dissenting:
I continue to think that this case is an inappropriate vehicle for considering the immunity, if any, which may be claimed by the chairman of a prison disciplinary committee. But, if as a result of the invitation of the dissenting panel member, defendant Gardner belatedly urges this defense and the court is determined to consider it, I find my views at variance with those of my brothers. Hence I write separately.
The majority holds that Gardner is entitled to absolute immunity for the evident error that he made in conducting the hearing which resulted in the denial of Ward’s constitutional right to call witnesses in his behalf. It does so as an original proposition on its construction and application of Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). The exact question before us, or one so similar as to be indistinguishable, has been considered by a number of other courts. In an unbroken line of authority, the ruling has been that prison officials enjoy only qualified immunity. See Jihaad v. O’Brien, 645 F.2d 556, 561-62 (6 Cir. 1981); Chavis v. Rowe, 643 F.2d 1281, 1288 (7 Cir. 1981); Hayes v. Thompson, 637 F.2d 483, 489-90 (7 Cir. 1980); Bills v. Henderson, 631 F.2d 1287, 1299 (6 Cir. 1980); Bogard v. Cook, 586 F.2d 399, 410-12 (5 Cir. 1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979). See also Craig v. Franke, 478 F.Supp. 19 (E.D.Wis. 1979). There is no case which supports the view of the majority.
The cases which have held that prison officials, including members of a disciplinary adjustment committee, have only qualified immunity have all stemmed from the ruling in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978). There, in the context of a prisoner’s suit for interference with his mailing rights, the Court held that “prison officials and officers . . . were not absolutely immune from liability in this § 1983 damages suit and could rely only on the qualified immunity described in Scheuer v. Rhodes [416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ] and Wood v. Strickland [420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975)].” Procunier, 434 U.S. at 561, 98 S.Ct. at 859. The majority, however, ignores these holdings and considers only Butz v. Economou as the “authoritative decision on official immunity.” The majority’s implicit assumption must be that Butz overruled Procunier. This premise is unacceptable to me in view of the fact that Butz cited Procunier with approval and relied on it and on Scheuer and Wood. See Butz, 438 U.S. at 496-98, 98 S.Ct. at 2905-07.
In focusing on one aspect of Butz to the exclusion of the other relevant immunity decisions, the majority overlooks a central theme of this area of our jurisprudence: i.e., that where immunity is accorded to executive officials, qualified immunity is the rule and absolute immunity the rare exception. See Scheuer, 416 U.S. at 242-45, 94 S.Ct. at 1689. See also Nixon v. Fitzgerald, - U.S. - at -, 102 S.Ct. 2690 at 2700, 73 L.Ed.2d 349 (1982); Wood, 420 U.S. at 320, 95 S.Ct. at 999. The Butz opinion itself was quite clear on this point and on the procedural corollary that “officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.” Butz, 438 U.S. at 506, 98 S.Ct. at 2910. Just this past term, the Supreme Court reiterated that “[t]he burden of justifying absolute immunity rests on the official asserting the claim.” Harlow v. Fitzgerald, - U.S. - at -, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982).
These repeated admonitions make clear that it is improper for a court to reach the issue of absolute immunity where that defense has not been litigated in earnest by the defendant official. But that is precisely *1115the situation here. If defendant Gardner pressed any issue bearing on immunity in the district court, it was the issue of his good faith — a matter which goes only to qualified immunity and is completely irrelevant to absolute immunity. On appeal, Gardner’s initial brief dealt only with the question whether his conduct violated the Constitution or the guidelines of the Department of Corrections or otherwise amounted to an abuse of discretion. In no sense did the brief invoke a claim of immunity, whether qualified or absolute. Only after the dissenting panel member injected the immunity issue into the case did Gardner embrace the concept, and even then his supplemental brief for the in banc hearing, gave the immunity issue only cursory treatment in the space of a page and a half. I am at a loss to see how, on this record, it can fairly be said that Gardner bore the burden assigned him by Butz and Harlow of showing “that absolute immunity is essential for the conduct of the public business.” Butz, 438 U.S. at 507, 98 S.Ct. at 2911 (footnote omitted).
In short, the question seized upon by the majority would be better left for another day. If the issue is to be addressed prematurely, however, I must also take exception to the majority’s decision on the merits. The administrative law judges held absolutely immune in Butz are far different creatures from the members of a prison disciplinary committee. The former belong to a legally trained professional corps whose independence is guaranteed by numerous means under the Administrative Procedure Act; the latter are any “key” prison employees designated by the warden who lack direct knowledge of the matter to be adjudicated. Although disciplinary committee members must, under the applicable regulation, have a working knowledge of prison disciplinary regulations, see Va. Dept, of Corrections Guideline No. 861, VI(H)(l)(b), they are not required to have any knowledge of constitutional law or civil rights.
One of the linchpins of Butz is the presence of substantial safeguards to control unconstitutional conduct by the person granted immunity. The majority finds the safeguards here in a prisoner’s right to appeal an adverse disciplinary action to the warden or superintendent of the institution and from him to an officer of the central state administration of the prison system. To me this “safeguard” is more illusory than real. I can hardly think that the prison head, whose duties include selecting the members of the disciplinary committee and deciding which member shall be chairman, is reasonably guaranteed to be an objective reviewing officer. Nor can the state department administering the prison system be expected to function as an impartial arbiter of conflicts between the institutional interests of the prisons and the rights pf inmates. Without impugning the competence or integrity of prison administrators, I am unable to view this system of review as a reliable check on the discretion of prison disciplinary committees, nor can I accept disciplinary committee members as the functional equivalents of the administrative law judges immunized in Butz.
The mere fact that disciplinary committees exercise an adjudicative function does not entitle them to absolute immunity. The school board members who were defendants in Wood played a quasi-judicial role in disciplining the plaintiff students, yet the board members’ claim of absolute immunity was rejected. 420 U.S. at 320-21, 95 S.Ct. at 1000. The prison disciplinary hearings from which the present case arose seem much more closely analogous, in form and function, to the school disciplinary system at issue in Wood than to the administrative enforcement process implicated in Butz. Under the applicable guideline, prison disciplinary hearings take place one to four days after the alleged infraction. See Va. Dept, of Corrections Guideline No. 861, VI(F)(2). The members of the disciplinary committee are not professional hearing officers but ordinary prison officials temporarily diverted from their usual duties. Although the committee’s decisions are supposedly made on a reviewable record, transcripts of the proceedings — as amply demonstrated in this case — are often unintelligible at potentially significant points. To label such hearings *1116“formal,” as the majority does here, is most unconvincing.
The majority’s grant of absolute immunity rests, not only on the supposed “formality” of the prison disciplinary system, but also on the proclivity of prison inmates to engage in “burdensome and expensive litigation.” Such a problem undoubtedly exists, but absolute immunity is neither an appropriate nor an effective means of solving it. Butz itself teaches that the Federal Rules of Civil Procedure provide the proper safeguard against frivolous suits. In withholding absolute immunity from certain federal executives, the Butz Court observed:
Insubstantial lawsuits can be quickly ter- • minated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief under the Federal Constitution, it should not survive a motion to dismiss. Moreover, the Court recognized in Scheuer that damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of [qualified] immunity. See 416 U.S. at 250 [94 S.Ct. at 1693].... In responding to such a motion, plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits.
Butz, 438 U.S. at 507-08, 98 S.Ct. at 2911 (footnote and parallel citations omitted).
The majority apparently assumes that the federal rules are inadequate to the task of separating substantial from insubstantial claims in the context of prisoner litigation relating to discipline. This is an assumption I cannot share, especially in view of the fact that the Supreme Court has recently modified the elements of qualified immunity to make that defense more susceptible to summary disposition. See Harlow v. Fitzgerald, - U.S. -at - - -, 102 S.Ct. 2727 at 2737-39, 73 L.Ed.2d 396 (1982). Under Harlow, qualified immunity no longer hinges on a factual inquiry into the defendant’s subjective good faith but instead rests solely “on the objective reasonableness of [his] conduct, as measured by reference to clearly established law.” Id. - U.S. at -, 102 S.Ct. at 2738 (footnote omitted). After Harlow, the majority’s decision in the present case will add little to the ability of the courts to dispose of groundless claims quickly and efficiently. Indeed, the majority’s opinion in this regard is largely self-defeating because it holds that absolute immunity does not attach to “all” disciplinary hearings. It states as a principle that “every case in which immunity is claimed for members of the Adjustment Committee should be considered on its own facts and with reference to the particular procedure under which the disciplinary hearing is held.” The resources supposedly conserved by the majority’s decision will surely be squandered if every case must be separately considered to determine whether or not the new rule of absolute immunity will apply.1
In my judgment, whatever gain today’s decision may confer in terms of reducing meritless litigation is negligible in proportion to the extreme nature of the majority’s chosen means — the complete insulation of a class of prison officials from liability for intentional or otherwise inexcusable violation of constitutional rights. See Wood, 420 *1117U.S. at 320, 95 S.Ct. at 999. The Supreme Court has repeatedly “recognized that it is not unfair to hold liable the official who knows or should know he is acting outside the law, and that insisting on an awareness of clearly established constitutional limits will not unduly interfere with the exercise of official judgment.” Butz, 438 U.S. at 506-07, 98 S.Ct. at 2910. I would adhere to these principles in the present case and therefore, if the immunity question is to be reached at all, I would recognize only a qualified immunity in favor of prison disciplinary officials. Under Harlow, our inquiry should be whether defendant Gardner “violate[d] clearly established .. . constitutional rights” when he refused to call plaintiff’s witnesses at the disciplinary hearing. Harlow v. Fitzgerald, -U.S. at -, 102 S.Ct. at 2738 (1982).
I continue to believe that a prisoner’s right to call witnesses at such a hearing was clearly established in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). I reject the notion that what has been unambiguously decided by the Supreme Court can be rendered ambiguous by the contrary decision of a district court and a summary affirmance by a panel of the court of appeals. See Pollard v. Baskerville, 481 F.Supp. 1157, 1161 (E.D.Va.1979), aff’d mem., 620 F.2d 294 (4 Cir. 1980). In my view, moreover, Gardner’s characterization of the proffered testimony as irrelevant or unduly cumulative was so unreasonable that it invokes no exception to plaintiff’s right to call witnesses and indeed exceeds the scope of qualified immunity.2 Any serious doubt that can be admitted on these points simply underscores how far the majority has reached in order to cloak Gardner in absolute immunity. If the constitutional point in question was not clearly settled or if Gardner’s determination was not unreasonable, the majority’s every concern in this case could be amply resolved by applying the doctrine of qualified immunity.
Because to my mind today’s decision is both unnecessary and unsound, I dissent.
Judge ERVIN authorizes me to state that he joins in this opinion.. The majority justifies a grant of absolute immunity on the additional ground that even an award of nominal damages “would carry with it a right to attorney’s fees, which could run into a substantial sum.” In practical terms, however, the opinion does little to allay this concern. Even under a rule of absolute immunity, a prisoner would be entitled to attorney’s fees if he prevailed on a claim for injunctive or declaratory relief. See Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 738-39, 100 S.Ct. 1967, 1978, 64 L.Ed.2d 641 (1980)
(“The House Committee Report on the Act [authorizing fee awards in civil rights cases] indicates that Congress intended to permit attorney’s fee awards in cases in which prospective relief was properly awarded against defendants who would be immune from damages awards.”). See also Wood, 420 U.S. at 314 n. 6, 95 S.Ct. at 997 n. 6 (“immunity from damages does not ordinarily bar equitable relief”); Timmerman v. Brown, 528 F.2d 811, 813-14 (4 Cir. 1975) (same).
. In this connection, I must take issue with the majority’s view of the facts. Noting that plaintiff admitted kicking another inmate, the majority apparently concludes that any further evidence was necessarily cumulative or irrelevant on the charge that plaintiff impeded officers who were engaged in quelling a fight. Although plaintiff did admit the kicking, he insisted that he acted in self-defense and that he kicked his assailant before the latter had been subdued by prison guards. In short, plaintiff squarely controverted the charge levied against him. The written statements of the three inmates whom Gardner refused to call at the hearing indicate that each of these witnesses would have corroborated some aspect of the plaintiff’s defense. Under the circumstances, their testimony may not reasonably be deemed irrelevant or cumulative, and Gardner’s refusal to call them was an abuse of the discretion conferred by Va. Dept, of Corrections Guideline No. 861, VI(H)(2), as well as a violation of plaintiff’s constitutional rights. The district court, of course, found that the record was not devoid of evidence supporting the disciplinary committee’s determination that plaintiff kicked his assailant after the guards had subdued him. But the mere fact that some such evidence existed does not obviate plaintiff’s right to present contrary testimony, nor does it render such testimony cumulative or irrelevant.