904 F.2d 748 (1st Cir. 1990), 90-1015, Amsden v. Moran

Docket Nº:90-1015.
Citation:904 F.2d 748
Party Name:Henry H. AMSDEN, et al., Plaintiffs, Appellants, v. Thomas F. MORAN, etc., et al., Defendants, Appellees.
Case Date:May 29, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 748

904 F.2d 748 (1st Cir. 1990)

Henry H. AMSDEN, et al., Plaintiffs, Appellants,


Thomas F. MORAN, etc., et al., Defendants, Appellees.

No. 90-1015.

United States Court of Appeals, First Circuit

May 29, 1990

Heard April 5, 1990.

Page 749

Glenn R. Milner with whom Cook & Molan, P.A., was on brief, for plaintiffs, appellants.

Charles T. Putnam, Asst. Atty. Gen., with whom John P. Arnold, Atty. Gen., was on brief, for defendants, appellees.

Before BREYER, Chief Judge, and CAMPBELL and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Henry H. Amsden, a land surveyor, sued the New Hampshire Board of Land Surveyors (BLS) and its individual members in New Hampshire's federal district court. Invoking 42 U.S.C. Sec. 1983 (1982) and seeking damages totaling $2,500,000, Amsden accused defendants of scorning his right to due process. 1 Confronted with cross motions for summary judgment, the district court granted brevis disposition in defendants' favor on the basis of qualified immunity. Amsden appeals. We affirm.


We begin with an overview of the regulatory mosaic and then proceed to rehearse the facts in the light most congenial to the summary judgment loser, as Fed.R.Civ.P. 56 requires. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Quaker State Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1513 (1st Cir.1989).

  1. Regulatory Framework.

    The BLS is a state regulatory authority whose members are appointed by the governor. 2 It is empowered to determine and set standards of admission to the practice of land surveying; to promulgate rules anent licensure; and to adopt ethical and professional guidelines. See generally N.H.Rev.Stat.Ann. Secs. 310-A:53 to 310-A:69 (1984). The BLS may institute disciplinary proceedings against licensed land surveyors on its own initiative or upon written complaint. See N.H.Rev.Stat.Ann. Secs. 310-A:70(I), 310-A:71. Where "misconduct" has been found, the BLS may impose a variety of sanctions, ranging from reprimand to revocation of the surveyor's license.

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    See N.H.Rev.Stat.Ann. Secs. 310-A:70(II), (III). Disciplinary proceedings are first heard by the BLS and are thereafter eligible for rehearing by the BLS and, if need be, direct judicial review by the New Hampshire Supreme Court. See N.H.Rev.Stat.Ann. Sec. 310-A:71; N.H.Rev.Stat.Ann. Sec. 541:6 (1974). Proceedings before the BLS are also subject to collateral review by the state Board of Claims (BOC). See N.H.Rev.Stat.Ann. Sec. 541-B:2 (Supp.1989); 1977 N.H.Pub.L. 595:2 (formerly codified at N.H.Rev.Stat.Ann. Sec. 541-B:9). At the times material hereto the BOC had exclusive jurisdiction over all damage claims against state agencies; no award could exceed $50,000. See id.; 1977 N.H.Pub.L. 595:2 (formerly codified at N.H.Rev.Stat.Ann. Sec. 541-B:14). BOC decisions are now, and were then, subject to discretionary review by the New Hampshire Supreme Court. N.H.Rev.Stat.Ann. Sec. 541-B:10(IV) (Supp.1989); N.H.Rev.Stat.Ann. Sec. 541:6 (1974).

  2. Facts and Travel.

    Amsden was licensed as a land surveyor in 1969. Six years later, he became associated with Tyrone Hunter, an unlicensed (but practicing) land surveyor. Such an association was not uncommon; like apprenticeships in other fields, the praxis allowed newcomers to the profession to gain supervised experience.

    In 1977, the Amsden-Hunter duo was hired to survey a 40-acre parcel owned by Mr. and Mrs. Whipple. The tract then became embroiled in a boundary dispute. Deferring their topographic work, Amsden and Hunter assisted the Whipples in the ensuing litigation. By late 1981, however, the surveyor-client relationship had soured. The Whipples filed a complaint with the BLS against their two former geodesists. On December 29, Amsden was notified of the complaint and advised that a hearing would take place on January 15, 1982. The notification letter specified three charges to be considered: misrepresentation of qualifications; overcharging; and delayed completion of work.

    We will not attempt to inventory every session or to deliver a blow-by-blow account of what transpired administratively. We list instead certain highlights (or as plaintiff sees it, lowlights) of the proceedings:

    1. According to plaintiff, when the hearings were convened, the BLS "declined to consider the question of the reasonableness of the fee billed" to the Whipples, citing jurisdictional problems.

    2. In the spring of 1982, before conducting the last of the hearings, BLS members visited the Whipple property. Amsden--who was present at, and participated in, all of the sessions--was not notified of the field trip.

    3. When the hearings concluded, the BLS reserved decision.

    4. In March 1983, while the Whipple matter was still under advisement, the BLS received a complaint from two land surveyors who protested that Hunter was holding himself out, falsely, as a licensed land surveyor. The BLS, through its chair, responded that it could take no action because it lacked jurisdiction over unlicensed persons. See N.H.Rev.Stat.Ann. Secs. 310-A:72, 310-A:73.

    5. The next month--in what Amsden sees as tergiversation or worse--the BLS wrote to the Land Surveyors Association proposing a meeting at which all of the material against Hunter could be assembled and discussed, and a strategy planned.

    6. On May 1, 1983, the BLS finally acted on the Whipples' complaint, revoking Amsden's license. The BLS justified its order by finding that Amsden had "failed to exercise adequate supervision or checking over Mr. Hunter, had produced a fraudulent [survey] plan and had acquiesced in the charging of fees which were exorbitant."

    7. Amsden then hired a new attorney, Richard Upton. The lawyer informed the BLS that Amsden had dissolved his professional relationship with Hunter. On May 11, Upton secured an agreement to postpone the effective date of the revocation order. He proceeded to negotiate a settlement

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    whereby Amsden returned roughly 60% of the overall fee to the Whipples.

    8. Once his dispute with the Whipples was settled, Amsden asked the BLS to take a fresh look at its earlier order. The BLS did so. "Upon consideration of the motion for rehearing and the evidence in support thereof," it withdrew the revocation on July 1, 1983, restored Amsden's license unconditionally, and warned him to oversee unlicensed surveyors more carefully in the future. Amsden and Hunter parted company, although it remains unclear whether the BLS required the separation as a condition precedent to returning Amsden's license. Amsden elected not to seek direct appellate review of the final BLS action.

    The calm was short-lived. In January 1984, Amsden filed an action before the BOC, alleging various due process deprivations and state-law torts. He sought damages for loss of business and injury to professional reputation. Amsden argued among other things that the BLS decided the case against him not on the basis of his conduct, but as a device to force Amsden to abandon his arrangement with Hunter, thereby putting Hunter out of the land surveying business. Amsden also claimed that the license revocation was motivated by the chair's animosity toward him and that certain statements anent the revocation amounted to slander.

    The BOC, though rejecting outright the claims of animus and defamation, took issue with the BLS's findings that the survey plan was "fraudulent" and the fees "exorbitant." The BOC also concluded that the BLS had "revoked Amsden's license because it wanted to put Hunter out of business by severing his relationship with Amsden." Nevertheless, the BOC determined that Amsden had properly been haled before the BLS and that the BLS's actions did not fall clearly beyond its jurisdiction. Because the BOC believed that the BLS was entitled to absolute immunity for quasi-judicial acts within the ambit of its ostensible authority, damages were denied. Both parties appealed to the state supreme court, which refused review in June 1986.

    Almost two years later, plaintiff filed suit in federal district court. He again alleged that the BLS had violated his due process rights (procedural and substantive) and sought a monetary balm. Without answering the absolute immunity question, the district court ruled that the defendants were at least entitled to, and shielded from liability by, qualified immunity. In addition, the district court ruled that plaintiff's claims against the defendants in their official capacities were barred by the Eleventh Amendment and Will v. Michigan Dep't of State Police, --- U.S. ----, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989). 3


    Prefatory to our main discussion, we stake out the perimeters of the doctrine of qualified immunity and the junction where that doctrine and Fed.R.Civ.P. 56 intersect.

  3. Qualified Immunity.

    Qualified immunity shields government officials wielding discretionary powers "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Whether a defendant actually infracted a plaintiff's rights is not the central issue: "Even defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard." Davis v. Scherer, 468 U.S. 183, 190, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984). The "applicable standard" is an objective one. Thus:

    Because qualified immunity does not address the substantive viability of a section 1983 claim, but rather the objective reasonableness of a defendant's actions, a plaintiff who is entitled to prevail on the merits is not necessarily entitled to prevail on the...

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