DAVIS ET AL. v. SCHERER, 104 S. Ct. 3012, 468 U.S. 183 (U.S. 06/28/1984)

[1] SUPREME COURT OF THE UNITED STATES

[2] No. 83-490

[3] 104 S. Ct. 3012, 468 U.S. 183, 82 L. Ed. 2d 139, 1984

[4] Decided: June 28, 1984.

[5] DAVIS ET AL
v.
SCHERER

[6] APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

[7] Mitchell D. Franks argued the cause for appellants. With him on the briefs were Jim Smith, Attorney General of Florida, and Vicki Gordon Kaufman, Bruce A. Minnick, and Pamela Lutton-Shields, Assistant Attorneys General.

[8] Richard G. Wilkins argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, Barbara L. Herwig, and John F. Cordes.

[9] Bruce S. Rogow argued the cause and filed a brief for appellee.*fn*

[10] 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. 197.

[11] Author: Powell

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[12] JUSTICE POWELL delivered the opinion of the Court.

[13] 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.

[14] I

[15] 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 The letter noted that permission would be rescinded "should [the] employment interfere .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 Sconiers informed appellee by memorandum that permission to accept the employment was revoked.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.

[16] 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.

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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.

[17] 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.*fn1 On the basis of these documents, Col. Beach on October 24, 1977, ordered that appellee's employment with the Florida Highway Patrol be terminated.

[18] 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.

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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.*fn2 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.*fn3 Appellee requested a declaration that his rights had been violated and an award of money damages.

[19] The District Court granted the requested relief for violation of appellee's Fourteenth Amendment rights.*fn4 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.

[20] 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-established

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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, 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. *fn5 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.*fn6 The District Court concluded that appellants in discharging appellee had "followed procedures contrary to the department's rules and

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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 "[if] [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.

[21] 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.

[22] 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.*fn7 We reverse.

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II

[23] In the present posture of this case, the District Court's decision that appellants violated appellee's rights under the Fourteenth Amendment is undisputed.*fn8 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.

[24] The District Court's analysis of appellants' qualified immunity, written before our decision in Harlow v. Fitzgerald,

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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.*fn9

[25] 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.*fn10 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

[ 468 U.S. Page 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.

[26] B

[27] 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.

[28] 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.*fn11 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 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.

[ 468 U.S. Page 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 498 (emphasis added); accord, Procunier v. Navarette, 434 U.S. 555, 562 (1978). Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.*fn12

[29] We acknowledge of course that officials should conform their conduct to applicable statutes and regulations. For

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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 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 506-507; Harlow v. Fitzgerald, supra, at 814, 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.

[30] 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

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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,*fn13 but also for trial courts to decide even frivolous suits without protracted litigation.

[31] 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. "[Officials] 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 246. *fn14

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III

[32] 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.

[33] It is so ordered.

[34] Disposition

[35] 710 F.2d 838, reversed and remanded.

[36] JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, concurring in part and dissenting in part.

[37] 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

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statutory or constitutional rights of which a reasonable person would have known." Id., at 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 814. Accordingly, I dissent from that portion of the judgment reversing the award of damages.*fn1