UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALVA TAYLOR BROWN, as personal
representative of the Estate of
Luther L. Taylor, Jr.,
Plaintiff-Appellee,

v.

E. BART DANIEL; DALE L.
DUTREMBLE; JOHN M. BARTON,
                                  No. 99-1678
Defendants-Appellants,

and

MICHAEL A. CLEMENS; RONALD L.
COBB,
Defendants,

UNITED STATES OF AMERICA,
Movant.
ALVA TAYLOR BROWN, as personal
representative of the Estate of
Luther L. Taylor, Jr.,
Plaintiff-Appellee,

v.

MICHAEL A. CLEMENS,
Defendant-Appellant,
                                  No. 99-1679
and

E. BART DANIEL; DALE L.
DUTREMBLE; JOHN M. BARTON,
RONALD L. COBB,
Defendants,

UNITED STATES OF AMERICA,
Movant.

ALVA TAYLOR BROWN, as personal
representative of the Estate of
Luther L. Taylor, Jr.,
Plaintiff-Appellee,

v.

RONALD L. COBB,
Defendant-Appellant,
                                  No. 99-1680
and

E. BART DANIEL; DALE L.
DUTREMBLE; JOHN M. BARTON,
MICHAEL A. CLEMENS,
Defendants,

UNITED STATES OF AMERICA,
Movant.

                  2
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Charles H. Haden II, Chief District Judge,
sitting by designation.
(CA-98-265-3-11)

Argued: January 27, 2000

Decided: September 29, 2000

Before NIEMEYER, Circuit Judge, HAMILTON,
Senior Circuit Judge, and Frederic N. SMALKIN,
United States District Judge for the District of Maryland,
sitting by designation.

_________________________________________________________________

Reversed and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Sandra Jane Senn, SANDRA J. SENN, P.A., Charleston,
South Carolina; James Mixon Griffin, SIMMONS, GRIFFIN &
LYDON, L.L.P., Columbia, South Carolina, for Appellants. Arthur K.
Aiken, COLLINS & LACY, P.C., Columbia, South Carolina, for
Appellee. ON BRIEF: Stephanie P. McDonald, SANDRA J. SENN,
P.A., Charleston, South Carolina; Kate Schmutz, Charleston, South
Carolina, for Appellants.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

                    3
OPINION

PER CURIAM:

This civil action stems from "Operation Lost Trust," a criminal
investigation into political corruption in the South Carolina State-
house in the early 1990s. Luther Taylor -- among others -- was
investigated and prosecuted for various criminal offenses.1

On January 30, 1998, the estate of Luther Taylor 2 filed this action
under the authority of Bivens v. Six Unknown Named Agents of the
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for alleged constitu-
tional violations that occurred against Mr. Taylor in connection with
the Operation. Defendants are current and former United States Attor-
ney Bart Daniel and Assistant United States Attorneys Dale DuTrem-
ble and John Barton ("the prosecutors"), FBI Special Agent Michael
Clemens, and private citizen/FBI informant Ronald Cobb. Taylor's
estate asserts two constitutional violations: (1) a Fifth Amendment
malicious prosecution claim against all defendants; and (2) a Sixth
Amendment "right to a fair trial" claim against the prosecutors and
Agent Clemens for alleged failure to turn over exculpatory Brady3
material.

Defendants asserted absolute and qualified immunity defenses, and
moved the district court, pursuant to Federal Rule of Civil Procedure
12(b)(6), to dismiss the case on account of these defenses. On March
12, 1999, the district court denied, without prejudice, defendants'
motions to dismiss and stayed the case, placing it on the inactive
docket pending resolution of criminal prosecutions of other Operation
Lost Trust defendants. Some of these defendants have been convicted
and have appealed their convictions to this Court. For example, Mr.
_________________________________________________________________
1 A more detailed account of the underlying criminal case, which
involved many defendants, investigations, and prosecutions over a period
of years, is found in United States v. Derrick , 163 F.3d 799 (4th Cir.
1998), cert. denied, 119 S. Ct. 1808 (1999). Mr. Taylor was convicted,
but his conviction was overturned on appeal because of defective jury
instructions. See id. at 803.
2 Mr. Taylor passed away on March 23, 1997.
3 Brady v. Maryland, 373 U.S. 83 (1963).

                    4
Blanding was, on retrial, convicted in August, 1999, and sentenced in
December, 1999, on two counts of attempted extortion, and his appeal
is now pending in this Court. See 1999 WL 28149602 (Dec. 14,
1999). On April 30, 1999, the district court denied the prosecutors'
motion to reconsider. All defendants filed a timely appeal. For the
reasons set forth below, we shall reverse the district court's order, and
remand the case with instructions.

I. Appealability of District Court's Order

As an initial matter, we must determine our jurisdiction to consider
this appeal. It is a well-settled principle that denial of an immunity
claim is an appealable interlocutory decision. See Nixon v. Fitzgerald,
457 U.S. 731 (1982) (absolute immunity), and Mitchell v. Forsyth,
472 U.S. 511 (1985) (qualified immunity). The rub in this case is that
the district court did not deny immunity outright, but denied defen-
dants' motions to dismiss on immunity grounds "without prejudice,"
and stayed the case. Thus, the district court did not finally deny defen-
dants' immunity claims, but postponed its decision for what was then
-- and remains -- an indefinite period of time.

We believe that the ongoing specter of litigation in this high-profile
case places a sufficient burden on government officials to justify
appellate review of this order of the district court prior to final judg-
ment. See Mitchell, 472 U.S. 511. Indeed, quick resolution -- and
hence appealability -- of orders denying immunity is encouraged,
because the defense is intended to protect government officials
against being enmeshed in lengthy litigation that might be terminated
upon adjudication of the immunity issues. In this case, under the order
in question, defendants must live with this litigation hanging over
their heads almost indefinitely, until some future time when various
criminal prosecutions finally will have been concluded, which could
take years. Accordingly, under the unique circumstances of this case,
we conclude that the district court's order denying defendants'
motions to dismiss on immunity grounds is appealable, even though
it was entered "without prejudice."

II. Immunity Issues

Given that counsel have briefed the immunity issues on the merits,
and that these issues are plain, involve pure legal questions, and are

                      5
governed by well-settled law, we shall address the merits of the
immunity defenses raised against Taylor's federal claims of malicious
prosecution and failure to turn over exculpatory Brady material.

A. Immunity in General

The right to absolute or qualified immunity, which protects govern-
ment officials from liability for money damages, is determined by
examining "the nature of the function performed, not the identity of
the actor who performed it." Forrester v. White, 484 U.S. 219, 229
(1988). To determine the proper scope of immunity for the federal
officials in this Bivens action, we shall refer to case law regarding
immunity of state officials from suit under 42 U.S.C. § 1983, because
the analysis is the same. See Wilson v. Layne , 626 U.S. 603 (1999)
(noting that "qualified immunity analysis is identical under either
[§ 1983 or Bivens] cause of action").

B. Absolute Immunity

Prosecutors are entitled to absolute immunity from civil liability
for alleged conduct "intimately associated with the judicial phase of
the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
Therefore, to the extent Taylor's estate alleges that the prosecutors
engaged in misconduct during the prosecution of this case (e.g., that
the prosecutors knowingly used perjured testimony and otherwise
maliciously prosecuted Taylor), the prosecutors are absolutely
immune. Moreover, the prosecutors are entitled to absolute immunity
from civil liability for the allegation that they withheld exculpatory
Brady material. See Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994)
(holding prosecutor entitled to absolute immunity for "allegation that
he withheld materially exculpatory evidence"), cert. denied, 513 U.S.
1150 (1995).

Appellant argues that Agent Clemens also is entitled to absolute
immunity on the claim that he withheld exculpatory Brady material
from the prosecutors. The Court disagrees. This court, sitting en banc,
has held that, although an FBI agent's failure to turn over exculpatory
material directly to the defense is covered by absolute immunity,4 an
_________________________________________________________________
4 Thus, to the extent that Taylor's estate claims Brady violations based
on an assertion that Agent Clemens failed to turn over material directly
to the defense, Agent Clemens is entitled to absolute immunity.

                    6
FBI Agent's failure to turn such material over to prosecutors is cov-
ered only by qualified immunity. Jean v. Collins , 155 F.3d 701 (4th
Cir. 1998) (en banc), vacated on other grounds, 119 S. Ct. 2016
(1999). Thus, Agent Clemens is not entitled to absolute immunity on
the claim that he withheld exculpatory material from the prosecutors.

When acting in an investigative role, no government official,
including prosecutors, is entitled to absolute immunity. Buckley v.
Fitzsimmons, 509 U.S. 259 (1993); Burns v. Reed, 500 U.S. 478
(1991). Here, Taylor's estate alleges that the prosecutors and Agent
Clemens did perform investigative functions; for example, that they
planned and conducted "an unlawful and unfair undercover operation
or `sting operation' in knowing violation of the constitutional rights
of their targets. . . ." J.A. p. 16, ¶ 32. Although absolute immunity
does not extend to allegations that the prosecutors and Agent Clemens
acted improperly in their investigative roles, they may be entitled to
qualified immunity for these actions. See, e.g., Burns, 500 U.S. at
486-87.

C. Qualified Immunity

The standard for determining whether governmental officials are
entitled to qualified immunity is an objective one: whether the chal-
lenged action violated a federal statutory or constitutional right that
was clearly established at the time it was taken, of which a reasonable
person would have known. See Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Because Taylor had no clearly established right to be free
from "malicious prosecution" when the alleged misconduct occurred,
the prosecutors and Agent Clemens are entitled to qualified immunity
on the malicious prosecution claim. See Albright v. Oliver, 510 U.S.
266, 275 (1994); Osborne v. Rose, No. 97-1259, 1998 WL 17044 (4th
Cir. Jan. 20, 1998) (unpublished). Indeed, plaintiff-appellee's attorney
conceded at oral argument that, after careful review of the case law,
he was abandoning the argument on page ten of his brief, arguing that
the right to be free from malicious prosecution was a clearly estab-
lished federal constitutional right at the time of the alleged miscon-
duct. Thus, the prosecutors and Agent Clemens are entitled to
qualified immunity on the malicious prosecution claim.5
_________________________________________________________________
5 To the extent that the allegation that Agent Clemens perjured himself
in connection with Taylor's trial is not subsumed in the malicious prose-

                    7
There remains the Sixth Amendment "right to a fair trial" claim
that Agent Clemens did not turn over material, exculpatory evidence
to the prosecution. This right was clearly established in this Circuit
at the time of the alleged misconduct in this case. See Goodwin v.
Metts, 885 F.2d 157 (4th Cir. 1989), cert. denied, 494 U.S. 1081
(1990), overruled in part by Albright v. Oliver , 510 U.S. 266 (1994).
Consequently, Agent Clemens is not entitled to qualified immunity on
this claim. Unlike Taylor's estate's malicious prosecution claim, this
claim is not affected by Albright, as Appellant candidly concedes. See
Appellant Reply Br. at 3 (quoting Taylor v. Waters, 81 F.3d 429, 436
n.5 (4th Cir. 1996) for the proposition that "to the extent that Good-
win ruled that the officer's failure to disclose the exculpatory informa-
tion deprived the § 1983 plaintiffs of their right to a fair trial, its
holding is not affected by Albright.").

Although Agent Clemens is not entitled to absolute or qualified
immunity on the allegations that he failed to turn over exculpatory
Brady material to the prosecution, this claim must fail because a panel
of this Court has already concluded that no such constitutional viola-
tions occurred in the prosecution of Taylor and others, as a matter of
law. See United States v. Derrick, 163 F.3d 799 (4th Cir. 1998)
(reversing district court's order dismissing superseding indictments
against Taylor and others, and pointing out error in each of the district
court's findings of a Brady violation).6 See DiMeglio v. Haines,45
F.3d 790, 799 (4th Cir. 1995) (noting that court may dispose of case
on ground that no constitutional violation occurred without addressing
qualified immunity issue). In light of the fact that Taylor's estate's
allegation that Agent Clemens withheld material, exculpatory Brady
evidence from the prosecutors is without doubt based solely on the
findings of Judge Hawkins' Order, see Appellee's Brief at 9, and that
such findings were rejected by this Court in Derrick, this claim
against Agent Clemens must be dismissed.
_________________________________________________________________

cution claim, Clemens is entitled to absolute immunity. See Briscoe v.
Lahue, 460 U.S. 325 (1983) (holding law enforcement officers accused
of perjury at criminal trial absolutely immune from damages liability).
6 Taylor was an original defendant-appellee in the Derrick appeal; after
he passed away, his estate participated in the appeal as amicus curiae.
Derrick, 163 F.3d at 803 n.1.

                     8
Furthermore, in light of the recent opinion of Chief Judge Wilkin-
son concurring in the judgment of affirmance following remand in
Jean v. Collins, ___ F.3d ___ (4th Cir. 2000) (en banc), the fact that
Mr. Taylor's conviction was not vacated on Brady grounds militates
against a finding that the first prong of Wilson v. Layne, 526 U.S. 603,
609 (1999) -- a constitutionally significant deprivation -- has
occurred in this case. When the first prong is not satisfied, the result
is that qualified immunity is, essentially, established.

D. FBI Informant Cobb

Taylor's estate claims that informant Cobb presented perjured testi-
mony and conspired unlawfully to "sting" and convict Taylor. With
respect to Cobb's testimonial acts, he is entitled to absolute witness
immunity as a matter of law, as Taylor's estate concedes on page nine
of its appellate brief. See Burke v. Miller, 580 F.2d 108, 109 (4th Cir.
1978) (noting that witness who takes stand at instance of prosecution
is absolutely immune from liability for section 1983 damages), cert.
denied, 440 U.S. 930 (1979).

With respect to informant Cobb's alleged non-testimonial wrongful
acts, however, he is not entitled to qualified immunity, because there
is in this realm, a paradox. Although a private actor, like Cobb, may
be deemed a government actor if he sufficiently engaged in federal
action, and thus be exposed to a Bivens suit, he is not entitled to quali-
fied immunity, as a matter of law. See Wyatt v. Cole, 504 U.S. 158,
159 (1992) (holding section 1983 private defendants not entitled to
qualified immunity); Hammons v. Norfolk Southern Corp., 156 F.3d
701 (6th Cir. 1998) (holding that private actor found liable under
Bivens not entitled to qualified immunity). This paradox arises
because the reasons for granting qualified immunity to government
officials do not apply to private parties who have no official acts to
perform. See Wyatt, 504 U.S. at 168. Thus, although Cobb may be a
proper defendant in this Bivens action, he is not entitled to qualified
immunity.7
_________________________________________________________________
7 Cobb may be entitled to assert other defenses, however. See Wyatt,
504 U.S. at 169 ("[w]e do not foreclose the possibility that private defen-
dants . . . could be entitled to an affirmative defense based on good faith
and/or probable cause or that § 1983 suits against private, rather than
governmental, parties could require plaintiffs to carry additional bur-
dens.").

                    9
III. Conclusion

In summary, we conclude that we have jurisdiction to decide this
appeal, and we reverse the district court's March 12, 1999 order that
denied, without prejudice, the defendants' Rule 12(b)(6) motions to
dismiss. We remand this case with the following instructions.

The district court is to dismiss all claims, with prejudice, against
prosecutors Daniel, DuTremble and Barton, on absolute and qualified
immunity grounds.

The district court is to dismiss the malicious prosecution claim,
with prejudice, against Agent Clemens, on qualified immunity
grounds. The district court is also to dismiss the Brady violation
claim, with prejudice, against Agent Clemens, on the grounds that (1)
Clemens is entitled to absolute immunity for any allegation that he
withheld material, exculpatory evidence from the defense; and (2)
Clemens is entitled to qualified immunity on the claim that he with-
held material, exculpatory evidence from the prosecutors.

The district court is also to dismiss, with prejudice, the claim
against informant Cobb with respect to his testimonial acts, but is to
withhold qualified immunity on any non-testimonial misconduct.

REVERSED AND REMANDED

                    10
