Lead Opinion
Affirmed in part, motion to dismiss granted in part and denied in part, and remanded by published opinion. Judge LUTTIG wrote the opinion in which Judge WILLIAMS concurred. Judge WIDENER wrote an opinion concurring in part and dissenting in part.
Defendants John Mason and Alphonso Grant, members of the Electoral Board of the City of Lynchburg, Virginia, appeal from the district court’s quashing of their motions for summary judgment. In those motions, the defendants asserted qualified and sovereign immunity from suit for allegedly causing plaintiffs Inez Sales and Debra Miller, former Lynchburg Assistant Registrars, not to be reappointed. Sales and Miller have moved to dismiss this appeal, arguing that the appellants have waived their right to assert either immunity. For the reasons that follow, we grant the motion to dismiss in part, deny that motion in part, affirm in part, and remand for further proceedings.
I.
After they were not reappointed as Assistant Registrars for the City of Lynch-burg, Sales and Miller filed an action, under 42 U.S.C. § 1983, alleging that Electoral Board members Mason and Grant violatеd their constitutional rights by causing them not to be reappointed because of their political affiliations.
Mason and Grant responded to the complaint by filing a motion to dismiss, which did not mention qualified or sovereign immunity, and which was denied. They then filed separate answers to the complaint, in which each defendant listed qualified immunity, but not sovereign immunity, among their affirmative defenses. Mason and Grant next moved for summary judgment, in which motion they failed to assert either qualified or sovereign immunity. The district court did not rule on the motion, and a four-day trial ensued, during which Mason and Grant never once asserted either claim of immunity. After both the plaintiffs and the defendants had presеnted their evidence, Mason and Grant moved for dismissal under Federal Rule of Civil Procedure 50, on grounds unrelated to qualified or sovereign immunity, and the district court granted that motion.
This court reversed and remanded for a new trial in Sales v. Grant,
Mason and Grant now appeal from the quashing of their motions for summary judgment. Sales and Miller have moved to dismiss this appeal, arguing that Mason and Grant have waived their right to assert both qualified and sovereign immunity-
Mason and Grant first claim that they are entitled to qualified immunity from the suit brought by Sales and Miller. Sales and Miller argue in their motion to dismiss that Mason and Grant have waived their right to assert this affirmative defense by failing to pursue it prior to remand after Sales I. We agree, and therefore grant the motion to dismiss with respect to Mason and Grant’s assertion of qualified immunity.
It is well-settled that qualified immunity is an affirmative defense, and that “the burden of pleading it rests with the defendant.” Crawford-El v. Britton,
Although this court has not addressed the question whether a claim of qualified immunity is waived under the exact factual circumstances present here, our conclusion finds support in this court’s decision in Suarez Corp. Industries v. McGraw,
In concluding that Mason and Grant have waived their right to assert qualified immunity, we do not hold categorically that a section 1983 defendant must pursue the defense of qualified immunity on every occasion possible in order to preserve his right to raise that defense later in the proceedings. Rather, we hold only that where, as here, a defendant only cursorily references qualified immunity in his answer to a section 1983 complaint, and thereafter fails to mention, let alone seriously press, his assertion of that affirmative defense, despite filing several dis-positive motions in the district court and despite participating in a trial on the merits of the section 1983 claim, that defen
III.
Mason and Grant next argue that they are entitled to Eleventh Amendment immunity from the suit for monetary damages brought by Sales and Miller. Because Salеs and Miller seek an award of damages against Mason and Grant in only their individual capacities, we conclude that Mason and Grant are not entitled to protection from suit under the Eleventh Amendment.
In asserting sovereign immunity from the imposition of monetary liability against them in their individual capacities, Mason and Grant do not challenge the well-established rule that the Eleventh Amendment generally does not bar suits for damages against state officers, so long as those officers аre sued in their individual capacities. See, e.g., Kentucky v. Graham,
Mason and Grant’s argument amounts to an assertion that a state may convert any or all individual capacity suits, to which the protections of sovereign immunity would otherwise be inapplicable, into official capacity suits, with all the attendant protections of the Eleventh Amendment, by announcing (via statute or otherwise) that it will indemnify governmental officers sued in their individual capacities and by creating an insurance plan to finance that indemnification. As Sales and Miller point out, and Mason and Grant themselves recognize, see Appellants’ Reply Br. at 15, the courts of appeal have decisively rejected this argument. See, e.g., Jackson v. Georgia Dep’t of Transp.,
In Beardsley v. Webb,
In concluding that a promise of indemnification does not alter the non-immune status of state officers sued in their individual capacities, we derive supрort from the Supreme Court’s decision in Regents of the University of California v. Doe,
We therefore conclude that Mason and Grant are not protected by the Eleventh Amendment from the suit for monetary damagеs that Sales and Grant have filed against them in their individual capacities.
For the reasons stated herein, we grant the appellees’ motion to dismiss the appeal with respect to the appellants’ assertion of qualified immunity, deny the motion to dismiss with respect to the appellants’ claim of sovereign immunity, and affirm the judgment of the district court with respect to the appellants’ assertion of sovereign immunity. We also remand the case for further proceedings сonsistent with this opinion and the opinion of this court in Sales I.
It is so ordered
Notes
. The appellees filed suit against Mason and Grant in both their individual capacities and in their official capacities as members of the Electoral Board. Grant remains a defendant in both capacities, but, by order of the district court, Mason is now a defendant in only his individual capacity, because he is no longer a member of the Electoral Board.
The section 1983 complaint also named a third member of thе Electoral Board, the General Registrar, and the Electoral Board itself as defendants. However, Mason and Grant were the only parties to file the summary judgment motions that are the subject of this appeal or to file a notice of appeal from the quashing of those motions, and are thus the only defendants-appellants now before this court.
. As noted above, while Mason is presently a defendant in this action in only his individual capacity. Grant remains a defendant in both his individual and official capacities. We understand Grant (along with Mason) to have asserted Eleventh Amendment immunity only as to the monetary relief sought against him in his individual capacity. The only reference to the official capacity portion of the lawsuit in the portions of Mason and Grant's briefs that discuss sovereign immunity is to the principle that, as state officers, they cannot be personally obligated to pay monetary judgments entered against them in their official capacities. See Appellants' Br. at 28. Sales and Miller do not contest this point, and indeed have only sought monetary relief against Mason and Grant in their individual capacities. See J.A. 24 (complaint).
The only relief sought by Sales and Miller against Mason and Grant (and at this point, only Grant) in their official capacities is that they (along with the other current members of the Electoral Board) be ordered by the district court to direct General Registrar Read to fill the two Assistant Registrar positions. See id. Although there is nо apparent reason why sovereign immunity from this request for prospective injunctive relief would be available to Mason and Grant, see, e.g., Edelman v. Jordan,
. As in the present dispute, in at least three of the cases cited above, the state assumed by statute an obligation to indemnify its employees for awards entered against them in their individual сapacities. See Jackson,
. In rejecting Mason and Grant’s claim of Eleventh Amendment immunity on the merits, we necessarily deny Sales and Miller's motion
Concurrence Opinion
concurring and dissenting:
I.
I concur in the result only of the majority decision as to Eleventh Amendment immunity.
II.
For some reason not stated in the opinion, the majority expresses “no opinion on the аrgument, included in the motion to dismiss, that Mason and Grant waived their right to assert sovereign immunity by failing to make that assertion prior to remand after Sales I.” Slip p. 299, n. 4. While the district court, in its opinion of May 17, 1999, similarly avoided the question of waiver, announcing that it “declined to entertain new summary judgment motions by the defendants,” in its order of May 25, 1999, certifying the appeal as frivolous, and even considering Eleventh Amendment immunity, it described “the defense giving rise to the appeal has been waived because it should have been raised and decided prior to the first trial in this case.” And in that order, indeed, it went on to reason that it agreed with the plaintiffs “that these defendants may raise these motions [Eleventh Amendment and qualified immunity] with the court post-trial” because “this approach would promote judicial efficiency and economy.”
The reasons for the treatment of the issue by indirection, both by the district court and the majority, are yet to be explained and, in all events, neither has recognized the decisions of the Supreme Court and our court that Eleventh Amendment immunity may be raised at any time, even on appeal. Edelman v. Jordan,
III.
As to the question of qualified immunity, I respectfully dissent.
The majority depends on Suarez Corp. Industries v. McGraw,
That strained construction of Suarez is justified in the majority opinion by describing the defense as only “cursorily mentioned.” The emphasis of the majоrity on what it describes as cursory treatment is shown by its dependence on that adjective, or adverb, as the case may be, in three successive paragraphs of its opinion. Maj. op. pp. 295-96 and 296.
However, on pp. 295-96 of the answers of both of the defendants is the following affirmative defense:
51. The individual defendants are protected by qualified immunity from suit.
Cursive, or cursory, as used here, means “delivered in an offhand or casual manner without great attention to detail.” Webster’s Third New International Dictionary, p. 558.1 suggest that the defendants could hardly have been more explicit in their defense, and that the adjective used by the majority to denigrate the defense is badly out of place.
IV.
The majority concludes that a party who makes a motion for a Rule 50 judgment as a matter of law and prevails, but ultimately has that decision reversed by an appellate court and remanded for new trial, effectively waives the right to assert a previously pleaded affirmative defense during the new triаl. In effect, this holding requires that a defendant moving for a Rule 50 judgment assert all possible defenses in his or her motion, as any remaining defenses will be deemed waived. Even more out of place, the majority decision requires a district court to pass on all the theories asserted even if it considers one of them dispositive, as here. Because the defendants in this case explicitly pleaded qualified immunity in their answer, I would hold that defendants have not waived their right to assert this dеfense on remand. This is particularly true in view of the district court’s order of May 25, 1999 that the defense could be raised after a new trial but not before, which I mention later.
While an affirmative defense such as qualified immunity must be asserted in a responsive pleading, it is “sufficiently raised for purposes of Rule 8 by its bare assertion.” Santos v. District Council of New York City,
Despite the fact that the defendants effectively pleaded qualified immunity as an affirmative defense, the majority holds that the defendants waived their right to assert qualified immunity on remand prior to the retrial because they did not mention qualified immunity, other than in their answers, in subsequent motions to the district court or during the trial in Sales I. On the contrary, I submit that a defendant who moves for, and is granted, summary judgment based on one ground, in no way waives his other аffirmative defenses that have been pleaded, and these defenses are available in the event the case is remanded for a new trial, as here.
Here, the trial court did not rule on the defendant’s summary judgment motion, and took no action disposing of the case until the defendant’s Rule 50 motion was made after receiving the evidence at trial. It is beyond dispute that had the trial court initially denied an early summary judgment motion claim of qualified immunity, defendants would have beеn able to assert qualified immunity either in a subsequent motion or at trial because qualified immunity may be raised at various and successive stages of a dispute. See
The problem addressed in this case has been discussed at length in the decision in Kennedy and in the discussion in Behrens v. Pelletier, as follows:
While Mitchell did not say that a defendant could appeаl from denial of a qualified-immunity defense more than once,[*] it clearly contemplated that he could raise the defense at successive stages:
“Unless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Even if the plaintiffs complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.”472 U.S. at 526 ,105 S.Ct. 2806 (citation omitted).
Thus, Mitchell clearly establishes that an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a “final” judgment subject to immediate appeal. Since an unsuccessful appeal from a denial of dismissal cannot possibly render the later denial of a motion for summary judgment any less “final,” it follows that petitioner’s appeal falls within § 1291 and dismissal was improper.
Behrens,
A case on facts indistinguishable, for аll practical purposes, from those here is Daingerfield Island Protective Society v. Babbitt,
V.
In sum, in affirming the judgment of the district court, the majority not only goes against the advice of the Supreme Court, which is that questions of qualified immunity are better decided early rather than late, see Mitchell,
I would vacate the judgment of the district court and remand the case with instructions to consider the defense of qualified immunity under Behrens and Kennedy v. City of Cleveland.
The majority decision, for example, affirms the judgment of the district court with respect to Eleventh Amendment immunity. Maj. op. p. 298. But that judgment refused to consider the subject. The majority then decides the Eleventh Amendment question on its merits, having just affirmed the district court which refused to decide the question.
* [Footnote 2] Interestingly, however, Mitchell itself dealt with the second of two interlocutory appeals on immunity claims. See