To avoid conflicts of interest, an order of the Florida
Department of Highway Safety and Motor Vehicles (Department)
required that proposed outside employment of members of the Florida
Highway Patrol be approved by the Department. Appellee, a Highway
Patrol employee, originally received permission in 1977 to accept
part-time employment with a County Sheriff's Office, but the
permission was later revoked. When appellee refused to quit his
part-time job, the Director of the Highway Patrol, in 1977, ordered
that appellee's employment with the Patrol be terminated. While
appellee's administrative appeal was pending, he and the Department
settled the dispute, and he was reinstated. But friction between
appellee and his superiors continued, and he resigned in 1979 after
he was suspended from the Patrol. Appellee then filed the present
suit against appellants, certain present and former officials of
the Department and the Highway Patrol, seeking relief under 42
U.S.C. § 1983. He requested a declaration that appellants in 1977
had violated the Due Process Clause of the Fourteenth Amendment by
discharging him without a formal pretermination or a prompt
post-termination hearing, and he sought an award of money damages.
Granting the requested relief, the court ultimately held that
appellants had forfeited their qualified immunity from suit under §
1983 because, even though appellee's due process rights were not
"clearly established" at the time of his discharge in 1977,
appellants had not followed administrative regulations in
discharging appellee. The court concluded that therefore
appellants' belief in the legality of their conduct was
unreasonable, and they were not entitled to qualified immunity. The
Court of Appeals affirmed.
Held: A plaintiff who seeks damages for violation of
constitutional or statutory rights may overcome the defendant
official's qualified immunity only by showing that those rights
were clearly established at the time of the conduct at issue.
Appellee made no such showing. Whether an official may prevail in
his qualified immunity defense depends upon the objective
reasonableness of his conduct as measured by reference to clearly
established law. No other circumstances are relevant to the issue
of qualified immunity.
Harlow v. Fitzgerald, 457 U.
S. 800.
468 U. S.
190-197.
Page 468 U. S. 184
(a) As the District Court recognized, there was authoritative
precedent in the Circuit that the constitutional right of a state
employee to a pretermination or a prompt post-termination hearing
was not well established at the time of the conduct in question.
Nor was it unreasonable, under Fourteenth Amendment due process
principles, for the Department to conclude that appellee had been
provided with the fundamentals of due process. Thus, the District
Court correctly held that appellee demonstrated no violation of his
clearly established constitutional rights. Pp.
468 U. S.
191-193.
(b) Appellants did not forfeit their qualified immunity from
suit for violation of federal constitutional rights merely because
they failed to comply with a clear state regulation. Appellee
contended that an official's violation of a clear state statute or
regulation, although not itself actionable under § 1983, should
deprive the official of qualified immunity from damages for
violation of other statutory or constitutional provisions. If such
view were adopted, it would disrupt the proper balance between the
interests in vindication of citizens' constitutional rights and in
public officials' effective performance of their duties. Nor would
it always be fair, or sound policy, to demand official compliance
with a statute or regulation on pain of money damages. Officials
are subject to a plethora of rules, often so voluminous, ambiguous,
and contradictory, and in such flux that officials can comply with
them only selectively. In these circumstances, officials should not
err always on the side of caution. Pp.
468 U. S.
193-196.
710 F.2d 838, reversed and remanded.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J.,
filed an opinion concurring in part and dissenting in part, in
which MARSHALL, BLACKMUN, and STEVENS, JJ., joined,
post,
p.
468 U. S.
197.
Page 468 U. S. 185
JUSTICE POWELL delivered the opinion of the Court.
Appellants in this case challenge the holding of the Court of
Appeals that a state official loses his qualified immunity from
suit for deprivation of federal constitutional rights if he is
found to have violated the clear command of a state administrative
regulation.
I
The present controversy arose when appellee Gregory Scherer, who
was employed by the Florida Highway Patrol as a radio-teletype
operator, applied for permission from the Patrol to work as well
for the Escambia County Sheriff's Office as a reserve deputy. To
avoid conflicts of interest, an order of the Florida Department of
Highway Safety and Motor Vehicles required that proposed outside
employment of Patrol members be approved by the Department. A
letter from appellee's troop commander, Capt. K. S. Sconiers, dated
September 1, 1977, granted appellee permission to accept the
part-time work. The letter noted that permission would be rescinded
"should [the] employment interfere . . . with your duties with
[the] department."
543 F. Supp.
4, 8 (ND Fla.1981). Later that month, Capt. Sconiers informed
appellee by memorandum that permission to accept the employment was
revoked. As Capt. Sconiers explained at trial, his superiors in the
Highway Patrol had determined that appellee's reserve deputy duties
could conflict with his duties at the Highway Patrol.
Appellee continued to work at the second job, despite the
revocation of permission. Oral discussions and an exchange of
letters among appellee and his superiors ensued. Sgt.
Page 468 U. S. 186
Clark, appellee's immediate superior, advised appellee that he
was violating instructions; appellee explained that he had invested
too much money in uniforms to give up his part-time work. Lt.
Wiggins, the next highest officer in the chain of command, then
orally and by memorandum ordered appellee to quit his part-time
job. Appellee explained to Lt. Wiggins that he saw no conflict
between the two jobs, and would not quit his second job.
Sgt. Clark and Lt. Wiggins had submitted memoranda to Capt.
Sconiers that described appellee's continued employment and their
conversations with appellee. Appellee also wrote to Capt. Sconiers
explaining that he saw no reason to resign his outside employment.
So advised, Capt. Sconiers recommended to Col. J. E. Beach,
director of the Florida Highway Patrol, that appellee be suspended
for three days for violation of the dual-employment policy. Capt.
Sconiers submitted a number of documents, including his own letters
approving appellee's request and rescinding the approval;
appellee's letter of request and subsequent letter explaining his
refusal to quit his job; and the memoranda of Sgt. Clark and Lt.
Wiggins. [
Footnote 1] On the
basis of these documents, Col. Beach, on October 24, 1977, ordered
that appellee's employment with the Florida Highway Patrol be
terminated.
On November 10, 1977, appellee filed an appeal with the Florida
Career Service Commission. Before the Commission had heard
appellee's administrative appeal from his dismissal, appellee and
the Department settled the dispute. The settlement reinstated
appellee with backpay. But friction between appellee and his
superiors continued, and in January, 1979, after appellee was
suspended from the Patrol, he resigned "to avoid further harassment
and to remove a cloud over his employability."
Id. at
11.
Page 468 U. S. 187
Appellee then filed the present suit against appellants in the
United States District Court for the Northern District of Florida,
seeking relief under 42 U.S.C. § 1983. [
Footnote 2] Appellee's complaint alleged that appellants,
in 1977, had violated the Due Process Clause of the Fourteenth
Amendment by discharging appellee from his job without a formal
pretermination or a prompt post-termination hearing. [
Footnote 3] Appellee requested a declaration
that his rights had been violated, and an award of money
damages.
The District Court granted the requested relief for violation of
appellee's Fourteenth Amendment rights. [
Footnote 4] The court found that appellee had a
property interest in his job and that the procedures followed by
appellants to discharge appellee were constitutionally "inadequate"
under the Fourteenth Amendment.
Id. at 14. Further, the
court declared unconstitutional Florida's statutory provisions
governing removal of state employees, Fla.Stat. § 110.061 (1977).
Finally, the District Court concluded that appellants had forfeited
their qualified immunity from suit under § 1983 because appellee's
"due process rights were clearly established at the time of his
October 24, 1977, dismissal."
Id. at 16.
Five days after entry of the District Court's order, the Court
of Appeals for the Fifth Circuit decided
Weisbrod v.
Donigan, 651 F.2d 334 (1981). The Court of Appeals there held
that Florida officials in 1978 had violated no well
Page 468 U. S. 188
established due process rights in discharging a permanent state
employee without a pretermination or a prompt post-termination
hearing. On motion for reconsideration, the District Court found
that Weisbrod required it to vacate its prior holding that
appellants had forfeited their immunity by violating appellee's
clearly established constitutional rights. The court nevertheless
reaffirmed its award of monetary damages. It reasoned that proof
that an official had violated clearly established constitutional
rights was not the "sole way" to overcome the official's claim of
qualified immunity. Applying the "totality of the circumstances"
test of
Scheuer v. Rhodes, 416 U.
S. 232,
416 U. S.
247-248 (1974), the District Court held that "if an
official violates his agency's explicit regulations, which have the
force of state law, [that] is evidence that his conduct is
unreasonable." 543 F. Supp. at 19. [
Footnote 5] In this respect, the court noted that the
personnel regulations of the Florida Highway Patrol clearly
required "a complete investigation of the charge and an opportunity
[for the employee] to respond in writing."
Id. at 20.
[
Footnote 6] The District Court
concluded that appellants in discharging appellee had "followed
procedures contrary to the department's rules and
Page 468 U. S. 189
regulations"; therefore, appellants were "not entitled to
qualified immunity, because their belief in the legality of the
challenged conduct was unreasonable."
Ibid. The court
explicitly relied upon the official violation of the personnel
regulation, stating that "[i]f [the] departmental order had not
been adopted . . . prior to [appellee's] dismissal, no damages of
any kind could be awarded."
Ibid. The District Court's
order amending the judgment did not discuss the issue whether
appellants violated appellee's federal constitutional rights. On
that issue, the District Court relied upon its previous opinion;
the court did not indicate that the personnel regulation was
relevant to its analysis of appellee's rights under the Due Process
Clause.
The District Court also amended its judgment declaring the
Florida civil service statute unconstitutional. The State's motion
for reconsideration had informed the court that the statute had
been repealed by the Florida Legislature. The District Court
therefore declared unconstitutional the provisions of the newly
enacted civil service statute, Fla.Stat., ch. 110 (1982 and
Supp.1983), insofar as "they fail to provide a prompt
post-termination hearing."
Id. at 21.
The Court of Appeals affirmed on the basis of the District
Court's opinion.
Scherer v. Graham, 710 F.2d 838 (CA11
1983). We noted probable jurisdiction, 464 U.S. 1017 (1983), to
consider whether the Court of Appeals properly had declared the
Florida statute unconstitutional and denied appellants' claim of
qualified immunity. Appellants do not seek review of the District
Court's finding that appellee's constitutional rights were
violated. As appellee now concedes that the District Court lacked
jurisdiction to adjudicate the constitutionality of the Florida
statute enacted in 1981, we consider only the issue of qualified
immunity. [
Footnote 7] We
reverse.
Page 468 U. S. 190
II
In the present posture of this case, the District Court's
decision that appellants violated appellee's rights under the
Fourteenth Amendment is undisputed. [
Footnote 8] This finding of the District Court -- based
entirely upon federal constitutional law -- resolves the merits of
appellee's underlying claim for relief under § 1983. It does not,
however, decide the issue of damages. Even defendants who violate
constitutional rights enjoy a qualified immunity that protects them
from liability for damages unless it is further demonstrated that
their conduct was unreasonable under the applicable standard. The
precise standard for determining when an official may assert the
qualified immunity defense has been clarified by recent cases,
see Wood v. Strickland, 420 U. S. 308
(1975);
Butz v. Economou, 438 U.
S. 478 (1978);
Harlow v. Fitzgerald,
457 U. S. 800
(1982). The present case requires us to consider the application of
the standard where the official's conduct violated a state
regulation as well as a provision of the Federal Constitution.
The District Court's analysis of appellants' qualified immunity,
written before our decision in
Harlow v. Fitzgerald,
Page 468 U. S. 191
supra, rests upon the "totality of the circumstances"
surrounding appellee's separation from his job. This Court applied
that standard in
Scheuer v. Rhodes, 416 U.S. at
416 U. S.
247-248. As subsequent cases recognized,
Wood v.
Strickland, supra, at
420 U. S. 322, the "totality of the circumstances" test
comprised two separate inquiries: an inquiry into the objective
reasonableness of the defendant official's conduct in light of the
governing law, and an inquiry into the official's subjective state
of mind.
Harlow v. Fitzgerald, supra, rejected the inquiry
into state of mind in favor of a wholly objective standard. Under
Harlow, officials
"are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known."
457 U.S. at
457 U. S. 818.
Whether an official may prevail in his qualified immunity defense
depends upon the "objective reasonableness of [his] conduct as
measured by reference to clearly established law."
Ibid.
(footnote deleted). No other "circumstances" are relevant to the
issue of qualified immunity.
Appellee suggests, however, that the District Court judgment can
be reconciled with
Harlow in two ways. First, appellee
urges that the record evinces a violation of constitutional rights
that were clearly established. Second, in appellee's view, the
District Court correctly found that, absent a violation of clearly
established constitutional rights, appellants' violation of the
state administrative regulation -- although irrelevant to the
merits of appellee's underlying constitutional claim -- was
decisive of the qualified immunity question. In our view, neither
submission is consistent with our prior cases.
A
Appellee contends that the District Court's reliance in its
qualified immunity analysis upon the state regulation was
"superfluous," Brief for Appellee 19, because the federal
constitutional right to a pretermination or a prompt
post-termination
Page 468 U. S. 192
hearing was well established in the Fifth Circuit at the time of
the conduct in question. As the District Court recognized in
rejecting appellee's contention,
Weisbrod v. Donigan, 651
F.2d 334 (CA5 1981), is authoritative precedent to the contrary.
The Court of Appeals in that case found that the State had violated
no clearly established due process right when it discharged a civil
service employee without any pretermination hearing. [
Footnote 9]
Nor was it unreasonable in this case, under Fourteenth Amendment
due process principles, for the Department to conclude that
appellee had been provided with the fundamentals of due process.
[
Footnote 10] As stated
above, the District Court found that appellee was informed several
times of the Department's objection to his second employment, and
took advantage of several opportunities to present his reasons for
believing that he should be permitted to retain his part-time
employment despite the contrary rules of the Patrol. Appellee's
statement of reasons and other relevant information
Page 468 U. S. 193
were before the senior official who made the decision to
discharge appellee. And Florida law provided for a full evidentiary
hearing after termination. We conclude that the District Court
correctly held that appellee has demonstrated no violation of his
clearly established constitutional rights.
B
Appellee's second ground for affirmance in substance is that
upon which the District Court relied. Appellee submits that
appellants, by failing to comply with a clear state regulation,
forfeited their qualified immunity from suit for violation of
federal constitutional rights.
Appellee makes no claim that the appellants' violation of the
state regulation either is itself actionable under § 1983 or bears
upon the claim of constitutional right that appellee asserts under
§ 1983. [
Footnote 11] And
appellee also recognizes that
Harlow v. Fitzgerald makes
immunity available only to officials whose conduct conforms to a
standard of "objective legal reasonableness." 457 U.S. at
457 U. S. 819.
Nonetheless, in appellee's view, official conduct that contravenes
a statute or regulation is not "objectively reasonable," because
officials fairly may be expected to conform their conduct to such
legal norms. Appellee also argues that the lawfulness of official
conduct under such a statute or regulation may be determined early
in the lawsuit on motion for summary judgment. Appellee urges
therefore that a defendant official's violation of a clear statute
or regulation, although not itself the basis of suit, should
deprive the official of qualified immunity from damages for
violation of other statutory or constitutional provisions.
Page 468 U. S. 194
On its face, appellee's reasoning is not without some force. We
decline, however, to adopt it. Even before
Harlow, our
cases had made clear that, under the "objective" component of the
good faith immunity test, "an official would not be held liable in
damages under § 1983 unless
the constitutional right he was
alleged to have violated was
clearly established' at the
time of the violation." Butz v. Economou, 438 U.S. at
438 U. S. 498
(emphasis added); accord, Procunier v. Navarette,
434 U. S. 555,
434 U. S. 562
(1978). Officials sued for constitutional violations do not lose
their qualified immunity merely because their conduct violates some
statutory or administrative provision. [Footnote 12] We acknowledge, of course, that officials
should conform their conduct to applicable statutes and
regulations. For
Page 468 U. S. 195
that reason, it is an appealing proposition that the violation
of such provisions is a circumstance relevant to the official's
claim of qualified immunity. But in determining what circumstances
a court may consider in deciding claims of qualified immunity, we
choose "between the evils inevitable in any available alternative."
Harlow v. Fitzgerald, 457 U.S. at
457 U. S.
813-814. Appellee's submission, if adopted, would
disrupt the balance that our cases strike between the interests in
vindication of citizens' constitutional rights and in public
officials' effective performance of their duties. The qualified
immunity doctrine recognizes that officials can act without fear of
harassing litigation only if they reasonably can anticipate when
their conduct may give rise to liability for damages and only if
unjustified lawsuits are quickly terminated.
See Butz v.
Economou, supra, at
438 U. S.
506-507;
Harlow v. Fitzgerald, supra, at
457 U. S. 814,
457 U. S.
818-819. Yet, under appellee's submission, 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.
Appellee proposes that his new rule for qualified immunity be
limited by requiring that plaintiffs allege clear violation of a
statute or regulation that advanced important interests or was
designed to protect constitutional rights. Yet, once the door is
opened to such inquiries, it is difficult to limit their scope in
any principled manner. Federal judges would be granted large
discretion to extract from various statutory and administrative
codes those provisions that seem to them sufficiently clear or
important to warrant denial of qualified immunity. And such
judgments fairly could be made only after an extensive inquiry into
whether the official in the
Page 468 U. S. 196
circumstances of his decision should have appreciated the
applicability and importance of the rule at issue. It would become
more difficult, not only for officials to anticipate the possible
legal consequences of their conduct, [
Footnote 13] but also for trial courts to decide even
frivolous suits without protracted litigation.
Nor is it always fair, or sound, policy to demand official
compliance with statute and regulation on pain of money damages.
Such officials as police officers or prison wardens, to say nothing
of higher level executives who enjoy only qualified immunity,
routinely make close decisions in the exercise of the broad
authority that necessarily is delegated to them. These officials
are subject to a plethora of rules, "often so voluminous,
ambiguous, and contradictory, and in such flux that officials can
only comply with or enforce them selectively."
See P.
Schuck, Suing Government 66 (1983). In these circumstances,
officials should not err always on the side of caution.
"[O]fficials with a broad range of duties and authority must
often act swiftly and firmly at the risk that action deferred will
be futile or constitute virtual abdication of office."
Scheuer v. Rhodes, 416 U.S. at
416 U. S. 246.
[
Footnote 14]
Page 468 U. S. 197
III
A plaintiff who seeks damages for violation of constitutional or
statutory rights may overcome the defendant official's qualified
immunity only by showing that those rights were clearly established
at the time of the conduct at issue. As appellee has made no such
showing, the judgment of the Court of Appeals is reversed, and the
case is remanded for proceedings consistent with this opinion.
It is so ordered.
[
Footnote 1]
One memorandum reported to Capt. Sconiers that appellee had
continued to work at his second job; a second had been addressed by
Lt. Wiggins to appellee; other memoranda summarized Lt. Wiggins'
and Sgt. Clark's discussions with appellee.
[
Footnote 2]
Appellant Ralph Davis was Executive Director of the Department
of Highway Safety and Motor Vehicles at the time of appellee's
discharge from employment. Appellant Chester Blakemore succeeded
Davis to that position and is a party only in his official
capacity. Appellant Col. J. Eldridge Beach is Director of the
Florida Highway Patrol, a division of the Department of Highway
Safety and Motor Vehicles; as noted above, he held that position at
the time of appellee's discharge.
[
Footnote 3]
The complaint also alleged that appellants, in violation of the
Fourteenth Amendment, had coerced appellee to accept an inadequate
settlement and had infringed upon appellee's right of privacy
guaranteed by the First and Ninth Amendments.
[
Footnote 4]
The District Court rejected appellee's other constitutional
claims.
[
Footnote 5]
The District Court relied in part on the reasoning of
Williams v. Treen, 671 F.2d 892 (CA5 1982),
cert.
denied, 459 U.S. 1126 (1983), that had held that official
conduct in violation of an explicit and clearly established state
regulation was
per se unreasonable. 671 F.2d at 899.
[
Footnote 6]
These regulations specified in pertinent part.
"Upon receiving a report of . . . a violation of Department or
Division rules and regulations, . . . the Director shall order a
complete investigation to determine the true facts concerning the
circumstances surrounding the alleged offense. The completed
investigation report will also contain a written statement made by
the employee against whom the complaint was made. If after a
thorough study of all information concerning the violation, the
Director decides that a . . . dismissal will be in order, he will
present the employee in writing with the reason or reasons for such
actions."
General Order No. 43, § 1.C (Sept. 1, 1977), quoted in 543 F.
Supp. at 19-20.
[
Footnote 7]
The Florida civil service statute now in force replaced the
statute under which appellee's employment was terminated. As the
current state statute was never applied to appellee, he lacks
standing to question its constitutionality.
Cf. Golden v.
Zwickler, 394 U. S. 103
(1969).
Appellee's concession does not deprive the Court of appellate
jurisdiction over the remaining issue in the case. In cases where
the Court of Appeals has declared a state statute unconstitutional,
this Court may decide the "Federal questions presented," 28 U.S.C.
§ 1254(2).
Cf. Flournoy v. Wiener, 321 U.
S. 253,
321 U. S. 263
(1944);
Leroy v. Great Western United Corp., 443 U.
S. 173 (1979). Under § 1254(2), the Court retains
discretion to decline to consider those issues in the case not
related to the declaration that the state statute is invalid. In
the present case, however, we choose to consider the important
question whether the District Court and the Court of Appeals
properly denied appellants' good faith immunity from suit.
[
Footnote 8]
As we discuss below, it is contested whether these
constitutional rights were clearly established at the time of
appellants' conduct.
[
Footnote 9]
We see no reason to doubt, as does the partial dissent, that the
Court of Appeals in
Weisbrod had full knowledge of its own
precedents and correctly construed them.
[
Footnote 10]
As the partial dissent explains at some length, the decisions of
this Court, by 1978, had required "some kind of a hearing,"
Board of Regents v. Roth, 408 U.
S. 564,
408 U. S. 570,
n. 7 (1972), prior to discharge of an employee who had a
constitutionally protected property interest in his employment. But
the Court had not determined what kind of a hearing must be
provided. Such a determination would require a careful balancing of
the competing interests -- of the employee and the State --
implicated in the official decision at issue.
See Mathews v.
Eldridge, 424 U. S. 319,
424 U. S. 335
(1976). As the Court had considered circumstances in which no
hearing at all had been provided prior to termination,
Perry v.
Sindermann, 408 U. S. 593
(1972), or in which the requirements of due process were met,
Board of Regents v. Roth, supra; Arnett v. Kennedy,
416 U. S. 134
(1974);
Bishop v. Wood, 426 U. S. 341
(1976);
Codd v. Velger, 429 U. S. 624
(1977), there had been no occasion to specify any minimally
acceptable procedures for termination of employment. The partial
dissent cites no case establishing that appellee was entitled to
more elaborate notice, or a more formal opportunity to respond,
than he in fact received.
[
Footnote 11]
State law may bear upon a claim under the Due Process Clause
when the property interests protected by the Fourteenth Amendment
are created by state law.
See Board of Regents v. Roth,
supra, at
408 U. S. 577.
Appellee's property interest in his job under Florida law is
undisputed. Appellee does not contend here that the procedural
rules in state law govern the constitutional analysis of what
process was due to him under the Fourteenth Amendment.
[
Footnote 12]
In
Harlow, the Court acknowledged that officials may
lose their immunity by violating "clearly established statutory . .
. rights." 457 U.S. at
457 U. S. 818.
This is the case where the plaintiff seeks to recover damages for
violation of those statutory rights, as in
Harlow itself,
see id. at
457 U. S. 820,
n. 36, and as in many § 1983 suits,
see, e.g., Maine v.
Thiboutot, 448 U. S. 1 (1980)
(holding that § 1983 creates cause of action against state
officials for violating federal statutes). For the reasons that we
discuss, officials sued for violations of rights conferred by a
statute or regulation, like officials sued for violation of
constitutional rights, do not forfeit their immunity by violating
some
other statute or regulation. Rather, these officials
become liable for damages only to the extent that there is a clear
violation of the statutory rights that give rise to the cause of
action for damages. And if a statute or regulation does give rise
to a cause of action for damages, clear violation of the statute or
regulation forfeits immunity only with respect to damages caused by
that violation. In the present case, as we have noted, there is no
claim that the state regulation itself or the laws that authorized
its promulgation create a cause of action for damages or provide
the basis for an action brought under § 1983.
Harlow was a suit against federal, not state,
officials. But our cases have recognized that the same qualified
immunity rules apply in suits against state officers under § 1983
and in suits against federal officers under
Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.
S. 388 (1971).
See Butz v. Economou, 438 U.S.
at
438 U. S. 504.
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.
[
Footnote 13]
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.
[
Footnote 14]
Appellee urges as well that appellants' violation of the
personnel regulation constituted breach of their "ministerial" duty
-- established by the regulation -- to follow various procedures
before terminating appellee's employment. Although the decision to
discharge an employee clearly is discretionary, appellee reasons
that the Highway Patrol regulation deprived appellants of all
discretion in determining what procedures were to be followed prior
to discharge. Under this view, the
Harlow standard is
inapposite because this Court's doctrine grants qualified immunity
to officials in the performance of discretionary, but not
ministerial, functions.
Appellee's contention mistakes the scope of the "ministerial
duty" exception to qualified immunity in two respects. First, as we
have discussed, breach of a legal duty created by the personnel
regulation would forfeit official immunity only if that breach
itself gave rise to the appellee's cause of action for damages.
This principle equally applies whether the regulation created
discretionary or ministerial duties. Even if the personnel
regulation did create a ministerial duty, appellee makes no claim
that he is entitled to damages simply because the regulation was
violated.
See supra at
468 U. S.
193-194, and n. 12.
In any event, the rules that purportedly established appellants'
"ministerial" duties in the present case left to appellants a
substantial measure of discretion.
Cf. 78 U.
S. The Supervisors, 11 Wall. 136,
78 U. S. 138
(1871);
Kendall v.
Stokes, 3 How. 87,
44 U. S. 98
(1845). Appellants were to determine, for example, what constituted
a "complete investigation" and a "thorough study of all
information" sufficient to justify a decision to terminate
appellee's employment.
See n 6,
supra. And the District Court's finding that
appellants ignored a clear legal command does not bear on the
"ministerial" nature of appellants' duties. A law that fails to
specify the precise action that the official must take in each
instance creates only discretionary authority; and that authority
remains discretionary however egregiously it is abused.
Cf.
Kendall v. Stokes, supra.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE STEVENS join, concurring in part and dissenting in
part.
In
Harlow v. Fitzgerald, 457 U.
S. 800 (1982), the Court decided that Government
officials seeking to establish qualified immunity must show that
the acts or omissions violating the plaintiff's rights were
objectively reasonable -- specifically, that the conduct at issue
did not "violate clearly established
Page 468 U. S. 198
statutory or constitutional rights of which a reasonable person
would have known."
Id. at
457 U. S. 818.
The Court today does not purport to change that standard. Yet it
holds that, despite discharging a civil service employee in 1977
without meaningful notice and an opportunity to be heard,
appellants are entitled to immunity from a suit for damages. The
Court reaches this decision essentially by ignoring both the facts
of this case and the law relevant to appellants' conduct at the
time of the events at issue. In my view, appellants plainly
violated appellee's clearly established rights, and the Court's
conclusion to the contrary seriously dilutes
Harlow's
careful effort to preserve the availability of damages actions
against governmental officials as a critical "avenue for
vindication of constitutional guarantees."
Id. at
457 U. S. 814.
Accordingly, I dissent from that portion of the judgment reversing
the award of damages. [
Footnote
2/1]
In order to determine whether a defendant has violated a
plaintiff's clearly established rights, it would seem necessary to
make two inquiries, both of which are well within a court's
familiar province: (1) which particular act or omission of the
defendant violated the plaintiff's federal rights, and (2) whether
governing case or statutory law would have given a reasonable
official cause to know, at the time of the relevant events, that
those acts or omissions violated the plaintiff's rights. The Court,
however, asks neither question. Its brief treatment of the issue
includes no reference to the District Court's findings of fact with
respect to the conduct at issue here. This is not surprising, since
those findings -- which were affirmed summarily by the Court of
Appeals and which appellants do not claim to be clearly erroneous
-- demonstrate that appellee was never informed that he might be
fired for violating regulations against dual employment.
Page 468 U. S. 198
Nor did appellee ever have an opportunity to persuade the
relevant decisionmaker that he should not be disciplined.
The regulation appellee was ultimately fired for violating
required only that Patrol members receive prior approval of outside
employment, in order to avoid conflicts of interest with regular
duties.
543 F. Supp.
4, 8 (ND Fla.1981). Upon request, appellee obtained approval
from his troop commander for part-time work as a security guard on
a movie set. Some three weeks later, the commander revoked the
approval and there followed an exchange of memos between appellee's
immediate superiors and the commander indicating that appellee did
not wish to relinquish the part-time job. Apparently without
informing appellee, the commander then recommended to the director
of the Highway Patrol, Col. Beach, that appellee be suspended for
three days and, nearly a week later, an intermediate superior
ordered appellee to terminate his outside employment. On the same
day, appellee wrote to the commander, stating that he did not
believe his outside work caused any conflict of interest. Although
some officials in the Department suggested to each other ways in
which appellee's work might create a conflict,
"[n]o one ever identified the conflict to plaintiff; [and the
superior who had ordered appellee to terminate the job] testified
he didn't know what the conflict was."
Ibid. Meanwhile, Beach, the official with authority to
terminate appellee, received copies of the various letters that had
been exchanged and, without informing appellee or soliciting his
views, decided to discharge him. As the District Court
summarized:
"By certified letter dated October 24, 1977, and received by
plaintiff on October 25, 1977, Scherer was terminated from his FHP
employment effective October 20, 1977. At no time prior to the
letter of termination was the plaintiff given notice in writing of
a proposed discharge or an opportunity to respond verbally or in
writing to the official charged with making the termination
decision,
Page 468 U. S. 200
the defendant Beach. At no time prior to October 25, 1977, was
the plaintiff notified of any right that he might have to respond
to Col. Beach's letter of dismissal."
Id. at 8-9.
The District Court further found that two other Highway Patrol
employees in appellee's troop had been given approval to engage in
the very same secondary employment for which appellee was fired,
and their approval "was never revoked."
Id. at 8, n. 1.
Moreover, after being terminated, appellee successfully argued
before a Florida administrative officer that the regulation
prohibiting dual employment had not been validly adopted, and was
therefore void.
Id. at 9. In short, although appellee was
warned not to continue the second employment, he had no reason to
believe, prior to being fired, that retention of the second job
constituted grounds for termination, and indeed he had several
reasons for believing otherwise. Nor did he have any opportunity to
challenge, before the relevant decisionmaker, either his
termination or the underlying conclusion that his retention of the
second job created a conflict of interest.
By failing to warn appellee that his conduct could result in
deprivation of his protected property interest in his Highway
Patrol job and by denying him an opportunity to challenge that
deprivation, appellants violated the most fundamental requirements
of due process of law -- meaningful notice and a reasonable
opportunity to be heard. Contrary to the Court's conclusion, these
requirements were "clearly established" long before October 25,
1977, the date on which appellee learned he was fired. As long ago
as 1914, the Court emphasized that "[t]he fundamental requisite of
due process of law is the opportunity to be heard."
Grannis v.
Ordean, 234 U. S. 385,
234 U. S. 394.
In 1925, the Court explained that a government failure to afford
reasonable notice of the kinds of conduct that will result in
deprivations of liberty and property "violates the first essential
of due process of law."
Connally
Page 468 U. S. 201
v. General Construction Co., 269 U.
S. 385,
269 U. S. 391.
And in several decisions in the 1950's, the Court concluded that
public employees have interests in maintaining their jobs that
cannot be abridged without due process.
E.g., Slochower v.
Board of Education, 350 U. S. 551
(1956);
Wieman v. Updegraff, 344 U.
S. 183 (1952);
see Board of Regents v. Roth,
408 U. S. 564,
408 U. S.
576-577 (1972).
In January, 1972, nearly six years prior to appellee's
termination, the Court reaffirmed that
"[b]efore a person is deprived of a protected interest, he must
be afforded opportunity for some kind of a hearing,"
"except for extraordinary situations where some valid
governmental interest is at stake that justifies postponing the
hearing until after the event."
"
Boddie v. Connecticut, 401 U. S.
371,
401 U. S. 379."
"While '[m]any controversies have raged about . . . the Due
Process Clause,' . . . it is fundamental that, except in emergency
situations (and this is not one), due process requires that, when a
State seeks to terminate [a protected] interest . . . , it must
afford 'notice and opportunity for hearing appropriate to the
nature of the case' before the termination becomes effective."
"
Bell v. Burson, 402 U. S. 535,
402 U. S.
542. For the rare and extraordinary situations in which
we have held that deprivation of a protected interest need not not
be preceded by opportunity for some kind of hearing,
see, e.g.,
Central Union Trust Co. v. Garvan, 254 U. S.
554,
254 U. S. 566;
Phillips
v. Commissioner, 283 U. S. 589,
283 U. S.
597;
Ewing v. Mytinger & Casselberry, Inc.,
339 U. S.
594."
Board of Regents v. Roth, supra, at
408 U. S. 570,
n. 7.
Similarly, in 1974, based on an exhaustive review of our cases,
JUSTICE WHITE explained that,
"where there is a legitimate entitlement to a job, as when a
person is given employment subject to his meeting certain specific
conditions, due process requires, in order to insure against
arbitrariness by the State in the administration of its law,
that
Page 468 U. S. 202
a person be given notice and a hearing before he is finally
discharged."
Arnett v. Kennedy, 416 U. S. 134,
416 U. S. 185
(concurring in part and dissenting in part).
See id. at
416 U. S. 170
(opinion of POWELL, J.,);
id. at
416 U. S. 203
(Douglas, J., dissenting);
id. at
416 U. S.
212-227 (MARSHALL, J., dissenting). And finally, in
February, 1976, more than a year and a half prior to appellee's
termination, JUSTICE POWELL summarized for the Court fundamental
legal principles whose sources could be traced to cases from the
19th century:
"Procedural due process imposes constraints on governmental
decisions which deprive individuals of 'liberty' or 'property'
interests within the meaning of the Due Process Clause of the Fifth
or Fourteenth Amendment. . . . This Court consistently has held
that some form of hearing is required before an individual is
finally deprived of a property interest.
Wolff v.
McDonnell, 418 U. S. 539,
418 U. S.
557-558 (1974).
See, e.g., Phillips v.
Commissioner, 283 U. S. 589,
283 U. S.
596-597 (1931).
See also Dent v. West Virginia,
129 U. S.
114,
129 U. S. 124-125 (1889).
The"
"right to be heard before being condemned to suffer grievous
loss of any kind, even though it may not involve the stigma and
hardships of a criminal conviction, is a principle basic to our
society."
"
Joint Anti-Fascist Comm. v. McGrath, 341 U. S.
123,
341 U. S. 168 (1951)
(Frankfurter, J., concurring). The fundamental requirement of due
process is the opportunity to be heard 'at a meaningful time and in
a meaningful manner.'
Armstrong v. Manzo, 380 U. S.
545,
380 U. S. 552 (1965).
See Grannis v. Ordean, 234 U. S. 385,
234 U. S.
394 (1914)."
Mathews v. Eldridge, 424 U. S. 319,
424 U. S.
332-333 (1976).
See also Goss v. Lopez,
419 U. S. 565
(1975);
Perry v. Sindermann, 408 U.
S. 593 (1972);
Fuentes v. Shevin, 407 U. S: 67
(1972);
Stanley v. Illinois, 405 U.
S. 645 (1972);
Connell v. Higginbotham,
403 U. S. 207
(1971) (per curiam);
Page 468 U. S. 203
Wisconsin v. Constantineau, 400 U.
S. 433 (1971);
Goldberg v. Kelly, 397 U.
S. 254 (1970);
Sniadach v. Family Finance
Corp., 395 U. S. 337
(1969).
If there were any ambiguity in the repeated pronouncements of
this Court, appellants had several other reasons to know that their
failure to afford appellee meaningful pretermination notice and
hearing violated due process. Two years prior to appellee's
discharge, the Florida Attorney General explained in an official
opinion that
"[c]areer service employees who have attained permanent status
in the career service system have acquired a property interest in
their public positions and emoluments thereof -- such as job
security and seniority which they may not be deprived of without
due process of law."
Fla.Op.Atty.Gen. 075-94, p. 161 (1975). And more than a year
before the events at issue here, in a case involving the
Jacksonville, Fla., City Civil Service Board, the Court of Appeals
for the Fifth Circuit left no doubt as to what it thought "clearly
established" law required:
"Where a governmental employer chooses to postpone the
opportunity of a nonprobationary employee to secure a full
evidentiary hearing until after dismissal, risk-reducing procedures
must be accorded. These must include, prior to termination, written
notice of the reasons for termination and an effective opportunity
to rebut those reasons. Effective rebuttal must give the employee
the right to respond in writing to the charges made and to respond
orally before the official charged with the responsibility of
making the termination decision."
Thurston v. Dekle, 531 F.2d 1264, 1273 (1976),
vacated and remanded on other grounds, 438 U.S. 901
(1978).
Finally, some two months prior to appellee's discharge, the
Florida Highway Patrol issued a regulation undoubtedly intended to
conform administrative practice with decisions like
Page 468 U. S. 204
Thurston. [
Footnote
2/2] The regulation, which has the force of statutory law,
see 543 F. Supp. at 20, provides in pertinent part:
"Upon receiving a report of . . . a violation of Department or
Division rules and regulations . . . , the Director shall order a
complete investigation to determine the true facts concerning the
circumstances surrounding the alleged offense. The completed
investigation report will also contain a written statement made by
the employee against whom the complaint was made. If after a
thorough study of all information concerning the violation, the
Director decides that a . . . dismissal will be in order, he will
present the employee in writing with the reason or reasons for such
actions."
General Order No. 43, § l.C (Sept. 1, 1977), quoted in 543 F.
Supp. at 19-20.
The Court ignores most of this evidence demonstrating the
objective unreasonableness of appellants' conduct. Instead, the
Court relies first on
Weisbrod v. Donigan, 651 F.2d 334
(CA5 1981) (per curiam), as "authoritative precedent" for the
proposition that appellee's right to pretermination notice and a
hearing was not "well established in the Fifth Circuit at the
Page 468 U. S. 205
time of the conduct in question."
Ante at
468 U. S. 192.
In
Weisbrod, the Court of Appeals simply declared --
without citation to any of the cases just discussed, including its
own decision in
Thurston -- that "the record indicates
defendants did not act in disregard of any well-settled
constitutional rights," and that
"
Weisbrod offers no authority indicating the failure to
hold a pretermination hearing and the delay in the process of her
administrative appeal were clear violations of her constitutional
rights."
651 F.2d at 336. It is unclear from the court's brief per curiam
opinion whether Weisbrod -- unlike appellee in this case -- was
informed prior to discharge that her conduct constituted grounds
for termination.
See id. at 335. In any event, the Court
of Appeals' dubious and cursory
ipse dixit in
Weisbrod, rendered four years after the conduct at issue
in this case, is hardly persuasive, much less controlling,
authority for this Court's decision that appellee's rights were not
clearly established in 1977.
The other basis for the Court's rejection of appellee's claim is
an assertion that it was not
"unreasonable in this case, under Fourteenth Amendment
principles, for the Department to conclude that appellee had been
provided with the fundamentals of due process."
Ante at
468 U. S. 192.
The Court seeks to support this statement by relying on the fact
that appellee had been told to discontinue his second job, and that
he
"took advantage of several opportunities to present his reasons
for believing that he should be permitted to retain his part-time
employment. . . ."
Ibid. Appellee did not, however, have an opportunity to
present his reasons for retaining his civil service job with the
Florida Highway Patrol -- the employment in which he had a
protected property interest.
See 543 F. Supp. at 12.
Indeed, he was, according to the District Court, never told that
his Highway Patrol job was in jeopardy, and he never had a chance
to try to persuade the relevant decisionmaker that the second job
did not create a conflict of interest. The Court concedes that our
decisions by 1978 had required notice and "
some kind of a
hearing' . . .
Page 468 U. S.
206
prior to discharge of an employee who had a constitutionally
protected property interest in his employment." Ante at
468 U. S. 192,
n. 10. In this case, appellee received no meaningful notice and no
kind of hearing before the official who fired him.
In sum, I believe that appellants' actions "violate[d] clearly
established statutory or constitutional rights of which a
reasonable person would have known,"
Harlow, 457 U.S. at
457 U. S. 818,
and I would therefore affirm the District Court's award of
damages.
[
Footnote 2/1]
I agree that the District Court erred in declaring the new
Florida civil service statute unconstitutional,
see ante
at
468 U. S. 189,
and therefore concur in that portion of the judgment vacating
paragraph 2 of the District Court's amended order.
See 543 F. Supp.
4,
21 (ND
Fla.1981).
[
Footnote 2/2]
Because I believe appellants were not entitled to qualified
immunity under the standards set forth in
Harlow v.
Fitzgerald, 457 U. S. 800
(1982), I need not consider whether, as appellee contends,
violation of the department regulation would defeat immunity for
violating federal rights of which the officials had no reasonable
knowledge. It seems plain to me, however, that the existence of the
regulation is relevant to the
Harlow analysis. Regardless
of whether this Court or the Court of Appeals now thinks appellee's
right to pretermination notice and hearing was not "clearly
established" in 1977, the presence of a clear-cut regulation
obviously intended to safeguard public employees' constitutional
rights certainly suggests that appellants had reason to believe
they were depriving appellee of due process.
Cf. Harlow,
supra, at
457 U. S. 821
(BRENNAN, J., concurring). Such an objective basis of knowledge
provides at least as reliable a measure of the reasonableness of
official action as does a court's
post hoc parsing of
cases.
See 457 U.S. at
457 U. S.
815-819.