                                             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.




                              O R D E R



     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 Quasi-
Sovereign 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 rehear-
ing 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 Rus-
sell, 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 author-
ity in an objectively reasonable manner, the qualified immunity doc-
trine 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 rehear-
ing, 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 con-
cession 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 impor-
tantly, 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 immu-
nity 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 opin-
ion is contrary to controlling Supreme Court precedent. To the con-
trary, 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 opin-
ion) (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 dis-
cretion 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)) (quo-
tation 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 reit-
erated 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 pro-
viding 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 reaf-
firmed 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 immu-
nity 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 "le-
gitimately 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 spe-
cial 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 nine-
teenth century Supreme Court cases, we concluded, as the Supreme
Court did in Butz, 438 U.S. at 489-90, that at common law govern-
ment officials received no immunity for actions that were beyond the
scope of their authority. See Allen, 106 F.3d at 591-592.* We pro-
ceeded 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 con-
cerns -- 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 con-
duct.").

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 appli-
cable 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 responsibil-
ities. 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 inter-
ests, 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 offi-
cial 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 sis-
ter 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 author-
ity.").

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). Fur-
thermore, in the vast majority of cases a defendant official's conduct
"relates to, or flows from, conduct that the official is indeed autho-
rized to commit" and so he will easily meet his scope of authority bur-
den 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 sin-
gle "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 "over-
come" because the official has violated some other statute or regula-
tion. Id. at 514-15 (quoting Davis, 468 U.S. at 197). Davis does not
address, let alone decide, whether a government employee, who com-
mits 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, con-
cluded that qualified immunity was not "available for private defen-
dants 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 gov-
ernment 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 employ-
ee'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 mat-
ter.

If the Davis Court had accepted the plaintiff's position, officials
that violated a state regulation would have had less immunity protec-
tion 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 circum-
stances 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 liabil-
ity 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. Jus-
tice 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 inter-
preting 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 opin-
ion.

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 offi-
cial 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 stat-
utory 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 hereto-
fore 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 con-
siders the question of whether McGraw violated BGB's clearly estab-
lished 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 character-
ize at most only as isolated "statements" that qualified immunity pro-
tects 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 pres-
ented, 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 hold-
ing 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 quali-
fied 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 immu-
nity 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 stat-
utory 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 fed-
eral 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 constitu-
        tional or statutory rights may overcome the defendant offi-
        cial'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 `objec-
tive' 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 origi-
nal).

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 bal-
ance that [the Court's] cases strike between the interests in vindica-
tion 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 unam-
biguously that

        officials sued for violation of rights conferred by a statute
        or regulation, like officials sued for violation of constitu-
        tional 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 gen-
erally 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 regu-
        lation], 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 immu-
nity. As the Court observed:

        [S]uch judgments fairly could be made only after an exten-
        sive 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 diffi-
        cult, 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 unprece-
dented 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 mar-
shal for presentation to the federal court all of the state statutes, regu-
lations, 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 conclud-
ing 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 qual-
ified 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 author-
ity and based upon what frequently will be vague laws -- the perime-
ters 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-law-
like 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 conse-
quence of the panel's new framework. The panel confidently holds

                     19
that the West Virginia Attorney General clearly exceeded his undis-
puted power to "establish a program" for the education of consumers
when he "established a corporation" for such purpose, thus substitut-
ing 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 scru-
pulous 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 mislead-
ingly avoids mention of state law, but revealingly buries its brief men-
tion 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 para-
graph 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 espe-
cially the federalism principles implicated when state officials are
named as party defendants, is made painfully clear in the concur-
rence'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 pur-
ported distinction noted above, Davis, which also was not discussed
in the panel opinion, "dealt with an entirely different question." Concur-
rence 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 obvi-
ous 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 dis-
        cretionary 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 quali-
        fied 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 offi-
cial conduct and protecting government's ability to perform its tradi-
tional 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 conse-
quences 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 deci-
sion 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 recog-
nize the distinction between, and thus mistakenly equates, action
within one's official capacity and action within one's scope of author-
ity. In Jones, the Supreme Court was simply making the unexception-
able observation that when an individual who happens to be a public
official acts not in his official capacity, but rather as a private individ-
ual (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, immu-
nity 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 fed-
eral 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 authori-
ties 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 applica-
bility to modern qualified immunity, which, unlike absolute immu-
nity, 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 immu-
nity 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 stan-
        dards.

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 argu-
ment, that a public official loses his entitlement to federal qualified
immunity if he exceeds the scope of his state law authority, in pre-
cisely 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 doc-
trine and because of the unfathomable consequences that its accep-
tance 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 discretion-
ary 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
