October 14th, 1998

Precedential

97-6793

                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 97-6793.

                   HARBERT INTERNATIONAL, INC., Plaintiff-Appellant,

                                                 v.

                   Fob JAMES, James Folsom, et al., Defendants-Appellees.

                                          Oct. 14, 1998.

Appeal from the United States District Court for the Southern District of Alabama. (No. 95-0429-
CB-C), Charles Butler, Jr. Judge.

Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.

       CARNES, Circuit Judge:

       Harbert International, Inc. appeals from the judgment of the district court in favor of

defendants Fob James (current Governor of Alabama), James Folsom (former Governor of

Alabama), Jimmy Butts (Director of the Alabama Department of Transportation, which we will refer

to as the "Department"), G. Mack Roberts and Perry Hand (former Department Directors), Newal

S. Cauthen, G.M. Harper, William Hartzog, and John Jernigan (Department employees), and Alan

Cummings (an attorney who performed work for the Department). This lawsuit arose out of the

defendants' alleged failure to make payments and perform contractual duties in connection with

Harbert's construction of the Cochrane Bridge in Mobile, Alabama.

       Harbert's appeal from the district court's entry of judgment in favor of the defendants raises

two general issues: (1) whether Eleventh Amendment sovereign immunity bars Harbert's Fifth

Amendment Takings Clause claim against the defendants in their official capacities; and (2)

whether qualified immunity protects the defendants from Harbert's claims against them in their
individual capacities. Answering both questions in the affirmative, we affirm the judgment of the

district court.

                                      I. FACTUAL HISTORY

        This appeal arises from two procedural dispositions. Harbert's claims against the defendants

in their official capacities were dismissed by the district court upon the defendants' motion to

dismiss, while the defendants were granted summary judgment on Harbert's claims against them in

their individual capacities. Insofar as Harbert's appeal raises issues pertaining to its official capacity

claims, we accept the allegations in Harbert's complaint as true, and construe the facts in the light

most favorable to Harbert. See, e.g., Harper v. Thomas, 

988 F.2d 101

, 103 (11th Cir.1993). Insofar

as Harbert's appeal raises issues pertaining to its individual capacity claims, we view the evidence

in the light most favorable to Harbert. See, e.g., Hale v. Tallapoosa County, 

50 F.3d 1579

, 1581

(11th Cir.1995). Because there is no material variation between the allegations of the complaint and

the evidence construed in the light most favorable to Harbert, the following factual account, which

reflects the evidence viewed in the light most favorable to Harbert, controls our disposition of the

entire appeal.

        In 1989, the Department began soliciting bids for the construction of the Cochrane Bridge.

Prior to that time, the Department had contracted with a company to construct the bridge, but it

terminated that contract because the company performed unsatisfactory work. In conjunction with

its solicitation of bids, the Department represented that it would assume the responsibility for defects

in the initial contractor's work. It also promised to supply certain equipment and supplies. The

Department agreed that the contractor selected to construct the bridge could propose alternative

construction methods to those specified in the construction contract. Finally, the Department agreed


                                                    2
to compensate the contractor for any necessary work not contemplated by the construction contract.

Relying on those representations, Harbert submitted the lowest aggregate bid, and was awarded the

contract.

       According to Harbert, the Department did not honor its representations, but instead

unreasonably refused Harbert's request to utilize alternative time- and expense-saving construction

methods and failed to supply Harbert with adequate equipment and supplies. As a result, Harbert

experienced delays and increased costs to complete the bridge. By the time Harbert completed the

bridge in August of 1991, those increased costs amounted to more than $13 million. Additionally,

because Harbert had failed to complete the bridge in a timely manner, the Department withheld $1.3

million in liquidated damages from Harbert.

       In January 1992, Harbert submitted a claim to the Department to recover the increased costs

it had incurred as a result of the Department's misrepresentations. Defendant Hand referred

Harbert's claim to a "Claims Committee" for consideration. Hand also created a "Special Claims

Committee" to provide additional review of Harbert's claim. Both committees were supposed to

report to Hand by March 1992, but neither did. In June 1992, Harbert appeared before the Claims

Committee to press its claim. The Claims Committee requested additional information from

Harbert, which it provided in July 1993.

       In August 1993, Harbert asked defendant Cauthen to convene an "Advisory Board" pursuant

to the Department's Standard Specification for Highway Construction § 109.10(b). That section

provides in relevant part:

               Upon request of the Contractor, the Director may at his discretion refer any question
       at issue involving the amount or rate of settlement or the liability of the State for any
       amount, other than as shown by the Engineer's estimates, to an advisory board for its
       findings and recommendations.

                                                3
Cauthen asked Harbert to give the Claims Committee more time to resolve the dispute. Harbert

agreed to wait until September. In October 1993, Cauthen informed Harbert that another Claims

Committee had been formed, and that it needed additional information from Harbert. Harbert

provided that information in December 1993.

       In May 1994, Harbert again requested that an Advisory Board be convened to consider its

claim, and this time the request was granted. The Advisory Board scheduled an organizational

meeting for November 1994, and a hearing on Harbert's claim for January 1995. Before the

Advisory Board could take any action, however, it was abolished by defendant Roberts on the

ground that defendant James had recently been elected Governor of Alabama. Harbert requested

that Roberts reconvene the Advisory Board. Roberts, in turn, informed Harbert that he would not

accept any recommendation from the Advisory Board which exceeded $600,000.

       After assuming office in January 1995, Governor James appointed Butts as Director of the

Department. Butts refused to convene a new Advisory Board. In May 1995, Harbert met with

Governor James, Butts, and Cauthen to discuss Harbert's claim. At that meeting, the defendants

admitted to mishandling Harbert's claim. Butts told Harbert that he would convene an Advisory

Board within sixty days of the date he completed his review of Harbert's claim. A short time later,

however, Butts informed Harbert that he would not follow any recommendation made by the

Advisory Board.

                                 II. PROCEDURAL HISTORY

       After the previously described events, Harbert filed a complaint in federal court asserting

claims against the defendants in both their official and individual capacities. The complaint asserted

claims under 

42 U.S.C. § 1983

 alleging that the defendants had violated Harbert's substantive and


                                                  4
procedural due process rights as well as its rights under the Fifth Amendment's Takings Clause. In

addition to damages, Harbert sought injunctive relief against the defendants in their official

capacities to compel the release of the $1.3 million withheld by the defendants as liquidated

damages.

       The defendants filed a motion to dismiss. They argued that Harbert did not have viable

procedural due process claims because (1) Harbert was not deprived of a constitutionally protected

property interest, and (2) Harbert had not demonstrated that it could not obtain adequate

post-deprivation process to remedy the alleged deprivation. The district court found that both

Alabama law and the Department's Standard Specifications for Highway Construction ("Standard

Specifications") incorporated into the construction contract conferred upon Harbert a protected

property interest. Specifically, the court found that Alabama Code § 41-16-3,1 which mandates

timely payment to a contractor who has executed his duties under a contract with the state, and

Standard Specification 109.10(a),2 which provides that claims for extra compensation must be paid

if the claims are found to be just, gave Harbert a protected property interest in being paid for the


   1
    Alabama Code § 41-16-3 provides in relevant part: "Whenever the state of Alabama is a
party to any contract, said contract must be executed by all parties in a timely fashion. When a
party to a contract, other than the state, has fully executed his responsibility under the contract
and there remains only the payment of funds by the state, said payment must be made in a timely
manner."
   2
    Standard Specification 109.10(a) provides in relevant part:

               In any case where the Contractor deems that extra compensation is due him for
               work or materials not clearly covered in his contract and not ordered by the
               Engineer as extra work as defined herein, the Contractor shall notify the Engineer
               in writing, with copy to the Director, of his intention to make claim for such extra
               compensation before he begins the work on which he bases his claim.... The
               validity of the claim must be passed upon by the Engineer. In case the claim is
               found to be just, it shall be allowed and paid.

                                                 5
services it had rendered. The court also found Harbert's allegations established that it had attempted

to utilize the state's post-deprivation processes, but that the Department's unreasonable delay in

processing Harbert's claim had effectively foreclosed any such process. Accordingly, the court

concluded Harbert had alleged viable procedural due process claims.

       The district court agreed with the defendants that Harbert's allegations did not state

substantive due process claims, and it dismissed those claims against all the defendants. (Harbert

does not appeal that dismissal.) Relying on its conclusion that Harbert had a protectible property

interest, the court concluded Harbert had alleged a viable Fifth Amendment Takings claim.

       The defendants argued that even if Harbert had alleged viable claims against them, they were

immune from suit in their official capacity under the Eleventh Amendment, and that they were

immune from suit in their individual capacity under the doctrine of qualified immunity. The district

court noted that the injunctive relief Harbert sought in its claims against the defendants in their

official capacities fell into two categories: (1) a request that the defendants provide Harbert with

certain administrative procedures;     and (2) a request that the defendants release funds the

Department had withheld from Harbert. The court reasoned that because granting either type of

relief would have the effect of compelling or restraining state action, Harbert's claims against the

defendants in their official capacity were really claims against the State of Alabama. Therefore, the

court concluded, Harbert's claims against the defendants in their official capacity were barred by the

Eleventh Amendment. Accordingly, the court dismissed those claims.

       Turning to the issue of qualified immunity, the court found that the record did not establish

whether the defendants' allegedly unconstitutional acts fell within the scope of their discretionary

authority. As a result, the court believed and stated discovery would be necessary to enable it to


                                                  6
resolve that issue. Accordingly, the court declined to dismiss Harbert's individual capacity claims

on the basis of qualified immunity.

       In October 1996, the defendants moved for summary judgment, re-asserting that qualified

immunity protected them from Harbert's individual capacity claims. In response, Harbert filed a

motion for discovery pursuant to Federal Rule of Civil Procedure 56(f), asserting that it needed

discovery to demonstrate the existence of a genuine issue of material fact about whether the

defendants' allegedly unconstitutional acts were within the scope of their discretionary authority.

The district court found Harbert's discovery request was so broad and far-reaching that granting it

would frustrate the purposes of the defense of qualified immunity. The court also found discovery

would not show that the defendants had exceeded the scope of their discretionary authority.

Accordingly, it denied Harbert's Rule 56(f) motion.

       In September 1997, the district court granted the defendants' motion for summary judgment

on Harbert's procedural due process and takings claims against the defendants in their individual

capacities.   The court concluded the defendants had demonstrated that their allegedly

unconstitutional conduct was done within the scope of their discretionary authority. The court also

concluded that clearly established law did not compel the conclusion that the defendants' alleged

conduct violated Harbert's procedural due process rights or constituted an impermissible taking of

property. Accordingly, the court held that the doctrine of qualified immunity barred Harbert's claims

against the defendants in their individual capacities.

       Harbert appeals from the district court's (1) dismissal of its Fifth Amendment Takings Clause

claim against the defendants in their official capacities on the basis of Eleventh Amendment

sovereign immunity; (2) denial of its Rule 56(f) motion for discovery; and (3) grant of summary


                                                 7
judgment to the defendants on its procedural due process and Fifth Amendment Takings Clause

claims against the defendants in their individual capacities on the basis of qualified immunity.

                                 III. STANDARDS OF REVIEW

        We review the district court's dismissal of Harbert's claims against the defendants in their

official capacity de novo. See, e.g., Beck v. Deloitte & Touche, Deloitte, Haskins & Sells, Ernest

& Young, L.L.P., 

144 F.3d 732

, 736 (11th Cir.1998). We review the district court's order denying

Harbert's Rule 56(f) motion for discovery for an abuse of discretion, and "will not overturn such an

order unless it is shown that the district court's ruling resulted in substantial harm to the appellant's

case." Carmical v. Bell Helicopter Textron, Inc., 

117 F.3d 490

, 493 (11th Cir.1997) (footnote

omitted).

        Finally, we review the district court's grant of summary judgment de novo, with all facts and

reasonable inferences therefrom reviewed in the light most favorable to the nonmoving party. See,

e.g., Hale, 

50 F.3d at 1581

. Summary judgment is appropriate when the record discloses no genuine

issue of material fact and that the moving party is entitled to judgment as a matter of law. See

Fed.R.Civ.P. 56(c).

                                          IV. DISCUSSION

A. WHETHER HARBERT'S FIFTH AMENDMENT TAKINGS CLAUSE CLAIM AGAINST
     THE DEFENDANTS IN THEIR OFFICIAL CAPACITIES IS BARRED BY ELEVENTH
     AMENDMENT SOVEREIGN IMMUNITY

         The district court held all of Harbert's claims against the defendants in their official

capacities were barred by Eleventh Amendment sovereign immunity. Arguing the court was wrong,

Harbert contends that Eleventh Amendment sovereign immunity does not bar a Fifth Amendment

Takings claim if the State fails to provide a means of redress for such a claim in its own courts. We


                                                   8
need not decide whether that contention is correct, because Alabama state courts do provide Harbert

with a means of redress for its claim. Therefore, we conclude that Harbert's Fifth Amendment

Takings Clause claim is barred by Eleventh Amendment sovereign immunity.

        The Eleventh Amendment states:

       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.

U.S. Const. Amend. XI. Although not readily apparent from the amendment's text, it has long been

settled that the amendment applies equally to suits against a state brought in federal court by citizens

of that state. See Hans v. Louisiana, 

134 U.S. 1

, 18-19, 

10 S.Ct. 504

, 508, 

33 L.Ed. 842

 (1890). The

state need not be formally named as a defendant for the amendment to apply; state officials sued

in their official capacity are also protected by the amendment. See, e.g., Kentucky v. Graham, 

473

U.S. 159

, 166-67, 

105 S.Ct. 3099

, 3105-06, 

87 L.Ed.2d 114

 (1985).3

       While the amendment's text suggests its prohibition is jurisdictional in nature, the Supreme

Court has held that it is not; instead, the amendment creates a sovereign immunity which "the States

enjoy save where there has been a surrender of this immunity in the plan of the convention." Idaho

v. Coeur d'Alene Tribe of Idaho, 

521 U.S. 261

, 

117 S.Ct. 2028

, 2033, 

138 L.Ed.2d 438

 (1997)

(internal quotation and citation omitted). The Supreme Court has recognized three situations in


   3
    When a state official is made a defendant in a suit, whether it is nominally brought against
him in his official or individual capacity, a court must determine the real, substantial party in
interest. See Pennhurst State Sch. & Hosp. v. Halderman, 

465 U.S. 89

, 101, 

104 S.Ct. 900

, 908,

79 L.Ed.2d 67

 (1984). If it is the State, the official may assert the defense of Eleventh
Amendment sovereign immunity. See 

id. at 101-02

, 

104 S.Ct. at 908-09

. "The general rule is
that a suit is against the sovereign if the judgment sought would expend itself on the public
treasury or domain, or interfere with the public administration, or if the effect of the judgment
would be to restrain the Government from acting, or to compel it to act." 

Id.

 at 101 n. 11, 

104
S.Ct. at

908 n. 11 (internal quotation and citation omitted).

                                                   9
which there is a "surrender" of Eleventh Amendment sovereign immunity: (1) when a state waives

its Eleventh Amendment sovereign immunity and consents to suit in federal court, see Atascadero

State Hosp. v. Scanlon, 

473 U.S. 234

, 238, 

105 S.Ct. 3142

, 3145, 

87 L.Ed.2d 171

 (1985); (2) when

Congress, acting pursuant to § 5 of the Fourteenth Amendment, abrogates a state's Eleventh

Amendment sovereign immunity by expressing an unequivocal intent to do so, see Seminole Tribe

of Florida v. Florida, 

517 U.S. 44

, 55-73, 

116 S.Ct. 1114

, 1123-32, 

134 L.Ed.2d 252

 (1996); and

(3) when a state official is sued for prospective injunctive relief to end a continuing violation of

federal law, see 

id. at 73

, 

116 S.Ct. at 1132

; Ex parte Young, 

209 U.S. 123

, 155-56, 

28 S.Ct. 441

,

452, 

52 L.Ed. 714

 (1908).

       The district court correctly held that Harbert's claims against the defendants in their official

capacities were, in effect, claims against the State of Alabama and, consequently, that the defense

of Eleventh Amendment sovereign immunity was available. Finding that Harbert's claims against

the defendants in their official capacities did not fall within any of the three exceptions discussed

above, the court held that the Eleventh Amendment barred those claims.

       On appeal, Harbert does not argue that the district court erred in holding the suit was one

against the State or that none of the three established exceptions was applicable. Instead, Harbert

urges us to find what amounts to a fourth exception to the Eleventh Amendment's prohibition on

suits against a state. Harbert asks us to hold that when a state refuses to submit to suit in its own

courts for claims brought under a self-executing constitutional provision such as the Takings Clause

of the Fifth Amendment, the Eleventh Amendment will not bar such a suit from federal court.




                                                 10
       Harbert's argument proceeds as follows. The Fifth Amendment's Takings Clause provides

an absolute guarantee of just compensation when private property is taken for public use.4 The

defendants, acting in their official capacities, took Harbert's property for public use. Harbert,

therefore, has an absolute right to just compensation. Harbert is unable to seek that remedy in state

court because Article 1, § 14, of the Alabama Constitution prohibits suits for takings claims, such

as this one, that do not involve real property. The Eleventh Amendment's prohibition on suits

against a state in federal court is not absolute. Therefore, these circumstances must present a fourth

situation in which a "surrender" of Eleventh Amendment sovereign immunity was "within the plan

of the convention."

       If Harbert's state law premise were correct, in the view of a plurality of the Supreme Court,

"a substantial constitutional question would be presented." Florida Dep't of State v. Treasure

Salvors, Inc., 

458 U.S. 670

, 697, 

102 S.Ct. 3304

, 3321, 

73 L.Ed.2d 1057

 (1982) (plurality opinion).

Without an avenue of redress for a takings claim, that plurality said, "all property rights would exist

only at the whim of the sovereign." 

Id.

 However, that situation is not presented in this case, because

Alabama law does provide Harbert with a means of redress if its claim of entitlement is a valid one,

as Harbert contends it is.

       In Alabama Highway Dept. v. Milton Constr. Co., Inc., 

586 So.2d 872

 (Ala.1991), the

Alabama Supreme Court discussed Alabama's immunity from suit in its own courts under factual

circumstances similar to those presented here. The plaintiff, Milton Construction Company

("Milton"), had contracted with the Department of Transportation to perform work on the Alabama



   4
    The Takings Clause provides: "[N]or shall private property be taken for public use, without
just compensation." U.S. Const.Amend. V.

                                                  11
portion of an interstate highway. Milton had completed its work under the contract, but the

Department had refused to pay Milton all the money it was due. Responding to the Department's

assertion that Article I, § 14 of the Alabama Constitution barred Milton from suing in Alabama

courts to force payment of the money due, the Alabama Supreme Court held:

        It is true that § 14 of the Constitution prevents a suit against the state as well as suits against
        its agencies. However, this Court has also recognized that there are certain established
        exceptions to the protection afforded the state or its agencies by sovereign immunity.
        Among those recognized exceptions are actions brought to force state employees or agencies
        to perform their legal duties.... Once [the Department] has legally contracted under state law
        for goods or services and accepts such goods or services, [it] also becomes legally obligated
        to pay for the goods or services accepted in accordance with the terms of the contract. It
        follows that this obligation is not subject to the doctrine of sovereign immunity and is
        enforceable in the courts.

Id. at 875 (internal citation omitted). The holding in Dunn Construction Company, Inc. v. State

Board of Adjustment, 

234 Ala. 372

, 

175 So. 383

 (Ala.1937), is similarly instructive. In that case,

the Alabama Supreme Court held:

        As for claims arising from contracts with the state, including contracts through agencies
        authorized to contract on behalf of the state, it is to be observed that all persons dealing with
        the state are charged with knowledge that no one has authority to subject the state to suit.
        Not that the holders of state obligations are without remedy. When an obligation of the state
        to pay money is created by law, or by contract duly authorized, somewhere there is a duty
        imposed on a public officer or officers to make payment from the funds appropriated
        therefor. Performance of such official duty ... may be compelled by mandamus.

Id. at 386

.

        Here, Harbert alleges that its contract with the Department entitles it to compensation for

work which was necessary to complete the Cochrane Bridge but which was not covered in the

contract. Harbert further alleges that it performed such "extra" work, but that the Department has

refused to compensate it for that work by arbitrarily refusing to finish the administrative procedures

necessary to process Harbert's claim. If Harbert can prove those allegations, Milton and Dunn


                                                   12
establish that Harbert can bring an action in Alabama state court to force the defendants to complete

the administrative procedures necessary to process Harbert's claim, or to release the funds Harbert

is due under the contract, or both. Because Alabama state courts provide Harbert with an avenue

of relief for its takings claim, we need not decide whether there is a fourth exception to the Eleventh

Amendment's bar against suits against a state in federal court. Accordingly, we conclude that

Harbert's Fifth Amendment Takings Clause claim against the defendants in their official capacities

is barred by Eleventh Amendment sovereign immunity.5

B. WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING
     HARBERT'S RULE 56(f) MOTION FOR DISCOVERY

        When it initially denied the defendants' motion to dismiss Harbert's individual capacity

claims, the district court expressed its belief that discovery was needed to determine whether the

defendants had acted within the scope of their discretionary authority, a prerequisite to qualified

immunity. In its subsequent order on Harbert's Rule 56(f) motion, the court acknowledged that

Harbert could "understandably rel[y]" on the court's earlier order as support for its motion.

Nevertheless, the court denied Harbert's Rule 56(f) motion, reasoning that the breadth of Harbert's

discovery request, the state of the record, and policy concerns implicated by the defendants' assertion

of qualified immunity, all militated against permitting discovery. In other words, the court

reconsidered and changed its mind.


   5
    Defendant Cummings argues that we should affirm the dismissal of Harbert's Fifth
Amendment Takings Clause claim because even if Harbert has a property interest protected by
the Fourteenth Amendment's Due Process Clause, he has not been deprived of an interest which
is protected by the Fifth Amendment's Takings Clause. See Corn v. City of Lauderdale Lakes,

95 F.3d 1066

, 1075 (11th Cir.1996) (" "Property' as used in the Just Compensation Clause is
defined much more narrowly than in the due process clauses."), cert. denied, --- U.S. ----, 

118
S.Ct. 441

, 

139 L.Ed.2d 378

. (1997). Given our affirmance of the dismissal on other grounds, we
need not reach that issue.

                                                  13
           "District judges are accorded wide discretion in ruling upon discovery motions, and

appellate review is accordingly deferential." Harris v. Chapman, 

97 F.3d 499

, 506 (11th Cir.1996),

cert. denied, --- U.S. ----, 

117 S.Ct. 2422

, 

138 L.Ed.2d 185

 (1997). A Rule 56(f) motion must be

supported by an affidavit which sets forth with particularity the facts the moving party expects to

discover and how those facts would create a genuine issue of material fact precluding summary

judgment. See Fed.R.Civ.P. 56(f); Walters v. City of Ocean Springs, 

626 F.2d 1317

, 1321 (5th Cir.

Unit A 1980). Whether to grant or deny a Rule 56(f) motion for discovery requires the court to

balance the movant's demonstrated need for discovery against the burden such discovery will place

on the opposing party.

          In qualified immunity cases, the Rule 56(f) balancing is done with a thumb on the side of

the scale weighing against discovery. Qualified immunity provides " "an entitlement not to stand

trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal

[immunity] question.' " Behrens v. Pelletier, 

516 U.S. 299

, 306, 

116 S.Ct. 834

, 838-39, 

133 L.Ed.2d

773

 (1996) (quoting Mitchell v. Forsyth, 

472 U.S. 511

, 526, 

105 S.Ct. 2806

, 2815, 

86 L.Ed.2d 411


(1985)). For that reason, once a defendant raises the defense, "the trial court must exercise its

discretion in a way that protects the substance of the qualified immunity defense. It must exercise

its discretion so that officials are not subjected to unnecessary and burdensome discovery or trial

proceedings." Crawford-El v. Britton, --- U.S. ----, ----, 

118 S.Ct. 1584

, 1596, 

140 L.Ed.2d 759


(1998).

          The district court's order on Harbert's Rule 56(f) motion indicates that it carefully balanced

all of the interests involved in light of the overarching policy considerations implicated by the

defendants' assertion of qualified immunity. The district court explained that at the time it took


                                                   14
Harbert's Rule 56(f) motion under advisement, it had "considerably more information" before it than

at the time it issued the order denying the defendants' motion to dismiss. Specifically, the

information before the court when it ruled on the Rule 56(f) motion included: (1) affidavits from

the defendants setting forth what they claimed to be the authority for their alleged actions; (2) an

affidavit from Harbert's attorney setting forth what he believed discovery would reveal; and (3) a

pleading from Harbert which purported to identify the clearly established law the defendants had

violated.

       Based upon all of that information, the district court found it unlikely that further discovery

would establish either that the defendants acted outside the scope of their discretionary authority or

that they had violated clearly established law. As to the burden Harbert's requested discovery would

place on the defendants, the court observed that Harbert wanted discovery "on no fewer than nine

issues [which] appear to encompass all information relevant to the disposition of this case on its

merits."6 In short, Harbert wanted a lot, which would take much time and effort to provide.

Accordingly, the court denied Harbert's motion.

       Harbert argues that under the authority of Rich v. Dollar, 

841 F.2d 1558

 (11th Cir.1988), it

was entitled to conduct some discovery before responding to the defendants' motion for summary

judgment. Dollar is a case in which we held that the defendant was protected from suit by the

doctrine of qualified immunity. In doing so, we stated in dicta: "We point out to the district courts



   6
    Harbert asserts that its discovery request was narrowly tailored to demonstrate that each
defendant committed acts that exceeded the scope of their discretionary authority and violated
clearly established law. Our review of Harbert's attorney's affidavit, submitted in support of its
Rule 56(f) motion, reveals that its request was not narrowly tailored. Harbert sought discovery
on a wide variety of issues, some of which had little or nothing to do with whether a particular
defendant had the authority to perform a certain act.

                                                 15
and the practicing bar the importance of pursuing discovery to a reasonable extent so as to permit

appropriate factual showings. Anything less may result in grants of summary judgment solely

because of inadequate discovery." 

Id.

 at 1566 n. 8. However, that dicta must be read in light of

subsequent opinions, including the Supreme Court's teaching in Crawford-El. In this case, the

district court did not abuse its discretion by denying Harbert's Rule 56(f) motion.

C. WHETHER THE DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BASED ON
     THE DEFENSE OF QUALIFIED IMMUNITY

        So long as a government official acts within the scope of his discretionary authority and

does not violate clearly established law, the doctrine of qualified immunity protects him. See

Harlow v. Fitzgerald, 

457 U.S. 800

, 818, 

102 S.Ct. 2727

, 2738, 

73 L.Ed.2d 396

 (1982). As noted

earlier, qualified immunity is intended to protect the government official not only from civil liability,

but also from suit and its concomitant burdens. See Behrens, 

516 U.S. at 306

, 116 S.Ct. at 838-39.

"The defense of qualified immunity represents a balance between the need for a damages remedy

to protect the rights of citizens and the need for government officials to be able to carry out their

discretionary functions without the fear of constant baseless litigation." GJR Inv., Inc. v. County of

Escambia, 

132 F.3d 1359

, 1366 (11th Cir.1998).

1. The Two-Part Qualified Immunity Analysis

        We apply a two-part analysis to a government official's assertion of qualified immunity.

First, the official must prove that the allegedly unconstitutional conduct occurred while he was

acting within the scope of his discretionary authority. See, e.g., Evans v. Hightower, 

117 F.3d 1318

,

1320 (11th Cir.1997). Second, if the official meets that burden, the plaintiff must prove that the

official's conduct violated clearly established law. See 

id.





                                                   16
        Harbert contends that the district court failed to adhere to the two-part analysis discussed

above. Because we review the district court's grant of summary judgment de novo, any such error

will be of no moment here. Nevertheless, we take this opportunity to dispel any confusion as to the

proper application of the two-part qualified immunity analysis.

        In its summary judgment order, the district court suggested that a government official might

be entitled to the protection of qualified immunity so long as he did not violate clearly established

law, even if the official failed to establish that the allegedly unconstitutional conduct occurred while

he was acting within the scope of his discretionary authority. The district court stated: "The Court

believes that the plaintiff has erred in its contention that the Court need not—or may not—proceed

to the "clearly established law' prong unless the defendants have satisfied their burden with respect

to the "discretionary authority' prong."

        The district court was mistaken. To establish the defense of qualified immunity, the burden

is first on the defendant to establish that the allegedly unconstitutional conduct occurred while he

was acting within the scope of his discretionary authority. See Evans, 

117 F.3d at 1320

. If, and only

if, the defendant does that will the burden shift to the plaintiff to establish that the defendant violated

clearly established law. See 

id.

 The doctrine of qualified immunity was developed to defray the

social costs of litigation against government officials. See Harlow, 

457 U.S. at 814

, 102 S.Ct. at

2736 ("These social costs include the expenses of litigation, the diversion of official energy from

pressing public issues, and the deterrence of able citizens from acceptance of public office."). When

a government official goes completely outside the scope of his discretionary authority, he ceases to

act as a government official and instead acts on his own behalf. Once a government official acts

entirely on his own behalf, the policies underlying the doctrine of qualified immunity no longer


                                                    17
support its application. For that reason, if a government official is acting wholly outside the scope

of his discretionary authority, he is not entitled to qualified immunity regardless of whether the law

in a given area was clearly established. See Lenz v. Winburn, 

51 F.3d 1540

, 1547 (11th Cir.1995);

see also In re Allen, 

106 F.3d 582

, 593 (4th Cir.1997) ("A government official ... cannot claim

qualified immunity when he acts totally beyond the scope of his authority."), cert. denied, --- U.S.

----, 

118 S.Ct. 689

, 

139 L.Ed.2d 635

 (1998); Gray v. Bell, 

712 F.2d 490

, 502 n. 36 (D.C.Cir.1983)

("It is clear that the scope of authority requirement is a prerequisite to any application of official

immunity[.]").

       Despite its earlier statements, the district court went on to engage in the proper two-part

analysis. The court found that there was no genuine issue of material fact as to either part of that

analysis and, therefore, it granted summary judgment to the defendants on Harbert's

individual-capacity claims on the basis of qualified immunity. Harbert contends both that the

defendants failed to establish they were acting within the scope of their discretionary authority when

the allegedly unconstitutional conduct occurred, and that Harbert established the defendants' conduct

violated clearly established law. We review the district court's rejection of those contentions de

novo. See, e.g., Rowe v. Schreiber, 

139 F.3d 1381

, 1383 (11th Cir.1998).

2. Whether the Defendants Established that they were Acting Within the Scope of their
      Discretionary Authority

        To establish that the challenged actions were within the scope of his discretionary authority,

a defendant must show that those actions were (1) undertaken pursuant to the performance of his

duties, and (2) within the scope of his authority. See, e.g., Lenz, 51 at 1545. "A bald assertion that

the acts were taken pursuant to the performance of duties and within the scope of duties will not

suffice." Espanola Way Corp. v. Meyerson, 

690 F.2d 827

, 830 (11th Cir.1982).

                                                 18
       In Barker v. Norman, 

651 F.2d 1107

, 1124-25 (5th Cir. Unit A July 1981), the court talked

about the defendant's burden in this regard:

       To establish [that a defendant is acting within the scope of his discretionary authority], there
       must be more than a bald assertion by the defendant that the complained-of actions were
       undertaken pursuant to the performance of his duties and within the scope of his
       discretionary authority; there must be a showing by competent summary judgment materials
       of objective circumstances that would compel that conclusion.... Exactly what will suffice
       to establish such objective circumstances will ... vary in proportion to the degree of
       discretion inherent in the defendant's office. Such objective circumstances necessarily must
       encompass the factual context within which the complained-of conduct took place. But also
       appropriate is a showing by the defendant of facts relating to the scope of his official
       duties—e.g., a showing of the circumstances through which he initially came to believe that
       his lawful authority included within its scope actions of the type that are complained of by
       the plaintiff.

See also Rich v. Dollar, 841 F.2d at 1564 (quoting Barker ).

           To determine whether the defendant has discharged his burden, it is critical to define

properly the inquiry. The inquiry is not whether it was within the defendant's authority to commit

the allegedly illegal act. Framed that way, the inquiry is no more than an "untenable" tautology.

See Sims v. Metropolitan Dade County, 

972 F.2d 1230

, 1236 (11th Cir.1992); Shechter v.

Comptroller of New York, 

79 F.3d 265

, 269 (2d Cir.1996). "Instead, a court must ask whether the

act complained of, if done for a proper purpose, would be within, or reasonably related to, the outer

perimeter of an official's discretionary duties. The scope of immunity "should be determined by the

relation of the [injury] complained of to the duties entrusted to the officer.' " In re Allen, 

106 F.3d

at 594

 (quoting Doe v. McMillan, 

412 U.S. 306

, 319-20, 

93 S.Ct. 2018

, 2028, 

36 L.Ed.2d 912


(1973)).

       Examples from our previous decisions are helpful to an understanding of the proper

application of these principles. In Jordan v. Doe, 

38 F.3d 1559

 (11th Cir.1994), the plaintiff was

an inmate who alleged that the defendants, United States Marshals, transported him to jails where

                                                  19
they knew unconstitutional conditions existed and released him into state custody in violation of an

agreement governing federal detainees. To determine whether the defendants had acted within the

scope of their discretionary authority, we did not ask whether the defendants could place the plaintiff

into unconstitutional conditions or improperly transfer him; instead, we asked whether their duties

included transporting and delivering prisoners. See 

id. at 1566

.

        In Sims, the plaintiff alleged that the defendants unlawfully suspended him from his state

government job for exercising his First Amendment rights. See 972 F.2d at 1236. Addressing the

discretionary authority issue, we did not ask whether it was within the defendants' authority to

suspend an employee for an improper reason; instead, we asked whether their discretionary duties

included the administration of discipline. See id. Finally, in Rich, the plaintiff alleged that the

defendant, an investigator for the state attorney's office, unlawfully initiated a criminal investigation

against him by filing an affidavit of probable cause when none existed. See 841 F.2d at 1561. We

concluded that the defendant had acted within his discretionary authority not because that authority

included filing unfounded probable cause affidavits, but because his duties included writing and

submitting probable cause affidavits. See id. at 1564.

        Here, the constitutional injury Harbert complains of concerns the Department's alleged

refusal to process Harbert's claim for extra compensation and its withholding of liquidated damages

from Harbert, thereby depriving Harbert without due process or just compensation of a property

interest in timely payment for work performed. While Harbert alleges the defendants engaged in

a myriad of unlawful and improper conduct, only the conduct that caused Harbert's alleged

constitutional injury is relevant to the discretionary authority inquiry. That conduct consists of the

defendants' allegedly improper handling of Harbert's claim for extra compensation and their decision


                                                   20
to withhold damages from Harbert under a liquidated damages clause in the construction contract.

The determinative question is whether the defendants had the authority to receive and process

Harbert's claims for compensation, and whether they had the authority to decide whether to withhold

damages from Harbert under a liquidated damages clause of the construction contract.

       With the inquiry properly defined, we see the defendants have met their burden of

demonstrating that their conduct was undertaken pursuant to their duties and that they were acting

within the scope of their authority when the allegedly unconstitutional conduct occurred. Standard

Specification 109.10, which was incorporated into the construction contract, specifically authorizes

Department officials to hear and assess claims for extra compensation. Standard Specification

108.10, which was incorporated into the construction contract, specifically authorizes the

Department to decide whether to withhold liquidated damages from Harbert for failing to complete

the bridge as scheduled.

       Defendants Butts, Roberts, and Hand, each succeeded each other as Director of the

Department. Alabama law gives Department Directors broad discretionary authority over all of the

Department's operations. Section 23-1-21 of the Alabama Code states: "All the powers, authority

and duties vested in the highway department shall be exercised by the Highway Director." Section

23-1-21.2(5) gives the Director the authority to "[a]dminister any state funds authorized from time

to time by the legislature for the purpose of public transportation." The Director has the authority

to "determine the need for new or additional work not contemplated or included in the original

construction contract." Ala.Code § 23-1-60(2). Finally, the Department, and therefore, the Director,

is authorized to make rules and regulations to facilitate its activities. Ala.Code § 23-1-59(d). Those

provisions, together with Standard Specifications 108.10 and 109.10, authorized defendants Butts,


                                                 21
Roberts, and Hand, to hear and assess Harbert's claims for extra compensation and to decide whether

to withhold liquidated damages from Harbert.

       Under Article V, § 113, of the Alabama Constitution, the Governor of Alabama is vested

with "[t]he supreme executive power" of the State. The Governor is specifically authorized to

appoint the Department Director who "shall hold office at the pleasure of the Governor." Ala.Code

§ 23-1-21. Implicit in those broad grants of authority is the authority to maintain a dialogue with

the Director and his subordinates about all of the Department's affairs and to supervise them in the

carrying out of their duties. Therefore, defendants James and Folsom, the Governor and former

Governor of Alabama, were acting within the scope of their authority in any discussions they had

with Department officials about Harbert's claims for extra compensation and in any directions they

gave those officials about such matters.

       Defendant Cummings represented the Department as a special attorney general with regard

to Harbert's claims for extra compensation. Section 23-1-30(1) of the Alabama Code states that

special attorneys general are "[t]o advise the [Department] Director and other personnel of [the

Department] on the legal aspects of all highway department business." None of Harbert's

allegations, taken as true for present purposes, establishes that Cummings acted outside the scope

of the authority granted him.

       Each of the remaining defendants held administrative positions within the Department. Each

has submitted an affidavit setting forth the duties of his position. Those affidavits establish that any

allegedly unconstitutional conduct by defendants Cauthen, Harper, Hartzog, and Jernigan occurred

while they were acting within the scope of their discretionary authority. Accordingly, we conclude

that all of the defendants have established beyond any genuine issue of material fact that they were


                                                  22
acting within the scope of their discretionary authority when the allegedly unconstitutional conduct

occurred.

3. Whether Harbert Established that the Defendants' Actions Violated Clearly Established Law

         Because the defendants have established that they were acting within the scope of their

discretionary authority when the allegedly unconstitutional conduct occurred, the burden shifts to

Harbert to establish that the defendants' conduct violated clearly established law. See, e.g., Rich,

841 F.2d at 1564. In Lassiter v. Alabama A & M Univ., 

28 F.3d 1146

, 1149-50 (11th Cir.1994) (en

banc), we discussed what is required to demonstrate that the defendants' conduct violated clearly

established law:

        For the law to be clearly established to the point that qualified immunity does not apply, the
        law must have earlier been developed in such a concrete and factually defined context to
        make it obvious to all reasonable government actors, in the defendant's place, that "what he
        is doing" violates federal law. Qualified immunity is a doctrine that focuses on the actual,
        on the specific, on the details of concrete cases.... The line is not to be found in abstractions
        ... but in studying how these abstractions have been applied in concrete circumstances.

(internal quotations and citations omitted). Because "pre-existing law must dictate, that is, truly

compel (not just suggest or allow or raise a question about), the conclusion for every like-situated,

reasonable government agent that what the defendant is doing violates federal law in the

circumstances," 

id. at 1150

 (emphasis in the original), only plainly incompetent or lawless

government officials will not be protected by qualified immunity.

        In the face of the applicable standard, Harbert argues the law clearly established that a

constitutionally protected property interest in receiving timely payment for work performed existed,

and that one may not be deprived of such a property interest without due process of law. Assuming

that is correct, Harbert's argument still fails to carry the day. Harbert has set forth a general principle

of law, but we have held time and again that clearly established general principles of law will

                                                    23
seldom if ever suffice to strip a defendant of qualified immunity. See, e.g., Dolihite v. Maughon By

and Through Videon, 

74 F.3d 1027

, 1040-41 (11th Cir.) ("A plaintiff must establish more than broad

legal truisms; he or she must demonstrate that the law fixed the contours of the right so clearly that

a reasonable official would have understood his acts were unlawful."), cert. denied, --- U.S. ----, 

117

S.Ct. 185

, 

136 L.Ed.2d 123

 (1996); D'Aguanno v. Gallagher, 

50 F.3d 877

, 880 (11th Cir.1995) ("To

overcome the qualified immunity defense, citing precedent which establishes a general right will not

do."); Lassiter, 

28 F.3d at 1150

.

       In order to defeat the qualified immunity defense, it was incumbent upon Harbert to

demonstrate the law was clearly established that what these defendants did, in this case, violated

federal law. See Anderson v. Creighton, 

483 U.S. 635

, 640, 

107 S.Ct. 3034

, 3039, 

97 L.Ed.2d 523


(1987) ("The contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.") (emphasis added). Because Harbert has

pointed to no factually analogous case which establishes that the defendants' conduct was a

deprivation of property without due process of law, it has failed to discharge its burden. See

D'Aguanno, 50 F.3d at 880 ("Because those cases plaintiffs cite do not dictate and compel the

conclusion that defendants' acts violated plaintiffs' rights to peaceable assembly and freedom of

association, and because plaintiffs have failed to cite other authority which dictates that conclusion,

plaintiffs have failed to show defendants violated clearly established federal law of which a

reasonable officer would have known.").

       Harbert argues that requiring it to produce a factually analogous case to demonstrate that the

defendants' conduct was unconstitutional ignores the Supreme Court's decision in United States v.

Lanier, 

520 U.S. 259

, 

117 S.Ct. 1219

, 

137 L.Ed.2d 432

 (1997). We rejected that argument in


                                                  24
Jenkins by Hall v. Talladega City Board of Education, 

115 F.3d 821

 (11th Cir.), cert. denied, ---

U.S. ----, 

118 S.Ct. 412

, 

139 L.Ed.2d 315

 (1997), where we explained:

        We do not believe [that requiring the plaintiff to use pre-existing factually analogous
        decisions to demonstrate that the law is clearly established is] contrary to the spirit of
        [Lanier ]; indeed, although general principles of law can provide fair warning, they do not
        necessarily provide such warning unless the constitutional rule at issue may be applied "with
        obvious clarity."

Id.

 at 825-26 n. 3. As was the case in Jenkins, this is not a situation where a clearly established legal

principle applies with such "obvious clarity" that a reasonable government official in the defendants'

position would have known that their actions were unlawful.

        The defendants did not simply refuse to pay Harbert for its work on the bridge. They

received Harbert's claim and subjected it to various claims review processes. Harbert alleges that

those processes have neither been conducted properly nor completed in a timely manner, but that

is not the issue before us. The issue is whether, in light of the general legal principle that it is

unlawful to deprive an entity of a property interest without due process of law, it should have been

obvious to the defendants that their handling of Harbert's claim violated Harbert's due process

rights—obvious to the extent that no reasonable official in their position could have thought

otherwise. We cannot say that it should have been. Therefore, Harbert has failed to meet its burden

of demonstrating that the defendants' conduct violated clearly established law.

        Harbert's final argument is that under Davis v. Scherer, 

468 U.S. 183

, 

104 S.Ct. 3012

, 

82

L.Ed.2d 139

 (1984), the defendants have forfeited their qualified immunity because their conduct

allegedly violated clearly established state laws and administrative rules. In Davis, the plaintiff

argued that defendants who fail to comply with a clear state regulation forfeit their qualified

immunity. The Court held that "[o]fficials sued for constitutional violations do not lose their


                                                   25
qualified immunity merely because their conduct violates some statutory or administrative

provision." 

Id. at 194

, 104 S.Ct. at 3019 (footnote omitted). In reaching that holding, however, the

Court noted that the regulation allegedly violated by the defendants was not one which "is itself

actionable under § 1983 or bears upon the claim of constitutional right that [plaintiff] asserts under

§ 1983." Id. at 193, 104 S.Ct. at 3018. The Court went on to state: "Neither federal nor state

officials lose their immunity by violating the clear command of a statute or regulation—of federal

or of state law—unless that statute or regulation provides the basis for the cause of action sued

upon." Id. at 194 n. 12, 104 S.Ct. at 3019 n. 12 (emphasis added).

       At least two courts have interpreted Davis to mean that when faced with a procedural due

process claim, a defendant who violates a clearly established state statute or regulation creating a

property interest cannot claim to be protected by qualified immunity. See Carlo v. City of Chino,

105 F.3d 493

, 501-02 (9th Cir.1997), cert. denied, --- U.S. ----, 

118 S.Ct. 1336

, 

140 L.Ed.2d 496


(1998); Spruytte v. Walters, 

753 F.2d 498

, 511 (6th Cir.1985). We do not read Davis as creating

such a per se rule. As the Supreme Court explained in Elder v. Holloway, 

510 U.S. 510

, 515, 

114

S.Ct. 1019

, 1023, 

127 L.Ed.2d 344

 (1994), Davis merely held that "qualified immunity [is] defeated

[only] where a defendant violates ... [a] clearly established ... federal right on which the claim for

relief is based[.]" While state law may have created Harbert's constitutionally protected property

interest, the federal right upon which the claim for relief is based is the right to due process. The

holding in Davis did not obviate Harbert's burden of demonstrating it was clearly established that

the defendants' conduct in this case violated that federal right. See Anderson, 

483 U.S. at 640

, 

107

S.Ct. at 3039

. Because Harbert did not discharge that burden, the defendants are entitled to qualified

immunity.


                                                 26
                              V. CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.




                                      27