Sales & Miller v. Grant

• Decision Date: 04 May 2000
• Docket Number: CA-96-27-L,No. 99-1650,99-1650
• Parties: (4th Cir. 2000) INEZ SALES; DEBRA M. MILLER, Plaintiffs-Appellees, v. ALPHONSO L. GRANT, in his individual capacity and in his official capacity as a member of the City of Lynchburg Electoral Board; JOHN E. MASON, JR., in his individual capacity, Defendants-Appellants, and DAVID T. PETTY, JR., in his official capacity as member of the City of Lynchburg Electoral Board; CITY OF LYNCHBURG ELECTORAL BOARD; CAROL SPENCER READ; ARELIA LANGHORNE, in her official capacity as a member of the City of Lynchburg Electoral Board; JOHN COBB, in his official capacity as a member of the City of Lynchburg Electoral Board; ANNE MARIE MIDDLESWORTH, in her official capacity as general registrar of the City of Lynchburg, Defendants. () Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 293

224 F.3d 293 (4th Cir. 2000)

INEZ SALES; DEBRA M. MILLER, Plaintiffs-Appellees, v. ALPHONSO L. GRANT, in his individual capacity and in his official capacity as a member of the City of Lynchburg Electoral Board; JOHN E. MASON, JR., in his individual capacity, Defendants-Appellants, and DAVID T. PETTY, JR., in his official capacity as member of the City of Lynchburg Electoral Board; CITY OF LYNCHBURG

ELECTORAL BOARD; CAROL SPENCER READ; ARELIA LANGHORNE, in her official capacity as a member of the City of Lynchburg Electoral Board; JOHN COBB, in his official capacity as a member of the City of Lynchburg Electoral Board; ANNE MARIE MIDDLESWORTH, in her official capacity as general registrar of the City of Lynchburg, Defendants.

No. 99-1650 (CA-96-27-L)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: May 4, 2000

Decided: August 16, 2000

Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Jackson L. Kiser, Senior District Judge.

COUNSEL ARGUED: Henry Smith Keuling-Stout, KEULING-STOUT, P.C., Big Stone Gap, Virginia, for Appellants. David Edward Constine, III, MAYS & VALENTINE, L.L.P., Richmond, Virginia, for Appellees. ON BRIEF: Anthony F. Troy, Kimberly W. Daniel, MAYS & VALENTINE, L.L.P., Richmond, Virginia, for Appellees.

Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

Affirmed in part, motion to dismiss granted in part and denied in part, and remanded by published opinion. Judge Luttig wrote the opinion in which Judge Williams concurred. Judge Widener wrote an opinion concurring in part and dissenting in part.

OPINION

LUTTIG, Circuit Judge:

Defendants John Mason and Alphonso Grant, members of the Electoral Board of the City of Lynchburg, Virginia, appeal from the district court's quashing of their motions for summary judgment. In those motions, the defendants asserted qualified and sovereign immunity from suit for allegedly causing plaintiffs Inez Sales and Debra Miller, former Lynchburg Assistant Registrars, not to be reappointed. Sales and Miller have moved to dismiss this appeal, arguing that the appellants have waived their right to assert either immunity. For the reasons that follow, we grant the motion to dismiss in part, deny that motion in part, affirm in part, and remand for further proceedings.

I.

After they were not reappointed as Assistant Registrars for the City of Lynchburg, Sales and Miller filed an action, under 42 U.S.C. § 1983, alleging that Electoral Board members Mason and Grant violated their constitutional rights by causing them not to be reappointed because of their political affiliations.¹ Although the General Registrar, rather than the Electoral Board or its members, possesses the power to hire Assistant Registrars under Virginia law, see Va. Code § 24.2112, Sales and Miller claim that Mason and Grant improperly used their influence over the General Registrar to control her appointment decision.

Mason and Grant responded to the complaint by filing a motion to dismiss, which did not mention qualified or sovereign immunity, and which was denied. They then filed separate answers to the complaint, in which each defendant listed qualified immunity, but not sovereign immunity, among their affirmative defenses. Mason and Grant next moved for summary judgment, in which motion they failed to assert either qualified or sovereign immunity. The district court did not rule on the motion, and a four-day trial ensued, during which Mason and Grant never once asserted either claim of immunity. After both the plaintiffs and the defendants had presented their evidence, Mason and Grant moved for dismissal under Federal Rule of Civil Procedure 50, on grounds unrelated to qualified or sovereign immunity, and the district court granted that motion.

This court reversed and remanded for a new trial in Sales v. Grant, 158 F.3d 768 (4th Cir. 1998) ("Sales I"). During the course of Sales I, Mason and Grant never asserted either qualified or sovereign immunity. On remand, Mason and Grant moved for summary judgment, asserting that they were immune from suit under the doctrines of qualified and sovereign immunity. The district court quashed these motions, explaining that this court had remanded the case for a new trial, and that it was "inappropriate for the defendants to raise the defenses of qualified immunity and Eleventh Amendment immunity at this late date." J.A. 311.

Mason and Grant now appeal from the quashing of their motions for summary judgment. Sales and Miller have moved to dismiss this appeal, arguing that Mason and Grant have waived their right to assert both qualified and sovereign immunity.

II.

Mason and Grant first claim that they are entitled to qualified immunity from the suit brought by Sales and Miller. Sales and Miller argue in their motion to dismiss that Mason and Grant have waived their right to assert this affirmative defense by failing to pursue it prior to remand after Sales I. We agree, and therefore grant the motion to dismiss with respect to Mason and Grant's assertion of qualified immunity.

It is well-settled that qualified immunity is an affirmative defense, and that "the burden of pleading it rests with the defendant." Crawford-El v. Britton, 523 U.S. 574, 586-67 (1998) (quoting Gomez v. Toledo, 446 U.S. 635, 639-641 (1980)). Although Mason and Grant technically pled their qualified immunity defense in their answers to the initial complaint, they never explained the legal or factual basis for their claim of qualified immunity prior to remand after Sales I. Indeed, their mention of qualified immunity in their answers consisted of only a single, cursory sentence on the matter, contained in a listing of several affirmative defenses: "The individual defendants are protected by qualified immunity from suit." Answer of Defendant Grant at 4; Answer of Defendant Mason at 4. And, as recounted above, although the defendants had numerous other opportunities prior to remand to assert their claim of qualified immunity, they failed to do so. Specifically, Mason and Grant omitted any mention of qualified immunity from their pre-trial motions to dismiss and for summary judgment, from the presentation of their case during a four-day trial, and from their post-trial motion for dismissal. As such, prior to remand after Sales I, the notion that qualified immunity might play a role in Mason and Grant's defense was mentioned to the district court only once, and, even on that occasion, the defendants failed to provide any explanation as to how or why qualified immunity might apply. Under these circumstances, we have no trouble concluding that the defendants waived their right to press seriously their claim of qualified immunity for the first time after remand.

Although this court has not addressed the question whether a claim of qualified immunity is waived under the exact factual circumstances present here, our conclusion finds support in this court's decision in Suarez Corp. Industries v. McGraw, 125 F.3d 222 (4th Cir. 1997), in which we held that a claim of qualified immunity can be waived if not squarely presented to the district court, and that qualified immunity cannot be asserted for the first time on appeal. Id. at 226. As in Suarez, the defendants here never pressed their claim of qualified immunity prior to appeal, and we have no doubt that the result in Suarez would have been the same had the defendants there cursorily mentioned qualified immunity in their initial answer. It is thus clear that, under Suarez, Mason and Grant could not permissibly have asserted qualified immunity on appeal in Sales I . To allow Mason and Grant seriously to pursue their qualified immunity claim for the first time on remand after Sales I would be to forgive their waiver of that defense on the mere fortuity that this court chose to remand the case after the first appeal. This we decline to do.

In concluding that Mason and Grant have waived their right to assert qualified immunity, we do not hold categorically that a section 1983 defendant must pursue the defense of qualified immunity on every occasion possible in order to preserve his right to raise that defense later in the proceedings. Rather, we hold only that where, as here, a defendant only cursorily references qualified immunity in his answer to a section 1983 complaint, and thereafter fails to mention, let alone seriously press, his assertion of that affirmative defense, despite filing several dispositive motions in the district court and despite participating in a trial on the merits of the section 1983 claim, that defendant may not actively pursue his claim of qualified immunity for the first time on remand after appeal.

III.

Mason and Grant next argue that they are entitled to Eleventh Amendment immunity from the suit for monetary damages brought by Sales and Miller. Because Sales and Miller seek an award of damages against Mason and Grant in only their individual capacities, we conclude that Mason and Grant are not entitled to protection from suit under the Eleventh Amendment.²

In asserting sovereign immunity from the imposition of monetary liability against them in their individual capacities, Mason and Grant do not challenge the well-established rule that the Eleventh Amendment generally does not bar suits for damages against state officers, so long as those officers are sued in their individual capacities. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Rather, Mason and Grant contend that because, under Virginia law, any monetary judgment against them would be paid out of a state-funded insurance plan, see Va. Code § 2.1-526.8, by a check drawn on the state's general treasury, the suit is barred by the Eleventh Amendment. We disagree.

Mason and Grant's argument amounts to an assertion that a state may convert any or all individual capacity suits, to which the protections of sovereign immunity would otherwise be inapplicable, into official...