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Here is the text of Carter v. City of Philadelphia. This could be extremely helpful to anyone wanting to sue the DA's office, or any Office of Child Support enforcement for mishandling their case. Generally, DA's have enjoyed immunity for their prosecutorial functions, however, this case makes a distinction between prosecutorial functions and administrative functions. This leaves them open to suit if their not having trained their personnel properly results in loss to an individual.
Carter v. City of Philadelphia, 181 F.3d 339, 43 Fed.R.Serv.3d
915 (3d Cir. 04/28/1999)
| [1] | U.S. Court of Appeals, Third Circuit |
| [2] | No. 98-1581 |
| [3] | 181 F.3d 339, 43 Fed.R.Serv.3d 915, 1999.C03.42094 <http://www.versuslaw.com> |
| [4] | April 28, 1999 |
| [5] | RAYMOND CARTER, APPELLANT v. CITY OF PHILADELPHIA; THOMAS RYAN, INDIVIDUALLY AND AS A POLICE OFFICER FOR THE CITY OF PHILADELPHIA; JOHN DOE, AN UNKNOWN POLICE OFFICER(S) AND OR DETECTIVE(S) FOR THE CITY OF PHILADELPHIA; LYNNE ABRAHAM, PHILADELPHIA DISTRICT ATTORNEY IN HER OFFICIAL CAPACITY; RICHARD ROE, POLICE OFFICER REPRESENTING UNKNOWN EMPLOYEES OF THE PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY; WAYNE SETTLE, INDIVIDUALLY AND AS A POLICE OFFICER FOR THE CITY OF PHILADELPHIA; MICHAEL DUFFY, INDIVIDUALLY AND AS A POLICE OFFICER FOR THE CITY OF PHILADELPHIA |
| [6] | Appeal from the United States District Court for the Eastern District of Pennsylvania
(D.C. Civ. No. 97-cv-04499) Before: Honorable Bruce W. Kauffman |
| [7] | Robert W. Small, Esquire (argued) Berlinger & Small 1494 Old York Road Suite 200
Abington, PA 19001 Of Counsel: Susan F. Burt, Esquire Berlinger & Small North American
Building, 11th Floor 121 South Broad Street Philadelphia, PA 19102 Counsel
For Appellant Marcia Berman, Esquire City of Philadelphia Law Department
1515 Arch Street One Parkway Building, 17th Floor Philadelphia, PA 19102
Counsel For Appellee City OF Philadelphia R. David Walk, Jr., Esquire
(argued) Bebe H. Kivitz, Esquire Kevin J. Kotch, Esquire Chonda Jordan Nwamu, Esquire
Hoyle, Morris & Kerr 1650 Market Street 4900 One Liberty Place Philadelphia,
PA 19103 Emily Zimmerman Chief, Civil Litigation Unit District Attorney's Office 1421 Arch
Street Philadelphia, PA 19201 Counsel For Appellee Richard Roe Calvin R.
Koons, Esquire Office of the Attorney General of Pennsylvania Strawberry Square, 15th
Floor Harrisburg, PA 17120 Counsel For Commonwealth OF Pennsylvania Amicus Appellee Stuard
B. Suss Deputy District Attorney Ralph A. Germak President, Pennsylvania District
Attorneys Association Pdaa/pdai Headquarters 2929 North Front Street Harrisburg, PA 17110
Counsel For Pennsylvania District Attorneys Association Amicus Curiae |
| [8] | Before: Mansmann, Scirica and Nygaard, Circuit Judges. |
| [9] | The opinion of the court was delivered by: Mansmann, Circuit Judge. |
| [10] | Argued March 10, 1999 |
| [11] | Filed April 28, 1999 |
| [12] | OPINION OF THE COURT |
| [13] | In this appeal we must first determine whether our requirement that a district court
provide a brief statement of reasons in certifying a judgment for appeal pursuant to Fed.
R. Civ. P. 54(b) precludes our exercise of jurisdiction to hear the appeal where we are
otherwise able to ascertain the propriety of the certification from the record. Exercise
of jurisdiction and consideration on the merits in turn require that we decide, as a
matter of first impression, whether Pennsylvania's Eleventh Amendment immunity extends to Philadelphia
District Attorneys for claims arising from administrative and policymaking - rather than
prosecutorial - functions. We must also determine whether, if sovereign immunity does not
apply, the official capacity claims are alternatively barred by absolute prosecutorial
immunity. Finally, we must consider whether claims against unknown policymakers in the Philadelphia
District Attorney's Office in their personal capacity have been adequately pled. |
| [14] | The Philadelphia District Attorney's Office contends that because the
DA's Office acts in the name of the Commonwealth and carries out a sovereign function, it
is entitled to share in the Commonwealth's sovereign immunity as an arm of the state. The
District Court accepted this contention, holding that application of the factors by which
we determine Eleventh Amendment immunity weighed "strongly in favor of finding that
the District Attorney's Office, when performing its historic functions of investigating
and prosecuting crimes on behalf of the Commonwealth, is an `arm of the state' not subject
to suit in federal court without its consent." *fn1
The District Court further dismissed claims against unknown policymakers in the DA's
Office in their personal capacity for failure to state a cause of action under 42 U.S.C.
§ 1983. |
| [15] | Because we find that the consequences of the District Court's failure to provide a
statement of reasons need not be visited on the parties by delaying resolution of their
case when the ripeness of the appeal is apparent, we will exercise jurisdiction. On the
merits, we find that (1) the performance of an essential sovereign function does not of
itself give rise to state surrogate status under Pennsylvania law; (2) a correct
application of the factors we set forth in Fitchik v. New Jersey Transit Rail Operations,
873 F.2d 655 (3d Cir. en banc), cert. denied, 493 U.S. 850 (1989), compels a finding that
the Commonwealth's sovereign immunity does not encompass the DA's Office; and (3) even if
the DA's Office were entitled to sovereign immunity as a state actor during the
performance of its prosecutorial functions, such immunity would not extend to the local
office administrative, investigative and management functions which underlie this action.
We will, therefore, reverse the District Court's holding that the DA's Office is entitled
to sovereign immunity for purposes of the claims at hand. We reject the alternative
assertion of absolute prosecutorial immunity as lacking merit where the cause of action
lies on administrative and investigative, rather than prosecutorial, conduct. Finally,
because we find that the section 1983 claims against unknown policymakers in the DA's
Office in their personal capacities have been adequately pled and Carter
should be allowed to pursue discovery, we will also reverse the District Court's dismissal
of those claims.*fn2 |
| [16] | I. FACTUAL BACKGROUND |
| [17] | Raymond Carter had been convicted of murder and had served ten (10)
years of a life sentence without possibility of parole before his conviction was
overturned and the case against him nol prossed following disclosures of long-standing
corruption within Philadelphia's 39th Police District.*fn3 Carter then brought an action against the City of Philadelphia,
named police officers,*fn4 unknown employees of
the Philadelphia Police Department, and unknown policymakers within the Philadelphia
DA's Office.*fn5 |
| [18] | Carter's action against individuals in the DA's Office was premised on
their failure as administrators to establish training, supervision and discipline policies
which would have (a) prevented or discouraged Philadelphia police officers
from procuring perjurious "eyewitnesses" and (b) alerted assistant district
attorneys to the falsity of such information and prevented its introduction as evidence.*fn6 The District Court dismissed all claims against
the DA's Office, concluding that those defendants were"state officials" and
therefore immune from suit for acts in their professional capacity by virtue of the
Eleventh Amendment.*fn7 It further concluded that
Carter had failed to state a cause of action against those defendants in
their personal capacities. Finally, it declined to exercise supplemental jurisdiction over
Carter's state law claims. The District Court subsequently entered a revised
order rendering the judgment final pursuant to Rule 54(b),*fn8 but neglected to set forth specific findings in support of its
decision to grant 54(b) certification, despite our express direction in previous cases
that district courts do so. |
| [19] | II. JURISDICTION |
| [20] | Ordinarily, an order which terminates fewer than all claims, or claims against fewer
than all parties, does not constitute a "final" order for purposes of appeal
under 28 U.S.C. § 1291. Fed. R. Civ. P. 54(b), however, provides that such an order may
be final and immediately appealable under § 1291 when the district court makes an express
determination that there is no just cause for delay and expressly directs entry of final
judgment.*fn9 We consistently require that
district courts provide a statement of reasons when entering final judgment under Rule
54(b). See, e.g., Waldorf v. Shuta, 142 F.3d 601, 610-11 (3d Cir. 1998); Anthius v. Colt
Industries Operating Corp., 971 F.2d 999, 1003 (3d Cir. 1992); Metro Transportation Co. v.
North Star Reinsurance Co., 912 F.2d 672, 677 (3d Cir. 1990); Cemar, Inc. v. Nissan Motor
Corp., 897 F.2d 120, 123 (3d Cir. 1990).*fn10
We have remanded cases in which a district court's failure to provide the reasons
supporting its exercise of discretion renders us "unable to conclude that the
granting of the Rule 54(b) certification was proper."*fn11 We have not had occasion to address the result when,
notwithstanding the absence of the required explanation, the propriety of appeal under
54(b) is apparent to the reviewing court on the record. |
| [21] | Other courts of appeals have held that a district court's failure to state the reasons
for its Rule 54(b) certification does not pose a jurisdictional barrier to appeal. The
prevailing rule is perhaps best expressed in Bank of Lincolnwood v. Federal Leasing, Inc.,
622 F.2d 944 (7th Cir. 1980): |
| [22] | "[Articulation of the considerations underlying the district court's
discretionary certification] constitutes the "better practice," and the failure
to provide a written statement of reasons may in an appropriate case lead to a remand for
such a statement. |
| [23] | The statement is, however, primarily an aid to the appellate court to permit it to
review the exercise of the trial court's discretion. The failure of the district court to
make a written statement at the time it makes a 54(b) certification is not a
jurisdictional defect, . . . and need not occasion even a remand if the basis for the
district court's determination is otherwise apparent." Id. at 948-49.*fn12 |
| [24] | Although we have not yet addressed whether an appeal may go forward when,
notwithstanding the absence of the required explanation, the propriety of certification
under Rule 54(b) is apparent on the record, we have previously indicated that we share the
prevailing view. See supra note 11. In our recent decision in Waldorf, however, we
indicated that we had dismissed an earlier appeal "for want of jurisdiction"
because the district court failed to "provide a written opinion outlining its reasons
for certification". 142 F.3d at 611. See also Anthius v. Colt Industries Operating
Corp., 971 F.2d 999 (3d Cir. 1992) (indicating that certification without explanation is
not "competent" and we were therefore "obliged to dismiss").*fn13 |
| [25] | Assuming that sufficient justification for certification may be discerned from the
record in the present case, the Allis-Chalmers, Waldorf and Anthius cases are
distinguishable because due to their complexities we were unable to conclude that
certification was proper absent explication by the district court.*fn14 In none of these cases was there any indication that the majority
believed the propriety of the certification was apparent but that the appeal must
nonetheless be dismissed.*fn15 Consequently,
any suggestion in the language of these cases that the Allis-Chalmers statement-of-reasons
requirement deprives us of appellate jurisdiction where the propriety of the district
court's certification is determinable from the record is, at most, dicta. That question
remains open for our decision. |
| [26] | A rule requiring remand or dismissal even when the propriety of immediate appeal is
apparent would not optimally balance the competing concerns that must inform our
interpretation of Rule 54(b). See Curtiss-Wright, 446 U.S. at 2, 100 S. Ct. at 1462
(explaining that decision to certify must take into account the interests of sound
judicial administration and the equities involved); Allis-Chalmers, 521 F.2d at 363
("The rule attempts to strike a balance between the undesirability of piecemeal
appeals and the need for making review available at a time that best serves the needs of
the parties."); see also Waldorf, 142 F.3d at 608 (observing that question in
certification is whether the issue was "ready for appeal . . . tak[ing] into account
judicial administrative interests as well as the equities involved"). |
| [27] | In view of these concerns, Allis-Chalmers's requirement of a statement of reasons in
every case stands not as a jurisdictional prerequisite but as a prophylactic means of
enabling the appellate court to ensure that immediate appeal will advance the purposes of
the rule.*fn16 It follows that the absence of
an explanation by the district court does not pose a jurisdictional bar when the propriety
of the appeal may be discerned from the record. |
| [28] | Therefore, to the extent Allis-Chalmers or a subsequent case may be read to have
suggested (in dicta) that our mandatory statement-of-reasons requirement in Rule 54(b)
certifications stands as a jurisdictional bar prohibiting appellate review even where the
propriety of the certification is apparent from the record, we now clarify that the better
reading of Allis-Chalmers is that although it is always the best practice for district
courts to explain a decision to certify a judgment for appeal and we require them to do
so, their failure to meet this directive need not result in dismissal or remand where
judicial economy - which is the purpose of the finality requirement of §1291, as
implemented in Rule 54(b)*fn17 - would not be
served.*fn18 Accordingly, we will proceed to
reach the merits on appeal when a sufficient basis for a district court's certification is
otherwise apparent.*fn19 |
| [29] | Here, despite the District Court's inadvertence, the requirements of Rule 54(b) are
clearly met. This case unquestionably involves multiple claims and parties; the decision
below was a "final judgment" in the sense that it was an "ultimate
Disposition" of Carter's claims against the DA's office. See
Curtiss-Wright, 446 U.S. at 7. The only real question is whether there is any just reason
for delaying appeal until Disposition of Carter's claims against the
remaining defendants. The Supreme Court has interpreted this requirement as balancing
considerations of judicial administrative interests (preservation of the federal policy
against piecemeal appeals) and equities (justice to the litigants). See id., 446 U.S. at
8. Factors to be considered therefore include "whether the claims under review [are]
separable from the others remaining to be adjudicated and whether the nature of the claims
already determined[is] such that no appellate court would have to decide the same issues
more than once even if there were subsequent appeals." Id. Here, the issue presented
is plainly separable and there is no real risk of duplicative appeals, as the Eleventh
Amendment defense which was the basis of the District Court's dismissal of claims against
the DA's Office is not asserted to be applicable to any of the remaining defendants.*fn20 On the other hand, denial of an immediate
appeal may pose a substantial risk that the District Court and the parties will be forced
to undergo duplicative trials. Thus, on balance, the interests of judicial economy favor
hearing the appeal. Finally, the importance of the issue presented by this appeal also
militates in favor of our prompt consideration. Remand to the District Court for technical
compliance at this time, when justification is already apparent, would unduly delay the
proceedings. |
| [30] | Therefore, although we adhere to our consistent requirement that the district courts
provide a brief statement of reasons in certifying a judgment for appeal pursuant to Rule
54(b) in this and in every case, we nevertheless hold that we have jurisdiction to hear
this appeal because we are able to ascertain the propriety of the Rule 54(b) certification
from the record. To hold otherwise would undermine the policies which Rule 54(b) seeks to
advance. |
| [31] | III. ELEVENTH AMENDMENT IMMUNITY |
| [32] | The Eleventh Amendment provides: |
| [33] | The judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State. |
| [34] | Despite its language, the Supreme Court has consistently interpreted the Amendment to
immunize an unconsenting state "from suits brought in federal courts by her own
citizens as well as by citizens of another state." Pennhurst State School &
Hospital v. Halderman, 465 U.S. 89, 100 (1984) (quoting Employees v. Missouri Dept. Of
Public Health and Welfare, 411 U.S. 279, 180 (1973)). In addition, a suit may be barred
"even though the state is not named a party to the action, as long as the state is
the real party in interest." Fitchik, 873 F.2d at 658 (citing Edelman v. Jordan, 415
U.S. 651, 663 (1974)) (emphasis added). |
| [35] | Eleventh Amendment immunity is an affirmative defense and the burden is thus on the
DA's Office to establish its immunity from suit. See Christy v. Pennsylvania Turnpike
Commission, 54 F.3d 1140, 1144 (3d Cir. 1985) ("[T]he party asserting Eleventh
Amendment immunity (and standing to benefit from its acceptance) bears the burden of
proving its applicability."). We determine Eleventh Amendment immunity by examining
the evidence on three factors: (1) the source of funding - i.e., whether payment of any
judgment would come from the state's treasury, (2) the status of the agency/individual
under state law, and (3) the degree of autonomy from state regulation.*fn21 See Fitchik, 873 F.2d 655.*fn22 |
| [36] | Although the District Court applied the appropriate three factors, it erred both in
its analysis of the individual factors, and in their balancing: |
| [37] | (1) Funding - The DA's Office acknowl edges that it is funded by the City of Philadelphia
and that the funds for any judgment against it would come from the City. *fn23 We have twice held en banc that the three Fitchik factors are not
weighed evenly and that the "most important" question in determining Eleventh
Amendment immunity is "whether any judgment would be paid from the state
treasury." Bolden v. Southeastern Pennsylvania Transportation Authority, 953 F.2d
807, 816 (3d Cir. 1991); Fitchik, 873 F.2d at 659. As we explained in Christy,"[t]he
special emphasis we place upon the funding factor is supported by the Eleventh Amendment's
central goal: the prevention of federal court judgments that must be paid out of the
state's treasury." 54 F.3d at 1145.*fn24 |
| [38] | We are not alone in emphasizing the importance of the funding factor. The Supreme
Court recognized in Hess that the vulnerability of the state's purse is considered
"the most salient factor" in Eleventh Amendment determinations. See 513 U.S. at
48 (citing courts of appeals cases at length). Indeed, the "vast majority of [courts
of appeals] . . . have concluded that the state treasury factor is the most important
factor to be considered . . . and, in practice, have generally accorded it dispositive
weight." Id. at 49 (ellipses in original) (quoted in Christy, 54 F.3d at 1145). |
| [39] | In Fitchik we concluded that non-applicability of state funds provides an
"extremely strong" indication that an agency is not the alter-ego of the state,
so that the first factor weighed heavily against a finding of immunity. 873 F.2d at 664.
The funding factor weighs even more heavily against immunity in this case than it did in
Fitchik and Bolden, where approximately one-third and one-fourth, respectively, of the
agencies' funds were provided by the states. See Bolden, 953 F.2d at 819. Here, despite
the DA's efforts to elevate a statutory funding mandate to the status of
"indirect" funding, it appears that no portion of the DA's funds are provided by
the state and no portion of any judgment will be paid directly or indirectly by the state.*fn25 As we reasoned in Bolden, "this most
important fact weighs more heavily" against immunity as the proportion of state
funding decreases. Id. |
| [40] | (2) Status under State Law - The status of the DA's Office under state law is
necessarily derived from Pennsylvania's Constitution, statutory and decisional law.*fn26 As we defined this second question in
Fitchik, it is whether state law treats an agency as an independent entity or as a
surrogate for (i.e., as an arm of) the state. See 873 F.2d at 662; Christy, 54 F.3d at
1148 (same). |
| [41] | Pennsylvania's Constitution expressly defines District Attorneys as county rather than
state officers. See Pa. Const., Article IX, Section 4 ("County officers shall consist
of . . . district attorneys . . . and such others as may from time to time be provided by
law."). The Pennsylvania Supreme Court has held equivalent language from a prior
version of the Pennsylvania Constitution to be "crystal clear": the court
explained that "[the Pennsylvania Constitution] states in the clearest imaginable
language that district attorneys are county - not state- officers, and in Philadelphia,
by virtue of [its Charter and a Constitutional amendment making county officers into
officers of the city], are City - not State- officers, and no Procrustean stretch can
alter or change or nullify this clear language." Chalfin v. Specter, 233 A.2d 562,
565 (Pa. 1967).*fn27 The DA's Office attempts
to minimize this apparently controlling authority by arguing that "the only
proposition with which four Justices agreed was that the Philadelphia
District Attorney is subject to the Philadelphia Home Rule Charter for
election purposes." As those four Justices clearly recognized, however, the Philadelphia
Home Rule Charter by its terms applied only to Philadelphia officials,
rather than state officials; and their opinions did not in any way differentiate between
the District Attorney's status for election purposes or any other purposes. |
| [42] | Pennsylvania's statutes also reflect the local status of the DA's Office. Under the
Commonwealth Attorney's Act of 1850, 71 P.S. §§ 732-101, et seq., district attorneys
were redefined as the "chief law enforcement officer[s] for the county in which [they
were] elected." Id. at § 732-206(a).*fn28
Since that time, local district attorneys have been elected*fn29 and funded*fn30 by
their counties. Other provisions of Pennsylvania statutory law similarly treat district
attorneys as county officials.*fn31 The DA's
Office, which has the burden of proving its affirmative defense, does not identify any
Pennsylvania statutes treating local district attorneys as state, rather than county,
officials. Finally, Pennsylvania's statute defining the scope of sovereign immunity does
not encompass district attorneys within its detailed definitions of the agencies and
employees protected from suit. *fn32 |
| [43] | Consistent with its constitutional and statutory law, Pennsylvania's case law defines
district attorneys-Philadelphia District Attorneys in particular - as local,
and expressly not state, officials. See Chalfin, 233 A.2d at 565. See also, e.g., Schroeck
v. Pennsylvania State Police, 362 A.2d 486, 490 (Pa. Cmwlth. 1976) ("District
Attorneys and their assistants are officers of the counties in which they are elected and
not officers of the Commonwealth.") (citing Section 401(a)(11) of the County Code, as
amended 16 P.S. § 401(1)(11)).*fn33 |
| [44] | The DA's Office argues that the various authorities holding district attorneys to be
local officials are inapplicable because they did not involve prosecutorial conduct. In
the "law enforcement and prosecutorial" context, according to the DA's Office,
"courts have uniformly held that the District Attorney is an arm of the state".
None of the Pennsylvania authorities cited, however, actually holds that a district
attorney is a state officer or arm of the state in any context. Rather, these authorities
relied upon by the DA's Office merely hold that district attorneys act on behalf of and in
the name of the Commonwealth in investigating and prosecuting crimes within their
district.*fn34 See, e.g. Commonwealth v. Bauer,
261 A.2d 573 (Pa. 1970) (finding only that district attorney has power and duty to
represent the Commonwealth's interests in law enforcement). |
| [45] | The District Court similarly equated simply acting in the name of the state with being
an arm of the state entitled to share in its sovereign immunity. The District Court deemed
the Pennsylvania authorities designating district attorneys as local officials irrelevant,
because it erroneously believed performance of a sovereign function, such as investigation
and prosecution of crime, was alone sufficient to accord local prosecutors sovereign
immunity.*fn35 This approach, however, clearly
proves too much; many local officials act in the name of the state and carry out delegated
sovereign functions. Under such an expansive theory, every police officer, for example,
would be entitled to Eleventh Amendment immunity. See Lake Country Estates, Inc. v. Tahoe
Regional Planning Agency, 440 U.S. 391, 401 (1979) ("[T]he Court has consistently
refused to construe the [Eleventh] Amendment to afford protection to political
subdivisions such as counties and municipalities even though such entities exercise a
`slice of state power.' ").*fn36 |
| [46] | Pennsylvania case law makes it clear that performance of an essential sovereign
function on behalf of or in the name of the state does not give rise to state surrogate
status under state law. See Specter v. Commonwealth, 341 A.2d 481, 485-88 (Pa. 1975)
(declaring Turnpike Commission unentitled to sovereign immunity although it was
constituted as an "instrument of the Commonwealth" and performed "an
essential government function of the Commonwealth"); Pennsylvania Gamefowl Breeders
Ass'n. v. Commonwealth, 551 A.2d 361, 363 (Pa. Cmwlth. 1988) (finding district attorneys
county officers, not state officers, although they are "charged with conducting
criminal prosecutions in the name of the Commonwealth" and thus "perform
sovereign functions of state government"); Specter v. Moak, 307 A.2d at 886
(rejecting Philadelphia Assistant District Attorneys' contention that
"since they perform functions primarily on behalf of the Commonwealth they should be
classified as state employees", reasoning that "[m]any officials" - such as
the Mayor, Sheriff, Police Commissioner and City Solicitor - "perform state
functions") (internal quotations omitted).*fn37
Cf. Cross, 720 F. Supp. at 488 n.3 ("Although it is true that certain sovereign
powers of the Commonwealth are delegated to a district attorney, this is true generally of
county and local officials . . . ."). |
| [47] | Moreover, even if it were true that district attorneys act as an arm of the state,
entitled to its sovereign immunity, whenever they perform prosecutorial functions in the
name of the Commonwealth, it would not follow that the Eleventh Amendment immunizes the
conduct at issue here.*fn38 The District Court
mischaracterized the basis of Carter's claim as a prosecutorial function and
declined to distinguish the Philadelphia DA's training/supervision/administrative
activities from its core state function of prosecution. In dismissing the possibility of a
meaningful analytical distinction between a district attorney's prosecutorial and
policy-making functions,*fn39 the District
Court adopted a position which would inappropriately pull all functions of the office
within the scope of its (purportedly sovereign) prosecutorial function. Other federal
courts have taken a different view. They have acknowledged the obvious basis for
distinction: making and applying county-wide policy differs from carrying out state-wide
policy and they have, therefore, repeatedly differentiated between administrative and
prosecutorial functions, generally finding the former to be local and the latter to be
state. |
| [48] | The most instructive (and analogous) case is Walker v. City of New York, 974 F.2d 293
(2d Cir. 1992) from our sister court of appeals. Walker spent 19 years in prison after
police officers and prosecutors covered up exculpatory evidence and committed perjury to
secure his conviction. |
| [49] | Id. at 294. In his section 1983 action, Walker alleged that the district attorney's
office failed adequately to train and supervise police with respect to the obligation to
avoid use of perjury and suppression of exculpatory evidence. Id. at 295, 298. In holding
that Walker stated a proper claim against the district attorney's office, the Court of
Appeals determined that "the district attorney's management of the office -- in
particular the decision not to supervise or train [assistant district attorneys] on Brady*fn40 and perjury issues" -- constituted
policymaking for the county, rather than the state. Id. at 301. The Court observed that an
earlier case holding that the district attorney is a state official*fn41 was limited to "specific decisions . . . to prosecute."
Id. (citing Gentile v. County of Suffolk, 926 F.2d 142, 152 n.5 (2d Cir. 1991)). See also
Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993) ("With respect . . . to
claims centering not on decisions whether or not, and on what charges, to prosecute but
rather on the administration of the district attorney's office, the district attorney has
been treated not as a state official but rather as an official of the municipality to
which he is assigned.") (citing Walker and Gentile).*fn42 As recently as last year, the Court of Appeals for the Second
Circuit applied the Walker and Gentile holdings in finding a county liable under section
1983 for its district attorney's implementation of a policy regarding investigative
procedures. See Myers v. County of Orange, 157 F.3d 66, 77 (2d Cir. 1998). |
| [50] | Other courts of appeals have similarly recognized the hybrid nature of the district
attorney's office-distinguishing between a DA's prosecutorial function and his role as
elected county policymaker. See, e.g., Esteves v. Brock, 106 F.3d 674, 678 (5th Cir. 1997)
("A county official pursues his duties as a state agent when he is enforcing state
law or policy' " by conducting trials; but "[f]or those [remaining] duties that
are administrative or managerial in nature, . . . a district attorney . . . functions as a
final policymaker for the county.") (quoting Echols v. Parker, 909 F.2d 795, 801 (5th
Cir. 1990);*fn43Pusey v. City of Youngstown,
142 F.3d 435 (6th Cir. 1998) (prosecutor is city official but acts as state agent when
enforcing state law or policy); Owens v. Fulton County, 877 F.2d 947, 952 (11th Cir. 1989)
("[A]n official may simultaneously exercise county authority over some matters and
state authority over others. . . . [A]n administrative function . .. might be
characterized as an exercise of county power. However, . . . the district attorney's
authority over prosecutorial decisions . . . is vested . . . pursuant to state
authority."). Cf. Franklin v. Zaruba, 150 F.3d 682 (7th Cir. 1998) (sheriff is acting
as county official, and not acting as agent of state, at time of alleged failure to
properly train subordinates or establish policies to protect arrestees); Scott v. O'Grady,
975 F.2d 366, 370 (7th Cir. 1992) (sheriff is local official when serving as "chief
law enforcement officer" of county, but arm of state when enforcing state court
order).*fn44 |
| [51] | The recurring theme that emerges from these cases is that county or municipal law
enforcement officials may be State officials when they prosecute crimes or otherwise carry
out policies established by the State, but serve as local policy makers when they manage
or administer their own offices. Indeed, we ourselves concluded in Coleman v. Kaye, 87
F.3d 1491, 1499 (3d Cir. 1996), that county prosecutors can have "a dual or hybrid
status." When "enforcing their sworn duties to enforce the law . . . they act as
agents of the State [but] when county prosecutors are called upon to perform
administrative tasks unrelated to their strictly prosecutorial functions . . . the county
prosecutor in effect acts on behalf of the county that is the situs of his or her
office." Id. Absent direct intervention by the state, county prosecutors act as
county officials when they are called upon to make administrative decisions on a local
level. See Coleman, 87 F.3d at 1504 (applying New Jersey law).*fn45 |
| [52] | Reading the Complaint in the light most favorable to Carter, it appears
that the function complained of here is not prosecutorial, but administrative: it involves
local policies relating to training, supervision and discipline, rather than decisions
about whether and how to prosecute violations of state law. Therefore, even if a member of
the Philadelphia DA's Office were deemed a state actor with respect to
prosecutorial functions, she would nevertheless be a local policymaker with respect to the
conduct at issue here. |
| [53] | (3) Autonomy - When the District Court considered autonomy from the Commonwealth, it
concluded that factor weighed strongly in favor of immunity.*fn46 This finding is contrary to Pennsylvania's consciously and
deliberately designed autonomous role for its district attorneys; it is also contrary to
our prior decisions. In Pennsylvania, the Attorney General (the "AG") is without
authority to replace a district attorney (who must be impeached, like other locally
elected officials) and in Pennsylvania, unlike many other jurisdictions, the AG has no
inherent authority to supersede a district attorney's decisions generally. *fn47 The Pennsylvania AG is permitted only a
narrowly circumscribed power to supersede a district attorney in a particular criminal
prosecution subject to court authorization under an abuse of discretion standard (or at
the district attorney's own invitation).*fn48
The mere possibility of supersession by the AG through cumbersome court proceedings is
insufficient to support the District Court's Conclusion that lack of autonomy weighed in
favor of holding the DA's Office an arm of the state. |
| [54] | To the contrary, in Coleman we concluded that "[d]espite the Attorney General's
statutory power of supersession, ` . . . the [county] prosecutors are largely independent
of control by the attorney general . . . .' " 87 F.3d at 1504 (quoting Morss v.
Forbes, 132 A.2d 1, 16 (N.J. 1957)).*fn49 As we
concluded in Coleman, "[i]t would be an unwarranted extension of the implications of
the Attorney General's supersedure authority to conclude that the mere possibility of its
exercise can somehow serve to bring [issues of "day-to-day management of the county
prosecutor's office"] within the purview of the Attorney General's control." 87
F.3d at 1502. |
| [55] | In addition to the AG's power to supersede a particular failure to prosecute (with
court approval), the District Court cited one other source of State control over district
attorneys: the courts' power to supervise court proceedings.*fn50 This power, however, is equally applicable to all persons who
appear in court; and it is plainly limited to the district attorney's prosecution
function. The other potential means of "control" cited by the DA's Office -
e.g., impeachment, legislative acts, funding mandate, reporting requirement -similarly do
not represent any meaningful practical restraint on the district attorney's autonomy from
the Commonwealth. Cf. Hess, 513 U.S. at 61-62 (O'Connor, J., Dissenting) ("The
critical inquiry . . . should be whether and to what extent the elected state government
exercises oversight over the entity. . . . . The inquiry should turn on real, immediate
control and oversight rather than on the potentiality of a state taking action to seize
the reins.");*fn51 Fitchik, 873 F.2d 663
(evaluating autonomy in terms of independence from "supervision or control"). |
| [56] | The limited state powers*fn52 relied upon
by the District Court and the DA's Office clearly do not extend to control over the
district attorney's office administration in general, or over training, supervision and
discipline of assistant district attorneys and police officers in particular. If we should
focus on the particular function at issue in determining status under state law, we should
do so in determining autonomy as well. Moreover, even a substantial degree of control by
the state would cause the autonomy factor to weigh only slightly in favor of according
immunity. See Fitchik, 873 F.2d at 664 ("Since the degree of control . . . is fairly
substantial, we think that this factor counsels slightly in favor of according immunity .
. . .") (emphasis added). See also Christy, 54 F.3d at 1149 ("[T]he significant
control the Commonwealth exercises through the power to appoint all the members of the
Commission weighs slightly in favor of Commission immunity. . . .") (emphasis added). |
| [57] | Balancing - In balancing the Fitchik factors, the District Court concluded that
although the first factor weighed against immunity, the remaining factors weighed
"strongly in favor of finding that the District Attorney's Office, when performing
its historic functions of investigating and prosecuting crimes on behalf of the
Commonwealth, is an `arm of the state' not subject to suit in federal court without its
consent." See Carter, 4 F. Supp. 2d at 393. Because, as explained
above, the District Court misapplied the second and third factors, it erred in the
balancing as well.*fn53 |
| [58] | In Fitchik, we found that the non-applicability of state funds outweighed the
combination of an ambiguous status under state law that balanced slightly in favor of
immunity together with "fairly substantial" state control over the agency. See
also Christy 54 F.3d at 1150 (finding that balance is "clearly struck" against
immunity where funding factor weighed against, and only one factor - autonomy -weighed
slightly in favor).*fn54 Here the funding
factor weighs more heavily against immunity than in Fitchik and Bolden; the claim of state
entity status under state law appears substantially weaker than in those cases in view of
the express designation as a county official under constitutional, statutory and case law;
and, at least for practical purposes, the autonomy of the DA's Office is greater than that
of the transit authorities in those cases. Accordingly, as in Bolden, "[s]ince we are
not prepared to overrule Fitchik, it follows that [the DA's Office] is not protected by
the Eleventh Amendment." 953 F.2d at 821.*fn55 |
| [59] | IV. PROSECUTORIAL IMMUNITY |
| [60] | We must begin with "[t]he presumption . . . that qualified rather than absolute
immunity is sufficient to protect government officials in the exercise of their
duties" and the observation that the Supreme Court has been "quite sparing"
in its recognition of absolute immunity. Burns v. Reed, 500 U.S. 478, 486-87 (1991).*fn56 We also note that the Supreme Court directs
a "functional" approach to immunity issues, id., and requires the official
seeking absolute immunity to bear the burden of showing it is justified for the function
in question, see Buckley v. Fitzsimmons, 509 U.S. 259 (1993). |
| [61] | With this guidance, we conclude that the alternative argument of the DA's Office that Carter's
section 1983 claims should have been dismissed due to absolute prosecutorial immunity
lacks merit, because Carter does not complain about conduct on the part of
the DA's Office in the course of his prosecution. See Imbler v. Pachtman, 424 U.S. 409,
430-31 (1976) (prosecutors are immune from suit under section 1983 for "initiating
and pursuing a criminal prosecution"). None of the cases cited by the DA's Office
extends this prosecutorial immunity to administrative, rather than prosecutorial, conduct. |
| [62] | Rather, as we have previously explained, "prosecutors are subject to varying
levels of official immunity" and absolute prosecutorial immunity attaches only to
"actions performed in a `quasi-judicial' role", such as participation in court
proceedings and other conduct "intimately associated with the judicial phases"
of litigation. Guiffre v. Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994) (quoting Imbler, 424
U.S. at 430).*fn57 "By contrast, a
prosecutor acting in an investigative or administrative capacity is protected only by
qualified immunity." Id. (citing Imbler, 424 U.S. at 430-31; Burns, 500 U.S. at
483-84 n.2, 111 S. Ct. at 1938 n.2). *fn58 |
| [63] | Qualified immunity protects official action "if the officer's behavior was
`objectively reasonable' in light of the constitutional rights affected." Id. If Carter
succeeds in establishing that the DA's Office defendants acted with deliberate
indifference to constitutional rights- as Carter must in order to recover
under section 1983, then a fortiori their conduct was not objectively reasonable. |
| [64] | V. FAILURE TO STATE A CLAIM UNDER SECTION 1983 |
| [65] | As the District Court observed, the standard for personal liability under section 1983
is the same as that for municipal liability. See Sample v. Diecks, 885 F.2d 1099, 1118 (3d
Cir. 1989). That standard was enunciated in Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 694 (1978): "when execution of a government's policy or
custom, whether made by its lawmakers or by those whose edicts and acts may fairly be said
to represent official policy, inflicts the injury . . . the government as an entity is
responsible under § 1983." Where, as here, the policy in question concerns a failure
to train or supervise municipal employees, liability under section 1983 requires a showing
that the failure amounts to "deliberate indifference" to the rights of persons
with whom those employees will come into contact. City of Canton v. Harris, 489 U.S. 378,
388 (1989). |
| [66] | The Court in Canton observed that failure to train may amount to deliberate
indifference where the need for more or different training is obvious, and inadequacy very
likely to result in violation of constitutional rights. See id. at 389. For example, if
the police often violate rights, a need for further training might be obvious. See id. at
390 n.10. See also Sample, 885 F.2d at 1118 (deliberate indifference may be established
where harm occurred on numerous previous occasions and officials failed to respond
appropriately, or where risk of harm is great and obvious). |
| [67] | Once again, the factually similar Walker case is instructive. The Walker court
analyzed Canton's Discussion of the deliberate indifference requirement and formulated a
three-part test: in order for a municipality's failure to train or supervise to amount to
deliberate indifference, it must be shown that (1) municipal policymakers know that
employees will confront a particular situation; *fn59
(2) the situation involves a difficult choice or a history of employees mishandling; and
(3) the wrong choice by an employee will frequently cause deprivation of constitutional
rights. See Walker, 974 F.2d at 297-98. |
| [68] | In the present case, as in Walker, elements (1) and (3) are plainly met: "city
policymakers know to a moral certainty that police officers will be presented with
opportunities to commit perjury or proceed against the innocent. Moreover, a failure by
police officers to resist these opportunities will almost certainly result in deprivations
of constitutional rights." Id. at 299. As for element (2), although it may usually be
appropriate to assume employees will obey their oaths and the perjury laws, "where
there is a history of conduct rendering this assumption untenable, city policymakers may
display deliberate indifference by doing so." Id. at 300. |
| [69] | The Court of Appeals concluded that "Walker should be allowed to pursue discovery
in order to determine whether there was a practice of condoning perjury (evidenced perhaps
by a failure to discipline for perjury) *fn60
or a pattern of police misconduct sufficient to require the police department to train and
supervise police officers to assure they tell the truth." Id. The same result should
apply to Carter.*fn61 |
| [70] | The District Court's insistence that Carter must identify a particular
policy and attribute it to a policymaker, at the pleading stage without benefit of
discovery, is unduly harsh.*fn62 Carter
is not engaged in a mere fishing expedition. Carter alleges that he spent
ten years in prison as a result of a pervasive pattern of egregious, unconstitutional
conduct by Philadelphia's police. He surmises, reasonably, that such
misconduct reflects inadequate training and supervision. He cannot be expected to know,
without discovery, exactly what training policies were in place or how they were adopted.*fn63 |
| [71] | VI. |
| [72] | We hold that (1) the Philadelphia District Attorney's Office is a local
agency not within the Commonwealth's Eleventh Amendment immunity for purposes of claims
arising from administrative and policymaking - rather than prosecutorial - functions; (2)
the official capacity claims are not alternatively barred by absolute prosecutorial
immunity; and (3) the personal capacity claims have been adequately pled. Accordingly, we
will reverse the District Court's dismissal of Carter's claims against the
DA's Office and remand for further proceedings. |
| [73] | A True Copy: Teste: |
| [74] | Clerk of the United States Court of Appeals for the Third Circuit |
| Opinion Footnotes | |
| [75] | *fn1. Carter v. City of Philadelphia,
4 F. Supp. 2d 386, 393 (E.D. Pa. 1998). |
| [76] | *fn2. The District Court declined to exercise
supplemental jurisdiction over Carter's state law claims when factually
related federal claims remained pending against other defendants. Because we will reverse
the District Court's dismissal of Carter's federal claims against the DA's
Office, we need not address whether this was consistent with the sound exercise of
judicial discretion. |
| [77] | *fn3. During disclosures of police misconduct
uncovered during an investigation of that district, it came to light that the single
eyewitness's testimony placing Carter at the murder scene - the testimony on
which his conviction rested - was purchased by a 39th District officer, Thomas Ryan, from
a prostitute-informant (Ms. Jenkins) with whom Ryan was intimate. In subsequent
proceedings, Ryan was convicted of obstruction of Justice and Jenkins admitted her
perjured testimony. There was no forensic evidence linking Carter to the
crime scene and Carter maintains his innocence. |
| [78] | *fn4. Carter names Thomas Ryan,
Wayne Settle, and Michael Duffy individually and as police officers for the City of Philadelphia. |
| [79] | *fn5. Carter brings a section
1983 action, together with various state causes of action, against the defendants. |
| [80] | *fn6. Carter also alleges that
the DA's Office failed to disclose exculpatory evidence found in its post-conviction
investigation. |
| [81] | *fn7. The District Court framed the question
before it as "[w]hether the District Attorney's Office, when performing its
investigatory and prosecutorial functions, is an `arm of the state' under the Eleventh
Amendment." Carter, 4 F. Supp. 2d at 390. |
| [82] | *fn8. The order states that "[p]ursuant
to Rule 54(b) . . . , the Court finds that there is no just reason for delay and,
accordingly, directs that final judgment be entered in favor of [the DA's Office] and
against Carter on all claims . . . ." |
| [83] | *fn9. When more than one claim for relief is
presented in an action, . . ., or when multiple parties are involved, the court may direct
the entry of a final judgment as to one or more but fewer than all of the claims or
parties only upon an express determination that there is no just reason for delay and upon
an express direction for entry of judgment . . . . Fed. R. Civ. P. 54(b). |
| [84] | *fn10. Our requirement that a district
court accompany a Rule 54(b) certification with a statement of the reasons comes from our
"endorse[ment]" and "incorporati[on]", in Allis-Chalmers Corp. v. Philadelphia
Elec. Co., 521 F.2d 360, 364 (3d Cir. 1975), of the Second Circuit's suggest[ion] to the
district courts that . . . it would be helpful to [the appellate court] in reviewing the
exercise of discretion in granting a Rule 54(b) certification if the court . . . would
make a brief reasoned statement in support of its determination that `there is no just
reason for delay' and its express direction for`the entry of a final judgment . . .' where
the justification for the certification is not apparent. Gumer v. Shearson, Hammill &
Co., 516 F.2d 283 (2d Cir. 1974) (quoted in Allis-Chalmers, 521 F.2d at 364) (emphasis
added). |
| [85] | *fn11. Allis-Chalmers, 521 F.2d at 357; see
also Cemar, 897 F.2d at 122 (noting that "[b]ecause the reason for the Rule 54(b)
certification [was] not apparent from the record", we required "a statement of
reasons by the district court in order to determine the juridical concerns [were] met by
its determination that no just reason remains for delay") (emphasis added). |
| [86] | *fn12. See also, e.g., Feinstein v.
Resolution Trust Corp., 942 F.2d 32 (1st Cir. 1991) (holding that appellate jurisdiction
attached notwithstanding district court's failure to state reasons for certification where
justification was apparent and sufficient); Pension Ben. Guar. Corp. v. LTV Corp., 875
F.2d 1008 (2d Cir. 1989) (holding court of appeals had jurisdiction although district
court did not provide reasoned explanation for certification where it was clear
explanation could easily be provided and interest of sound judicial administration favored
expeditious resolution of conflict); Kelly v. Lee's Old Fashioned Hamburgers, Inc., 908
F.2d 1218 (5th Cir. 1990) (holding appropriate certification of order dismissing all
claims against one defendant where order and record taken together signaled district
court's Conclusion that requirements of the rule had been met); Fuller v. M.G. Jewelry,
950 F.2d 1437 (9th Cir. 1991) (holding that 54(b) certification did not have
"jurisdictional defect" merely because district court did not include specific
findings regarding appropriateness of certification); Ebrahimi v. City of Huntsville Bd.
of Educ., 114 F.3d 162 (11th Cir. 1997) (explaining that where reasons for entry of
separate judgment for fewer than all parties or claims are obvious, and remand would
result only in unnecessary delay in appeal process, the court of appeals will not require
explanation; but when the sound basis for certification is not obvious, the court must
dismiss the appeal for lack of final judgment). Cf. Corrosioneering, Inc. v. Thyssen
Environmental Sys., 807 F.2d 1279 (6th Cir. 1986) (stating that in absence of reasons for
certification no deference will be given to decision to certify and reviewing propriety of
certification de novo). |
| [87] | *fn13. This interpretation may follow from
Allis-Chalmers's holding that the 54(b) certification "must be vacated because of the
failure of the court to articulate reasons for the certification," 521 F.2d at 361,
and from its statements that "[a] proper exercise of discretion under Rule 54(b)
requires the district court to do more than just recite the 54(b) formula," and that
"we incorporate [the giving of a brief reasoned statement] as a requirement for all
Rule 54(b) certifications," id. at 364. But see Bank of Lincolnwood, 622 F.2d at 949
(citing Allis-Chalmers, 521 F.2d at 367 n. 16 "(remanding case for a statement of
reasons)" for the proposition that failure to provide a written explanation with
certification is not a jurisdictional defect). |
| [88] | *fn14. See Allis-Chalmers, 521 F.2d at 365
(concluding that absent petitioner's demonstration of unusual or harsh circumstances, the
presence of a counterclaim "weighed heavily" against the district court's grant
of certification); Waldorf, 142 F.3d at 611-612 (discussing complexity of case and
potential interrelationship of claims and cross-claims); Anthius, 971 F.2d at 1003 n.3
(stating that court's "familiarity with the issues and arguments" makes it
"question whether there could ever be a proper exercise of judicial discretion which
would result in an `entry of final judgment' certification under Fed. R. Civ. P.
54(b)"). It should be noted that the holding of Allis-Chalmers as to the significance
of counterclaims was rejected by the Supreme Court in Curtiss-Wright Corp. v. General
Electric Co., 446 U.S. 1 (1980). |
| [89] | *fn15. Cf. Curtiss-Wright Corp. v. General
Elec. Co., 599 F.2d 1259, 1261 (3d Cir. 1979) (Gibbons, J., Dissenting) (noting that his
Dissent in Allis-Chalmers was directed to the majority's "unprecedented and
unwarranted imposition of a `statement of reasons' requirement in a case where the
justification for certification was[in J. Gibbons's opinion] glaringly apparent on the
face of the record"). |
| [90] | *fn16. Indeed, as we acknowledged in
Allis-Chalmers in "endors[ing]" Gumer, the purpose of the appellate courts'
first suggestion - in 1974 - that district courts provide an explanation "where the
justification for the certification is not apparent" was to facilitate appellate
review in its threshold jurisdictional inquiry. See Gumer, 516 F.2d at 284, 286;
Allis-Chalmers, 521 F.2d at 364 ("It is essential .. . that a reviewing court have
some basis for distinguishing between well-reasoned Conclusions . . . and . . . approval .
. . unsupported by evaluation of the facts or analysis of the law . . . .") (quoting
Protective Committee v. Anderson, 390 U.S. 414, 434 (1968)). |
| [91] | *fn17. See, e.g., Curtiss-Wright, 446 U.S.
at 10 (identifying the "interest of sound judicial administration" as the
standard against which a district court's 54(b) certification is to be Judged). |
| [92] | *fn18. Cf. Kelly, 908 F.2d at 1220
("[r]ejecting a `form-over-substance' approach that `would not significantly advance
the purposes of Rule 54(b) . . .' " in holding sufficient certification based on
record) (quoting Crowley Maritime Corp. v. Panama Canal Comm'n, 849 F.2d 951, 953 (5th
Cir. 1988)); St. Paul Fire and Marine Ins. Co. v. Pepsico, Inc., 884 F.2d 688, 694 (2d
Cir. 1989) (noting that purpose of Rule 54(b) is served by exercise of jurisdiction where
justification for certification is clear on record). As the Court of Appeals observed in
Kelly, Fed. R. Civ. P. 1 directs that the rules be "construed to secure the just,
speedy and inexpensive determination of every action." 908 F.2d at 1221. |
| [93] | *fn19. This interpretation of
Allis-Chalmers is consistent with the approach to Rule 54(b) certifications directed by
the Supreme Court in Curtiss-Wright. As discussed supra note 14, Curtiss-Wright rejected
our previous Conclusion that the existence of a counterclaim will ordinarily defeat
certification. That decision reflects the Supreme Court's general disapproval of
inappropriately restrictive views of Rule 54(b) certification, and it counsels us to
remain mindful of the competing concerns. |
| [94] | *fn20. Although there may be some factual
overlap between the issues in this appeal and those in a potential future appeal
concerning qualified immunity of the remaining defendants, the same issues are not likely
to be presented. It is generally recognized that complete legal or factual distinction is
not necessary to 54(b) certification. See 10 C. Wright & A. Miller, Federal Practice
and Procedure,§ 2657 at 50-54. |
| [95] | *fn21. The DA's Office asserts that a
fourth factor was later added by the Supreme Court in Hess v. Port Authority Trans-Hudson
Corp., 513 U.S. 30 (1994) - viz., whether the functions at issue are "typically state
or unquestionably local". The Hess Court did not adopt this distinction as a
criterion for determining state status: it did not adopt or formulate any test. Indeed,
the Court concluded that this purported "fourth factor" did not advance its
inquiry. See Hess, 513 U.S. at 45. Moreover, to the extent that the distinction may be
relevant, it appears to be subsumed within Fitchik's "status under state law"
test. |
| [96] | *fn22. Fitchik reformatted our test for
Eleventh Amendment immunity from the nine questions identified in Urbano v. Board of
Managers, 415 F.2d 247 (3d Cir. 1969), cert. denied, 397 U.S. 948 (1970). Funding
encompasses the Urbano inquiry into whether satisfaction of a judgment would come from the
state treasury, whether the agency had funds to satisfy the judgment, and whether the
sovereign was immunized from responsibility for the agency's debt. Status encompasses the
Urbano inquiry into how state law treated the agency generally, whether it was separately
incorporated, could sue or be sued in its own right, or was immune from state taxation.
Autonomy continues to address the Urbano inquiry into the degree of autonomy from state
control. Fitchik specifically rejected the ninth Urbano factor, inquiry into whether the
individual performed a governmental or proprietary function, as no longer relevant. See
873 F.2d at 659 n.2. |
| [97] | *fn23. See Carter, 4 F. Supp.
2d at 390. Cf. 16 Pa. Stat. Ann. § 1403 (district attorney's expenses to be paid by
county from its general funds). |
| [98] | *fn24. See also Hess, 513 U.S. at 50
(describing "prevention of federal-court judgments that must be paid out of a State's
treasury" as "the impetus for the Eleventh Amendment" and explaining that
if the state is not obligated to pay any indebtedness, "then the Eleventh Amendment's
core concern is not implicated"). |
| [99] | *fn25. Cf. Christy, 54 F.3d at 1145-1146
(rejecting arguments regarding state regulation of agency funding as irrelevant to the
funding inquiry and reiterating that "under our case law" question is simply one
of state's "affirmative obligation to pay"). |
| [100] | *fn26. See, e.g., Regents v. Doe, 519 U.S.
425 (1997) (explaining that federal question of whether state instrumentality has
"independent status . . . or is instead . . . `one of the United States' within the
meaning of the Eleventh Amendment . . . . . can only be answered after considering the
provisions of state law that define the agency's character"). |
| [101] | *fn27. The foregoing language is from the
opinion of Chief Justice Bell, which was not joined by any other Justice. As the Chief
Justice noted, however, "the majority of this 7 Judge Court agree . . . on this point
and are convinced that under the Constitution of Pennsylvania . . . the District Attorney
of Philadelphia is a City officer . . . ." Id. See also id. at 578
(Musmanno, J., Dissenting) ("[I]n the present decision . . . FOUR Justices declare
mathematically, specifically, and without equivocation that [the district attorney] is a
CITY OFFICER.") (capitals in original); id. (Cohen, J., Dissenting) ("The only
position that enlists a majority of this Court determines that the District Attorney is a
City Officer."); id. (Eagan, J., Dissenting) ("Four of the seven members of this
Court, including myself, are convinced that [the district attorney] is subject to the
provisions of the Philadelphia Home Rule Charter. . ."). |
| [102] | *fn28. Prior to 1850, district attorneys
had been appointed by the Attorney General, a state executive, and were subject to his
direct supervision and control. |
| [103] | *fn29. See Chalfin, 233 A.2d at 565
("[I]t is important to further note that . . . the District Attorney of Philadelphia
. . . is Elected in municipal [and not] State-wide elections . . . ."). |
| [104] | *fn30. See note 23, supra. |
| [105] | *fn31. For example, the Attorney General
participates as a "state employee" in the state's retirement program, while
district attorneys participate in their County Retirement System pursuant to County
Pension Law. See 16 P.S. §§11651-11682. The Pennsylvania Supreme Court has found it
significant that "the powers and functions of the [district attorneys'] office are
found in Title 16, Counties, of Purdon's Statutes." Duggan v. 807 Liberty Ave. Inc.,
288 A.2d 750, 752 n.6. (Pa. 1972) (declining to hold district attorney as "officer of
the Commonwealth" under jurisdiction of Commonwealth Court). See also Cross v.
Meisel, 720 F. Supp. 486, 488 n.3 (E.D. Pa. 1989) (explaining that case regarding
"state officials" was irrelevant to suit against district attorney because,
besides constitutional definition as county officers, district attorneys' duties are
defined in the County Code and their expenses are paid by the county from its general
funds). |
| [106] | *fn32. See 42 Pa.C.S.A. §§ 102,
8501-8528. |
| [107] | *fn33. The Commonwealth has similarly
declined to hold assistant district attorneys to be state officials. See Specter v. Moak,
307 A.2d 884 (Pa. 1973) (refusing to classify Philadelphia assistant
district attorneys as state officers simply because they enforce Commonwealth penal laws
of state-wide application "in the name of the Commonwealth"). |
| [108] | *fn34. In Chalfin, Chief Justice Bell
pointedly noted that "the essential and principal and most important powers,
functions, duties, limitations and boundaries of the District Attorney of Philadelphia
involve only crimes committed - not throughout the Commonwealth but- only in the City of Philadelphia."
233 A.2d at 565. |
| [109] | *fn35. See Carter, 4 F. Supp.
2d at 390, 392 n.8 (dismissing constitutional provisions as "not in any way
affect[ing] the District Attorney's function of investigating and prosecuting crimes in
the name of the Commonwealth" and emphasizing that "[i]t would be hard to
imagine functions more essential to the sovereignty of state government"). |
| [110] | *fn36. The Lake Country Court observed
that"some agencies exercising state power have been permitted to invoke the Amendment
in order to protect the state treasury from liability" but rejected a more
"expansive reading" that would effectively immunize every agency, unless it were
expressly waived. Id. at 400-401 (emphasis added). |
| [111] | *fn37. The Moak Court further observed that
it could not be argued that one is a state officer "merely because he has the duty to
`cause . . . the laws of the State to be executed and enforced.' " Id. |
| [112] | *fn38. Carter argues that the
nature of the function should not be considered because the Eleventh Amendment focuses on
the status of the entity as a whole, and the functional analysis is erroneously borrowed
from section 1983 decisions. As the DA's Office observes, the propriety of the functional
analysis has been reserved by the Supreme Court. See Regents v. Doe, 117 S. Ct. 900, 902
n.2 ("Nor is it necessary to decide whether there may be some state instrumentalities
that qualify as `arms of the State' for some purposes but not others.") In the
present case it is similarly unnecessary to reach this issue, as application of our
Fitchik factors compels us to find that in Pennsylvania the prosecutor's office is not an
arm of the state either generally or with respect to the managerial functions in question. |
| [113] | *fn39. See Carter, 4 F. Supp.
2d at 393. |
| [114] | *fn40. Brady v. Maryland, 373 U.S. 83
(1963) recognized that prosecutorial suppression of exculpatory evidence violates due
process. |
| [115] | *fn41. See Baez v. Hennessy, 853 F.2d 73,
77 (2d Cir. 1988) ("[W]hen prosecuting a criminal matter, a district attorney in New
York State . . . represents the State, not the county."). |
| [116] | *fn42. The Gan court's parenthetical
descriptions of Walker and Gentile indicate that it considered "administration"
to include "office policy governing . . . subornation of perjury" and
"office policy as to disciplining of law enforcement personnel". Id. |
| [117] | *fn43. See also Davis v. Ector County,
Texas, 40 F.3d 777 (5th Cir. 1995) (DA is local policy maker for purposes of personnel
decision (firing), even though state official when enforcing state law). |
| [118] | *fn44. Cf. Commonwealth Attorney's Act of
1850, 71 P.S. §§ 732-206(a), defining district attorneys as the "chief law
enforcement officer[s] for the county in which [they were] elected." |
| [119] | *fn45. In Coleman we distinguished between
the "day-to-day management of the prosecutor's office" - a function in which the
DA acts as a county official - and the use of a "grossly erroneous" search
warrant - an investigatory and prosecutorial function in which he acts as a state
official. Id. at 1502, 1505. |
| [120] | *fn46. The District Court initially focused
on the political autonomy of the DA's Office from the City of Philadelphia.
Autonomy is measured, however, by the DA's Office's relationship with the Commonwealth
(i.e., the more autonomous, the less an "alter ego" of the state). Moreover, the
asserted autonomy from the City actually supports Carter's position with
respect to the "failure to state a claim" argument addressed infra Section V, as
it underscores the DA's role as final policymaker on law enforcement issues for the City.
Cf. Degenova v. Sheriff of DuPage County, 18 F. Supp. 2d 848, 852 (N.D. Ill. 1998). |
| [121] | *fn47. See Commonwealth v. Lawson, 658 A.2d
801, 803 (Pa. Super. 1995) (describing Commonwealth v. Khorey/Trputec, 555 A.2d 100
(1989), as "establish[ing] categorically that the Attorney General, pursuant to
statute which supplanted common law, has no authority to supersede the District
Attorney"); Commonwealth v. Carsia, 491 A.2d 237, 251 (Pa. Super. 1985) (explaining
that limited criminal jurisdiction extended to AG in Commonwealth Attorney's Act reflected
legislature's concerns that it not "imping[e] upon the jurisdiction and duties of the
constitutionally created office of county-elected district attorney"). |
| [122] | *fn48. See 72 P.S. § 732-205(a)(3)-(5).
The Pennsylvania Supreme Court has explained that although the AG "had the common law
power to replace his own deputies," that "does not justify the Conclusion that
he now has the right to supersede an elected district attorney." Commonwealth v.
Schab, 383 A.2d 819 (Pa. 1978). In refusing to require at the AG's request prosecution of
a homicide the district attorney deemed excusable, the Court observed that "[i]t
would be incongruous to place a district attorney in the position of being responsible to
the electorate for the performance of his duties while actual control over his performance
was, in effect, in the attorney general." Id. |
| [123] | *fn49. Moreover, the supersedure authority
provided by New Jersey law is much more extensive than the limited supersedure under
Pennsylvania law, in that it permits the AG broadly to supersede county prosecutors,
leaving the prosecutors to "exercise only such powers and perform such duties as are
required of them by the Attorney General." N.J. Stat. Ann. § 52:17(b)-106, quoted in
Coleman. We held that even such a broad statutory supersedure scheme "provides county
prosecutors . . . with a substantial degree of autonomy from the state government" in
non-prosecutorial matters. Coleman, 87 F.3d at 1502. |
| [124] | *fn50. See Carter, 4 F. Supp.
2d at 392. |
| [125] | *fn51. Justice O'Connor viewed the state's
power to appoint and remove an agency's officers, to veto its actions, to receive its
annual reports, and to approve or disapprove each of its rules and projects as evidence of
the type of authority which would support a finding of immunity. Id. at 63. |
| [126] | *fn52. The power of the legislature (and to
a lesser extent the courts) over the DA's Office is of course not narrowly limited; but
"autonomy" would be a meaningless concept if it were rendered inapplicable by
subjection to the (unexercised) legislative and judicial powers, to which all persons are
subject. |
| [127] | *fn53. Cf. Hess, 513 U.S. at 47 (stating
that when indicators of immunity point in different directions, the court is guided
primarily by the Eleventh Amendment's twin reasons for being: the States' dignity and
their financial solvency). A suit for damages against a district attorney's office does
not implicate the dignity of the state. The federal courts' consideration of status and
autonomy under state law preserves the state's dignity by making its chosen structures
controlling. Here, even if there is some doubt as to the entity's status under the law,
and even if there is some degree of control by the state, the status and control do not
rise to the level at which the exercise of judicial power over the DA's Office would
offend the dignity of the State. |
| [128] | *fn54. An illuminating comparison of
circumstances in which we have found extension of immunity and those in which we have not
appears in Bolden, 953 F.2d 815-16. We there observed that we found immunity where we
concluded that the state intended the agency be considered a state agency for Eleventh
Amendment purposes, the state was obligated to meet the agency's liabilities, the agency's
commissioners were appointed by the state, and the state retained substantial power over
the agency's actions. Port Auth. Police Benevolent Assoc. v. Port Auth. of N.Y. and N.J.,
819 F.2d 413 (3d Cir. 1987). On the other hand, we refused to find immunity where an
agency was state-created and largely state-funded but was "independent" and
"direct[ed] its own actions" and was "responsible on its own for judgments
resulting from [its] actions." Kovats v. Rutgers, 822 F.2d 1303, 1312 (3d Cir. 1987). |
| [129] | *fn55. We note that the DA's Office
provides an impressive-looking list of cases to support the proposition that "Judges
across the country have agreed, virtually without exception, that district attorneys are
state officials protected by Eleventh Amendment immunity." It must be remembered,
however, that the determinative factors of funding, state law status and autonomy will
vary from state to state, so that decisions concerning other states' district attorneys
provide very little guidance absent a comparison of those factors. The cited cases do not
withstand such a comparison because they involved state funding, state supervision, and/or
a state court determination that prosecutors were state officials. The DA's Office omits
to mention cases in which the same courts of appeals have held district attorneys in other
states within their jurisdiction to be local officials. |
| [130] | *fn56. See also Schrob v. Catterson, 948
F.2d 1402, 1409 (3d Cir. 1991). |
| [131] | *fn57. In Imbler, the Supreme Court held
"only that in initiating a prosecution and in presenting the State's case, the
prosecutor is immune from a civil suit for damages under § 1983" and left open the
question of whether absolute immunity would apply to "those aspects of the
prosecutor's responsibility that cast him in the role of an administrator or investigative
officer rather than that of advocate" for the state. 424 U.S. at 430-31. |
| [132] | *fn58. In Guiffre, we followed the Supreme
Court's holding in Burns that a prosecutor is not absolutely immunized for advice given to
police during the investigative stages of a criminal proceeding. See 31 F.3d at 1253,
citing Burns, 500 U.S. at 496. In addressing the question left open in Imbler, and
resolving a subsequent split among the courts of appeals, the Burns Court expressly
rejected argument that a prosecutor's directory role in police investigations is
sufficiently related to her advocate function. The Supreme Court explained that
"[a]lmost any action by a prosecutor . . . could be said to be in some way related to
the ultimate decision whether to prosecute, but we have never indicated that absolute
immunity is that expansive." Burns, 500 U.S. at 495. The Court also rejected the
government's argument that adequate checks on prosecutorial misconduct in this context
exist, observing that "one of the most important . . . checks, the judicial process,
will not necessarily restrain a prosecutor's out-of-court activities that occur prior to
the initiation of a prosecution." Id. Thus it concluded that neither common law nor
policy considerations support an extension of absolute immunity, which applies "only
for actions that are connected with the prosecutor's role in judicial proceedings, not for
every litigation-inducing conduct." Id. at 494. |
| [133] | *fn59. Although the Walker Court, adopting
language from Canton, indicated that the policymaker's knowledge should be"to a moral
certainty", it does not appear that this qualifying phrase adds anything other than
emphasis to the requirement of ordinary knowledge. |
| [134] | *fn60. Cf. Gentile, 926 F.2d at 152 n.5
(predicating liability on "long history of negligent disciplinary practices regarding
law enforcement personnel . . . ."). |
| [135] | *fn61. If Carter is able to
demonstrate that the DA's failure to adopt a policy amounts to deliberate indifference, he
must of course then establish that his conviction was "actually caused" by that
failure. Canton, 489 U.S. at 391; see also Sample, 885 F.2d at 1118 (requiring plaintiff
to prove his injury "resulted from" the failure to adopt a policy). The Canton
Court explained that actual causation turns on whether "the injury [would] have been
avoided had the employee been trained under a program that was not deficient in the
identified respect." 489 U.S. at 391. |
| [136] | *fn62. The District Court read the
Complaint as asserting only passive adoption by the DA's Office defendants of a policy
imposed by the City. See Carter, 4 F. Supp. 2d at 394-95. Nonetheless, an
appropriately generous reading would indicate that the DA's Office defendants were the
policymakers who adopted the inadequate training, supervision and discipline policies on
behalf of the City. |
| [137] | *fn63. Cf. Gentile 926 F.2d at 152
("Plaintiffs were not obliged to produce particular evidence that defendants had
specific knowledge of a declared policy of the County . . . ."). |
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