from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:12-cv-01352-ODE
JULIE CARNES and EDMONDSON, Circuit Judges, and WILLIAMS,
EDMONDSON, Circuit Judge
Jacqueline Stevens appeals the dismissal of claims she filed
pursuant to Bivens v. Six Unknown Named Agents of the
Fed. Bureau of Narcotics, 91 S.Ct. 1999 (1971). Briefly
stated, Plaintiff contends that her constitutional rights
were violated when she was denied access to hearings at the
Atlanta Immigration Court. Plaintiff seeks monetary damages,
as well as injunctive and declaratory relief. We affirm the
district court's decision.
is a journalist and a university professor of political
science. Her area of study focuses on the due process rights
of those persons involved in deportation proceedings and on
the conduct of Immigration Judges within the Executive Office
of Immigration Review ("EOIR"). Before the
occurrences underlying this civil action, Plaintiff had
published criticisms of deportation proceedings in general
and of Immigration Judge William Cassidy's performance in
civil action arises from two dates on which Plaintiff sought
to attend immigration hearings at the Atlanta Immigration
Court. On 7 October 2009, Plaintiff wished to
attend three hearings listed on Judge Cassidy's afternoon
docket. One of the hearings was rescheduled at the request of
respondent's lawyer. Judge Cassidy then closed to the
public the remaining two hearings. Because Plaintiff was no
party, family member, or attorney-of-record for the
respondents in those cases, she was not permitted to observe
April 2010, Plaintiff returned to the Atlanta Immigration
Court and did observe morning hearings held before Judge
Cassidy. The docket listed one additional hearing scheduled
before Judge Cassidy for that afternoon. Judge Cassidy closed
that hearing to the public and, accordingly, asked Plaintiff
to leave the courtroom. In her complaint, Plaintiff alleged
she was asked to leave the courtroom "shortly after 3
p.m." Plaintiff asked Judge Cassidy for a "legal
reason" for his request and referred him to 8 C.F.R.
§ 1003.27, which deals with the public's access to
immigration hearings. When Judge Cassidy repeated his request
that Plaintiff leave his courtroom, Plaintiff asked whether
the respondent had requested a closed hearing. Judge Cassidy
replied "no" and that the respondent was proceeding
pro se. Judge Cassidy then told Plaintiff that he
could order security guards to remove her. In response,
Plaintiff asked Judge Cassidy again for "a legal reason
for closing the hearing." Judge Cassidy said "no,
" told Plaintiff to remain in the courtroom, and that he
would return with the pertinent regulation. Judge Cassidy
then left the courtroom. Plaintiff alleges her verbal
exchange with Judge Cassidy lasted about 90 seconds and
occurred in "normal conversational tones."
Plaintiff -- concerned that Judge Cassidy had returned to his
chambers to order guards to remove her physically from the
courtroom -- told Judge Cassidy's assistant that she
would be waiting in the Immigration Court lobby in the event
the respondent requested her presence as an observer.
moved to the Immigration Court lobby, where she complained to
"an EOIR court staff member about Defendant
Cassidy's unlawful actions" in closing the
courtroom. Plaintiff then began documenting the incident in
her notebook. Between 3:15 and 3:20 p.m., three building
security guards entered the lobby area. One of the
officers asked Plaintiff to leave the building; and after a
brief verbal exchange, the guards escorted Plaintiff outside.
The parties dispute whether Plaintiff was removed from the
building on Judge Cassidy's orders. According to
Plaintiff, she overheard one guard tell another guard that
Judge Cassidy wanted her out of the building.
filed this civil action in district court. In pertinent part,
Plaintiff purported to raise these claims: (1) a
Bivens claim for damages against Judge Cassidy in
his individual capacity; (2) a claim for injunctive relief
against all defendants, including Judge Cassidy; (3)
Bivens claims for damages against Fran Mooney,
Assistant Director of the EOIR's Office of Management
Programs, in her individual capacity; and (4) a claim for
district court dismissed Plaintiff's Bivens
claim against Judge Cassidy in his individual capacity on
grounds that Judge Cassidy was entitled to absolute judicial
immunity. The district court also concluded that Judge
Cassidy was entitled to judicial immunity from
Plaintiff's claim for injunctive relief. About
Plaintiff's claims for injunctive relief against the
remaining defendants, the district court dismissed those
claims for lack of standing. The district court also
dismissed for failure to state a claim Plaintiff's
Bivens claims against Mooney. The district court
then declined to exercise jurisdiction over Plaintiff's
claim for declaratory relief.
STANDARD OF REVIEW
an official is entitled to absolute immunity is a question of
law that we review de novo. Mikko v. City of
Atlanta, 857 F.3d 1136, 1142 (11th Cir. 2017). We also
review de novo the district court's dismissal
for failure to state a claim, accepting as true the factual
allegations in the complaint and construing them in the light
most favorable to the plaintiff. Butler v. Sheriff of
Palm Beach Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012).
We review a district court's decision not to exercise
jurisdiction over a claim for declaratory judgment under an
abuse-of-discretion standard. Wilton v. Seven Falls
Co., 515 U.S. 277, 289-90 (1995).
Absolute Judicial Immunity
doctrines were more solidly established at common law than
the immunity of judges from liability for damages for acts
committed within their judicial jurisdiction."
Cleavinger v. Saxner, 474 U.S. 193, 199 (1985). The
immunity applies even when the judge's conduct "was
in error, was done maliciously, or was in excess of his
authority . . . ." Stump v. Sparkman, 435 U.S.
349, 356-57 (1978).
absolute immunity is intended "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." Pierson v. Ray,
386 U.S. 547, 554 (1967). A judge has a duty to decide all
cases brought before him, including those cases that are
controversial and that may "arouse the most intense
feelings in the litigants." Id. A judge's
"errors may be corrected on appeal, but he should not
have to fear that unsatisfied litigants may hound him with
litigation charging malice or corruption. Imposing such a
burden on judges would contribute not to principled and
fearless decision-making but to intimidation."
Id.; see also Forrester v. White,
484 U.S. 219, 226-27 (1988) ("If judges were personally
liable for erroneous decisions, the resulting avalanche of
suits, most of them frivolous but vexatious, would provide
powerful incentives for judges to avoid rendering decisions
likely to provoke such suits. The resulting timidity would be
hard to detect or control, and it would manifestly detract
from independent and impartial adjudication." (citation
immunity is not reserved for Article III judges only.
"Absolute immunity flows not from rank or title or
'location within the Government, ' but from the
nature of the responsibilities of the individual
official." Cleavinger, 474 U.S. at 201
(citation omitted). The Supreme Court has thus applied a
"functional approach" in determining whether an
official is entitled to absolute immunity. Id.;
Butz v. Economou, 438 U.S. 478, 512-13 (1978).
Factors to consider in deciding whether to apply absolute
immunity to a particular person include these elements:
(a) the need to assure that the individual can perform his
functions without harassment or intimidation; (b) the
presence of safeguards that reduce the need for private
damages actions as a means of controlling unconstitutional
conduct; (c) insulation from political influence; (d) the
importance of precedent; (e) the adversary nature of the
process; and (f) the correctability of error on appeal.
Cleavinger, 474 U.S. at 202 (citing Butz,
438 U.S. at 512).
light of these considerations -- as well as the public policy
underlying the doctrine -- absolute immunity has been
extended to state court judges, Pierson, 386 U.S.
547, administrative law judges and federal hearing examiners,
Butz, 438 U.S. at 514, federal and state
prosecutors, Imbler v. Pachtman, 424 U.S. 409
(1976); Yaselli v. Goff, 275 U.S. 503 (1927),
aff'g 12 F.2d 396 (2d Cir. 1926), grand jurors, see
Imbler, 424 U.S. at 423 n.20, and to witnesses
testifying in judicial proceedings, Briscoe v.
Lahue, 460 U.S. 325 (1983).
considering whether the doctrine of absolute judicial
immunity extends properly to Immigration Judges, we are
guided by the Supreme Court's decisions in Butz
and in Cleavinger. We first recognize that -- as
with judges of general jurisdiction and with administrative
law judges -- Immigration Judges are tasked with resolving
cases that "are every bit as fractious as those which
come to court." See Butz, 438 U.S. at 513. That
immigration proceedings are adversarial in nature and often
involve controversial issues of extreme significance to those
persons involved underscores the importance of preserving the
Immigration Judge's independence. Cf. Stump, 435
U.S. at 364 ("The fact that the issue before the judge
is a controversial one is all the more reason that he should
be able to act without fear of suit.").
see an Immigration Judge's role in immigration
proceedings as sufficiently "functionally
comparable" to that of a judge. Immigration Judges
possess many of the same powers as a trial judge. These
powers include the power to subpoena witnesses and evidence,
to administer oaths, to receive and rule on evidence, to
question parties and witnesses, to issue sanctions, to make
credibility determinations, and to render decisions.
See 8 U.S.C. § 1229a(b)(1), (c); 8 C.F.R.
§§ 1003.10(b), 1003.35.
addition, the structure of immigration proceedings contains
many safeguards -- similar (although not always identical) to
those discussed in Butz in the context of
administrative hearings -- that tend to reduce the risk of
unchecked unconstitutional conduct by Immigration Judges.
Immigration Judges are professional hearing officers. In
deciding cases before them, Immigration Judges are required
to exercise "independent judgment and discretion"
and to resolve issues in an "impartial manner." 8
C.F.R. § 1003.10(a), (b). Immigration Judges are also
bound both by agency precedent, 8 C.F.R. § 1003.1(g),
and by precedent established by the federal appellate courts.
Parties to an immigration hearing may be represented by
counsel, 8 C.F.R. § 1003.16, may present documentary
evidence and witness testimony, 8 C.F.R. §§
1003.31, 1003.34, 1003.35, and are entitled to written notice
of the Immigration Judge's decision which
"shall" include reasons for the decision, 8 C.F.R.
§§ 1003.37, 1240.12(a), 1240.13(a). Parties may
also seek review of the Immigration Judge's decision by
the Board of Immigration Appeals ("BIA") and, if
necessary, by the federal courts. See 8 U.S.C.
§ 1252; 8 C.F.R. § 1003.38.
immigration proceedings do not contain safeguards identical
to those safeguards identified by the Supreme Court in
Butz is not outcome determinative here. The Supreme
Court's opinion in Cleavinger demonstrates that
Butz does not wholly define the limits of
judicial-immunity availability. In determining whether
members of a prison discipline committee were entitled to
absolute immunity, the Supreme Court compared the procedural
safeguards available under the prison's disciplinary
policy to those discussed in Butz.
Cleavinger, 474 U.S. at 203-06. Although the Supreme
Court concluded ultimately that the prison policy's
procedural safeguards were insufficient to warrant absolute
immunity, no individual safeguard or combination -- or lack
thereof -- was strictly determinative. See id.
having been said, we find it instructive that many of the
safeguards pointed out as absent in Cleavinger are
present here. For instance, the Supreme Court in
Cleavinger cared about the lack of these procedural
safeguards: (1) that prisoners subject to the prison's
disciplinary policy were "afforded neither a lawyer nor
an independent nonstaff representative;" (2) that
prisoners had "no right to compel the attendance of
witnesses or to cross-examine;" (3) that prisoners had
"no right to discovery;" (4) that "[t]here was
no cognizable burden of proof;" (5) that "[n]o
verbatim transcript was afforded;" and (6) that
"[i]nformation presented often was hearsay or
self-serving." Id. at 206.
in deportation proceedings, however, have a right to
representation by a lawyer, the right to examine evidence
against them, and the right to cross-examine witnesses. 8
U.S.C. § 1229a(b)(4)(A), (B). The immigration court is
also required to maintain a complete record -- including a
"verbatim" recording -- of all testimony and
evidence presented at the hearing. 8 U.S.C. §
1229a(b)(4)(C); 8 C.F.R. § 1240.9. In addition,
immigration proceedings are governed by a
statutorily-proscribed burden of proof. 8 U.S.C. §
Supreme Court in Cleavinger also expressed concern
that the members of the disciplinary committee lacked
independence. 474 U.S. at 203-04, 206. The Supreme Court
specially noticed that the committee members were "not
professional hearing officers." Id. at 204.
And, because the committee members remained employees of the
Bureau of Prisons, "they [were] direct subordinates of
the warden who reviews their decision." Id. The
committee members were often responsible for resolving
disputes -- including making credibility determinations
--between the inmate over whom they sat in judgment and the
fellow employee who had lodged the disciplinary charge.
Id. The committee members were "thus under
obvious pressure to resolve a disciplinary dispute in favor
of the institution and their fellow employee."
Id. ("It is the old situational problem of the
relationship between the keeper and the kept, a relationship
that hardly is conducive to a truly adjudicative
Judges, meanwhile, are under the supervision and direction of
the Chief Immigration Judge, who has "no authority to
direct the result of an adjudication assigned to another
immigration judge." 8 C.F.R. § 1003.9(b), (c). And
an Immigration Judge's decisions are reviewed on appeal
by the BIA: a division of the EOIR separate and apart from
the Office of the Chief Immigration Judge and with no direct
supervisory authority over Immigration Judges. See 8
C.F.R. § 1003.1. Immigration Judges are also independent
of the agency responsible for enforcing the federal
immigration laws: the United States Citizenship and
Immigration Services. See The United States
Department of Justice, Executive Office for Immigration
Review, https://www.justice.gov/eoir/about-office (last
visited 14 December 2017). Given these structural safeguards,
immigration proceedings do not involve the same potential for
institutional bias as recognized in Cleavinger: no
"relationship between the keeper and the kept."
both the adjudicatory role that Immigration Judges play
within the immigration-hearing process and the existence of
what we view -- in the light of the Supreme Court's
guidance -- as sufficient pertinent safeguards, we are
persuaded that Immigration Judges are judges entitled to
absolute immunity for their judicial acts, without regard to
the motive with which those acts are allegedly performed. And
we underline that absolute immunity is not merely a
defense to liability: it is an immunity from suit and
from "the other burdens of litigation" that
"is effectively lost if a case is erroneously permitted
to go to trial." Cf. Mitchell v. Forsyth, 472
U.S. 511, 526 (1985).
Judge Cassidy's Entitlement to Absolute Immunity
determined that the doctrine of absolute judicial immunity
applies to Immigration Judges, we next decide whether Judge
Cassidy's complained-of conduct -- excluding Plaintiff
from both a courtroom and from the courthouse --falls within
the scope of that immunity. A judge acting within his
judicial capacity is unentitled to absolute judicial immunity
-- and, thus, is subject to suit and to civil liability --
only when he acts in the "clear absence of all
jurisdiction." See Stump, 435 U.S. at 356-57.
Here, we must determine whether Judge Cassidy acted in his
judicial capacity and, if so, whether he acted in the
"clear absence of all jurisdiction."
determining whether a judge's act is "judicial"
for purposes of immunity, we consider (1) whether the act is
one normally performed by judges, and (2) whether the
complaining party was dealing with the judge in his judicial
capacity. Id. at 362.
the first element, the Supreme Court has instructed that we
look only to "the nature and function of the act, not
the act itself." Mireles v. Waco, 502 U.S. 9,
13 (1991) (quotations omitted); see also Forrester v.
White, 484 U.S. 219, 229 (1988) (the Court's
immunity analysis is informed by "the nature of the
function performed"). If we were to examine, instead,
the factual details of the particular act being challenged,
"then any mistake of a judge in excess of his authority
would become a 'nonjudicial' act, because an improper
or erroneous act cannot be said to be normally performed by a
judge." Mireles, 502 U.S. at 12 (determining
that the pertinent "act" was "the function of
directing police officers to bring counsel in a pending case
before the court": not "a judge's
direction to police officers to carry out a judicial order
with excessive force"). "If judicial immunity means