 1644 (“This reasoning provides no support for an immunity for unofficial conduct.”).
Although the dissent suggests certain “horribles” assertedly sure to arise from our holding, it never confronts the fundamental difficulty with its own approach, which would shield an official from suit who knew or should have known that he was acting well beyond the bounds of his authority. To hold as the dissent suggests would award public employees more protection than they were allowed at common law, and expand Harlow to public employees who violate the public trust by acting far beyond the permissible scope of their responsibilities. Such a holding would not benefit the government, or the public, and could only serve a government official’s private interests. Yet, the Supreme Court has specifically directed that qualified immunity is meant to “safeguard government, and thereby protect the public at large, not to benefit its agents.” Wyatt, 504 U.S. at 168, 112 S.Ct. at 1833 (emphasis added).
Moreover, an extension of the qualified immunity doctrine in the manner the dissent suggests, i.e. to benefit an official’s private interests, is totally unnecessary in view of our careful formulation of a standard that preserves great leeway to government employees for the aggressive performance of their official duties. Allen, 106 F.3d at 592-94. Thus, “an official may claim qualified immunity as long as his actions are not clearly established to be beyond the boundaries of his discretionary authority.” Id. at 593 (emphasis added). Only if an employee acts in a way plainly beyond the outer perimeter of his official duties does he lose the right to claim immunity from suit. This standard provides officials with far more protection than the standard adopted by every other court that has considered the question. Ml of those courts have held that officials cannot claim qualified immunity for any acts beyond the scope of their authority. See, e.g., Shechter v. Comptroller of New York, 79 F.3d 265, 268-70 (2d Cir.1996); Lenz v. Winburn, 51 F.3d 1540, 1545-47 (11th Cir.1995); Merritt v. Mackey, 827 F.2d 1368, 1373 (9th Cir.1987).
The principal “horrible” raised by the dissent — that even our quite narrow holding will require federal courts to perform cumbersome inquiries into state law — is thus belied by the experience of our sister circuits. Not a single court that has held that officials acting beyond the scope of their authority cannot claim qualified immunity has suggested that this inquiry (far broader than the one we mandated) is overly burdensome. See, e.g., Shechter, 79 F.3d at 268-70; Lenz, 51 F.3d at 1545-47; Merritt, 827 F.2d at 1373. See also Mackey v. Dyke, 29 F.3d 1086, 1095 (6th Cir.1994) (“defendants bear the initial burden of coming forward with facts to show they were acting within their discretionary authority at the time in question.”); Rheaume v. Texas Dept. of Public Safety, 666
In fact, federal courts are well equipped to examine state law to answer a federal question; even the dissenters recognize that federal courts frequently must interpret state law in § 1983 actions. Federal courts have regularly made an identical scope of authority inquiry in eases of absolute immunity, where “the scope of immunity has always been tied to the ‘scope of ... authority.’ ” Doe v. McMillan, 412 U.S. 306, 320, 93 S.Ct. 2018, 2028, 36 L.Ed.2d 912 (1973) (quoting Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 1444, 10 L.Ed.2d 605 (1963)); see also Westfall v. Erwin, 484 U.S. 292, 297-98, 108 S.Ct. 580, 584-85, 98 L.Ed.2d 619 (1987). Furthermore, in the vast majority of cases a defendant official’s conduct “relates to, or flows from, conduct that the official is indeed authorized to commit” and so he will easily meet his scope of authority burden in the first pleading raising qualified immunity. Allen, 106 F.3d at 594.
In sum, the court correctly concluded that an official acting well beyond the scope of his authority may not claim qualified immunity under the Supreme Court’s “well established” approach “to questions of immunity under § 1983.” Malley, 475 U.S. at 339, 106 S.Ct. at 1095. An official who acted beyond his discretionary authority had no immunity from suit at common law. Allen, 106 F.3d at 591-92. There is nothing in the history or purposes of § 1983 to suggest “that Congress meant to enlarge common law immunities to include officials acting outside the scope of their authority,” and the “special policy concerns involved in suing public officials” are entirely consistent with our decision in this case. Id. at 592-94.
III.
Before concluding, I must briefly address the dissent’s fundamental error in urging that Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), controls the case at hand.
The Supreme Court has expressly held that Davis concerned a single “entirely discrete question: Is qualified immunity defeated where a defendant violates any clearly established duty, including one under state law, or must the clearly established right be the federal right on which the claim for relief is based? The Court held the latter.” Elder v. Holloway, 510 U.S. 510, 515, 114 S.Ct. 1019, 1023, 127 L.Ed.2d 344 (1994) (citing Davis, 468 U.S. at 193-96 & n. 14, 104 S.Ct. at 3018-20 & n. 14 ) (emphasis in original). Therefore, the sole “discrete” question answered in Davis is whether a defendant official’s properly asserted claim of qualified immunity may be “defeated” or “overcome” because the official has violated some other statute or regulation. Id. at 514-15, 114 S.Ct. at 1022-23 (quoting Davis, 468 U.S. at 197, 104 S.Ct. at 3020). Davis does not address, let alone decide, whether a government employee, who commits acts clearly established to be beyond the scope of his official authority, may claim qualified immunity in the first instance.
Thus, the case at hand deals with an entirely different question than that presented in Davis. In this respect, this case is far closer to Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992), than Davis. In Wyatt, decided eight years after Davis, the Supreme Court addressed the question of whether private parties could, in the first instance, claim qualified immunity, not whether a violation of clearly established law defeated that immunity. The Wyatt Court did not find that Davis prohibited this initial inquiry or was even relevant to it. Indeed, just as the parties in the case at hand have never suggested that Davis was relevant to the scope of authority question, the Wyatt Court never cited Davis.
Yet the Court in Wyatt, after following the “well established” approach to determine whether a defendant can claim immunity, concluded that qualified immunity was not “available for private defendants faced with § 1983 liability for invoking a state replevin ... statute.” Wyatt, 504 U.S. at 168-69, 112 S.Ct. at 1834 (emphasis added). Here we have followed precisely the same “well established” approach and have similarly conclud
Furthermore, contrary to the suggestion of the dissent, whether an official has violated state law does not control the scope of authority inquiry. See Allen, 106 F.3d at 594-95. Instead, the analysis focuses solely on the quite different inquiry of whether a government employee’s acts clearly fall beyond the outer limit of his official authority. Id.
Accordingly, neither Wyatt nor the case at hand concern the only question addressed in Davis: “[i]s qualified immunity defeated where a defendant violates any clearly established[state law] duty.” Elder, 510 U.S. at 515, 114 S.Ct. at 1023 (first emphasis added). The Davis plaintiff, unlike the Better Government Bureau (“BGB”) or the plaintiff in Wyatt, made no claim that the defendants were not entitled to immunity at all. The Davis plaintiff did not argue that under the common law a defendant official had no immunity for acts that “violat[ed] some other statute or regulation.” Davis, 468 U.S. at 194 n. 12, 104 S.Ct. at 3019 (emphasis in original). This is because no such common law rule exists. Therefore, in Davis the plaintiff, unlike BGB or the Wyatt plaintiffs, was not asking the Court to recognize that at common law in 1871 (when § 1983 was enacted) no immunity existed, and thus no immunity should exist today. Instead, the Davis plaintiff was asking the Court to shrink the immunity recognized at the time of passage of § 1983 as a policy matter.
If the Davis Court had accepted the plaintiffs position, officials that violated a state regulation would have had less immunity protection than the common law afforded at the time of § 1983’s passage. Thus, the Davis Court’s rejection of that position was well founded. In contrast, here and in Wyatt, the defendant asks for an immunity he would not have been granted at common law. As noted within, the Supreme Court has eschewed providing immunity in such circumstances unless compelling special policy concerns require such a holding. But just as no compelling policy concern requires a court to afford qualified immunity to private parties “faced with § 1983 liability for invoking a state replevin ... statute,” Wyatt, 504 U.S. at 168-69, 112 S.Ct. at 1834, no compelling policy reason requires that qualified immunity be afforded government employees who have acted in a way clearly established to be beyond the scope of their official duties.
IV.
The dissent suggests an unprincipled departure from the Supreme Court’s long held understanding of official immunity and § 1983. Justice Kennedy, joined by Justice Scalia, concurring in Wyatt warned that such departures are not to be undertaken lightly:
It must be remembered that unlike the common-law judges whose doctrines we adopt, we are devising limitations to a remedial statute, enacted by Congress, which “on its face does not provide for any immunities.” Malley, supra, 475 U.S. at 342, 106 S.Ct. at 1096-97 (emphasis in original). We have imported common-law doctrines in the past because of our conclusion that the Congress which enacted § 1983 acted in light of existing legal principles. Owen v. City of Independence, 445 U.S. 622, 637-638, 100 S.Ct. 1398, 1408-09, 63 L.Ed.2d 673 (1980). That suggests, however, that we may not transform what existed at common law based on our notions of policy or efficiency.
Wyatt, 504 U.S. at 171-72, 112 S.Ct. at 1835-36 (Kennedy, J. concurring) (emphasis in original); see also Malley, 475 U.S. at 342, 106 S.Ct. at 1096 (“We reemphasize that our role is to interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy choice, and that we are guided in interpreting Congress’ intent by the common-law tradition.”).
To follow the dissent’s path and disregard both the Court’s long stated approach, and the common law, when interpreting “a statute, enacted by Congress, which ‘on its face does not provide for any immunities,’ ” id., would indeed be in the dissent’s words, “nothing but the rawest exercise of [judicial] power.”
The dissent's assertion that the common law does not support our holding is made without citation to any authority. Similarly, the dissent’s contention that after Harlow common law authorities are no longer applicable in determining whether qualified immunity applies, ignores Malley v. Briggs, Wyatt v. Cole, and Tower v. Glover, each of which postdates Harlow, and each of which states the Court’s "well established" two part, common law test for determining “questions of immunity under § 1983.” See Malley, 475 U.S. at 339, 106 S.Ct. at 1095; Wyatt, 504 U.S. at 163-64, 112 S.Ct. at 1830-31; id. at 175-76, 112 S.Ct. at 1837-38 (Rehnquist, C.J., dissenting); Tower v. Glover, 467 U.S. 914, 920-22, 104 S.Ct. 2820, 2824-26, 81 L.Ed.2d 758 (1984). See also Heck v. Humphrey, 512 U.S. 477, 491-95 n. 1, 114 S.Ct. 2364, 2375 n. 1, 129 L.Ed.2d 383 (1994) (Souter, J., concurring).