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

WILKEY, Circuit Judge

(concurring du-bitante):

While I concur in the judgment of this court, I do so with serious doubts about the present validity of Barr v. Matteo, 1 the Supreme Court decision that the majority views as controlling on the question of executive immunity. For the reasons stated by the majority and amplified by my discussion in Part I, infra, I do not doubt that the absolute immunity afforded by Barr v. Mat-teo represents sound policy, as much now as it did when it was decided. However, in the various § 1983 cases that have intervened since Barr, the Supreme Court appears to have described the immunity generally available to executive officials in common law actions as being only a qualified immunity. As I will explain more fully below in Part II, infra, the Court’s persistence in this description, set out first in Scheuer v. Rhodes, 2 and ratified twice thereafter, 3 leads me to doubt whether the *304 Court is still committed to the absolute immunity of Barr. Since it is the Court’s prerogative to overrule its own decisions, if it wishes, I join, although dubitante, in the judgment of this court in reliance upon Barr. 4

I

At first exposure the doctrine of absolute immunity for government officials in common law tort actions appears to be a harsh doctrine indeed. Someone who has incontestably been hurt as a result of the tor-tious conduct of a government official may be denied any compensation, regardless of the magnitude of the injury. Similarly, no matter how malicious an official’s action may appear to be, the operation of absolute immunity may preclude inquiry in a civil suit for damages into the reasonableness of his behavior, even if it appears that there will be no review of his action by other means. In terms of compensation denied and accountability foreclosed, absolute immunity may often seem distasteful in its rigidity. For these and other reasons, well-respected commentators have called for an overruling of Barr, so that for common law torts as is already the case for constitutional torts executive officials will have only a qualified immunity. 5

Recognizing that the rule of absolute immunity imposes real costs, the relevant question becomes whether the benefits to be derived from the doctrine justify these costs. The Barr Court openly confronted this question and decided that the contribution of absolute immunity to “the effective functioning of government” outweighed the loss of litigant rights. 6 As Justice Harlan concluded:

To be sure, as with any rule of law which attempts to reconcile fundamentally antagonistic social policies, there may be *305 occasional instances of actual injustice which will go unredressed, but we think that price a necessary one to pay for the greater good. 7

Critical to the balance struck by Barr was the view that the threat of personal liability hanging over an individual officer “might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” 8 As Judge Leventhal has pointed out, it is as much a concern today that the possibility of personal liability will “chill” forthright government administration as it was in 1959, the year of Barr. If anything, with government regulation touching many more aspects of American life and with the stakes of regulation correspondingly more significant, there is even more reason today to expect “counter-attacks,” in Judge Leventhal’s phrase, against the officials who are charged with making the difficult and sensitive decisions of administration.

It is argued, however, that precisely because so much can turn upon the actions of executive officials, then there must be civil damage suits available in order to hold them accountable for their conduct. 9 To begin with, however, many of the actions by federal executive officials, which may give rise to common law torts, are subject to review and correction by courts under the Administrative Procedure Act and other statutory review provisions. In addition, the conduct of executive officials may be subject to a wide range of alternative oversight — by the press, by Congress, by the public, and by internal agency personnel. And, of course, the absolute tort immunity of Barr does not foreclose any possible criminal prosecutions of government officials who violate the law. 10

If it is thought that these possible methods of oversight are still inadequate to assure full and fair accountability — and on occasion misbehavior by executive officials surely does go unchecked — it is not easy to know what courts should do about it. One possibility is that absolute or qualified immunity might turn on an assessment by a court in each case whether the allegedly tortious action of the officer was indeed subject to review or scrutiny by other means or in another forum. If not, then the civil damage suit can be allowed to proceed, with the award of only a qualified immunity, so that the officer will be called to answer for his conduct.

In my estimation this is an unwise and unworkable approach. An assessment of whether alleged misbehavior has been “adequately” reviewed and/or corrected by other means may often have to involve further proceedings and factual findings, a possibility which undercuts the purpose of absolute immunity, as expressed in Imbler v. Pacht- *306 man, 11 to provide protection at the outset from trial and liability. Moreover, a variable criterion such as this adds a further element of judgment and uncertainty to the process of choice between immunities, thereby importing the “chilling” effect of possible liability. How does a trial court assess, for example, the fact that there was no “official” disciplinary inquiry into alleged wrongdoing? What if this is because the various supervisors believed on the record before them that no wrongdoing had taken place and that the challenged conduct was justified? I suggest, in brief, that it is inappropriate to immunity doctrine, and inconsistent with Supreme Court practice, 12 to have absolute immunity awarded or taken away depending on whether there was, as seen in retrospect, alternative review of the incident in question.

In terms of assuring accountability, then, the other alternative is to drop absolute immunity for common law torts altogether, so that the reasonableness of every official action can be tested. Yet this need not involve a direct legal action against the executive official personally. And, as noted earlier, because this net of civil liability is so wide, and will entrap the innocent official along with the guilty, the policy preference has been for absolute immunity instead, which — ideally—encourages executive officials to act in a fearless, public-spirited way without the risk of immense personal liability. It seems to me that if the balance struck by Barr is deemed unsatisfactory, then the response should be legislative — the waiver of sovereign immunity for intentional torts.

If the complaint is that it is very unjust that there are uncompensated injuries from common law torts, then the preferable solution is to amend the Federal Tort Claims Act to cover intentional torts, like libel and slander, which are presently excluded. 13 Surely in terms of realistic compensation, this change would provide a more effective remedy than the abandonment of absolute immunity, leaving monetary relief only against the officer. Similarly, if the complaint is that absolute immunity is resulting in a widespread unaccountability for common law torts, the preferable solution again may be to amend the Torts Claims Act to cover intentional torts. With regard to intentional torts, such as abuses by police officers, for example, it has often been thought that the imposition of judgments on governmental units may induce the higher officials to see that there is better training in the avoidance of wrongdoing and more effective oversight on the charges of misconduct. 14

Indeed, with further changes in the Torts Claims Act, the government could secure the power, if it wished, to collect from the wrongdoing officer for malicious or egregious torts. This approach, if fairly and consistently administered, could bring a greater measure of accountability for the individual wrongdoer without imposing the degree of “chill” expected from the aban *307 donment of absolute immunity. For with a waiver of sovereign immunity for intentional torts, the officer knows that the government will assume whatever judgment may ensue from an uncertain trial on liability and damages. Personal liability, the primary source of the “chill” upon the exercise of unintimidated discretion, would depend instead upon a disciplinary screening by the government about when to pursue recovery from the officer and about how much recovery to seek. Presumably this screening will be less unpredictable and capricious than present trial and jury outcomes against an officer and would thus provide a more fine-tuned way of holding accountable those who maliciously abuse their power.

Motivated by some of the considerations suggested above, Congress has already changed the Tort Claims Act so as to make the federal government financially responsible for the intentional torts of some of its officers. With a 1974 amendment sovereign immunity was waived for claims arising out of “assault, battery, false imprisonment, false arrest, abuse of process or malicious prosecution” which are committed by United States “investigative or law enforcement officers.” 15 Whether Congress should further amend the Tort Claims Act to include the intentional torts of other officers, many of which would be common law torts, remains, of course, a matter of legislative judgment. Similarly, whether coverage of intentional torts by the government should include a right to seek indemnity from the officers involved also calls for an exercise of judgment by the legislature. 16

Recognizing the responsibility of Congress for the basic structure of the Tort Claims Act, I am unwilling to drop the absolute immunity of Barr, thereby leaving federal executive officials with only a qualified immunity for common law torts, in an effort to induce Congress to make further amendments to the Torts Claims Act. Barr has been rightly viewed as an aid to effective government and because its abandonment would thus impair public-spirited administration by the executive branch, its absolute immunity should be retained until a workable substitute, such as a waiver of sovereign immunity, is in place.

II

In 1959 Barr v. Matteo 17 established the rule of federal common law that executive officials at all levels were entitled to absolute immunity from civil damage suits for those torts which involved action of a discretionary nature and which were taken within the scope of their authority. Over the years the Supreme Court appears to have adhered to the Barr rule 18 and, most notably, in 1973, did “not disturb the judgment” 19 of a lower court, which had found *308 absolute immunity under Barr for federal officials performing discretionary acts within their duty. In three subsequent immunity cases under § 1983, the Court, however, appears to have described the common law for executive officials as affording only a qualified immunity, even as to common law torts. With no clear indication that the Court was only describing state common law as opposed to federal common law, I am concerned about whether this undercuts the Barr rule and feel obliged to explain my doubts. Because of the ambiguity inhering in the Court’s recent approach, it becomes necessary to trace in some detail its description of the common law.

In 1974, Scheuer v. Rhodes 20 presented the question of whether there should be absolute or qualified immunity in a suit for damages under § 1983 for the Governor and other high officials of a state, the president of a state university and members of the state National Guard. Noting that § 1983 was meant to give a remedy to parties deprived of their constitutional rights, the Court also repeated that § 1983 did not mean “to abolish wholesale all common law immunities.” 21 With this suggestion that the common law would be a helpful guide in structuring immunities under § 1983, the Court turned to a review of its three past determinations. In 1951 the Court had recognized absolute immunity for state legislators, noting the history of the absolute immunity at common law, Tenney v. Brandhove. 22 Similarly in 1967 the Court had afforded absolute immunity to state judges sued under § 1983, again noting the absolute immunity of the common law, Pierson v. Ray. 23 Lastly, in its review, the Scheuer Court came to the other class of officials involved in Pierson — local police officers. Noting that the common law had not granted them an absolute immunity, Pierson v. Ray 24 made available to them “the defense of good faith and probable cause.”

At this juncture in Scheuer one expects the Court to state next: 1) what the immunity at common law would be for executive officials like these, charged with some analogous tort, like wrongful death, and 2) whether that common law immunity, be it absolute or qualified, will be carried over, for whatever policy reasons, into § 1983 actions. This was essentially the analysis embodied in Tenney and,Pierson and was expressly the analysis employed in the later cases of Wood v. Strickland 25 and Imbler v. Pachtman, 26 which also transplanted their respective common law immunities. But the paragraphs that one next expects in Scheuer are not there; instead, there are the next two sentences:

When a court evaluates police conduct relating to an arrest its guideline is “good faith and probable cause.” [Pierson ] In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices — whether the formulation of policy, of legislation, of budgets, or of day-to-day decisions — is virtually infinite. 27

What these sentences suggest is that the Scheuer Court had already decided, without setting out its customary analysis, that only qualified immunity would be available. In other words, the first sentence repeated from Pierson that a qualified immunity means that a court should inquire into whether a police officer made an arrest *309 with “good faith and probable cause.” The phrase — “the inquiry” — in the second sentence thus referred to what a court should inquire into in determining whether “higher officers of the executive branch” also have satisfied the reasonableness standard of qualified immunity. In the remainder of the long paragraph begun with these sentences the Court essentially established that in applying qualified immunity to higher officers of the executive branch a court must be very sensitive to the demands of their office, e. g., the occasional need for prompt decisive action and the obvious need to rely on facts supplied by others. The Court also emphasized that because the options of these high officials may be so broad and so subtle, their “range of discretion” for purposes of immunity had to be read very widely. 28 Scheuer concluded from these considerations that the qualified immunity available to officers of the executive branch of government had to vary in scope, “the variation being dependent on the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based.” 29 In sum, then, it appears that the focus of the Court’s attention in Scheuer was upon an appropriate definition of qualified immunity; 30 the choice between immunities appears to have been made with little discussion and without the systematic approach found in similar cases. 31

In the various restatements of Scheuer, however, the Court has described that decision in terms of its usual systematic approach, thereby casting some light on what it considered as the common law tradition for the immunity of executive officers. In Wood v. Strickland, 32 the Court said that it had granted a qualified immunity to the Scheuer defendants, “under prior precedent and in light- of the obvious need to avoid discouraging effective official action by public officials charged with a considerable range of responsibility and discretion . .” After quoting Scheuer’s formulation of qualified immunity, Wood continued:

Common-law tradition, recognized in our prior decisions, and strong public-policy reasons also lead to a construction of § 1983 extending a qualified good-faith immunity to school board members from liability for damages under that section. 33

The implication from both of these quoted sentences is that the Scheuer outcome of qualified immunity for executive officers accorded with common law precedent.

The next immunity case, Imbler v. Pacht-man, supra, described Scheuer in similar terms. After stating that “the Governor *310 and other executive officials of a State” had only a qualified immunity under Scheuer for § 1983 suits, Imbler characterized that process of choice between immunities as follows:

In Scheuer and in Wood, as in the two earlier cases, [Tenney and Pierson], the considerations underlying the nature of the immunity of the respective officials in suits at common law led to essentially the same immunity under § 1983. See 420 U.S., at 318-321 [ 95 S.Ct. 992 ]; 416 U.S. at 239-247 [ 94 S.Ct. 1683 ] and n. 4. 34

Here, even more clearly than in Wood, the Imbler Court appears to be saying that the executive officials in Scheuer would have been entitled to only a qualified immunity at common law. What is the support for this that the Court finds in its citations back to Scheuer ? As already noted, from the point in Scheuer when the Court puts the question as to these executive officials (p. 242, 94 S.Ct. 1683 ) through the close of the analysis (p. 247, 94 S.Ct. 1683 ) there is no indication of what the immunity of executive officials would be at common law. Imbler must be drawing its conclusion, then, from the earlier pages of general discussion (239-242, 94 S.Ct. 1683 ) and from n. 4, which are the portions specifically cited (see quote above). In the text of Scheuer at 239, 94 S.Ct. 1683, 1688 , official immunity is said to derive from the same considerations that generated sovereign immunity. Scheuer continues: “While the latter doctrine — that the ‘King can do no wrong’ — did not protect all government officers from personal liability, the common law soon recognized the necessity of permitting officials to perform their official functions free from the threat of suits for personal liability.” Attached to that last sentence is the cited footnote 4, which described the structure of official immunity at common law. Due to its significance I have set out the entire note as follows:

4 In England legislative immunity was secured after a long struggle, by the Bill of Rights of 1689: “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament,” 1 W. & M., Sess. 2, c. 2. See Stockdale v. Hansard, 9 Ad. & E., 1, 113— 114, 112 Eng.Rep. 1112, 1155-1156 (Q. B. 1839). The English experience, of course, guided the drafters of our “Speech or Debate” Clause. See Tenney v. Brandhove, 341 U.S. 367, 372-375 [ 71 S.Ct. 783 , 95 L.Ed. 1019 ] (1951); United States v. Johnson, 383 U.S. 169, 177-178, 181 [ 86 S.Ct. 749 , 15 L.Ed.2d 681 ] (1966); United States v. Brewster, 408 U.S. 501 [ 92 S.Ct. 2531 , 33 L.Ed.2d 507 ] (1972).

In regard to judicial immunity, Holds-worth notes: “In the ease of courts of record ... it was held, certainly as early as Edward Ill’s reign, that a litigant could not go behind the record, in order to make a judge civilly or criminally liable for an abuse of his jurisdiction.” 6 W. Holdsworth. A History of English Law 235 (1927). The modern concept owes much to the elaboration and restatement of Coke and other judges of the sixteenth and early seventeenth centuries. Id., at 234 et seq. See Floyd v. Barker, 12 Co.Rep. 23, 77 Eng.Rep. 1305 (K. B. 1607). The immunity of the Crown has traditionally been of a more limited nature. Officers of the Crown were at first insulated from responsibility since the King could claim the act as his own. This absolute insulation was gradually eroded. Statute of Westminster I, 3 Edw. 1 , c. 24 (1275) (repealed); Statute of Westminster II, 13 Edw. 1 , c. 13 (1285) (repealed). The development of liability, especially during the times of the Tudors and Stuarts, was slow; see, e. g., Public Officers Protection Act, 7 Jac. 1, c. 5 (1609) (repealed). With the accession of William and Mary, the liability of officers saw what Jaffe has termed “a most remarkable and significant extension” in Ashby v. White, 1 Bro.P.C. 62, 1 Eng.Rep. 417 (H. L. 1704), reversing 6 Mod. 45, 87 Eng.Rep. 808 (Q. B. 1703). Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1, 14 *311 (1963); A. Dicey, The Law of the Constitution 193-194 (10th ed. 1959) (footnotes omitted). See generally Barr v. Matteo, 360 U.S. 564 [ 79 S.Ct. 1335 , 3 L.Ed.2d 1434 ] (1959). Good-faith performance of a discretionary duty has remained, it seems, a defense. See Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209, 216 (1963). See also Spalding v. Vilas, 161 U.S. 483, 493 [ 16 S.Ct. 631 , 40 L.Ed. 780 ] et seq. (1896).

The last two sentences of this footnote are of particular interest. With the reference to the significant extension of liability in 1704, the Court gives one the impression that since 1704, at least, “[t]he immunity of the Crown has traditionally been of a more limited nature,” supra, than the absolute immunity described, supra, for legislators and judges. And then the Court confirms this impression with the last sentence: “Good-faith performance of a discretionary duty has remained, it seems, a defense.” On the basis of these sentences, unqualified by any further language, it would appear, according to Seheuer, that the common law has evolved a rule of qualified immunity for executive officials as to all torts. If, moreover, Seheuer has described the common law as it applies to federal officials, then one wonders whether the absolute immunity of Barr retains all of its force.

It may be, as I will explore below, that footnote 4 was describing instead the state common law or some traditional, perhaps English, common law, which would then distinguish and leave intact the federal common law of Barr . These must, of necessity, be real possibilities because, as is obvious above, the footnote itself cites to Barr , with apparent neutrality. For various reasons, however, it is not conclusive that footnote 4 was not describing federal common law. Thus, in my estimation, Barr is still put in doubt.

The first possibility is that the Seheuer Court was describing the evolution of English common law, apart from the American experience. Contributing to the possibility is the placement of the footnote — in a paragraph about the origins of official immunity — as well as its content — primarily about English cases and statutes. Yet it is not clear that the finishing stroke of the note, that good-faith immunity “remains” as the common law, is meant to pertain only to English law. Most significantly, Justice Powell, writing in Imhler, supra, cited expressly to “n. 4” in support of the underlying proposition that the state executive officials had only a qualified immunity “in suits at common law.” 35

The other possibility, then, is that the Court meant to describe the state common law in its finishing statement of note 4, perhaps in addition to summing up the evolution of British law. Supporting this possibility is the analysis of Wood v. Strickl and 36 where the inquiry into common law immunity was into what “state courts have generally recognized . . . under state law.” On the other hand, Pierson v. Ray 37 directed that the search for the common law immunity be for “the prevailing view in this country,” which would presumably take into account the federal common law. And, most recently, Imhler v. Pachtman 38 considered both the “majority rule” of the state cases as well as its own view of the federal common law, citing Yaselli v. Goff. 39

One initial conclusion to draw from these cases is that the Court does not look to the particular common law of the defendant’s state as the starting point. 40 State law is *312 consulted in order to find the more settled common law, but even the majority state view is tempered by the federal common law, which is deserving of its own weight. From these sources the Court distills the common law “tradition,” which it then decides whether or not to carry over to § 1983.

Footnote 4, then, was drawing upon, or including federal common law, i. e., Barr v. Matteo, in describing the immunity for executive officials as qualified. And, according to Professor Jaffe, whose articles were cited in Scheuer 41 as important sources, Barr had to be considered as the “leading case in the field” extending absolute immunity to executives below Cabinet rank. 42 While the Barr rule may not have been accepted by the majority of states, 43 it was still, as noted, a leading case to assess in distilling the common law for purposes of § 1983 analysis. It may have been that Scheuer meant to leave Barr entirely intact, as an untraditional, minority view. Footnote 4, after all, cannot be read with complete literalness; it surely did not intend, for example, to suggest that Spalding v. Vilas 44 was no longer the common law. 45

Yet in Scheuer’s description of the common law as affording only a qualified immunity, at least as to inferior executive officers, I cannot safely assume that the Court was not reflecting some doubt about Barr . If the Court had said there, or in the later cases, that the common law tradition in Scheuer was based upon the majority state view, then Barr , in' my estimation, could be applied with no hesitation. But with Barr’s present status unsettled, I can concur only dubitante.

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

. 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974).

. Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976); Wood v. Strick *304 land, 420 U.S. 308 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975).

. As the majority opinion explains at p.-of 184 U.S.App.D.C., p. 291 of 566 F.2d n. 2, the panel had remanded the question of official immunity to the trial court for its choice between absolute and qualified immunity, a choice to be determined by an individualized balancing of relevant factors. The remand directed by the panel was based upon a reading of the Supreme Court cases, particularly Barr , as requiring such an individualized balancing. Úpon further study and reflection, however, I am now of the view that the balancing engaged in by the Supreme Court was aimed at formulating rules of immunity for categories of officials, as defined by function. The Court’s inquiry into the facts of each case has typically, as in Barr , been for purposes of deciding whether the official in question was acting within the scope of his authority and not for purposes of making an ad hoc balancing as to the appropriate immunity for that official alone. Barr , in other words, was establishing the rule that executive officials at all levels were to be accorded absolute immunity from civil suit for all actions of a discretionary nature within “the outer perimeter” of the officials’ “line of duty.” 360 U.S. at 575 , 79 S.Ct. 1335 .

In restudying Barr and the intervening § 1983 cases, however, I have also come to the view that the language and the logic of the recent cases puts the present validity of Barr into doubt, even as to common law torts. Particularly since the Supreme Court will have occasion next Term in Economou v. U.S. Dept. of Agriculture, 535 F.2d 688 (2d Cir.), cert. granted sub nom., Butz v. Economou, 429 U.S. 1089 , 97 S.Ct. 1097 , 51 L.Ed.2d 534 (1977), to reconsider Barr , I feel obliged to express my doubts, although, as noted, my view is that the Barr rule represents sound policy.

. Professor Davis, for example, looks for “an early overruling” of Barr , citing as “undesirable” and “[un]workable” the distinction between the absolute immunity of Bair for common law torts and the qualified immunity of Scheuer v. Rhodes, 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed. 90 (1974) for “constitutional” torts. Davis, Administrative Law of the Seventies, § 26.00-2 at 584 (1976). In a concurring opinion in this case, slip op. at 6, Judge Robinson also explains and criticizes the “incongruity between immunities available to the same officer exercising the same functions,” turning only on whether the tort he commits is characterized as constitutional or common law, although Judge Robinson refrains from suggesting that Barr be overruled. See also Vaughn, The Personal Accountability of Public Employees, 25 Am.U.L.Rev. 85 (1975), quoting Aeschylus: “For what mortal is righteous if he nothing fear?”

. 360 U.S. at 573 , 79 S.Ct. 1335 . As Judge Leventhal notes, maj. at p.- of 184 U.S. App.D.C. n. 4, p. 291 of 566 F.2d Justice Harlan’s reasoning about absolute immunity won the support of a majority although his opinion was for a plurality of the Court.

. Id. at 576 , 79 S.Ct. at 1342 .

. Id. at 571 , 79 S.Ct. at 1339 .

. This argument has been made most forcibly with regard to the abuse of basic civil liberties by government officials. Dean Prosser contends, for example, that:

it may seriously be questioned whether the removal of the possible deterrent effect of the individual’s tort liability, at least for oppressive and outrageous conduct, would be at all a desirable thing. There once was a disreputable character named John Wilkes, whose newspaper was raided and put out of business, his premises illegally searched, and his property seized and confiscated, all for the worst kind of political motives. The tort actions which arose out of this high-handed piece of oppression were long regarded as a major blow struck for the freedom of the individual against the abuse of governmental power; and so long as cheap and conniving politicians continue to abuse that power, they should not be forgotten.

Prosser, The Law of Torts, § 132 at 992 (4th ed. 1971). In line with this plea, the availability of § 1983 and Bivens -type relief against most classes of officials for violations of constitutional rights does provide a special check on abuses of “our most cherished liberties.” Ap-ton v. Wilson, 165 U.S.App.D.C. 22 , 506 F.2d 83 (1974).

. Imbler v. Pachtman, 424 U.S. 409, 429 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976).

. Id. at 419 n. 13, 96 S.Ct. 984 .

. In Imbler , for example, the Court considered the “amenability” of prosecutors as a class as a factor weighing for absolute immunity but did not inquire into whether that prosecutor in particular was the subject of an official inquiry into his alleged misconduct. Id. at 429 , 96 S.Ct. 984 .

. 28 U.S.C. § 2680 (h), as amended.

. In urging Congress to assume liability for the Fourth Amendment torts of federal officers, Chief Justice Burger noted with respect to private security guards that, “[djamage verdicts for such acts are often sufficient in size to provide an effective deterrent and stimulate employers to corrective action.” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 , 422 n. 5, 91 S.Ct. 1999, 2018 , 29 L.Ed.2d 619 (1971) (dissenting opinion). This rationale has also been suggested as a reason for implying a Bivens -type cause of action directly against municipalities under the Fourteenth Amendment, Note, Damage Remedies Against Municipalities For Constitutional Violations, 89 Harv. L.Rev. 922, 927 (1976): “The threat of monetary judgments against governmental units may . . . spur higher officials to design their hiring and training programs, disciplinary procedures, and internal rules so as to curb misconduct.” See also Davis, Administrative Law Treatise, 1970 Supplement, § 25.17 at 864— 65.

. 28 U.S.C. § 2680 (h), as amended 16 Mar. 1974 , Pub.L. 93-253, § 2 , 88 Stat. 50 .

In connection with the availability of compensation, as mentioned above, the Senate Report stated: “Of course, Federal agents are usually judgment proof so this [a cause of action against the individual officer] is a rather hollow remedy.” S.Rep.No.588, 93rd Cong., 1st Sess. 3, reprinted in [1974] U.S.Code Cong. & Admin.News pp. 2789, 2790.

. Cf. United States v. Gilman, 347 U.S. 507 , 74 S.Ct. 695 , 98 L.Ed. 898 (1954). Even though the common law rule is that an employer can generally recover from an employee, a unanimous Supreme Court held in Gilman that the government could not recover from an employee after it had been held liable under the Federal Tort Claims Act for the employee’s negligent act. Emphasizing that it was for Congress to formulate its policies towards employees under the Tort Claims Act, the Court declined to impose its own solution on what it viewed as a complex and significant issue.

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

. In Wheeldin v. Wheeler, 373 U.S. 647, 650-51 , 83 S.Ct. 1441 , 10 L.Ed.2d 605 (1963), for example, the Court found Barr inapplicable because the official was not acting within the scope of his authority, with no question as to Barr’s acceptance.

. Doe v. McMillan, 412 U.S. 306 , 327 n. 15, 93 S.Ct. 2018 , 36 L.Ed.2d 912 (1973), aff’g in relevant part, Doe v. McMillan, 148 U.S.App.D.C. 280 , 292-295, 459 F.2d 1304, 1316-1319 (1972). With regard to other nonlegislative officials the Supreme Court found no independent absolute immunity but did so in a manner consistent with Barr . In an examination of the challenged actions of the Public Printer and the Superin *308 tendent of Documents, the Court found that their actions, although authorized, involved the exercise of no significant discretion, thus taking them outside the ambit of Barr. See Doe v. McMillan, 185 U.S.App.D.C.,---, 566 F.2d 713 (1977) (on remand).

. 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 .

. Id. at 243, 94 S.Ct. at 1690 , quoting Pierson v. Ray, 386 U.S. 547, 554 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967).

. 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019 .

. 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 .

. Id. at 557 , 87 S.Ct. 1213, 1219 .

. 420 U.S. 308, 318 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975).

. 424 U.S. 409, 424 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976).

. Scheuer, supra at 245-46 , 94 S.Ct. at 1691 .

. Id. at 247, 96 S.Ct. 1690 . At this point, Scheuer quotes Justice Harlan’s counsel from Barr that the scope of discretion must be tailored to the broad or narrow duties of executive officers at different levels. Contrary to the majority’s characterization, at p. - of 184 U.S.App.D.C., p. 293 of 566 F.2d, this is not a citation of Barr for the proposition that there must be absolute immunity for executive discretionary acts in the context of defamation actions. As will be developed, infra, the Scheuer Court appeared to consider qualified immunity as the common law protection available to executive officers.

. Scheuer, supra at 247 , 94 S.Ct. at 1692 .

. It is noteworthy that at this stage of the case the threshold issues of scope of authority and discretionary action still remained for decision on remand, in addition to the major issue of the reasonableness and good faith of the alleged constitutional violations. See id. at 250, 94 S.Ct. 984 .

. Before closing the discussion of immunities the Court stated that “[u]nder the criteria developed by precedents of this Court, § 1983 would be drained of all meaning were we to hold that the acts of a governor or other high executive officer ...” were entitled to absolute immunity. Id. at 248, 94 S.Ct. at 1692 . The meaning of this is not clear, for twice before the Court had granted absolute immunity to two classes of state officials, legislators and judges, in significant part because of their absolute immunity at common law. If the Court had regarded high executive officials as also having an absolute immunity at common law, it may well have comported with the precedents of § 1983 to have continued their absolute immunity here.

. 420 U.S. at 317-18 , 95 S.Ct. at 998 (emphasis added).

. Id. at 318, 95 S.Ct. at 999 (emphasis added).

. Imbler, supra at 419 , 96 S.Ct. at 989 .

. See text at n. 34, supra. In addition, in the law review article cited to accompany the last sentence of footnote 4, Professor Jaffe was discussing official immunity in general, with particular attention to this country.

. 420 U.S. at 318 , 95 S.Ct. at 999 .

. 386 U.S. at 547 , 87 S.Ct. 1213 .

. 424 U.S. at 422 , 96 S.Ct. 984 .

. 12 F.2d 396 , aff’d, 275 U.S. 503 , 48 S.Ct. 155 , 72 L.Ed. 395 (1927) (per curiam).

. Seheuer, for example, did not consider the state law of Ohio or even say what it was. Were it otherwise, the § 1983 immunity might vary from state to state for the same class of *312 officials, surely an inappropriate outcome for a federal cause of action. See Fidtler v. Rundle, 497 F.2d 794, 799-800 (3rd Cir. 1974).

. 416 U.S. at 240 nn. 4 and 5, 94 S.Ct. 1683 .

. Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev.' 209, 234 (1963).

. Prosser, Law of Torts, § 132 at 989 (4th ed. 1971).

. 161 U.S. 483 (1896). Spalding held that a Cabinet official had absolute immunity for torts arising out of his official communications.

. Elsewhere in Scheuer, Spalding is quoted with apparent approval. 416 U.S. at 242 n. 7 & 246 n. 8, 94 S.Ct. 1683 . Moreover, Justice White, concurring in Imbler , said that Scheuer granted only a qualified immunity, “this notwithstanding the fact that, at least with respect to high executive officers, absolute immunity from suit for damages would have applied at common law. Spalding v. Vilas, 161 U.S. 483 [ 16 S.Ct. 631 , 40 L.Ed. 780 ] (1896); Alzua v. Johnson, 231 U.S. 106 [ 34 S.Ct. 27 , 58 L.Ed. 142 ] (1913).” Imbler, supra 424 at 434, 96 S.Ct. at 997 .