dissenting:
With today’s evenly-divided decision to deny rehearing en banc in this case, In re: Allen, 106 F.3d 582 (4th Cir.1997), every state official in this circuit who claims entitlement to qualified immunity must affirmatively prove, as a threshold burden to proving that he did not violate the plaintiffs clearly established federal constitutional or statutory rights, that he also did not exceed the scope of his authority under state law. And, now, every district court in such cases must first resolve whether the defendant state official acted within the scope of his state law authority, before proceeding even to address the heretofore only relevant question under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), of whether the defendant violated a clearly established federal constitutional or statutory right of which a reasonable official would have known. (Indeed, here, although the panel addresses itself for pages to the intricacies of West Virginia state law, it never even considers the question of whether McGraw violated BGB’s clearly established constitutional or statutory rights in the course of denying McGraw’s qualified immunity claim under section 1983, see 106 F.3d at 590 n. 2.)
The panel’s unanimous decision thus erects for our circuit an entirely new framework for analyzing qualified immunity claims by state officials — on the strength of what even the panel can characterize at most only as isolated “statements” that qualified immunity protects only official action (none of which, even on its face, arguably supports the panel’s holding) from several Supreme Court opinions (all of which pre-date Harlow and address absolute, not qualified, immunity). And, as if to add insult to injury, this new framework is created and imposed in a case in which the issue was not even presented, the district court having treated the issue only conelusorily. See Better Government Bureau, Inc. v. McGraw, 904 F.Supp. 540, 553 n. 17 (S.D.W.Va.1995). The panel thus addresses with a thirty page opinion an issue mentioned passingly by the district court in only a footnote, and consigns to a footnote the district court’s principal holding that there existed a factual dispute as to whether McGraw acted with the requisite retaliatory motive to violate the plaintiffs clearly established First Amendment rights, see Allen, 106 F.3d at 590 n. 2—and this, without even a note of explanation as to why it does not “simply follow the Supreme Court’s mandate [that] when a district court denies summary judgment because of a purely factual question that decision is not immediately appealable.” See Elliott v. Leavitt, 105 F.3d 174, 184 (4th Cir.1997) (Motz, J., dissenting from denial of rehearing en banc).
In erecting this new framework within which state law is always relevant and often dispositive of a defendant’s federal right to qualified immunity, the panel quite obviously misunderstands both section 1983 and the immunity defense of Harlow. Section 1983 provides a federal cause of action against persons acting under color of state law for conduct that violates federal rights. Under Harlow, official immunity is available as against this federal cause of action if the defendant official did not violate clearly established federal constitutional or statutory rights. Nothing else is required for entitlement to the defense and nothing else need be shown. Whether a defendant violated state law, whether he clearly violated state law, or whether he acted' outside of state law, is never determinative of this federal immunity defense, because an official may lose his immunity only if he violates the statutory or other rights which give rise to the cause of action sued upon. Because the rights which give rise to the section 1983 cause of action are solely federal rights — namely, the federal Constitution and federal statutes — it follows that an official can never lose his immunity through the violation of state law (even clear state law), or even through the failure to act within that law. He forfeits his official immunity only through the violation of clearly established federal law, as Harlow held. State law may on occasion provide the basis for the right that gives rise to a cause of action under section 1983, such as where it creates a property right protected under the due process clause, but state law does not, *1136and can never, provide the right that gives rise to the cause of action under section 1983.
The Supreme Court so held in Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), which the panel opinion does not even so much as cite. In Davis, the court of appeals had held that an official loses his qualified immunity if he violated clear state law, even if he did not violate clearly established federal constitutional or statutory rights, just as the panel held in the case sub judice that, regardless of whether an official violated clearly established federal rights, an official is not entitled to immunity if he acted outside the scope of his state law authority. The appeals court had reasoned, as did the panel in the present case, that the violation of clearly established federal rights was not the “sole way” to forfeit qualified immunity, see id. at 188, 104 S.Ct. at 3016, and it had failed, as did the panel here, even to discuss the issue of whether the officials violated the plaintiffs federal rights, id. at 189, 104 S.Ct. at 3016.
The Supreme Court reversed the court of appeals and held that a state official does not forfeit his qualified immunity even by violating clearly established state law, id. at 194, 104 S.Ct. at 3019. Rather, said the Court,
[a] plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official’s qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue.
Id. at 197, 104 S.Ct. at 3020-21 (emphasis added).
Notably, the Court began its opinion by reaffirming its holding in Harlow that, beyond “the ‘objective reasonableness of [an official’s] conduct as measured by reference to clearly established law,’ ” “[n]o other ‘circumstances’ are relevant to the issue of qualified immunity.” Id. at 191, 104 S.Ct. at 3017 (citation omitted; emphasis added). And it noted that, even before Harlow, its precedents “had made clear that, under the ‘objective’ component of the good-faith immunity test,’an official would not be held hable in damages under § 1983 unless the constitutional right he was alleged to have violated was ‘clearly established’ at the time of the violation.” Id. at 194, 104 S.Ct. at 3019 (citations omitted; emphasis in original).
The Court acknowledged that the proposition that an official should lose his immunity by violating clear state law was “appealing,” but, it reminded, in determining what factors are and are not to be considered in deciding qualified immunity claims, a choice must be made “between the evils inevitable in any available alternative.” Id. at 195, 104 S.Ct. at 3019 (quoting Harlow, 457 U.S. at 813, 102 S.Ct. at 2735). The Court then went on to explain that such a submission, “if adopted, would disrupt the balance that [the Court’s] cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties.” Id.
Invoking reasoning that is equally dispositive of the question whether a state official loses his immunity by acting outside the scope of his state law authority, the Court stated categorically and unambiguously that
officials sued for violation of rights conferred by a statute or regulation, like officials sued for violation of constitutional rights, do not forfeit their immunity by violating some other statute or regulation. Rather, these officials become liable for damages only to the extent that there is a clear violation of the statutory Tights that give rise to the cause of action for damages. And if a statute or regulation does give rise to a cause of action for damages, clear violation of the statute or regulation forfeits immunity only with respect to damages caused by that violation. In the present ease, as we have noted, there is no claim that the state regulation itself or the laws that authorized its promulgation create a cause of action for damages or provide the basis for an action brought under § 1983.
... Neither federal nor state officials lose their immunity by violating the clear command of a statute or regulation — of federal or of state law — unless that statute or regulation provides the basis for the cause of action sued upon.
*1137Id. at 194 n. 12, 104 S.Ct. at 3019 n. 12 (first emphasis in original) (second and third emphases added).
In fact, the entirety of the Court’s reasoning in Davis is strikingly applicable to the claim that an official loses his federal immunity when he acts outside the scope of his state authority. In the course of identifying the “evils” that would follow upon making state law generally relevant to Harlow’s federal qualified immunity inquiry, the Court went on to explain, for example, that,
under appellee’s submission [that an official is stripped of qualified immunity by violating a clear state statute or regulation], officials would be liable in an indeterminate amount for violation of any constitutional right — one that was not clearly defined or perhaps not even foreshadowed at the time of the alleged violation- — merely because their official conduct also violated some statute or regulation. And, in § 1983 suits, the issue whether an official enjoyed qualified immunity then might depend upon the meaning or purpose of a state administrative regulation, questions that federal judges often may be unable to resolve on summary judgment.
Id. at 195, 104 S.Ct. at 3019-20 (first emphasis in original; second emphasis added). Even the policy considerations which the Court viewed as supportive of its holding apply with full force to the claim uncritically embraced by the panel. If Harlow’s official immunity were to turn upon whether an official acted within his state law authority,
[fjederal judges would be granted large discretion to extract from various statutory and administrative codes those provi sions that seem to them sufficiently clear or important to warrant denial of qualified immunity.
Id. And just as surely would follow the additional burdens both for the federal courts and for those officials who claim qualified immunity. As the Court observed:
[S]uch judgments fairly could be made only after an extensive inquiry into whether the official in the circumstances of his decision should have appreciated the applicability and importance of the rule at issue. It would become more difficult, not only for officials to anticipate the possible legal consequences of their conduct, but also for trial courts to decide even frivolous suits without protracted litigation.
Officials would be required not only to know the applicable regulations, but also to understand the intent with which each regulation was adopted. Such an understanding often eludes even trained lawyers with full access to the relevant legislative or administrative materials. It is unfair and impracticable to require such an understanding of public officials generally.
Id. at 195-96 & n. 13, 104 S.Ct. at 3020 & n. 13.
Indeed, the evident burdens that will be imposed by the unprecedented new proof scheme put in place by the panel today, not only on those state officers who will claim qualified immunity but also on the courts of this jurisdiction which decide these claims daily, are enormous. The defendant officials of course will be required to marshal for presentation to the federal court all of the state statutes, regulations, and caselaw arguably relevant to the performance of their state law duties. And they will then be required to argue to the federal court, from those authorities, that they were acting within the scope of their state law duties, duties which often will not be defined with anything approaching the kind of specificity with which federal duties are defined.
The federal courts, for their part, will now be obliged to conduct what will essentially be mini-trials on the question of whether the defendant was acting within the scope of his state law duties, a responsibility which will require these federal officers to immerse themselves in the intricacies of state statutes, regulations, and caselaw. The extent to which the federal courts will be embroiled in peculiarly state law questions is confirmed by the panel’s holding in this case, that even the complete absence of state law prohibiting the conduct in question does not prevent the federal court from concluding that the state official exceeded the scope of his clearly defined state law authority. See Allen, 106 F.3d at 594-98.
*1138It goes without saying that if the district court ultimately concludes that the defendant is acting outside the scope of his duties, or even that there is a dispute of material fact as to whether he was acting within or without his authority, then an interlocutory appeal of the district court’s denial of qualified immunity will follow. Upon appeal, we will be required to parse the same body of state law in the course of our review of the district court’s judgment. If we determine that the official did exceed the scope of his discretionary authority, then a trial' on the merits of the plaintiffs claim will proceed.
And all of this before any court even considers the only heretofore relevant question for purposes of determining the availability of qualified immunity under section 1988— whether the defendant violated the plaintiff’s clearly established federal rights .
Of course, wholly apart from the burdens imposed, the panel’s novel holding will thrust the federal courts into the minutia of state and local governments, as the cumbersome litigation it spawns forces these courts to define — often in the absence of state judicial authority and based upon what frequently will be vague laws — the perimeters and contours of the duties of the myriad state and local officials subject to suit under section 1983. By deciding the decidedly federal question of official immunity by resort to case-by-case, common-lawlike adjudication of state scope-of-authority claims, the governmental structures of the state and local governments within this circuit will, over time, become edifices constructed by the federal judiciary. The disposition of this case only serves to highlight this inevitable consequence of the panel’s new framework. The panel confidently holds that the West Virginia Attorney General clearly exceeded his undisputed power to “establish a program” for the education of consumers when he “established a corporation” for such purpose, thus substituting its judgment, which is based upon a distinction that appears nowhere in any statute, regulation, or judicial decision of the State of West Virginia, for that of a man who previously served as a member of the West Virginia Supreme Court. The panel may be right or wrong as to the construction of the State Attorney General’s powers that it superimposes on the State and its officials. However, to hold as a matter of law that the West Virginia Attorney General not only lacks such power, but that it is clearly established that he lacks such power, when he is expressly empowered to establish programs and nowhere forbidden to establish government corporations, is nothing but the rawest exercise of federal power.
That the panel has begun to appreciate the consequences of its holding for the federal courts and for the states is evident in its scrupulous avoidance of any discussion of the implications of that holding for either in its unusual opinion concurring in the denial of rehearing en banc. Indeed, in that opinion, the concurrence not only misleadingly avoids mention of state law, but revealingly buries its brief mention of the case over which the dissent has joined issue with the panel (Davis) in a lone paragraph at the very end of its opinion — a paragraph in which the reasoning invoked by the Supreme Court in Davis is nowhere discussed and the case is presumptively distinguished on grounds of an unexplained (and, I believe, nonexistent) distinction between, on the one hand, a mere claim to qualified immunity “in the first instance,” and an actual entitlement to qualified immunity which is subject to “defeat,” on the other.
Indeed, the full extent to which the panel has departed from the principles that underlay the doctrine of qualified immunity, and especially the federalism principles implicated when state officials are named as party defendants, is made painfully clear in the concurrence’s startling post hoc assertion that it now believes that Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992), which was not even discussed in the panel opinion, is analogous to the ease at hand and that, because of the purported distinction noted above, Davis, which also was not discussed in the panel opinion, “dealt with an entirely different question.” Concurrence at 1133-34; see also id. at 1133 (noting also that Davis addressed only a single “discrete” question); compare id. with Wyatt, 504 U.S. at 168-69, 112 S.Ct. at 1834 (“The *1139question on which we granted certiorari is[the] very narrow one” of whether private individuals enjoy qualified immunity under Harlow when “faced with § 1983 liability for invoking a state replevin, garnishment, or attachment statute”).
It would, of course, be difficult to imagine a case less like the case before us than Wyatt. In Wyatt, the Court held that private individuals were not entitled to public, or official, immunity — that only public officials were entitled to official immunity — because “the rationales mandating qualified immunity for public officials are not applicable to private parties.” Id. at 167, 112 S.Ct. at 1833 (citations deleted). “[T]he qualified immunity recognized in Harlow acts to safeguard government, and thereby to protect the public at large, not to benefit its agents[,]” the Court observed, and “[tjhese rationales are not transferable to private parties.” Id. at 168, 112 S.Ct. at 1833 (emphasis added). Elaborating upon the obvious distinction between private persons and public officials, which the concurrence today disavows, the Supreme Court explained that,
[ujnlike school board members or Presidential aides, private parties hold no office requiring them to exercise discretion; nor are they principally concerned with enhancing the public good. Accordingly, extending Harlow qualified immunity to private parties would have no bearing on whether public officials are able to act forcefully and decisively in their jobs or on whether qualified applicants enter public service. Moreover, unlike with government officials performing discretionary functions, the public interest will not be unduly impaired if private individuals are required to proceed to trial to resolve their legal disputes. In short, the nexus between private parties and the historic purposes of qualified immunity is simply too attenuated to justify such an extension of our doctrine of immunity.
Id. at 168, 112 S.Ct. at 1833-34 (citations deleted). Because “[qjualified immunity strikes a balance between compensating those who have been injured by official conduct and protecting government’s ability to perform its traditional functions,” id. at 167, 112 S.Ct. at 1833, Wyatt ‘s holding denying qualified immunity to private persons plainly is of no relevance whatsoever to the question of whether a given state official is or is not entitled to such immunity — a question whose resolution has profound consequences for the principles of federalism that inform application of the doctrine of qualified immunity to state officials subject to section 1983.
The concurrence’s reliance upon the Supreme Court’s recent decision in Clinton v. Jones, — U.S. -, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997), is misplaced for essentially the same reasons. In invoking the Court’s decision in Jones, and in particular its dicta that the Court has “never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity,” id. at -, 117 S.Ct. at 1644, the concurrence once again fails to recognize the distinction between, and thus mistakenly equates, action within one’s official capacity and action within one’s scope of authority. In Jones, the Supreme Court was simply making the unexceptionable observation that when an individual who happens to be a public official acts not in his official capacity, but rather as a private individual (or an individual official who either is charged with conduct that occurred prior to the time when he assumed public office or prior to the time when he assumed federal office), he is not entitled to official immunity. That, of course, is quite evidently different from the panel’s holding that an official who acts in his official capacity but outside the scope of his duties is not entitled to immunity. Jones, in any event, is yet another case of absolute, rather than qualified, immunity relied upon by the panel and concurrence, and, at that, one which, in stark contrast to the ease here, in no way raises the specter of federal judicial intervention into classic state law questions.
Nor, notwithstanding the concurrence’s protestations, does the common law support the panel’s holding. The common law authorities regarding trespass, malicious prosecution, and false imprisonment relied upon by the panel do not even address official immunity for unlawful actions. Even if they did, they would have limited applicability to *1140modern qualified immunity, which, unlike absolute immunity, at this point bears little resemblance to the common law. As the Court in Wyatt explained, quoting Anderson v. Creighton, 483 U.S. 635, 645, 107 S.Ct. 3034, 3042, 97 L.Ed.2d 523 (1987), Harlow “completely reformulated qualified immunity along principles not at all embodied in the common law.” And, as Justice Kennedy further explicated in his opinion in that case, which the concurrence ironically relies upon here:
Our immunity doctrine is rooted in historical analogy, based on the existence of common-law rule in 1871, rather than in “freewheeling policy choiee[s].” In cases involving absolute immunity we adhere to that view, granting immunity to the extent consistent with historical practice. In the context of qualified immunity for public officials, however, we have diverged to a substantial degree from the historical standards.
Wyatt, 504 U.S. at 170, 112 S.Ct. at 1835 (Kennedy, J., concurring) (citations deleted).
Rather than acquiesce in today’s unsupported and insupportable reformulation of Harlow’s qualified immunity inquiry, I would grant the petition for rehearing en banc and dispose of the appellee’s argument, that a public official loses his entitlement to federal qualified immunity if he exceeds the scope of his state law authority, in precisely the same way the Supreme Court disposed of the doetrinally indistinguishable claim that federal qualified immunity is lost if an official violates clearly established state law. I would acknowledge that “[o]n its face ... the claim is not without some force,” but I would “decline to adopt it,” Davis, 468 U.S. at 194, 104 S.Ct. at 3019, because of its fundamental incompatibility with established qualified immunity doctrine and because of the unfathomable consequences that its acceptance would (and now will) have for a framework carefully designed by the Supreme Court to result in the expeditious resolution of suits against public officials for the reasonable exercise of their discretionary judgments.
Accordingly, I dissent from the court’s decision to deny rehearing en banc.
Chief Judge WILKINSON and Judges DONALD S. RUSSELL, WIDENER, WILKINS, and WILLIAMS join in this opinion.