# Petition — Butz v. Economou > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0913%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 438 U.S. 478 ## Text nes reme Court Ue S, Sup 6-709 3 leit a No. ie “ SL MCRMET TOD J CLERK | OCTOBER TERM, 1976 EARL L. BUTZ, ET AL., PETITIONERS Uv. ARTHUR N. ECONOMOU, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ROBERT H. BORK, Solicitor General, REX E. LEE, Assistant Attorney General, STEPHEN L. URBANCZYK, Assistant to the Solicitor General, ROBERT E. Kopp, ; BARBARA L. HERWIG, Attorneys, Department of Justice, Washington, D.C. 20530. INDEX Page Opinions below 2 Jurisdiction 2 Question presented 5. : 2 Statement 2 Reasons for granting the writ... 7 Conclusion Seem eee ca 21 I no ates la ES eS a CRE: RS ee Appendix D Ags CARE SR ee MOLLE CITATIONS Cases: Air East, Inc. vy. National Transportation Safety Board, 512 F.2d 1227, certio- rari denied, 423 U.S. 863 si sti 20 Apton v. Wilson, 506 F.2d 83 Sia fates 9 Barr v. Matteo, 360 U.S. 564. _ _ 6,7, 8, 9, 10, 11, 12, 13, 14, 19 Bivens v. Six Unknown Named Agents, 456 F.2d 1339 | i) Bradley v. Fisher, 13 Wall. 335 16,17 Conley v. Wilson, 538 F.2d 323 8 David vy. Cohen, 407 F.2d 1268 2 8 Economou v. Department of Agriculture, ea aCe 4 II Cases—Continued Page Expeditions Unlimited Aquatic Enter- prises, Inc. v. Smithsonian Institution, C.A.D.C., decided June 28, 1976 (No. 74-1899), vacated and petition for re- hearing en bane granted October 20, eal eR 2502 Soh SRS: Or 9,13 George Steinberg & Son, Inc. v. Butz, 491 SRE REE SS EE SGI Os os one 20 Gregoire v. Biddle, 177 F.2d 579, certio- rari denied, 339 U.S. 949 —_ > 5 Howard v. Lyons, 360 U.S. 593 —-. 10 Imbler v. Pachtman, 424 U.S. 409 8, 10, 11, 12, 16, 17, 18, 19 Mandel v. Nouse, 509 F.2d 10381, certio- rari denied, 422 U.S. 1008. 8-9 Mark v. Groff, 521 F.2d 1376. 9 Monroe v. Pape, 365 U.S. 167 10 Nadiak v. Civil Aeronautics Board, 305 F.2d 588, certiorari denied, 372 U.S. 913 20 Norton v. McShane, 332 F. 2d 855, certio- rari denied, 380 U.S. 981 - = i) Ove Gustavsson Contracting Co. v. . Floete, 299 F.2d 655, certiorari denied, 374 oS 2 j= ce ee Paul v. Davis, 424 U.S. 693 7 . 13, 14 Peterson v. Weinberger, 508 F.2d 45, certiorari denied, 423 U.S. 8380 9 Pierson v. Ray, 386 U.S. 547 9, 10, 16, 18 Scheuer v. Rhodes, 416 U.S. 232 _ 6, 9, 10, 11, 13, 14, 15 Scott v. Stansfield, L.R. 3 Ex. 220... 16 Spalding v. Vilas, 161 U.S. 483 } » States Marine Lines, Inc. v. Shultz, 498 een halabiaantsailasivnecinath g Ill Cases—Continued Page United States v. Karathanos, 531 F.2d 26, certiorari denied, July 6, 1976 (No. 75-1402 ) 13 Wood v. Strickland, 420 USS. 308 ; 6, 9,10, 11 Yaselli v. Goff, 275 U.S. 503, affirming per curiam 12 F.2d 396 16,17 Statutes and regulations: Commodity Exchange Act, Section 6(b), 7 U.S.C. 9 ... 3,4 Federal Aviation Act, 79 Stat. 779, as amended, 49 U.S.C. (Supp. V) i429 (a) | 20 Federal Insecticide, Fungicide and Ro- denticide Act, 86 Stat. 985, 7 U.S.C. (Supp. V) 136d(c) (2) 20 Occupational Safety and Health Act, 84 Stat. 1596, 29 U.S.C. 655(c) 20 42 U.S.C. 1983 10, 11, 13, 15, 16 17 C.F.R. 1.10 3 17 C.F.R. 1.17 3 Iu the Supreme Court of the United States OCTOBER TERM, 1976 No. EARL L. BUTZ, ET AL., PETITIONERS Vv. ARTHUR N. ECONOMOU, ET AL. PLi{TION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT The Solicitor General, on behalf of Earl L. Butz. et al. (the individual appellees in the court of ap- peals),’ petitions for a writ of certiorari to review that portion of the judgment of the United States Court of Appeals for the Second Circuit in this case that reversed the dismissal of the complaint as to petitioners. ? Due to an apparent oversight, the caption of the opinion and the judgment of the court of appeals does not include Donald A. Campbell, the Judicial Officer of the Department of Agriculture, who was named as a defendant in this action. We are informed that the court of appeals is in the process of amending the judgment to currect this mistake. (1) 2 OPINIONS BELOW The opinion of the court of appeals (App. A, infra, pp. la-22a) is reported at 535 F.2d 688. The opinion of the district court (App. B, infra, pp. 23a-28a) is not reported. JURISDICTION The judgment of the court of appeals (App. C, infra, pp. 29a-30a) was entered on April 23, 1976. A timely petition for rehearing with a suggestion for rehearing en bane was denied on July 23, 1976 (App. D, infra, pp. 3la-32a). On October 14, 1976, Mr. Justice Marshall extended the time within which to file a petition for a writ of certiorari to and including November 19, 1976. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether federal government officials have an ab- solute rather than a qualified immunity from suit for damages based upon their performance of of- ficial duties in connection with administrative en- forcement proceedings. STATEMENT This is a suit seeking damages of $32 million from employees of the Department of Agriculture based upon their actions in initiating and conducting, al- legedly wrongfully and maliciously, an administrative enforcement proceeding for violations by respondent of the Commodity Exchange Act. The district court dismissed the suit, holding that the employees had absolute immunity from suit for acts done as par‘ of their official duties. The court of appeals re- versed, ruling that the employees’ immunity was only qualified, not absolute. 1. Respondent Arthur N. Economou Co., Inc., which is controlled by respondent Economou (re- spondents are hereinafter referred to as “‘respond- ent’), was registered with the Department of Agri- culture as a trader in commodities futures (C..A. App. 12a).* As such it was required to maintain the minimum capital balance prescribed by the Secretary of Agriculture. 17 C.F.R. 1.17; see id. at 1.10. In February 1970, following a routine audit of re- spondent by the Commodity Exchange Authority, pe- titioner Lyng, Assistant Secretary of Agriculture, issued an administrative complaint pursuant to Sec- tion 6(b) of the Commodity Exchange Act, 7 U.S.C. 9, alleging that respondent, while a registered fu- tures commission merchant, willfully failed to main- tain that balance (C.A. App. 12a-13a), and direct- ing respondent to show cause why its registration should not be revoked. Following another audit, an amended complaint was issued alleging additional failures to meet the minimum capital requirements (id. at 13a). After a hearing, petitioner Bain, the 2“C A. App.” refers to the appendix to the appellees’ brief in the court of appeals, a copy of which we are lodging with the Clerk of the Court. 4 Chief Hearing Examiner of the Department, sus- tained the complaint in August 1971 (ibid.). On January 15, 1973, petitioner Campbell, the Ju- dicial Officer of the Department, to whom the Secre- tary has delegated his authority to decide enforce- ment proceedings under the Commodity Exchange Act (C.A. App. 3a; see 7 U.S.C. 9), affirmed the hear- ing examiner’s decision and suspended respondent’s registration for 90 days (see Economou v. Depart- ment of Agriculture, 494 F.2d 519 (C.A. 2)). In March 1974, the court of appeals vacated the order of the Judicial Officer on the ground that “the es- sential finding of willfulness * * * was made in a proceeding instituted without the customary warn- ing letter,” which rendered the finding of willfulness “erroneous on the record taken as a whole, and the sanctions im;sed unwarranted.” Ibid. 2. During the pendency of respondent’s adminis- trative appeal to the Judicial Officer from the hear- ing examiner’s decision, respondent filed the present suit seeking $32 million damages. The defendants were the Department of Agriculture and the Com- modity Exchange Authority, and the petitioners here, who are the former Secretary of Agriculture, the As- sistant Secretary of Agriculture, various officials and auditors of the Authority who were involved in the administrative enforcement action, and the Chief Hearing Officer and Counsel of the Department (C.A. App. 10a-19a). An amended complaint added as a defendant petitioner Campbell, the Department’s Ju- dlicial Officer. PA ES em 5 The amended complaint alleges principally that the defendants conspired to deprive respondent of prop- erty without due process of law by wrongfully and maliciously instituting the administrative proceedings against him.’ The complaint alleges that respondent had not willfully violated the Act, that he had not been given notice and an opportunity to correct the alleged deficiencies prior to the institution of en- forcement proceedings, and that the proceedings should not have been instituted since respondent had ceased operating as a futures commission merchant. The complaint also alleges that the defendants know- ingly issued false and deceptive press releases in con- nection with the administrative proceedings. The complaint asserts that the defendants took these ac- tions for the purpose of ruining respondent’s busi- ness, in retaliation for his outspoken criticism of the regulatory activities of the Authority. After respondent twice sought unsuccessfully to enjoin the Department’s administrative proceeding (C.A. App. la-7a, ?0a-21a) and following the court of appeals’ vacation of the Judicial Officer’s order (see supra, p. 4), the defendants moved to dismiss the complaint on the grounds that the individual de- fendants were immune from suit and that the action * We are lodging a copy of the second amended complaint (see App. A, infra, p. 5a) with the Clerk of the Court. It includes a claim for trespass, but the allegations are con- clusory (see App. B, infra, pp. 23a-24a n. 1), and peripheral to the principal thrust of respondent’s case. The trespass claim was not mentioned by the court of appeals in its de- scription of the complaint (see App. A, infra, pp. 3a-4a). 6 against the Department of Agriculture and the Com- modity Exchange Authority was barred by sovereign immunity. As a part of the government’s opposition to one of the earlier motions for an injunction, a detailed affidavit had been filed describing the ac- tions taken by each individual defendant in the ad- ministrative proceedings that formed the basis of the judicial complaint (C.A. App. 10a-19a).* On May 22, 1975, the district court dismissed the suit, holding that the individual defendants were absolutely im- mune and that sovereign immunity barred the suit against the Department of Agriculture and the Com- modity Exchange Authority (App. B, infra, pp. 23a- 28a). The court of appeals affirmed the dismissal as to the Department and the Authority but reversed as to the individual defendants (petitioners here) and remanded for further proceedings (App. A, infra, pp. la-22a). The court stated with respect to official immunity (id. at 8a) that “[{h]ad Barr [v. Matteo, 360 U.S. 564] represented the last word in this evolv- ing area, we might be inclined, as was the district court, to follow it in this case.” But the court of appeals, relying largely upon its reading of Scheuer v. Rhodes, 416 U.S. 232, and Wood v. Strickland, 420 U.S. 308, concluded (App. A, infra, p. 20a) that “the individual defendants do not require and are not entitled to absolute immunity * * *.” Instead, the court held (ibid.) that petitioners could “avaii * With respect to petitioner Butz, the affidavit states (C.A. App. 14a) that “[h]Je has not been directly involved in any of the actions alleged in the complaint herein.” te cs te ee 7 themselves of the defense of qualified ‘good faith, rea- sonable grounds’ immunity of the type approved by the Supreme Court in Scheuer and Wood.” REASONS FOR GRANTING THE WRIT This case presents important questions concerning the scope of the immunity from suit for damages that federal government officials have for alleged torts committed in the performance of their official duties. In Barr v. Matteo, 360 U.S. 564, this Court held that those officals have absolute immunity. The question is whether, as the court of appeals ruled, subsequent decisions of this Court holding that state officials sued under the Civil Rights Act have only a qualified immunity have so undermined Barr as to require that federal officials also have only that immunity. The case also presents the related question whether government officials engaged in the preparation, trial and adjudication of administrative proceedings have absolute immunity from suit similar to that of judges and prosecutors. The government submits that, contrary to the view of the court of appeals, Barr has not been under- mined by the subsequent decisions involving state officials, and that its rationale is no less compelling today than when it was decided. Accordingly, we urge that federal officials should continue to have the absolute immunity recognized in Barr. We also contend that the basis of the traditional absolute immunity of judges and prosecutors is no less ap- plicable to officials performing substantially identical 8 functions in administrative proceedings; they also require absolute immunity in order to insure “the vigorous and fearless performance of * * * [their] duty that is essential to the proper functioning of the * * * [regulatory] system” (Jmbler v. Pachtman, 424 U.S. 409, 427-428). 1. a. In Barr v. Matteo, supra, the plurality opin- ion held that the acting director of an agency had an absolute immunity from a suit for damages ¢ ris- ing out of a defamatory press release that he had issued in his official capacity. The rationale was that it is “important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties—suits which would con- sume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of govern- ment” (360 U.S. at 571). The doctrine of official immunity recognized in Barry rests upon long standing precedent (360 U.S. at 570-574; see Spalding v. Vilas, 161 U.S. 488; Gregoire v. Biddle, 177 F.2d 579 (C.A. 2), cer- tiorari denied, 339 U.S. 949). It has been generally followed by the lower courts, which have applied it in a wide variety of contexts. E.g., Conley v. Wilson, 538 F.2d 323 (C.A. 4), petitions for a writ of cer- tiorari pending, Nos. 76-206 and 76-381; David v. Cohen, 407 F.2d 1268 (C.A.D.C.); Mandel v. Nouse, 509 F.2d 1031 (C.A. 6), certiorari denied, 422 U.S. 9 1008; Norton v. McShane, 332 F.2d 855 (C.A. 5), certiorari denied, 380 U.S. 981; Ove Gustavsson Con- tracting Co. v. Floete, 299 F.2d 655 (C.A. 2), cer- tiorari denied, 374 U.S. 827; Peterson v. Weinberger, 508 F.2d 45 (C.A. 5), certiorari denied, 423 U.S. 830. There have.been a few exceptions. See Expedi- tions Unlimited Aquatic Enterprises, Inc. v. Smith- sonian Institution (C.A.D.C.), decided June 28, 1976 (No. 74-1899), vacated and petition for rehearing en bane granted October 20, 1976; Apton v. Wilson, 506 F.2d 883 (C.A.D.C.); Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (C.A. 2); Mark v. Groff, 521 F.2d 1876 (C.A. 9); States Marine Lines, Ine. v. Shultz, 498 F.2d 1146 (C.A. 4). The court of appeals here stated (App A, infra, p. 8a) that it “might be inclined, as was the district court, to follow [Barr] in this case * * *,” “[h]ad Barr represented the last word in this evolving area ** *” But the court of appeals concluded that Barr had been sub silentio overruled or limited to its spe- cific facts by the subsequent decisions in cases such as Scheuer v. Rhodes, 416 U.S. 232, Wood v. Strick- land, 420 U.S. 308, and Pierson v. Ray, 386 U.S. 547. Thus, although the court left undisturbed the dis- trict court’s finding (App. B, infra, p. 28a) that the allegedly tortious conduct of petitioners was “both within the scope of their authority and discretion- ary,” it ruled that petitioners had only a qualified immunity of the kind applied in Scheuer and Wood. Contrary to the assumption of the court of ap- peals, the subsequent decisions of this Court have not 10 overruled or undermined Bary. Scheuer, Wood, and Pierson involved suits against state executive officials sued under 42 U.S.C. 1983. In determining the scope of those officials’ immunity in that context, the Court had “to take into account * * * the purposes of 42 U.S.C. 1983” (Scheuer v. Rhodes, supra, 416 U.S. at 243), a statute explicitly intended to give a remedy to one who is deprived of a constitutional right by state officials (see Monroe v. Pape, 365 U.S. 167). Those considerations were not present in Barr and are not present in this case.’ Recognizing that it did not “write on a clean slate’ with respect to 42 U.S.C. 1983, the Court in Scheuer v. Rhodes, supra, 416 U.S. at 243, began its analysis by stating: “It can hardly be argued, at this late date, that under no circumstances can the officers of state government be subject to liability under this statute.” See also /mbler v. Pachtman, supra, 424 U.S. at 433-434 (concurring opinion of Mr. Justice White); Wood v. Strickland, supra, 420 U.S. at 315." In contrast, as the Court in Scheuer °In cases against state officials the Court has looked ini- tially to state common law in determining their immunity, see Imbler v. Pachtman, supra, 424 U.S. at 418-424; Pierson v. Ray, supra, 386 U.S._at 555, whereas the immunity of federal officials depends upon federal law, see Barr v. Matteo, supra; Howard Vv. Lyons, 360 U.S. 593. “In Imbler v. Pachtman, supra, the Court held that a state prosecutor was absolutely immune from a suit under 42 U.S.C. 1983 arising out of the performance of his duty to initiate and pursue a criminal prosecution. However, as Mr. Justice White pointed out in his concurring opinion: “It is manifest * * * that all state officials as a class cannot be im- 11 pointed out (416 U.S. at 247), Barr v. Matteo arose “ijn a context other than a § 1983 suit.” Neither Barr nor this case involves a cause of action under a statute, like 42 U.S.C. 1983, that is intended to pro- vide a remedy against individual government officials. Thus, in this ease, unlike Scheuer and Wood, the Court does not have to “take into account” a legislative enactment that is inconsistent with absolute im- munity. The reasoning that underlies Barr continues to be valid and supports absolute immunity for petitioners. The actions of petitiorers for which damages are sought were all taken within the scope and as part of their duties to enforve the Commodity Exchange Act. Unlike Barr, where the question whether the official’s act was “within the outer perimeter of [his] line of duty” was considered “a close one” (360 U.S. at 574, 575), the acts complained of here are at the core of petitioners’ responsibilities. [Enforcement of regulations is an essential function of the executive branch. mune absolutely from damage suits under 42 U.S.C. § 1985 and that to extend absolute immunity to any group of state officials is to negate pro tanio the very remedy which it ap- pears Congress sought to create. * * * Thus, * * * the Court has not extended absolute immunity to such officials in the absence of the most convincing showing that the im- munity is necessary” (424 U.S. at 433-434, emphasis in orig- inal; see id. at 436-437). Similarly in Wood v. Strickland, supra, 420 U.S. at 322, the Court stated that the extension of absolute immunity to the state officials in that case would “deny much of the promise of § 1983.” 12 Judge Learned Hand explained the problem many years ago in Gregoire v. Biddle, supra, 177 F.2d at 581 (quoted in Barr v. Matteo, supra, 360 U.S. at 571), when he stated that “an official, who is in fact guilty of using his powers [maliciously] * * *, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery.” * But there is no way in which un- just complaints can be avoided. Often “it is im- possible to know whether the claim is well founded until the case has been tried * * *” (ibid.),° and even then an official “may * * * find himself hard put to it to satisfy a jury of his good faith” (ibid.). Con- sequently, even the blameless official who is sued would often be subjected “to the burden of a trial and to the inevitable danger of its outcome” (ibid.). It is easy for persons who believe they have been unfairly treated by government officials to charge that those officials acted “maliciously” in perform- ing their duties. It is the threat of such claims that * Although there must be means to punish and deter mis- conduct by government officials, ‘other sanctions than civil tort suits [are] available to deter the executive official who may be prone to exercise his functions in an unworthy and irresponsible manner” (Barr v. Matteo, supra, 360 U.S. at 576). * As the Court explained in Jmbler v. Pachtman, svpra, 424 U.S. at 419, n. 13, absolute immunity “defeats a suit at the outset,” whereas “[t]he fate of an official with qualified im- munity depends upon the circumstances and motivations of his actions, as established by the evidence at trial.” 13 is likely “appreciably [to] inhibit the fearless, vigor- ous, and effective administration of policies of govern- ment.” Barr v. Matteo, supra, 360 U.S. at 571. For these reasons, “it has been thought * * * better to leave unredressed the wrongs done by dishonest of- ficers than to subject those who try to do their duty to the constant dread of retaliation” (Gregoire v. Biddle, supra, 177 F.2d at 581). This Court has not overruled Barr; to the con- trary, the Court recently cited it with seeming ap- proval. See Scheuer v. Rhodes, supra; Paul v. Davis, 424 U.S. 693.° In the cases involving state officials the Court has stressed that a qualified immunity was necessary to protect the rights granted in 42 U.S.C. 1983 (see p. 10 and n. 6, supra). If Barr is no longer viable, it is this Court, and not the court of appeals, that should so announce." b. The allegation in respondent’s complaint that petitioners’ conduct deprived him of his property without due process of law does not call for a dif- * As Judge Leventhal concluded in his dissenting opinion in Exrpesitions Unlimited Aquatic Enterprises, Inc. Vv. Smithso- nian Institution, supra, slip op. 13: “There is too much to be said for the Barr choice, there is too much hard work and hard thought when the problem was faced squarely by great judges like John Harlan and Learned Hand, to sweep it aside as the detritus of a doctrine that has been nibbled away sub _ silentio.”’ ’” As the Second Circuit has stated on other occasions (e.g., United States v. Karathanos, 531 F.2d 26, 32 (C.A. 2), certio- rari denied, July 6, 1976 (No. 75-1402)): “‘[WJe continue to believe that the Supreme Court should retain the exclusive privilege of overruling its own decisions * * *.’” 14 ferent result.'' Respondent’s complaint here involves basically only a charge of malicious prosecution and libel. The fundamental character of that claim is not altered because respondent has added the al- legation that the conduct constituting those torts de- nied him due process. Such a charge can almost always be made in any tort claims case, and the form in which the pleading is drafted cannot obscure the true nature of the claim.” ce. If contrary to our submission, this Court’s sub- sequent decisions have overruled or limited Barr v. Matteo, then we submit that the qualified immunity that state executive officials have under Scheuer v. Rhodes provides inadequate protection for federal officials, and that the Court should address the ques- tion of the scope and meaning of qualified immunity ''Respondent does not identify the “property” interest which he alleges the petitioners’ conduct denied him. He has not been denied any property interest in his license to con- duct business as a futures commission merchant, since the court of appeals vacated the administrative order suspending that license. To the extent respondent relies upon injury to his business reputation, that is not a “property” interest pro- tected by the due process clause. See Paul v. Davis, supra. '* Respondent’s principal claim in his complaint appears to be that the allegedly malicious conduct of government officials damaged his business reputation to his economic detriment. That interest is similar to, and certainly no greater than, that involved in Barr, in which the complaint alleged that damage to personal reputation resulted from a defamatory press re- lease. Indeed, part of respondent’s claim here rests upon an allegedly defamatory press release and, to that extent, is vir- tually identical to the claim in Barr. oo 15 in the federal context. The qualified immunity recog- nized in Scheuer, which requires “the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief” (416 U.S. at 247-248), would as a practical matter frequently subject federal officials to a full trial and possible liability whenever their official actions are subsequently held erroneous. That result would be inconsistent with the under- lying reason for immunity in this area—‘‘the neces- sity of permitting officials to perform their official functions free from the threat of suits for personal liability” (Scheuer v. Rhodes, supra, 416 U.S. at 239). Scheuer itself stated (id. at 249) that the cases there “present[ed] no occasion for a definitive exploration of the scope of immunity available to state executive officials * * *.” A fortiori, Scheuer did not definitively define the immunity of federal officials. If those officials have only a qualified im- munity, they require broader protection than the Court outlined in Scheuer for state officials sued un- der 42 U.S.C. 1983. 2. This case presents the additional important question whether federal government officials have absolute immunity from suits for damages for their actions in prosecuting and adjudicating administra- tive enforcement proceedings. Judges and prosecu- tors traditionally have had absolute immunity for acts done in the performance of their judicial and prosecutorial functions. The same policy reasons that underlie that immunity also require absolute immun- 16 ity for federal officials performing comparable func- tions in administrative enforcement proceedings. The absolute immunity of judges and prosecutors is well settled. Bradley v. Fisher, 13 Wall. 335; Ya- selli v. Goff, 275 U.S. 503, affirming per curiam 12 F.2d 396 (C.A. 2); see Pierson v. Ray, supra, and Imbler v. Pachtman, supra (holding that judges and prosecutors have absolute immunity even in suits under 42 U.S.C. 1983). In Bradley v. Fisher, supra, 13 Wall. at 347, the Court explained that “it is a general principle of the highest importance to the proper administration of justice that a judicial of- ficer, in exercising the authority vested in him, shall be free to act upon his own convictions, without ap- prehension of personal consequences to himself. Li- ability to answer to every one who might feel himself aggrieved by the action of the judge, would be in- consistent with the possession of this freedom * * *.” As this statement indicates, the immunity “is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public” (Scott v. Stansfield, L.R. 3 Ex. 220, 223, quoted in Pierson v. Ray, supra, 386 U.S. at 554), which has a strong in- terest in the independent and fearless performance of duty by “judicial officer[s].” The need for absolute, as opposed to qualified, im- munity stems in part from the practical considera- tion that the nature of the adjudicatory function— the resolution of controversies, some of which involve large personal or financial stakes as well as difficult legal and factual questions—-makes the adjudicator a 17 particularly likely and vulnerable target for attack by individuals who consider themselves aggrieved by his judgment. See Bradley v. Fisher, supra, 13 Wall. at 348, The absolute immunity of prosecutors similarly “is grounded on principles of public policy.” Yaselli v. Goff, supra, 12 F.2d at 406. The Court in /moler v. Pachtman, supra, was concerned that a qualified im- munity, although it would permit redress for the genuinely wronged, would expose “even * * * the honest prosecutor” to a “substantial danger of liabil- ity” (424 U.S. at 425), with consequences that would “disserve the broader public interest” (id. at 427). The likelihood of unfounded litigation and the ex- posure to liability, the Court feared, “would cause a deflection of the prosecutor’s energies from his pub- lic duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust” (id. at 423). These considerations are equally applicable to of- ficials performing prosecutorial and judicial func- tions in administrative enforcement proceedings. They, too, are likely to be deterred from the vigorous and uninhibited initiation, prosecution and decision of enforcement proceedings—which are essential to the effective functioning of federal regulatory pro- grams—by the threat of “harassment by unfounded litigation” if their “case misfires’” (/mbler v. Pacit- man, supra, 424 U.S. at 423, 421). As in the case of judges and prosecutors, a qualified immunity— under which the official would be “constrained in 18 making every decision by the consequences in terms of his own potential liability in a suit for damages” (id. at 424-425)—-would not be adequate to insure “the vigorous and fearless performance” of duty (id. at 427). The present case compellingly illustrates the need for absolute immunity. Two of the petitioners, Ju- dicial Officer Campbell and Hearing Examiner Bain, have been sued for their action in presiding over and deciding the administrative action against respond- ent.” The decision of the court of appeals, which exposes these officials to the threat of multi-million dollar personal liability, inevitably is likely to affect adversely the actions of all government officials whose function is to decide administrative cases."* '® As in Pierson Vv. Ray, supra, 386 U.S. 553, there is no indication that the petitioners played any role other than to decide the case before them. To the extent that their decision was erroneous, the error was subject to correction by the court of appeals—as happened in this case (see p. 4, supra). '* The court of appeals suggested (App. A, infra, pp. 18a- 19a) that administrative law judges generally exercise less discretion than their counterparts in the judicial context, and that the outcome of administrative proceedings has less of an impact upon defendants. Administrative enforcement pro- ceedings, however, frequently involve complex issues and re- quire the exercise of considerable discretion by the adminis- trative law judge. Moreover, such proceedings often involve important and hotly contested issues. Administrative pro- ceedings authorized by the Securities and Exchange Com- mission against publicly-held companies, broker-dealers and accountants for violations of the securities laws, proceedings by the Food and Drug Administration against doctors and drug companies for selling unsafe or ineffective products, and actions by the Federal Trade Commission to remedy anti- 19 A similar analysis is applicable to those petitioners who were involved in initiating and prosecuting the enforcement proceeding.’’ They performed, in the administrative proceeding, the same functions a prosecutor performs in a judicial proceeding. These trust violations or false advertising, are only a few examples of administrative proceedings which are closely analogous, both in their intensely adversarial context and in the effect of the sanctions imposed, to criminal trials. These proceed- ings often result in far-reaching and precedent-setting deci- sions in such fields as antitrust, securities regulation, con- sumer protection and public health, which are of major im- portance to the regulation of the industries involved. The court of appeals also seemed to suggest (id. at 19a- 20a) that the separation of powers principle is an additional ground for the absolute immunity of judges which does not apply to administrative law judges. But prosecutors, who are members of the executive branch, have essentially the same immunity as judges. The question of immunity is not to be determined by “judicial fiat that officials in different branches of government are differently amenable to suit” (Imbler Vv. Pachtman, supra, 424 U.S. at 421) or by reference to the title of an individual’s office; it is “the duties with which the par- ticular officer * * * is entrusted * * * which must provide the guide in delineating the scope of the * * * executive officer[’s] * * * immunity from * * * suit{ ]” (Barr v. Matteo, supra, 360 U.S. at 573-574). '° This includes netitioner Lyng, Assistant Secretary of Agriculture for Marketing and Consumer Services, who issued the complaint; petitioner Caldwell, who participated in the initiation of prosecution; petitioner Davis, the administrative prosecutor; and, to the extent they participated in the prose- cution, petitioners Wolkis, Robinson, Kirchhoff, and McMinn (C.A. App. 10a-19a). In addition, petitioners Caldwell, Reb- inson, Kirchhoff, and McMinn, who participated in the deci- sion to initiate the investigation, also may be entitled to this immunity, since the decision to make an investigation is a preliminary step looking to the administrative enforcement proceedings. 20 21 Officials also must be free to make decisions—both CONCLUSION in initiating and in conducting an enforcement ac- ; ; ' The petition fo writ of certi i should be tion—based upon an independent exercise of judg- pecition s0r & WII OF Ceruorar! snou : . ; ‘ ranted, ment, without always having to consider the possi- s bility of substantial personal liability if their deci- Respectfully submitted. sions should ultimately prove to have been unwise or erroneous.” “4 OBERT H. BORK, ’ The court of appeals suggested (App. A, infra, p. 20 n. 8) R at 5 ; : : : : Solicitor General. that absolute immunity for those performing prosecutorial functions in the administrative context is unnecessary since REX E. LEE, administrative proceedings ‘of the type involved in the pres- Assistant Attorney General. ent case ; * * usually turn more on documentary proof “9 STEPHEN L. URBANCZYK, the veracity of witnesses, and involve fewer constraints ) Assistant to the Solicitor General, time and * * * information” than a criminal prosecution. The need for absolute immunity to allow administrative prosecu- ROBERT E. Kopp, tors to act vigorously exists regardless of the type of evidence BARBARA L. HERWIG, used or the time constraints involved. In any event, the Attorneys. court’s suggestion rests on dubious factual assumptions. NovEMBER 1976. While the issue in this particular administrative proceeding —whether the respondent maintained the minimum capital balance prescribed by regulation—may have involved largely documentary proof, many, if not most, administrative en- forcement proceedings involve extensive oral testimony. See, e.g., Air East, Inc. v. National Transportation Safety Board, 512 F.2d 1227 (C.A. 3), certiorari denied, 423 U.S. 863; George Steinberg & Son, Inc. v. Butz, 491 F.2d 988 (C.A. 2); Nadiak v. Civil Aeronautics Board, 305 F.2d 588 (C.A. 5), certiorari denied, 372 U.S. 913. Often they involve con- straints of time comparable to those in criminal trials. See, é.g., suspension proceedings under the Federal Insecticide, Fungicide and Rodenticide Act, 86 Stat. 985, 7 U.S.C. (Supp. V) 136d(c) (2), revocation of certification proceedings under the Federal Aviation Act, 72 Stat. 779, as amended, 49 U.S.C. (Supp. V) 1429(a), and proceedings for the issuance of emer- gency temporary standards under the Occupational Safety and Health Act, 84 Stat. 1596, 29 U.S.C. 655(c). On the other hand, many criminal proceedings involve primarily documen- tary evidence. la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 749-—September Term, 1975 (Argued February 26,1976 Decided April 23, 1976) Docket No. 75-6050 ARTHUR N. ECONOMOU, PLAINTIFF-APPELLANT —against— UNITED STATES DEPARTMENT OF AGRICULTURE; EARL L. Butz, Secretary of Agriculture; RICHARD T. LYNG, Assistant Secretary of Agriculture; Com- MODITY EXCHANGE AUTHORITY; ALEX C. CALD- WELL, Act Administrator, Commodity Exchange Authority; CHARLES E. RoBINSON, Director, Com- pliance Division, Commodity Exchange Authority; RICHARD E. KIRCHOFF, Deputy Director, Registra- tion and Audit Division, Commodity Exchange Authority; JACK W. BAIN, Chief Hearing Exam- iner, United States Department of Agriculture; RICHARD W. DAvIs, JR., Counsel, United States Department of Agriculture; REED McMINN, Re- gional Administrator, New York Regional Office, Commodity Exchange Authority; CLEMENT GRoss, Auditor, Commodity Exchange Authority; MURRAY A. WoLKIs, Auditor, Commodity Exchange Au- thority; EDWARD FITZPATRICK, Auditor, Com- modity Exchange Authority, DEFENDAN'TS-APPELLEES 2a Before: MANSFIELD, TIMBERS and MESKILL, Circuit Judges. MANSFIELD, Circuit Judge: Having long recognized the privilege of judges and legislators as a complete defense to civil damage actions based on their official conduct, see Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872) (judges) ; Tenney v. Brandhove, 341 U.S. 367 (1951) (legis- lators),' the Supreme Court in recent years has focused more sharply upon the scope of the immunity to be extended to those employed by the executive branch of a government, including state prosecutors, Imbler vy. Pachtman, U.S. , 44 US.L.W. 4250 (Mar. 2, 1976); school board members, Wood v. Strickland, 420 U.S. 308 (1975); top state officers, Scheuer v. Rhodes, 416 U.S. 282 (1974), and police- men, Pierson v. Ray, 386 U.S. 547 (1967). This ap- peal raises the issue with respect to the United States Department of Agriculture, the Commodity Exchange Authority (“CEA” herein), and various officials of these agencies who were sued for damages based on their alleged wrongful and malicious enforcement of the Commedity Exchange Act, 7 U.S.C. $§ 1, et seq., against the plaintiffs. Judge Lloyd F. MacMahon of the Southern District of New York dismissed the damage suit on the ground that the defendants are ‘Members of Congress are expressly protected by Art. 1, § 6 of the Constitution, which provides that, “for any speech or debate in either House, they shall not be questioned in any other place.” 3a entitled to absolute immunity from such liability. We affirm the dismissal as to the administrative agencies on the ground that federal! jurisdiction over the claims against them is lacking. In all other respects the district court’s order is reversed and the case re- manded for further proceedings consistent with this opinion. On February 19, 1970, the Secretary of Agricul- ture, as a result of a CEA audit of Arthur N. Economou and his trading company, Arthur N. Economou Co., Ine. (collectively referred to as “ap- pellant” herein), issued an administrative complaint pursuant to the Commodity Exchange Act, 7 U.S.C. $9 (“the Act” herein), alleging that appellant, while a registered futures commission merchant, had failed to maintain the minimum prescribed capital balance for such activity as required by rules promulgated under the Act, see 17 C.F.R. $1.17, and directine appellant to show cause why his registration should not be revoked. Following another such audit, an amended complaint was issued against appellant on June 22, 1970. After a hearing before a Department of Agriculture hearing examiner, at which appellant appeared pro se, a report adverse to appellant was issued by the examiner on August 17, 1971. In the meantime, while the examiner’s report, to which appellant excepted, was under review by the Judicial Officer of the Department of Agriculture, appellant commenced the present action for $52,- 000,000 damages in the district court against some 13 defendants, including the Department of Agricul- 4a ture, Commodity Exchange Authority, the Secretary and Assistant Secretary of Agriculture. various ad- ministrators, and officials and auditors of the CEA, and the Chief Hearing Officer and Counsel of the Department of Agriculture. The complaint alleged in substance that defendants, acting outside their discretionary duties and functions, had wrongfully and maliciously instituted the proceedings against him for the purpose of ruining his business reputation, retaliating against him for his previous outspoken criticism of the defendants’ activities, and causing harm to his business. Appellant alleged that he had not wilfully violated the Act, that he had not been given notice and an opportunity to correct the alleged violations of CEA rules before the institution of the administrative proceedings against him, that the pro- ceeding should have been terminated since he was no longer engaged in the regulated activity, and that in connection with their prosecution of that proceed- ing the defendants had knowingly caused deceptive press releases to be issued, which falsely indicated to the public that appellant’s financial resources had deteriorated. As a result, the complaint further al- leged, some of appellant’s customers were no longer willing to do business with him, his credit standing was damaged, and appellant was forced to expend large sums of money to defend himself against the false charges. The district court twice denied appellant’s applica- tion for preliminary injunctive relief restraining the CEA enforcement proceeding against him. There- 5a after appellant chose to pursue his lawsuit in a desul- tory fashion, taking little or no action for long per- iods. While his damage action thus remained dor- mant, the Agriculture Department’s Judicial Officer affirmed the hearing examiner’s findings, whereupon appellant petitioned us for review. On March 28, 1974, we granted appellant’s petition and set aside the Department’s enforcement order on the ground - that “the essential finding of wilfulness . . . was made in a proceeding instituted without the cus- tomary warning letter,” rendering it “erroneous on the record taken as a whole, and the sanctions im- posed unwarranted,” 494 F.2d 519 (2d Cir. 1974). After another long period of inaction, broken only by the district court’s indication that the case might be dismissed for non-prosecution, the defendants’ mo- tion to dismiss appellant’s second amended complaint was granted by Judge MacMahon on May 22, 1975, on the ground that the devendants were entitled to absolute immunity. From this decision plaintiffs ap- peal. DISCUSSION We need not tarry over the district court’s dismis- sal of appellant’s claims against the Department of Agriculture, and the Commodity Exchange Author- ity, which was clearly correct. Congress has not au- thorized either entity to be sued in its own name, and thus we lack jurisdiction over them. See Black- mar v. Guerre, 342 U.S. 512 (1952). Nor is there any reason to accept appellant’s suggestion that the complaint now be amended to name the United States 6a of America as a defendant, since the “intentional tort’ exclusion of the Federal Tort Claims Act, 28 U.S.C. § 2680(h), would deny us jurisdiction over such claims against the United States, even though appellant’s claims of malicious prosecution, abuse of process, and libel be cast in constitutional termis.° See Peterson v. Weinberger, 508 F.2d 45, 50 (5th Cir. 1975), cert. denied, 44 U.S.L.W. 3201 (Oct. 6, 1975). Turning to the claims against the individual de- fendants, the district court based its dismissal mainly upon principles expressed in the plurality opinion of Justice Harlan in Barr v. Matteo, 360 U.S. 564 (1959), which we followed in Ove Gustavsson Con- tracling Co. v. Floete, 299 F.2d 655 (2d Cir. 1962). In Barr v. Matteo, the Supreme Court, by a 5 to 4 vote, held that the Acting Director of the Office of Rent Stabilization, a federal agency, was entitled to an absolute privilege against liability in damages for a defamatory press release issued by him, once it had been established that the action taken “was within the outer perimeter of [his] line of duty,” even though his action was not a duty imposed on him but rather an exercise of discretion and was alieredly prompted by sialice toward the plaintiff. In an opinion shared by three other justices (Frank- 2 The acts of which appellant complains all occurred before March 16, 1974 when § 2680(h) was amended by Pub. L. 93- 253, 88 Stat. 50, to allow suits against the United States on the basis of certain intentional torts if committed by federal “investigative or law enforcement officers.” In any event, the defendants in this case do not appear to be such officers. 7a furter, Clark and Whittaker), Justice Harlan rea- soned that an absolute privilege was required for the reason “that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties—suits which would con- sume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” 360 U.S. at 571. Recognizing that “there may be occasional instances of actual injustices which will go unredressed,” he concluded that such a price is “a necessary one to pay for the greater good, especially since “other sanc- tions than civil tort suits [are] available to deter the executive official who may be prone to exercise his functions in an unworthy and irresponsible manner,” 360 U.S. at 576. Separate dissenting opinions were filed by Chief Justice Warren (in which Justice Doug- las concurred) and Justices Brennan and Stewart. Accepting the view that an absolute privilege might attach to intra-agen, reports or statements of Cabi- net members, Justice Warren concluded that in the case of lesser officials a qualified privilege would suffice to enable them to perform their duties with- out undue harassment and at the saiiie time protect a victim of their maliciously wrongful conduct. Concluding that the alleged conduct of the defend- ants in the present case was “within the outer perimeter of their authority” and involved the exer- 8a cise of discretion, Judge MacMahon dismissed the complaint on the ground that the defendants were entitled to immunity. Had Barr represented the last word in this evolving area, we might be inclined, as was the district court, to follow it in this case, de- spite the melange of differing views expressed by various members of the Court on the subject in that case, no one of which commanded a majority. How- ever, the Court has since elucidated its views in a series of decisions which were neither cited by the government to the district court nor discussed by Judge MacMahon. The principles developed in these later cases lead us to the conclusion that the dis- trict court’s summary dismissal cannot stand. We start with Pierson v. Ray, 386 U.S. 547 (1967), which posed the question of whether petitioners there, black clergymen who were arrested by police for at- tempting to use a segregated bus terminal waiting room and tried before a municipal p