Diana G. Schlegel and Central Pacific Freight Lines, an Oregon Corporation v. William Bebout and Bob Russell

831 F.2d 881 56 USLW 2283 Diana G. SCHLEGEL; and Central Pacific Freight Lines, an Oregon Corporation, Plaintiffs-Appellees, v. William BEBOUT; and Bob Russell, Defendants-Appellants. No. 86-3551. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 7, 1987. Decided Nov. 3, 1987. Elden M. Rosenthal, Portland, Or., for plaintiffs-appellees. Michael D. Reynolds, Salem, Or., for defendants-appellants. Appeal from the United States District Court for the District of Oregon. Before ANDERSON, TANG and NOONAN, Circuit Judges. J. BLAINE ANDERSON, Circuit Judge: 1 William Bebout and Bob Russell (appellants) appeal the district court's denial of their motion to dismiss Schlegel's complaint, pursuant to Fed.R.Civ.P. 12(b). Appellants alleged that they were entitled to absolute immunity from suit for claims brought under 42 U.S.C. Sec. 1983 based on their status as a Public Utilities Commission (PUC) Assistant Commissioner (Bebout) and a PUC Deputy Commissioner (Russell). We affirm. FACTS A. BACKGROUND 2 The basis of Schlegel's claim is that appellants initiated and participated in irregular and discriminatory actions during the time period in which an administrative…

William Bebout and Bob Russell (appellants) appeal the district court’s denial of their motion to dismiss Schlegel’s complaint, pursuant to Fed.R.Civ.P. 12(b). Appellants alleged that they were entitled to absolute immunity from suit for claims brought under 42 U.S.C. § 1983 based on their status as a Public Utilities Commission (PUC) Assistant Commissioner (Bebout) and a PUC Deputy Commissioner (Russell). We affirm.

FACTS

A. BACKGROUND

The basis of Schlegel’s claim is that appellants initiated and participated in irregular and discriminatory actions during the time period in which an administrative hearing on intrastate trucking applications was in progress. Appellee Dana Schlegel owns and operates Central Pacific Freight Lines, an intrastate trucking corporation. She alleges that appellants interfered in the evidence-producing process, had repeated ex parte contacts with the hearing officer for the purpose of influencing the outcome of the hearing, and continued the irregular and discriminatory actions after the hearing was over in an attempt to harass appellees.

In October, 1983, miscellaneous applications for regular route intrastate trucking authority within Oregon were…

dissenting:

The line between absolute and qualified immunity “often is not an easy one to perceive and structure.” Cleavinger v. Saxner, 474 U.S. 193, 206 , 106 S.Ct. 496, 503 , 88 L.Ed.2d 507 (1985). In determining where the line must fall, federal judges, being human, are wonderfully perceptive in perceiving that they could not function without absolute immunity, less clearsighted when they look at some other parts of government. The court here has, I believe, misperceived this difficult line. The question, simply put, is, “Is a state Public Utilities Commission more like a school board than a prosecutor?” The court answers, “School board” and applies the qualified immunity of Wood v. Strickland, 420 U.S. 308 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975). “Prosecutor” seems to me the better answer, bearing in mind that public utilities commissions like the Oregon one are charged with prosecutorial duties which in an earlier age, with fewer administrative agencies, would have had to have been discharged by the attorney general. The several audits complained of were in discharge of prosecutorial duty, as was, obviously, the cease and desist letter. The attempts to induce settlement were…