Fundamental Cases in Procedural Law
Adam J. McKee
JUSTICE WHITE delivered the opinion of the Court.
The Fourteenth Amendment of the Constitution provides in part:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Because the Amendment is directed at the States, it can be violated only by conduct that may be fairly characterized as “state action.” Title 42 U.S.C. § 1983 provides a remedy for deprivations of rights secured by the Constitution and laws of the United States when that deprivation takes place “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory. . . .” This case concerns the relationship between the § 1983 requirement of action under color of state law and the Fourteenth Amendment requirement of state action.
In 1977, petitioner, a lessee-operator of a truck stop in Virginia, was indebted to his supplier, Edmondson Oil Co., Inc. Edmondson sued on the debt in Virginia state court. Ancillary to that action and pursuant to state law, Edmondson sought prejudgment attachment of certain of petitioner’s property. The prejudgment attachment procedure required only that Edmondson allege, in an ex parte petition, a belief that petitioner was disposing of or might dispose of his property in order to defeat his creditors. Acting upon that petition, a Clerk of the state court issued a writ of attachment, which was then executed by the County Sheriff. This effectively sequestered petitioner’s property, although it was left in his possession. Pursuant to the statute, a hearing on the propriety of the attachment and levy was later conducted. Thirty-four days after the levy, a state trial judge ordered the attachment dismissed because Edmondson had failed to establish the statutory grounds for attachment alleged in the petition.
Petitioner subsequently brought this action under 42 U.S.C. § 1983 against Edmondson and its president. His complaint alleged that, in attaching his property, respondents had acted jointly with the State to deprive him of his property without due process of law. The lower courts construed the complaint as alleging a due process violation both from a misuse of the Virginia procedure and from the statutory procedure itself. He sought compensatory and punitive damages for specified financial loss allegedly caused by the improvident attachment.
Relying on Flagg Brothers, Inc. v. Brook (1978), the District Court held that the alleged actions of the respondents did not constitute state action, as required by the Fourteenth Amendment, and that the complaint therefore did not state a claim upon which relief could be granted under § 1983. Petitioner appealed; the Court of Appeals for the Fourth Circuit, sitting en banc, affirmed, with three dissenters.
The Court of Appeals rejected the District Court’s reliance on Flagg Brothers in finding that the requisite state action was missing in this case. The participation of state officers in executing the levy sufficiently distinguished this case from Flagg Brothers. The Court of Appeals stated the issue as follows:
“Whether the mere institution by a private litigant of presumptively valid state judicial proceedings, without any prior or subsequent collusion or concerted action by that litigant with the state officials who then proceed with adjudicative, administrative, or executive enforcement of the proceedings, constitutes action under color of state law within contemplation of § 1983.”
The court distinguished between the acts directly chargeable to respondents and the larger context within which those acts occurred, including the direct levy by state officials on petitioner’s property. While the latter no doubt amounted to state action, the former was not so clearly action under color of state law. The court held that a private party acts under color of state law within the meaning of § 1983 only when there is a usurpation or corruption of official power by the private litigant or a surrender of judicial power to the private litigant in such a way that the independence of the enforcing officer has been compromised to a significant degree. Because the court thought none of these elements was present here, the complaint failed to allege conduct under color of state law.
Because this construction of the “under color of state law” requirement appears to be inconsistent with prior decisions of this Court, we granted certiorari.
Although the Court of Appeals correctly perceived the importance of Flagg Brothers to a proper resolution of this case, it misread that case. It also failed to give sufficient weight to that line of cases, beginning with Sniadach v. Family Finance Corp. (1969), in which the Court considered constitutional due process requirements in the context of garnishment actions and prejudgment attachments. See North Georgia Finishing, Inc. v. Di-Chem, Inc. (1975); Mitchell v. W. T. Grant Co. (1974); Fuentes v. Shevin (1972). Each of these cases involved a finding of state action as an implicit predicate of the application of due process standards. Flagg Brothers distinguished them on the ground that, in each, there was overt, official involvement in the property deprivation; there was no such overt action by a state officer in Flagg Brothers. Although this case falls on the Sniadach, and not the Flagg Brothers, side of this distinction, the Court of Appeals thought the garnishment and attachment cases to be irrelevant because none but Fuentes arose under 42 U.S.C. § 1983 and because Fuentes was distinguishable.
It determined that it could ignore all of them because the issue in this case was not whether there was state action, but rather whether respondents acted under color of state law.
As we see it, however, the two concepts cannot be so easily disentangled. Whether they are identical or not, the state action and the “under color of state law” requirements are obviously related. Indeed, until recently, this Court did not distinguish between the two requirements at all.
In United States v. Price (1966), we explicitly stated that the requirements were identical:
“In cases under § 1983, ‘under color’ of law has consistently been treated as the same thing as the ‘state action’ required under the Fourteenth Amendment.”
In support of this proposition, the Court cited Smith v. Allwright (1944) and Terry v. Adams (1953). In both of these cases, black voters in Texas challenged their exclusion from party primaries as a violation of the Fifteenth Amendment, and sought relief under 8 U.S.C. § 43. In each case, the Court understood the problem before it to be whether the discriminatory policy of a private political association could be characterized as “state action within the meaning of the Fifteenth Amendment.” Having found state action under the Constitution, there was no further inquiry into whether the action of the political associations also met the statutory requirement of action “under color of state law.”
Similarly, it is clear that, in a § 1983 action brought against a state official, the statutory requirement of action “under color of state law” and the “state action” requirement of the Fourteenth Amendment are identical. The Court’s conclusion in United States v. Classic (1941), that
“misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of state law,’ was founded on the rule announced in Ex parte Virginia (1880), that the actions of a state officer who exceeds the limits of his authority constitute state action for purposes of the Fourteenth Amendment.”
The decision of the Court of Appeals rests on a misreading of Flagg Brothers. In that case, the Court distinguished two elements of a § 1983 action:
“Plaintiffs are first bound to show that they have been deprived of a right ‘secured by the Constitution and the laws’ of the United States. They must secondly show that Flagg Brothers deprived them of this right acting ‘under color of any statute’ of the State of New York. It is clear that these two elements denote two separate areas of inquiry.”
Plaintiffs’ case foundered on the first requirement. Because a due process violation was alleged, and because the Due Process Clause protects individuals only from governmental, and not from private, action, plaintiffs had to demonstrate that the sale of their goods was accomplished by state action. The Court concluded that the sale, although authorized by state law, did not amount to state action under the Fourteenth Amendment, and therefore set aside the Court of Appeals’ contrary judgment.
There was no reason in Flagg Brothers to address the question whether there was action under color of state law. The Court expressly eschewed deciding whether that requirement was satisfied by private action authorized by state law. Although the state action and “under color of state law” requirements are “separate areas of inquiry,” Flagg Brothers did not hold nor suggest that state action, if present, might not satisfy the § 1983 requirement of conduct under color of state law. Nevertheless, the Court of Appeals relied on Flagg Brothers to conclude in this case that state action under the Fourteenth Amendment is not necessarily action under color of state law for purposes of § 1983. We do not agree.
The two-part approach to a § 1983 cause of action, referred to in Flagg Brothers, was derived from Adickes v. S. H. Kress & Co. (1970). Adickes was a § 1983 action brought against a private party, based on a claim of racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Although stating that the § 1983 plaintiff must show both that he has been deprived “of a right secured by the Constitution and laws’ of the United States” and that the defendant acted “under color of any statute . . . of any State,” we held that the private party’s joint participation with a state official in a conspiracy to discriminate would constitute both “state action essential to show a direct violation of petitioner’s Fourteenth Amendment equal protection rights” and action “under color of law” for purposes of the statute. In support of our conclusion that a private party held to have violated the Fourteenth Amendment “can be liable under § 1983,” we cited that part of United States v. Price, in which we had concluded that state action and action under color of state law are the same. Adickes provides no support for the Court of Appeals’ novel construction of § 1983.
The decision of the Court of Appeals is difficult to reconcile with the Court’s garnishment and prejudgment attachment cases and with the congressional purpose in enacting § 1983.
Beginning with Sniadach v. Family Finance Corp. (1969), the Court has consistently held that constitutional requirements of due process apply to garnishment and prejudgment attachment procedures whenever officers of the State act jointly with a creditor in securing the property in dispute. Sniadach and North Georgia Finishing, Inc. v. Di-Chem, Inc. (1975), involved state-created garnishment procedures; Mitchell v. W. T. Grant Co. (1974), involved execution of a vendor’s lien to secure disputed property. In each of these cases, state agents aided the creditor in securing the disputed property; but in each case, the federal issue arose in litigation between creditor and debtor in the state courts, and no state official was named as a party. Nevertheless, in each case, the Court entertained and adjudicated the defendant debtor’s claim that the procedure under which the private creditor secured the disputed property violated federal constitutional standards of due process. Necessary to that conclusion is the holding that private use of the challenged state procedures with the help of state officials constitutes state action for purposes of the Fourteenth Amendment.
Fuentes v. Shevin (1972), was a § 1983 action brought against both a private creditor and the State Attorney General. The plaintiff sought declaratory and injunctive relief, on due process grounds, from continued enforcement of state statutes authorizing prejudgment replevin. The plaintiff prevailed; if the Court of Appeals were correct in this case, there would have been no § 1983 cause of action against the private parties. Yet they remained parties, and judgment ran against them in this Court.
If a defendant debtor in state court debt collection proceedings can successfully challenge, on federal due process grounds, the plaintiff creditor’s resort to the procedures authorized by a state statute, it is difficult to understand why that same behavior by the state court plaintiff should not provide a cause of action under § 1983. If the creditor plaintiff violates the debtor-defendant’s due process rights by seizing his property in accordance with statutory procedures, there is little or no reason to deny to the latter a cause of action under the federal statute, § 1983, designed to provide judicial redress for just such constitutional violations.
To read the “under color of any statute” language of the Act in such a way as to impose a limit on those Fourteenth Amendment violations that may be redressed by the § 1983 cause of action would be wholly inconsistent with the purpose of § 1 of the Civil Rights Act of 1871, from which § 1983 is derived. The Act was passed “for the express purpose of enforcing the Provisions of the Fourteenth Amendment.” The history of the Act is replete with statements indicating that Congress thought it was creating a remedy as broad as the protection that the Fourteenth Amendment affords the individual. Perhaps the most direct statement of this was that of Senator Edmunds, the manager of the bill in the Senate: “Section 1 is so very simple, and really reenacts the Constitution.” Representative Bingham similarly stated that the bill’s purpose was the enforcement . . . of the Constitution on behalf of every individual citizen of the Republic . . . to the extent of the rights guaranteed to him by the Constitution.
In sum, the line drawn by the Court of Appeals is inconsistent with our prior cases, and would substantially undercut the congressional purpose in providing the § 1983 cause of action. If the challenged conduct of respondents constitutes state action as delimited by our prior decisions, then that conduct was also action under color of state law, and will support a suit under § 1983.
As a matter of substantive constitutional law, the state action requirement reflects judicial recognition of the fact that “most rights secured by the Constitution are protected only against infringement by governments,” As the Court said in Jackson v. Metropolitan Edison Co (1974):
“In 1883, this Court in the Civil Rights Cases, affirmed the essential dichotomy set forth in the Fourteenth Amendment between deprivation by the State, subject to scrutiny under its provisions, and private conduct, ‘however discriminatory or wrongful,’ against which the Fourteenth Amendment offers no shield.”
Careful adherence to the “state action” requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power. It also avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed. A major consequence is to require the courts to respect the limits of their own power as directed against state governments and private interests. Whether this is good or bad policy, it is a fundamental fact of our political order.
Our cases have accordingly insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State. These cases reflect a two-part approach to this question of “fair attribution.” First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. In Sniadach, Fuentes, W. T. Grant, and North Georgia, for example, a state statute provided the right to garnish or to obtain prejudgment attachment, as well as the procedure by which the rights could be exercised. Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Without a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.
Although related, these two principles are not the same. They collapse into each other when the claim of a constitutional deprivation is directed against a party whose official character is such as to lend the weight of the State to his decisions. The two principles diverge when the constitutional claim is directed against a party without such apparent authority, i.e., against a private party. The difference between the two inquiries is well illustrated by comparing Moose Lodge No. 107 v. Irvis (1972), with Flagg Brothers.
In Moose Lodge, the Court held that the discriminatory practices of the appellant did not violate the Equal Protection Clause because those practices did not constitute “state action.” The Court focused primarily on the question of whether the admittedly discriminatory policy could in any way be ascribed to a governmental decision. The inquiry, therefore, looked to those policies adopted by the State that were applied to appellant. The Court concluded as follows:
“We therefore hold that, with the exception hereafter noted, the operation of the regulatory scheme enforced by the Pennsylvania Liquor Control Board does not sufficiently implicate the State in the discriminatory guest policies of Moose Lodge to . . . make the latter ‘state action’ within the ambit of the Equal Protection Clause of the Fourteenth Amendment.”
In other words, the decision to discriminate could not be ascribed to any governmental decision; those governmental decisions that did affect Moose Lodge were unconnected with its discriminatory policies.
Flagg Brothers focused on the other component of the state action principle. In that case, the warehouseman proceeded under New York Uniform Commercial Code, § 7-210, and the debtor challenged the constitutionality of that provision on the grounds that it violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Undoubtedly the State was responsible for the statute. The response of the Court, however, focused not on the terms of the statute, but on the character of the defendant to the § 1983 suit: action by a private party pursuant to this statute, without something more, was not sufficient to justify a characterization of that party as a “state actor.” The Court suggested that that “something more” which would convert the private party into a state actor might vary with the circumstances of the case. This was simply a recognition that the Court has articulated a number of different factors or tests in different contexts: e.g., the “public function” test, the “state compulsion” test, the “nexus” test, and, in the case of prejudgment attachments, a “joint action test.”
Whether these different tests are actually different in operation or simply different ways of characterizing the necessarily fact-bound inquiry that confronts the Court in such a situation need not be resolved here.
Turning to this case, the first question is whether the claimed deprivation has resulted from the exercise of a right or privilege having its source in state authority. The second question is whether, under the facts of this case, respondents, who are private parties, may be appropriately characterized as “state actors.”
Both the District Court and the Court of Appeals noted the ambiguous scope of petitioner’s contentions:
“There has been considerable confusion throughout the litigation on the question whether Lugar’s ultimate claim of unconstitutional deprivation was directed at the Virginia statute itself or only at its erroneous application to him.”
Both courts held that resolution of this ambiguity was not necessary to their disposition of the case: both resolved it, in any case, in favor of the view that petitioner was attacking the constitutionality of the statute, as well as its misapplication. In our view, resolution of this issue is essential to the proper disposition of the case.
Petitioner presented three counts in his complaint. Count three was a pendent claim based on state tort law; counts one and two claimed violations of the Due Process Clause. Count two alleged that the deprivation of property resulted from respondents’ “malicious, wanton, willful, opressive [sic], [and] unlawful acts.” By “unlawful,” petitioner apparently meant “unlawful under state law.” To say this, however, is to say that the conduct of which petitioner complained could not be ascribed to any governmental decision; rather, respondents were acting contrary to the relevant policy articulated by the State. Nor did they have the authority of state officials to put the weight of the State behind their private decision, i.e., this case does not fall within the abuse of authority doctrine recognized in Monroe v. Pape (1961). That respondents invoked the statute without the grounds to do so could in no way be attributed to a state rule or a state decision. Count two, therefore, does not state a cause of action under § 1983, but challenges only private action.
Count one is a different matter. That count describes the procedures followed by respondents in obtaining the prejudgment attachment as well as the fact that the state court subsequently ordered the attachment dismissed because respondents had not met their burden under state law. Petitioner then summarily states that this sequence of events deprived him of his property without due process. Although it is not clear whether petitioner is referring to the state-created procedure or the misuse of that procedure by respondents, we agree with the lower courts that the better reading of the complaint is that petitioner challenges the state statute as procedurally defective under the Fourteenth Amendment.
While private misuse of a state statute does not describe conduct that can be attributed to the State, the procedural scheme created by the statute obviously is the product of state action. This is subject to constitutional restraints, and properly may be addressed in a § 1983 action, if the second element of the state action requirement is met as well.
As is clear from the discussion in we have consistently held that a private party’s joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a “state actor” for purposes of the Fourteenth Amendment. The rule in these cases is the same as that articulated in Adickes v. S. H. Kress & Co., in the context of an equal protection deprivation:
“Private persons, jointly engaged with state officials in the prohibited action, are acting under color’ of law for purposes of the statute. To act `under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,”
The Court of Appeals erred in holding that in this context “joint participation” required something more than invoking the aid of state officials to take advantage of state-created attachment procedures. That holding is contrary to the conclusions we have reached as to the applicability of due process standards to such procedures. Whatever may be true in other contexts, this is sufficient when the State has created a system whereby state officials will attach property on the ex parte application of one party to a private dispute.
In summary, petitioner was deprived of his property through state action; respondents were, therefore, acting under color of state law in participating in that deprivation. Petitioner did present a valid cause of action under § 1983 insofar as he challenged the constitutionality of the Virginia statute; he did not insofar as he alleged only misuse or abuse of the statute.
The judgment is reversed in part and affirmed in part, and the case is remanded for further proceedings consistent with this opinion.
Last Modified: 08/21/2019