Hafer v. Melo

PETITIONER:Hafer
RESPONDENT:Melo et al.
LOCATION:Northern District Court of New York

DOCKET NO.: 90-681
DECIDED BY: Rehnquist Court (1991-1993)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 502 US 21 (1991)
ARGUED: Oct 15, 1991
DECIDED: Nov 05, 1991

ADVOCATES:
Jerome R. Richter – on behalf of the Petitioner
William Goldstein – on behalf of the Respondents

Facts of the case

Question

Audio Transcription for Oral Argument – October 15, 1991 in Hafer v. Melo

William H. Rehnquist:

Well hear argument next in Number 90-681, Barbara Hafer v. James C. Melo, Jr.–

Mr. Richter, you may proceed.

Jerome R. Richter:

Thank you, Mr. Chief Justice, and may it please the Court:

We are before the Court on a writ of certiorari to the Court of Appeals for the Third Circuit following its reversal of the entry of final judgment in favor of our client, the petitioner, Barbara Hafer, by the District Court for the Eastern District of Pennsylvania.

Although other claims were considered by the courts below against the Auditor General and her co-defendant, James West, the U.S. Attorney for the Middle District of Pennsylvania, no aspect of those claims is before this Court.

The only issue before this Court relates to the claims against the petitioner arising out of Section 1 of the Civil Rights Act of 1871, which is Title 42, United States Code, Section 1983.

The principal question before the Court involves the application of the Court’s 1989 holding in Will v. Michigan Department of State Police, wherein the Court held neither the State nor its officials acting in an official capacity are persons under Section 1983.

The petitioner, the Auditor General, is an elected official of the Commonwealth of Pennsylvania.

The primary function of the petitioner is to ensure that all the revenues due to the Commonwealth are collected and all the funds so collected are legally and properly disbursed.

To fulfill that sensitive responsibility the Auditor General supervises a staff of approximately 800 employees consisting of auditors, investigators, and revenue agents.

The Auditor General is vested with the ultimate statutory authority to hire and fire the employees within that department.

The Auditor General took office and was inaugurated January 17, 1989.

Shortly thereafter, she fired the 16 respondents, 8 because they were ineffective managers and the other 8 because they were beneficiaries of a job-buying scheme.

Each of the 16 are seeking money damages personally against the Auditor General–

John Paul Stevens:

May I ask you a question right now?

Would the issue that you’re going to argue be any different if the 16 plaintiffs had been fired because they were all females?

Jerome R. Richter:

–The issue would be no different.

It would affect, of course, perhaps the fact that there’s alternative relief available under Title VII, but it wouldn’t affect the argument.

The relevance, of course, Justice Stevens, to our making reference to the facts relating to the job-buying scheme in which eight of the respondents were the beneficiaries has to do with the concern about the interference by the courts into the internal operations of State Government, particularly in a case of such a sensitive and public nature as that involved in the job-buying scheme.

But to go on, seven… seven of the respondents as union members pursued and secured arbitration awards.

They… they were union members, and as such they were entitled to a grievance procedure which permitted the arbitration process, and each of the seven was awarded reinstatement with back pay and interest on the back pay.

The reason for the arbitration awards, was given by the arbitrators, was that they grounded their awards solely on the basis that there was a total lack of… lack of adequate proof on the part of the Auditor General that the seven respondents knew that their jobs were purchased.

All eight beneficiaries of the job-buying scheme, including the seven with the awards for reinstatement, are still pressing 1983 claims alleging political discharge in violation of the First Amendment and their due process rights against the Auditor General in her individual capacity.

These eight have been consolidated, with James Melo as the lead plaintiff.

The other eight, who were fired as ineffective managers, have had their cases consolidated with Carl Gurley as the lead plaintiff.

Two of the Gurley respondents have sought money damages only from the Auditor General, while the other six are seeking money damages as well as reinstatement, and they are seeking reinstatement against the Auditor General in her official capacity… excuse me.

Byron R. White:

You mean that’s what they… is that they way they put it?

Jerome R. Richter:

There were 11 complaints, Justice–

Byron R. White:

Is that the way they put it?

Jerome R. Richter:

–In that one complaint, the eleventh complaint, six of the Gurley plaintiffs have sought reinstatement against the Auditor General in her official capacity, and money damages against her–

Byron R. White:

And expressly so stated?

Jerome R. Richter:

–And expressly so stated in that one complaint.

In the other 10 complaints involving all of the other respondents, there was no identification of the capacity in which they were pursuing their claims against the Auditor General.

With respect to the claims for prospective relief, we readily concede that the Will decision affirms the doctrine of Ex parte Young, and that a State official is a person for purposes of injunctive relief.

And we do not challenge that aspect of the Circuit Court’s ruling.

The Auditor General moved for summary judgment before the district court and relied on the Will decision, and set forth her function in summary judgment papers reflecting that she was acting in her official capacity, that she was the duly authorized State official who had the ability and authority to hire and fire in that office, and the district court concluded in entering judgment in favor of the Auditor General, that she was in fact acting in her official capacity.

She therefore was not a person under Section 1983, and dismissed the case.

The district court did not address the merits of the political discharge claims.

The circuit court reversed, treated the summary judgment as if it had been a judgment on the pleadings.

While not addressing the determination of the district court that the Auditor General was acting in her official capacity, the circuit court nevertheless held that respondents could maintain the actions against the Auditor General based simply on the fact that they had asserted that they were suing her in her personal capacity.

And by that, the Circuit Court thus interpreted Will as standing for the proposition that State officials, sued for damages in their personal capacity, are persons under Section 1983.

We submit that that is not what this Court held at all in the Will decision.

On the contrary, at the outset of the Will decision, the Court stated that the case presented the question of whether a State or State official, while acting in his or her official capacity, is a person within the meaning of 42 U.S.C. Section 1983, and then proceeded to answer that question at the conclusion in the negative, wherein the court stated, “We hold”… and I quote…

“that neither a State nor its officials acting in their official capacities are persons under Section 1983. “

We submit that the Circuit Court holding was inconsistent with this… the important holding in the Will decision, and if not reversed will eviscerate the meaning of the Will case.

Antonin Scalia:

Mr. Richter, if you’re not acting in your official capacity, does 1983 apply at all?

I mean, 1983 requires that the action be under color of law, under color of State law, right?

Jerome R. Richter:

Yes, Your Honor.

In our submission–

Antonin Scalia:

How can you be under color of State law if you purport to be acting only in your personal capacity?

Jerome R. Richter:

–As… as we see the Will decision, Your Honor, acting under color of law is separate and apart from the capacity in which you act.

And while it’s true the two may sometimes converge, there are different concepts, and moreover–

Antonin Scalia:

What does it mean, then?

What does it mean, to be acting under color of law, if it does not mean to be purporting to be acting officially?

I mean, that’s what I would think it means.

What do you think it means?

Jerome R. Richter:

–My understanding of the definition of “acting under color of law” is a misuse of power possessed by virtue of State law and made possible only because the wrongdoer is clothed with the authority of State law.

That is the definition of U.S. v. Classic cases.

Antonin Scalia:

Would you read that again?

Jerome R. Richter:

Misuse of power–

Antonin Scalia:

Right.

Jerome R. Richter:

–Possessed by virtue of State law–

Antonin Scalia:

Right.

Jerome R. Richter:

–And made possible only–

Antonin Scalia:

Right.

Jerome R. Richter:

–Because the wrongdoer is clothed with the authority of State law.

Antonin Scalia:

Doesn’t that mean acting officially?

Jerome R. Richter:

We submit that it does not, Your Honor.

In our view, one can be acting in their official capacity and be acting under color of State law.

They can also be acting other than in their official capacity and also be acting under color of State law.

William H. Rehnquist:

In a 1983 case, is it useful to analyze in what capacity a public official acts beyond the question of under color of State law?

Don’t we usually just talk about in what capacity they’re sued, not in what capacity they act, once we’ve decided that the requirement of under color of State law is met?

Jerome R. Richter:

This Court has consistently been dealing with the issues of capacity up until 1989, based on its interpretation of the immunities and the Eleventh Amendment issues that drove those decisions.

It was not until 1989 in Will, where the… when for the first time this Court had to address when somebody is or is not a person under Section 1983… or to put it more specifically, when a State official is a person under 1983 for purposes of money damage suits.

And it was only then for the first time that it had to focus on the standard of how one might be found to be a person or not under Section 1983.

The need to identify capacity prior to that, and unrelated to that, arose out of the 11… Eleventh Amendment considerations.

Those considerations are separate and apart from the statutory definition of “person” that was addressed in the Will decision.

Byron R. White:

Well, Will said they were separate… really, separate considerations.

Jerome R. Richter:

Absolutely, sir, and–

Byron R. White:

Do you think Ex parte Young applies in 1983 cases?

Jerome R. Richter:

–Well, Ex parte Young was not a 1983 case–

Byron R. White:

I… that isn’t what I asked you.

Jerome R. Richter:

–No, I understand, sir, but Ex parte Young in our submission is still very much a viable doctrine.

It was affirmed in–

Byron R. White:

Under 1983?

In a 1983 case as with others… is that it?

Jerome R. Richter:

–It provides… it provides, as we know, for prospective relief.

It tells us that the State sued through its officials is not viewed as being made a defendant under 1983–

Exactly.

Jerome R. Richter:

–for the purpose of that fiction–

Exactly.

Jerome R. Richter:

–But it’s still very much available as a means of relief under 1983.

Byron R. White:

And so do you challenge the… do you, in this case, challenge the order of reinstatement?

Jerome R. Richter:

There are two reinstatement issues.

Byron R. White:

Do you challenge them?

Jerome R. Richter:

There was no order of reinstatement entered in this case.

There was a dismissal–

Byron R. White:

That’s right, yes.

Jerome R. Richter:

–of the claims for reinstatement by the district judge–

Byron R. White:

Yes.

Jerome R. Richter:

–And in our view we concede that if the court didn’t reach the merits, and if this Court chooses not to reach the merits, then those six Gurley claims for reinstatement under Ex parte Young ought to be considered by the district court, and we don’t contest that.

Byron R. White:

So they were… the courts below were wrong in that respect?

Jerome R. Richter:

If the court–

Byron R. White:

If.

All right.

Jerome R. Richter:

–That’s only one aspect–

Byron R. White:

Yes.

Jerome R. Richter:

–of the case.

Our principal concern is with the money damage claims against the Auditor General personally.

The reinstatement claims were brought by six Gurley respondents against the Auditor General in her official capacity, and as to those we concede that unless that’s decided on the merits or considered decided on the merits, it has to go back.

Byron R. White:

So on the damages, you say that the firing was an act under the officials in the official’s official capacity?

Jerome R. Richter:

That’s correct, sir.

Byron R. White:

And Ex parte Young should not apply to… in that situation, even though the allegation is that the firing was unconstitutional?

Jerome R. Richter:

The allegation… the allegations are that the firings were unconstitutional, but we submit, Your Honor, that Ex parte Young is on a separate track on reinstatement, and we suggest–

Byron R. White:

Well, I know, but how about on the damages issue?

Jerome R. Richter:

–On the damages issue, we suggest that a claim of political discharge, wherein an effort is made to pursue the State official, in this case in your individual capacity, for money damages, is inappropriate because the official in connection with hiring and firing is acting in her official capacity in much the same way that the director of State Police in Will was acting in his official capacity, and as such ought not… ought not to have to answer personally, with their personal assets at risk, under 1983–

Byron R. White:

Well–

Jerome R. Richter:

–And we submit that in the Will decision, of course, that was a suit against the director of State Police in his official capacity, whereas this case… I’m sorry, sir.

William H. Rehnquist:

–Well, go ahead.

Jerome R. Richter:

Whereas in this case the case comes before you on the respondent’s assertion that they’re pressing the case against the Auditor General in her individual capacity.

William H. Rehnquist:

But surely a State Auditor can’t fire any State employee other than in her official capacity, can she?

Jerome R. Richter:

That’s exactly the point.

She can fire and hire those on the staff within her department, and within her department alone, and she’s authorized to do that.

William H. Rehnquist:

But in her… acting in her official capacity as State Auditor.

Jerome R. Richter:

Exactly.

Acting in her official capacity as the elected Auditor General.

Were she, of course, to try, for example, to fire an employee in some other department or some related agency and either directly or indirectly try to affect some employment decision, she’d be acting outside of her authority, and in our submission would not be acting in her official capacity, as an example–

Byron R. White:

Yes, but if her act is unconstitutional under Ex parte Young, it is not to be charged to the State.

Jerome R. Richter:

–There–

Byron R. White:

You referred to it as a fiction.

Well, maybe it is, that if the person is acting unconstitutionally it–

Jerome R. Richter:

–There are numerous–

Byron R. White:

–The person… the official is then a person, not an official.

Jerome R. Richter:

–Well, Justice, there are numerous instances where constitutional violations occur by the State and the State is not answerable in money damages.

Exactly.

Jerome R. Richter:

They were only answerable under Young for prospective relief, and that’s because the Young doctrine tells us that… that for injunctive or prospective relief the State will not be… will be considered a person.

Antonin Scalia:

Mr. Richter, what I don’t understand about the… the… you know, the last hypothetical you gave, you say when she fires somebody from another department that she doesn’t have control over, then she would be acting in her personal capacity, right?

Jerome R. Richter:

That’s correct, sir.

Antonin Scalia:

But she also… but she wouldn’t have any authority to do it, so she wouldn’t be acting under color of State law.

I mean, it seems to me that whenever you say personal capacity, you’re just out from under 1983 anyway?

Jerome R. Richter:

Well, I beg to differ with that, because I think she would be acting under color of State law, although I think she would be–

Antonin Scalia:

She would in trying to fire somebody from another department?

It’s clear that she has no authority over that person in the other department?

Now, you know, I find it hard to conceive of a case in which you could ever get damages under 1983, because as soon as… well–

Jerome R. Richter:

–In our view, sir, the Will case told us to look to the function of the State official in determining whether or not they’re a person under the act.

In our submission, the determination of whether a State official is going to be held personally responsible is something that ought to be determined by the court and not by the pleadings of the… of the plaintiff alone.

John Paul Stevens:

–Before you leave that, could I ask you two quick questions?

First, when Justice Scalia had questioned you before about under color of State law, you quoted something from a case, I think… misuse of power or… could you tell… I missed what case that was from.

Jerome R. Richter:

That’s the definition from U.S. Classic, which is referred to–

And that’s from Classic.

Jerome R. Richter:

–from time to time.

John Paul Stevens:

And the same question I was going to ask, would not the definition which you read apply directly… assuming the merits.

I know you dispute the merits of the underlying claim, but wouldn’t that apply to the very claim we have before us?

It was a misuse of power if it was unconstitutional, and so forth?

Jerome R. Richter:

We don’t dispute that the Auditor General was acting under color of State law.

John Paul Stevens:

I see.

In this case?

Jerome R. Richter:

In this case.

John Paul Stevens:

Okay.

Jerome R. Richter:

We readily concede that that is not… that element is not an issue.

Our view is that the Will case tells us that she had to be acting outside her official capacity in order for her to be held individually responsible, because in our submission the Will case tells us she’s acting in her official capacity.

She is not a person, and as such, can’t be held responsible under 1983 personally.

I just wanted to make a few more points, and that is there was no case prior to the Will decision in this Court that dealt with a statutory definition of whether a State official is a person with respect to money damage claims.

All of the prior decisions that have been relied upon by the respondents deal with Eleventh Amendment or immunity issues, and this Court had specifically made it clear that the scope of the Eleventh Amendment and the scope of 1983 are separate issues.

In Will, for example, the plaintiff cited Kentucky v. Graham for the proposition that the court assumed the State was a person.

But the Will court in footnote 4 rejected that proposition and stated that this Court did not address the meaning of “person” in any of those cases, and none of the cases was resolution of that issue necessary to the decision.

Accordingly, we submit that the reliance on Kentucky v. Graham by the respondents here as well as their reliance on the Rhoads… Scheuer v. Rhoads decision and the Forrester decision is misplaced.

The respondents had argued and the circuit court had concluded that this Court would permit State officials to be sued and to be liable solely because they’re named in their personal capacity.

We believe that this Court intended what it meant when it said “acting”, that the Court’s repeated and deliberate use of the word “acting” in its holding was with a view to focusing on the function of the actions of the State official, and that the form of the pleading does not control the statutory definition of “person”.

If it please the Court, I’d like to reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Richter.

Mr. Goldstein, we’ll hear from you.

William Goldstein:

Mr. Chief… Mr. Chief Justice, may it please the Court:

This Court in prior decisions has used the expression “official capacity” in two different contexts.

The first is to describe an attribute of the conduct of a 1983 defendant.

Was that defendant acting in his official capacity, and if so he would be acting under color of State law.

For example, in West v. Atkins Mr. Justice Blackmun stated,

“Generally a public employee acts under color of State law while acting in his official capacity or while exercising his responsibilities pursuant to State law. “

If a person is acting in his official capacity, he is certainly acting under State law.

But official capacity has also been used by the Court to describe the legal personage of a defendant in a 1983 case.

William Goldstein:

That is, is the defendant being sued in an official or personal capacity.

And legal personage is important because it determines where the real interests lie in the case, and if a money judgment is awarded, who will pay it.

Justice O’Connor in Karcher v. May stated,

“The concept of legal personage is a practical means of identifying the real interest at stake in a lawsuit. “

“We have repeatedly recognized that the real party in interest in an official capacity suit is the entity represented and not the individual office-holder. “

and Justice O’Connor cited Kentucky v. Graham and Brandon v. Holt for that proposition.

The expression “official capacity”, then, can have two meanings.

It can be describing the conduct of the defendant which occurred before the lawsuit took place and which gives rise to it, or it can describe the legal personage of the defendant once the litigation is under way.

The petitioner seeks to equate the conduct with the legal personage, and to say that if the defendant was acting in an official capacity, he or she can only be sued in an official capacity.

And what that equation does was basically to abolish personal capacity lawsuits where the defendant is a State employee or a State official, because in an official capacity lawsuit it is the State that is the defendant, and we know that the State is not a person under 1983, and the State has Eleventh Amendment immunity in Federal court.

So I do not believe that Will was ever intended to abolish personal capacity lawsuits, and I believe that Will spoke only in the context of what the Supreme Court of Michigan recognized to be an official capacity lawsuit and which this Court said in its opinion was an official capacity lawsuit.

I would also say that–

Sandra Day O’Connor:

How do we know when it’s a personal capacity suit, and how specific must the complaint be, do you think?

William Goldstein:

–In order to be an official capacity suit under Kentucky v. Graham it is necessary to allege that the governmental entity was the moving force behind the deprivation of civil rights and that the entity’s policy and custom played a factor.

Without those allegations, there can be no official capacity liability.

So I would say that one thing to look at in the lawsuit is whether the official capacity allegations are there.

Secondly, according to Kentucky v. Graham, if you’re proceeding in an official capacity lawsuit, then you would give notice to the governmental entity and you would give them an opportunity to defend.

In this case, the governmental entity was not notified.

Only Barbara Hafer is notified, only she is requested for damages, and only she was involved in the case.

In addition, there have been decisions of this Court in Brandon v. Holt and I believe in the Bender case where the Court said that we can look to the subsequent conduct of proceedings if it is in doubt.

And in this case we did file documents before the Court entered summary judgment in which we specifically said that we are proceeding only against Barbara Hafer in her personal capacity.

And there is a verification in the records which appears at page 197 where it just actually states that, where it says,

“No claim for damages has ever been made against the Commonwealth of Pennsylvania. “

“All claims for damages have been made against Barbara Hafer individually and in her individual capacity. “

“Service of the complaint was made upon Barbara Hafer. “

“No service was attempted upon the Commonwealth agency or the Pennsylvania Attorney General’s Office. “

“No money has been sought, and no claim has been made for monetary damages to be paid out of the Commonwealth’s Treasury. “

I will admit that the initial pleadings are not paragons in this case, but I think that we did get the point across at a stage that was still reasonable and fair to the defendant to know what the issues were in the case.

I would respectfully suggest to the Court that since 1974, with Scheuer v. Rhoads, it has been the law that if a State executive official personally commits a deprivation of civil rights, then that official can be held accountable and made in his person to respond to the victim to remedy the right that has been wronged… that has been committed.

And in that matter the Court actually cited Ex parte Young as authority for that position, and the Court… and Chief Justice Burger, speaking for a unanimous Court, said,

William Goldstein:

“However, since Ex parte Young, it has been settled that the Eleventh Amendment provides no shield for a State official confronted by a claim that he has deprived another of a Federal right under color of State law. “

and further on, went really right down to the capacity issue and personal liability.

It says that, Young teaches that when a State officer acts under a State law in a manner violative of the Federal Constitution, he comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.

All that we are asking in this case is that Barbara Hafer be accountable for the consequences of her individual conduct, and I would respectfully submit that if petitioner were to prevail in this case it would be necessary to overrule Scheuer v. Rhoads.

I would also call to the Court’s attention what I believe to have been a unanimous decision in Forrester v. White.

Forrester v. White was a State judge, a State official who fired a probation officer, and it was determined that that firing was a violation of the probation officer’s constitutional rights.

A personal capacity lawsuit was filed, and a verdict of about $ 80,000 was entered against the judge.

The judge said that I am entitled to absolute immunity because I am a judicial officer, and this Court said that hiring and firing is not the type of conduct that will qualify for an absolute immunity.

Hiring, firing is administrative, and we can tell… or we think we know that back in 1871 what immunities were fairly in the minds of Congress and hiring and firing was not one of them.

Well, what Hafer has done in this case is a hiring and firing decision, and she is a State official.

She is really seeking an absolute immunity in this case.

She’s saying, I can’t be personally responsible for my conduct, and if she were to receive an absolute immunity, I would think that this Court would have to overrule Forrester v. White.

I would also say that her position simply is not supportable by the plain meaning of the statute.

Mr. Richter conceded that Hafer was acting under color of State law at the time she fired these people.

The statute identifies the potential defendants in this case: all persons acting under color of State law.

Hafer in her individual capacity is a person, and she is acting under color of State law.

The statute then says that if those persons commit a violation of civil rights, they are liable for an action at law, and this Court has traditionally held that an action at law is an action for damages.

So under the plain meaning of the statute, if she is acting under color of State law and she commits a violation of someone’s civil rights, at the very least she is liable for an action for damages.

There has been some reference in Petitioner’s brief to a worry about vexatious lawsuits.

I would respectfully submit that the concept, this doctrine of qualified immunity, developed to the final point in Harlow v. Fitzgerald, adequately handles that situation.

And I would respectfully say to the Court from the decision of Mitchell v. Forsyth, where Justice White stated,

“We emphasize that the denial of absolute immunity will not leave the Attorney General at the mercy of litigants with frivolous and vexatious complaints. “

“Under the standard of qualified immunity in Harlow, the Attorney General will be entitled to immunity so long as his actions do not violate clearly established statutory or constitutional rights which a reasonable person would have known. “

Justice White concluded,

“We do not believe that the security of the republic will be threatened if its Attorney General is given incentives to abide by clearly established law. “

To paraphrase that, I would respectfully submit that the security of the Commonwealth of Pennsylvania will not be threatened if its Auditor General is given incentives to abide by clearly established law.

I think we will be better for it.

Thank you.

William H. Rehnquist:

Thank you, Mr. Goldstein.

Mr. Richter, do you have rebuttal?

William H. Rehnquist:

You have 7 minutes remaining.

Jerome R. Richter:

Thank you, sir.

Just a few minutes.

We are not predicating our position on the Eleventh Amendment.

We are not predicating our position on absolute immunity for the Auditor General.

We are saying that the Auditor General is not, because of her conduct in this case in hiring and firing, a person under Section 1983.

We are not suggesting that Scheuer v. Rhoads or Forrester v. White need be overruled.

On the contrary, we’re suggesting that the Court in its decision in Will recognized that those cases were Eleventh Amendment jurisprudence and that those cases, each of them, never addressed the question of whether or not the State officials acting in those cases were acting in such a way as to be a person or not under Section 1983.

The statutory issue, the statutory definition of “person”, was never addressed in any of those cases until the Will decision.

William H. Rehnquist:

In your view, Mr. Richter, do the plaintiffs in this case then have no chance of monetary relief against the State Auditor?

Jerome R. Richter:

In our position, they… they have no right… they never had a right to seek monetary damage against the Auditor General since she’s acting in her official capacity in the firings, is not a person, and their relief that they seek ought to be limited to either prospective relief or some other alternative relief.

Byron R. White:

You know, we frequently have cases, and there are hundreds of cases around, where people are suing policemen or prison guards for damages for violating their constitutional rights and wanting an injunction to keep them from doing it.

There are a lot of judgments that have been entered against policemen on the basis that they are persons–

Jerome R. Richter:

That–

Byron R. White:

–But they are… but they were acting in their official capacity just as surely as your Auditor was.

Jerome R. Richter:

–Well, may I respond to that?

First of all, with respect to city policemen, under Monell, of course, the city policemen, as are the cities, are identified in Monell as persons and subject to damage liability under 1983.

Byron R. White:

Well, what about–

Jerome R. Richter:

Here–

Byron R. White:

–What about State prison guards?

Jerome R. Richter:

–Here we’re only addressing the function of hiring and firing as being within official capacity.

Were we asked to draw the line, which we haven’t been, we would draw the line in the context of internal operations of State Government.

We would draw the line, at the very least, in the State employment context.

We don’t think we have to go beyond that.

We think that if the Court were to consider the factors that we had suggested in our briefing, that in determining whether or not a State official was acting within their official capacity such that they’re not persons, we would suggest that special police power cases, cases involving the public at large, are such that those parties are not acting in their official capacity.

We’re suggesting the definition of official… acting in official capacity is limited under Will at least to the facts of that case, which have to do with employment decisions, with hiring and firing, with the internal operations of State Government.

We would suggest that there was an analogous situation, albeit not in a statutory context, in Bush v. Lucas, a case back in 1983, albeit not a 1983 case, wherein the Court declined to extend the opportunity to pursue Bivens actions against a Federal employer because it impacted adversely on the internal operation of the Government, and the Court concluded there was adequate alternative relief because there was the opportunity to pursue claims in the Civil Service context.

I just wanted to point out again with respect to the recitation and suggestion that the Eleventh Amendment derives this result that that is a different issue.

The Court made it very clear… page 66 of the Will opinion… that this does not mean, as petitioner suggests, and I quote,

“That we think that the scope of the Eleventh Amendment and the scope of 1983 are not separate issues. “

Jerome R. Richter:

“Certainly they are, but in deciphering congressional intent as to the scope of 1983, the scope of the Eleventh Amendment is a consideration, and we decline to adopt a reading of 1983 that disregards it. “

John Paul Stevens:

Of course, in the preceding sentence the Court would be… pointed out that they were confronted with the question of whether Congress intended to create a cause of action against States, to be brought in State courts.

Jerome R. Richter:

That’s correct.

John Paul Stevens:

Yes.

Jerome R. Richter:

Thank you.

William H. Rehnquist:

Thank you, Mr. Richter.

The case is submitted.