Opinion · Court of Appeals for the Fourth Circuit

England v. Rockefeller

Eng. v. Rockefeller, 739 F.2d 140 (4th Cir. 1984)

Type: Opinion
Court: Court of Appeals for the Fourth Circuit
Jurisdiction: Federal
Date: 1984-07-16
Topic: litigation

How later courts describe this case

holding unappealable denials of summary judgment motions asserting qualified immunity in suits also seeking injunctive relief

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Cited by: 14 opinions

ENGLAND v. ROCKEFELLER,739 F.2d 140(4th Cir. 1984)

WILLIAM ENGLAND; JOHN L. COOPER; CONRAD BROWN AND JESSIE HYPES, APPELLEES,

v. JOHN D. ROCKEFELLER, IV, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS

GOVERNOR OF THE STATE OF WEST VIRGINIA, APPELLANT,

AND

JULIAN W. WARE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DISTRICT

ENGINEER FOR DISTRICT TEN (10) OF THE WEST VIRGINIA DEPARTMENT OF HIGHWAYS;

CHRISTINE TONEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMUNITY

AFFAIRS COORDINATOR OF DISTRICT TEN (10) OF THE WEST VIRGINIA DEPARTMENT OF

HIGHWAYS; CHARLES L. MILLER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS

COMMISSIONER OF THE WEST VIRGINIA DEPARTMENT OF HIGHWAYS; AND OTHER PERSONS,

INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, WHOSE NAMES ARE AT THIS TIME

UNKNOWN TO THE PLAINTIFFS, DEFENDANTS.

WILLIAM ENGLAND; JOHN L. COOPER; CONRAD BROWN AND JESSIE HYPES, APPELLEES,

v. CHARLES L. MILLER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS

COMMISSIONER OF THE WEST VIRGINIA DEPARTMENT OF HIGHWAYS, APPELLANT,

AND

JULIAN W. WARE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DISTRICT

ENGINEER FOR DISTRICT TEN (10) OF THE WEST VIRGINIA DEPARTMENT OF HIGHWAYS;

CHRISTINE TONEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMUNITY

AFFAIRS COORDINATOR OF DISTRICT TEN (10) OF THE WEST VIRGINIA DEPARTMENT OF

HIGHWAYS; JOHN D. ROCKEFELLER, IV, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY

AS GOVERNOR OF THE STATE OF WEST VIRGINIA; AND OTHER PERSONS, INDIVIDUALLY

AND IN THEIR OFFICIAL CAPACITIES, WHOSE NAMES ARE AT

Page 141

THIS TIME UNKNOWN TO THE PLAINTIFFS, DEFENDANTS. GEORGE L. DOUGLAS, BETTE

HATTON, RICHARD DAMRON, CLAUDE W. JARRELL, JAMES E. LUCAS, CARL BRUNTY,

MARTHA L. COUNTS, LARRY G. PORTER, DONALD L. ROY, RICHARD L. WEBB, HILLARD

BROWNING, PAUL FARRIS AND CURLEY BELCHER, APPELLEES v. WALTER J. GALLOWAY,

ROBERT G. HUFFMAN, CHARLES WILLIAMS, JERRY ROACH, JAMES R. CAMPBELL,

CHARLES SHAVER, CHARLES L. MILLER, ALL INDIVIDUALLY IN OFFICIAL

CAPACITIES; AND LUCIEN FRYE, WALLY STOWERS AND ROBERT NELSON, ALL

INDIVIDUALLY, DEFENDANTS, AND JOHN D. ROCKEFELLER, IV, INDIVIDUALLY IN

OFFICIAL CAPACITY, APPELLANT. GEORGE L. DOUGLAS, BETTE HATTON, RICHARD

DAMRON, CLAUDE W. JARRELL, JAMES E. LUCAS, CARL BRUNTY, MARTHA L. COUNTS,

LARRY G. PORTER, DONALD L. ROY, RICHARD L. WEBB, HILLARD BROWNING, PAUL

FARRIS AND CURLEY BELCHER, APPELLEES v. WALTER J. GALLOWAY, ROBERT G.

HUFFMAN, CHARLES WILLIAMS, JERRY ROACH, JAMES R. CAMPBELL, CHARLES SHAVER,

JOHN D. ROCKEFELLER, IV, ALL INDIVIDUALLY IN OFFICIAL CAPACITIES; AND

LUCIEN FRYE, WALLY STOWERS AND ROBERT NELSON, ALL INDIVIDUALLY,

DEFENDANTS, AND CHARLES L. MILLER, INDIVIDUALLY AND IN OFFICIAL CAPACITY,

APPELLANT.

Nos. 83-1851(L), 83-1852 to 83-1854.

United States Court of Appeals, Fourth Circuit.

Argued June 5, 1984.

Decided July 16, 1984.

Page 142

Rebecca A. Betts, Charleston, W.Va. (Robert B. King, King, Betts Allen, Charleston, W.Va., on brief), for appellant in Nos. 83-1851 and 83-1853.

Chauncey H. Browning, Atty. Gen. of W.Va., Richard L. Earles, Deputy Atty. Gen., Edward W. Eardley and Steptoe Johnson, Charleston, W.Va., on brief, for appellants in Nos. 83-1852 and 83-1854.

J. David Cecil, Charleston, W.Va. (Leo Catsonis, Charleston, W.Va., on brief), for appellees.

Appeal from the United States District Court for the Southern District of West Virginia.

Before WINTER, Chief Judge, and HALL and ERVIN, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

[1] These appeals are in two of the nine cases pending in the Northern and Southern Districts of West Virginia in which former employees of the West Virginia Department of Highways (DOH) sued Governor Rockefeller, Commissioner Miller and others, asserting that plaintiffs were terminated for political reasons, in violation of their constitutional right of free association.SeeElrod v. Burns,427 U.S. 347,96 S.Ct. 2673,49 L.Ed.2d 547(1976);Branti v. Finkel,445 U.S. 507,100 S.Ct. 1287,63 L.Ed.2d 574(1980). In the instant cases, plaintiffs alleged an elaborate conspiracy between Governor Rockefeller, Highway Commissioner Miller, and various DOH personnel. They claimed that the Governor deliberately inflated revenue estimates for fiscal year 1981 to justify excessive DOH expenditures that helped promote his reelection campaign, and that defendants then used the ensuing deficit as an excuse to terminate DOH employees who were Republicans and out-faction Democrats. Plaintiffs also alleged that the various defendants, including Governor Rockefeller, knew or should have known that the plaintiffs were being terminated for political reasons and refused or neglected to prevent the violation of their rights despite having the power and authority to do so.

[2] The Governor and Commissioner Miller filed motions for summary judgment, claiming that they both were entitled to qualified immunity underHarlow v. Fitzgerald,457 U.S. 800,102 S.Ct. 2727,73 L.Ed.2d 396(1982), and that the Governor also was absolutely immune because submission of the revenue estimates in the budget bill was a legislative act. The district court denied the motions,568 F. Supp. 966, and the Governor and the Commissioner appealed, seeking review in this court under the collateral order doctrine. We affirm the ruling of the district court with respect to the claim of absolute immunity. We decline to review the ruling with regard to the claim of qualified immunity.

[3] We agree with the parties that the denial of the Governor's claim to absolute immunity is immediately appealable,Cohen v.Beneficial Industrial Loan Corp.,337 U.S. 541,69 S.Ct. 1221,93 L.Ed. 1528(1949);Nixon v. Fitzgerald,457 U.S. 731,102 S.Ct. 2690,73 L.Ed.2d 349(1982). We conclude, however, that the district court properly denied the Governor's motion for summary judgment insofar as it was based on the claim of absolute legislative immunity.

[4] Legislative immunity attaches to the acts of state executive branch officers only when they are exercising the state's "entire legislative power with respect to" the matter at issue.SupremeCourt of Virginia v. Consumers Union,446 U.S. 719,734,100 S.Ct. 1967,1975,64 L.Ed.2d 641(1980) (Virginia Supreme Court members entitled to legislative immunity for regulation of the Bar because they were exercising Virginia's entire legislative powerPage 143with regard to governing the Bar). Although the Governor of West Virginia is intimately involved in the state's budget process, his participation clearly does not qualify for legislative immunity underSupreme Court of Virginia.The West Virginia Constitution requires the Governor to submit a detailed budget bill to the legislature and permits him to hold public hearings on all estimates included. W.Va. Const. art.VI, §51(B). The legislature may amend the bill,¹id.,but the Governor has an item veto over the bill as finally passed, which can be overridden on an item-by-item basis only by a two-thirds vote in each house.Id.at § 51(D)(11). Thus his responsibilities regarding the budget, though considerable, clearly fall short of an exercise of the state's entire legislative power to appropriate monies.

[5] We note also that we perceive no reason why the Governor would require greater protection for submitting the budget bill than he receives for his other official acts. This consideration counsels against extending him absolute immunity in this context, for inButz v. Economou,438 U.S. 478,508,98 S.Ct. 2894,2911,57 L.Ed.2d 895(1978), the Court said:

We therefore hold that, in a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business.

[6] In our view, state executive officials have need of no greater protection than federal ones.

II.

[7] With regard to the claims of qualified immunity, we have recently held inBever v. Gilbertson,724 F.2d 1083(4 Cir. 1984), a case nearly identical to the one before us now, that the order denying the claims of qualified immunity was not appealable prior to final judgment. We adhere to this holding and think it dispositive. Further, we decline to review the question under our pendant jurisdiction to consider a non-appealable order when reviewing another, appealable one.²

[8] AFFIRMED IN PART; DISMISSED IN PART.

[9] K.K. HALL, Circuit Judge, concurring in part and dissenting in part:

[10] I concur in the majority's opinion insofar as it affirms the district court's denial of summary judgment with respect to Governor Rockefeller's claim to absolute legislative immunity for his role in the state budget process. Unlike the majority, however, I believe that we have jurisdiction to review the qualified immunity claims raised by Governor Rockefeller and Commissioner Miller. I conclude that we have jurisdiction over these claims either under our pendant jurisdiction to review the absolute immunity question, or under the collateral order doctrine for the same reasons expressed in my dissenting opinion inBever v. Gilbertson,724 F.2d 1083,1089-93(4th Cir. 1984).Page 144Accordingly, I would reach the merits of the qualified immunity claims and would reverse the district court's denial of summary judgment with respect to those claims.¹

The exceptions to this general rule are stated in § 51(B)(5):
The legislature shall not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein: Provided, that no item relating to the judiciary shall be decreased, and except as otherwise provided in this Constitution, the salary or compensation of any public officer shall not be increased or decreased during his term of office: Provided further, that the legislature shall not increase the estimate of revenue submitted in the budget without the approval of the governor.
↩
At oral argument, defendants suggested that we committed ourselves to deciding the qualified immunity issue under our pendant jurisdiction when we denied plaintiffs motion to dismiss the appeal insofar as it was based on the claim of qualified immunity. We disagree. We simply said:
[W]e need not reach the issue whether he and Governor Rockefeller may appeal the denial to them of qualified immunity prior to final judgment, since wemayreview the rejection of qualified immunity as an incidental exercise of this court's power over the absolute immunity question.See Mercury MotorExpress Inc. v. Brinke,475 F.2d 1086,1091(5 Cir. 1973) (emphasis added).
↩
In reviewing the record in this case, I find no evidentiary support whatsoever for plaintiffs' allegations that the State budget deficits in fiscal year 1981 were contrived or that defendants knew or should have known that plaintiffs' terminations were politically motivated and did nothing to prevent them. It is precisely this type of insubstantial claim against high public officials which should not be allowed to proceed to trial.See Harlow v. Fitzgerald,457 U.S. 800,819n. 35,102 S.Ct. 2727,2739n. 35,73 L.Ed.2d 396(1982). ↩