*1 (Whitе, J., concurring). by at 1301-02 Jus- among alternatives various made es- responsible expressed agreement her tice O’Connor official or the respect to the policy with tablishing approach separate final with Justice White’s question.” Id. at 1300. in subject matter concurrence. II-B in Part was contained
This standard us, the unlawful In the case before act approval of the opinion. It received firing) clearly (retaliatory was unlawful at Moreover, the one of justices.2 only four committed, it and the munici- the time was White, the stan- four, interpreted Justice (a munic- pal official who committed the act deciding to cast narrowly. In quite dard obey ipal judge) expected traffic was Justice White majority, with vote presumably and swore to do so when law the unlaw- upon the fact that heavily relied such, judge “cannot he took office. As (a forcible Pembaur ful act committed authority to have to make be said [had] warrant) was not a search entry without * * * in- [employment] policy” which was Based on time committed. at the unlawful In consistent with the law. Id. at 1301. fact, to infer he found it reasonable this words, decision to fire other Butler’s Wil- officials’ decision to municipal that * * * law liams was “forbidden [the] act was consistent the unlawful commit ** * then was a [and decision] [he] policy. But this inference municipal with * * * authority to make.” Id. at had [no] proper, been Justice White would not have such, City 1302. As cannot be held continued, if the unlawful act had been responsible for Butler’s aberrant act. federal, state, or local law at illegal under point act committed. His the time the was following state- demonstrated with the
was
ments: ex- enforcement officers are
Local law ordinarily
pected obey the law and they to do so when take office.
swear controlling places limits
Where authority, they cannot be said to on their Kenneth POOLMAN authority contrary poli- to make hаve Poolman, Appellants, cy. prosecutor Had the sheriff or this existing warrant case failed to follow say requirement, it would be absurd to NELSON, Appellee. Gerald executing that he was nevertheless coun- entry ty policy authorizing the forceful No. 85-5401. stranger say in this case and even Appeals, United States Court county if sheriff would be liable Eighth Circuit. out had secured a warrant and it turned magistrate that he and the had mistaken- May Submitted ly thought probable there cause for Sept. Decided If or mistaken warrant. deliberate this, contrary to local admittedly acts like
law, expose liability, it county respondeat supe-
must be on basis of not officers’ acts
rior and because the
represents policy. local Likewise, Brennan, J., (O’Connor, concurring). Jus- concurring justices 2. The four White, Marshall, joined judgment Blackmun. Justice O’Con- but not Pаrt tice Stevens in the joined her join nor in the but refused opinion. refusal to Part II-B of the His approval because of a “fear that the of Part II-B municipali- founded on his view II-B was may majority mis- standard the articulates respondeat superior liable under a ties can be liability beyond expose municipalities to read to theory. that envisioned Court in Monell." Id. *2 Boucher, Forks, N.D., O. Alvin of Grand appellant. Small, Atty., M. U.S. Robert Asst. Minn., for Minneapolis, appellee. LAY, Judge, Chief and HEANEY Before GIBSON, Judges. R. Circuit JOHN GIBSON, Judge. R. JOHN Circuit appeal Poolman Kenneth summary judgment against entered from a misrepresentation their them on fraudulent against regarding claim Gerald Nelson Jef- application for a farm frey Poolman’s loan. aрpeal issue in this is whether the sole holding Nelson, district court1 erred Devitt, United The Honorable Edward J. nesota. Judge States for the Min- District District of repeated Sep- on These statements were States Farmers the United employee of tember 8. Administration, absolutely im- Home alleged tor- liability because mune from assurances, Jeffrey Relying on Nelson’s pe- the outer tious actions property at acquired farm duty. The Poolmans his line of rimeter of $156,500, September 8 sale with a bid affords of this circuit the law contend that the amount Nelson stated be covered *3 official from common a federal immunity to required the FmHA loan. To meet the by only if that official was liability tort percent payment, down Kenneth Pool- ten of perimeter acting both $15,650 local man obtained from a bank in the exercise engaging authority and his Nelson exchange for demand note. function, they fur- discretionary a of employee processed promised the bank who court erred the district argue that ther the FmHA loan the bank loan that would Nel- summary judgment because granting immediаtely forthcoming. Nel- Without be We affirm these tests. both of son failed assurances, Jeffrey repeated Pool- son’s the district court. of judgment property on the not have bid at man would sale and Kenneth Poolman the estate summary reviewing grant of When $15,650 bank not have obtained would in the must be viewed all facts judgment, loan. opposing party light favorablе to most motion, giving party the benefit $15,650 Jeffrey made the down Poolman from inferences to be drawn all reasonable signed to payment. He then a contract States, 719 Mandel v. United the facts. property, payment farm purchase the with (8th Cir.1983). so state We $140,850 by F.2d 963 balance due October the dis- on the record before provided facts based to 1982. The contract that failure trict court. result in forfei- payment make this payment. ture of the down 1982, Jeffrey applied Poolman April
In the Farmers Home Adminis- informed for a loan with In late October Nelson Department application States that the loan had tration of the United the Poolmans Hallock, (FmHA). Minnesota processed to use Agriculture Hе intended be 6, 1982, FmHA Yet on December office. purchase property farm at an the loan that Nelson had 8, Kenneth Poolman learned September for estate sale scheduled application to the Hallock not sent the loan filed, application the loan was 1982. When office. parents, his Jeffrey Poolman lived with Poolman. Vеrona Kenneth and Verona Jeffrey by was denied Poolman’s loan County employed was as a Officer Poolman A 1982. letter telephone on December Warren, FmHA
Assistant in the Minnesota Director, FmHA dated Jan- from the State office, although leave she was on medical 21, 1983, confirmed this denial. uary 1982 to June 1983. from March that, things, the letter stated Among other application, Jeffrey Pool- since the date County employed Nelson Gerald was ineligible for the loan because man was FmHA. After the Poolman Supervisor for prohibits loans FmHA Instruction 2045-BB filed, application Jeffrey and Ken- loan employee. FmHA family of an to a member frequently neth Poolman asked Nelson mother, Verona, was Jeffrey Poolman’s application. Nelson about the status of the by April FmHA in employed repeatedly assured the Poolmans that the approved. process loan was in and would be unable to obtain Jeffrey Poolman was prior September January During financing, the weeks and on alternative sale, payment told the Poolmans on was forfeited. еstate Nelson the down application brought in a Min- that the loan then several occasions This lawsuit was office, FmHA and removed to Unit- sent to the state nesota state court had been weeks, al- court. The Poolmans six ed States district approved that it would be repeated assurances leged that Nelson’s could and should and that the Poolman loan concerning the status of property. on the estate sale farm bid action for Office created a cause of of Rent Stabilization im- application absolutely Upon misrepresentation. Nel- mune from claims of brought fraudulent defamation motion, the entered district court upon son’s subordinates based press summary Nelsоn, concluding release issued expressing Director Nelson, official, is a federal immune to suspend his intention the subordinates. liability common law tort because In defining scope of immunity, the alleged tortious action was within the outer “The Court stated: fact the action of Nelson’s line Pool- perimeter here taken was within the outer Nelson, 6-85-1360, slip oр. at 1 Civ. man petitioner’s duty enough * * (D.Minn. 1985). Oct. privilege applicable render the at S.Ct. reviewing
In
a district court decision
judgment,
granting
summary
a motion for
Affording immunity from common law
apply
same standard as
district
we
liability
tort
federal
acting
with-
States,
Mandel v.
court.
United
in the outer
of their duties fos-
Summary judgment should
at 965.
expressed by
ters the concerns
the Court in
*4
genuine
grantеd only where there is no
Barr.
moving party
of material fact and the
issue
thought important
It has been
offi-
of
is
to
as a matter
law.
entitled
government
cials of
should be free to
Summary judgment
remedy
is an extreme
exercise their duties unembarrassed
granted
moving
not to
and is
unless
damage
the fear
respect
of
suits in
of
judg-
right
has established his
to a
party
acts done in the course of those duties—
clarity
with such
no room
ment
as to leave
suits which would consume
en-
time and
controversy,
party
for
and the other
not
ergies
which
otherwise be devoted
any
to recover
discernible
entitled
under
governmental
to
service and the threat
Id.;
v.
circumstances.
see also Portis
Folk
might appreciably
of which
inhibit
Cо.,
520,
(8th
522
694 F.2d
Construction
fearless, vigorous,
effective adminis-
and.
Cir.1982).
policies
government.
of
tration of
The Poolmans first contend that
dis-
571,
at
S.Ct. at
Id.
79
summary judg-
in granting
trict court erred
Accordingly, this court has found federal
solely
finding
ment based
on a
that Nel-
acting within
perimeter
officials
the outer
alleged tortious
was within
activity
son’s
duty
of
of
their line
immune from common
perimetеr
duty.
of
the outer
of his line
liability without expressly
law tort
distin-
argue
They
in order for a federal
guishing discretionary
ac-
and ministerial
official
be immune from
common
See, e.g.,
Seiler,
tivity.
Bushman v.
755
liability,
requires
of
tort
law this circuit
655-56;
704
Busby,
Johnson v.
that the
both
official’s actions
within
Likewise,
F.2d at 420.
this court has found
duty
perimeter of
the outer
his line of
subject
personal liability
federal offiсials
official
engaged
that the
in the exer-
activity
activity
because their
tortious
discretionary
cise of
function.
perimeter
was not
the outer
of
within
their
enjoy immunity
Federal officials
duty
expressly drawing
line of
without
liability
common law tort
for actions
from
discretionary
line between
and ministerial
perimeter
within
of
taken
the outer
their
See,
aсtivity.
e.g., Bishop Tice,
v.
622 F.2d
See,
Seiler,
duty.
v.
e.g.,
line of
Bushman
(8th
349,
Cir.1980).
359-60
(8th Cir.1985);
755 F.2d
655-56
John
(8th
Busby,
say
704 F.2d
Cir.
is not to
son v.
This
that the discre
curiam).
1983)(per
holdings
activity
prior
tionary
Our
con
or ministerial nature of an
cerning
determining
immunity of federal
is never relevant
whether
pe
liability
common law tort
stem from an official’s acts are within the
outer
Matteo,
authority.
v.
360 U.S.
79 S.Ct.
rimeter of his
of
Un
Barr
(1959).
perimeter
outer
doubtedly,
3 L.Ed.2d
There the
this
fluctuates
degree
discretionary
Acting
found the
of the
in relation
of
Director
hand,
the other
is not
responsibilities,” on
In some
an official.
authority afforded
at
79 S.Ct. at
necessary
easily
to determine
resolved.
it is
situations
Yet,
government
we feel Barr indicates that
afforded
degree of discretion
allowing
degree
ascertain whether
of discretion embodied
in order
official
perimeter
outer
of
particular
function to remain
official acted
See, e.g., Youngstrom v.
duty.
bright-line
opposed
requiring
factor—as
(8th Cir.1971);
948, 950
Dunn,
discretionary
min-
distinctions between
Sederstrom, 429 F.2d
99-100
can better resolve this
Gross
isterial acts—courts
require the often
Cir.1970). But to
(8th
Thus, we hold under Barr and
conflict.
discretiоn-
between
distinction
amorphous
that the dis-
court’s recent decisions
this
prerequisite to
acts
ary and ministerial
concluding
not err in
trict court did
only
immunity exists
determining whether
immune from common law tort
Nelson is
question
from the central
focus
shifts the
finding
actions
liability
on its
that his
based
complained of acts were
of whether
his line
the outer
were within
scope of
the officer’s
sufficiently within
duty.3
enjoy immu-
that he should
authority such
argue
dis-
further
that the
Poolmans
fearless, vigor-
“the
nity in
to assure
order
concluding
there was no
court erred
trict
policies
ous,
administration
and effective
of material fact as to wheth-
genuine issue
Matteo, 360 U.S.
Barr v.
government.”
repeated assurances to
er Nelson’s
at 1339.
79 S.Ct.
concerning
Poolmans
the status
recognize that some circuits
We
loan was an
discretionary function re
adopted the
have
Nelson’s line of
*5
determining
an element in
quirement as
contend
specifically,
More
the Poolmans
a
official is immune from
a federal
whether
exceeded this
of authori-
that Nelson
tort cause of action.2 The
common lаw
assuring
the loan would be
ty by
protec
for “the
between the desire
conflict
when,
fact,
in
it had no chance of
granted
against pecuni
citizen
of the individual
tion
mother
Jeffrey Poolman’s
success because
mali
damage
by oppressive
caused
or
ary
employee.
an FmHA
part
of officials of the
cious action on
applied the test
The district court
hand,
Government,” on the one
Federal
Sederstrom, 429
v.
enunciated
Gross
protection
public
“the
of the
the need for
96,
determine whether an official
shielding responsible govern
interest
perimeter of his
acted within the outer
has
against the harassment and
mental officers
duty:
act must have more or
line of
or ill-found
inevitаble hazards
vindictive
“[T]he
general matters
connection with the
damage
brought on account of
less
ed
suits
control or
by law to the officer’s
in the exercise of their official
committed
action taken
—
-,
822,
Smith,
1015,
See,
309
palpa
supervision,
manifestly
thority
not be
or
effectively
emasculate
—would
authority.”
(quot
bly beyond
immunity
Id. at 100
wrong-
defense. Once the
(5th
McShane,
ing
332
855
Norton v.
F.2d
ful
are
an
acts
excluded from exercise of
981,
Cir.1964),
denied, 380
85
cert.
U.S.
authority, only
innocuous
re-
1345,
(1965)).
S.Ct.
vate
to further
individuals
the services
Matteo,
Barr v.
79
U.S. at
S.Ct. at
provides
FmHA
individuals and enti
1335; Spalding
Vilas,
161 U.S.
ties in
Supervisor’s geographic
area.
(1896);
S.Ct.
L.Ed. 780
Gross v.
We cannot conclude that Nelson exceeded Sederstrom,
fense: separate activity that constitutes
[T]o wrong surrounding from its con- proper
text—an of au- otherwise exercise large county relatively 4. The Introduction states: or varied unit has a significant heavy volume in a and principal agency repre- incumbent specialized programs diverse number of re- sentative, head and and office rural assistance quiring temporary fulltime and also sometime development specialist geographical area professional support subordinate and assist- respon- consisting of or more counties onе skills, range knowledges, broad ance. A supervi- sible for technical and administrative including professional Agricul- and abilities agricultural sion of a diversified and rural ture, business, financial, realty and ad- loan, guaranteed housing Makes, grant, program. management required. ministrative are supervises and services to both loans difficult, Des.App. at 16. groups involving individuals and