Opinion

Terry L. Arcoren v. Wenton Peters and John Schooler

  • 829 F.2d 671
  • 4 U.C.C. Rep. Serv. 2d (West) 956
  • 1987 U.S. App. LEXIS 12717
Court
Court of Appeals for the Eighth Circuit
Filed
Sep 25, 1987
Status
Published
Author
Lay
On the bench
Arnold, Bowman, Fagg, Gibson, Heaney, John, Lay, Magill, McMILLIAN, Ross, Wollman
Cited by
29 cases
Authority
More cited than 25.5%

violation of a regulation cannot support a Bivens action unless the regulation supplies the basis for the claim of a constitutional right

How later courts described this case

  • violation of a regulation cannot support a Bivens action unless the regulation supplies the basis for the claim of a constitutional right
  • “A violation of a statute or a regulation does not rise to a constitutional level unless the statutory or regulatory provisions supply the basis for the claim of a constitutional right.”
  • violation of regulation does not suffice under Bivens unless regulation provides basis for claim of constitutional right

Written by the judges who cited it.

The opinion

*678 LAY, Chief Judge,

dissenting.

I join in Judge Heaney’s excellent dissent. I write separately only to emphasize that the weakness and general inconsistency of the majority opinion is reflected in the fact that the government does not even argue, brief, or contend that the FmHA officials were not acting in their sovereign capacity. 1 This is demonstrably illustrated by the government’s claim in the district court that as officials of FmHA they enjoy absolute governmental immunity under Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976). Although the claim of absolute immunity is not raised on appeal, the government does assert that the officials were acting in their sovereign capacity and as such enjoy good faith immunity under Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). The majority so holds. But this analysis is totally inconsistent with the reasoning that the FmHA officials were not carrying out the duties of a sovereign power. There should be little question that these officials have denied the plaintiff’s property rights without due process of law.

. The United States in its brief asserts (1) the FmHA officials are entitled to the defense of qualified immunity as government officers; (2) as government officials they were exercising their discretionary authority; (3) the notice requirement had been waived by the plaintiff in the security agreement; and (4) that the government officials did not violate any "clearly established” right at the time of the violation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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