DAVIS ET AL. v. SCHERER
No. 83-490
Supreme Court of the United States
Argued April 16, 1984—Decided June 28, 1984
468 U.S. 183
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.
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.
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 The letter noted that permission would be rescinded “should [the] employment interfere ...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 Sconiers informed appellee by memorandum that permission to accept the employment was revoked.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.
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.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.
*Michael S. Helfer, Burt Neuborne, and Charles S. Sims filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.
The District Court granted the requested relief for violation of appellee‘s Fourteenth Amendment rights.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,
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-
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,
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.7 We reverse.
In the present posture of this case, the District Court‘s decision that appellants violated appellee‘s rights under the Fourteenth Amendment is undisputed.8 This finding of the District Court—based entirely upon federal constitutional law—resolves the merits of appellee‘s underlying claim for relief under
The District Court‘s analysis of appellants’ qualified immunity, written before our decision in Harlow v. Fitzgerald,
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-
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.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
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
We acknowledge of course that officials should conform their conduct to applicable statutes and regulations. For
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
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 246.14
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.
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 estab-
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.
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,
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, 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
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, 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, 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, 566; Phillips v. Commissioner, 283 U. S. 589, 597; Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594.” Board of Regents v. Roth, supra, at 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
“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, 557-558 (1974). See, e. g., Phillips v. Commissioner, 283 U. S. 589, 596-597 (1931). See also Dent v. West Virginia, 129 U. S. 114, 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, 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, 552 (1965). See Grannis v. Ordean, 234 U. S. 385, 394 (1914).” Mathews v. Eldridge, 424 U. S. 319, 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);
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
“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.
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
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 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”
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 818, and I would therefore affirm the District Court‘s award of damages.
Notes
“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.
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,”
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
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 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. Amy v. The Supervisors, 11 Wall. 136, 138 (1871); Kendall v. Stokes, 3 How. 87, 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.