Suing State Officials Under the Civil Rights Act: When is a Person not a Person?

Abstract

This article previews the issues and arguments in Hafer v. Melo, on the Supreme Court’s 1991-92 appellate docket. The primary issue in Hafer v. Melo is whether the Auditor General of Pennsylvania, in discharging employees after her election to office, was acting in her official capacity and is therefore entitled to sovereign immunity, or whether she was acting in her personal capacity, and is therefore subject to a civil damage action for redress of injuries.One would have thought that by now the federal courts, in adjudicating hundreds of civil rights actions, would have resolved all questions relating to sovereign immunity. This turns out not to be true.

Indeed, courts continue to be presented with ever-nuanced issues relating to the scope and application of Eleventh Amendment sovereign immunity from civil damage actions, and with increasingly sophisticated questions of statutory construction relating to official and personal-capacity lawsuits against government officials. Thus, the Court this Term will again address the very fundamental issue of who is a "person" suable under the civil rights statutes.

The general civil rights statute, 42 U.S.C. § 1983, provides the legal basis for lawsuits alleging a deprivation of civil rights. The law states that "every person" acting under state law who deprives a citizen of rights, privileges, or immunities secured by the Constitution or federal laws is liable to the injured party in an action at law or equity.The Eleventh Amendment, which generally shields states from lawsuits without consent, extends sovereign immunity to state officials acting in their official capacity, but not when these officials are acting in their personal capacity.

Hafer v. Melo presents a case asking the Court to further refine the concepts of when state officials can fairly be said to be acting in a personal, as opposed to official, capacity.Hafer requires the Supreme Court to return to the sovereign immunity drawing board and further refine the somewhat blurry lines between "personal" and "official" civil rights damage actions against governmental officials. This is a problem that continues to confound and confuse the federal courts, entwining the larger doctrine of Eleventh Amendment sovereign immunity with principles of absolute and qualified immunity under the civil rights statutes.

Hafer presents a close call on the facts concerning whether the doctrine of qualified immunity will apply to Hafer's actions in dismissing the various Pennsylvania Auditor Office employees. Whether the Supreme Court will even review those facts is a threshold issue. Beyond that, it is of some interest whether the Court will apply existing functional categories to resolve the legal issue of governmental capacity, or further refine the law relating to personal and official-capacity lawsuits.