Harter v. Vernon, (4th Cir. 1996)

Text

---

Filed: December 26, 1996 UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-1434

Wayne Harter, et al, Plaintiffs - Appellees, versus

C. D. Vernon, etc., et al, Defendants - Appellants.

ORDER

The Court amends its order filed November 22, 1996, as

follows:

On page 2, first full paragraph, line 4 -- the period after

the word "panel" is removed and replaced with a comma; the word

"see" should be lower case. For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WAYNE HARTER; ROBERT PAYNE,

Plaintiffs-Appellees,

v. C. D. VERNON, individually and in

his official capacity as Sheriff of No. 96-1434 Rockingham County; ROCKINGHAM

COUNTY,

Defendants-Appellants,

GUILFORD COUNTY,

Movant.

Filed: November 22, 1996

ORDER

A member of the Court requested a poll on whether this case

should be reheard en banc

. A majority of judges in active service voted that it should not be reheard en banc

. Chief Judge Wilkinson and Judges Russell, Widener, Wilkins,

Luttig, and Williams voted for rehearing en banc

. Judges Hall, Murnaghan, Ervin, Niemeyer, Hamilton, Michael, and Motz voted

against rehearing en banc

. Judge Luttig filed an opinion dissenting from the denial of rehear-

ing en banc

, in which Chief Judge Wilkinson and Judges Russell, Wilkins, and Williams joined.

Entered at the direction of Judge Motz for the Court.

LUTTIG, Circuit Judge, dissenting:

Out of respect for the rule of law and principles of stare decisis

, and in order to avoid confusion concerning the law in our circuit, we

have adopted for our court a rule that one panel cannot overrule or

modify a published opinion of another panel, see

, e.g. , Norfolk &

Western Ry. v. Director, OWCP

, 5 F.3d 777, 779 (4th Cir. 1993); a modification of precedent may only be made by the full court sitting

en banc

. The necessary corollary of this rule is that in those instances in which a later opinion impermissibly attempts to modify an earlier

opinion, the earlier opinion remains the controlling law in the circuit

with respect to matters as to which the two opinions unquestionably

conflict. Were it otherwise, willing panels, unconstrained by any

sense of obligation to the principles of stare decisis

, our own internal rules, or notions of collegiality, could run roughshod over prior prece-

dent, effectively repealing a rule whose importance to both the rule

of law and to the orderly operation of a court is beyond dispute.

Most frequently, in instances where it is believed by certain mem-

bers of the court (or for that matter, members of the bar) that an opin-

ion effectively overrules or modifies a prior opinion, it may at least

reasonably be argued that it does not do so, either because the facts

are sufficiently different from those of the earlier case as to render the

earlier case inapposite or because the issue presented in the later case,

although perhaps closely related, is actually different from that in the

earlier case and does not require application of the same principle of

law. In such instances, of course, it simply falls to the members of the

bar, and ultimately to the court, to reconcile the two authorities in a

principled way. Because of the respect that we accord each other, it is the rare occa-

sion when, even upon careful examination, not only is it apparent that

a panel opinion is demonstrably at odds with prior caselaw, but it can-

not reasonably be contended otherwise. In my judgment, Harter

v. Vernon

, No. 96-1434, is, because of its flagrant disregard of our recent opinion in Gray

v. Laws

, 51 F.3d 426 (4th Cir. 1995), such an opinion. Consequently, under our own rules, it seems to me that it (as

opposed to Gray

) cannot hereafter be regarded as controlling author- ity on questions of Eleventh Amendment immunity with regard to

matters where the two opinions conflict.

The ways in which the panel opinion attempts to alter Gray

are numerous and undeniable. Indeed, if the panel opinion is placed

alongside Gray

, it is obvious that, despite its disclaimers, the panel opinion was authored as if Gray

had never even been written. The panel opinion begins its analysis by boldly stating that "[t]he

test [that is] employed in the Fourth Circuit for determining whether

an agency or employee constitutes an arm of the state was first stated

in Ram Ditta

v. Maryland Nat'l Capital Park and Planning Comm.

, 822 F.2d 456 (4th Cir. 1987)." Op. at 4. Ram Ditta

, however, is no longer the test employed in this Circuit. Rather, the test in this Circuit

is that laid out in Gray

, which expressly refined Ram Ditta

in light of the Supreme Court's recent decision in Hess

v. Port Auth. Trans-

Hudson Corp.

, 115 S. Ct. 394 (1994). We could not have been clearer in Gray

that a modification of Ram

Ditta

was required by Hess

: Hess necessitates a modification of our analysis [in Ram

Ditta]

for single state entities only to the extent that it must be read to introduce as one of the primary considerations the

concern for state sovereignty and to formulate differently

several of the other relevant considerations that we had pre-

viously enumerated.

F.3d at 434. In the very next sentence in Gray

, we went on to say, referring to the previous three pages of analysis of Hess

and our own precedent, that,

[a]lthough the changes in our circuit's Eleventh Amendment

analysis wrought by Hess

arguably are not significant as they bear on the single state issue before us, neither are they

inconsequential

. Id

. (emphasis added). That we modified Ram Ditta

cannot reasonably be contested.

Indeed, any suggestion (such as that in today's opinion) that Ram

Ditta

applied exactly the standard employed in Hess

should have been 3

refuted by the fact that the Supreme Court itself vacated and

remanded for consideration in light of Hess

our own opinion in Ristow

v. South Carolina Ports Auth.

, 27 F.3d 84 (4th Cir. 1994), which had relied exclusively on Ram Ditta

. See Ristow

v. South Caro-

lina Ports Auth.

, 115 S. Ct. 567 (1994). The modifications that Gray

held were necessitated by Hess

were set forth in great specificity in Gray

. The first and principal change, of course, was that Hess

elevated to primacy, together with the con- cern for the state treasury, the concern for state sovereignty, stating

that these two concerns are "the Eleventh Amendment's twin reasons

for being." 115 S. Ct. at 404. As we explicitly said in Gray

, These two concerns, "the Eleventh Amendment's twin rea-

sons for being," id

. at, 115 S. Ct. at 404, the Court instructed, should dominate the inquiry in cases where it is

difficult to discern whether a particular entity is an arm of

the state.

Gray

, 51 F.3d at 432. Today's opinion not only does not accord any

particular significance to the state sovereignty factor, it effectively

reads that factor out of the Eleventh Amendment analysis altogether

by holding that it is not an independent factor, but merely a proxy for

the other factors collectively.

In fact, in what is a most telling misstatement of Hess

, today's opinion reads as follows:

The [Supreme] Court found that these factors, which echo

the factors articulated in Ram Ditta

, pointed in opposite directions for purposes of determining the Eleventh Amend-

ment immunity of the Port Authority. The Hess

Court rea- soned that when this is the case, a court must focus on "the

impetus for the Eleventh Amendment: the prevention of fed-

eral court judgments that must be paid out of a State's trea-

sury. . . . Accordingly, Courts of Appeals have recognized

the vulnerability of the State's purse as the most salient fac-

tor in Eleventh Amendment determinations."

Op. at 5-6. Significantly, what the Supreme Court actually said was

not

that when the factors point in opposite directions courts should

focus on the treasury question; what it said was

[w]hen indicators of immunity point in different directions,

the Eleventh Amendment's twin reasons for being remain

our prime guide. See supra

at 400. 115 S. Ct. at 404. Of course, as noted, the Supreme Court had identi-

fied the "twin reasons for being" as concern for the fisc and

, "[m]ore pervasively," concern for state sovereignty. Id

. at 400. Second, although we stated in Gray

that the concern for the fisc was the most important factor, we did not hold that the impact on the

state treasury was necessarily dispositive of the inquiry. Although one

could conclude that the treasury concern was dispositive if payment

from the treasury was required, Hess

did not say as much. Thus, we said in Gray

, in language that differs from that in today's opinion, in a slight, but very important way, that,

it appears that a determination that the state treasury will be

liable for a particular judgment is largely, if not wholly, dis-

positive of entitlement to Eleventh Amendment immunity

. . . . This was essentially

our holding in Bockes

. 51 F.3d at 433-34 (citations omitted; emphasis added). There is noth-

ing whatsoever in Hess

to support the assertion in today's opinion that Hess

"held" that "the state treasury factor [is] `dispositive.'" See

Op. at 9. Third, we specifically held in Gray

that where the state treasury will not be affected by the judgment, whether or not immunity will

obtain

must be determined by resort to the other relevant consider-

ations referenced by the Court, chief among which are

whether the suit will jeopardize "the integrity retained by

[the] State in our federal system," and whether the state

possesses such control over the entity claiming Eleventh

Amendment immunity that it can legitimately be considered

an "arm of the state."

Gray

, 51 F.3d at 434 (quoting Hess

, 115 S. Ct. at 400) (emphasis added). Today's opinion, in stark contrast, reads as follows:

The state treasury factor is also significant when the state

treasury will not pay the judgment. If that is the case, then

"the most salient factor in Eleventh Amendment decisions"

weighs against a finding of immunity. Hess

, 115 S. Ct. at 404. Although in that situation, a court should consider the

other Ram Ditta

factors, Hess

makes clear that the impact on the state treasury is generally determinative when the state

will not have to pay for a judgment: . . .

Op. at 7-8. In short, the proposed opinion simply ignores altogether

the nuanced analysis required in Gray

. Although one can conclude that the treasury concern may be dispositive if payment from the trea-

sury is required, see Bockes

v. Fields

, 999 F.2d 788, neither Hess

nor Gray

implied that Eleventh Amendment concerns are to be dis-

counted and downgraded when the state treasury is not implicated.

Yet this is exactly what today's opinion purports to do. And the list of inconsistencies between today's opinion and Gray

goes on. To say, as the court today does, that we did not "articulat[e] the

particulars of the Eleventh Amendment inquiry in Gray

," see

Op. at 6, is, as should be apparent even from the selected quotations above,

simply disingenuous. The majority's view that the Gray

court must not have detailed the particulars of the analysis because it remanded

to the district court is a non sequitur

. Gray

obviously did not remand for the district court to develop the Eleventh Amendment analysis; it

remanded for that court to apply our analysis in the first instance so

as to determine whether the particular officials in that case were enti-

tled to immunity.

I believe the full court is remiss for not addressing the serious

breach of our own rules represented by the panel's opinion. Absent

clarification from us, not only do we telegraph how little respect we

have for our own precedent and the centrality of stare decisis

in our jurisprudence, but we also hopelessly confuse the district courts of

this circuit by requiring them to apply Gray (which they are emphati-

cally obliged to do, notwithstanding today's opinion)

even in the face of arguments grounded in Harter's

unmistakable attempt to "rewrite" Gray

.

Because of the panel's disregard of our court's precedent in Gray

, and the consequent affront to the rule of law in our circuit, I would

summarily vacate the panel's decision. At the very least, however, I

would rehear the case en banc

so that the modifications made to Gray

by today's opinion (which collectively result in a more restrictive

interpretation of the Eleventh Amendment than even that in Hess

) would, at a minimum, enjoy the imprimatur of legitimacy, and so that

the district courts within our circuit would not be subjected to the

utterly confusing directions from our court that results from today's

decision. Left to stand, the bar of our court, as well as the district

courts of our circuit, cannot be faulted for wondering whether the

operative "rule" of the court is that a panel is bound by earlier prece-

dent unless, through an exercise of raw judicial power, the panel

decides that it will not be so bound. When, even as colleagues, we

accord our own precedent so little respect, we should hardly be sur-

prised when others do likewise.

Chief Judge Wilkinson and Judges Russell, Wilkins, and Williams

join in this opinion.

---