Official Immunity and Civil Liability for Constitutional Tarts Committed by Military Commanders After Butr c. Eeonoinou

• Author: First Lieutenant Gail M. Burgess, USMC
• Pages: 02

L' Eeommou, 438 C.S. 478 119791, and discusses its possrble appltcalion to milttory com-manders.

CGnOmou UaS a eGmmodity f%lu?'es eo 9i0. the Depal?mm! of Ag~culiwe in

his registratLon forallegedly,foilzng

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the niinimirm repwired financial TBSOLTC~S.

Eeononio Secretary of Agncvliwe and U ~ ~ G U S

subordiiiale officials for actions allegedly taken. by them ugazris! Economoii in miation of his eonatillitional nghts He claimed large monetary dam-ages. The officials defended an grounds of absolv,te zmmumty agamst suit fo. execl(tive actions stthm the officials' disere-tionary a7Ath"nty.

h i

a long opinion, the Cniied States Sziprerne Coud held that, io general, only qualified irnrnantly, no! absoh!e imnanniiy,

'The 0 inion8 and coneiu9ioni srpre~sed in chis ani& are chose of the author and do not reflect the w e ~ b of The Judge Adweate General's School. the Depanment of

the United States Sllarine Carp8 01 any other eorernmental agency

d on accise duO m United States llarme Corps. Apnl 1980 Former a~sm~afe airh lax, flrm of Peppel, Hamilton & Sebeetz. Philadelphia, Pennayhama, 197960 Student mrern. Policy and Research Branch. Jvdpe idmate Dmnon, HQ. USMC. Waahmgtan.

D C..iummers, 1877 and 1976

D..

L'nireriifg of Virginis School of La\",

urt of Psnns>lrania and the U S District

I. BACKGROUKD

On 29 June 1978, the United States Supreme Court rieeided B Economov; a case which could hare implications faat all levels of responsibility The case mi-oivetl acommodity futures merchant, apamsr the Seereraraiious federal executive officials' in their ~ndiviomou claimed thirty-two million dollars in damages The complaint alleged ten causes of action,' Pome of n hich purported to state violations

of respondent's constitutionai rights in the course of an administrative hearing instituted against him.$

The United States District Court for the Southern District of Kew Yorkb dismissed the complaint as to the individual defendants on the ground that they had acted within the scope of their official discretion and authority, and that consequently the doctrine of absolute immunity bmed suit.'

6 438U S. at483 FollowingnCammadity Exehange Authonry(CEA)auditofrsspondenf's company. the Secretary of Agriculture imbued a complaint ehardng respondent d i h willful failure to malniun the minimum capital balnnea requued by commodities traders Id at 461. ARer P second audir, m amended camplaint u,as issued on June 22. 1519. and B heanng ww held before the chef hearing exammer, uho recommended Sutamng the c~mplamf Id The judicial officer Lo whom the Secretary had delegated hia decisional authantv in enforcement proceeding6 filmed the deoaion. Id

On respmdent'e petition far review, the Second Circuit vacated the order of the judicial afieer. Economou Y U.S Depprtment of Agriculture. 494 F 2d 519 IZd C a 1974).

U'hde the adminiitrative complaint was before the judicial offlcsr, respondent filed sun m the distnet court m an unsuccerafui BaempL to emom the pmeedmge. 438 C.S. at 181. On M m h 81. 1915, respondent Bled a aeeond amended complaint ~n the district mum seekmg damages. upan which the action befm the Supreme Court was baaed

Eeonamou V. Department of Agricultwe. Ila 72-418 IS D.S Y , filed May 22. 19151 See Bneffor Petitioner at 23a-2Sa of Appendix B, Boti V. Eeanomou, 436 T.S. 4i8 l15761.

Junsdietion m the second amended earnplaint wai sought, mtm du,under 28 U.S C.

5 1331. In a supplemental brief. the pefill~nerd conceded the respandent properly invoked the JYnsdietion of the diatncf mum under 8 1831, citing Bell Y. Hood, 321 D S. 616 (15461 In Bell, the COW held that, when a eomplarnt seeks recorev directly under the Camtitution, the federal cwn must entenan the suit. Jurisdicrion 18 not defeated by the POI-ribihty that the eamplont mlght not ifate D cause of attion Id at 68142

i

438 Lr S at 4%. The district c o m had held the iwt barred as to the defendant apencm

under the docfnne of mvereign ~mmunity Id 8L 484 n 6.

Savereign immunity 18 s common law doctrine that pmteei~

governmental enflties from suit wfhout their consent. It 1% abaalvte and defeat8 P suit 81 ita inception for laek of junsdietmn. The daetnne has been jubbfled on several grounds

Traditmnally if w a bellwed "that there can be no leg4 nghf m againat the authority that maker the law an which the nght depends." Kauananoka \, Polybank, 205 U.3 345, 353 f1901) (Holmes, J ). Today, ~f is justifled on the grounds that flveming bodiei should not be hampered by fear of damage suits Carter V. Colson, Mi F.2d 358, 36M6 fD C Clr 1811). rer'd on olkr grounds sub nom , Diatriat of Columbia I, Carter. 409 T S. 416(157al. and on the ground that satisfynppriiste claims agsinit the i~atewould be LOO greatB dram on oublie k-nda Src 2 F Hamei & F. James. The Law of Torts 1611-12 119561

The United States Court of Appeals for the Second Circuit reversed

It relied upon subsequent decisions as to the individual

~~~~ ~

The doctrine is being dismantled leg~slafweiy and judicially. See pwnarally K Dnuir. Administrative Law of the Swentiee eh. 25 11976) Congreaa releetirely m w d immumty by palaage of the Federal Tort Claims Act of 1946.

The waiver, however. excludes claims based upon the exercise of discrenon. 28 U S C 9 2680ia1(19761. and eeMin lntentrond tarts, id at 2680(h!. Congresa saughl through these exemptions lo preserve mereign immunity from ton c l a m uhich mse from conscious governmental deemion-malung Accordingly, the doctrine of sovereign immunify sidl hprr a claim against the government m ernes 1mvolvmg an oftieiai exewbmg discretion.

To e~cum~enfthe immunity of the government, if IS common to name 86 the defendant

only the individual gavernment ofiaal ahose emduet IB challenged. In m ''ofher suit," the most frequenil) litigated question Is whether the aut IS in subslanri ngonit the iowmment itaelf if so. w v m m immumw atrll bars the sut Larbon Y. Forem and fiomeatie Commerce Corn.. 337 c.S 682 ,1949)

The mqority m Larean clearly suggests that, m SYIUfor damages. mterfeerenee wlth the

governmeni is minimal, and mereign immunity WIInot bar the suit Only when the iux

IS far speciflc rellef, reafinnmg or dlreeting the ofher's ~cfioni, must the court determine whether Lhe action 1% essenodly against the goiernmenc, and thus barred. Id at 687-68s.

In ernes where &wereign ~mmunicy aili not bar sat. 8 parallel doctrine hes developed Offleial immunity IS B eommm la^ doctrine which prateeta government aftieials fromper~dmlliobili!y for Bite cnmed out m the performance of their ofhal dunes. Tuo levels of immunity emst, abaalvte and quahfied

Absolute immunity le B eamplete hpr fa swt which, upon pleading on motion to diemiss or motion for aummw judgment. entities M affiaiai to en immediate dismiaiai Qualified Immumty entities am ~Riicisl to a complete bpr only if he can prove that he uted ies~onably and m good fath.

For a general discussion of the development Of the immunity doctnnea, me Xafe, Ac-counhbtlttyfm G~vemmentMisiondue! Limibng Qualihadlmmunrty and the GoadFaith Defense. 49 Temp L 9. 938. 9 W 6

11976). Enpdahl, lm

Pasrtive GavemmenBl R~anga,

44 U Col L. Rev. l(1972mnla and Officers Damage Actions, 77 Harv L Re,. 209 !1963). Davir. Admnrstratire Law ai the Seventies chr 25, 26 (19761

n 438 U.S.

at 484 The court affirmed the holdrng of the district court uhieh barred bull

against the defendant agencies Economou Y Dept af Agneulture 135 F 2d 688, 689 (2d Ca 19161 The court found that Congress had not authorized either agency to be sued m its O U ~ name. rd st 61. and that the Federal Tort Clplms Act. 28 U S C 2680(h) (1916). did not svppori junadicrian mer reipandent'a elaim agmet the United States Id at 690

19801 LIABILITY OF COMMANDERS

involving the immunity of state officials under 28 U.S.C. S 1963 to find that defendants were entitled only to the qualified immunity available ta thex counterparts in state government.l0

The Supreme Court granted certiorari" to decide the scope of the official Immunity doctrine when constitutional ridations areIn a the court held that, in a suit for damage6 arising from unconstitutional action, federal executive officmls who exercise discretion are entitled only to the qualified immunity specified in Scliezcer 0.

Rhodes The Court further held that exceptions to this general rule of qualified immunit)- could be made nhen it is demonstrated that absolute immunity is essential far the conduct of public bus-meaa.16

Applving this functional approach to immunity, the Court held that persons who perform adjudicatory fuuncnoas aithin a federal agency are

* Elen perron uho. under color of an) ~tafute,ardmance. regulafmn. cutom

or usage. of any Stateor Territory iubjeets, orcauies to berubjeered cmen of the United States or other person within :he jurisdiction rhereof ta fne depn cauan of my nghrs, pmilege~. or ~mmuni:~essecured by the Consufufmn and lahs, shallbolibbletothepan) ~~liied~ranacrionarlau.smlmeqmt),arorher

proper proeeedmg for redrei?

12 V 6 C S 19E3 119X

I" 438 V S ar 43446 The court of appeals iourd the diitrict eourt'i reliance '~pm the

because ai the nafire of such acim entaled to absolute immuniti 536 F 2d 81 696 n 6

429 U 5. 1089 119771

1 183 C S at 1SM1

entitled to absolute immunity for their judicial as are officials responsible for the decision to initiate or continue a proceeding subject to agency adjudication,l'and agency attorneys who arrange for the presentation of evidence on the retard in the course of an adjudication Id The Court then vacated and remanded the case for application of the foregoing principles to defendants.lg

In order to fully appreciate the significance of this holding and Its effect upon the personal liability of commanding officers it is necessary to ex-amine previous case law concerning the scope of official immunit)

11. THE DEVELOPMENT OF THE DOCTRIKE OF OFFICIAL IMMUNITY

The federal immunity doctrine. as it had evolved pnor to Eeoiionion, provided officials of the executive branch with...