Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge. (CA-95-722-2)
A member of the Court requested a poll on the suggestion for rehearing en banc. The poll failed to produce a majority of the judges in active service in favor of rehearing en banc.
Chief Judge Wilkinson, and Judges Russell, Widener, Wilkins, Luttig, and Williams voted for rehearing en banc. Judges Murnaghan, Ervin, Niemeyer, Hamilton, Michael, and Motz voted against rehearing en banc. Judge Hall disqualified himself and took no part in the consideration of this case.
Judge Motz filed an opinion concurring in the denial of rehearing en banc, in which Judges Murnaghan, Ervin, Hamilton, and Michael joined. Judge Luttig filed an opinion dissenting from the denial of rehearing en banc, in which Chief Judge Wilkinson, and Judges Russell, Widener, Wilkins, and Williams joined.
The suggestion for rehearing en banc is hereby denied. Entered at the direction of Judge Motz for the Court.
DIANA GRIBBON MOTZ, Circuit Judge, 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 Section(s) 1983 damages action. Anderson v. Creighton, 483 U.S. 635 (1987); Harlow v. Fitzgerald, 457 U.S. 800 (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 (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. 1996).
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 apply subjective factors to evaluate whether an official is entitled to qualified immunity, McGraw himself expressly conceded that our formulation of the "test for determining whether qualified immunity applies" in this case"is consistent with this Court's decisions in a number of cases and is supported by the Supreme Court's decision in Anderson v. Creighton." McGraw's concession was well advised. Our holding not only accords with Fourth Circuit precedent, Allen, 106 F.3d at 593-94, and that of every other court to consider the question, id. at 590, but also, and most importantly, with controlling Supreme Court authority. Id. at 591-93.
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.
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. Mateo, 360 U.S. 564, 572 (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 Section(s) 1983. See, e.g., Procunier v. Navarette, 434 U.S. 555, 561-62 (1978) (holding Section(s) 1983 immunity dependent upon"the scope of discretion and responsibilities of the office"); Wood v. Strickland, 420 U.S. 308, 318 (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 (1974) (quoting Barr, 360 U.S. at 573-74 (1959)) (quotation marks omitted). See also Butz v. Economou, 438 U.S. 478, 495 (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 (emphasis added); Mitchell, 472 U.S. at 525; see also Anderson, 483 U.S. at 639 ("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 (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 alternative." Harlow, 457 U.S. at 813-14. See also Wyatt v. Cole, 504 U.S. 158, 168 (1992); Anderson, 483 U.S. at 638. On the one hand, in "situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees;" on the other, the costs of such suits are great to the defendant officials and "society as a whole." Harlow, 457 U.S. at 814. For these reasons, the Court made it clear that it was providing qualified immunity to government employees because of their public office and reserving the immunity for performance of official duties.
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 (quoting Gregoire, 177 F.2d at 581) (bracketed material supplied by Harlow Court) (emphasis added). See also Wyatt, 504 U.S. at 168; Mitchell, 472 U.S. at 526.
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, No. 95-1853, 1997 WL 273679, at *7 (U.S. May 27, 1997) (emphasis added) (holding in Section(s) 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 *8 (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. 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, 1997 WL 273679, at *7.
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. 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.
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 Section(s) 1983; 2) do the purpose and history ofSection(s) 1983 or Harlow's special policy considerations require providing immunity. Wyatt, 504 U.S. at 163-64 (cited and quoted in Allen, 106 F.3d at 590-92); id. at 175-76 (Rehnquist, C.J., dissenting); Malley v. Briggs, 475 ...