Liability For Official Acts
RODNEY P. WESTFALL, ET AL., PETITIONERS V. WILLIAM T. ERWIN, SR.,
and EMELY ERWIN
In the Supreme Court of the United States
October Term, 1986
Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eleventh Circuit
The Solicitor General, on behalf of Rodney P. Westfall, Osburn
Rutledge, and William Bell, petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for the
Eleventh Circuit in this case.
PARTIES TO THE PROCEEDING
In addition to the parties listed in the caption, Osburn Rutledge
and William Bell were defendants in the district court and are
petitioners in this Court.
TABLE OF CONTENTS
Parties to the proceeding
Reasons for granting the petition
The opinion of the court of appeals (App., infra, 1a-3a) is
reported at 785 F.2d 1551. The opinion of the district court (App.,
infra, 4a-7a) is unreported.
The judgment of the court of appeals (App., infra, 8a-9a) was
entered on April 8, 1986. A petition for rehearing was denied on June
2, 1986 (App., infra, 10a-11a). On August 20, 1986, Justice Powell
issued an order extending the time for filing a petition for a writ of
certiorari to and including September 30, 1986; on September 22,
1986, Justice Powell issued an order further extending the time within
which to file a petition to and including October 30, 1986. The
jurisdiction of this Court rests upon 28 U.S.C. 1254(1).
Whether the immunity recognized in Barr v. Matteo, 360 U.S. 564
(1959), protects petitioners -- federal employees sued in their
individual capacities -- from liability under state tort law for
injuries allegedly caused by their official acts.
- This is a state law tort action in which respondents seek
monetary damages from petitioners, all of whom are federal employees,
for injuries allegedly caused by conduct that was within the scope of
petitioners' official duties. Respondent William T. Erwin, Sr., is
employed by the federal government as a civilian warehouseman at the
Anniston Army Depot in Anniston, Alabama. He asserts that he was
injured on February 9, 1984, when he "picked up a bag of soda ash and
inhaled some of the soda ash dust that had spilled from the bag"
(Erwin Affidavit filed June 4, 1985, at 1). He claims that as a
result of his contact with the soda ash he sustained chemical burns in
his eyes and throat that caused permanent injury to his vocal chords
and impairment of his ability to speak (ibid.; Complaint at 4).
William Erwin and his wife, respondent Emely Erwin, subsequently
commenced this action in Alabama state court. The complaint alleged
that "bags or containers of soda ash were improperly and negligently
stored at (William Erwin's) workplace," that "such bags or containers
were negligently designed or manufactured or alternatively, that the
manufacturers or distributors of such bags issued inadequate warnings
concerning their use and storage" (Complaint at 3). William Erwin
stated in a subsequently filed affidavit that "(t)he soda ash that I
inhaled was improperly stored and should not have been routed to the
warehouse where I was working. Further, someone should have known
that it was there and provided me with some warning as to its presence
and danger before I inhaled it" (Erwin Affidavit at 1).
Petitioners, three federal employees who are supervisors at the
Anniston Depot, are named as defendants in the complaint. /1/ The
complaint also lists as defendants 21 unnamed individuals or entities
(Complaint at 1-3). William Erwin seeks damages in the amount of
$500,000; Emely Erwin seeks $25,000 in damages for loss of consortium
(id, at 4, 5).
Petitioners removed the action to the United States District Court
for the Northern District of Alabama pursuant to 28 U.S.C. 1442(a)(1);
they filed a motion to dismiss or, in the alternative for summary
judgment on the ground that they were absolutely immune from suit.
Respondents opposed the motion, asserting that a federal employee is
entitled to immunity from tort liability only if the employee is
engaged in policymaking activities. William Erwin filed an affidavit
stating that petitioners "are not involved in any policy-making work
for the United States Government. Their job duties are similar to
mine, with the addition of their supervisory responsibilities.
Therefore, (i)t is my understanding that their duties only require
them to follow established procedures and guidelines. We all work at
the operational level of the United States Government and are not at
the policy and planning level" (Erwin Affidavit at 2).
The district court granted the motion and dismissed the action
against petitioners (App., infra 4a-7a). The court first observed
that petitioners' motion was accompanied by an affidavit stating that
they were "acting under color of their office and within the scope of
their official duties at the time of the acts or omissions made the
basis of" respondents' tort claims; the court noted that respondents
did not dispute those facts (id. at 5a). Relying upon Johns v.
Pettibone Corp., 755 F.2d 1484 (11th Cir. 1985), the district court
stated that "(t)he law of the Eleventh Circuit is clear that * * * any
federal employee is entitled to absolute immunity for ordinary torts
committed within the scope of their jobs"; it held that petitioners
accordingly were "absolutely immune from suit on account of the
matters alleged in the complaint" (id. at 5a).
2. The court of appeals reversed (App., infra, 1a-3a). It observed
that "the opinion (in Johns v. Pettibone Corp., supra) relied on by
the district court was subsequently withdrawn" (id. at 2a). The
revised opinion "establishes the rule that 'a government employee
enjoys immunity only if the challenged conduct is a discretionary act
and is within the outer perimeter of the actor's line of duty'" (id.
at 3a, quoting Johns v. Pettibone Corp., 769 F.2d 724, 728 (11th Cir.
1985) (emphasis in original; citation omitted)).
The court of appeals stated that the district court in the present
case "erred as a matter of law in applying only one part of the
immunity test -- whether the act was in the scope of the employees'
duties -- without determining whether the challenged conduct was or
was not discretionary" (App., infra, 3a). Finding that respondents
had "alleged undisputed facts sufficient to create a material question
of whether or not (petitioners') complained-of acts were
discretionary," the court reversed the grant of summary judgment and
remanded the action for further proceedings (ibid.). Although the
court of appeals did not define the term "discretion" in its decision
in the present case, another panel of the Eleventh Circuit
subsequently stated that "'discretionary acts' involve planning or
policy considerations and do not concern day to day operations"
(Heathcoat v. Potts, 790 F.2d 1540, 1542 (11th Cir. 1986) (citation
REASONS FOR GRANTING THE PETITION
This case presents an important question concerning the extent to
which federal employees are subject to personal liability for their
official acts. The Court held in Barr v. Matteo, 360 U.S. 564 (1959),
that a federal employee was absolutely immune from tort liability for
damage allegedly caused by conduct within the scope of his official
duties. In recent years, the courts of appeals have developed a
bewildering variety of standards to determine when a federal employee
is protected from tort liability by the immunity principle recognized
in Barr. One circuit has clearly adopted the view that all federal
employees are immune from common law tort liability for their official
acts, and many decisions from a number of appellate courts have used
language consistent with the conclusion. Some circuits have
restricted immunity to employees who exercise discretion, but they
have defined that limitation in quite different ways. Thus, some
courts classify only policymaking as discretionary, others include
both policymaking and operational activities, and still others utilize
a general inquiry under which the employee's entitlement to immunity
depends upon the facts of each particular case.
In defining the scope of government employee's immunity from
personal liability for constitutional violations, this Court has
recognized that "officials can act without fear of harassing
litigation only if they reasonably can anticipate when their conduct
may give rise to liability for damages and only if unjustified
lawsuits are quickly terminated" (Davis v. Scherer, 468 U.S. 183, 195
(1984)). Here too, immunity can insulate federal employees from the
threat of litigation, and thereby promote "the effective functioning
of government" (Barr, 360 U.S. at 573), only if employees know in
advance that they will not be subject to tort liability for their
official acts. Under the present confused state of the law, however,
federal employees cannot determine whether they will be protected from
monetary liability in the event they are forced to defend their
official actions in a state law tort suit. Since the differing
approaches of the courts of appeals thus thwart the accomplishment of
the very purpose that immunity is designed to promote, review by this
Court is plainly warranted. /2/
- There is a sharp conflict among the courts of appeals with
respect to the scope of federal employees' immunity from liability in
state law tort actions. The Eighth Circuit recently concluded that
every federal employee is absolutely immune from common law tort
liability for his official acts, regardless of whether the employee
exercises ministerial or discretionary authority. Poolman v. Nelson,
No. 85-5401 (8th Cir. Sept. 30, 1986), slip op. 4-7. /3/ The First
Circuit has intimated an inclination to reach the same conclusion,
observing that the Court "has not yet put its imprimatur upon a
'ministerial duty' exception to absolute immunity" (Ricci v. Key
Bancshares of Maine, Inc., 768 F.2d 456, 464 (1st Cir. 1985)).
Six courts of appeals have concluded that immunity from tort
liability is available only to federal employees who perform
"discretionary" activities; employees engaged in "ministerial"
activities are not accorded any immunity. But these courts disagree
among themselves with respect to the quantum of discretion that
entitles an employee to immunity. The rule applied by the Third,
Tenth, and Eleventh Circuits is that the federal employee must
exercise policymaking authority. Heathcoat v. Potts, 790 F.2d 1540,
1542 (11th Cir. 1986) (immunity is available only for "discretionary
acts," which are those acts that "involve planning or policy
considerations and do not concern day to day operations"); Araujo v.
Welch, 742 F.2d 802, 804 (3rd Cir. 1984) ("'immunity protects officers
from liability only for actions having a policy-making or judgmental
element'") (citation omitted); Jackson v. Kelly, 557 F.2d 735,
737-738 (10th Cir. 1977) (en banc) ("a duty is discretionary if it
involves judgment, planning or policy decisions. It is not
discretionary if it involves enforcement or administration of a
mandatory duty at the operational level, even if professional expert
evaluation is required").
The Fifth and District of Columbia Circuits follow a different
immunity rule, applying an ad hoc functional analysis to determine
whether the federal employee exercises sufficient discretion to
warrant a grant of immunity. They "measure whether judicial scrutiny
of a disputed official act might inhibit official policymaking and
thus unduly interfere with the efficient operation of government."
Gray v. Bell, 712 F.2d 490, 505-506 (D.C. Cir. 1983), cert. denied 465
U.S. 1100 (1984); see also Norton v. McShane, 332 F.2d 855, 859 (5th
Cir. 1964), cert. denied, 380 U.S. 981 (1965). These two courts do
not apply this standard in an identical manner. Compare, e.g., Dretar
v. Smith, 752 F.2d 1015 (5th Cir. 1985) (supervisor immune in tort
action in which subordinate sought damages for alleged battery) with
McKinney v. Whitefield, 736 F.2d 766 (D.C. Cir. 1984) (supervisor not
entitled to immunity in similiar situation).
The Sixth Circuit utilizes a broad definition of discretion,
conferring immunity upon federal employees who exercise discretion at
the operational level as well upon employees who formulate policy.
Granger v. Marek, 583 F.2d 781 (6th Cir. 1978) (Internal Revenue
Service agents); Estate of Burks v. Ross, 438 F.2d 230, 234 (6th Cir.
1971) (hospital administrator and doctor exercise discretionary
authority and therefore are entitled to immunity; nurses not immune
because they perform ministerial functions). The First Circuit, which
has assumed without deciding that an employee must exercise discretion
in order to obtain immunity, also defines discretion in this manner.
Ricci v. Key Bancshares of Maine, Inc., 768 F.2d at 464-465 (conduct
of FBI agents in the course of an investigation).
The law is unsettled in the remaining courts of appeals. The
Seventh Circuit has rejected the ministerial/discretionary distinction
and stated that immunity might be limited to federal employees engaged
in policymaking. Lojuk v. Johnson, 770 F.2d 619, 626-628 (7th Cir.
1985), cert. denied, No. 85-5782 (Jan. 13, 1986); but see Carson v.
Block, 790 F.2d 562, 564 (7th Cir. 1986) (intimating that all federal
employees are entitled to immunity); Oyler v. National Guard Ass'n,
743 F.2d 545, 552-553 (7th Cir. 1984) (rejecting argument that
immunity extends only to policymakers).
Some panels of the Second, Fourth, and Ninth Circuits have
indicated that a federal employee's entitlement to immunity turns upon
whether the employee exercises discretion. See Huntington Towers,
Ltd. v. Franklin National Bank, 559 F.2d 863, 870 (2nd Cir. 1977),
cert. denied, 434 U.S. 1012 (1978); George v. Kay, 632 F.2d 1103,
1105 (4th Cir. 1980), cert. denied, 450 U.S. 1029 (1981); Green v.
James, 473 F.2d 660, 661 (9th Cir. 1973). However, more recent
decisions of these courts have not reiterated the discretion
requirement. See Wyler v. United States, 725 F.2d 156, 159 (2d Cir.
1983); Sprecher v. Graber, 716 F.2d 968, 975 (2d Cir. 1983); Wallen
v. Domm, 700 F.2d 124, 125 (4th Cir. 1983); Augustine v. McDonald,
770 F.2d 1442, 1446 (9th Cir. 1985); Miller v. DeLaune, 602 F.2d 198,
200 (9th Cir. 1979). In any event, these courts' decisions indicate
that if a showing of discretion is required, the applicable standard
is the broad definition of discretion utilized by the First and Sixth
Circuits. See, e.g., Wyler v. United States, supra (actions of Drug
Enforcement Administration agents in performing their law enforcement
responsibilities); Wallen v. Domm, supra (actions of supervisor);
Augustine v. McDonald, supra (actions of government attorneys in
garnishing the plaintiff's assets to satisfy judgments in favor of the
The large number of recent appellate decisions addressing the
question presented in this case is a reflection of the increasing
frequency with which plaintiffs are utilizing actions under state tort
law to challenge the official conduct of federal employees. A growing
number of federal employees therefore face personal liability for
their official acts, a circumstance that -- together with the
confusion about the proper scope of immunity -- tends to inhibit the
vigorous exercise of government authority, the very result that
immunity is designed to prevent. Clarification by this Court of the
standard governing official immunity from tort liability is necessary
in order to eliminate this threat to the effective functioning of
2. Moreover, the court of appeals' decision is incorrect.
Petitioners are immune from tort liability in this case. /5/
- This Court's first comprehensive discussion of the scope of
federal employees' immunity from tort liability appears in its
decision in Spalding v. Vilas, 161 U.S. 483 (1896). The plaintiff in
that case sought money damages from the Postmaster General, asserting
that the Postmaster General had issued a circular containing false
statements in an effort to injure the plaintiff. This Court found
that the Postmaster General's conduct was within the scope of his
official duites and held that he was immune from liability even if he
had acted with malice. The Court stated that (161 U.S. at 498-499)
(i)n exercising the functions of his office, the head of an
Executive Department, keeping within the limits of his
authority, should not be under an apprehension that the motives
that control his official conduct may, at any time, become
subject of inquiry in a civil suit for damages. It would
seriously cripple the proper and effective administration of
public affairs as entrusted to the executive branch of the
government, if he were subjected to any such restraint.
The Court again addressed this immunity question in Barr v. Matteo,
360 U.S. 564 (1959). Barr was a libel action brought by former
employees of the federal Office of Rent Stabilization against the
acting director of that office. The plaintiffs alleged that they had
been defamed by a press release issued by the acting director; this
Court held that the acting director was immune from suit. A plurality
of four Justices concluded that "the principle announced in Vilas can
(not) properly be restricted to executive officers of cabinet rank,
and in fact it never has been so restricted by the lower federal
courts" (360 U.S. at 572 (footnote omitted)). It found that "(t)he
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" (id. at 572-573), and concluded that the privilege was
available to "officers of lower rank in the executive hierarchy" (id.
The plurality stated that it is "the duties with which the
particular officer * * * is entrusted -- the relation of the act
complained of to 'matters committed by law to his control or
supervision,' -- which must provide the guide in delineating the scope
of the rule which clothes the official acts of the executive officer
with immunity from civil defamation suits" (360 U.S. at 573-574)
(citation omitted)). It fould that "(t)he fact that the action here
taken (by the defendant) was within the outer perimeter of (his) line
of duty is enough to render the privilege applicable" (id. at 575).
Barr was the last decision in which this Court squarely addressed
the scope of federal employees' immunity from non-constitutional tort
liability. /7/ The courts of appeals uniformly have concluded that
the immunity recognized in Barr is available to federal employees in
connection with all types of state law tort claims, from negligence
actions to actions seeking damages for intentional torts. /8/ As we
have discussed, the courts of appeals are sharply divided with respect
to whether the privilege protects all federal employees as long as
they do not exceed the bounds of their governmental authority, or only
protects employees in the performance of particular sorts of
functions. In our view, federal employees are protected from personal
financial liability under state tort law as long as they act within
the scope of their official duties. Moreover, even if all federal
employees are not protected by immunity, employees who exercise
operational discretion -- such as the discretion exercised by
petitioners in their capacities as supervisors -- should be protected
by immunity. /9/
b. Although Barr itself involved "an official of policymaking rank"
(360 U.S. at 575), the plurality in Barr plainly did not restrict
immunity to federal employees who exercise a particular quantum of
discretion. /10/ The plurality's only discussion of the fact that the
defendant in Barr did exercise discretion was in connection with its
determination that the challenged conduct was "within the outer
perimeter of (his) line of duty" (ibid.). Indeed, the plurality took
pains to point out that the discretionary nature of the defendant's
responsibilities did not divest him of the protection of immunity
(ibid. (emphasis in original; footnote omitted)).
That (the defendant) was not required by law or by direction
of his superiors to speak out cannot be controlling in the case
of an official of policy-making rank, for the same
considerations which underlie the recognition of the privilege
as to acts done in connection with a mandatory duty apply with
equal force to discretionary acts at those levels of government
where the concept of duty encompasses the sound exercise of
Barr thus did not restrict immunity to employees who exercise
discretion. Accord Poolman v. Nelson, slip op. 4-7; Lojuk v.
Johnson, 770 F.2d at 626-627; Ricci v. Bancshares of Maine, Inc., 768
F.2d at 463-464. /11/
Further, the policies underlying the decision in Barr support a
rule immunizing all federal employees from common law tort liability
for acts within the scope of their official duties. The Barr
plurality stated that immunity is designed "to aid in the effective
functioning of government" (360 U.S. at 573). Thus, "(i)t has been
thought 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 consume 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." Id. at 571; see also Gregoire v. Biddle, 177 F.2d 579,
581 (2d Cir. 1949) (L. Hand. J.), cert. denied, 339 U.S. 949 (1950).
Any federal employee, regardless of his duties, undoubtedly will be
affected by the prospect of litigation and personal liability for
harms that allegedly result from the performance of his job. Forcing
employees to bear these risks must itself have a price, which will
necessarily be reflected in either higher wages and salaries for
government workers or a reduction in the quality of the federal
workforce. /13/ And few if any jobs are so purely ministerial in
nature as to leave no room for the shading of decisions and the
hedging of conduct to take account of the risk of personal liability.
/14/ Even if an employee's duties are solely ministerial, moreover,
the federal government may bear the loss of productivity due to the
time that the employee was required to devote to defending the
These consequences will disrupt the effective functioning of the
government whether or not the employee's duties involve the exercise
of a particular quantum of discretion. The Barr plurality observed
that "(t)he complexities and magnitude of government have become so
great that there must of necessity be a delegation and redelegation of
authority as to many functions, and we cannot say that these functions
become less important simply because they are exercised by officers of
lower rank in the executive hierarchy" (360 U.S. at 573 (footnote
omitted)). Indeed, a rule restricting immunity to policymakers or
some other group of high-level officials would encourage tort
plaintiffs seeking monetary damages to focus their efforts upon the
vast majority of lower ranking federal employees who are responsible
for carrying out the routine day-to-day functions of government.
These lower level employees are the individuals least able to shoulder
personal monetary liability and, accordingly, the federal employees
whose official actions are most likely to be inhibited by the threat
Perhaps most importantly, restricting immunity to federal employees
who exercise discretionary authority undercuts the very purpose that
immunity is designed to serve by creating great uncertainty about when
and to whom it applies. The fact that an employee ultimately may be
found to be entitled to immunity is irrelevant if the employee cannot
determine in advance that he will receive that protection. Davis v.
Scherer, 468 U.S. at 195. A rule limiting immunity to acts involving
a particular quantum of discretion is simply too vague and uncertain
to satisfy this requirement.
This Court has observed in other contexts that a distinction cannot
easily be drawn between discretionary and ministerial functions. See
United States v. S. A. Empresa De Viacao Aerea Rio Grandense (Varig
Airlines) 467 U.S. 797, 811 (1984); Owen v. City of Independence, 445
U.S. 622, 648 n.31 (1980) (observing with respect to the immunity rule
protecting a municipality from tort liability for discretionary acts
that "a clear line between the municipality's 'discretionary' and
'ministerial' functions was often hard to discern, a difficulty which
has been mirrored in the federal courts' attempts to draw a similar
distinction under the Federal Tort Claims Act"). Indeed, one court of
appeals candidly has observed that "(a)lmost any wrong can be
characterized as discretionary or nondiscretionary for purposes of
exception from liability under either the FTCA or the common law"
(Sami v. United States, 617 F.2d 755, 771 (D.C. Cir. 1979)). An
immunity rule that turns upon whether an employee exercises discretion
would make it difficult for the employee to ascertain in advance
whether his conduct was protected by immunity and, therefore, would
force the employee to act as if he had no immunity at all. The
discretion requirement would thus eviscerate the benefits to the
government that the immunity rule is designed to provide. Cf. Coleman
v. Frantz, 754 F.2d 719, 727-728 (7th Cir. 1985). /15/
The rule for which we contend may prevent some plaintiffs from
obtaining compensation for their injuries, although the limited
financial resources of most federal employees engaged in
non-discretionary duties suggest that few plaintiffs lose any genuine
opportunity for compensation under a rule of absolute immunity for
common law torts. See Sami v. United States, 617 F.2d at 722. /16/
The conclusion of the plurality in Barr regarding this point is
equally applicable here: "as with any rule of law which attempts to
reconcile fundamentally antagonistic social policies, there may be
occasional instances of actual injustice which will go unredressed,
but we think that price a necessary one to pay for the greater good.
And there are of course other sanctions than civil tort suits
available to deter the executive official who may be prone to exercise
his functions in an unworthy and irresponsible manner" (360 U.S. at
c. Even if the Court disagrees with our submission that immunity
should be extended to all federal employees acting within the scope of
their duties, and concludes that only employees with discretionary
authority are protected by immunity, petitioners exercise sufficient
discretion to be entitled to immunity in this case. The basis of
respondents' tort claim is that petitioners negligently stored,
designed, manufactured, or labeled the soda ash containers. Where and
how to store the soda ash and whether warnings should have been given
to persons handling the soda ash containers all are questions
involving the exercise of discretion in the operation of the Depot
warehouse. /18/ Since petitioners -- if they in fact were responsible
for these decisions -- were required to exercise discretion, their
decisions with respect to these issues must be insulated from the
threat of liability.
Respondents' allegations are quite similar to the allegations of
the plaintiffs in Dalehite v. United States, 346 U.S. 15 (1953), that
the United States was liable for negligently manufacturing, storing,
and labeling a fertilizer that had explosive properties. This Court
concluded in that case that recovery was barred by the discretionary
function exception to liability under the Federal Tort Claims Act (see
346 U.S. at 38-44). It specifically observed that "acts of
subordinates in carrying out the operations of government in
accordance with official directions cannot be actionable. If it were
not so, the protection of (the discretionary function exception) would
fail at the time it would be needed, that is, when a subordinate
performs or fails to perform a causal step, each action or nonaction
being directed by superior, exercising, perhaps abusing, discretion"
(id. at 36 (footnote omitted)). Petitioners -- individual federal
officials charged with negligently carrying our similar policies --
should be protected from tort liability under the same rationale.
Whether petitioners made the relevant discretionary decisions or
simply carried out discretionary decisions made by others, they should
not be subject to personal liability for damage resulting from those
The petition for a writ of certiorari should be granted.
RICHARD K. WILLARD
Assistant Attorney General
DONALD B. AYER
Deputy Solicitor General
ANDREW J. PINCUS
Assistant to the Solicitor General
BARBARA L. HERWIG
LARRY L. GREGG
CARLENE V. MCINTYRE
/1/ Petitioner Rodney P. Westfall is the chief of the Receiving
Section at the Depot, Osburn Rutledge is the chief of the Breakdown
and Bulk Delivery Unit, and William Bell is the chief of Unloading
Unit No. 1 (Fomby Affidavit filed March 4, 1985, at 1).
/2/ The Court has recognized that the question presented in this
case -- the scope of federal officials' immunity from liability under
state tort law -- is wholly separate from the scope of these
officials' immunity from liability for constitutional violations.
Butz v. Economou, 438 U.S. 478, 495 (1978). Thus, even though certain
general principles are relevant in both contexts, the Court's decision
in this case will not affect the standard for immunity from liability
for constitutional violations established in Harlow v. Fitzgerald, 457
U.S. 800 (1982), and its progeny.
/3/ The court observed that "the discretionary or ministerial
nature of an activity" may be relevant in determining whether an
official's acts were within the scope of his authority, noting that
"th(e) outer perimeter (of this authority) fluctuates in relation to
the degree of discretionary authority afforded an official" (Poolman,
slip op. 6).
/4/ Three Members of the Court previously recognized the existence
of differing approaches to the immunity issue. See Martinez v.
Shrock, cert. denied, 430 U.S. 920 (1977) (White, J., joined by
Brennan and Marshall, JJ., dissenting).
/5/ The Court has made clear that a federal employee's entitlement
to immunity from tort liability for his official acts is "judged by
federal standards, to be formulated by the courts in the absence of
legislative action by Congress" (Howard v. Lyons, 360 U.S. 593, 597
/6/ Justice Black concurred in the result in Barr, emphasizing the
importance of federal employees' freedom to communicate with the
public (360 U.S. at 576-578). Justice Stewart agreed with the
plurality's analysis of the standard governing the availability of
immunity, but concluded that the defendant was not entitled to
immunity because he was not acting within the scope of his official
duties (id. at 592). Three Justices dissented because they disagreed
with the plurality's conclusion regarding the scope of immunity (id.
/7/ In Doe v. McMillan, 412 U.S. 306 (1973), the Court considered
whether the Public Printer and the Superintendent of Documents were
entitled to immunity in an action in which the plaintiffs sought
damages for both constitutional violations and common law torts
allegedly committed by these officials in connection with the
production and distribution of a congressional committee's report.
The Court concluded that these officials did not have "an independent
immunity," but instead were immune from damages liability to the
extent that employees of the government entity for which they
performed printing services would have been entitled to immunity in
connection with the production and distribution of the printed
material; the officials' immunity in Doe therefore turned upon the
scope of legislative immunity (412 U.S. at 323).
The Court in Doe did discuss Barr and at one point stated that
"(j)udges, like executive officers with discretionary functions, have
been held absolutely immune regardless of their motive or good faith.
But policemen and like officials apparently enjoy a more limited
privilege" (412 U.S. at 319 (citations omitted)). However, the Court
did not indicate whether this statement referred to immunity from
constitutional claims or immunity from tort claims; indeed, it
supported the reference to a "more limited privilege" by citing
Pierson v. Ray, 386 U.S. 547 (1967), a case that addressed a police
officer's immunity from liability for violations of the Constitution.
In view of this ambiguity, and the fact that limiting the scope of
immunity under Barr was not necessary -- or even relevant -- to the
ground of decision in Doe, the Court's brief reference to the scope of
immunity cannot be viewed as announcing a restriction upon official
immunity in the common law tort context.
/8/ See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 807-808 (1982)
(characterizing Vilas and Barr as according "absolute immunity from
suits at common law"); Norton v. McShane, 332 F.2d at 859-860 & n.5.
/9/ Although the standard for which we contend is a rule of
absolute immunity, it operates in the context of non-constitutional
torts in a manner similar to the qualified immunity standard adopted
in Harlow v. Fitzgerald, supra, for constitutional wrongs. In both
situations, the immunity rule is designed to protect a federal
official from personal liability when his conduct remains within the
scope of his governmental authority.
A qualified immunity rule in the absence of a constitutional claim
presumably would turn upon the defendant's subjective good faith (see
Barr v. Matteo, 360 U.S. at 586-588 (Brennan, J., dissenting)), but
the Court rejected such an approach in Harlow on the ground that an
immunity standard that depends upon the official's actual state of
mind "may entail broad-ranging discovery and the deposing of numerous
persons, including an official's professional colleagues. Inquiries
of this kind can be peculiarly disruptive of effective government."
(457 U.S. at 817 (footnotes omitted)).
/10/ The plurality's legal analysis of the scope of immunity is
particularly significant because it was adopted by Justice Stewart
(360 U.S. at 592) and therefore represented the views of five Members
of the Court.
/11/ Some courts have seized upon the statement in Barr that "the
occasions upon which the acts of the head of an executive department
will be protected by the privilege are doubtless far broader than in
the case of an officer with less sweeping functions" (360 U.S. at
573). But the plurality simply was referring to the fact that the
greater of official's authority, the "broader the range of (his)
responsibilities and duties," and, therefore, the wider the outer
perimeter of his line of duty (ibid.). The statement in no way
indicates that lower level officials are not protected by immunity.
/12/ The rule of immunity adopted in Barr also protects against
"state interference" with federal officials' execution of their duties
under federal law. Butz v. Economou, 438 U.S. 478, 495 (1978); Ricci
v. Key Bancshares of Maine, Inc., 768 F.2d at 463; cf. In re Neagle,
135 U.S. 1, 61-63 (1890).
/13/ As one court of appeals recently observed (Carson v. Block,
790 F.2d at 564),
(p)rivate firms may buy insurance for their employees, or
give them bonuses or shares of the enterprise to induce them to
take risks. The United States does not offer (government
officials) a "share of the profits" from federal programs * * *
and a system under which officials face risks of substantial
liability for error without any corresponding prospect of reward
for good work is doomed. Only the addled and the foolhardy
would disregard these incentives, and the addled and foolhardy
do not execute statutes very well.
/14/ A ministerial duty is a mandatory duty expressly imposed by
and specifically delineated in a statute, regulation, or other
directive. See Davis v. Scherer, 468 U.S. at 197 n.14 ("(a) law that
fails to specify the precise action that the official must take in
each instance creates only discretionary authority").
/15/ A further partical difficulty with a discretion requirement is
that discovery may be necessary to determine whether the defendant
exercises sufficient discretion to qualify for immunity. See, e.g.,
Heathcoat v. Potts, 790 F.2d at 1543 ("detailed but abstract" job
descriptions not sufficient; court remanded the case for "a fuller
development of the facts" through discovery). When discovery is
required to sustain a claim to immunity, it is no longer "an immunity
from suit rather than a mere defense to liability" (Mitchell v.
Forsyth, No. 84-335 (June 19, 1985), slip op. 14 (emphasis in
original)). In this case, for example, the court of appeals remanded
for further proceedings regarding the immunity issue (App., infra,
/16/ Of course, immunity would not necessarily leave the plaintiff
without a remedy; compensation may be available from the United
States under the Federal Employees' Compensation Act, 5 U.S.C. 8101 et
seq., or the Federal Tort Claims Act, 28 U.S.C. 1346 (b). And federal
employees' immunity would, of course, be limited to acts within the
scope of their official duties.
/17/ This rule of absolute immunity is particularly appropriate,
and should at a minimum be recognized, in situations such as the
present case where both the plaintiff and the defendant are federal
employees and the lawsuit relates to the defendant's execution of his
official duties in the employees' common workplace. Suits between
employees are especially likely to affect adversely the functioning of
the government because they tend to preclude the cooperation among
federal employees that is necessary to the successful execution of the
employees' official duties. Such actions also may become vehicles for
personal vendettas rather than legitimate efforts to obtain
compensation for damage incurred by the plaintiff.
Further, Congress expressly established a remedial system for
injuries incurred by federal employees in the course of their duties
when it enacted the Federal Employees' Compensation Act (FECA). The
Act provides for administrative, no-fault compensation for certain
injuries incurred by federal employees in the course of their duties.
See 5 U.S.C. 8101-8151. The presence of this alternative remedy for
many of the injuries that form the basis of co-employee tort actions
weighs in favor of the recognition of immunity in this context. (We
have been informed by the Department of the Army that William Erwin
was reimbursed under the FECA for his medical costs and received
disability pay for the period that he was unable to work. He did not
receive compensation for the alleged permanent harm to his vocal
chords on the ground that the FECA does not authorize compensation for
/18/ In the course of overseeing the operation of the warehouse,
petitioners must issue literally hundreds of instructions on a daily
basis to the employees of that facility. Petitioners' performance as
supervisors plainly would be chilled, and the overall operation of the
facility thereby adversely affected, if they were threatened with
personal liability in connection with each and every one of these