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

841 F.2d 937 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 March 8, 1988. Michael D. Reynolds, Salem, Or., for defendants-appellants. Elden M. Rosenthal, Portland, Or., for plaintiffs-appellees. Appeal from the United States District Court for the District of Oregon. Before ANDERSON, TANG and NOONAN, Circuit Judges. ORDER 1 The mandate is recalled and the Opinion filed November 3, 1987 and reported at 831 F.2d 881 is withdrawn. 2 The attached Opinion shall be filed and substituted for the withdrawn Opinion. 3 Circuit Judge NOONAN continues to adhere to his dissent and the clerk is instructed to refile that dissent simultaneously with this Opinion. OPINION J. BLAINE ANDERSON, Circuit Judge: 4 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…

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 clearsight-ed 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…

ORDER

The mandate is recalled and the Opinion filed November 3,1987 and reported at 831 F.2d 881 is withdrawn. The attached Opinion shall be filed and substituted for the withdrawn Opinion.

Circuit Judge NOONAN continues to adhere to his dissent and the clerk is instructed to refile that dissent simultaneously with this Opinion.

OPINION

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 (Beb-out) 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,…