*2
which each defendant listed qualified im-
LUTTIG, Circuit Judge:
munity, but not
sovereign immunity,
Alphonso
Defendants John
among their affirmative defenses. Mason
Grant,
members
the Electoral Board of
and Grant next
moved for
judg-
Lynchburg, Virginia,
*3
ment, in which
they
motion
failed to assert
the
quashing
from
district court’s
of their
qualified
either
or sovereign immunity.
motions for summary judgment.
In those
The district
did not rule on
court
the mo-
motions, the
qualified
defendants asserted
tion,
a
ensued,
and
four-day trial
during
and sovereign
from
al-
suit for
which Mason and Grant never once assert-
legedly causing plaintiffs Inez Sales and
ed either claim of immunity. After both
Miller,
Lynchburg
Debra
former
Assistant
plaintiffs
the
and the defendants
pre-
had
Registrars,
reappointed.
to be
Sales
evidence,
sented their
Mason and Grant
and Miller have
to
moved
dismiss this
moved for dismissal under Federal Rule of
appeal, arguing
appellants
that
the
have
Civil Procedure
on grounds unrelated
right
waived their
to assert either immuni-
qualified
to
or sovereign immunity, and the
ty.
follow,
Fоr the reasons
grant
that
district court granted that motion.
the motion
part,
to dismiss in
deny that
part,
motion in
part,
affirm in
and remand
This court
and
reversed
remanded for a
proceedings.
further
Grant,
new trial
Sales v.
Mason and Grant to this responded appeal, arguing to the com- dismiss that Mason plaint by filing a motion to and have right which Grant wаived their to as- did not qualified mention sert sovereign qualified im- both and immuni- munity, and which was They ty- denied. then appellees filed Registrar, suit Mason and General Electoral and the Board capacities in both However, Grant their individual and itself as defendants. Mason and capacities in their official as members parties Grant only were the to file the sum- Electoral Board. Grant remains defendant mary judgment subject motions are the but, in both court, by order of the district appeal or to file a notice of from Mason is now defendant in motions, quashing and those are thus capacity, longer because he is no only defendants-appellants now before member of the Electoral Board. this court. complaint The section 1983 also named a Board, member third Electoral circumstances, we have no Under these
II. concluding that the defendants trouble claim that first Mason seriously their press waived their to they are entitled immunity for thе claim Miller. brought by Sales suit from the remand. time after in their motion to argue and Miller Sales addressed this court has not Although and Grant have dismiss claim of whether a this affirma right to assert their waived under the exact factual immunity is waived by failing pursue tive defense here, our conclusion present circumstances agree, I. We after Sales remand in this court’s decision finds dismiss grant therefore McGraw, 125 Corp. Industries v. assertion Suarez and Grant’s respect to Mason *4 (4th Cir.1997), in which we held immunity. qualified immunity can be qualified of that a claim qualified that im It is well-settled squarely presented to the waived if not defense, and that munity is an affirmative immunity court, qualified and district that it rests with the pleading of “the burden time the first on cannot be asserted for Britton, 523 defendant.” Crawford-El Suarez, in appeal. Id. at As 1584, 586-87, their claim pressed here defendants never (1998) (quoting Gomez v. To L.Ed.2d 759 and immunity prior appeal, to qualified of 639-641, ledo, in Suarez no doubt that the result we have (1980)). Although Mason L.Ed.2d 572 same had the defen- wоuld have been the qualified their technically pled and Grant qualified cursorily mentioned dants there to the defense in their answers immunity It is immunity in their initial answer. thus they explained never complaint, initial Suarez, that, and Mason Grant clear claim of for their legal or factual basis quali- have asserted permissibly could not remand after immunity to qualified prior I. To immunity on Sales fied Indeed, qualified of their mention Sales seriously pursue to allow Mason and Grant answers consisted immunity their for the immunity claim qualified their the mat single, cursory sentence on only a I would be to time on remand after Sales ter, affir listing in a of several contained on the their waiver of that defense forgive individual defen “The mative defenses: that court chose to fortuity mere this re- immunity by qualified protected dants are appeal. the first This mand' the case after Grant from suit.” Answer of Defendant decline to do. And, 4; at 4. Mason Answer of Defendant that above, concluding Mason although the defen as recounted right to assert have waived their opportunities other Grant had numerous dants not hold qualified we do cate their claim to remand to assert that a section 1983 defendant gorically do so. immunity, they failed to qualified qualified im any pursue must defense omitted Specifically, and Grant munity every possible occasion order immunity from their mention raise that defense preserve his and for sum motions to dismiss pre-trial Rather, we proceedings. hold later mary presentation judgment, from where, here, only a defendant trial, only that four-day and from during case their immunity cursorily As references for dismissal. post-trial their complaint, I, such, his answer to section after Sales prior to remand mention, let alone might play and thereafter fails notion that seriously his assertion of affir press, Grant’s defense a role Mason and defense, once, despite filing several dis- mative only to the court mentioned district occasion, in thе district and, positive motions the defendants even on in a trial on the mer despite participating to how any explanation as provide failed to claim, that defen- the section 1983 immunity might apply. its of why qualified actively pursue dant claim of Mason and argument Grant’s amounts to an qualified immunity for the first time on assertion that a state may convert suits, or all individual capacity remand after protections
which the
of sovereign immuni
ty would
inapplicable,
otherwisе be
into
III.
suits,
capacity
official
with all the attend
protections
ant
of the Eleventh Amend
Mason and
next argue
Grant
ment,
(via
by announcing
statute or other
they are entitled to Eleventh Amendment
wise) that it will indemnify governmental
monetary
from the suit for
dam
officers sued
their individual capacities
ages brought
Sales and
Be
Miller.
by creating
an
plan
insurance
to fi
cause Sales and
Miller seek
award of
nance that indemnification. As Sales and
damages against
Mason and Grant in
out,
point
Miller
and Mason and Grant
their
we conclude
recognize,
themselves
Appellants’
see
Re
are not
entitled to
ply Br. at
the courts of appeal have
protection from suit under the Eleventh
decisively rejected
See,
argument.
Amendment.2
e.g.,
v. Georgia
Jackson
Dep’t
Transp.,
In asserting sovereign immunity from
1573, 1577-78
Cir.1994) (“We
*5
imposition monetary liability
against
conclude that the
voluntarily
existence of a
capacities,
them their individual
Mason
liаbility
established
trust
fund does not
challenge
and Grant do not
the well-estab- make
party
the state the real
in interest in
rule that
lished
the Eleventh Amendment
this action and that the trust fund does not
generally
damages
does not bar suits for
extend the state’s Eleventh Amendment
officers,
against state
long
so
as those
immunity to its employees sued in their
officers are sued in
capaci-
their individual
capacity.”);
individual
Benning v. Board of
See,
Graham,
e.g.,
ties.
v.
Kentucky
473
Univs.,
Regents
775,
Regency
928 F.2d
159, 165-66,
3099,
105 S.Ct.
87
(7th Cir.1991) (“[T]he
778-79
statе cannot
(1985). Rather,
L.Ed.2d 114
Mason and manufacture immunity
employees
for its
because,
Grant contend that
Virgi-
under'
simply by
volunteering
indemnify
law, any monetary
nia
judgment against
them....
state’s
[A]
decision to indemni
paid
them would be
out of a state-funded
fy
employees
its
does not
transform suit
2.1-526.8,
plan,
insurance
see Va.Code
against
individual defendants into a suit
by a check drawn on the
general
state’s
against
sovereign.”);
Griess v. Colora
treasury,
do,
(10th Cir.1988)
by
1042,
suit is barred
the Elev-
1046
(“[T]he
enth
disagree.
Amendment. We
position
state’s
an
boils down to
above,
2. As noted
presently
only
sought
while Mason is
by
The
relief
Sales and Miller
only
defendant in this action in
(and
his individual
against
point,
Mason
at this
capacity. Grant remains a defendant in both
Grant)
only
capacities
in their official
is that
capacities.
and official
We un-
they (along with the other current members of
Mason)
(along
derstand Grant
with
to have
Board)
by
the Electoral
be ordered
the district
immunity only
asserted Eleventh Amendment
Registrar
court to direct General
Read to fill
monetary
sought against
as to the
relief
him
Registrar positions.
the two Assistant
See id.
capacity.
in his individual
reference
Although
apparent
why
there is no
reason
capacity portion
to the official
of the lawsuit
sovereign immunity
request
pro-
from this
portions
of Mason and Grant's briefs
spective injunctive relief would be available to
sovereign
that
immunity
prin-
discuss
is to the
Grant, see,
Jordan,
e.g.,
Edelman v.
that,
officers,
ciple
thеy
as state
cannot be
651, 667-68,
1347,
415 U.S.
personally obligated
pay monetary judg-
(1974),
L.Ed.2d 662
because we
under-
do not
against
ments entered
them in their official
stand them to have
such
asserted
capacities.
Appellants'
See
Br. at 28. Sales
any
we leave it to the district court to address
point,
and Miller do not contest this
and in-
might
such assertion of
that
be
only sought monetary
deed have
relief
made
remand.
capaci-
Mason and Grant in their individual
(complaint).
ties. See J.A. 24
Rеgents
decision in
preme Court’s
its
unilaterally'to extend
attempt
Doe,
v.
University
employees by the
all of its
immunity to
California
(1997),
900,
137 L.Ed.2d
S.Ct.
obligation for
illusory
of an
assumption
held that the
a unanimous Court
in which
constitu-
The state’s
indemnification-
would
government
the federal
fact that
artificially ma-
immunity cannot be
tional
university
litigation
indemnify a state
fashion.”); Spruytte v.
in this
nipulated
judgment did
and for
adverse
costs
(6th
Walters,
n. 6
F.2d
512 &
immu-
Amendment
not alter the Eleventh
Cir.1985) (“A
may not manu-
government
university.
Id. at
enjoyed by the
nity
employees
for its
facture
holding,
In so
the Court
absent
therefore conclude
We
by
indemni-
the Eleventh
concluding
promise
protected
In
that a
are
Grant
monetary
non-immune sta-
from the suit
does not alter the
Amendment
fication
have filed
damages
in their individual
Sales
officers sued
tus
state
capacities.4
them in their individual
from the Su-
we derive
1045;
4; Griess, 841 F.2d at
Dem
1576 & n.
present dispute, in at least three of
3. As in the
ery,
5.
above,
It is so ordered
appeal.
Jordan,
even on
Edelman v.
651, 677-78,
94 S.Ct.
39 L.Ed.2d
WIDENER,
Judge, concurring
Circuit
(1974);
Ford Mоtor Co. v. Department
dissenting:
the Treasury,
459, 467,
(1945);
Collins,
As to the II. I respectfully dissent.
For some reason not stated in opin- majority depends Corp. on Suarez ion, the majority expresses McGraw, “no opinion on Industries argument, Cir.1997), included the motion to proposition that a claim that Mason and Grant waived of qualified immunity can be waived “if not their right to assert sovereign immunity squarely presented” to the district court by failing to make that assertion and that immunity cannot be as remand I.” Slip after Sales n. 4. p. serted first time on Sua *7 court, While the district in opinion its rez did hold that where a claim of qualified 17, 1999, May similarly ques- avoided the immunity had nowhere been mentioned in waiver, tion of announcing that it “declined until appeal, the case it could not be men to entertain summary judgment new mo- tioned for the appeal, first time on it but by defendants,” tions in its order of did not hold that the rea-son was that the 25, 1999, May certifying the appeal as matter not “squarely presented to the frivolous, (italics added). considering even Eleventh district court” It used immunity, Amendment it described “the “squarely” the word in deciding that the giving defense rise to the appeal question has been presented. had not been In Sua waived because it should have been raised rez the defense had not been mentioned prior decided to the otherwise, first trial until appeal, squarely or there- respect to dismiss this immunity. with to the Maj. op. Eleventh Amendment However, Eleventh Amendment claim. p. judgment 298. But that refused to consider express opinion argument, no on the included subject. majority The then decides the in the motion to merits, Eleventh Amendment on its right Grant waived their to assert having just affirmed the district court which immunity by failing to make that assertion question. refused decide prior to remand after Sales I. * decision, majority example, The affirms judgment respect of the district court with May order of court’s in of district long-time precedent fоllowed fore we raised could be any 1999 that defense immunity, as qualified permitting after before, I mention which defense, new trial but not raised for to be affirmative other later. the first time on of Suarez is construction That strained such as an affirmative defense While opinion by de- majority
justified in the
in a
immunity must be asserted
qualified
only “cursorily
as
scribing the defense
“sufficiently
is
pleading,
responsive
majority
emphasis of the
The
mentioned.”
by
Rule 8
its bare
purposes
raised
cursory treatment
it describes as
on what
v. District Council
assertion.” Santos
adjec-
on that
by
dependence
is shown
(2d
963, 967
City,
York
619 F.2d
New
be,
adverb,
tive,
the case
or
as
Cir.1980).
Pittsburgh-
See also Kulzer
opinion.
of its
paragraphs
three successive
(2d
Cir.
Corning Corp.,
and 296.
Maj. op. pp. 295-96
1991) (statute
de
limitations affirmative
However,
any rigor
of the answers
pp. 295-96
“need not be raised
fense
following
is the
and bare asser
degree
specificity”
of the defendants
both
ous
prevent
is sufficient
affirmative dеfense:
tion
answer
waiver). Thus,
an
Grant’s
pro-
defendants are
51. The individual
swer,
defense of
pleading the affirmative
immunity from suit.
by qualified
tected
entirely satisfied the
immunity,
qualified
here,
Cursive,
means
cursory, as used
or
8(c).
Rule
requirements of
or casual manner
in an offhand
“delivered
detail.” Web
attention to
great
without
the defendants ef-
the fact that
Despite
Dictio
New International
ster’s Third
immunity as an
fectively
pleaded
the defendants
suggest that
nary, p. 558.1
defense,
majority holds
affirmаtive
explicit
more
hardly
could
have been
right to
waived their
that the defendants
adjective used
defense, and that the
their
immunity on remand
assert
the defense is
by
majority
denigrate
they did not mention
retrial because
to the
badly
place.
out of
an-
than in their
other
swers,
the dis-
subsequent
motions to
IV.
during
the trial
Sales On
trict court
who
majority
party
concludes that
contrary, I
that a defendant
submit
a Rule 50
makes a motion for
for,
granted,
moves
and is
who
ultimate-
prevails,
law and
but
a matter of
way
in no
ground,
on one
judgment based
appel-
reversed
ly has that decision
his other affirmative defenses
waives
trial,
for new
late court and remanded
are
and these defenses
pleaded,
have been
to assert a
effectively waives the
the case is remanded
available in the event
defense
pleaded affirmative
previously
trial, as here.
for a new
effect,
trial.
this hold-
during the new
Here,
not rule on the
the trial court did
moving fоr a
ing requires that a defendant
*8
motion,
summary judgment
defendant’s
possible
all
de-
judgment
Rule 50
assert
motion,
disposing of the case
any remain-
and took no action
in
or her
fenses
was
defendant’s Rule 50 motion
Even
until the
deemed waived.
ing defenses will be
the
at trial.
receiving
made
evidence
majority decision
after
place,
more out
trial
dispute that had the
beyond
It
is
pass
on all the
requires a district court
early summary
initially denied an
if it
one
court
even
considеrs
theories asserted
qualified immu-
motion claim of
judgment
them
as here. Because
dispositive,
would have been able
nity, defendants
explicitly pleaded
in
defendants
this case
immunity
in a sub-
answer,
either
assert
immunity in their
quali-
motion or at trial
sequent
have not
because
that defendants
would hold
immunity
raised at various
may be
to assert this defense on fied
waived their
See
stages
dispute.
of a
and successive
true in view
particularly
remand. This is
301
Pelletier,
299, 306-07,
Behrens v.
516
(cita-
U.S.
472
526,
U.S. at
adequately alleges the commission of
by failing
tations defense
assert
be-
acts that
clearly
violated
established
Babbitt,
fore the first
law,
the defendant
is entitled to sum-
stated,
444-45. As
mary
discovery
govern-
if
“the
fails to
uncover
ment adequately
evidence
sufficient to create a
raised
limitations de-
*9
genuine issue as to whether
fense in
the defen-
its answer—it
not required
dant
fact committed those acts.”
reassert the defense in
subsequent
suc-
*
however,
[Footnote 2] Interestingly,
Appeals
assigned
Mitchell
Court of
this Court
nor
itself dealt with the
of two
second
interlocu-
significance
aspect
to the successive
tory appeals
claims. See 472
second
515-19,
U.S. at
cessful that the
bitt, suggest F.3d at 445. issue correctly decided the Circuit
D.C. majority’s decision correct.
contrary is not
V. judgment of sum, affirming court, only goes majority not
district Court, Supreme of the advice immu questions
which is early rather than decided
nity are better Mitchell,
late, see authority against all it holds defense should not of that the merits at all. Even the district
be considered and would have relented apparently as indi post-trial, the defense
considered 25, 1999. May its order
cated judgment of the vacate
I would the case with court and remand
district consider the defense
instructions Behrens and
Kennedy v. Cleveland. America,
UNITED STATES
Plaintiff-Appellee, BOWENS, Scooter,
Spencer a/k/a a/k/a McCurdy,
Clyde, Melvin a/k/a a/k/a Johnson, Defendant-Appellant.
Doc
No. 99-4060. Appeals, Court
United States
Fourth Circuit. 29, 2000
Argued: Feb. 18, 2000
Decided: Aug.