Expeditions Unlimited Aquatic Enterprises, Inc., a Corporation, Norman Scott v. Smithsonian Institution

SPOTTSWOOD W. ROBINSON, III, Circuit Judge,

with whom J. SKELLY WRIGHT, Circuit Judge, joins, concurring:

This case cannot plausibly be distinguished from Barr v. Matteo 1 and surely we are not at liberty to disregard the Supreme Court’s unmistakable holding therein. Perhaps that is all that really needs to be said. Frankness, however, compels me to admit increasing difficulty in reconciling Barr with other strands of jurisprudence evolving on the amenability of public servants to suits for damages. 2 I join in the disposition of this case, then, not out of any ability to divine the ultimate schematism of this area of the law, but because of the judge’s duty to abide controlling precedent.

*300 Few would suggest that public officers be made answerable in damages for good-faith errors in judgment, even when the result is exceedingly unfortunate. Fewer still would condone venally or maliciously motivated acts by public functionaries or their ofttimes appalling consequences. If recompense to. victims implicated no more than the purses of callous bureaucrats, there would be no need for official immunity, for the availability of some sort of good faith defense would suffice to separate the sheep from the goats.

The problem is not nearly so simple, however, because a great deal more than monetary liability is at stake. The ease with which malice can be charged leaves open the possibility that even the conscientious public servant will be dogged by suitors. The mere prospect of a lawsuit may deter even the otherwise courageous official from the full and ardent discharge of altogether lawful duties, lest he become enmeshed in vexatious, though unfounded, litigation.

When an officer thus deviates from whole-hearted conservation of the common weal, the public interest is to that extent disserved. The virtue of absolute immunity for public functionaries, as well as its sole justification, is that it safeguards against that measure of disservice. So it was that, with full appreciation of society’s weighty interest in fairness to those injured by improper manipulation of the levers of government, the Barr Court struck the balance on the side of averting litigation of defamation claims, whether ill-founded or not, arising from statements made in the line of federal duty. 3 “[TJhere may be occasional instances of actual injustice which may go unredressed,” the Court said, “but we think that price a necessary one to pay for the greater good.” 4 And, by extension of Barr, the generally accepted rule today is that the federal officeholder is totally immune to suit for damages attributed to any common law tort emanating from non-ministerial conduct within the outer perimeter of his official authority. 5

Developments in related quarters, however, have introduced asymmetry in the *301 field of official immunity. More than a century ago, by what is now 42 U.S.C. § 1983 , Congress authorized civil actions by those deprived of federally secured rights through action under color of state law. 6 Much more recently, notwithstanding the facial broadness of Section 1983, the Supreme Court has recognized immunities for state officers from civil damage suits thereunder. 7 Unlike the invariably absolute immunity which Barr attaches to non-ministerial activity precipitating common law tort actions against those in federal service, immunity inherent in the functions of particular state offices for purposes of Section 1983 may be either absolute or qualified. 8 More importantly, the process of formulating Section 1983 immunities has involved careful appraisal of the degree to which the operations of the office might be impaired by the specter of groundless suit, and a weighing of the assessment thereon against the remedial purposes of the statute. 9 This category-by-category approach to immunity determinations, sensitive both to costs and to benefits, stands in sharp contrast to the Barr choice of immunity, which varies neither with the value of the premium it confers nor with the potential for harm it leaves in its wake.

Of course, congressional specification in Section 1983 of a right to monetary relief rules out judicial interposition of absolute immunity, 10 save only where a court may infer that Congress did not intend the statute to operate. 11 On the other hand, damage actions against federal officials for transgression of common law norms, such as the defamation action that was Barr, do not encounter any manifestation of legislative will that might stifle judicial implication of unlimited and unqualified immunity. What brings this doctrinal consonance to the point of discord is the still-developing body of law shaping the suability of federal *302 functionaries for damages charged to unconstitutional depredations. There, as in the situation Barr epitomizes, the judicial hand is unfettered by the legislature’s command; 12 yet, since the Section 1983 immunity decisions have been deemed authoritative, 13 the immunity in vogue in that area may be either qualified or absolute. 14 The upshot is that one kind of judicially-fashioned immunity is available to federal officials in fending off damage suits founded on constitutional claims, and quite another — the Barr -type — to such officials in repulsing suits invoking the common law. 15

The incongruity between immunities available to the same officer exercising the same functions, depending only upon the genesis of the legal standard by which his behavior is to be measured, strikes at the very foundations of the Barr rule. Many if not most constitutional torts have analogues in the common law. 16 Thus the official who finds himself charged with a tort of each sort — a common posture 17 — -may assert against the common law claims his Barr immunity, but the travail of litigation — which that immunity is designed to spare him — largely remains since he still *303 has the burden of defending on the constitutional claim, albeit on the basis of qualified privilege. Friction with Barr runs even deeper, since the same commonsense assumption that underlies its holding suggests that far-sighted officials will guard against vexatious litigation rooted in the Constitution. One may thus question how much their resoluteness in job performance will be bolstered by Barr’s assurance of absolute immunity, which protects them only from the same annoyance couched in the principles of the common law.

That constitutional rights have a status in our jurisprudence which common law rights can never attain does not satisfactorily explain the line presently drawn. 18 If its justification lies in our greater willingness to risk exposure of public servants to personal liability when vindicating constitutional rights than when enforcing more pedestrian legal norms, one may wonder whether absolute immunity ought ever to be conferred in constitutional tort actions, as indeed it sometimes is. 19 One may also suspect that in such actions, no less than in Section 1983 suits, the constitutional origins of the plaintiff’s claim may be less efficacious than the historical stature of particular immunities in the determination of whether the protection from suit is to be qualified or absolute. 20

I speak to these matters to acknowledge a dilemma, and not in any endeavor to orchestrate the field of public-servant liability, in which the Supreme Court occupies by far the major role. It may be that further enlightenment will come from the Court’s forthcoming Economou decisions. 21 In any event, my bounden duty at the moment is to follow Barr, in my view without any effort at reexamination of its holding or its rationale. For “[s]ave only for the exceptional cases where the proper decisional result is very clear, it is for the Supreme Court, not us, to proclaim error in its past rulings, or their erosion by its adjudications since.” 22

. 360 U.S. 564 , 79 S.Ct. 1335 , 3 L.Ed.2d 1434 (1959).

. See notes 6-20 infra and accompanying text.

. 360 U.S. at 571-576 , 79 S.Ct. at 1339-1342 , 3 L.Ed.2d at 1441-1444 .

. Id at 576, 79 S.Ct. at 1342 , 3 L.Ed.2d at 1442 .

. See, e. g., David v. Cohen, 132 U.S.App.D.C. 333, 337 , 407 F.2d 1268, 1272 (1969) (defamation, abuse of process and malicious prosecution) and cases cited therein; Berberian v. Gibney, 514 F.2d 790, 793 (1st Cir. 1975) (abuse of process); Peterson v. Weinberger, 508 F.2d 45 , 52 (5th Cir.), cert. ndenied, 423 U.S. 830 , 96 S.Ct. 50 , 46 L.Ed.2d 47 (1975) (interference with contractual relations); Estate of Burks v. Ross, 438 F.2d 230, 234-236 (6th Cir. 1971) (negligence); Ruderer v. Meyer, 413 F.2d 175 , 178-179 (8th Cir.), cert. denied, 396 U.S. 936 , 90 S.Ct. 280 , 24 L.Ed.2d 235 (1969) (defamation and conspiracy); Sowder v. Damron, 457 F.2d 1182 , 1184— 1186 (10th Cir. 1972) (intentional infliction of emotional distress). See generally K. Davis, Administrative Law of the Seventies, § 26.00-2 at 580 (1976); K. Davis, Administrative Law §§ 26.01, 26.04 at 871, 875-880 (1970 Supp.).

Under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 et seq. (1970 & Supp. V 1975), one who is injured by “the negligent or wrongful act or omission of any employee of the [Federal] Government while acting within the scope of his office or employment” has an action against the Government, 28 U.S.C. § 1346 (b) (1970), and that remedy, where it obtains, is exclusive. 28 U.S.C. § 2679 (a) (1970). But 28 U.S.C. § 2680 (h) (Supp. IV 1974) exempts generally certain intentional torts from the operation of the Act. As a means of accommodating the antagonistic interests at stake in cases like that at bar, it has been urged that these exemptions be repealed, thus enabling the victim to recover from the Government but not the officer — who might then be the more susceptible to sanctions for misbehavior since the damage award would be coming out of his superior’s budget. See K. Davis, Administrative Law of the Seventies, supra, § 26.03 at 584-597. See also Davis, An Approach to Legal Control of the Police, 52 Tex.L.Rev. 703, 720 n.47 (1974).

Congress has in fact taken a step in that direction by amending the Federal Tort Claims Act to permit recovery exclusively against the Government on claims of “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” against federal investigative or law enforcement officers. Act of Mar. 16, 1974, Pub.L. No. 93-253, 88 Stat. 50, 28 U.S.C. §§ 2679-2680 (Supp. V 1975). The amendments as originally proposed would have extended to all federal employees, but were ultimately reduced to their present form. See Boger, Gitenstein & Verkuil, The Federal Tort Claims Act Intentional Torts Amendments: An Interpretative Analysis, 54 N.C.L. Rev. 497, 517 (1976).

. What is now 42 U.S.C. § 1983 (1970) was enacted in 1871 in order to supplement preexisting criminal penalties with civil remedies. See Monroe v. Pape, 365 U.S. 167, 171 , 81 S.Ct. 473, 475-76 , 5 L.Ed.2d 492, 496-497 (1961); Developments in the Law — Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1155 (1977). Federal jurisdiction to entertain § 1983 actions is conferred by 28 U.S.C. § 1343 (3) (1970).

. The Court first addressed the issue in Tenney v. Brandhove, 341 U.S. 367, 376 , 71 S.Ct. 783, 788 , 95 L.Ed. 1019, 1026-1027 (1951) (legislators immune from liability in damages when “acting in the sphere of legitimate legislative activity”). Earlier cases had not adverted to the possibility of such immunities. See, e. g., Smith v. Allwright, 321 U.S. 649 , 64 S.Ct. 757 , 88 L.Ed. 987 (1944); Lane v. Wilson, 307 U.S. 268 , 59 S.Ct. 872 , 83 L.Ed. 1281 (1939); Nixon v. Condon, 286 U.S. 73 , 52 S.Ct. 484 , 76 L.Ed. 984 (1932); Nixon v. Herndon, 273 U.S. 536 , 47 S.Ct. 446 , 71 L.Ed. 759 (1927). The Court has also construed § 1983 as affording absolute immunity to state judges. Pierson v. Ray, 386 U.S. 547, 554-555 , 87 S.Ct. 1213, 1217-1218 , 18 L.Ed.2d 288, 294-295 (1967), and prosecutors, Imbier v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976). A qualified, “good faith” immunity under § 1983 has been extended to the superintendent of a state mental hospital, O’Connor v. Donaldson, 422 U.S. 563, 577 , 95 S.Ct. 2486, 2494-2495 , 45 L.Ed.2d 396, 408 (1975); members of a school board and other school officials, Wood v. Strickland, 420 U.S. 308, 321-322 , 95 S.Ct. 992, 1000-1001 , 43 L.Ed.2d 214, 224-225 (1975); the governor and other high state executive officers, Scheuer v. Rhodes, 416 U.S. 232, 247-248 , 94 S.Ct. 1683, 1692 , 40 L.Ed.2d 90, 103-104 (1974); and police officers, Pierson v. Ray, supra, 386 U.S. at 557 , 87 S.Ct. at 1219 , 18 L.Ed.2d at 296 .

. See note 7 supra.

. Compare, e. g., Imbler v. Pachtman, supra note 7, 424 U.S. at 424 -A25, 96 S.Ct. at 992 , 47 L.Ed.2d at 140 (threat of suit “would undermine performance of [a prosecutor’s] duties” because of 'the frequency with which a disgruntled defendant would “transform his resentment . . . into the ascription of improper and malicious” motives), with Wood v. Strickland, supra note 7 , 420 U.S. at 320 , 95 S.Ct. at 1000, 43 L.Ed.2d at 224 (“absolute immunity [is not] justified since it would not sufficiently increase the ability of school officials to exercise their discretion ... to warrant the absence of a remedy”), and Scheuer v. Rhodes, supra note 7, 416 U.S. at 243 , 94 S.Ct. at 1690 , 40 L.Ed.2d at 100 (“[fjinal resolution of [the immunity] question must take into account the functions and responsibilities of these particular defendants . . ., as well as the purposes of 42 U.S.C. § 1983”).

. See Scheuer v. Rhodes, supra note 7, 416 U.S. at 243 , 94 S.Ct. at 1690 , 40 L.Ed.2d at 100 .

. See, e. g., Pierson v. Ray, supra note 7, 386 U.S. at 554 , 87 S.Ct. at 1218 , 18 L.Ed.2d at 295 ; Tenney v. Brandhove, supra note 7 , 341 U.S. at 376 , 71 S.Ct. at 788 , 95 L.Ed. at 1026-1027 .

. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 394 , 91 S.Ct. 1999, 2004 , 29 L.Ed.2d 619, 625-626 (1971) (the “Federal question” whether Fourth Amendment rights have been invaded involves a claim independent of statute, “both necessary and sufficient to make out the plaintiffs cause of action”). Cf. K. Davis, Administrative Law of the Seventies, supra note 5, § 26.00-2 at 583-584 (noting that “[t]he Barr case applies to common law torts, and the Supreme Court in Bivens created a new federal common law tort”). See also Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1540-1543 (1972).

. See, e. g., Apton v. Wilson, 165 U.S.App.D.C. 22, 31-33 , 506 F.2d 83 , 92-93 (1974); Black v. United States, 534 F.2d 524, 526 (2d Cir. 1976); Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1346 (2d Cir. 1972); Paton v. La Prade, 524 F.2d 862, 871 (3d Cir. 1975); States Marine Lines, Inc. v. Shultz, 498 F.2d 1146, 1159 (4th Cir. 1974); Tritsis v. Backer , 501 F.2d 1021, 1022 (7th Cir. 1974); Jones v. United States, 536 F.2d 269, 271 (8th Cir. 1976); Midwest Growers Co-op Corp. v. Kirkemo, 533 F.2d 455 , 463-464 (9th Cir. 1976); Mark v. Groff, 521 F.2d 1376, 1380 (9th Cir. 1975).

. See cases cited supra note 13 and infra note 18.

. See, e. g., K. Davis, Administrative Law of the Seventies, supra note 5, § 26.00-2 at 573; Second Circuit Note, 1975 Term, 51 St. John L.Rev. 251, 275-276 (1977). But see Economou v. United States Dep’t of Agriculture, 535 F.2d 688 (2d Cir. 1976), cert. granted, 429 U.S. 1089 , 97 S.Ct. 1097 , 51 L.Ed.2d 534 (1977).

. As indicated by such cases as Monroe v. Pape, supra note 6 , 365 U.S. at 169 , 81 S.Ct. at 474 , 5 L.Ed.2d at 495 , and Bell v. Hood, 327 U.S. 678, 679 , 66 S.Ct. 773, 774 , 90 L.Ed. 939, 940 (1946), an action grounded in the Constitution’s protections against unlawful searches and seizures may also contain allegations sufficient to generate a variety of common law claims, including trespass or unlawful entry, abuse of process, assault, false imprisonment, conversion and even intentional infliction of emotional distress. Cf. Dellums v. Powell,U.S.App.D.C. -, at -, -, 566 F.2d 167 at 175-176 (1977) and cases cited therein; Payne v. District of Columbia, 182 U.S.App.D.C. 188, 196 , 559 F.2d 809, 817 (1977) (per Robinson, J.); Norton v. Turner, 427 F.Supp. 138, 140 (E.D.Va.1977). So might an actionable violation of the First Amendment involve similarly tortious activity. Dellums v. Powell, supra, at - of 184 U.S.App.D.C., at 194 of 566 F.2d & n.80. An outrageous instance of medical malpractice may, if practiced in a prison, infringe the Eighth Amendment. Cf. Estelle v. Gamble, 429 U.S. 97, 106-107 , 97 S.Ct. 285, 292-293 , 50 L.Ed.2d 251, 261-262 (1977). In limited circumstances, a breach of contract may implicate the Due Process Clause, cf. Cardinale v. Washington Technical Inst., 163 U.S.App.D.C. 123, 128 , 500 F.2d 791, 796 (1974) as may a libel. Compare Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976), with Wisconsin v. Constantineau, 400 U.S. 433 , 91 S.Ct. 507 , 27 L.Ed.2d 515 (1971).

. Common law tort claims have been joined with constitutional tort claims in a host of recent cases, including Dellums v. Powell, supra note 16, at- of 184 U.S.App.D.C., at 175 -176 of 566 F.2d; Carter v. Carlson, 144 U.S. App.D.C. 388, 392-393, 447 F.2d 358, 362-363 (1971), rev’d on other grounds, 409 U.S. 418 , 93 S.Ct. 602 , 34 L.Ed.2d 613 (1973); David v. Cohen, supra note 5 , 132 U.S.App.D.C. at 335 , 407 F.2d at 1270 ; Paton v. La Prade, supra note 13, 524 F.2d at 866 ; Roberts v. Williams, 456 F.2d 819 , 828-829 (5th Cir.), cert. denied, 404 U.S. 866 , 92 S.Ct. 83 , 30 L.Ed.2d 110 (1971); Williams v. Gorton, 529 F.2d 668, 670-671 (9th Cir. 1976); Norton v. Turner, supra note 16 , 427 F.Supp. at 140 . See also Pierson v. Ray, supra note 7.

. Cf. K. Davis, Administrative Law of the Seventies, supra note 5, § 26.00-2 at 583-584 (“the court should not have to say yes or no to such questions as whether one has a constitutional right not to be shot at by an officer, not to be hit in the jaw with an officer’s fist, not to have one’s property damaged by an officer, not to have one’s privacy invaded, not to have one’s reputation sullied”) (emphasis in original).

. See, e. g., Apton v. Wilson, supra note 13, 165 U.S.App.D.C. at 29-33 , 506 F.2d at 90-93 .

. See, e. g., Imbler v. Pachtman, supra note 7, 424 U.S. at 417-429, 96 S.Ct. at 988-994, 47 L.Ed.2d at 136-143; Scheuer v. Rhodes, supra note 7 , 416 U.S. at 239-247 , 94 S.Ct. at 1687-1692 , 40 L.Ed.2d at 98-103 ; Apton v. Wilson, supra note 13, 165 U.S.App.D.C. at 29-30 , 506 F.2d at 90-91 .

. Economou v. United States Dep’t of Agriculture, supra note 15.

. Breakefield v. District of Columbia, 143 U.S. App.D.C. 203, 206, 442 F.2d 1227, 1230 (1970), cert. denied, 401 U.S. 909, 91 S.Ct. 871 , 27 L.Ed.2d 807 (1971).