Filed: August 8, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 96-1464(L)

(CA-94-952)

In Re: Barbara H. Allen,

Appellant,

Better Government Bureau, etc.,

Plaintiff - Appellee.

ORDER

The Court amends its order filed July 16, 1997, as follows:

On page 20, second full paragraph, lines 9-10 -- the last

sentence on the page is corrected to begin: "Concurrence at 11;

see also id. at 10 (noting... .)."

On page 23, line 2 of indented quotation -- "common-law rule

in 1871" is corrected to read "common-law rule s in 1871."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
 Filed: July 16, 1997 

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: BARBARA H. ALLEN,

Appellant,

BETTER GOVERNMENT BUREAU,

INCORPORATED, an Ohio Corporation,

Plaintiff-Appellee,

v.

DARRELL V. MCGRAW, JR., Attorney

General, State of West Virginia,

Personally and in his Official

Capacity; BETTER GOVERNMENT

BUREAU OFFICE OF THE ATTORNEY

No. 96-1464

GENERAL STATE OF WEST VIRGINIA, A

Body Politic, A Corporate

Instrumentality of Government with

Limited Agency and QuasiSovereign Capacity; KEN HECHLER,

Secretary of State, in his Official

Capacity,

Defendants,

v.

DONNA WILLIS,

Party in Interest.
BETTER GOVERNMENT BUREAU,

INCORPORATED, an Ohio Corporation,

Plaintiff-Appellee,

v.

DARRELL V. MCGRAW, JR., Attorney

General, State of West Virginia,

Personally and in his Official

Capacity,

Defendant-Appellant,

and

BETTER GOVERNMENT BUREAU

No. 96-1601

OFFICE OF THE ATTORNEY GENERAL

STATE OF WEST VIRGINIA, A Body

Politic, A Corporate Instrumentality

of Government with Limited

Agency and Quasi-Sovereign

Capacity; KEN HECHLER, Secretary

of State, in his Official Capacity,

Defendants,

v.

BARBARA H. ALLEN; DONNA WILLIS,

Parties in Interest.

 2
BETTER GOVERNMENT BUREAU,

INCORPORATED, an Ohio Corporation,

Plaintiff-Appellee,

v.

DARRELL V. MCGRAW, JR., Attorney

General, State of West Virginia,

Personally and in his Official

Capacity,

Defendant-Appellant,

and

BETTER GOVERNMENT BUREAU

No. 96-1652

OFFICE OF THE ATTORNEY GENERAL

STATE OF WEST VIRGINIA, A Body

Politic, A Corporate Instrumentality

of Government with Limited

Agency and Quasi-Sovereign

Capacity; KEN HECHLER, Secretary

of State, in his Official Capacity,

Defendants,

v.

BARBARA H. ALLEN; DONNA WILLIS,

Parties in Interest.

_________________________________________________________________

ORDER

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.

 3
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 § 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

 4
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. 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

§ 1983. See, e.g., Procunier v. Navarette, 434 U.S. 555, 561-62

(1978) (holding § 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.").

 5
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

 6
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 § 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.

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 (cited and quoted in Allen, 106 F.3d at 590-92); id. at

175-76 (Rehnquist, C.J., dissenting); Malley v. Briggs, 475 U.S. 335,

339-340 (1986). In fashioning our opinion, we closely followed this

approach; the dissenters attempt to ignore it.

 7
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, 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 proceeded to find that nothing in "the history and purpose of § 1983 . . .

suggests that Congress intended government officials acting clearly

beyond the scope of their authority to be immune from suits for

money damages." Id. at 592. Tellingly, the dissent does not dispute

this conclusion.

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 -- are not implicated when an official acts totally beyond the

bounds of his authority. See Clinton, 1997 WL 273679, at *8 ("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

_________________________________________________________________

* 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; Wyatt, 504 U.S. at 163-64; id. at 175-76

(Rehnquist, C.J., dissenting); Tower v. Glover, 467 U.S. 914, 920-22

(1984). See also Heck v. Humphrey, 512 U.S. 477, 491-95 n. 1 (1994)

(Souter, J., concurring).

 8
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 (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. All of

those courts have held that officials cannot claim qualified immunity

for any acts beyond the scope of their authority. See, e.g., Schechter

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., Schechter, 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 F.2d 925, 930 (5th Cir. 1982) (An

officer may not claim qualified immunity unless he"has shown that

 9
he was acting in his official capacity and within the scope of authority.").

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

cases 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 (1973) (quoting Wheeldin v. Wheeler, 373 U.S. 647, 651

(1963)); see also Westfall v. Erwin, 484 U.S. 292, 297-98 (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. 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 (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

 10
v. Holloway, 510 U.S. 510, 515 (1994) (citing Davis, 468 U.S. at

193-96 & 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 (quoting Davis, 468 U.S. at 197). 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 (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 (emphasis added). Here we have

followed precisely the same "well established" approach and have

similarly concluded that qualified immunity is not available to a government employee engaging in acts clearly established to be beyond

the scope of his official duties.

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

 11
a defendant violates any clearly established [state law] duty." Elder,

510 U.S. at 515 (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 (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 plaintiff's 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, 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

 12
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 (Kennedy, J. concurring) (emphasis in

original); see also Malley, 475 U.S. at 342 ("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."

Judges Murnaghan, Ervin, Hamilton, and Michael join in this opinion.

LUTTIG, Circuit Judge, dissenting:

With today's evenly-divided decision to deny rehearing en banc in

this case, In re: Allen, 106 F.3d 582 (4th Cir. 1997), every state official in this circuit who claims entitlement to qualified immunity must

affirmatively prove, as a threshold burden to proving that he did not

violate the plaintiff's clearly established federal constitutional or statutory rights, that he also did not exceed the scope of his authority

under state law. And, now, every district court in such cases must first

resolve whether the defendant state official acted within the scope of

his state law authority, before proceeding even to address the heretofore only relevant question under Harlow v. Fitzgerald, 457 U.S. 800

(1982), of whether the defendant violated a clearly established federal

constitutional or statutory right of which a reasonable official would

have known. (Indeed, here, although the panel addresses itself for

 13
pages to the intricacies of West Virginia state law, it never even considers the question of whether McGraw violated BGB's clearly established constitutional or statutory rights in the course of denying

McGraw's qualified immunity claim under section 1983, see 106 F.3d

at 590 n.2.)

The panel's unanimous decision thus erects for our circuit an

entirely new framework for analyzing qualified immunity claims by

state officials -- on the strength of what even the panel can characterize at most only as isolated "statements" that qualified immunity protects only official action (none of which, even on its face, arguably

supports the panel's holding) from several Supreme Court opinions

(all of which pre-date Harlow and address absolute, not qualified,

immunity). And, as if to add insult to injury, this new framework is

created and imposed in a case in which the issue was not even presented, the district court having treated the issue only conclusorily. See

Better Government Bureau, Inc. v. McGraw, 904 F.Supp. 540, 553

n.17 (S.D.W.Va. 1995). The panel thus addresses with a thirty page

opinion an issue mentioned passingly by the district court in only a

footnote, and consigns to a footnote the district court's principal holding that there existed a factual dispute as to whether McGraw acted

with the requisite retaliatory motive to violate the plaintiff's clearly

established First Amendment rights, see Allen , 106 F.3d at 590 n.2 --

and this, without even a note of explanation as to why it does not

"simply follow the Supreme Court's mandate [that] when a district

court denies summary judgment because of a purely factual question

that decision is not immediately appealable." See Elliott v. Leavitt,

105 F.3d 174, 184 (4th Cir. 1997) (Motz, J., dissenting from denial

of rehearing en banc).

In erecting this new framework within which state law is always

relevant and often dispositive of a defendant's federal right to qualified immunity, the panel quite obviously misunderstands both section

1983 and the immunity defense of Harlow. Section 1983 provides a

federal cause of action against persons acting under color of state law

for conduct that violates federal rights. Under Harlow, official immunity is available as against this federal cause of action if the defendant

official did not violate clearly established federal constitutional or

statutory rights. Nothing else is required for entitlement to the defense

and nothing else need be shown. Whether a defendant violated state

 14
law, whether he clearly violated state law, or whether he acted outside

of state law, is never determinative of this federal immunity defense,

because an official may lose his immunity only if he violates the statutory or other rights which give rise to the cause of action sued upon.

Because the rights which give rise to the section 1983 cause of action

are solely federal rights -- namely, the federal Constitution and federal statutes -- it follows that an official can never lose his immunity

through the violation of state law (even clear state law), or even

through the failure to act within that law. He forfeits his official

immunity only through the violation of clearly established federal

law, as Harlow held. State law may on occasion provide the basis for

the right that gives rise to a cause of action under section 1983, such

as where it creates a property right protected under the due process

clause, but state law does not, and can never, provide the right that

gives rise to the cause of action under section 1983.

The Supreme Court so held in Davis v. Scherer, 468 U.S. 183

(1984), which the panel opinion does not even so much as cite. In

Davis, the court of appeals had held that an official loses his qualified

immunity if he violated clear state law, even if he did not violate

clearly established federal constitutional or statutory rights, just as the

panel held in the case sub judice that, regardless of whether an official

violated clearly established federal rights, an official is not entitled to

immunity if he acted outside the scope of his state law authority. The

appeals court had reasoned, as did the panel in the present case, that

the violation of clearly established federal rights was not the "sole

way" to forfeit qualified immunity, see id . at 188, and it had failed,

as did the panel here, even to discuss the issue of whether the officials

violated the plaintiff's federal rights, id. at 189.

The Supreme Court reversed the court of appeals and held that a

state official does not forfeit his qualified immunity even by violating

clearly established state law, id. at 194. Rather, said the Court,

[a] plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showing that those rights

were clearly established at the time of the conduct at issue.

Id. at 197 (emphasis added).

 15
Notably, the Court began its opinion by reaffirming its holding in

Harlow that, beyond "the `objective reasonableness of [an official's]

conduct as measured by reference to clearly established law,'" "[n]o

other `circumstances' are relevant to the issue of qualified immunity."

Id. at 191 (citation omitted; emphasis added). And it noted that, even

before Harlow, its precedents "had made clear that, under the `objective' component of the good-faith immunity test,`an official would

not be held liable in damages under § 1983 unless the constitutional

right he was alleged to have violated was `clearly established' at the

time of the violation." Id. at 194 (citations omitted; emphasis in original).

The Court acknowledged that the proposition that an official

should lose his immunity by violating clear state law was "appealing,"

but, it reminded, in determining what factors are and are not to be

considered in deciding qualified immunity claims, a choice must be

made "between the evils inevitable in any available alternative." Id.

at 195 (quoting Harlow, 457 U.S. at 813-14). The Court then went on

to explain that such a submission, "if adopted, would disrupt the balance that [the Court's] cases strike between the interests in vindication of citizens' constitutional rights and in public officials' effective

performance of their duties." Id.

Invoking reasoning that is equally dispositive of the question

whether a state official loses his immunity by acting outside the scope

of his state law authority, the Court stated categorically and unambiguously that

officials sued for violation of rights conferred by a statute

or regulation, like officials sued for violation of constitutional rights, do not forfeit their immunity by violating some

other statute or regulation. Rather, these officials become

liable for damages only to the extent that there is a clear

violation of the statutory rights that give rise to the cause of

action for damages. And if a statute or regulation does give

rise to a cause of action for damages, clear violation of the

statute or regulation forfeits immunity only with respect to

damages caused by that violation. In the present case, as we

have noted, there is no claim that the state regulation itself

or the laws that authorized its promulgation create a cause

 16
of action for damages or provide the basis for an action

brought under § 1983.

 . . . Neither federal nor state officials lose their immunity

by violating the clear command of a statute or regulation --

of federal or of state law -- unless that statute or regulation

provides the basis for the cause of action sued upon .

Id. at 194 n.12 (first emphasis in original) (second and third emphases

added).

In fact, the entirety of the Court's reasoning in Davis is strikingly

applicable to the claim that an official loses his federal immunity

when he acts outside the scope of his state authority. In the course of

identifying the "evils" that would follow upon making state law generally relevant to Harlow's federal qualified immunity inquiry, the

Court went on to explain, for example, that,

under appellee's submission [that an official is stripped of

qualified immunity by violating a clear state statute or regulation], officials would be liable in an indeterminate amount

for violation of any constitutional right-- one that was not

clearly defined or perhaps not even foreshadowed at the

time of the alleged violation -- merely because their official

conduct also violated some statute or regulation. And, in

§ 1983 suits, the issue whether an official enjoyed qualified

immunity then might depend upon the meaning or purpose

of a state administrative regulation, questions that federal

judges often may be unable to resolve on summary

judgment.

Id. at 195 (first emphasis in original; second emphasis added). Even

the policy considerations which the Court viewed as supportive of its

holding apply with full force to the claim uncritically embraced by the

panel. If Harlow's official immunity were to turn upon whether an

official acted within his state law authority,

[f]ederal judges would be granted large discretion to extract

from various statutory and administrative codes those provi-

 17
sions that seem to them sufficiently clear or important to

warrant denial of qualified immunity.

Id. And just as surely would follow the additional burdens both for

the federal courts and for those officials who claim qualified immunity. As the Court observed:

[S]uch judgments fairly could be made only after an extensive inquiry into whether the official in the circumstances of

his decision should have appreciated the applicability and

importance of the rule at issue. It would become more difficult, not only for officials to anticipate the possible legal

consequences of their conduct, but also for trial courts to

decide even frivolous suits without protracted litigation.

. . . .

Officials would be required not only to know the applicable

regulations, but also to understand the intent with which

each regulation was adopted. Such an understanding often

eludes even trained lawyers with full access to the relevant

legislative or administrative materials. It is unfair and

impracticable to require such an understanding of public

officials generally.

Id. at 195-96 & n.13.

Indeed, the evident burdens that will be imposed by the unprecedented new proof scheme put in place by the panel today, not only

on those state officers who will claim qualified immunity but also on

the courts of this jurisdiction which decide these claims daily, are

enormous. The defendant officials of course will be required to marshal for presentation to the federal court all of the state statutes, regulations, and caselaw arguably relevant to the performance of their

state law duties. And they will then be required to argue to the federal

court, from those authorities, that they were acting within the scope

of their state law duties, duties which often will not be defined with

anything approaching the kind of specificity with which federal duties

are defined.

 18
The federal courts, for their part, will now be obliged to conduct

what will essentially be mini-trials on the question of whether the

defendant was acting within the scope of his state law duties, a

responsibility which will require these federal officers to immerse

themselves in the intricacies of state statutes, regulations, and

caselaw. The extent to which the federal courts will be embroiled in

peculiarly state law questions is confirmed by the panel's holding in

this case, that even the complete absence of state law prohibiting the

conduct in question does not prevent the federal court from concluding that the state official exceeded the scope of his clearly defined

state law authority. See Allen, 106 F.3d at 594-98.

It goes without saying that if the district court ultimately concludes

that the defendant is acting outside the scope of his duties, or even

that there is a dispute of material fact as to whether he was acting

within or without his authority, then an interlocutory appeal of the

district court's denial of qualified immunity will follow. Upon appeal,

we will be required to parse the same body of state law in the course

of our review of the district court's judgment. If we determine that the

official did exceed the scope of his discretionary authority, then a trial

on the merits of the plaintiff's claim will proceed.

And all of this before any court even considers the only heretofore

relevant question for purposes of determining the availability of qualified immunity under section 1983 -- whether the defendant violated

the plaintiff's clearly established federal rights .

Of course, wholly apart from the burdens imposed, the panel's

novel holding will thrust the federal courts into the minutia of state

and local governments, as the cumbersome litigation it spawns forces

these courts to define -- often in the absence of state judicial authority and based upon what frequently will be vague laws -- the perimeters and contours of the duties of the myriad state and local officials

subject to suit under section 1983. By deciding the decidedly federal

question of official immunity by resort to case-by-case, common-lawlike adjudication of state scope-of-authority claims, the governmental

structures of the state and local governments within this circuit will,

over time, become edifices constructed by the federal judiciary. The

disposition of this case only serves to highlight this inevitable consequence of the panel's new framework. The panel confidently holds

 19
that the West Virginia Attorney General clearly exceeded his undisputed power to "establish a program" for the education of consumers

when he "established a corporation" for such purpose, thus substituting its judgment, which is based upon a distinction that appears

nowhere in any statute, regulation, or judicial decision of the State of

West Virginia, for that of a man who previously served as a member

of the West Virginia Supreme Court. The panel may be right or

wrong as to the construction of the State Attorney General's powers

that it superimposes on the State and its officials. However, to hold

as a matter of law that the West Virginia Attorney General not only

lacks such power, but that it is clearly established that he lacks such

power, when he is expressly empowered to establish programs and

nowhere forbidden to establish government corporations, is nothing

but the rawest exercise of federal power.

That the panel has begun to appreciate the consequences of its

holding for the federal courts and for the states is evident in its scrupulous avoidance of any discussion of the implications of that holding

for either in its unusual opinion concurring in the denial of rehearing

en banc. Indeed, in that opinion, the concurrence not only misleadingly avoids mention of state law, but revealingly buries its brief mention of the case over which the dissent has joined issue with the panel

(Davis) in a lone paragraph at the very end of its opinion -- a paragraph in which the reasoning invoked by the Supreme Court in Davis

is nowhere discussed and the case is presumptively distinguished on

grounds of an unexplained (and, I believe, nonexistent) distinction

between, on the one hand, a mere claim to qualified immunity "in the

first instance," and an actual entitlement to qualified immunity which

is subject to "defeat," on the other.

Indeed, the full extent to which the panel has departed from the

principles that underlay the doctrine of qualified immunity, and especially the federalism principles implicated when state officials are

named as party defendants, is made painfully clear in the concurrence's startling post hoc assertion that it now believes that Wyatt v.

Cole, 504 U.S. 158 (1992), which was not even discussed in the panel

opinion, is analogous to the case at hand and that, because of the purported distinction noted above, Davis, which also was not discussed

in the panel opinion, "dealt with an entirely different question." Concurrence at 11; see also id. at 10 (noting also that Davis addressed only a single

 20
"discrete" question); compare id. with Wyatt, 504 U.S. at 168-69

("The question on which we granted certiorari is[the] very narrow

one" of whether private individuals enjoy qualified immunity under

Harlow when "faced with § 1983 liability for invoking a state

replevin, garnishment, or attachment statute.").

It would, of course, be difficult to imagine a case less like the case

before us than Wyatt. In Wyatt, the Court held that private individuals

were not entitled to public, or official , immunity -- that only public

officials were entitled to official immunity -- because "the rationales

mandating qualified immunity for public officials are not applicable

to private parties." Id. at 167 (citations deleted). "[T]he qualified

immunity recognized in Harlow acts to safeguard government, and

thereby to protect the public at large, not to benefit its agents[,]" the

Court observed, and "[t]hese rationales are not transferable to private

parties." Id. at 167-68 (emphasis added). Elaborating upon the obvious distinction between private persons and public officials, which the

concurrence today disavows, the Supreme Court explained that,

[u]nlike school board members or Presidential aides, private

parties hold no office requiring them to exercise discretion;

nor are they principally concerned with enhancing the public

good. Accordingly, extending Harlow qualified immunity to

private parties would have no bearing on whether public

officials are able to act forcefully and decisively in their jobs

or on whether qualified applicants enter public service.

Moreover, unlike with government officials performing discretionary functions, the public interest will not be unduly

impaired if private individuals are required to proceed to

trial to resolve their legal disputes. In short, the nexus

between private parties and the historic purposes of qualified immunity is simply too attenuated to justify such an

extension of our doctrine of immunity.

Id. at 168 (citations deleted). Because "[q]ualified immunity strikes a

balance between compensating those who have been injured by official conduct and protecting government's ability to perform its traditional functions," id. at 167, Wyatt's holding denying qualified

immunity to private persons plainly is of no relevance whatsoever to

the question of whether a given state official is or is not entitled to

 21
such immunity -- a question whose resolution has profound consequences for the principles of federalism that inform application of the

doctrine of qualified immunity to state officials subject to section

1983.

The concurrence's reliance upon the Supreme Court's recent decision in Clinton v. Jones, No. 95-1853, 1997 WL 273679 (U.S. May

27, 1997), is misplaced for essentially the same reasons. In invoking

the Court's decision in Jones, and in particular its dicta that 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, the concurrence once again fails to recognize the distinction between, and thus mistakenly equates, action

within one's official capacity and action within one's scope of authority. In Jones, the Supreme Court was simply making the unexceptionable observation that when an individual who happens to be a public

official acts not in his official capacity, but rather as a private individual (or an individual official who either is charged with conduct that

occurred prior to the time when he assumed public office or prior to

the time when he assumed federal office), he is not entitled to official

immunity. That, of course, is quite evidently different from the

panel's holding that an official who acts in his official capacity but

outside the scope of his duties is not entitled to immunity. Jones, in

any event, is yet another case of absolute, rather than qualified, immunity relied upon by the panel and concurrence, and, at that, one which,

in stark contrast to the case here, in no way raises the specter of federal judicial intervention into classic state law questions.

Nor, notwithstanding the concurrence's protestations, does the

common law support the panel's holding. The common law authorities regarding trespass, malicious prosecution, and false imprisonment

relied upon by the panel do not even address official immunity for

unlawful actions. Even if they did, they would have limited applicability to modern qualified immunity, which, unlike absolute immunity, at this point bears little resemblance to the common law. As the

Court in Wyatt explained, quoting Anderson v. Creighton, 483 U.S.

635, 645 (1987), Harlow "completely reformulated qualified immunity along principles not at all embodied in the common law." And,

as Justice Kennedy further explicated in his opinion in that case,

which the concurrence ironically relies upon here:

 22
Our immunity doctrine is rooted in historical analogy, based

on the existence of common-law rules in 1871, rather than in

"freewheeling policy choice[s]." In cases involving absolute

immunity we adhere to that view, granting immunity to the

extent consistent with historical practice. In the context of

qualified immunity for public officials, however, we have

diverged to a substantial degree from the historical standards.

Wyatt, 504 U.S. at 170 (Kennedy, J., concurring) (citations deleted).

Rather than acquiesce in today's unsupported and insupportable

reformulation of Harlow's qualified immunity inquiry, I would grant

the petition for rehearing en banc and dispose of the appellee's argument, that a public official loses his entitlement to federal qualified

immunity if he exceeds the scope of his state law authority, in precisely the same way the Supreme Court disposed of the doctrinally

indistinguishable claim that federal qualified immunity is lost if an

official violates clearly established state law. I would acknowledge

that "[o]n its face . . . the claim is not without some force," but I

would "decline to adopt it," Davis, 468 U.S. at 194, because of its

fundamental incompatibility with established qualified immunity doctrine and because of the unfathomable consequences that its acceptance would (and now will) have for a framework carefully designed

by the Supreme Court to result in the expeditious resolution of suits

against public officials for the reasonable exercise of their discretionary judgments.

Accordingly, I dissent from the court's decision to deny rehearing

en banc.

Chief Judge Wilkinson and Judges Russell, Widener, Wilkins, and

Williams join in this opinion.

 23