Frederick Allen v. Roy CooperFrederick Allen v. Roy Cooper
Frederick Allen, a videographer, and Nautilus Productions, LLC, Allen’s video production company, commenced this action, which, at its core, alleges that North Carolina, its agencies, and its officials (collectively, “North Carolina”) violated Allen’s copyrights by publishing video footage and a still photograph that Allen took of the 18th-century wreck of a pirate ship that sank off the North Carolina coast. Allen and Nautilus obtained the rights to create the footage and photograph through a permit issued by North Carolina to the ship’s salvors, and Allen subsequently registered his work with the U.S. Copyright Office. Allen and Nautilus also seek to declare unconstitutional a 2015 state law —
North Carolina filed a motion to dismiss under
I
In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French merchant vessel and renamed her Queen Anne’s Revenge. Teach armed the Revenge with 40 cannons and made her his flagship. But the following year, the Revenge ran aground about a mile off the coast of Beaufort, North Carolina, and Teach abandoned her. Under state law, the ship and its artifacts later became the property of North Carolina and subject to its “exclusive dominion and control.”
More than two-and-a-half centuries later, on November 21, 1996, Intersal, Inc., a private research and salvage firm operating under a permit issued by North Carolina, discovered the wreck of the Revenge, and on September 1, 1998, Intersal, along with Maritime Research Institute, Inc., an affiliated entity, entered into a 15-year salvage agreement with the North Carolina Department of Natural and Cultural Resources (“the Department”). Under the agreement, Intersal and Maritime Research acknowledged North Carolina’s ownership of the shipwreck and the ship’s artifacts, and North Carolina acknowledged Intersal’s and Maritime Research’s salvage rights, agreeing that Intersal
As relevant to this case, the agreement provided that:
Except as provided in paragraph 20 and this paragraph, Intersal shall have the exclusive right to make and market all commercial narrative (written, film, CD Rom, and/or video) accounts of project related activities undertaken by the Parties.
The agreement, however, made an exception for the creation of a “non commercial educational video and/or film documentary” and provided that the parties would cooperate in making such an educational documentary. And Paragraph 20 provided:
The Department shall have the right to authorize access to, and publish accounts and other research documents relating to, the artifacts, site area, and project operations for non commercial educational or historical purposes. Nothing in this document shall infringe to any extent the public’s right to access public records in accordance with Chapters 121 and 132 of the General Statutes of North Carolina.
The agreement also provided:
[Maritime Research], Intersal and the Department agree to make available for duplication by each other, or, when appropriate, to provide the Department with, relevant field maps, notes, drawings, photographic records and other such technical, scientific and historical documentation created or collected by [Maritime Research], Intersal or the Department pursuant to the study of the site and the recovery of materials therefrom. These materials shall become public records curated by the Department.
Following execution of this salvage agreement, Intersal retained Nautilus, Allen’s production company, to document the salvage of the Revenge, and under that arrangement, Allen accumulated, as he alleged in the complaint, “a substantial archive of video and still images showing the underwater shipwreck and the efforts of teams of divers and archaeologists to recover various artifacts from [it].” Allen registered 13
In 2013, Allen and Nautilus took the position that the Department’s publication of Allen’s work on the Internet without his consent infringed Allen’s copyrights, and this prompted a dispute leading ultimately to a settlement agreement dated October 15, 2013, to which the Department, Intersal, Nautilus, and Allen were parties. In that agreement, none of the parties admitted to any wrongdoing but agreed to the clarification of preexisting arrangements so that the salvage operation could continue.
The 2013 Settlement Agreement divided Allen and Nautilus’s video and photographic documentation, treating some of the footage as “commercial documentaries” and some as “non-commercial media,” for purposes of clarifying the parties’ respective rights. With respect to “commercial documentaries,” the 2013 Settlement Agreement provided:
Intersal, through Nautilus, has documented approximately fifteen (15) years of underwater and other activities related to the QAR [Queen Anne’s Revenge] project. For purposes of this Commercial Documentaries section, Intersal represents to [the Department] that Nautilus Productions shall remain Intersal’s designee. Intersal shall have the exclusive right to produce a documentary film about the [Revenge] project for licensing and sale. Intersal may partner with [the Department] if it chooses to do so. . . . If [the Department] and Intersal do not partner to make a documentary, the Intersal documentary script shall be reviewed by [the Department] for historical accuracy prior to final release by Intersal or its agents. Intersal agrees to allow [the Department] to use its completed documentary, free of charge, in its museums and exhibits for educational purposes.
With respect to “non-commercial media,” the Agreement provided in relevant part:
All non-commercial digital media, regardless of producing entity, shall bear a time code stamp, and watermark (or bug) of Nautilus and/or [the
Department], as well as a link to [the Department], Intersal, and Nautilus websites, to be clearly and visibly displayed at the bottom of any web page on which the digital media is being displayed. [The Department] agrees to display non-commercial digital media only on [the Department’s] website.
As to Nautilus’s archival footage, the Agreement provided that archival footage and photographs that did not “bear a time code stamp and a Nautilus Productions watermark (or bug)” would be returned to Nautilus. But it also provided that the Department could “retain, for research purposes, archival footage, still photographs, and other media that contain a time code stamp and watermark [or bug], and as to such media [the Department] [would] provide Nautilus with a current, accurate list.”
Finally, the 2013 Settlement Agreement addressed the video footage and still photographs as public records, providing:
Nothing in this Agreement shall prevent [the Department] from making records available to the public pursuant to North Carolina General Statutes Chapters 121 and 132, or any other applicable State or federal law or rule related to the inspection of public records.
During the recovery phase of the [Revenge] project, [the Department] and Intersal agree to make available to each other records created or collected in relation to the [Revenge] project. The entity requesting copies bears the cost of reproduction. Within one (1) year after the completion of the recovery phase, Intersal shall allow [the Department] to accession duplicate or original records that were created or collected by Intersal during the project and that are related to the site, or the recovery or conservation of the [Revenge] materials. Such records shall include relevant field maps, notes, drawings, photographic records, and other technical, scientific and historical documentation created or collected by [the Department] or Intersal pursuant to the study of the site and the recovery of materials therefrom. These materials shall become public records curated by [the Department]. All digital media provided by Intersal under the terms of this paragraph shall include a time code stamp and watermarks (or bugs).
Allen and Nautilus commenced this action in December 2015, naming as defendants the State of North Carolina, the Department, the Governor, and six officials in the Department, among others. Except for the Governor, who was sued only in his official capacity, each of the individual defendants was sued in both his or her official and individual capacities. The complaint, as amended, contained five counts. In Count I, Allen and Nautilus alleged that in 2015, the defendants enacted
North Carolina filed a motion to dismiss under
From the district court’s interlocutory order, North Carolina filed this appeal, challenging the district court’s denial of immunity in all forms. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141 (1993) (recognizing the right to interlocutory appeal of an order denying sovereign immunity); Occupy Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013) (same as to qualified immunity); England v. Rockefeller, 739 F.2d 140, 142 (4th Cir. 1984), overruled on other grounds by Young v. Lynch, 846 F.2d 960 (4th Cir. 1988) (same as to legislative immunity). Allen and Nautilus cross-appealed, challenging several of the district court’s specific conclusions regarding sovereign immunity.
II
Invoking the
Allen and Nautilus disagree, arguing that North Carolina waived sovereign immunity when it signed the 2013 Settlement Agreement; that the State’s sovereign immunity was abrogated by the federal Copyright Remedy Clarification Act; and that, in any event, Ex parte Young provides them with an exception for the injunctive relief they request as to ongoing violations of federal law. We address these arguments in order.
A
The 2013 Settlement Agreement, on which Allen and Nautilus rely to argue that North Carolina waived its sovereign immunity, provides in relevant part:
In the event [North Carolina], Intersal, or [Allen and] Nautilus breaches this Agreement, [North Carolina], Intersal, or [Allen and] Nautilus may avail themselves of all remedies provided by law or equity.
Allen and Nautilus maintain that by agreeing to the availability of all remedies, North Carolina agreed that the remedies being sought in this action may be obtained from it, thereby effecting a waiver of sovereign immunity from suit in federal court.
We cannot, however, read this provision as a waiver of North Carolina’s
B
Allen and Nautilus also contend that Congress validly abrogated North Carolina’s
Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person . . . for a violation of any of the exclusive rights of a copyright owner provided by [federal copyright law].
It is well established that any abrogation of a State’s
Allen and Nautilus contend first that Congress validly enacted the Copyright Remedy Clarification Act because it properly invoked Article I’s Patent and Copyright Clause, which authorizes Congress to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
In construing the scope of § 5 power, the Supreme Court has been careful to strike a considered balance between upholding the dignity of States as sovereign entities, on the one hand, and safeguarding individual rights protected by the Fourteenth Amendment, on the other. It has accordingly explained that Congress has plenary authority to abrogate sovereign immunity for claims arising from state conduct that amounts to an actual violation of the Fourteenth Amendment’s substantive guarantees. See United States v. Georgia, 546 U.S. 151, 158 (2006) (holding that Title II of the Americans with Disabilities Act validly abrogated state sovereign immunity “insofar as [it] create[d] a private cause of action for damages against the States for conduct that actually violates
In this case, we conclude that in enacting the Copyright Remedy Clarification Act, Congress satisfied neither requirement.
First, it is readily apparent that in enacting the Copyright Remedy Clarification Act, Congress relied on the Copyright Clause in Article I of the Constitution, rather than § 5 of the Fourteenth Amendment. This invocation of Article I authority was expressly and repeatedly stated in the Act’s legislative history. See, e.g., H.R. Rep. No. 101-282, pt. 1, at 7 (1989), as reprinted in 1990 U.S.C.C.A.N. 3949, 3955 (stating that, based on “the Copyright Clause,” the bill would “effect[] a constitutional abrogation of State sovereign immunity”); S. Rep. No. 101-305, at 8 (1990) (stating that “Congress has the power under article I of the Constitution to abrogate the immunity of States” and specifically citing Congress’s “plenary power” under “the Copyright Clause”); see also Nat’l Ass’n of Boards of Pharmacy v. Bd. of Regents, 633 F.3d 1297, 1313 (11th Cir. 2011) (“The legislative history of the [Copyright Remedy Clarification Act] makes clear that Congress intended to abrogate state sovereign immunity under its Article I powers”). Neither the text of the statute nor its legislative history indicates any invocation of authority conferred by § 5 of the Fourteenth Amendment. And without such an invocation, the Act cannot effect a valid abrogation under § 5.
This was made clear in Florida Prepaid, where the Supreme Court addressed the constitutionality of the Patent Remedy Act, which abrogated the States’ immunity from suit in federal court for patent infringement. After noting that the legislative history indicated that Congress relied on the Commerce Clause, the Patent Clause, and § 5 of the Fourteenth Amendment, the Court stated that the Commerce and Patent Clauses could not sustain the Act in light of Seminole Tribe. Florida Prepaid, 527 U.S. at 636. Similarly, the Court rejected the plaintiff’s alternative argument that the Act could be justified under the Fifth Amendment’s Just Compensation Clause:
There is no suggestion in the language of the statute itself, or in the House or Senate Reports of the bill which became the statute, that Congress had in mind the Just Compensation Clause. . . . Since Congress was so explicit about invoking its authority under Article I and its authority to prevent a State from depriving a person of property without due process of law under the Fourteenth Amendment, we think this omission precludes consideration of the Just Compensation Clause as a basis for the Patent Remedy Act.
Here, the legislative history of the Copyright Remedy Clarification Act shows that Congress relied on its Article I power over copyrights and not on § 5 of the Fourteenth Amendment, similarly “preclud[ing] consideration” of § 5 as a proper basis for the Act’s abrogation of States’
Similarly, Kimel provides Allen and Nautilus with little support. The Kimel Court concluded that the Age Discrimination in Employment Act’s abrogation of sovereign immunity was invalid because it was not a congruent and proportional response to unconstitutional age discrimination by the States. See Kimel, 528 U.S. at 91–92. They argue that, because the Court reached that conclusion despite the absence of any congressional invocation of the Fourteenth Amendment by Congress, no such invocation should be required here. The Kimel Court, however, did not even mention the omission on which Allen and Nautilus rely. And more to the point, no case since Florida Prepaid has disavowed the Supreme Court’s instruction that an abrogation of sovereign immunity cannot be sustained by a source of constitutional authority that Congress never invoked.
Not only did Congress not invoke its authority under § 5, it also did not, as required, limit the scope of the Copyright Remedy Clarification Act to enforcement of rights protected by the Fourteenth Amendment. Rather, in abrogating sovereign immunity, Congress used language that sweeps so broadly that the Act cannot be deemed a congruent and proportional response to the Fourteenth Amendment injury with which it was confronted.
Our conclusion is required by Florida Prepaid, where the circumstances were analogous to those before us. The Supreme Court there concluded that the Patent Remedy Act did not appropriately enforce the Fourteenth Amendment because there was no “congruence and proportionality between the [Fourteenth Amendment] injury to be prevented or remedied and the means adopted to that end.” Florida Prepaid, 527 U.S. at 638–39 (quoting City of Boerne, 521 U.S. at 519–20). While the Court acknowledged that patents are a “species of property” and that patent infringement by States could therefore implicate the Fourteenth Amendment’s prohibition against deprivations of property without due process, it explained that a due process violation would not result merely from a State’s infringement of a patent. Id. at 642–43. Rather, the infringement would both have to go unremedied and have to be done intentionally or at least recklessly. See id. at 643, 645 (noting that “a [State’s] negligent act that causes unintended injury to a person’s property does not ‘deprive’ that person of property within
Citing at length to the legislative record of the Patent Remedy Act, the Florida Prepaid Court then determined that Congress was not faced with sufficient evidence of unconstitutional patent infringement to justify abrogation. It observed that there were fewer than 10 patent infringement suits against States in the century preceding the enactment of the Patent Remedy Act; that most state infringement was apparently accidental; and that while state remedies for governmental infringement were disuniform and rather tenuous, the evidence before Congress did not prove such remedies to be constitutionally inadequate. See Florida Prepaid, 527 U.S. at 640–45. In the Court‘s view, this evidence “suggest[ed] that the Patent Remedy Act does not respond to a history of ‘widespread and persisting deprivation of constitutional rights’ of the sort Congress has faced in enacting proper prophylactic § 5 legislation,” id. at 645 (quoting City of Boerne, 521 U.S. at 526); rather, it provided only “scant support” for the assertion that States were depriving patent owners of property without due process of law, id. at 646.
The Court then compared that evidence to the Patent Remedy Act‘s sweeping abrogation provisions, which made the States liable for patent infringement to the same extent as private parties, and concluded that the provisions were “‘so out of proportion to a supposed remedial or preventive object that [they] [could not] be understood as responsive to, or designed to prevent, unconstitutional behavior.‘” Florida Prepaid, 527 U.S. at 646 (first alteration in original) (quoting City of Boerne, 521 U.S. at 532). In
In this case, a similar legislative record and an equally broad enactment likewise leads to the conclusion that the Copyright Remedy Clarification Act‘s abrogation of sovereign immunity cannot be sustained under § 5.
While we may presume that a copyright, like a patent, is a “species of property” that could be deprived without due process in violation of the Fourteenth Amendment, not every infringement violates the Constitution, as the Florida Prepaid Court explained. To be sure, the legislative record of the Copyright Remedy Clarification Act did include some evidence of copyright infringement by States that presumably violated the Fourteenth Amendment‘s Due Process Clause. The record of such infringement, however, was materially similar to that in Florida Prepaid.
As Allen and Nautilus note, most of the evidence was compiled in a 1988 report prepared at Congress‘s request by Ralph Oman, who was then the United States Register of Copyrights. See U.S. Copyright Office, Copyright Liability of States and the Eleventh Amendment: A Report of the Register of Copyrights (June 1988) (“Oman Report“). In
This evidence plainly falls short of establishing the “widespread and persisting deprivation of constitutional rights” that is required to warrant prophylactic legislation under § 5. City of Boerne, 521 U.S. at 526. Indeed, the evidence here appears little different in quality or quantity than the historical evidence underlying the Patent Remedy Act, which was found insufficient in Florida Prepaid. Critically, in each case, Congress did not identify an extant pattern of infringement giving rise to violations of the Fourteenth Amendment across a significant number of States. See Florida Prepaid, 527 U.S. at 640. At most, the record of the Copyright Remedy Clarification Act, like that of the Patent Remedy Act, indicated that there was a potential for greater constitutional violations in the future and that Congress simply “acted to head off this speculative harm.” Id. at 641; see also House Hearing, at 7 (Statement of Ralph Oman) (explaining that the evidence of state infringement “demonstrated at least the potential for harm“); Senate Hearing, at 42 (Statement of Ralph Oman) (“[W]e do not have a great deal of hard evidence [of state copyright infringement]“).
Acting against this backdrop of limited evidence, Congress enacted the Copyright Remedy Clarification Act to make States broadly, immediately, and indefinitely accountable for copyright infringement to the same extent as private parties, imposing sweeping liability for all violations of federal copyright law, whether the violation implicates the Fourteenth Amendment or not. See
Accordingly, we conclude that the Copyright Remedy Clarification Act‘s wholesale abrogation of sovereign immunity for claims of copyright infringement is grossly disproportionate to the relevant injury under the Fourteenth Amendment, and therefore the abrogation cannot be sustained as an enactment that “appropriate[ly]” “enforce[s]” that Amendment.
In concluding otherwise, the district court sought to distinguish the record in Florida Prepaid by relying primarily on the “many examples of copyright infringements by States” in the Copyright Remedy Clarification Act‘s legislative history. In so relying, however, the court failed to consider whether any of those examples involved intentional and unremedied infringement, as Florida Prepaid clearly instructs. Also, as an alternative basis for holding that the Copyright Remedy Clarification Act had validly abrogated North Carolina‘s immunity, the district court relied on “the amount of suits filed against allegedly infringing states in recent years.” That reliance, however, did not comport with the Supreme Court‘s determination that Congress must identify a pattern of unconstitutional conduct before it abrogates Eleventh Amendment immunity. See Florida Prepaid, 527 U.S. at 639–40; see also Coleman v. Court of Appeals of Md., 566 U.S. 30, 42 (2012) (plurality opinion) (“States may not be subject to suits . . . unless Congress has identified a specific pattern of constitutional violations” (emphasis added)).
In concluding that the Copyright Remedy Clarification Act does not validly abrogate Eleventh Amendment immunity, we join the numerous other courts to have considered this issue since Florida Prepaid, all of which have held the Act invalid. See, e.g., Chavez v. Arte Publico Press, 204 F.3d 601, 607–08 (5th Cir. 2000); Issaenko v. Univ. of Minn., 57 F. Supp. 3d 985, 1007–08 (D. Minn. 2014) (collecting a dozen cases).
C
Finally, Allen and Nautilus contend that, at the very least, their claims against the state officials for injunctive and declaratory relief may proceed under the exception to Eleventh Amendment immunity recognized in Ex parte Young, 209 U.S. 123 (1908). The parties argued the issue before the district court, but the court, in light of its ruling on the Copyright Remedy Clarification Act, did not address it. Because we reverse the district court on abrogation, we address the Ex parte Young exception and conclude that the exception does not apply in this case.
Under Ex parte Young, private citizens may sue state officials in their official capacities in federal court to obtain prospective relief from ongoing violations of federal law. See Franks v. Ross, 313 F.3d 184, 197 (4th Cir. 2002); Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002). This exception to Eleventh Amendment immunity “is designed to preserve the constitutional structure established by the Supremacy Clause” and rests on the notion, often referred to as “a fiction,” that a state officer who acts unconstitutionally
Allen and Nautilus maintain that they have alleged two ongoing violations from which they seek prospective relief: (1) North Carolina‘s continuing infringement of Allen‘s copyrights and (2) its continuing enforcement of an unconstitutional statute, namely,
As to the alleged ongoing copyright infringement, Allen and Nautilus identified in their complaint six specific “infringing works” that are “now publicly viewable” at six locations on the Internet, specifying the Internet address for each. North Carolina, however, maintains that shortly before the November 2016 hearing on its motion to dismiss, it removed those allegedly infringing materials from the Internet and provided exhibits to the district court to confirm that it had done so. While Allen and Nautilus acknowledged at oral argument that the six alleged violations had ceased, they argue that the complaint nonetheless alleged generally instances of ongoing Internet infringement beside those six violations, referring to a paragraph that alleged, in a conclusory fashion, that displays of copyrighted materials were continuing “at least at th[ose] locations.” But such a general and threadbare catchall, suggesting the possibility of other infringing displays, does not plausibly allege the existence of an ongoing violation of federal law. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556–57 (2007)). In the same vein, Allen and Nautilus argue that because they alleged a history of infringements both before and after the 2013 Settlement Agreement, there is “no reasonable prospect that infringements will cease unless they are enjoined.” This argument, however, which relies on the asserted possibility that North Carolina will resume infringing Allen‘s copyrights, conflates the Ex parte Young exception with the doctrine of mootness. Even assuming that North Carolina has failed to provide reasonable assurances that it will avoid infringing Allen‘s copyrights in the future, as would foreclose the voluntary-cessation exception to mootness, it remains Allen‘s burden in the context of sovereign immunity to establish an ongoing violation of federal law to qualify for relief under Ex parte Young. See Watkins v. Blinzinger, 789 F.2d 474, 483–84 (7th Cir. 1986) (citing Green v. Mansour, 474 U.S. 64 (1985)); see also DeBauche v. Trani, 191 F.3d 499, 505 (4th Cir. 1999) (noting that Ex parte Young requires “an ongoing violation of federal law” and thus “does not apply when the alleged violation . . . occurred entirely in the past“). Because the only ongoing infringement that Allen and Nautilus plausibly alleged has concededly ended, they cannot employ the Ex parte Young exception to address their fear of future infringements.
Allen and Nautilus also identify as an ongoing violation North Carolina‘s purported continuing “enforcement” of
In this case, Allen and Nautilus sued the State, the Governor, the Department, and several Department officials, alleging at most that several of the officials supported enactment of
Accordingly, we conclude that Ex parte Young does not provide Allen and Nautilus with an exception to the Eleventh Amendment immunity claimed by North Carolina.
The North Carolina officials who were sued in their individual capacity for monetary damages contend that the district court erred in denying them qualified immunity and legislative immunity from suit. In doing so, the district court explained that these defendants were not protected by qualified immunity because “the law of [copyright] infringement is clearly established.” The court also denied them legislative immunity because it was “premature” to resolve that issue. As we explain, however, we also reverse on these issues.
Qualified immunity “shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The inquiry as to whether the law is “clearly established” is a demanding one:
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he [or she] is doing violates that right. In other words, existing precedent must have placed the statutory or constitutional question beyond debate.
* * *
The Supreme Court has repeatedly told courts . . . not to define clearly established law at a high level of generality. Thus, we consider whether a right is clearly established in light of the specific context of the case, not as a broad general proposition.
Adams v. Ferguson, 884 F.3d 219, 226–27 (4th Cir. 2018) (quotation marks and citations omitted).
Notably, the 2013 Settlement Agreement stated that “[n]othing in [the] Agreement shall prevent [the Department] from making records available to the public pursuant to
Based on these provisions of the 2013 Settlement Agreement and the then applicable public records law, it is far from clear whether the Department was prohibited from displaying Allen‘s copyrighted materials in the manner alleged in the complaint. This is especially so in view of the Department‘s role in the salvage project to preserve for the public the site and artifacts and to document their salvage in furtherance of research and the education of the public.
Of course, we need not resolve whether North Carolina‘s display of the video footage and the still photograph violated the Copyright Act to resolve the issue of qualified immunity. See Pearson, 555 U.S. at 231. What we do conclude is that reasonable officials in the position of the North Carolina officials would not have understood beyond debate that their publication of the material violated Allen‘s rights
We also conclude that legislative immunity shields the North Carolina officials in their individual capacities for their alleged involvement in the enactment of
The district court did not expressly resolve whether the individual officers were entitled to legislative immunity, concluding instead that such a ruling would be “premature.” But its deferral in ruling amounted to a denial of the immunity because the immunity protects officials “not only from the consequences of litigation‘s results, but also from the burden of defending themselves” in court. Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 732 (1980) (emphasis added); see also Nat‘l Ass‘n of Soc. Workers v. Harwood, 69 F.3d 622, 639 (1st Cir. 1995) (noting that legislative immunity is “not simply a defense to liability” but rather “an immunity from suit“). Thus, the very purpose of the immunity is thwarted when an official must expend “time and energy . . . to defend against a lawsuit” arising from his legislative acts. Bogan v. Scott-Harris, 523 U.S. 44, 52 (1998). Accordingly, the North Carolina officials can appropriately appeal the district court‘s deferral in ruling on legislative immunity.
Legislative immunity entitles public officials to absolute immunity for their performance of legislative functions. See Kensington Vol. Fire Dep‘t, Inc. v. Montgomery Cty., 684 F.3d 462, 470 (4th Cir. 2012). And it attaches whenever state officials — including those outside the legislative branch — engage in any conduct within the “sphere of legitimate legislative activity.” Id. (quoting Bogan, 523 U.S. at 54).
In this case, the North Carolina officials were sued in their individual capacities for “conspir[ing] to convert [Allen‘s] copyrighted works into public documents” through the enactment of
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For the foregoing reasons, we reverse each of the district court‘s rulings on immunity and remand with instructions that the district court dismiss without prejudice Allen and Nautilus‘s claims against North Carolina, the Department, and the public officials acting in their official capacities and to dismiss with prejudice the remaining claims against the officials in their individual capacities.