# Howard v. Suskie

> Court of Appeals for the Eighth Circuit · June 15, 1994 · 26 F.3d 84

URL: https://www.frixlaw.com/law-library/cases/6931019

## Case

- **Full name:** The Reverend W.G. HOWARD v. John T. SUSKIE, Manager, Little Rock Office of the United States Department of Housing and Urban Development, in his individual capacity, Department of Housing and Urban Development Henry Cisneros, Secretary, in his official capacity Mary Sharp Rita Smith
- **Court:** Court of Appeals for the Eighth Circuit
- **Decided:** June 15, 1994
- **Citations:** 26 F.3d 84; 1994 WL 259077
- **Precedential status:** Published
- **Opinion:** Concurrence by Gibson
- **Judges:** Gibson, Kyle, Loken
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6931019

## How later opinions describe it (automated extraction)

- noting crucial distinction between agency actions which begin or are part of a judicial or quasi-judicial administrative process, and agency actions which are independent of such a process
- noting that “correctability of error on appeal” does not alone “provide sufficient checks on agency zeal to justify absolute immunity”
- reversing district court’s refusal to grant summary judgment on qualified immunity defense

## Opinion text

JOHN R. GIBSON, Senior Circuit Judge,
concurring separately.
I concur in the court’s judgment, but write separately to express my view that Suskie is entitled to absolute immunity.
*88 An agency official is entitled to absolute immunity from liability for damages for “judicial, prosecutorial and legislative” acts, but not for administrative functions. Harlow v. Fitzgerald, 457 U.S. 800, 811 , 102 S.Ct. 2727, 2734 , 73 L.Ed.2d 396 (1982); see Butz v. Economou, 438 U.S. 478, 514 , 98 S.Ct. 2894, 2914 , 57 L.Ed.2d 895 (1978); Jackson v. Rapps, 947 F.2d 332, 338 (8th Cir.1991). “An agency official ... may have broad discretion in deciding whether a proceeding should be brought and what sanctions should be sought,” and therefore an official performing functions akin to a prosecutor’s tasks is protected by absolute immunity. Butz, 438 U.S. at 515 , 98 S.Ct. at 2915 . Absolute immunity attaches to an official’s function, not to his position. Burns v. Reed, 500 U.S. 478, 485 , 111 S.Ct. 1934, 1939 , 114 L.Ed.2d 547 (1991). The official seeking absolute immunity bears the burden of establishing it for the function in question. Buckley v. Fitzsimmons, — U.S. -, -, 113 S.Ct. 2606, 2613 , 125 L.Ed.2d 209 (1993).
I believe Kwoun v. Southeast Missouri Professional Standards Review Organization, 811 F.2d 401, 406 (8th Cir.1987), cert. denied, 486 U.S. 1022 , 108 S.Ct. 1994 , 100 L.Ed.2d 226 (1988), controls this case. In Kwoun , in determining whether the officials’ function of imposing administrative sanctions was prosecutorial in nature, we focused on whether the decision was subject to review and whether the procedural protections under the applicable regulations offered a mechanism to rectify improper sanction decisions. Id. at 406 .
The applicable Department regulations allow an individual who has been sanctioned to request an administrative conference to “present all relevant information” to the agency official presiding over the conference. 24 C.F.R. § 24.712 (1993). If the sanctioned individual is not satisfied with the decision the presiding official issues after the conference, the affected person may request a hearing before an administrative law judge. See 24 C.F.R. § 24.713 . The agency’s final decision is also subject to review under the Administrative Procedures Act, 5 U.S.C. § 701 (1988). See Darby v. Cisneros, — U.S. -, -, 113 S.Ct. 2539, 2543 , 125 L.Ed.2d 113 (1993). Here, contrary to the court’s characterization that Suskie acted independently of a “lengthy, integrated, quasi-judicial process,” the affidavits submitted by Suskie in support of his motion for summary judgment indicate that the sanctions were imposed in compliance with the applicable regulations, that Howard requested a formal hearing, and that a hearing was scheduled but cancelled when the sanctions were voluntarily withdrawn by the Department’s officials. Because the sanctions imposed were subject to review and the regulations provided a sufficient mechanism to correct improperly imposed sanctions, Suskie is entitled to absolute immunity for his actions.
The court today refuses to follow controlling circuit precedent in Kwoun .
I would reverse the order denying Suskie’s motion for summary judgment, because he is entitled to absolute immunity.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6931019. Public record. Not legal advice.