PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

INEZ SALES; DEBRA M. MILLER,
Plaintiffs-Appellees,

v.

ALPHONSO L. GRANT, in his
individual capacity and in his
official capacity as a member of the
City of Lynchburg Electoral Board;
JOHN E. MASON, JR., in his
individual capacity,
Defendants-Appellants,

and

DAVID T. PETTY, JR., in his official
                                                      No. 99-1650
capacity as member of the City of
Lynchburg Electoral Board; CITY OF
LYNCHBURG ELECTORAL BOARD;
CAROL SPENCER READ; ARELIA
LANGHORNE, in her official capacity
as a member of the City of
Lynchburg Electoral Board; JOHN
COBB, in his official capacity as a
member of the City of Lynchburg
Electoral Board; ANNE MARIE
MIDDLESWORTH, in her official
capacity as general registrar of the
City of Lynchburg,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Jackson L. Kiser, Senior District Judge.
(CA-96-27-L)
Argued: May 4, 2000

Decided: August 16, 2000

Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed in part, motion to dismiss granted in part and denied in part,
and remanded by published opinion. Judge Luttig wrote the opinion
in which Judge Williams concurred. Judge Widener wrote an opinion
concurring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: Henry Smith Keuling-Stout, KEULING-STOUT, P.C.,
Big Stone Gap, Virginia, for Appellants. David Edward Constine, III,
MAYS & VALENTINE, L.L.P., Richmond, Virginia, for Appellees.
ON BRIEF: Anthony F. Troy, Kimberly W. Daniel, MAYS & VAL-
ENTINE, L.L.P., Richmond, Virginia, for Appellees.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Defendants John Mason and Alphonso Grant, members of the Elec-
toral Board of the City of Lynchburg, Virginia, appeal from the dis-
trict court's quashing of their motions for summary judgment. In
those motions, the defendants asserted qualified and sovereign immu-
nity from suit for allegedly causing plaintiffs Inez Sales and Debra
Miller, former Lynchburg Assistant Registrars, not to be reappointed.
Sales and Miller have moved to dismiss this appeal, arguing that the
appellants have waived their right to assert either immunity. For the
reasons that follow, we grant the motion to dismiss in part, deny that
motion in part, affirm in part, and remand for further proceedings.

                    2
I.

After they were not reappointed as Assistant Registrars for the City
of Lynchburg, Sales and Miller filed an action, under 42 U.S.C.
§ 1983, alleging that Electoral Board members Mason and Grant vio-
lated their constitutional rights by causing them not to be reappointed
because of their political affiliations.1 Although the General Registrar,
rather than the Electoral Board or its members, possesses the power
to hire Assistant Registrars under Virginia law, see Va. Code § 24.2-
112, Sales and Miller claim that Mason and Grant improperly used
their influence over the General Registrar to control her appointment
decision.

Mason and Grant responded to the complaint by filing a motion to
dismiss, which did not mention qualified or sovereign immunity, and
which was denied. They then filed separate answers to the complaint,
in which each defendant listed qualified immunity, but not sovereign
immunity, among their affirmative defenses. Mason and Grant next
moved for summary judgment, in which motion they failed to assert
either qualified or sovereign immunity. The district court did not rule
on the motion, and a four-day trial ensued, during which Mason and
Grant never once asserted either claim of immunity. After both the
plaintiffs and the defendants had presented their evidence, Mason and
Grant moved for dismissal under Federal Rule of Civil Procedure 50,
on grounds unrelated to qualified or sovereign immunity, and the dis-
trict court granted that motion.
_________________________________________________________________
1 The appellees filed suit against Mason and Grant in both their individ-
ual capacities and in their official capacities as members of the Electoral
Board. Grant remains a defendant in both capacities, but, by order of the
district court, Mason is now a defendant in only his individual capacity,
because he is no longer a member of the Electoral Board.

The section 1983 complaint also named a third member of the Elec-
toral Board, the General Registrar, and the Electoral Board itself as
defendants. However, Mason and Grant were the only parties to file the
summary judgment motions that are the subject of this appeal or to file
a notice of appeal from the quashing of those motions, and are thus the
only defendants-appellants now before this court.

                    3
This court reversed and remanded for a new trial in Sales v. Grant,
158 F.3d 768 (4th Cir. 1998) ("Sales I"). During the course of Sales
I, Mason and Grant never asserted either qualified or sovereign
immunity. On remand, Mason and Grant moved for summary judg-
ment, asserting that they were immune from suit under the doctrines
of qualified and sovereign immunity. The district court quashed these
motions, explaining that this court had remanded the case for a new
trial, and that it was "inappropriate for the defendants to raise the
defenses of qualified immunity and Eleventh Amendment immunity
at this late date." J.A. 311.

Mason and Grant now appeal from the quashing of their motions
for summary judgment. Sales and Miller have moved to dismiss this
appeal, arguing that Mason and Grant have waived their right to assert
both qualified and sovereign immunity.

II.

Mason and Grant first claim that they are entitled to qualified
immunity from the suit brought by Sales and Miller. Sales and Miller
argue in their motion to dismiss that Mason and Grant have waived
their right to assert this affirmative defense by failing to pursue it
prior to remand after Sales I. We agree, and therefore grant the
motion to dismiss with respect to Mason and Grant's assertion of
qualified immunity.

It is well-settled that qualified immunity is an affirmative defense,
and that "the burden of pleading it rests with the defendant."
Crawford-El v. Britton, 523 U.S. 574, 586-67 (1998) (quoting Gomez
v. Toledo, 446 U.S. 635, 639-641 (1980)). Although Mason and Grant
technically pled their qualified immunity defense in their answers to
the initial complaint, they never explained the legal or factual basis
for their claim of qualified immunity prior to remand after Sales I.
Indeed, their mention of qualified immunity in their answers consisted
of only a single, cursory sentence on the matter, contained in a listing
of several affirmative defenses: "The individual defendants are pro-
tected by qualified immunity from suit." Answer of Defendant Grant
at 4; Answer of Defendant Mason at 4. And, as recounted above,
although the defendants had numerous other opportunities prior to
remand to assert their claim of qualified immunity, they failed to do

                    4
so. Specifically, Mason and Grant omitted any mention of qualified
immunity from their pre-trial motions to dismiss and for summary
judgment, from the presentation of their case during a four-day trial,
and from their post-trial motion for dismissal. As such, prior to
remand after Sales I, the notion that qualified immunity might play
a role in Mason and Grant's defense was mentioned to the district
court only once, and, even on that occasion, the defendants failed to
provide any explanation as to how or why qualified immunity might
apply. Under these circumstances, we have no trouble concluding that
the defendants waived their right to press seriously their claim of
qualified immunity for the first time after remand.

Although this court has not addressed the question whether a claim
of qualified immunity is waived under the exact factual circumstances
present here, our conclusion finds support in this court's decision in
Suarez Corp. Industries v. McGraw, 125 F.3d 222 (4th Cir. 1997), in
which we held that a claim of qualified immunity can be waived if
not squarely presented to the district court, and that qualified immu-
nity cannot be asserted for the first time on appeal. Id. at 226. As in
Suarez, the defendants here never pressed their claim of qualified
immunity prior to appeal, and we have no doubt that the result in
Suarez would have been the same had the defendants there cursorily
mentioned qualified immunity in their initial answer. It is thus clear
that, under Suarez, Mason and Grant could not permissibly have
asserted qualified immunity on appeal in Sales I . To allow Mason and
Grant seriously to pursue their qualified immunity claim for the first
time on remand after Sales I would be to forgive their waiver of that
defense on the mere fortuity that this court chose to remand the case
after the first appeal. This we decline to do.

In concluding that Mason and Grant have waived their right to
assert qualified immunity, we do not hold categorically that a section
1983 defendant must pursue the defense of qualified immunity on
every occasion possible in order to preserve his right to raise that
defense later in the proceedings. Rather, we hold only that where, as
here, a defendant only cursorily references qualified immunity in his
answer to a section 1983 complaint, and thereafter fails to mention,
let alone seriously press, his assertion of that affirmative defense,
despite filing several dispositive motions in the district court and
despite participating in a trial on the merits of the section 1983 claim,

                     5
that defendant may not actively pursue his claim of qualified immu-
nity for the first time on remand after appeal.

III.

Mason and Grant next argue that they are entitled to Eleventh
Amendment immunity from the suit for monetary damages brought
by Sales and Miller. Because Sales and Miller seek an award of dam-
ages against Mason and Grant in only their individual capacities, we
conclude that Mason and Grant are not entitled to protection from suit
under the Eleventh Amendment.2

In asserting sovereign immunity from the imposition of monetary
liability against them in their individual capacities, Mason and Grant
do not challenge the well-established rule that the Eleventh Amend-
ment generally does not bar suits for damages against state officers,
so long as those officers are sued in their individual capacities. See,
e.g., Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Rather,
_________________________________________________________________
2 As noted above, while Mason is presently a defendant in this action
in only his individual capacity, Grant remains a defendant in both his
individual and official capacities. We understand Grant (along with
Mason) to have asserted Eleventh Amendment immunity only as to the
monetary relief sought against him in his individual capacity. The only
reference to the official capacity portion of the lawsuit in the portions of
Mason and Grant's briefs that discuss sovereign immunity is to the prin-
ciple that, as state officers, they cannot be personally obligated to pay
monetary judgments entered against them in their official capacities. See
Appellants' Br. at 28. Sales and Miller do not contest this point, and
indeed have only sought monetary relief against Mason and Grant in
their individual capacities. See J.A. 24 (complaint).

The only relief sought by Sales and Miller against Mason and Grant
(and at this point, only Grant) in their official capacities is that they
(along with the other current members of the Electoral Board) be ordered
by the district court to direct General Registrar Read to fill the two Assis-
tant Registrar positions. See id. Although there is no apparent reason why
sovereign immunity from this request for prospective injunctive relief
would be available to Mason and Grant, see, e.g., Edelman v. Jordan,
415 U.S. 651, 667-68 (1974), because we do not understand them to have
asserted such immunity, we leave it to the district court to address any
such assertion of immunity that might be made on remand.

                     6
Mason and Grant contend that because, under Virginia law, any mon-
etary judgment against them would be paid out of a state-funded
insurance plan, see Va. Code § 2.1-526.8, by a check drawn on the
state's general treasury, the suit is barred by the Eleventh Amend-
ment. We disagree.

Mason and Grant's argument amounts to an assertion that a state
may convert any or all individual capacity suits, to which the protec-
tions of sovereign immunity would otherwise be inapplicable, into
official capacity suits, with all the attendant protections of the Elev-
enth Amendment, by announcing (via statute or otherwise) that it will
indemnify governmental officers sued in their individual capacities
and by creating an insurance plan to finance that indemnification. As
Sales and Miller point out, and Mason and Grant themselves recog-
nize, see Appellants' Reply Br. at 15, the courts of appeal have deci-
sively rejected this argument. See, e.g. , Jackson v. Georgia Dep't of
Transp., 16 F.3d 1573, 1577-78 (11th Cir. 1994) ("We conclude that
the existence of a voluntarily established liability trust fund does not
make the state the real party in interest in this action and that the trust
fund does not extend the state's Eleventh Amendment immunity to its
employees sued in their individual capacity."); Benning v. Board of
Regents of Regency Univs., 928 F.2d 775, 778-79 (7th Cir. 1991)
("[T]he state cannot manufacture immunity for its employees simply
by volunteering to indemnify them. . . . [A] state's decision to indem-
nify its employees does not transform a suit against individual defen-
dants into a suit against the sovereign."); Griess v. Colorado, 841
F.2d 1042, 1046 (10th Cir. 1988) ("[T]he state's position boils down
to an attempt unilaterally to extend its sovereign immunity to all of
its employees by the assumption of an illusory obligation for indemni-
fication. . . . The state's constitutional immunity cannot be artificially
manipulated in this fashion."); Spruytte v. Walters, 753 F.2d 498, 512
& n.6 (6th Cir. 1985) ("A government may not manufacture immunity
for its employees by agreeing to indemnify them."); Demery v. Kup-
perman, 735 F.2d 1139, 1146-49 (9th Cir. 1984). 3
_________________________________________________________________
3 As in the present dispute, in at least three of the cases cited above, the
state assumed by statute an obligation to indemnify its employees for
awards entered against them in their individual capacities. See Jackson,
16 F.3d at 1576 & n.4; Griess, 841 F.2d at 1045; Demery, 735 F.2d at
1146-47 & n.5.

                   7
In Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994), this court
agreed that a state's promise of indemnification cannot invest govern-
mental officers, sued in their individual capacities, with sovereign
immunity that they would not otherwise enjoy. See id. at 531.
Although we noted in Beardsley that the defendant there had not
established that the insurance plan that would indemnify him was
state-funded, see id. at 531-32, we do not believe that the fact that
such has been established here warrants a conclusion different from
that reached in Beardsley. To rule otherwise would be to permit a
state to eviscerate completely the rule that governmental officers are
not immune from monetary liability when sued in their individual
capacities. And this evisceration would come at no cost to the states,
for, under the rule proposed by Mason and Grant, once a state prom-
ised to indemnify officers sued in their individual capacities, the "in-
surance fund" established to finance the promised indemnification
would not have to contain any funds at all, given that all suits in fed-
eral court against state officers would be prohibited absent consent by
the state.

In concluding that a promise of indemnification does not alter the
non-immune status of state officers sued in their individual capacities,
we derive support from the Supreme Court's decision in Regents of
the University of California v. Doe, 519 U.S. 425 (1997), in which a
unanimous Court held that the fact that the federal government would
indemnify a state university for litigation costs and for any adverse
judgment did not alter the Eleventh Amendment immunity enjoyed by
the university. Id. at 431. In so holding, the Court rejected the notion
that the question whether an entity was protected by the Eleventh
Amendment should be converted "into a formalistic question of ulti-
mate financial liability," and made it clear that none of the reasoning
in its precedents "lends support to the notion that the presence or
absence of a third party's undertaking to indemnify the agency should
determine whether it is the kind of entity that should be treated as an
arm of the State." Id. at 430-31. The Court thus concluded that "it is
the entity's potential legal liability, rather than its ability or inability
to require a third party to reimburse it, or to discharge the liability in
the first instance, that is relevant" to the Eleventh Amendment
inquiry. We are confident that, were the Court confronted with a case,
such as the one now before us, in which defendants sued in their indi-
vidual capacities asserted sovereign immunity based on a state's

                     8
promise of indemnification, the Court would decline to allow that
promise to invest the defendants with immunity that they would not
otherwise enjoy, just as it declined to allow the mechanism of indem-
nification to divest an entity of immunity that it otherwise enjoyed in
Regents.

We therefore conclude that Mason and Grant are not protected by
the Eleventh Amendment from the suit for monetary damages that
Sales and Grant have filed against them in their individual capacities.4

CONCLUSION

For the reasons stated herein, we grant the appellees' motion to dis-
miss the appeal with respect to the appellants' assertion of qualified
immunity, deny the motion to dismiss with respect to the appellants'
claim of sovereign immunity, and affirm the judgment of the district
court with respect to the appellants' assertion of sovereign immunity.
We also remand the case for further proceedings consistent with this
opinion and the opinion of this court in Sales I .

It is so ordered

WIDENER, Circuit Judge, concurring and dissenting:

I.

I concur in the result only of the majority decision as to Eleventh
Amendment immunity.*
_________________________________________________________________
4 In rejecting Mason and Grant's claim of Eleventh Amendment immu-
nity on the merits, we necessarily deny Sales and Miller's motion to dis-
miss this appeal with respect to the Eleventh Amendment claim.
However, we express no opinion on the argument, included in the motion
to dismiss, that Mason and Grant waived their right to assert sovereign
immunity by failing to make that assertion prior to remand after Sales I.
*The majority decision, for example, affirms the judgment of the dis-
trict court with respect to Eleventh Amendment immunity. Slip, p.8. But
that judgment refused to consider the subject. The majority then decides
the Eleventh Amendment question on its merits, having just affirmed the
district court which refused to decide the question.

                    9
II.

For some reason not stated in the opinion, the majority expresses
"no opinion on the argument, included in the motion to dismiss, that
Mason and Grant waived their right to assert sovereign immunity by
failing to make that assertion prior to remand after Sales I." Slip p.9,
n.4. While the district court, in its opinion of May 17, 1999, similarly
avoided the question of waiver, announcing that it"declined to enter-
tain new summary judgment motions by the defendants," in its order
of May 25, 1999, certifying the appeal as frivolous, and even consid-
ering Eleventh Amendment immunity, it described"the defense giv-
ing rise to the appeal has been waived because it should have been
raised and decided prior to the first trial in this case." And in that
order, indeed, it went on to reason that it agreed with the plaintiffs
"that these defendants may raise these motions[Eleventh Amendment
and qualified immunity] with the court post-trial" because "this
approach would promote judicial efficiency and economy."

The reasons for the treatment of the issue by indirection, both by
the district court and the majority, are yet to be explained and, in all
events, neither has recognized the decisions of the Supreme Court and
our court that Eleventh Amendment immunity may be raised at any
time, even on appeal. Edelman v. Jordan, 415 U.S. 651, 677-78
(1976); Ford Co. v. Department of the Treasury , 323 U.S. 459, 467
(1945); In Re Collins, 173 F.3d 924, 927 (4th Cir. 1999).

III.

As to the question of qualified immunity, I respectfully dissent.

The majority depends on Suarez Corp. Industries v. McGraw, 125
F.3d 222 (4th Cir. 1997), for the proposition that a claim of qualified
immunity can be waived "if not squarely presented" to the district
court and that qualified immunity cannot be asserted for the first time
on appeal. Suarez did hold that where a claim of qualified immunity
had nowhere been mentioned in the case until appeal, it could not be
mentioned for the first time on appeal, but it did not hold that the rea-
son was that the matter was not "squarely presented to the district
court" (italics added). It only used the word"squarely" in deciding
that the question had not been presented. In Suarez the defense had

                     10
not been mentioned until appeal, squarely or otherwise, therefore we
followed long-time precedent in not permitting qualified immunity, as
any other affirmative defense, to be raised for the first time on appeal.

That strained construction of Suarez is justified in the majority
opinion by describing the defense as only "cursorily mentioned." The
emphasis of the majority on what it describes as cursory treatment is
shown by its dependence on that adjective, or adverb, as the case may
be, in three successive paragraphs of its opinion. Slip p.4 and 5.

However, on p.4 of the answers of both of the defendants is the fol-
lowing affirmative defense:

          51. The individual defendants are protected by qualified
          immunity from suit.

Cursive, or cursory, as used here, means "delivered in an offhand or
casual manner without great attention to detail." Webster's Third New
International Dictionary, p.558. I suggest that the defendants could
hardly have been more explicit in their defense, and that the adjective
used by the majority to denigrate the defense is badly out of place.

IV.

The majority concludes that a party who makes a motion for a Rule
50 judgment as a matter of law and prevails, but ultimately has that
decision reversed by an appellate court and remanded for new trial,
effectively waives the right to assert a previously pleaded affirmative
defense during the new trial. In effect, this holding requires that a
defendant moving for a Rule 50 judgment assert all possible defenses
in his or her motion, as any remaining defenses will be deemed
waived. Even more out of place, the majority decision requires a dis-
trict court to pass on all the theories asserted even if it considers one
of them dispositive, as here. Because the defendants in this case
explicitly pleaded qualified immunity in their answer, I would hold
that defendants have not waived their right to assert this defense on
remand. This is particularly true in view of the district court's order
of May 25, 1999 that the defense could be raised after a new trial but
not before, which I mention later.

                     11
While an affirmative defense such as qualified immunity must be
asserted in a responsive pleading, it is "sufficiently raised for pur-
poses of Rule 8 by its bare assertion." Santos v. District Council of
New York City, 619 F.2d 963, 967 (2d Cir. 1980). See also Kulzer v.
Pittsburgh-Corning Corp., 942 F.2d 122, 125 (2d Cir. 1991) (statute
of limitations affirmative defense "need not be raised with any rigor-
ous degree of specificity" and bare assertion in answer is sufficient to
prevent waiver). Thus, Mason and Grant's answer, pleading the affir-
mative defense of qualified immunity, entirely satisfied the require-
ments of Rule 8(c).

Despite the fact that the defendants effectively pleaded qualified
immunity as an affirmative defense, the majority holds that the defen-
dants waived their right to assert qualified immunity on remand prior
to the retrial because they did not mention qualified immunity, other
than in their answers, in subsequent motions to the district court or
during the trial in Sales I. On the contrary, I submit that a defendant
who moves for, and is granted, summary judgment based on one
ground, in no way waives his other affirmative defenses that have
been pleaded, and these defenses are available in the event the case
is remanded for a new trial, as here.

Here, the trial court did not rule on the defendant's summary judg-
ment motion, and took no action disposing of the case until the defen-
dant's Rule 50 motion was made after receiving the evidence at trial.
It is beyond dispute that had the trial court initially denied an early
summary judgment motion claim of qualified immunity, defendants
would have been able to assert qualified immunity either in a subse-
quent motion or at trial because qualified immunity may be raised at
various and successive stages of a dispute. See Behrens v. Pelletier,
516 U.S. 299, 306-07 (1996). A defendant may first raise a qualified
immunity defense at the pleadings stage in a motion to dismiss, and
"unless the plaintiff's allegations state a claim of violation of clearly
established law, a defendant pleading qualified immunity is entitled
to dismissal before the commencement of discovery." Mitchell v. For-
syth, 472 U.S. 511, 526 (1985). Next, a defendant may move for sum-
mary judgment and is entitled to such "if discovery fails to uncover
evidence sufficient to create a genuine issue as to whether the defen-
dant in fact committed those acts." Mitchell , 472 U.S. at 526. Finally,
"Mitchell makes it clear that . . . decisions with respect to dismissal

                     12
or summary judgment, if adverse, do not preclude the interposition of
the defense of immunity as a defense to liability on the merits." Ken-
nedy v. City of Cleveland, 797 F.2d 297, 299 (6th Cir. 1986).

The problem addressed in this case has been discussed at length in
the decision in Kennedy and in the discussion in Behrens v. Pelletier,
as follows:

          While Mitchell did not say that a defendant could appeal
          from denial of a qualified-immunity defense more than
          once,[*] it clearly contemplated that he could raise the
          defense at successive stages:

          "Unless the plaintiff's allegations state a claim of
          violation of clearly established law, a defendant
          pleading qualified immunity is entitled to dis-
          missal before the commencement of discovery.
          Even if the plaintiff's complaint adequately alleges
          the commission of acts that violated clearly estab-
          lished law, the defendant is entitled to summary
          judgment if discovery fails to uncover evidence
          sufficient to create a genuine issue as to whether
          the defendant in fact committed those acts." 472
          U.S., at 526 (citation omitted).

          Thus, Mitchell clearly establishes that an order rejecting the
          defense of qualified immunity at either the dismissal stage
          or the summary judgment stage is a "final" judgment subject
          to immediate appeal. Since an unsuccessful appeal from a
          denial of dismissal cannot possibly render the later denial of
          a motion for summary judgment any less "final," it follows
          that petitioner's appeal falls within § 1291 and dismissal
          was improper.
          __________________________

          [* Footnote 2] Interestingly, however, Mitchell itself dealt
          with the second of two interlocutory appeals on immunity
          claims. See 472 U.S., at 515-519. Neither the Court of
          Appeals nor this Court assigned any significance to the suc-
          cessive aspect of the second appeal.

                    13
Behrens, 516 U.S. 299, 306-07 (1996) (italics in original).

A case on facts indistinguishable, for all practical purposes, from
those here is Daingerfield Island Protective Society v. Babbitt, 40
F.3d 442 (D.C. Cir. 1994). In Babbitt, the court granted summary
judgment to the defendant on grounds unrelated to its statute of limi-
tations affirmative defense, which had been pleaded as a defense in
defendant's answer. Babbitt, 40 F.3d at 444. The D.C. Circuit
reversed the initial grant of summary judgment and remanded the case
to the district court. On remand, the defendant again moved for sum-
mary judgment arguing that the action was barred by the statute of
limitations. Babbitt, 40 F.3d at 444. This motion was granted, and the
plaintiff again appealed, asserting that the defendant had waived its
statute of limitations defense. Babbitt, 40 F.3d at 444. The D.C. Cir-
cuit held that merely pleading the affirmative defense in the answer
satisfied Rule 8(c) and that the defendant did not waive its statute of
limitations defense by failing to assert it before the first appeal. Bab-
bitt, 40 F.3d at 444-45. As the court stated,"the government ade-
quately raised the limitations defense in its answer-- it was not
required to reassert the defense in its subsequent successful summary
judgment motion." Babbitt, 40 F.3d at 445. I suggest that the D.C.
Circuit correctly decided the issue and that the majority's decision to
the contrary is not correct.

V.

In sum, in affirming the judgment of the district court, the majority
not only goes against the advice of the Supreme Court, which is that
questions of qualified immunity are better decided early rather than
late, see Mitchell, 472 U.S. at 526, it holds against all authority that
the merits of that defense should not be considered at all. Even the
district court apparently relented and would have considered the
defense post-trial, as indicated in its order of May 25, 1999.

I would vacate the judgment of the district court and remand the
case with instructions to consider the defense of qualified immunity
under Behrens and Kennedy v. City of Cleveland.

                     14
