Wayne Chastain v. Don Sundquist

MIKVA, Circuit Judge,

dissenting:

The court today brushes aside clear precedent of this Circuit to reach its holding restricting the scope of congressional immunity. Under today’s decision, members of Congress are not accorded even the basic qualified immunity that has routinely been extended to all manner of executive employees acting within the sphere of their employment. In reaching this result, the majority ignores two recent decisions of this court, which explicitly extend official immunity to members of Congress and their staffs.

The court reaches this precedent-denigrating result by mechanically reading the Constitution as if it were a collection of mutually exclusive boxes: because the Congress is given a specific “Speech or Debate” immunity, it holds, Congressmen cannot also qualify for the immunity that courts have given to postmen. Today’s holding not only ignores precedent, but *329 does damage to our governmental structure. Without congressional immunity, we are liable to have a Congress that is deterred from the vigorous exercise of its constitutional responsibilities. As Judge Learned Hand wrote of the immunity doctrine generally, denying government officials its protection “would dampen the ardor of all but the most resolute ... in the unflinching discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949). Because I believe that this Circuit’s immunity doctrine precedent and sound public policy considerations compel a holding that Congressmen have qualified immunity from common law tort suits for actions within the sphere of their employment, I dissent from today’s decision.

I.

I agree with the majority that the Speech or Debate Clause does not shield Congressman Sundquist from the instant libel action. The statements at issue in this case were not made in the course of his legislative activities, and the majority is therefore correct in stating that the Supreme Court’s holding in Hutchinson v. Proxmire, 443 U.S. 111 , 99 S.Ct. 2675 , 61 L.Ed.2d 411 (1979), dictates that the Speech or Debate Clause does not protect them. However, the functions of a Congressman are more than legislative. The efforts of the defendant to call attention to what he considered to be problems within a legal services office were part of his job, and the comments at issue in this case were a part of that effort. As this court has made clear in two recent cases, the defendant’s statements should be protected by the doctrine of limited official immunity.

As the majority notes, the Constitution confers immunity on governmental officials only sparingly. The Speech or Debate Clause, as interpreted by the Supreme Court, protects Senators and Representatives from all actions challenging strictly legislative activities. In addition, the provisions of Article II, as read broadly by the Court, protect the President from civil damages actions challenging his official acts. See Nixon v. Fitzgerald, 457 U.S. 731, 749-56 , 102 S.Ct. 2690, 2701 , 73 L.Ed.2d 349 (1982). The Constitution itself confers no further immunity on governmental officials. In essence, the constitutional scheme, taken alone, allows persons to bring suit against numerous Government officials performing numerous public functions.

However, the Supreme Court has long looked with disfavor on limiting the scope of official immunity to the constitutionality mandated floor. See, e.g., Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 , 20 L.Ed. 646 (1871); Spalding v. Vilas, 161 U.S. 483, 498-99 , 16 S.Ct. 631, 637 , 40 L.Ed. 780 (1896). The Court, of course, has recognized the interests counseling against the extension of official immunity; it has taken cognizance of the principle that officials should not occupy a place “above the law.” See Nixon, 457 U.S. at 758 & n. 41, 102 S.Ct. at 2705 & n. 41. More specifically, the Court has noted the value of allowing individual citizens a right to redress for “damage caused by oppressive or malicious action on the part of officials of the Federal Government.” Barr v. Matteo, 360 U.S. 564, 565 , 79 S.Ct. 1335, 1336 , 3 L.Ed.2d 1434 (1959). But the Court has held repeatedly that a competing value justifies granting governmental officials a measure of immunity above the constitutionally established minimum. See, e.g., id.; Harlow v. Fitzgerald, 457 U.S. 800, 806 , 102 S.Ct. 2727, 2732 , 73 L.Ed.2d 396 (1982). This countervailing value is the value of good government. See, e.g., Barr, 360 U.S. at 572-73 , 79 S.Ct. at 1340 (“The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government.”). When a governmental official lives in fear of litigation stemming from his official acts, he will often fail to execute his office and perform his responsibilities with the vigor and decisiveness required by the public good. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 240 , 94 S.Ct. 1683, 1688 , 40 L.Ed.2d 90 (1974); Nixon, 457 U.S. at 752 n. 32, 102 S.Ct. at 2702 n. 32. This consideration has led the Court to fashion an extra-constitutional body of immunity law to supplement the grants of immunity to *330 governmental officials contained in the Constitution. It is this consideration that the majority ignores in today’s decision.

Judicially created official immunity will never insulate a governmental official from all suits. In all contexts, judicially created immunity — unlike the immunity conferred by the Speech or Debate Clause — protects the official from nothing more than civil suits for monetary damages. See Harlow, 457 U.S. at 806 , 102 S.Ct. at 2732 . Moreover, the official immunity doctrine protects a governmental official only from civil damages suits arising out of acts within the scope of the official’s authority. See Nixon, 457 U.S. at 755-56 , 102 S.Ct. at 2704 . These two unwavering principles impose a cap on the potential reach of the official immunity doctrine. Under “Speech or Debate” a Congressman's immunity has no such bounds. It is total. A Congressman under its protection may say whatever he wishes and be protected from civil or criminal liability, and even detention or mere questioning. The limited immunity being sought here, however, is of a different stripe.

Within this outer limit, the Supreme Court has, as the majority notes, afforded government officials different measures of immunity depending on the nature of the functions that the official performs. See Harlow, 457 U.S. at 810 , 102 S.Ct. at 2734 (“[0]ur cases have followed a functional approach to immunity law.”). The Court has held that certain kinds of functions are so “sensitive,” id. 457 U.S. at 746, 102 S.Ct. at 2699 — i.e., so necessary to the public good and so likely to provoke retaliatory litigation — that when an official performs them, he receives absolute immunity from civil damage suits, regardless of whether these suits charge a constitutional, statutory, or common law violation. See Butz v. Economou, 438 U.S. 478, 507, 512, 515 , 98 S.Ct. 2894, 2913, 2915 , 57 L.Ed.2d 895 (1978); Imbler v. Pachtman, 424 U.S. 409, 425 , 96 S.Ct. 984, 992 , 47 L.Ed.2d 128 (1976). The Supreme Court has decided that both judicial and prosecutorial functions are of this kind; thus, when governmental officials perform such functions, they are absolutely immune from liability for damages. See, e.g., Stump v. Sparkman, 435 U.S. 349, 356-57 , 98 S.Ct. 1099, 1104-05 , 55 L.Ed.2d 231 (1978) (judicial functions); Imbler, 424 U.S. at 427 , 96 S.Ct. at 993 (1976) (prosecutorial functions). Other official functions, however, require less protection. When officials perform these functions, they receive absolute immunity from damage actions charging common law violations, but only qualified immunity from actions charging constitutional or statutory torts. (Qualified immunity from suits of this kind protects officials insofar as their conduct does not violate clearly established constitutional or statutory norms. See Harlow, 457 U.S. at 818 , 102 S.Ct. at 2738 .) The Supreme Court has placed within this category of official functions prototypically executive tasks required or authorized by federal law. See Butz, 438 U.S. at 495, 507 , 98 S.Ct. at 2911 ; Barr, 360 U.S. at 574 , 79 S.Ct. at 1341 . The Court has never granted any lesser degree of protection to a governmental official performing an act within his official sphere.

The majority relies for its holding on a stretching of Supreme Court precedent in the immunity area. First, it relies heavily on Hutchinson v. Proxmire, 443 U.S. 111 , 99 S.Ct. 2675 , 61 L.Ed.2d 411 (1979), which declined to extend the Speech or Debate Clause to newsletters or press releases issued by a Senator. The majority reads too much into this case when it says it stands for the proposition that “the Court ... embraced the common law rule of liability for congressional libel_” Majority opinion at 317. The respondent in Hutchinson did not claim official immunity; he only claimed immunity under the Speech or Debate Clause. In limiting the application of Speech or Debate Clause immunity to matters within the legislative sphere, the Supreme Court has neither explicitly nor implicitly negated the application of judicially created official immunity to activities outside that sphere. Speech or Debate Clause immunity and judicially created official immunity offer distinctly different protections. The former grants members of Congress a testimonial privilege and pro *331 tects them from all civil and criminal proceedings. The latter, in its strongest form, protects officials only from civil suits for damages. The lesson of the Supreme Court cases construing the Speech or Debate Clause is that members of Congress will not receive the blanket Speech or Debate Clause immunity when they act outside the legislative sphere. Hutchinson cannot be read to mean that members of Congress will receive no official immunity when they act outside that sphere. Thus, to recognize official immunity for members of Congress would not circumvent the Supreme Court’s Speech or Debate Clause jurisprudence; rather, it would apply a distinct immunity doctrine in a manner perfectly consistent with the Court’s Speech or Debate Clause cases.

The majority fails to pay sufficient attention to a second case primarily involving the Speech or Debate Clause, in which the Court rejected a lower court’s decision to use that doctrine to insulate a Congressman acting in an official but non-legislative capacity from grand jury inquiry and possible criminal prosecution. See Gravel v. United States, 408 U.S. 606 , 92 S.Ct. 2614 , 33 L.Ed.2d 583 (1972). The Court based its decision solely on the rationale that the judicially fashioned doctrine of official immunity serves only as a shield from civil suits for damages. See id. Although we might read into this approach a willingness to apply the doctrine to members of Congress faced with civil damages suits, we cannot say with any assurance that the Supreme Court meant its analysis to bear this weight: the Court may well have meant to avoid the question that confronts the court today. In a footnote in a subsequent decision, the Court succinctly stated that the official immunity doctrine “has been held applicable to officials of the Legislative Branch.” Doe v. McMillan, 412 U.S. 306 , 319 n. 13, 93 S.Ct. 2018 , 2028 n. 13, 36 L.Ed.2d 912 (1973). This statement, taken on its face, supports Sundquist’s position — indeed, decides this case. But the very brevity of this statement — and its location in a footnote — give some pause. Because it is impossible to discern the precise meaning the Court intended this statement to carry, it cannot be relied upon with great confidence. But it certainly belies the majority’s odd assertion that the Court in Doe “rejects, in the plainest language, the proposition that members of Congress are entitled to immunity from libel actions.” Majority opinion at 11. In sum, the Supreme Court so far has not discussed in any meaningful way the precise question before us; and it certainly has not closed the door to further examination of the question. The inquiry therefore must turn to the underlying purposes of the Court’s official immunity doctrine and to this Circuit’s prior interpretations of that doctrine.

II.

The majority is far too dismissive of the important policy considerations militating in favor of congressional official immunity. The purposes underlying the Supreme Court’s development of the official immunity doctrine support application of the doctrine to members of Congress performing official functions outside the strictly legislative sphere. The essential role of the official immunity doctrine is to encourage governmental personnel to perform their official responsibilities vigorously and capably by removing the fear of litigation that such performance might prompt. See supra at 330. This animating principle is as relevant to the performance of official, albeit non-legislative, functions by members of Congress as it is to the performance of official functions by other governmental officers. That members of Congress have such non-legislative official functions cannot reasonably be denied. The Supreme Court has noted their existence, see Harlow, 457 U.S. at 811 , 102 S.Ct. at 2734 ; Gravel, 408 U.S. at 625 , 92 S.Ct. at 2627 , and in doing so, has done no more than recognize and articulate common knowledge. The majority underestimates the role of Congress when they conceive the Congressman’s role as limited to “responsibility for making the laws.” Majority opinion at 322. That is not the limit that the author of the opinion applied to his role as Congressman, nor that I did to my own. Members of Congress are our citizenry’s *332 primary representatives in the federal government, and the job of representation necessarily entails more than the consideration and enactment of legislation. Moreover, such official functions are of great significance in the workings of our government. In their role as representatives and ombudsmen, members of Congress perform a variety of non-legislative tasks that make this nation’s government more responsive to its citizenry and that make this nation’s citizenry more attentive to its government. These tasks are entitled to— but more important, these tasks need — no less protection than the tasks performed by the vast majority of other government officials in the exercise of their authority. The majority’s approach of removing the protection for these functions discourages Congressmen from vigorous action in their non-legislative but official sphere and advances timidity or, worse yet, inaction in a range of governmental functions.

The question remains whether these principles counsel granting members of Congress the greater or the lesser kind of official immunity established by the Supreme Court. I do not believe that official activities of members of Congress outside the legislative core are of a nature as to require that members receive absolute immunity from all civil damages suits challenging official action, regardless of whether they charge a constitutional, statutory, or common law violation. The Court, as I have noted above, has indicated that such broad immunity should accompany only official functions whose exercise is exceptionally likely to prompt retaliatory litigation, such as prosecutorial and judicial functions. See supra at 4. The official functions of members of Congress outside the legislative core are not of this kind; they will not frequently provoke civil actions by angry or resentful persons. I would therefore hold that a member of Congress performing official but non-legislative functions is entitled to the kind of official immunity that the Supreme Court has held that government officials performing executive functions enjoy — absolute immunity from damage suits charging a violation of the common law, but only qualified immunity from damage suits charging a statutory or constitutional tort.

III.

Today’s majority opinion marks a dramatic departure from this Circuit’s previous holdings in this area. In two recent cases involving statutory and constitutional claims, we held that several members of Congress and their aides (who receive the same immunity as members themselves, see Gravel, 408 U.S. at 618 , 92 S.Ct. at 2623 ) were entitled to avail themselves of the official immunity doctrine. See McSurely v. McClellan, 763 F.2d 88, 99-102 (D.C.Cir.) (per curiam), cert. denied, 474 U.S. 1005 , 106 S.Ct. 525 , 88 L.Ed.2d 457 (1985); Walker v. Jones, 733 F.2d 923, 932-33 (D.C.Cir.), cert. denied, 469 U.S. 1036 , 105 S.Ct. 512 , 83 L.Ed.2d 402 (1984). In each case, this court decided that the Speech or Debate Clause provided the congressional defendants with no protection from suit because the challenged acts fell outside the legislative sphere. See McSurely, 753 F.2d at 95, 99; Walker, 733 F.2d at 932 . The panels then went on to probe whether the judicially created doctrine of official immunity shielded the defendants, who were acting within the scope or their official authority. We concluded in each case that the congressional defendants had qualified immunity from the claims; the defendants, the court wrote, would prevail if they had not violated clearly established constitutional or statutory rights. See McSurely, 753 F.2d at 99-100; Walker, 733 F.2d at 932 . In other words, the court in each case held that a member of Congress acting outside the legislative sphere but within the scope of his official authority has the same immunity from constitutional and statutory claims as does a governmental official performing executive functions. See also Minton v. St Bernard Parish School Board, 803 F.2d 129, 135 (5th Cir.1986) (reaching the same conclusion with respect to state legislators, who the Supreme Court has held receive immunity comparable to that of members of Congress).

*333 In neither of the prior cases did we reach the issue of what kind of immunity members of Congress have from suits charging violations of the common law, because the suits at issue did not involve such claims. But it would be odd to say that members of Congress performing non-legislative official functions have the same kind of immunity from suits charging statutory or constitutional torts as governmental officers performing executive functions, but have a lesser kind of immunity (or no immunity at all) from suits charging violations of the common law. Yet this is precisely the ano-molous position in which the majority opinion leaves us. In stating that members of Congress performing non-legislative official functions have qualified immunity from suits charging constitutional or statutory torts, I would merely restate the holdings of two prior panels of this court. In stating that members of Congress performing such functions have absolute immunity from suits charging common law torts, I would merely state the obvious and inevitable corollary of these prior holdings.

I realize that the immunity that I would accord to Congressmen is not without cost. Granting members of Congress a measure of official immunity would effectively foreclose a number of meritorious civil damage suits. Some genuinely aggrieved parties would find themselves unable to recover monetary damages for the wrongs that they have suffered. And because at times “it is damages or nothing[,]” Bivens v. Six Unknown Named Agents, 403 U.S. 388, 410 , 91 S.Ct. 1999, 2012 , 29 L.Ed.2d 619 (1971) (Harlan, J., concurring), some plaintiffs would be unable to gain any meaningful relief.

I do not deny these costs, and I do not make light of them. Congressmen certainly do not always act wisely or productively, but it is not the function of judges to make that sort of determination. Concededly, for the person aggrieved and in search of a remedy, it is small comfort to know that the judicially created doctrine of official immunity serves the public good. But in determining the proper application of the official immunity doctrine, I would factor in this countervailing value. As Judge Learned Hand once wrote, “the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrong done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Gregoire, 177 F.2d at 581 . The balance courts have struck in other contexts is the balance I would strike in this case; there is no reason to strike another. The commonweal requires vigorous official action by members of Congress no less than by other participants in government. And a measure of immunity is no less a prerequisite of such action in this context than in any other. I would therefore hold, notwithstanding an appreciation of this holding’s costs, that members of Congress, like other governmental officials, are entitled to avail themselves of the doctrine of official immunity.

Deciding the immunity issue would not alone decide this case. Even if Congressmen may have official immunity, Sundquist would have official immunity from this libel suit only if he acted within the scope of his official authority when he sent letters to the Attorney General and the Legal Services Corporation and made statements to the press. If Sundquist was acting beyond the realm of his official authority, he could lay no claim to official immunity; he would be liable to the same extent as any private individual.

I would find that all of the acts challenged by Chastain were within Sund-quist’s official sphere. The Supreme Court has stated in no uncertain terms that exhorting federal officials to take action with respect to governmental matters is activity within the scope of a congressional member’s official authority. See Gravel, 408 U.S. at 625 , 92 S.Ct. at 2627 . Sundquist’s exhortations to the Attorney General and the Legal Services Corporation to investigate MALS — a federally funded body that Sundquist claimed was obstructing the administration of federal legislation — therefore rank as official activity. I would reach the same conclusion with respect to Sundquist’s statements to the press. In *334 Barr, supra, the Supreme Court held that an executive official was acting within the scope of his official authority when he issued an allegedly libelous press release detailing his views on a matter of wide public interest. See 360 U.S. at 574-75 , 79 S.Ct. at 1341 . The Court in that case wrote:

[W]e cannot say that it was not an appropriate exercise of the discretion with which an executive officer of petitioner’s rank is necessarily clothed to publish the press release here at issue_ [A] publicly expressed statement of the position of the agency head ... was an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively. It would be an unduly restrictive view of the scope of the duties of a policymaking executive official to hold that a public statement of agency policy in respect to matters of wide interest and concern is not action in the line of duty.

Id. Similarly, when a member of Congress makes statements to the press concerning his actions and policies with respect to a matter of interest and importance to his constituents, he acts within the scope of his official authority. Members of Congress, no less than executive officers, have both the authority and the responsibility to keep the public apprised of their activities and positions respecting such matters. Absent this authority and this responsibility, our government, which rests ultimately on an informed public opinion, could not so responsively or ably function. See Barr, 360 U.S. at 577 , 79 S.Ct. at 1342 (Black, J., concurring) (“The effective functioning of a free government ... calls for the widest possible understanding of the ... service rendered by all elective or appointed public officials or employees.”); W. Wilson, Congressional Government 303 (1885) (“It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees.... [U]nless Congress [does] these things ... the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct.”). Because Sundquist’s statements to the press involved a matter of concern and significance to his district — a matter relating directly to the functioning of government — they fell within the scope of his official authority. Sundquist should consequently be able to lay claim to official immunity.

The only remaining question is whether Sundquist would be entitled to absolute immunity or qualified immunity from Chas-tain’s suit. As I have stated, Sundquist would have absolute immunity from a suit alleging a common law tort, but only qualified immunity from a suit alleging a constitutional or statutory wrong. Chastain’s complaint charges libel, and courts have held repeatedly that libel, even when committed by a governmental official, is nothing more than a common law tort. See, e.g., Paul v. Davis, 424 U.S. 693, 711-12 , 96 S.Ct. 1155, 1165 , 47 L.Ed.2d 405 (1976). On appeal, however, Chastain argues that his complaint implicitly charges Sundquist with having violated both the First Amendment and certain statutory provisions relating to the Legal Services Corporation. Chastain therefore argued that he has alleged constitutional and statutory violation, from which Sundquist has only qualified immunity. This argument is unpersuasive; the complaint charges neither a constitutional nor a statutory tort. Chastain’s complaint alleges only libel, which is a violation of the common law. I would therefore hold that Sundquist has absolute immunity from the suit.

IV. Conclusion

In a free society, the power of elected officials is not absolute; it is cabined by the Constitution, by statute, and by common law. But not every transgression of the law by elected officials should give rise to civil liability. When an elected official violates the law in the course of performing functions essential to our government, the interests of private individuals in obtaining redress through monetary damages must sometimes yield to the interests of the broader public. I would therefore hold that members of Congress acting within the scope of their official authority have recourse to the doctrine of official immuni *335 ty. In this non-legislative sphere, I would hold that members receive absolute immunity from suits alleging common law torts and qualified immunity from suits alleging statutory or constitutional violations. In writing to the Attorney General and a committee of the Legal Services Corporation about a matter of public interest and importance and in making statements about that matter to the press, I believe Sund-quist acted within the scope of his official authority. Because Chastain’s complaint alleges only a violation of the common law, I believe Sundquist is absolutely immune from the suit. Therefore, I believe the district court acted appropriately in dismissing the complaint, and would affirm the court’s decision. From the majority’s complete rejection of any immunity for Congressman Sundquist,

I dissent.