text:
Petitioner, convicted of murder, unsuccessfully petitioned for state habeas corpus on the basis of respondent prosecuting attorney's revelation of newly discovered evidence, and charged that respondent had knowingly used false testimony and suppressed material evidence at petitioner's trial. Petitioner thereafter filed a federal habeas corpus petition based on the same allegations, and ultimately obtained his release. He then brought an action against respondent and others under 42 U.S.C. 1983, seeking damages for loss of liberty allegedly caused by unlawful prosecution, but the District Court held that respondent was immune from liability under 1983, and the Court of Appeals affirmed. Held: A state prosecuting attorney who, as here, acted within the scope of his duties in initiating and pursuing a criminal prosecution and in presenting the State's case, is absolutely immune from a civil suit for damages under 1983 for alleged deprivations of the accused's constitutional rights. Pp. 417-431.
(a) Section 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them. Tenney v. Brandhove, 341 U.S. 367 . Pp. 417-419.
(b) The same considerations of public policy that underlie the common-law rule of absolute immunity of a prosecutor from a suit for malicious prosecution likewise dictate absolute immunity under 1983. Although such immunity leaves the genuinely wronged criminal defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty, the alternative of qualifying a prosecutor's immunity would disserve the broader public interest in that it would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system and would often prejudice criminal defendants by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice. Pp. 420-428.
POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, in which BRENNAN and MARSHALL, JJ., joined, post, p. 432. STEVENS, J., took no part in the consideration or decision of the case.
Roger S. Hanson argued the cause and filed a brief for petitioner.
John P. Farrell argued the cause for respondent. With him on the brief was John H. Larson.
[ Footnote * ] Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, and Russell Iungerich and Edward T. Fogel, Jr., Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging affirmance.
Joseph P. Busch and Patrick F. Healy filed a brief for the National District Attorneys Association as amicus curiae.
The question presented in this case is whether a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution is amenable to suit under 42 U.S.C. 1983 for alleged deprivations of the defendant's constitutional rights. The Court of Appeals for the Ninth Circuit held that he is not. 500 F.2d 1301. We affirm.
The events which culminated in this suit span many years and several judicial proceedings. They began in [424 U.S. 409, 411] January 1961, when two men attempted to rob a Los Angeles market run by Morris Hasson. One shot and fatally wounded Hasson, and the two fled in different directions. Ten days later Leonard Lingo was killed while attempting a robbery in Pomona, Cal., but his two accomplices escaped. Paul Imbler, petitioner in this case, turned himself in the next day as one of those accomplices. Subsequent investigation led the Los Angeles District Attorney to believe that Imbler and Lingo had perpetrated the first crime as well, and that Imbler had killed Hasson. Imbler was charged with first-degree felony murder for Hasson's death.
Imbler's defense was an alibi. He claimed to have spent the night of the Hasson killing bar-hopping with several persons, and to have met Lingo for the first time the morning before the attempted robbery in Pomona. This testimony was corroborated by Mayes, the other accomplice in the Pomona robbery, who also claimed to have accompanied Imbler on the earlier rounds of the bars. The jury found Imbler guilty and fixed punishment at death. 4 On appeal the Supreme Court of California affirmed unanimously over numerous contentions of error. People v. Imbler, 57 Cal. 2d 711, 371 P.2d 304 (1962).
Imbler filed a state habeas corpus petition shortly after Pachtman's letter. The Supreme Court of California appointed one of its retired justices as referee to hold a hearing, at which Costello was the main attraction. He recanted his trial identification of Imbler, and it also was established that on cross-examination and re-direct he had painted a picture of his own background that was more flattering than true. Imbler's corroborating witnesses, uncovered by prosecutor Pachtman's investigations, also testified.
In his brief to the Supreme Court of California on this habeas petition, Imbler's counsel described Pachtman's post-trial detective work as "[i]n the highest tradition of law enforcement and justice," and as a premier example of "devotion to duty." 6 But he also charged that the prosecution had knowingly used false testimony and suppressed material evidence at Imbler's trial. 7 In a through opinion by then Justice Traynor, the Supreme Court of California unanimously rejected these contentions and denied the writ. In re Imbler, [424 U.S. 409, 414] 60 Cal. 2d 554, 387 P.2d 6 (1963). The California court noted that the hearing record fully supported the referee's finding that Costello's recantation of his identification lacked credibility compared to the original identification itself, id., at 562, 387 P.2d, at 10-11, and that the new corroborating witnesses who appeared on Imbler's behalf were unsure of their stories or were otherwise impeached, id., at 569-570, 387 P.2d, at 14.
In 1964, the year after denial of his state habeas petition, Imbler succeeded in having his death sentence overturned on grounds unrelated to this case. In re Imbler, 61 Cal. 2d 556, 393 P.2d 687 (1964). Rather than resentence him, the State stipulated to life imprisonment. There the matter lay for several years, until in late 1967 or early 1968 Imbler filed a habeas corpus petition in Federal District Court based on the same contentions previously urged upon and rejected by the Supreme Court of California.
The District Court held no hearing. Instead, it decided the petition upon the record, including Pachtman's letter to the Governor and the transcript of the referee's hearing ordered by the Supreme Court of California. Reading that record quite differently than had the seven justices of the State Supreme Court, the District Court found eight instances of state misconduct at Imbler's trial, the cumulative effect of which required issuance of the writ. Imbler v. Craven, 298 F. Supp. 795, 812 (CD Cal. 1969). Six occurred during Costello's testimony and amounted in the court's view to the culpable use by the prosecution of misleading or false testimony. 8 The other two instances were suppressions of [424 U.S. 409, 415] evidence favorable to Imbler by a police fingerprint expert who testified at trial and by the police who investigated Hasson's murder. 9 The District Court ordered that the writ of habeas corpus issue unless California retried Imbler within 60 days, and denied a petition for rehearing.
The State appealed to the Court of Appeals for the Ninth Circuit, claiming that the District Court had failed to give appropriate deference to the factual determinations of the Supreme Court of California as required by 28 U.S.C. 2254 (d). The Court of Appeals affirmed, finding that the District Court had merely "reached different conclusions than the state court in applying federal constitutional standards to [the] facts," Imbler v. California, 424 F.2d 631, 632, and certiorari was denied, 400 U.S. 865 (1970). California chose not to retry Imbler, and he was released.
At this point, after a decade of litigation and with Imbler now free, the stage was set for the present suit. In April 1972, Imbler filed a civil rights action, under 42 U.S.C. 1983 and related statutes, against respondent Pachtman, the police fingerprint expert, and various other officers of the Los Angeles police force. He alleged [424 U.S. 409, 416] that a conspiracy among them unlawfully to charge and convict him had caused him loss of liberty and other grievous injury. He demanded $2.7 million in actual and exemplary damages from each defendant, plus $15,000 attorney's fees.
Pachtman moved under Fed. Rule Civ. Proc. 12 (b) (6) to have the complaint dismissed as to him. The District Court, noting that public prosecutors repeatedly had been held immune from civil liability for "acts done as part of their traditional official functions," found that Pachtman's alleged acts fell into that category and granted his motion. Following the entry of final judgment as to Pachtman under Fed. Rule Civ. Proc. 54 (b), Imbler appealed to the Court of Appeals for the Ninth Circuit. That court, one judge dissenting, affirmed the District Court in an opinion finding Pachtman's alleged acts to have been committed "during prosecutorial activities which can only be characterized as an `integral part of the judicial process,'" 500 F.2d, at 1302, quoting [424 U.S. 409, 417] Marlowe v. Coakley, 404 F.2d 70 (CA9 1968). We granted certiorari to consider the important and recurring issue of prosecutorial liability under the Civil Rights Act of 1871. 420 U.S. 945 (1975).
Title 42 U.S.C. 1983 provides that "[e]very person" who acts under color of state law to deprive another of a constitutional right shall be answerable to that person in a suit for damages. 10 The statute thus creates a species of tort liability that on its face admits of no immunities, and some have argued that it should be applied as stringently as it reads. 11 But that view has not prevailed.
This Court first considered the implications of the statute's literal sweep in Tenney v. Brandhove, 341 U.S. 367 (1951). There it was claimed that members of a state legislative committee had called the plaintiff to appear before them, not for a proper legislative purpose, but to intimidate him into silence on certain matters of public concern, and thereby had deprived him of his constitutional rights. Because legislators in both England and this country had enjoyed absolute immunity for their official actions, Tenney squarely presented the issue of whether the Reconstruction Congress had intended to [424 U.S. 409, 418] restrict the availability in 1983 suits of those immunities which historically, and for reasons of public policy, had been accorded to various categories of officials. The Court concluded that immunities "well grounded in history and reason" had not been abrogated "by covert inclusion in the general language" of 1983. 341 U.S., at 376 . Regardless of any unworthy purpose animating their actions, legislators were held to enjoy under this statute their usual immunity when acting "in a field where legislators traditionally have power to act." Id., at 379.
This case marks our first opportunity to address the 1983 liability of a state prosecuting officer. The Courts of Appeals, however, have confronted the issue many times and under varying circumstances. Although the precise contours of their holdings have been unclear at times, at bottom they are virtually unanimous that a prosecutor enjoys absolute immunity from 1983 suits for damages when he acts within the scope of his prosecutorial duties. 16 These courts sometimes have described the prosecutor's immunity as a form of "quasi-judicial" immunity and referred to it as derivative of the immunity of judges recognized in Pierson v. Ray, supra. 17 Petitioner focuses upon the "quasi-judicial" characterization, and contends that it illustrates a fundamental illogic in according absolute immunity to a prosecutor. He argues that the prosecutor, as a member of the executive branch, cannot claim the immunity reserved for the judiciary, but only a qualified immunity [424 U.S. 409, 421] akin to that accorded other executive officials in this Court's previous cases.
Petitioner takes an overly simplistic approach to the issue of prosecutorial liability. As noted above, our earlier decisions on 1983 immunities were not products of judicial fiat that officials in different branches of government are differently amenable to suit under 1983. Rather, each was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it. The liability of a state prosecutor under 1983 must be determined in the same manner.
After briefing and oral argument, this Court affirmed the Court of Appeals in a per curiam opinion. Yaselli v. Goff, 275 U.S. 503 (1927).
"The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. [424 U.S. 409, 424] There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case. . . . The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded and we would have moved away from the desired objective of stricter and fairer law enforcement." Pearson v. Reed, 6 Cal. App. 2d 277, 287, 44 P.2d 592, 597 (1935).
The common-law rule of immunity is thus well settled. 21 We now must determine whether the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under 1983. We think they do.
If a prosecutor had only a qualified immunity, the threat of 1983 suits would undermine performance of his duties no less than would the threat of common-law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a [424 U.S. 409, 425] suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate. Cf. Bradley v. Fisher, 13 Wall., at 348; Pierson v. Ray, 386 U.S., at 554 . Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.
Moreover, suits that survived the pleadings would pose substantial danger of liability even to the honest prosecutor. The prosecutor's possible knowledge of a witness' falsehoods, the materiality of evidence not revealed to the defense, the propriety of a closing argument, and - ultimately in every case - the likelihood that prosecutorial misconduct so infected a trial as to deny due process, are typical of issues with which judges struggle in actions for post-trial relief, sometimes to differing conclusions. 22 The presentation of such issues in a 1983 action often would require a virtual retrial of the criminal offense in a new forum, and the resolution of some technical issues by the lay jury. It is fair to say, we think, that the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials. Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique [424 U.S. 409, 426] and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials. Cf. Bradley v. Fisher, supra, at 349.
"As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation." Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949), cert. denied, 339 U.S. 949 (1950).
[ Footnote 1 ] This shot formed the basis of a second count against Imbler for assault, which was tried with the murder count.
[ Footnote 2 ] This coat, identified by Mrs. Hasson as that worn by her husband's assailant, yielded a gun determined by ballistics evidence to be the murder weapon.
[ Footnote 3 ] A fourth man who saw Hasson's killer leaving the scene identified Imbler in a pretrial lineup, but police were unable to find him at the time of trial.
[ Footnote 4 ] Imbler also received a 10-year prison term on the assault charge. See n. 1, supra.
[ Footnote 5 ] Brief for Respondent, App. A, p. 6. The record does not indicate what specific action was taken in response to Pachtman's letter. We do note that the letter was dated August 17, 1962, and that Imbler's execution, scheduled for September 12, 1962, subsequently was stayed. The letter became a part of the permanent record in the case available to the courts in all subsequent litigation.
[ Footnote 6 ] Brief for Respondent 5.
[ Footnote 7 ] See generally Napue v. Illinois, 360 U.S. 264 (1959); Brady v. Maryland, 373 U.S. 83 (1963).
[ Footnote 8 ] The District Court found that Costello had given certain ambiguous or misleading testimony, and had lied flatly about his criminal record, his education, and his current income. As to the misleading testimony, the court found that either Pachtman or a [424 U.S. 409, 415] police officer present in the courtroom knew it was misleading. As to the false testimony, the District Court concluded that Pachtman had "cause to suspect" its falsity although, apparently, no actual knowledge thereof. See 298 F. Supp., at 799-807. The Supreme Court of California earlier had addressed and rejected allegations based on many of the same parts of Costello's testimony. It found either an absence of falsehood or an absence of prosecutorial knowledge in each instance. See In re Imbler, 60 Cal. 2d 554, 562-565, and n. 3, 387 P.2d 6, 10-12, and n. 3 (1963).
[ Footnote 9 ] See 298 F. Supp., at 809-811. The Supreme Court of California earlier had rejected similar allegations. See In re Imbler, supra, at 566-568, 387 P.2d, at 12-13.
[ Footnote 11 ] See, e. g., Pierson v. Ray, 386 U.S. 547, 559 (1967) (Douglas, J., dissenting); Tenney v. Brandhove, 341 U.S. 367, 382 -383 (1951) (Douglas, J., dissenting).
"Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it `is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.'" 386 U.S., at 553 -554 (citation omitted).
[ Footnote 13 ] The procedural difference between the absolute and the qualified immunities is important. An absolute immunity defeats a suit at the outset, so long as the official's actions were within the scope of the immunity. The fate of an official with qualified immunity depends upon the circumstances and motivations of his actions, as established by the evidence at trial. See Scheuer v. Rhodes, 416 U.S. 232, 238 -239 (1974); Wood v. Strickland, 420 U.S. 308, 320 -322 (1975).
"It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." 416 U.S., at 247 -248.
[ Footnote 15 ] In Tenney v. Brandhove, of course, the Court looked to the [424 U.S. 409, 420] immunity accorded legislators by the Federal and State Constitutions, as well as that developed by the common law. 341 U.S., at 372 -375. See generally Doe v. McMillan, 412 U.S. 306 (1973).
[ Footnote 16 ] Fanale v. Sheehy, 385 F.2d 866, 868 (CA2 1967); Bauers v. Heisel, 361 F.2d 581 (CA3 1966), cert. denied, 386 U.S. 1021 (1967); Carmack v. Gibson, 363 F.2d 862, 864 (CA5 1966); Tyler v. Witkowski, 511 F.2d 449, 450-451 (CA7 1975); Barnes v. Dorsey, 480 F.2d 1057, 1060 (CA8 1973); Kostal v. Stoner, 292 F.2d 492, 493 (CA10 1961), cert. denied, 369 U.S. 868 (1962); cf. Guerro v. Mulhearn, 498 F.2d 1249, 1255-1256 (CA1 1974); Weathers v. Ebert, 505 F.2d 514, 515-516 (CA4 1974). But compare Hurlburt v. Graham, 323 F.2d 723 (CA6 1963), with Hilliard v. Williams, 465 F.2d 1212 (CA6), cert. denied, 409 U.S. 1029 (1972). See Part IV, infra.
[ Footnote 17 ] E. g., Tyler v. Witkowski, supra, at 450; Kostal v. Stoner, supra, at 493; Hampton v. City of Chicago, 484 F.2d 602, 608 (CA7 1973), cert. denied, 415 U.S. 917 (1974). See n. 20, infra.
[ Footnote 18 ] The Supreme Court of Indiana in Griffith cited an earlier Massachusetts decision, apparently as authority for its own holding. But that case, Parker v. Huntington, 68 Mass. 124 (1854), involved the elements of a malicious prosecution cause of action rather than the immunity of a prosecutor. See also Note, 73 U. Pa. L. Rev. 300, 304 (1925).
[ Footnote 19 ] Smith v. Parman, 101 Kan. 115, 165 P. 663 (1917); Semmes v. Collins, 120 Miss. 265, 82 So. 145 (1919); Kittler v. Kelsch, 56 N. D. 227, 216 N. W. 898 (1927); Watts v. Gerking, 111 Ore. 654, 228 P. 135 (1924) (on rehearing). Contra, Leong You v. Carden, 23 Haw. 362 (1916).
[ Footnote 20 ] The immunity of a judge for acts within his jurisdiction has roots extending to the earliest days of the common law. See Floyd v. Barker, 12 Coke 23, 77 Eng. Rep. 1305 (1608). Chancellor Kent traced some of its history in Yates v. Lansing, 5 Johns. 282 (N. Y. 1810), and this Court accepted the rule of judicial immunity in Bradley v. Fisher, 13 Wall. 335 (1872). See n. 12, supra. The immunity of grand jurors, an almost equally venerable common-law tenet, see Floyd v. Barker, supra, also has been adopted in this country. See, e. g., Turpen v. Booth, 56 Cal. 65 (1880); Hunter v. Mathis, 40 Ind. 356 (1872). Courts that have extended the same immunity to the prosecutor have sometimes remarked on the fact that all three officials - judge, grand juror, and prosecutor - exercise a discretionary judgment on the basis of evidence presented to them. Smith v. Parman, supra; Watts v. Gerking, supra. It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as "quasi-judicial" officers, and their immunities being termed "quasi-judicial" as well. See, e. g., Turpen v. Booth, supra, at 69; Watts v. Gerking, supra, at 661, 228 P., at 138.
[ Footnote 21 ] See, e. g., Gregoire v. Biddle, 177 F.2d 579 (CA2 1949), cert. denied, 339 U.S. 949 (1950); Cooper v. O'Connor, 69 App. D.C. 100, 99 F.2d 135, 140-141 (1938); Anderson v. Rohrer, 3 F. Supp. 367 (SD Fla. 1933); Pearson v. Reed, 6 Cal. App. 2d 277, 44 P.2d 592 (1935); Anderson v. Manley, 181 Wash. 327, 43 P.2d 39 (1935). See generally Restatement of Torts 656 and comment b (1938); 1 F. Harper & F. James, The Law of Torts 4.3, pp. 305-306 (1956).
[ Footnote 22 ] This is illustrated by the history of the disagreement as to the culpability of the prosecutor's conduct in this case. We express no opinion as to which of the courts was correct. See nn. 8 and 9, supra.
"Subject to this restriction [of relevancy], it is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech, in conducting the causes and advocating and sustaining the rights, of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions." Id., at 197-198.
[ Footnote 24 ] A prosecutor often must decide, especially in cases of wide public interest, whether to proceed to trial where there is a sharp conflict in the evidence. The appropriate course of action in such a case may well be to permit a jury to resolve the conflict. Yet, a prosecutor understandably would be reluctant to go forward with a close case where an acquittal likely would trigger a suit against him for damages. Cf. American Bar Association Project on Standards [424 U.S. 409, 427] for Criminal Justice, Prosecution and Defense Function 3.9 (c) (Approved Draft 1971).
[ Footnote 25 ] The possibility of personal liability also could dampen the prosecutor's exercise of his duty to bring to the attention of the court or of proper officials all significant evidence suggestive of innocence or mitigation. At trial this duty is enforced by the requirements of due process, but after a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction. Cf. ABA Code of Professional Responsibility EC 7-13 (1969); ABA, Standards, supra, 3.11. Indeed, the record in this case suggests that respondent's recognition of this duty led to the post-conviction hearing which in turn resulted ultimately in the District Court's granting of the writ of habeas corpus.
"Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation." Pierson v. Ray, 386 U.S., at 554 .
[ Footnote 27 ] Petitioner contends that his suit should be allowed, even if others would not be, because the District Court's issuance of the writ of habeas corpus shows that his suit has substance. We decline to carve out such an exception to prosecutorial immunity. Petitioner's success on habeas, where the question was the alleged misconduct by several state agents, does not necessarily establish the merit of his civil rights action where only the respondent's alleged wrongdoing is at issue. Certainly nothing determined on habeas would bind respondent, who was not a party. Moreover, using the habeas proceeding as a "door-opener" for a subsequent civil rights action would create the risk of injecting extraneous concerns into that proceeding. As we noted in the text, consideration of the habeas petition could well be colored by an awareness of potential prosecutorial liability.
[ Footnote 28 ] "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life."
[ Footnote 29 ] California also appears to provide for criminal punishment of a prosecutor who commits some of the acts ascribed to respondent by petitioner. Cal. Penal Code 127 (1970); cf. In re Branch, 70 Cal. 2d 200, 210-211, 449 P.2d 174, 181 (1969).
[ Footnote 30 ] See ABA Code of Professional Responsibility EC 7-13. See generally ABA, Standards, supra, n. 24, 1.1 (c), (e), and Commentary, pp. 44-45.
[ Footnote 31 ] Guerro v. Mulhearn, 498 F.2d, at 1256; Hampton v. City of Chicago, 484 F.2d, at 608-609; Robichaud v. Ronan, 351 F.2d 533, 537 (CA9 1965); cf. Madison v. Purdy, 410 F.2d 99 (CA5 1969); Lewis v. Brautigam, 227 F.2d 124 (CA5 1955). But cf. Cambist Films, Inc. v. Duggan, 475 F.2d 887, 889 (CA3 1973).
[ Footnote 32 ] Both in his complaint in District Court and in his argument to us, petitioner characterizes some of respondent's actions as "police-related" or investigative. Specifically, he points to a request by respondent of the police during a courtroom recess that they hold off questioning Costello about a pending bad-check charge until after Costello had completed his testimony. Petitioner asserts that this request was an investigative activity because it was a direction to police officers engaged in the investigation of crime. Seen in its proper light, however, respondent's request of the officers was an effort to control the presentation of his witness' testimony, a task fairly within his function as an advocate.
[ Footnote 33 ] We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.
[ Footnote 34 ] MR. JUSTICE WHITE, concurring in the judgment, would distinguish between willful use by a prosecutor of perjured testimony and willful suppression by a prosecutor of exculpatory information. In the former case, MR. JUSTICE WHITE agrees that absolute immunity is appropriate. He thinks, however, that only a qualified immunity is appropriate where information relevant to the defense is "unconstitutionally withheld . . . from the court." Post, at 443.
We further think MR. JUSTICE WHITE'S suggestion, post, at 440 n. 5, that absolute immunity should be accorded only when the prosecutor makes a "full disclosure" of all facts casting doubt upon the State's testimony, would place upon the prosecutor a duty exceeding the disclosure requirements of Brady and its progeny, see 373 U.S., at 87 ; Moore v. Illinois, 408 U.S. 786, 795 (1972); cf. Donnelly v. DeChristoforo, 416 U.S. 637, 647 -648 (1974). It also would weaken the adversary system at the same time it interfered seriously with the legitimate exercise of prosecutorial discretion.
I concur in the judgment of the Court and in much of its reasoning. I agree with the Court that the gravamen of the complaint in this case is that the prosecutor knowingly used perjured testimony; and that a prosecutor is absolutely immune from suit for money damages under 42 U.S.C. 1983 for presentation of testimony later determined to have been false, where the presentation of such testimony is alleged to have been unconstitutional solely because the prosecutor did not believe it or should not have believed it to be true. I write, however, because I believe that the Court's opinion may be read as [424 U.S. 409, 433] extending to a prosecutor an immunity broader than that to which he was entitled at common law; broader than is necessary to decide this case; and broader than is necessary to protect the judicial process. Most seriously, I disagree with any implication that absolute immunity for prosecutors extends to suits based on claims of unconstitutional suppression of evidence because I believe such a rule would threaten to injure the judicial process and to interfere with Congress' purpose in enacting 42 U.S.C. 1983, without any support in statutory language or history.
"For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence [424 U.S. 409, 436] without which no judiciary can be either respectable or useful. . . ."
See also cases discussed in Yaselli v. Goff, 12 F.2d 396, 399-401 (CA2 1926), summarily aff'd, 275 U.S. 503 (1927).
The majority articulates other adverse consequences which may result from permitting suits to be maintained against public officials. Such suits may expose the official to an unjust damage award, ante, at 425; such suits will be expensive to defend even if the official prevails and will take the official's time away from his job, ante, at 425; and the liability of a prosecutor for unconstitutional behavior might induce a federal court in a habeas corpus proceeding to deny a valid constitutional claim in order to protect the prosecutor, ante, at 427. However, these adverse consequences are present with respect to suits against policemen, school teachers, and other executives, and have never before been thought sufficient to immunize an official absolutely no matter how outrageous his conduct. Indeed, these reasons are present with respect to suits against all state officials 3 and must necessarily have been rejected by Congress as a basis for absolute immunity under 42 U.S.C. 1983, for its enactment [424 U.S. 409, 437] is a clear indication that at least some officials should be accountable in damages for their official acts. Thus, unless the threat of suit is also thought to injure the governmental decisionmaking process, the other unfortunate consequences flowing from damage suits against state officials are sufficient only to extend a qualified immunity to the official in question. Accordingly, the question whether a prosecutor enjoys an absolute immunity from damage suits under 1983, or only a qualified immunity, depends upon whether the common law and reason support the proposition that extending absolute immunity is necessary to protect the judicial process.
Public prosecutors were also absolutely immune at common law from suits for defamatory remarks made during and relevant to a judicial proceeding, 1 Harper & James 5.21, 5.22; Yaselli v. Goff, 12 F.2d, at 402-403; and this immunity was also based on the policy of protecting the judicial process. Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Col. L. Rev. 463 (1909). The immunity was not special to public prosecutors but extended to lawyers accused of making false and defamatory statements, or of eliciting false and defamatory testimony from witnesses; and it applied to suits against witnesses themselves for delivering false and defamatory testimony. 1 Harper & James 5.22, pp. 423-424, and cases there cited; King v. Skinner, Lofft 55, 98 Eng. Rep. 529, 530 (K. B. 1772) (per Lord Mansfield); Yaselli v. Goff, 12 F.2d, at 403. The reasons for this rule are also substantial. It is precisely the function of a judicial proceeding to determine where the truth lies. The ability of courts, under carefully developed procedures, to separate truth from falsity, and the importance of accurately resolving factual disputes in criminal (and civil) cases are such that those involved in judicial proceedings should be "given every encouragement to make a full disclosure of all pertinent information within their knowledge." 1 Harper & James 5.22, p. 424. For a witness, this means he must be permitted to testify without fear of being sued if his testimony is disbelieved. For a lawyer, it means that he must be permitted to call witnesses without fear of being sued if the witness is disbelieved and it is alleged that the lawyer knew or should have known that the witness' testimony was false. Of course, witnesses should not be encouraged to testify falsely nor lawyers encouraged to call witnesses who testify falsely. However, if the risk of having to defend a civil damage suit is added to the deterrent against such [424 U.S. 409, 440] conduct already provided by criminal laws against perjury and subornation of perjury, the risk of self-censorship becomes too great. This is particularly so because it is very difficult if not impossible for attorneys to be absolutely certain of the objective truth or falsity of the testimony which they present. A prosecutor faced with a decision whether or not to call a witness whom he believes, but whose credibility he knows will be in doubt and whose testimony may be disbelieved by the jury, should be given every incentive to submit that witness' testimony to the crucible of the judicial process so that the fact finder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies.
"Absolute privilege has been conceded on obvious grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist. It is essential to the ends of justice that all persons participating in judicial proceedings (to take a typical class for illustration) should enjoy freedom of speech in the discharge of their public duties or in pursuing their rights, without fear of consequences." Veeder, supra, 9 Col. L. Rev., at 469.
Since the gravamen of the complaint in this case is that the prosecutor knew or should have known that certain testimony of a witness called by him was untrue and since - for reasons set forth below - the other allegations in the complaint fail to state a cause of action on any other theory, I concur in the judgment in this case. However, insofar as the majority's opinion implies an absolute immunity from suits for constitutional violations other than those based on the prosecutor's decision to initiate proceedings or his actions in bringing information or argument to the court, I disagree. Most particularly I disagree with any implication that the absolute immunity extends to suits charging unconstitutional suppression of evidence. Brady v. Maryland, 373 U.S. 83 (1963).
There was no absolute immunity at common law for prosecutors other than absolute immunity from suits for malicious prosecution and defamation. There were simply no other causes of action at common law brought against prosecutors for conduct committed in their official capacity. 6 There is, for example, no reported case of a suit at common law against a prosecutor for suppression or nondisclosure of exculpatory evidence. Thus, even if this Court had accepted the proposition, which [424 U.S. 409, 442] it has not, Scheuer v. Rhodes, 416 U.S. 232 (1974), that Congress incorporated in 42 U.S.C. 1983 all immunities existing at common law, it would not follow that prosecutors are absolutely immune from suit for all unconstitutional acts committed in the course of doing their jobs. Secondly, it is by no means true that such blanket absolute immunity is necessary or even helpful in protecting the judicial process. It should hardly need stating that, ordinarily, liability in damages for unconstitutional or otherwise illegal conduct has the very desirable effect of deterring such conduct. Indeed, this was precisely the proposition upon which 1983 was enacted. Absent special circumstances, such as those discussed in Part II, supra, with respect to actions attacking the decision to prosecute or the bringing of evidence or argument to the court, one would expect that the judicial process would be protected - and indeed its integrity enhanced - by denial of immunity to prosecutors who engage in unconstitutional conduct.
The absolute immunity extended to prosecutors in defamation cases is designed to encourage them to bring information to the court which will resolve the criminal case. That is its single justification. Lest they withhold valuable but questionable evidence or refrain from making valuable but questionable arguments, prosecutors are protected from liability for submitting before the court information later determined to have been false to their knowledge. 7 It would stand this immunity rule on its head, however, to apply it to a suit based on a claim that [424 U.S. 409, 443] the prosecutor unconstitutionally withheld information from the court. Immunity from a suit based upon a claim that the prosecutor suppressed or withheld evidence would discourage precisely the disclosure of evidence sought to be encouraged by the rule granting prosecutors immunity from defamation suits. Denial of immunity for unconstitutional withholding of evidence would encourage such disclosure. A prosecutor seeking to protect himself from liability for failure to disclose evidence may be induced to disclose more than is required. But, this will hardly injure the judicial process. 8 Indeed, it will help it. Accordingly, lower courts have held that unconstitutional suppression of exculpatory evidence is beyond the scope of "duties constituting an integral part of the judicial process" and have refused to extend absolute immunity to suits based on such claims. Hilliard v. Williams, 465 F.2d 1212, 1218 (CA6), cert. denied, 409 U.S. 1029 (1972); Haaf v. Grams, 355 F. Supp. 542, 545 (Minn. 1973); Peterson v. Stanczak, 48 F. R. D. 426 (ND Ill. 1969). Contra, Barnes v. Dorsey, 480 F.2d 1057 (CA8 1973).
Equally important, unlike constitutional violations committed in the courtroom - improper summations, introduction of hearsay evidence in violation of the Confrontation Clause, knowing presentation of false testimony - which truly are an "integral part of the judicial process," ante, at 416, the judicial process has no way to prevent or correct the constitutional violation of suppressing evidence. The judicial process will by definition be ignorant of the violation when it occurs; and it is [424 U.S. 409, 444] reasonable to suspect that most such violations never surface. It is all the more important, then, to deter such violations by permitting damage actions under 42 U.S.C. 1983 to be maintained in instances where violations do surface.
The stakes are high. In Hilliard v. Williams, supra, a woman was convicted of second-degree murder upon entirely circumstantial evidence. The most incriminating item of evidence was the fact that the jacket worn by the defendant at the time of arrest - and some curtains - appeared to have bloodstains on them. The defendant denied that the stains were bloodstains but was convicted and subsequently spent a year in jail. Fortunately, in that case, the defendant later found out that an FBI report - of which the prosecutor had knowledge at the time of the trial and the existence of which he instructed a state investigator not to mention during his testimony - concluded, after testing, that the stains were not bloodstains. On retrial, the defendant was acquitted. She sued the prosecutor and the state investigator under 42 U.S.C. 1983 claiming that the FBI report was unconstitutionally withheld under Brady v. Maryland, 373 U.S. 83 (1963), and obtained a damage award against both after trial. The prosecutor's petition for certiorari is now pending before this Court. Hilliard v. Williams, 516 F.2d 1344 (CA6 1975), cert. pending, No. 75-272. The state investigator's petition, in which he claimed that he had only followed the prosecutor's orders, has been denied. Clark v. Hilliard, 423 U.S. 1066 (1976). It is apparent that the injury to a defendant which can be caused by an unconstitutional suppression of exculpatory evidence is substantial, particularly if the evidence is never uncovered. It is virtually impossible to identify any injury to the judicial process resulting from a rule permitting suits for such unconstitutional [424 U.S. 409, 445] conduct, and it is very easy to identify an injury to the process resulting from a rule which does not permit such suits. Where the reason for the rule extending absolute immunity to prosecutors disappears, it would truly be "monstrous to deny recovery." Gregoire v. Biddle, 177 F.2d, at 581.
The complaint in this case, while fundamentally based on the claim that the prosecutor knew or should have known that his witness had testified falsely in certain respects, does contain some allegations that exculpatory evidence and evidence relating to the witness' credibility had been suppressed. Insofar as the complaint is based on allegations of suppression or failure to disclose, the prosecutor should not, for the reasons set forth above, be absolutely immune. However, as the majority notes, the suppression of fingerprint evidence and the alleged suppression of information relating to certain pretrial lineups is not alleged to have been known in fact to the prosecutor - it is simply claimed that the suppression is legally chargeable to him. While this may be so as a matter of federal habeas corpus law, it is untrue in a civil damage action. The result of a lie-detector test claimed to have been suppressed was allegedly known to respondent, but it would have been inadmissible at Imbler's trial and is thus not constitutionally required to be disclosed. The alteration of the police artist's composite sketch after Imbler was designated as the defendant is not alleged to have been suppressed - and in fact appears not to have been suppressed. The opinion of the California Supreme Court on direct review of Imbler's conviction states that "the picture was modified later, following suggestions of Costello and other witnesses," and that court presumably had before it only the trial record. The other items allegedly suppressed [424 U.S. 409, 446] all relate to background information about only one of the three eyewitnesses to testify for the State, and were in large part concededly known to the defense and thus may not be accurately described as suppressed. The single alleged fact not concededly known to the defense which might have been helpful to the defense was that the State's witness had written some bad checks for small amounts and that a criminal charge based on one check was outstanding against him. However, the witness had an extensive criminal record which was known to but not fully used by the defense. Thus, even taken as true, the failure to disclose the check charges is patently insufficient to support a claim of unconstitutional suppression of evidence. 9 The Court [424 U.S. 409, 447] has in the past, having due regard for the fact that the obligation of the government to disclose exculpatory evidence is an exception to the normal operation of an adversary system of justice, imposed on state prosecutors a constitutional obligation to turn over such evidence only when the evidence is of far greater significance than that involved here. See Moore v. Illinois, 408 U.S. 786 (1972). Thus, the only constitutional violation adequately alleged against the prosecutor is that he knew in his mind that testimony presented by him was false; and from a suit based on such a violation, without more, the prosecutor is absolutely immune. For this reason, I concur in the judgment reached by the majority in this case.
[ Footnote 1 ] The Court emphasized that the immunity had a lengthy history at common law, and was written into the United States Constitution [424 U.S. 409, 435] in the "Speech or Debate Clause" and into many state constitutions as well. 341 U.S., at 372 -373.
[ Footnote 2 ] The Court concluded that "[f]ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine in Bradley v. Fisher, 13 Wall. 335 (1872)." 386 U.S., at 553 -554.
[ Footnote 3 ] Even the risk that decisions in habeas corpus proceedings will be skewed is applicable in the case of policemen; and if it supplies a sufficient reason to extend absolute immunity to prosecutors, it should have been a sufficient reason to extend such immunity to policemen. Indeed, it is fair to say that far more habeas corpus petitions turn on the constitutionality of action taken by policemen than turn on the constitutionality of action taken by prosecutors. We simply rely on the ability of federal judges correctly to apply the law to the facts with the knowledge that the overturning of a conviction on constitutional grounds hardly dooms the official in question to payment of a damage award in light of the qualified immunity which he possesses, and the inapplicability of the res judicata doctrine, ante, at 428 n. 27.
[ Footnote 4 ] I agree with the majority that it is not sufficient merely to set the standard of proof in a malicious prosecution case very high. If this were done, it might be possible to eliminate the danger of an unjust damage award against a prosecutor. However, the risk of having to defend a suit - even if certain of ultimate vindication - would remain a substantial deterrent to fearless prosecution.
[ Footnote 5 ] For the reasons set forth in Part III, infra, absolute immunity would not apply to independent claims that the prosecutor has withheld facts tending to demonstrate the falsity of his witness' testimony where the alleged facts are sufficiently important to justify a finding of unconstitutional conduct on the part of the prosecutor.
[ Footnote 6 ] Immunity of public officials for false arrest was, unlike immunity of public officials for malicious prosecution, not absolute, 1 Harper & James 3.17 and 3.18; and when prosecutors were sued for that tort, they were not held absolutely immune. Schneider v. Shepherd, 192 Mich. 82, 158 N. W. 182 (1916). A similar result has obtained in the lower courts in suits under 42 U.S.C. 1983 against prosecutors for initiating unconstitutional arrests. Robichaud v. Ronan, 351 F.2d 533 (CA9 1965); Hampton v. Chicago, 484 F.2d 602 (CA7 1973); Wilhelm v. Turner, 431 F.2d 177, 180-183 (CA8 1970) (dictum); Balistrieri v. Warren, 314 F. Supp. 824 (WD Wis. 1970). See also Ames v. Vavreck, 356 F. Supp. 931 (Minn. 1973).
[ Footnote 7 ] The reasons for making a prosecutor absolutely immune from suits for defamation would apply with equal force to other suits based solely upon the prosecutor's conduct in the courtroom designed either to bring facts or arguments to the attention of the court. Thus, a prosecutor would be immune from a suit based on a claim that his summation was unconstitutional or that he deliberately elicited hearsay evidence in violation of the Confrontation Clause.
[ Footnote 8 ] There may be circumstances in which ongoing investigations or even the life of an informant might be jeopardized by public disclosure of information thought possibly to be exculpatory. However, these situations may adequately be dealt with by in camera disclosure to the trial judge. These considerations do not militate against disclosure, but merely affect the manner of disclosure.
[ Footnote 9 ] The majority points out that the knowing use of perjured testimony is as reprehensible as the deliberate suppression of exculpatory evidence. This is beside the point. The reason for permitting suits against prosecutors for suppressing evidence is not that suppression is especially reprehensible but that the only effect on the process of permitting such suits will be a beneficial one - more information will be disclosed to the court; whereas one of the effects of permitting suits for knowing use of perjured testimony will be detrimental to the process - prosecutors may withhold questionable but valuable testimony from the court.
The majority argues that any "claim of using perjured testimony simply may be reframed and asserted as a claim of suppression." Our treatment of the allegations in this case conclusively refutes the argument. It is relatively easy to allege that a government witness testified falsely and that the prosecutor did not believe the witness; and, if the prosecutor's subjective belief is a sufficient basis for liability, the case would almost certainly have to go to trial. If such suits were permitted, this case would have to go to trial. It is another matter entirely to allege specific objective facts known to the prosecutor of sufficient importance to justify a conclusion that he violated a constitutional duty to disclose. It is no coincidence that petitioner failed to make any such allegations in this case. More to the point - and quite apart from the relative difficulty of pleading a violation of Brady v. Maryland, 373 U.S. 83 [424 U.S. 409, 447] (1963) - a rule permitting suits based on withholding of specific facts unlike suits based on the prosecutor's disbelief of a witness' testimony will have no detrimental effect on the process. Risk of being sued for suppression will impel the prosecutor to err if at all on the side of overdisclosure. Risk of being sued for disbelieving a witness will impel the prosecutor to err on the side of withholding questionable evidence. The majority does not appear to respond to this point. Any suggestion that the distinction between suits based on suppression of facts helpful to the defense and suits based on other kinds of constitutional violations cannot be understood by district judges who would have to apply the rule is mystifying. The distinction is a simple one.

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text:
A supplementary protection certificate (SPC) is a patent term extension for a patented drug that has received a marketing authorisation in Europe. The SPC is designed to compensate the patent holder when there is a significant delay between filing the patent and getting the marketing authorisation. As an SPC starts when the patent ends and the product is well known, it can provide substantial financial rewards for its owner.
Boehringer had a patent for Micardis (telmisartan) which treats hypertension. The patent for Micardis expired in January 2012, but Boehringer’s SPC provides protection until December 2013. Boehringer developed a follow on product MicardisPlus that contains telmisartan and hydrochlorothiazide (HCT). The UK patent office granted Boehringer a second SPC for MicardisPlus, which protects this product until January 2017. Both SPCs were based on the same patent, but the SPC for MicardisPlus lasts longer as MicardisPlus took longer to be authorised.
Actavis wanted to launch a generic version of MicardisPlus, but was blocked by Boehringer’s second SPC. Therefore, Actavis asked the UK High Court to revoke the second SPC, in part because it did not correctly “specify” the active ingredients when granted. Actavis’ attacks illustrate the problems with this controversial aspect of SPC law.
When is a product “specified” in the claims?
In order to get an SPC the patent must “protect” the product, which sounds like a simple test. However, the CJEU recently ruled that a product is “protected” only when it is “specified” in the wording of the claims. The “specified” test has caused considerable uncertainty in the world of SPCs, as the CJEU did not explain how this test should work.
The Micardis product passed the “specified” test, as the patent had a claim which mentioned the active ingredient (telmisartan) by its precise chemical name. The situation for MicardisPlus was more complex, because the patent as granted did not have a claim which specifically mentioned the combination of telmisartan and HCT. Conventionally, the patent still “protected” MicardisPlus, as a product containing telmisartan fell within the patent’s claims. However, as there was no claim that mentioned both telmisartan and HCT by name, Actavis argued that the second SPC was invalid because the patent’s claims did not “specify” this combination.
When is it allowable to amend?
Back when Boehringer applied for the SPC, the UK patent office suggested that the claims of the granted patent could be amended to include a claim to the combination of telmisartan and HCT. This post-grant amendment was allowed in the UK, as HCT was mentioned in the description. Actavis argued that because the amendment was made after the SPC application was filed, it was too late to fix the problem.
The judge decided that this issue required the CJEU to answer questions about how the “specified” test should work in practice. The judge asked the CJEU whether Boehringer needed to make the amendment at all, as the patent read with its description always specified telmisartan and HCT. If an amendment was required, he also asked whether it mattered when the amendment was made.
Actavis argued that Boehringer should not be allowed a second SPC on the same patent, a live topic in several other SPC cases going to the CJEU. Actavis also argued that if the second SPC was allowed, then its duration should be cut to stop “evergreening” (the contentious practice of extending patent term for valuable pharmaceuticals). In particular, Actavis wanted both SPCs for Micardis and MicardisPlus to lapse simultaneously in December 2013.
The judge, Colin Birss, has only just been appointed to the High Court and this was his first big SPC case. Birss’ comments in the case suggest he is taking a pro-patentee view of SPCs. He suggests that there is nothing wrong with a patentee amending a patent to improve its chances of getting an SPC, even if the amendment is made post-grant. He also suggests that there is no reason for the term of Boehringer’s second SPC to be cut. Therefore, it appears that the UK courts may continue to be a desirable venue for those enforcing an SPC.
Actavis v Boehringer highlights the chaotic world of SPC law in Europe. Pharmaceutical companies must hope that the CJEU will take a pro-patentee approach and allow Boehringer to keep their second SPC, following Birss’ suggestions. Generic companies will hope that the CJEU will strike down the second SPC, or shorten its term. At the very least, the answers from the CJEU might bring a little clarity to this important area of law. For now, patentees could avoid these issues by ensuring that patent applications have claims that list any interesting combinations of products. Minor amendments like this just might provide up to five valuable years of additional exclusivity in Europe.

matches: CJEU CJEU CJEU CJEU CJEU CJEU CJEU


By Lara A. Hall, MS, RQAP-GLP and Lauren M. Graham, Ph.D.
On September 13, 2017, the U.S. Environmental Protection Agency (EPA) issued three supporting documents for the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Scientific Advisory Panel (SAP) meeting regarding the “Continuing Development of Alternative High-Throughput Screens to Determine Endocrine Disruption, Focusing on Androgen Receptor, Steroidogenesis, and Thyroid Pathways.” This FIFRA SAP meeting will be held on November 28-30, 2017, from 9:00 a.m. - 5:00 p.m. (EST) at the EPA Conference Center, Lobby Level, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA 22202.
Transmission of Primary Materials (Whitepaper & Charge Questions).
Written comments will be accepted on or before October 16, 2017. Comments may be submitted online via Docket ID EPA-HQ-OPP-2017-0214-0001, mail, or hand delivery.
A listing of ad hoc panel members, including their biographical sketches, was posted online on August 22, 2017. The public comment period for the proposed panel members closed on September 7, 2017.
The original Federal Register notice announcing the meeting was published on June 6, 2017.
This important meeting, and materials issued in connection with it, will have potentially significant consequences for registrants. Bergeson & Campbell, P.C. (B&C®) will continue to monitor the situation closely and provide additional updates as they become available. More information on EPA’s Endocrine Disruptor Screening Program (EDSP) as well as the FIFRA SAP are available on our blog under key terms EDSP and FIFRA SAP.
Supporting documents for the FIFRA SAP meeting will be posted online on or before September 1, 2017. Written comments will be accepted on or before October 16, 2017.
This important meeting, and materials issued in connection with it, will have potentially significant consequences for registrants and should be monitored closely.
On June 30, 2017, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Center for Biological Diversity (CBD), et al. v. U.S. Environmental Protection Agency (EPA), Case No. 14-1036, resolving jurisdictional and substantive issues following complaints alleging that EPA violated Section 7(a)(2) of the Endangered Species Act (ESA) by failing to make an effects determination or to consult with the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) before registering cyantraniliprole (CTP) under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
The D.C. Circuit also, however, granted the Conservation Groups’ FIFRA petition, finding that EPA registered CTP without having made an effects determination or consulting with the FWS and/or the NMFS as required under ESA Section 7(a)(2). The court remanded the case to EPA for further proceedings, but allowed the CTP registration order to remain in effect until it is replaced by an order consistent with the court’s opinion.
Considering the growing number of complaints that allege a failure to consult with the FWS and/or the NMFS under the ESA, this decision could have broad reaching implications for how these complaints are filed and reviewed.
On February 29, 2012, EPA announced that it had received applications to register pesticide products containing CTP under FIFRA. On June 6, 2013, EPA announced its proposal to register CTP as a pesticide under FIFRA. As part of its review, EPA prepared an “Environmental Fate and Ecological Risk Assessment for the Registration of the New Chemical Cyantraniliprole” in which EPA states that CTP is “highly toxic or very highly toxic” to multiple taxonomic groups, including terrestrial invertebrates such as butterflies and beetles.
On January 24, 2014, EPA registered CTP as a pesticide under FIFRA and approved fourteen end-use products containing CTP. At issue in this case was EPA’s decision to register CTP without having made an effects determination or consulting with the FWS and/or the NMFS as required by ESA Section 7(a)(2) and implementing regulations (50 C.F.R. § 402.13-14).
Under the ESA citizen-suit provision, “any person” may “commence a civil suit on his own behalf … to enjoin any person, including the United States and any other governmental instrumentality or agency … who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.” 16 U.S.C. § 1540(g)(1). “The district courts … have jurisdiction” of ESA citizen suits, id., but no action may be commenced “prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator.” Id. § 1540(g)(2)(A)(i).
FIFRA’s citizen-suit provision at 7 U.S.C. § 136n(b) provides the federal circuit court with exclusive jurisdiction to affirm or set aside an EPA pesticide registration order following a public hearing, provided a challenge is filed within 60 days of the registration decision.
With potentially conflicting statutory provisions regarding the court in which to file a complaint and the timing to do so, the Conservation Groups initiated two actions: a complaint against EPA in D.C. District Court under the ESA’s citizen-suit provision; and a petition for review in D.C. Circuit Court pursuant to FIFRA’s citizen-suit provision.
Because FIFRA’s grant of exclusive jurisdiction to the court of appeals to review registration orders is more specific than the ESA’s citizen-suit provision, we believe the Conservation Groups must bring their ESA section 7(a)(2) challenge to us if 7 U.S.C. § 136n(b) is satisfied. And the Conservation Groups do satisfy the requirements of 7 U.S.C. § 136n(b): they are adversely affected by the registration of CTP; they challenge the validity of the CTP registration order based on the EPA’s failure to make an effects determination and to consult; and their challenge comes after a “public hearing” by way of three notice and comment periods. We therefore have “exclusive jurisdiction” to review their claim under FIFRA and the district court correctly dismissed their ESA citizen suit. (citations omitted).
While the ESA citizen suit was dismissed, the FIFRA citizen suit remained under the D.C. Circuit’s exclusive jurisdiction and review. The court found that EPA violated ESA Section 7(a)(2) by registering CTP before making an effects determination or consulting with the FWS or the NMFS.
This case is significant in at least two respects and should have implications in other cases being brought under ESA and FIFRA citizen suit petitions. First, the court provides the same answer concerning the “dueling jurisdictional provisions of the ESA and of FIFRA” as prior decisions in the Ninth Circuit, finding that FIFRA’s jurisdictional grounds take precedence and that the Courts of Appeal have exclusive jurisdiction to review cases claiming ESA violations in the context of an approved FIFRA pesticide registration. The court found the Conservation Groups’ arguments to the contrary “unavailing,” including but not limited to their argument that the public notice and comment periods that were provided did not constitute a “public hearing” under FIFRA Section 16(b) as well as their argument that the ESA challenge was not “inextricably intertwined” with FIFRA, even though the Conservation Groups were challenging the CTP registration order itself. It also is significant that the court, while remanding the registration order to EPA for further actions under the ESA, did not immediately vacate the existing CTP registration order.
Some observers of the extensive ESA-FIFRA litigation over recent years wondered whether the CTP registrations would be vacated once challenged for conformity to ESA requirements. EPA effectively admitted that it did not follow the full consultation process with FWS and NMFS, in this case substituting a relative risk argument that CTP was an improvement that would provide more species protection compared to the compounds it is expected to replace in the marketplace. The remand without vacatur does not resolve what some have called the “train wreck” scenario, where the need to complete ESA consultation, combined with time and resource constraints at the respective agencies, will result in a virtual freeze on new pesticide product registrations. The court makes it clear that, if EPA makes an affirmative ESA effects determination for CTP, consultation with the FWS and/or the NMFS must follow.
On June 14, 2017, the U.S. Environmental Protection Agency (EPA) issued a Federal Register notice announcing the availability of a final test guideline, Laboratory Product Performance Testing Methods for Bed Bug Pesticide Products; OCSPP Test Guideline 810.3900, part of a series of test guidelines established by the EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP) for use in testing pesticides and chemical substances. 82 Fed. Reg. 27254. EPA states that this test guideline provides “guidance for conducting a study to determine pesticide product performance against bed bugs, and is used by EPA, the public, and companies that submit data to EPA,” and “recommendations for the design and execution of laboratory studies to evaluate the performance of pesticide products intended to repel, attract, and/or kill the common bed bug (Cimex lectularius) in connection with registration of pesticide products under the [Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)].” EPA states that this guidance applies to products “in any formulation such as a liquid, aerosol, fog, or impregnated fabric, if intended to be applied to have a pesticidal purpose such as to attract, repel, or kill bed bugs.” This guideline provides appropriate laboratory study designs and methods for evaluating the product performance of pesticides against bed bugs and includes statistical analysis and reporting.
Revising the statistical analyses recommendations.
Product Performance Guideline 810.3900 - Laboratory Product Performance Testing Methods for Bed Bug Pesticide Products, Response to Public Comments.
When EPA granted the conditional registration, EPA did so on the basis that NSPW had a lower application rate and a lower mobility rate when compared to conventional-silver pesticides, and thus had the potential to reduce environmental loading and risk caused by silver release. Petitioners disputed these facts. While the court found that substantial evidence supports EPA’s findings that NSPW has lower application and mobility rates, the court agreed that the third premise, that current users of conventional-silver pesticides will switch to NSPW and/or that NSPW will not be incorporated into new products, “impermissibly relies on unsubstantiated assumptions.” According to the court, EPA cites no evidence in the record to support its assumption that current users of conventional-silver pesticides will switch to NSPW (“the substitution assumption”), but contends that it will occur as a “logical matter.” The court states that the lack of evidence supporting the substitution assumption is problematic in light of EPA’s other unsupported assumption, that there will be no new products. The court notes that EPA assumes current users of conventional-silver pesticides will switch to NSPW because of its benefits, but that these same benefits will not prompt manufacturers to incorporate NSPW into new products. EPA could have proved these assumptions, but without evidence in the record to support the assumptions, the court states that it “cannot find that the EPA’s public-interest finding is supported by substantial evidence as required by [the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)].” According to the court, the public interest finding is an “essential prerequisite to conditional registration,” and EPA failed to support that finding for NSPW with substantial evidence. The court vacated the conditional registration in whole, and did not consider the remaining issues raised by petitioners.
More information will be available in Bergeson & Campbell, P.C.’s memorandum Appellate Court Vacates Conditional Nanosilver Registration.
On March 29, 2017, U.S. Environment Protection Agency (EPA) Administrator Pruitt signed an order denying the September 2007 petition of the Pesticide Action Network North America (PANNA) and the Natural Resources Defense Council (NRDC) requesting that EPA revoke all tolerances and cancel all registrations for the pesticide chlorpyrifos. This is the latest EPA action in a long and contentious battle concerning chlorpyrifos tolerances and registrations, and is likely not the end of this story.
The order will become effective as soon as it is published in the Federal Register. More information on the prior proceedings concerning this matter is available on our blog under key phrase chlorpyrifos.
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Scientific Advisory Panel (SAP) members who reviewed EPA’s approach, based on these studies with regard to chlorpyrifos, generally had concerns with its proposed approach. When EPA nonetheless issued its renewed call for revocation of the tolerances in November 2016, eight days after the Presidential election, it was seen by some as partly (if not fully) driven by a “political” calculus which ignored the lack of support of the FIFRA SAP.
The November 2016 proposal was based on more than the epidemiology studies which have proven controversial. At the same time, EPA’s arguments in the November notice relied on some of the earlier findings about the studies and FIFRA SAP’s review to fashion a “hybrid” approach which, not surprisingly, supported EPA’s previous conclusions.
Following a review of comments on both the November 2015 proposal and the November 2016 notice of data availability, EPA has concluded that, despite several years of study, the science addressing neurodevelopmental effects remains unresolved and that further evaluation of the science during the remaining time for completion of registration review is warranted to achieve greater certainty as to whether the potential exists for adverse neurodevelopmental effects to occur from current human exposures to chlorpyrifos. EPA has therefore concluded that it will not complete the human health portion of the registration review or any associated tolerance revocation of chlorpyrifos without first attempting to come to a clearer scientific resolution on those issues.
EPA has determined it needs more time, however frustrating that may be, to sort out the science. As such, it is allowing chlorpyrifos use to continue, but objections to EPA’s decision are expected by the petitioners who originally pushed for the tolerance revocations. The effect on other OPs with regard to the application of the FQPA uncertainty factor is unclear, at best. The science debate will rage on, with no clear timeline or process for how the ultimate resolution of these questions will be “final.” This political and legal back-and-forth may become the new normal for the Trump Administration as it seeks to balance a more “business friendly” regulatory approach with the stringent requirements of the statutory duties of underlying authorizing legislation across all of EPA’s programs.
The following documents have been filed in the Anderson v. McCarthy proceedings in the U.S. District Court for the Northern District of California: (1) U.S. Environmental Protection Agency’s (EPA) Notice of Motion and Motion for Summary Judgment; (2) Defendant-Intervenors CropLife America, et al.’s Notice of Motion and Motion for Summary Judgment; and (3) Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Summary Judgment.
Plaintiffs have not identified any final agency actions. The Inspection Guidance is not an agency action, and even if the Inspection Guidance were an agency action, it is not final.
Count II (Plaintiffs’ allegation of EPA’s failure to regulate and enforce FIFRA with respect to pesticide-treated seeds) must be dismissed because there is no nondiscretionary duty identified by Plaintiffs that is unreasonably delayed or unlawfully withheld.
Enforcement of FIFRA is a discretionary action not subject to review.
A hearing on EPA’s motion was set for October 27, 2016, but due to scheduling conflicts has been rescheduled for November 3, 2016. It will be important to monitor the court’s consideration of these important issues closely. More information on these proceedings can be found in our pesticide blog items District Court Declines to Rule on Jurisdictional Issues in Neonicotinoid Case until Summary Judgment and EPA Requests Dismissal of Complaint For Lack of Subject Matter Jurisdiction.
The threat of the Zika Virus grows every day, and the need for clear information is especially pressing if you are pregnant. How do you prevent getting infected with the Zika Virus, and what insect repellents are best? The first question is easy to answer: public health experts agree that women who are pregnant or who might be pregnant should use insect repellents. The answer to the second question is not so simple.
I am a former senior official at the U.S. Environmental Protection Agency (EPA), and familiar with how the U.S. evaluates and approves pesticides, which include insect repellents. It is not easy for the average consumer to know what works and what does not work. Unfortunately, EPA policies have made this question much more complicated, having made important distinctions between some “natural”-type repellents and other products available in the marketplace.
Years ago, EPA de-regulated a number of natural, non-toxic materials from being subject to the registration requirements of the federal pesticide law (the Federal Insecticide, Fungicide, and Rodenticide Act). This made sense at the time since garlic, pepper, rotten eggs, vinegar, and other common chemicals are sometimes used as pesticides. Before de-regulation, these products were also subject to the same requirements as synthetic chemical pesticides with long unpronounceable names (e.g., diethyltoluamide, better known as DEET) which EPA requires to have volumes of efficacy and safety test data. Being natural does not mean a substance is non-toxic; some natural ingredients are fully evaluated and widely used. But in the interest of efficient use of resources EPA issued a list of products that could be sold as pesticides, but would not be subject to EPA data requirements and review (EPA calls them “minimum risk pesticides”).
This list of pesticides which are not subject to EPA evaluation, and which are not required to have data which proves they are effective, includes a number of botanical ingredients, such as oil of citronella, geranium, rosemary, peppermint, and many others. Many of these products can be used as pesticides -- some may work better than others -- and many work for the intended use (example: rotten eggs, or as EPA refers to them -- “putrescent whole egg solids” -- are used as a deer repellent).
Many of these ingredients have been marketed as “natural” insect repellents, and labeled as “safe” or “non-toxic” using words that will not appear on products where EPA reviews and approves the instructions on the product label.
If the product just says “repels mosquitoes,” it is not required to have data that shows it is effective, and may very well be ineffective.
What remains: EPA’s deregulation of these products means it is legal to sell products which do not work, as long as the ingredients appear on the EPA minimum risk pesticides list.
Using a “natural” mosquito repellent, with active ingredients such as citronella or clove, lemongrass, or rosemary oils, might seem like a good idea, especially if you’re pregnant or planning to be.
But five of the six plant-based repellents we tested…lasted one hour or less against Aedes mosquitoes, the kind that can spread Zika.
Not all repellents with the same ingredient are equally effective, and they found that some formulations of the chemical repellents also do not work for very long in their tests. Some botanical pesticides are effective and have the public health claims on the label (example: lemon eucalyptus, a botanical ingredient not on the exempt product list, and CR testing did find it to be effective).
To reduce confusion about what works, EPA for years has struggled to correct the situation by trying to impose changes to the requirements for insect repellents.
Unfortunately, to end the confusion about the difference between “repels mosquitoes” and “repels mosquitoes that can cause the Zika Virus,” EPA has to conduct a rulemaking which requires a long and bureaucratic process to complete. The good news is that EPA is working on such a solution. The bad news is that they have been working on it for almost ten years and they still have more work to do. There are details and petitions and proposals and reasons why it has taken so long, but it is the kind of story that gives bureaucracy a bad name.
With the onset and fears about the Zika Virus, however, EPA should make the needed changes immediately to ensure that consumers are not misled into using products which are not proven effective in repelling mosquitoes.
From a consumer’s point of view, it really is that simple. Legally, it is more complicated. In the meantime, EPA should be loud and clear in its communication about the distinction, even if they cannot take immediate action to reduce the confusion.
On August 12, 2016, a three-judge panel of the Ninth Circuit Court of Appeals issued an order denying the U.S. Environmental Protection Agency’s (EPA) request for an additional six months to decide whether to ban agricultural uses of chlorpyrifos. The court opted instead to afford EPA a three month extension, stating that “this is the final extension, and the court will not grant any further extensions."
EPA sought the six month extension on June 29, 2016, to allow time for EPA to complete two scientific analyses that may bear on EPA’s conclusions in the final rule, and to request further public comment before taking final action on a prior proposal to revoke all chlorpyrifos tolerances. The two analyses that EPA wanted to complete are: (1) a refined drinking water assessment that may allow EPA “to develop more tailored risk mitigation for some regions of the country,” and (2) an evaluation of the epidemiological data for chlorpyrifos to determine whether EPA should retain the point of departure based on acetylcholinesterase (AChE) inhibition in the proposed rule.
The court concluded that EPA’s request for a six month extension “is not justified in light of EPA’s history in this matter as well as the court’s previous extensions.” The court stated that EPA’s request was "another variation on a theme 'of partial reports, missed deadlines, and vague promises of future action' that has been repeated for the past nine years,” and that “nothing has changed that would justify EPA’s continued failure to respond to the pressing health concerns presented by chlorpyrifos."
The court ordered EPA to take final action on its proposal to revoke tolerances for chlorpyrifos by March 31, 2017. A further status report by EPA will be due in November 2016.
EPA’s updated analysis of the epidemiological data for chlorpyrifos will be a matter of considerable interest. After EPA issued a proposed rule utilizing a point of departure for chlorpyrifos based on AChE inhibition, EPA issued a blanket determination based on the epidemiological data for chlorpyrifos in which EPA decided to retain the Food Quality Protection Act (FQPA) safety factor for all organophosphate (OP) pesticides. This FQPA determination could cause EPA to conclude that the tolerances for chlorpyrifos must be revoked regardless of the outcome of the refined drinking water assessment.
EPA later proposed to use an alternative point of departure for chlorpyrifos based on biomonitoring data from one of the chlorpyrifos epidemiology studies, but the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Scientific Advisory Panel (SAP) met on April 19-21, 2016, and recommended against this new approach. In its request for an extension, EPA stated that the FIFRA SAP might recommend a “hybrid approach” to adjusting the point of departure for AChE inhibition. The FIFRA SAP meeting minutes do not appear to include such a hybrid recommendation.
In a related development, EPA has reached an agreement with the Columbia Center for Children’s Environmental Health (CCCEH) regarding the release of raw data from one of the chlorpyrifos epidemiology studies. During the FIFRA SAP meeting, concerns were raised regarding use of the CCCEH study without access to the underlying raw data. In an April 19, 2016, letter to Dr. Linda P. Fried, Dean of the Mailman School of Public Health at Columbia University, EPA requested that CCCEH provide access to the underlying data. In her response dated May 18, 2016, Dr. Fried offered to work with EPA “to determine if we can develop one or more data sets that can be properly de-identified, consistent with our obligation to protect the privacy of our research subjects, and that will also enable EPA to conduct its own analyses in order to address its transparency goals” or, in the alternative, offered to allow EPA staff to review the original data “in a secure data enclave onsite at Columbia.” In its June 27, 2016, response, EPA stated that the offer to allow EPA staff to review the underlying data at a secure site did not resolve issues concerning the transparency of EPA’s analysis. This correspondence is available in EPA Docket ID EPA-HQ-OPP-2008-0850. While EPA maintained it is “unnecessary” for CCCEH and EPA to develop redacted data sets, EPA accepted CCCEH’s offer to develop such data sets.
EPA’s request for a six month extension was filed on June 29, 2016, two days after it accepted the offer by CCCEH to develop redacted data sets for the CCCEH epidemiology study. Moreover, the FIFRA SAP meeting minutes issued on July 20, 2016, do not appear to provide the guidance that EPA had expected concerning a potential “hybrid” approach to adjusting EPA’s proposed point of departure for AChE inhibition.
Given the lesser extension granted by the court, it is questionable whether EPA will have sufficient time to review adequately the redacted underlying data sets offered by CCCEH, or even to determine whether those redacted data sets are adequate for this review, and to make any determination based on such data before EPA issues a supplementary proposal based on the refined drinking water assessment and the updated epidemiology assessment. The court has stated that it will entertain no further extension requests, so EPA must complete its work expeditiously to allow time for comment before final action is due on March 31, 2017.