                         Revised June 2, 1999

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                             No. 97-10858



IVING THOMAS; BARBARA THOMAS
                                       Plaintiffs-Appellees

                                  versus

CITY OF DALLAS; ET AL
                                       Defendants

DARWIN GAINES; AQUILLA ALLEN
                                       Defendants-Appellants


           Appeals from the United States District Court
                for the Northern District of Texas


                             May 11, 1999

Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

       This claim arises from a bureaucratic snafu.          The City of

Dallas, by a series of mistakes, demolished a small house after

erroneously concluding it was a nuisance.           This suit by the

property owner ensued.     We must decide whether the district court

erred in refusing to recognize a defense of absolute immunity to a

claim for money damages asserted by an official of the responsible

city   agency   and   qualified   immunity   asserted   by   one   of   its
employees. We conclude that the invoked defenses are available and

reverse and remand.



                                   I

     In 1993, Iving and Barbara Thomas purchased a single family

home at 4226 Landrum Avenue, Dallas, Texas.       The Thomases never

resided there but were making repairs and improvements to the house

over time. In January 1994, the Code Enforcement Department of the

City of Dallas gave Mr. Thomas a notice of violation regarding the

detached garage and told Mr. Thomas to repair or demolish the

accessory structure within 30 days.     Four months later, the code

inspector found no repairs or demolition of the garage and issued

a citation to Mr. Thomas.   The code inspector forwarded the file on

the garage to the Urban Rehabilitation Standards Board on June 20,

1994.    The URSB is a board of volunteers appointed by the mayor and

city council to decide cases about urban nuisance.

     The URSB scheduled a hearing on October 4, 1996 regarding the

demolition of the garage.       Notice was sent to the last known

address for Iving Thomas, 4226 Landrum Avenue, Dallas, Texas 75216,

but the notice was returned to the URSB as unclaimed.         At the

hearing, the case was “passed” so that the URSB could later assess

the main structure with the accessory structure in one hearing.1


     1
      The Thomases assert that there is neither a record of an
interior inspection of the house nor a record that they were given
any notice about substandard conditions of the house.

                                   2
A new hearing on the two structures was set for November 1, 1994.

In the meantime, on October 6, 1994, Mr. Thomas applied for and

received a demolition permit from the city and demolished the

garage.

     Aquila Allen, the URSB Administrator, sent notice of the

scheduled November 1, 1994 URSB hearing to the last known address

of Iving Thomas.      The notice provided, in pertinent part, the

following:

     Property located at 4226 Landrum Avenue, Lot(s) 12, Block
     5/6083 will be among the properties considered. At this
     hearing the Administrator will present evidence of the
     condition of the structure(s).       The owner, lessor,
     occupant or lienholder, will be given the opportunity to
     present evidence and witnesses if so desired.

The notice then listed ten actions which the URSB could take with

respect to the property; the last action listed was demolition.

     In addition to this mailed notice, Allen also published notice

of the hearing in the Daily Commercial Record at least five days

before the hearing.   While § 27-13 of the Dallas City Code permits

notice by publication, it does so only after both written notice

and a diligent search to ascertain the party’s correct address have

failed. The code also provides optional personal notice, which was

not attempted in this case.

     On November 1, 1994, the URSB reviewed the Thomases’ case,

even though there was no mail return receipt on file indicating

that the Thomases had been given notice by mail.    Darwin Gaines,

member and chairman of the URSB, presided over the hearing and


                                 3
voted to demolish the Thomases’ house on the ground that it was an

urban nuisance.   The URSB issued a demolition order for the entire

dwelling at 4226 Landrum Avenue and a notice was sent to the

Thomases’ same address. The demolition order was also published in

the Dallas Commercial Record.     On November 11, 1994, a certified

mail return receipt was finally received by the URSB, indicating

that the Thomases did not receive notice of the scheduled November

1 hearing until a week after the hearing was held.

     Nonetheless, the city proceeded with its November 1 decision

to demolish the structure. Notice of the demolition order was sent

by certified mail, but was returned to the URSB as “return to

sender, attempted not known.”    Eleven months later, on October 25,

1995, the city demolished the Thomases’ house and sent them a bill

for $1379.32.

     The Thomases filed suit asserting claims that Gaines and Allen

violated their right to due process under the Fourteenth Amendment

by failing to provide proper notice of the URSB hearings concerning

the demolition of their house.2        The district court granted the

Thomases’   summary   judgment   motion,   specifically   denying   the

absolute and qualified immunity defenses raised by Gaines and

Allen.



     2
      The Thomases also sued the City of Dallas under § 1983 and
filed a motion for partial summary judgment against the City. The
district court granted the motion. That ruling is not before us.


                                   4
     Gaines and Allen appeal. Under the collateral order doctrine,

we have jurisdiction over this interlocutory appeal to review the

district court’s denial of immunity to Gaines and Allen. See Cantu

v. Rocha, 77 F.3d 795, 802-03 (5th Cir. 1996)(citing       Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985)).

                                   II

     We review a summary judgment de novo, applying the same

standards as used by the district court, reviewing the facts and

drawing inferences in favor of the nonmoving party.      See Elliott v.

Lynn, 38 F.3d 188 (5th Cir. 1994).      Summary judgment is proper only

when there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law.       See FED.

R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

“To win summary judgment, the movant must show that the evidence

would not permit the nonmovant to carry its burden of proof at

trial.”   Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998).

                                  III

     Gaines   claims   absolute   immunity,   alternatively   qualified

immunity, contending the URSB performs a quasi-judicial function.

The Thomases do not say otherwise for orders to demolish houses.

Rather, they contend that Gaines voted to demolish their house when

there was no evidence in the URSB file of notice to the Thomases of

such a hearing and that act should not be shielded.      This argument

fails to grasp the reach of absolute immunity.      As we will explain,

if the job enjoys absolute immunity, the inquiry into liability

                                   5
narrows to whether the official was about his work when engaged in

the accused conduct.      Failure in a given case to apply the rules

correctly does not leave an official unsheltered from liability --

indeed, that is the protection afforded by absolute immunity.

       An official who seeks absolute immunity has the burden of

showing that public policy justifies the extension of the doctrine

of judicial immunity.        See Butz v. Economou, 438 U.S. 478, 506-07

(1978). To assess whether absolute immunity should be extended, we

must   examine    the   character   of      the    officer’s    duties    and   the

relationship to the parties.         See Mylett v. Mullican, 992 F.2d

1347, 1352 (5th Cir. 1993)(citing Stump v. Sparkman, 435 U.S. 349,

359 (1978)).      Unfortunately, our inquiry is less than exact.                 We

consider the following factors:

       (1) the need to assure that the individual can perform
       his functions without harassment or intimidation;

       (2) the presence of safeguards that reduce the need for
       private damages actions as a means of controlling
       unconstitutional conduct;

       (3) insulation from political influence;

       (4) the importance of precedent;

       (5) the adversarial nature of the process;

       (6) the correctability of the error on appeal.

Cleavinger v. Saxner, 474 U.S. 193, 202 (1985) (citing Butz, 438

U.S. at 512).

       Absolute   immunity    extends       to    agency   or   board    officials

performing functions that are quasi-judicial in nature.                         See


                                        6
O’Neal v. Mississippi Bd. of Nursing, 113 F.3d 62, 65 (5th Cir.

1997); Johnson v. Kegans, 870 F.2d 992, 996 (5th Cir. 1989).              We

are to    use a "functional approach" that looks to "the nature of

the function performed, not the identity of the actor who performed

it."     Imbler v. Pachtman, 424 U.S. 409, 431 (1976).             The six

enumerated factors, characteristics of the judicial processes,

serve to assist in the inquiry into function.         See Cleavinger, 474

U.S. at 202.       Here, it appears that at least five of the six

factors favor absolute immunity.

       First, the URSB is charged with the inherently controversial

task of    demolishing    private   residences.     It   is   comprised   of

volunteer members serving in unpaid, two-year positions.           This is

significant because harassing litigation takes a heavy toll when

the task depends on volunteers from the community.

       Second,   the   URSB   proceedings   have   sufficient   procedural

safeguards.      The City Code provides that property owners have a

right: to receive notice of URSB hearings, see Dallas, Tex., Rev.

City Code ch. 27, art. II, § 27-13(b); to present and cross-examine

witnesses, see id. § 27-9(c); to request that a case be reheard,

see id. § 27-14(a), (b); and to appeal an adverse decision to state

district court, see id. § 27-9(e).

       Third, the members of the URSB are not elected, but appointed

by members of the city council.      To this extent, they are shielded

from direct political influence.



                                     7
       Fourth, although the URSB’s decisions are not guided by URSB

precedent, the board is bound by specific standards for evaluating

structures set in the Dallas City Code.                    This factor does not

meaningfully point in one direction or the other.

       Fifth, hearings before the URSB are adversarial.                 Parties are

free    to    present    evidence       and   testimony,   see    id.   §   27-9(c);

witnesses must testify under oath, see id. § 27-9(a); and parties

have the right to cross-examine adverse witnesses, see id. § 27-

9(c).    The district court was persuaded that the city code aside,

there was in fact no meaningful cross-examination because staff had

briefed the board privately before the hearing.                  We find no record

basis for a conclusion as a matter of law that the city code was

ignored      in   the   routine    of    business.    That    most      matters   are

uncontested does not mean that the right was not available.

       Finally, as already noted, errors may be corrected on appeal

to state district courts.          See id. § 27-9(e).       The federal district

court did not think this judicial review was of much practical

value.       As we see it, the procedural apparatus is sound, and we

have    no    record    basis     for   concluding   that    it    is   unsound    in

operation.

       These general factors favor immunity.               Our focus now must be

upon the defendants’ particular job responsibilities and their acts

about which the Thomases complain.                See Mylett v. Mullican, 992

F.2d 1347, 1352 (5th Cir. 1993).



                                              8
      Gaines is a member of the URSB and its chairman.                As chairman

he   presides      over   all   URSB   hearings     and    is    responsible   for

administering oaths.        As a participating member, he votes on cases

based on the testimony and evidence before the panel.                        Gaines

functions in a manner comparable to that of a judge.                 See Swann v.

Dallas, 922 F. Supp. 1184, 1192-95 (N.D. Tex. 1996) (holding in a

comprehensive and well-reasoned opinion that members of URSB are

entitled to absolute immunity); see also Butz, 438 U.S. at 511-17;

O’Neal, 113 F.3d at 65.         We are persuaded that the district court

erred in rejecting Gaines’ claim of absolute immunity.

                                        IV

      Allen also claims absolute immunity, alternatively, qualified

immunity.       She asserts her position is essentially that of a

prosecutor.     See URSB Code § 27-13(j).          We agree with the district

court that the claim of absolute immunity is not supportable.

Allen’s duty is more accurately characterized as administrative,

rather   than      prosecutorial,      and   a    person   performing    routine

administrative duties is not entitled to absolute immunity.                     See

Tarter v. Hury, 646 F.2d 1010, 1012 (5th Cir. 1981); Williams v.

Wood, 612 F.2d 982, 984-85 (5th Cir. 1980).

                                         V

      To determine whether Allen is entitled to qualified immunity,

we must determine (1) whether the Thomases stated a claim for

violation     of     a    constitutional         right;    (2)     whether     this

constitutional right was established at the time of the actions

                                         9
underlying this lawsuit; and (3) whether the Thomases established

that Allen’s conduct was objectively unreasonable in light of the

legal rules clearly established.                See Eugene v. Alief Indep. Sch.

Dist., 65 F.3d 1299, 1305 (5th Cir. 1995).

      The Thomases alleged that Allen denied them due process by

failing    to   provide      them   with    proper     notice   of   the   hearing

concerning the demolition of their house.                 See Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (holding that

state action affecting property generally requires advance notice).

The first two prongs of the qualified immunity test are satisfied,

and   we   turn   to   the    third   --        whether   Allen’s    actions   were

objectively unreasonable.

      The district court denied qualified immunity finding that

Allen’s conduct was not objectively reasonable. The district court

concluded that “[t]he uncontroverted facts show that Ms. Allen knew

that the Plaintiffs had not received notice of the October or

November hearings and that the Board could not proceed until they

had been given proper notice.”                  Allen challenges the district

court’s conclusion and argues that she is entitled to qualified

immunity because her actions were objectively reasonable.

      While the summary judgment record indicates that either the

members of the URSB, the URSB Administrator, or the URSB staff

typically would check a file before a hearing to see if there was

a return receipt from a targeted individual, Chapter 27 of the

Dallas City Code, entitled Minimum Urban Rehabilitation Standards,

                                           10
provides that the director/administrator of the URSB is responsible

for giving notice to targeted individuals.        We agree with the

district court that Allen, as the administrator of the URSB, bears

the responsibility of ensuring that notice is given.

     Allen maintains that she gave the notice required by Chapter

27 of the Dallas City Code.      She mailed certified notice of the

scheduled October and November hearings as well as the outcome of

the November 1 hearing to the Thomases’ last known address.         In

addition, she gave notice by publication of the pending demolition

order.   Yet, the Thomases argue it was objectively unreasonable to

allow the November 1 hearing to proceed when no return receipt was

on file, and the certified mail receipt showed the Thomases did not

receive the notice of the November 1 meeting until November 8.

     While it is arguable that Allen should have known that the

Thomases’ return receipt card was not in the file at the time of

the November 1, 1994 hearing, that alone does not establish that

she intentionally and knowingly violated the Thomases’ due process

right in violation of § 1983.     Allen made the proper attempts to

notify the Thomases, but was undoubtedly negligent in failing to

bring the lack of a return receipt in the Thomases’ file to the

URSB’s   attention.    Whether    Allen’s   conduct   constituted   an

intentional deprivation of the Thomases’ due process rights or

demonstrated that she was “plainly incompetent” in her duties as

the URSB Administrator is a genuine issue of material fact that

should be determined by a jury.   See Cantu, 77 F.3d at 806 (stating

                                  11
that    “[q]ualified     immunity    protects       ‘all      but    the   plainly

incompetent or those who knowingly violate the law’” (citing

Anderson, 483 U.S. at 638 (quoting Malley v. Briggs, 475 U.S. 335,

341 (1986))).

                                      VI

       In sum, we find that Gaines is entitled to absolute immunity,

but Allen is not entitled absolute immunity.               The district court’s

grant   of   summary    judgment    against      Allen   on   the    question   of

qualified    immunity    is   REVERSED     and    REMANDED     for    proceedings

consistent with this opinion.




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