Briggs v. Goodwin

569 F.2d 10, 186 U.S. App. D.C. 179

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 21, 1977
• Docket: No. 75-1642
• Status: Published

Opinions

Opinion for the court filed by McGOWAN, Circuit Judge.

Dissenting opinion filed by WILKEY, Circuit Judge.

McGOWAN, Circuit Judge:

This case raises a difficult question concerning the precise scope of the absolute prosecutorial immunity afforded by the Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Plaintiffs-appellees brought in the District Court a civil action in tort grounded upon the Constitution, alleging injury by reason of defendant-appellant’s assertedly false testimony in a hearing held in connection with a grand jury investigation of appellees’ activities as members of an antiwar organization. Appellant moved to dismiss on the ground that he enjoyed absolute immunity from any damage action based upon his conduct while acting in his official capacity as a special federal prosecutor. The District Court denied this motion, and we affirm.

I

Both the facts alleged in appellees’ complaint and the procedural posture of this appeal are important to our decision of it. We take appellees’ allegations to be true, as we are bound to do upon review of the District Court’s pretrial disposition of a motion to dismiss.

On July 7, 1972, appellant Goodwin, an attorney with the Internal Security Division of the United States Department of Justice, was appointed to serve as a Special Attorney for the investigation and prosecution of certain federal crimes which had allegedly occurred in the Northern District of Florida. Goodwin’s letter of appointment was vague in its delineation of Goodwin’s duties thereunder. It stated that the Department of Justice was “informed that various persons [had] violated the [federal] anti-riot laws, Title XI of the Organized Crime Control Act of 1970 [dealing with the manufacture, sale, and transportation of explosives], [and the] conspiracy . . . and other Federal criminal statutes.” Goodwin was instructed “to assist in the trial of the case or cases growing out of the transactions . . . mentioned in which the Government is interested.”

On the day of Goodwin’s appointment, subpoenas were served upon more than twenty members of a group known as the Vietnam Veterans Against the War/Winter Soldier Organization (VVAW/WSO). Some of the persons subpoenaed were in Miami, preparing for an antiwar march scheduled to coincide with the 1972 Democratic National Convention, which met from July 10 to July 13, 1972. Others were located in Texas, Arkansas, Louisiana, and Washington, D. C. All individuals subpoenaed were ordered to appear before a federal grand jury in Tallahassee, Florida, three days after service of the subpoenas, on the morning of July 10, 1972. Among those persons so subpoenaed were nine of the ten appellees in this case. (Appellee Briggs was not subpoenaed until a month later.)

Considerable confusion attended the commencement of the grand jury proceeding. Though all were members of the same organization, many of those subpoenaed had not known each other previously. Attorneys hastily retained to represent appellees had little time to consult with their clients before the grand jury began its inquiries. Recurring rumors of police and FBI infiltration of the VVAW/WSO prompted concern that one or more informants might be present among those who sought legal advice prior to their grand jury appearances. This prompted counsel to file a motion with the District Court in Tallahassee to direct Goodwin and his associates to disclose any agents or informers among those subpoenaed. The District Court’s initial response was to ask counsel for a list of the witnesses in question and their counsel. This was done in the afternoon of July 12 by an oral submission on the record in open court of a list of potential grand jury witnesses (including one Emerson Poe) and their respective attorneys. The following morning the motion was taken up in open court. As movants’ counsel was stating his belief that Goodwin should file an affidavit supplying the information requested by the motion, he was interrupted by the court’s peremptory direction to Goodwin to take the witness stand and be sworn. The transcript shows that the court then asked Goodwin one question:

THE COURT: Mr. Goodwin, are any of witnesses represented by counsel agents or informants of the United States of America?

THE WITNESS: No, Your Honor.

THE COURT: You can step down.

(Witness excused.)

To counsel’s immediately succeeding question, “Your Honor, may we be permitted to question Mr. Goodwin on this?,” the court denied such permission.

None of the subpoenaed VVAW members actually testified during the four-day grand jury proceeding. Indeed, two appellees (Beverly and Jennings), along with two other VVAW members not parties to this litigation, were imprisoned for contempt, when they persisted in their refusal to testify after grants of use immunity.¹ An indictment was returned on the evening of July 13, 1972 charging six appellees (not including Beverly and Jennings) with a variety of crimes centering around an alleged conspiracy to unlawfully disrupt the 1972 Republican National Convention.²

The Government’s investigation of VVAW activity continued, and on August 7, 1972, appellee Briggs was subpoenaed to appear before the Tallahassee grand jury. Slightly more than two months later, on October 18, 1972, a superseding indictment was filed, adding appellee Briggs as a co-conspirator, and appellee Michelson as an aider and abettor of the conspiracy. Trial of the eight appellees covered by this new indictment commenced on July 31, 1973. On August 17,1973, appellees received, pursuant to the Jencks Act, 18 U.S.C. § 3500 (1970), a series of written materials which revealed that Emerson Poe had been functioning as a paid FBI informant since January, 1972; and Poe testified, over objection, as a prosecution witness at appellees’ criminal trial. Appellees allege that, prior to the July, 1972 grand jury proceeding, Poe had on several occasions relayed to federal investigators the substance of his conversations with appellee Camil, and that Poe’s reporting did not cease with the return of indictments in 1972; rather, it served as an ongoing source of information concerning appellees’ criminal defense strategy. Despite this disadvantage, appellees were acquitted of all criminal charges on August 31, 1973.

The complaint in the civil action was filed in the District Court for the District of Columbia on May 28,1974. It alleged, inter alia, injury arising from appellant’s representation to the Florida court that no informants were among those individuals ordered to appear before the grand jury.³ Relying upon Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), appellees sought declaratory relief, damages, and the appointment of a special prosecutor to explore the alleged official wrongdoing. On July 22, 1974, appellant moved to dismiss on the ground that, as stated in his brief, “as a Special Attorney of the United States Department of Justice, he [is], pursuant to the doctrine of quasi-judicial immunity, absolutely immune from any damage action based upon alleged misconduct while acting in such a capacity.” This motion was denied on November 20, 1974. 384 F.Supp. 1228.

On December 13, 1974, appellant filed a fresh motion to dismiss, urging that “as a witness in a Federal court he is absolutely immune from any damage action or civil suit based upon his alleged false testimony in such judicial proceeding.” Alternatively, appellant asked the District Court to certify “the issue of immunity” for interlocutory appeal in accordance with the provisions of 28 U.S.C. § 1292(b) (1970). In an order dated March 4, 1975, the District Court denied appellant’s motion to dismiss on the ground of witness immunity, and also expressly refused (what it interpreted as) appellant’s request to certify the issue of witness immunity for interlocutory appeal under § 1292(b). However, the District Court did agree to certify the issue of quasi-judicial (or prosecutorial) immunity for such appeal, and included in its March 4 order a declaration that the “Order of November 20,1974 ... be and hereby is certified for interlocutory appeal . pursuant to 28 U.S.C. § 1292(b).” On May 27, 1975, a motions panel of this court granted appellant leave to appeal pursuant to § 1292(b). The resultant interlocutory challenge to the District Court’s failure to dismiss the complaint is the matter now confronting us.⁴

II

In Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872), the Supreme Court declared that

it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own conviction, without apprehension of personal consequences to himself.

At 347 (emphasis added). Subsequent decisions have consistently adhered, either explicitly or implicitly, to the proposition that official immunity, whether absolute or qualified, extends only so far as the affected government official’s authority. See, e. g., Scheuer v. Rhodes, 416 U.S. 232, 250, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Apton v. Wilson, 165 U.S.App.D.C. 22, 29-35, 506 F.2d 83, 90-95 (1974). A government employee is not to be protected merely by virtue of his official position for conduct undertaken outside the scope of his authority. Apparently relying upon these well-settled rules, the District Court in this case reasoned that: (1) Goodwin allegedly perjured himself; (2) perjury is never within a prosecutor’s authority; (3) Goodwin cannot be immune for activity wholly outside his authority.⁵

The difficulty with this approach is that any allegation that an official, acting under color of law, has deprived someone of his rights necessarily implies that, in the particular case, the official exceeded his authority. Such logic would completely abrogate the doctrine of immunity.⁶ Rather, in heeding a district judge’s directive to answer a question relating to his official duties, appellant performed the kind of act not “manifestly or palpably beyond his authority,” but rather “having more or less connection with the general matters committed by law to his control or supervision.” Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780 (1896); see, e. g., Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1343-45 (2d Cir. 1972) (on remand); Cooper v. O’Connor, 69 App.D.C. 100, 104, 99 F.2d 135, 139, cert. denied, 305 U.S. 643, 59 S.Ct. 146, 83 L.Ed. 414 (1938); note 6 supra. The question, then, is whether the immunity to be accorded appellant is qualified or absolute.⁷

Ill

Finding that appellant’s alleged behavior in this case falls outside the confines of those prosecutorial activities for which Imbler prescribed an absolute prosecutorial immunity, we hold that appellant here is entitled only to a qualified immunity, that is to say, his protection from liability depends upon a showing that he entertained a good-faith, reasonable belief in the truth of his response to the federal district judge in Florida. In reaching this result, we rely on a series of federal decisions distinguishing between a prosecutor’s role as advocate, on the one hand, and his function as an administrative or investigative officer, on the other. We further rely upon the Supreme Court’s recognition of this distinction in Imbler, and its express disclaimer of any intention to extend the sway of that case beyond those prosecutorial activities “intimately associated with the judicial phase of the criminal process.” 424 U.S. at 430, 96 S.Ct. at 995.

The alleged prosecutorial misconduct before the Supreme Court in Imbler was quite different from that attributed to appellant in this case, and much more typical of the abuses which have commonly inspired civil actions against prosecutors. Petitioner in Imbler was convicted of first-degree felony murder, and his conviction was unanimously affirmed by the California Supreme Court. Thereafter the local district attorney who had prosecuted Imbler voluntarily wrote to the Governor, announcing the discovery of new evidence, some of which tended to corroborate Imbler's alibi defense, and some of which tended to cast doubt upon the credibility of the state’s chief identification witness. Though all the new evidence taken together did not conclusively establish Imbler’s innocence, the district attorney believed that considerations of fairness compelled disclosure. On the basis of the new information thus revealed, Imbler filed a state habeas corpus petition. While Imbler’s brief in support of this petition praised the prosecutor’s post-trial devotion to duty, it also charged him with knowing use of false testimony and suppression of material evidence. The habeas petition was unanimously rejected by the California Supreme Court.

Nearly five years later, Imbler raised essentially the same contentions in a federal habeas petition. Rendering its decision upon the record without a hearing, the federal district court found several instances of prosecutorial misconduct at trial and accordingly granted habeas relief. The Ninth Circuit affirmed, and when California chose not to retry Imbler, he was released. Subsequently, over eleven years after commission of the offense for which he had been imprisoned, Imbler filed a civil rights suit under 42 U.S.C. § 1983,⁸ claiming, inter alia, that the local prosecutor had intentionally allowed the state’s leading identification witness to testify falsely, had permitted the suppression of fingerprint evidence favorable to Imbler, and had used at trial a police artist’s sketch allegedly altered to resemble Imbler more closely. The complaint also maintained that the district attorney’s decision to proceed with the prosecution was improper in light of an earlier lie detector test which had allegedly cleared Imbler. The federal District Court granted a motion to dismiss on the ground of prosecutorial immunity, and the Ninth Circuit affirmed by a divided panel. 500 F.2d 1301 (1974). The Supreme Court granted certiorari and affirmed. 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

Justice Powell’s opinion for the Court recognized that the doctrine of prosecutorial immunity finds both its common law origins and its primary application in the malicious prosecution context. “The function of a prosecutor that most often invites a common law tort action is his decision to initiate a prosecution, as this may lead to a suit for malicious prosecution if the State’s case misfires.” Id. at 421, 96 S.Ct. at 990. Still focusing on common law precedents, the Court outlined the shared rationale supporting judicial, prosecutorial, and grand juror immunity:

The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.

Id. at 422-23, 96 S.Ct. at 991 (footnote omitted). With respect to these potential dangers, the Court could discern no distinction between § 1983 actions and common law malicious prosecution suits. “If a prosecutor had only a qualified immunity, the threat of § 1983 suits would undermine performance of his duties no less than would the threat of common law suits for malicious prosecution.” Id. at 424, 96 S.Ct. at 992.

Throughout the Court’s opinion, the concentration on claims likely to arise from prosecutorial behavior at or immediately before trial is manifest. “A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court.” Id. (emphasis added). Describing the perils of a contrary result in Imbler, the Court observed that

suits that survived the pleadings would pose substantial danger of liability even to the honest prosecutor. The prosecutor’s possible knowledge of a witness’ falsehoods, the materiality of evidence not revealed to the defense, the propriety of a closing argument, and — ultimately in every case — the likelihood that prosecutorial misconduct so infected a trial as to deny due process, are typical of issues with which judges struggle in actions for post-trial relief, sometimes to differing conclusions. The presentation of such issues in a § 1983 action often would require a virtual retrial of the criminal offense in a new forum, and the resolution of some technical issues by the lay jury. It is fair to say, we think, that the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials.

Id. at 425, 96 S.Ct. at 992 (footnote omitted). All of the worrisome issues thus enumerated by the Court involve possible prosecutorial errors of commission or omission in connection with the trial of a criminal case. This point was further emphasized a bit later in the Imbler opinion when the Court defended its decision in terms of the effective functioning of the criminal justice system: “Attaining the system’s goal of accurately determining guilt or innocence requires that both the prosecution and the defense have wide discretion in the conduct of the trial and the presentation of evidence.” Id. at 426, 96 S.Ct. at 993 (footnote omitted; emphasis added). In conclusion, the Court explicitly “delineate[d] the boundaries” of its holding.

The purpose of the Court of Appeals’ focus upon the functional nature of the activities rather than respondent’s status [as a prosecutor] was to distinguish and leave standing those cases, in its Circuit and in some others, which hold that a prosecutor engaged in certain investigative activities enjoys not the absolute immunity associated with the judicial process, but only a good-faith defense comparable to the policeman’s. We agree with the Court of Appeals that respondent’s activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force. We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate. We hold only that in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under § 1983.

Id. at 430-31, 96 S.Ct. at 995 (emphasis added) (citation and footnotes omitted).

Lest his stress on the advocacy function suggest that the Court was contemplating a mechanical immunity test based solely upon whether alleged prosecutorial misconduct occurred in court during the course of a trial, Justice Powell added a few words of elaboration in the margin.

We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required, constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.

Id. at 431 n. 33, 96 S.Ct. at 995. Thus, the Court, while acknowledging the potential factual problems of future cases, reaffirmed its fundamental reliance on the advocate’s role as the source of the absolute prosecutorial immunity applied in Imbler. Although the passage quoted above makes clear that a prosecutor’s advocacy function does extend beyond the confines of the trial courtroom, the examples of such preliminary advocate activities provided by the Supreme Court are instructive for their common focus on a particular criminal proceeding. By the plain import of the Court’s remarks, absolute immunity under Imbler extends only so far as necessary to protect a prosecutor’s decision with respect to the initiation and conduct of particular cases. Imbler does not, in our reading, immunize prosecutors for any and all measures they may undertake in the course of wide-ranging law enforcement investigations or general fact-finding expeditions.

As the Supreme Court observed, the Ninth Circuit’s affirmance in Imbler deliberately left undisturbed earlier decisions in that court and others which had held that prosecutors are entitled to only a qualified immunity for conduct performed in an investigative or administrative capacity. See Apton v. Wilson, 165 U.S.App.D.C. 22, 30, 32-33, 506 F.2d 83, 91, 93-94 (1974); Guerro v. Mulhearn, 498 F.2d 1249, 1256 (1st Cir. 1974); Hampton v. City of Chicago, 484 F.2d 602, 608-09 (7th Cir. 1973) (Stevens, J.), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974); Littleton v. Berbling, 468 F.2d 389, 410-11 (7th Cir. 1972), cert. denied, 414 U.S. 1143, 94 S.Ct. 894, 39 L.Ed.2d 97 (1974); Dodd v. Spokane County, Washington, 393 F.2d 330, 335 (9th Cir. 1968); Robichaud v. Ronan, 351 F.2d 533, 536-37 (9th Cir. 1965); Tomko v. Lees, 416 F.Supp. 1137, 1139 (W.D.Pa.1976), and Burkhart v. Saxbe, 397 F.Supp. 499, 503 n.4 (E.D.Pa.1975). Cf. Madison v. Purdy, 410 F.2d 99, 101-02 (5th Cir. 1969); Lewis v. Brautigam, 227 F.2d 124, 128-29 (5th Cir. 1955), and Ames v. Vavreck, 356 F.Supp. 931, 936-37 (D.Minn.1973) (all refusing to apply absolute immunity to arguably “investigative” activities, although doing so on the ground that the prosecutor’s alleged behavior may have been “outside the scope of his jurisdiction;” only Ames refers specifically to prosecutors acting as investigators). See also Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir. 1976) (noting the Imbler distinction between advocacy and investigation); Tyler v. Witkowski, 511 F.2d 449, 451 (7th Cir. 1975) (applying absolute immunity in a § 1983 false imprisonment suit, but citing Hampton, and explicitly acknowledging that the conduct assailed was not investigatory); Duba v. McIntyre, 501 F.2d 590, 592 (8th Cir. 1974), cert. denied, 424 U.S. 975, 96 S.Ct. 1480, 47 L.Ed.2d 745 (1976) (apparently accepting the proposition that absolute immunity will not apply to prosecutors acting in an investigatory capacity); Barnes v. Dorsey, 480 F.2d 1057, 1060 (8th Cir. 1973) (specifically reserving “the question of the liability of a prosecutor acting within an investigatory capacity”); Wilhelm v. Turner, 431 F.2d 177, 182-183 (8th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 919, 28 L.Ed.2d 230 (1971) (recognizing that earlier cases had drawn the advocacy-investigation distinction, but finding it unnecessary to rule on the matter, since, in any event, affidavits established that the State Attorney General and his assistant were “acting in good faith and had probable cause for their actions”); Fanale v. Sheehy, 385 F.2d 866, 869 (2d Cir. 1967) (Feinberg, J. and Waterman, J., though concurring in a holding of immunity, agree that “there would be some situations ... in which even ‘official’ acts of a prosecuting officer should not be protected by absolute immunity from civil liability”); Bauers v. Heisel, 361 F.2d 581, 589-95 (3d Cir. 1966) (en banc), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967) (finding absolute immunity in an easy case where plaintiff attacked the prosecutor’s choice of forum, but nevertheless provoking one concurrence which refused to reach the immunity issue, and a second concurrence and two dissents which took issue with the majority’s sweeping description of a prosecutor’s quasi-judicial immunity); and Harmon v. Superior Court, 329 F.2d 154, 155 (9th Cir. 1964) (commenting that thé acts complained of were “quasi-judicial” acts, and therefore entitled to quasi-judicial immunity). But cf. Cambist Films, Inc. v. Duggan, 475 F.2d 887, 888-89 (3d Cir. 1973) (ambiguous per curiam in common law damage action arising out of illegal seizure allegedly ordered by local district attorney; seems to suggest that, even had the action been brought under § 1983, absolute immunity would apply to all prosecutorial behavior, regardless of character, unless defendant acted “in the clear absence of all jurisdiction”).⁹

We find ourselves in general agreement with the common theory underlying the first group of decisions listed above. When a prosecutor is engaged in essentially investigative as opposed to advocatory activities, the considerations of public policy which necessitated a grant of absolute immunity in Imbler no longer control. Regardless of his official status, a prosecutor functioning primarily as an investigator should be accorded only the qualified immunity typically conferred on other investigative officers. The crucial inquiry concerns the nature of the official behavior challenged, not the identity or title of the officer responsible therefor. These sentiments were well-expressed by the Fourth Circuit in McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972:

The immunity of “quasi-judicial” officers such as prosecuting attorneys and parole board members derives, not from their formal association with the judicial process, but from the fact that they exercise a discretion similar to that exercised by judges. Like judges, they require the insulation of absolute immunity to assure the courageous exercise of their discretionary duties. Where an official is not called upon to exercise judicial or quasi-judicial discretion, courts have properly refused to extend to him the protection of absolute judicial immunity, regardless of any apparent relationship of his role to the judicial system.

456 F.2d at 3-4 (footnotes omitted).

Accepting as true the allegations of the complaint herein, as we must in the present posture of this case, we believe that appellant’s false statement to the federal district court in Florida is properly characterized as an act of investigation rather than advocacy. To some extent, of course, assignment of a particular incident to one of several mutually exclusive abstract categories is likely to involve an element of arbitrariness, especially where the incident in question was clearly not envisioned by those who originally devised the classificatory scheme. But appellant’s alleged perjury bears no relation whatever to the advocate’s role as conceived by the Supreme Court in Imbler. The obligation to disclose, pursuant to judicial direction, the presence of Government informants among those subpoenaed to testify before the grand jury is entirely foreign to advocacy issues such as whether to initiate a prosecution or how to conduct a prosecution once begun. Such disclosure was, rather, an action required of appellant by the court in order to enable the court to deal with a possible defect in the conditions under which subpoena compulsions had been brought to bear in the grand jury investigation.

Application of only a qualified immunity in this case cannot possibly arouse the fears which animated the Supreme Court in Imbler, namely, that prosecutors will be adversely affected in the discharge of their public duties. The federal district court in Florida sought information about one aspect of the Government’s investigation of the VVAW. Appellant allegedly provided the court with willfully false information about the matter, with the result that a Government informant remained in appellees’ confidence for approximately a year longer than he otherwise would have. We can detect nothing even vaguely resembling advocacy in appellant’s behavior. Indeed, even the language of appellant’s own motion to dismiss in the District Court acknowledges that he was dispatched to Florida for the purpose of conducting an investigation. Though he asserts in conclusory fashion that his challenged action “fall[s] squarely within the exercise of the judicial function” (see Brief for Appellant at 23, 35 n.15), appellant cites absolutely no authority for the proposition that the statement of which appellees complain was in the nature of advocacy.

Appellant has referred us to over twenty cases which purportedly establish that “prosecutors enjoy absolute immunity for acts done in the performance of their official functions.” Brief for Appellant at 18 & n. 9. We have examined all these decisions and numerous others of a similar nature, but find none of them determinative of the dispute now before us. The cases collected by appellant hold unanimously that a prosecutor is entitled to absolute immunity for his quasi-judicial activities. After Imbler, this point is incontestable. However, none of the precedents upon which appellant relies support his contention that the behavior at issue here falls within the scope of the absolute quasi-judicial immunity endorsed by the Supreme Court in Imbler. The vast majority of cases cited involve claims arising from prosecutorial acts which unquestionably qualify for immunity under Imbler, e. g., the decision to initiate a criminal prosecution or the orchestration of an ensuing criminal trial.¹⁰ The combined efforts of counsel and this court have failed to unearth a single prior occasion on which damages have been sought for misconduct like that alleged here.

We are aware that earlier cases in which prosecutorial behavior has been termed investigative have involved factual situations distinct from that currently before us.¹¹ Nevertheless, the dissimilarities between this case and those which have preceded it do not render the conduct at issue here any less investigative or any more advocatory. Appellant contends rather mechanically that because his alleged perjury occurred in a courtroom exchange, after a grand jury had been convened, the description “intimately associated with the judicial process” automatically fits. Our answer to this argument is two-fold.

First, the timing of prosecutorial action, by itself, is not dispositive of the immunity issue. The fact that a grand jury is about to hear testimony or has already begun to hear testimony does not imply that all subsequent prosecutorial activity is ipso facto advocacy, and not investigation. Justice Powell’s penultimate footnote in Imbler established that the advocate’s role could entail certain “actions preliminary to the initiation of a prosecution and actions apart from the courtroom.” 424 U.S. at 431 n. 33, 96 S.Ct. at 995. This does not foreclose the fact that the investigative function may embrace some acts even when performed after the commencement of judicial proceedings. Attention must be focused on the behavior itself, and not solely on its timing. Appellant’s statement to the court in Florida does not acquire the character of advocacy merely because it was made after the grand jury had met, rather than several days earlier.

Secondly, and completely independent of the timing point, we think that, in a real sense, this litigation concerns behavior more plainly investigative than that encountered in some of the earlier cases cited above. In Robichaud, for example, the crucial events took place only after the prosecutors’ field of vision had already narrowed to one crime and one prospective defendant. A criminal complaint was filed, allegedly with malice and without probable cause, charging the sixteen-year old appellant with first degree murder. In due course, she was arrested, and, allegedly under the direction of the County Attorney and his deputy, police officials attempted to extract a confession from her through lengthy confinement in the “drunk tank” with adult female prisoners, a forced visit to the scene of the crime, and various species of deceit and intimidation. These latter features of appellant’s § 1983 complaint prompted the Ninth Circuit’s reference to investigative conduct by prosecutors.

Here, by contrast, appellant’s primary task in Florida was to determine whether any violations of federal law properly attributable to the VVAW or its members had occurred. If any such federal crimes had been committed, Goodwin was to ascertain the precise nature of those crimes, and the identity of VVAW members to whom criminal liability might attach. The grand jury was to function in the first instance as an investigative tool, rather than in its more familiar guise as a deliberative body deciding whether to return indictments for specific crimes on the basis of evidence gathered and presented by a public prosecutor. The grand jury proceeding in this case was designed as a broad scale investigation into possible illegal activity by the VVAW or its members. The Fifth Circuit in Beverly characterized it as such by saying (at p. 735 of 468 F.2d) that “[t]he grand jury was investigating alleged plans of the VVAW to disrupt the Republican National Convention in Miami, Florida, to be held the week of August 21, in violation of various criminal statutes.”

Several pieces of evidence may be adduced in support of this proposition. First, many more VVAW members were subpoenaed to appear before the grand jury than were ever indicted. Second, the indictments which the Government did obtain were returned despite the fact that none of the VVAW members subpoenaed actually testified. Third, appellee Briggs was subpoenaed a month after the original group of subpoenas was issued, and appellees Briggs and Michelson were indicted more than three months after appellant’s investigation began. The ongoing character of the grand jury process in this case helps to convince us that appellant had embarked on what was fundamentally a fact-finding mission, and that his false statement to the court, if such it was, was intended to approve the prospects for that endeavor’s success.

We mention one further reason for our conclusion that the absolute immunity contemplated by Imbler does not cover this case. As Judge Leventhal observed for this court in Apton, supra, absolute prosecutorial immunity for behavior “intimately associated with the judicial process” is “both justified and bounded by the judicial traditions and procedures that limit and contain the danger of abuse.” 165 U.S.App.D.C. at 32, 506 F.2d at 93. When prosecutorial activity is properly classifiable under the “quasi-judicial” rubric, “the circumstances typically provide alternative instruments of the judicial branch to check misconduct— the discretion of the grand jury, the procedures of a trial, and the potential sanction of discipline imposed by the court itself.” Id. 165 U.S.App.D.C. at 33, 506 F.2d at 94. In theory, of course, appellant faces both criminal and professional penalties for any misrepresentations he may have made to the federal district court in Florida. However, the passage of four and a half years without any apparent official inquiry, even by the court to which the seeming misstatement was made, into appellants’ conduct in July, 1972 underscores the fact that such restraints on prosecutorial excesses are likely to remain theoretical only. The demonstrably negligible probability of official discipline thus detracts from the significance of the third safeguard enumerated in Apton.

Even were this not so, the first two potential checks suggested in Apton were totally absent here. As indicated above (see the discussion of Imbler following note 8 supra), typical civil suits against prosecuting attorneys involve allegations of malicious prosecution, deliberate use of false testimony, or deliberate suppression of exculpatory evidence. In all these situations, jury discretion is brought to bear in evaluating the persuasiveness of the prosecution’s presentation, and defense counsel enjoys the opportunity to employ a variety of procedural devices to challenge the accuracy of the Government’s position and thereby to preserve the integrity of the truth-seeking enterprise. Here, no jury assessed the credibility of appellant’s assertion that no Government informants were included among the subpoenaed VVAW members. In addition, appellees and their counsel were required to accept appellant’s representation on faith. The court, which put the one and only question asked, did not explore the basis for appellant’s denial that informants were present in appellees’ camp, and appellees’ effort to pursue the matter further through questioning was not permitted. Given, therefore, not only the character of appellant’s statement as protective of the investigation so he proposed to conduct it, but also its peculiar insulation from probing examination and jury appraisal, we regard absolute immunity as inappropriate in this case. It may of course be true that appellant’s answer to the court’s question was made in perfect good faith, but that is a matter open to demonstration under qualified immunity.

IV

The dissent, stressing that the gravamen of appellees’ complaint concerns an act committed on the witness stand, seeks to resolve the dispute before us by reference to the common law doctrine of witness immunity. The dissent asserts that “[i]t thus becomes necessary in these opinions to treat both prosecutorial and witness immunity.” Whatever else may be said of this approach, it inevitably involves consideration of subjects neither briefed nor argued on this appeal. Presumably, appellant’s failure to raise the witness immunity point on appeal is attributable to the District Court’s refusal to- certify that matter for immediate interlocutory appeal undér 28 U.S.C. § 1292(b) (1970).¹² We address it only because the dissent treats it as dispositive.

Appellant’s initial motion to dismiss, filed July 22,1974, alleged lack of subject matter jurisdiction and absolute immunity from any suit based upon appellant’s conduct “while acting in his official capacity . . . as a Special Attorney of the United States Department of Justice and Federal prosecutor” responsible for the VVAW investigation and grand jury proceeding. That motion was denied by the District Court’s order of November 20, 1974. Nearly a month later, appellant filed a new motion to dismiss grounded on witness immunity. In an order issued March 4, 1975, the District Court (1) denied the second motion to dismiss, (2) certified the November 20 order for interlocutory appeal under § 1292(b), and (3) expressly refused to certify for that purpose the March 4 order involving witness immunity.

In enacting § 1292(b), Congress vested in the district judge power to determine which orders involve controlling questions of law appropriate for interlocutory review. In light of this statutory scheme, it is not surprising that government counsel representing appellant apparently believed that the witness immunity issue was not before this court, but rather was preserved for ultimate review of a final judgment in this law suit. Since § 1292(b) provides in terms for appeals from orders, as distinct from the controlling questions of law identified by the district judge, it has been suggested that, when a particular order is the subject of an interlocutory appeal under § 1292(b), all other issues relevant to the result reached by that order should be open for appellate consideration.¹³ This position is not yet firmly established in reported decisions. Moreover, even if we were to accept it without reservation, its force would be substantially diminished in the present context where the order certified for appeal is a separate order from the one denying the witness immunity motion.

We do not pursue the matter for the reason that a majority of the panel are of the view that, given the desirability of avoiding further proceedings in the trial court if appellant is in fact shielded by an absolute immunity of any kind, we may, and should, address the witness immunity point pursuant to what the Supreme Court has recently termed “the so-called ‘collateral order’ exception to the final judgment rule first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) . . .,” Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977) (pretrial order denying motion to dismiss indictment on double jeopardy grounds appealable immediately). Since appellant’s claim of absolute witness immunity can be said to be collateral to, and separate from, the issue of his liability to be explored at trial, and since absolute immunity is designed to protect against amenability to suit itself as well as to a verdict of liability at trial, the theoretical foundations of the collateral order doctrine, at least as they are characterized in Abney, may be thought to be present here.¹⁴

We turn to the merits without the customary benefit of briefing and argument by the parties, but we doubt that appellant would seriously undertake to maintain that he was an ordinary witness. Although he was called upon by the court to make a representation of fact in a courtroom after being sworn, that act did not involve giving testimonial evidence in the usual sense at a trial or even before grand jurors. He was directed to do so by the court in order promptly to get a representation from counsel on the record under oath, and thereby to lay to rest the legitimate claim of appellees that they were entitled to know, before submitting to the compulsion of the subpoenas, whether their number included Government undercover agents.

That claim raised a question going to the very integrity of the manner in which the grand jury proceeding was being conducted. Had appellant volunteered to represent as an officer of the court that no informers were involved, and had the parties been content with that, there would be no issue as to witness immunity worthy of the name. The difference between the falsity of such a nontestimonial representation, on the one hand, and the technical consequence of perjury attached to a statement under oath, on the other, is not at the heart of the immunity issue in this appeal. The question is whether appellant is wholly immune from a civil suit based upon his utterance of an allegedly false statement in the context of countering a challenge to the manner in which he was conducting a grand jury inquiry.

The statement assailed here was prompted by, and directly incidental to, appellant’s status as a prosecutor managing and administering an investigation. Appellant’s unqualified negative response to the district judge’s plain and abrupt question was essential to the forward progress of the grand jury investigation, for which appellant as a federal prosecutor had been charged by his superiors with the responsibility. To the extent that appellant’s one word answer is viewed as a testimonial act, it was one occasioned by, and critical to, appellant’s discharge of that responsibility.

The dissent thus is unrealistic in treating appellant not as a prosecutor managing and directing an investigation but rather as an ordinary witness summoned to give his evidence in a legal proceeding. It is obvious from the transcript that the court did not consider appellant to be an ordinary witness. It ordered him to take the stand; it asked him one question; and it forthwith excused him. Indeed, when appellees’ counsel sought leave to cross-examine, the court denied it. The policies underlying the common law doctrine of witness immunity are tangential, and essentially irrelevant, to the question of whether appellant — a prosecutor functioning in an investigative context — should be accorded complete invulnerability to suit for the consequences of an act performed in that capacity.

Our holding on this aspect of the appeal rests on the foregoing considerations, and it is, accordingly, of a piece with what we have said earlier in this opinion with respect to the prosecutorial immunity issue certified by the District Court. If we have misconceived the precise scope of Imbler, then our finding of qualified, as distinct from absolute, immunity on the facts of this case will fall. But that result, in our submission, will not be because appellant’s answer to the question put to him by the court was given from the witness stand. It will be because that act will be deemed, even under the special circumstances of this case, not to come within the prosecutorial administrative and investigative functions reserved by Imbler.

Having thus made clear that in our view this record in truth raised no issue of witness immunity to be certified by the District Court as “a controlling question of law as to which there is substantial ground for difference of opinion,” and that the resolution of this uncertified question is encompassed in our holding on the certified question, it remains appropriate to append our reservations about the indiscriminate claims made by the dissent for common law witness immunity.

First, the immunity of witnesses at common law was not as monolithic as the dissent might suggest. The comprehensive rule announced by Lord Mansfield in 1772 and reproduced in the dissent was not borrowed in its entirety by the majority of American jurisdictions. While most American courts do speak of an absolute witness immunity, they commonly temper the reach of their decisions by imposing a supplementary requirement of pertinency or relevancy. See, e. g., Myers v. Hodges, 53 Fla. 197, 208-09, 44 So. 357, 361 (1907). (“In the United States, according to the overwhelming weight of authority, in order that defamatory words, published by parties, counsel, or witnesses in the due course of judicial procedure, may be absolutely privileged, they must be connected with or relevant or material to the cause in hand or subject of inquiry”); McDavitt v. Boyer, 169 Ill. 475, 48 N.E. 317 (1897); Barnes v. McCrate, 32 Me. 442 (1851), and Cooley v. Galyon, 109 Tenn. 1, 70 S.W. 607 (1902).

We cite these authorities not to imply that appellant’s answer in this case was not responsive to the judge’s question, but only to indicate that the more extreme English rule espoused by Lord Mansfield was not wholeheartedly embraced by most American jurisdictions. Furthermore, despite the broad and dogmatic language employed by many American courts, one does encounter occasional common law opinions which cast some doubt upon the extent to which absolute witness immunity protects knowingly false testimony. See, e. g., Liles v. Gaster, 42 Ohio St. 631, 636 (1885) (“What [a witness’] liability . . . may be, if he was guilty of intentional falsehood, and actual malice, we need not here determine, as the case made does not require it”).

We observe further that the dissent does not refer us to cases which establish the existence and scope of witness immunity under federal common law.¹⁵ As noted earlier (see note 8 supra), even where common law torts are alleged, the immunity to be conferred on federal officials is governed by a federal standard, which need not be identical to the standard applied in a particular state or even in the majority of states.

Finally, it is far from clear that, as the dissent asserts, a witness should enjoy the same measure of immunity, regardless of whether the wrong of which he is accused rises to constitutional dimension. Whatever the precise nature of the immunity accorded to witnesses at common law, that immunity applies without distinction to any individual serving as a witness in a judicial proceeding. On the other hand, where a constitutional infringement is alleged, the defendant-witness will almost invariably be a Government official. (At minimum, the “under color of law” requirement will assure some direct government involvement in the challenged testimony.) This is a crucial difference. Policy considerations counselling the insulation of private citizens from civil liability arising from their performance as witnesses do not apply with equal force when a complaint charges that constitutional rights have been violated by a public employee operating from the witness stand.

The unique importance of constitutional rights hardly needs restatement. Both Congress and the Supreme Court have created special causes of action to provide a remedy for official misconduct which infringes constitutionally protected interests. Given this notably solicitous attitude toward the effectuation of constitutional guarantees, it can be asserted with both reason and authority that absolute immunity is not to be extended to the constitutional tort context absent the most compelling justification.

Indeed, in Scheuer v. Rhodes, supra, the Supreme Court, confronted with two of its own decisions which accorded federal executive officials absolute immunity from common law damage actions, nevertheless granted only a qualified immunity to high-level state executive officials sued for constitutional violations under § 1983. See 416 U.S. at 247, 94 S.Ct. 1683. Extensive discussion of this point may be found in Judge Celebrezze’s dissent from the Sixth Circuit’s opinion in the same case, Krause v. Rhodes, 471 F.2d 430, 453-59 (6th Cir. 1972), rev’d, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). See also States Marine Lines, Inc. v. Shultz, 498 F.2d 1146, 1159 n. 12 (4th Cir. 1974); Norton v. McShane, 332 F.2d 855, 860-61 (5th Cir. 1964); Burkhart v. Saxbe, 397 F.Supp. 499, 502 n. 3 (E.D.Pa.1975); and Note, Damages for Federal Employment Discrimination: Section 1981 and Qualified Executive Immunity, 85 Yale L.J. 517-518 & n.54 (1976). But see Brawer v. Horowitz, 535 F.2d 830, 836-37 (3d Cir. 1976) (witness immunity issue only reached after court assumed that private citizen testifying for federal government in criminal prosecution would be amenable to Bivens -type suit seeking damages for deprivation of constitutional rights by a federal official); Fidtler v. Rundle, 497 F.2d 794, 798 (3d Cir. 1974); Johnson v. Alldredge, 488 F.2d 820, 826-27 (3d Cir. 1973), cert. denied, 419 U.S. 882, 95 S.Ct. 148, 42 L.Ed.2d 122 (1974); Bauers v. Heisel, 361 F.2d 581, 586-91 (3d Cir. 1965) (en banc), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967), and Hahn v. Sargent, 388 F.Supp. 445, 452 (D.Mass.), aff’d on other grounds, 523 F.2d 461, 467 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976).

Even where the Supreme Court has followed the common law example in determining that absolute immunity is appropriate in a constitutional tort setting, the Court has explicitly recognized that it was in no way bound by precedent to reach the result it did. See, e. g., Imbler, supra, 424 U.S. at 424, 96 S.Ct. 984; Pierson, supra, 386 U.S. at 554-55, 87 S.Ct. 1213; and Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).

Since, for the reasons outlined above, we do not believe that appellant is protected by the absolute prosecutorial immunity described in Imbler, and since we are unable to join in the dissent’s interpretation of the impact of witness immunity on this case, the November 20, 1974 order of the District Court denying appellant’s motion to dismiss is affirmed.

It is so ordered.

1 .The contempt orders were later vacated on grounds unrelated to this case. See Beverly v. United States, 468 F.2d 732 (5th Cir. 1972). The court’s opinion in Beverly noted that, of the 23 VVAW members or associates subpoenaed to appear before the grand jury in Tallahassee on the morning of July 10, 1972, the first day of the Democratic National Convention in Miami Beach, four were dismissed two days later and all but two of the remainder were dismissed on July 13, the last day of the Convention. Most of those subpoenaed were not called upon to give testimony. Since the subpoenas effectively prevented their utilization of the parade permits they had obtained from the Miami authorities for anti-war demonstrations during the Convention, the contention was made in Beverly, albeit disallowed, that the grand jury process, either in purpose or effect, was invalid as denying First Amendment rights. The indictments returned on July 13 against six of those subpoenaed were based on the testimony of other witnesses.

2 . The complaint in this action states only that six appellees were “indicted for conspiracy to cross state lines and riot at the Republican National Convention,” held in Miami from August 21 to August 24, 1972. Further detail about the criminal charges is not available in the record, but may be obtained from the opinion in Beverly, id. at 737 n. 9.

3 . In addition to appellant, the complaint named as defendants two regular federal prosecutors from the Northern District of Florida, and a special agent of the FBI. The complaint was dismissed as to the latter three defendants for lack of venue and personal jurisdiction. In Briggs v. Goodwin [Stafford, et al.] 186 U.S. App.D.C. 170, 569 F.2d 1, decided today, the District Court is reversed and the complaint reinstated as to those defendants.

4 . The District Court’s ruling did not reach the question of whether appellees’ request for equitable relief was barred by the official immunity doctrine. It is uncertain at best whether consideration of this issue falls within the scope of our jurisdiction on this interlocutory appeal under 28 U.S.C. § 1292(b) (1970). We believe it to be fairly clear that official immunity ordinarily bears only on the availability of a damages remedy, rather than prospective equitable relief, see, e. g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Dombrowski v. Pfister, 380 U.S. 479, 88 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), and in any event, our resolution of the immunity issue in the context of the request for monetary relief would likely preclude refusal to award equitable relief on the basis of official immunity. However, we believe it the better practice to leave this issue to be addressed in the first instance in the District Court. The District Court will be able simultaneously to consider a range of other possible objections to such relief, based upon questions of constitutionality, justiciability, the scope of the court’s power, the availability of that relief against the named defendants, and so forth.

5 . Briggs v. Goodwin, 384 F.Supp. 1228, 1230 (D.D.C.1974):

Where, as in this case, a prosecutor is alleged to have committed perjury, an activity beyond the scope of his authority, in clear violation of law and far removed from the discretionary areas of the judicial process traditionally protected by the quasi-judicial immunity doctrine, the Court concludes that this doctrine is not applicable.

6 . See, e. g., Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (L. Hand., C. J.), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950):

The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him.

Accord, Note, Quasi-Judicial Immunity: Its Scope and Limitations in Section 1983 Actions, 1976 Duke L.J. 95, 110-11.

7 . Traditionally, courts have refused to confer absolute immunity upon behavior which, though clearly within the scope of an official’s authority, was “ministerial” rather than “discretionary” in character. See, e. g., Johnson v. Alldredge, 488 F.2d 820, 824-25 & n. 2 (3d Cir. 1973), cert. denied, 419 U.S. 882, 95 S.Ct. 148, 42 L.Ed.2d 122 (1974); Whirl v. Kern, 407 F.2d 781, 790-92 (5th Cir. 1968), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969), modified, Bryan v. Jones, 530 F.2d 1210 (5th Cir. 1976) (en banc ; six opinions); Cooper v. O’Connor, 69 App.D.C. 100, 102, 99 F.2d 135, 137 & n. 2, cert. denied, 305 U.S. 643, 59 S.Ct. 146, 83 L.Ed. 414 (1938). As Prof. Jaffe has perceptively observed, the “ministerial-discretionary” dichotomy may well be “a way of stating rather than arriving at the result.” Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209, 218 (1963). Certainly acknowledgement of the abstract distinction does not by itself resolve the difficult and varied immunity questions which may be presented by the infinite permutations of a government’s interaction with its citizens. Some courts, presumably motivated by a desire for technical accuracy, have denied “immunity” altogether for so-called ministerial acts. These courts, respecting the conventions of pleading terminology, have apparently felt that the term “immunity” suggests immediate success on a motion to dismiss, and therefore have not used the phrase “qualified immunity” to denote the availability of a “good faith, reasonable belief’ affirmative defense for government officials charged with constitutional torts. See, e. g., Fidtler v. Rundle, 497 F.2d 794, 800-01 (3d Cir. 1974); Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1342-43, 1345-48 (2d Cir. 1972) (on remand). Recent Supreme Court decisions have generally avoided the “ministerial-discretionary” language in favor of analysis focusing directly on the need for differing levels of protection in connection with different official functions, the performance of which has given rise to damage claims. See, e. g., Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); and Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). We view this methodological shift as a salutary development in the case law. However, we note in passing that under a more traditional approach, appellant’s act of answering a single inquiry from the court, an inquiry which plainly called for a simple affirmative or negative response, might well have been classified as a ministerial, rather than a discretionary, act, and thus accorded at best a qualified immunity.

8 . Unlike the California prosecutor in Imbler, appellant in the present case is a federal employee. Therefore, this suit has been brought under a Bivens theory, rather than as a § 1983 action. We are convinced that this dissimilarity does not diminish, for our purposes, the precedential value of Imbler and other cases involving § 1983 suits. In explaining this statement we begin by observing that where officers have been accused of common law torts, courts have turned to federal law for the delineation of appropriate immunities. See Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963), and Norton v. McShane, 332 F.2d 855, 860 n. 6 (5th Cir. 1964). Moreover, the features of immunities developed under federal common law need not duplicate the characteristics of corresponding immunities as they have evolved in the decisional law of the various states. See, e. g., Fidtler v. Rundle, 497 F.2d 794, 799 (3d Cir. 1974). Thus, where common law tort allegations are concerned, state and federal officers may conceivably be accorded different measures of immunity for similar wrongs. However, § 1983 is a federal statute, creating a federal cause of action for constitutional violations committed under color of state law. The immunities enjoyed by state officials sued under § 1983 are governed by federal law. See, e. g., Fidtler, supra, at 799-800; Comment, Civil Liability of Subordinate State Officials Under the Civil Rights Act and the Doctrine of Official Immunity, 44 Calif.L.Rev. 887 (1956); Note, The Doctrine of Official Immunity Under the Civil Rights Acts, 68 Harv.L.Rev. 1229 (1955). In ascertaining what this federal immunity standard ought to be in a particular case, courts are often guided by the general common law tradition, but they are certainly under no compulsion to adhere to the vagaries of peculiar state common law rules, or even to a clear common law consensus position, assuming one exists. See, e. g., Scheuer, supra.

In the five years since the Supreme Court announced its decision in Bivens, supra, the lower federal courts have produced some conflicting interpretations of the holding in that case. Numerous jurisdictions have apparently concluded that Bivens established a cause of action for damages arising from the violation of any constitutional right by a federal official. See, e. g., Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975); Yiamouyiannis v. Chemical Abstracts Service, 521 F.2d 1392 (6th Cir. 1975); States Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974); United States ex rel. Moore v. Koelzer, 457 F.2d 892 (3d Cir. 1972); Gardels v. Murphy, 377 F.Supp. 1389 (N.D.Ill.1974), and Butler v. United States, 365 F.Supp. 1035 (D.Haw.1973). Other courts have read the leading case more narrowly, restricting its sway to Fourth Amendment transgressions like that actually treated by the Supreme Court in Bivens. See, e. g., Moore v. Schlesinger, 384 F.Supp. 163, 165 (D.Colo.1974), aff'd by unpub. opinion (10th Cir. Nov. 21, 1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1738, 48 L.Ed.2d 203 (1976); and Davidson v. Kane, 337 F.Supp. 922, 924 (E.D,Va.l972). Several tribunals have noted the issue, but reserved decision. See, e. g., Holodnak v. Avco Corp., Avco-Lycoming Div., Stratford, Conn., 514 F.2d 285, 292 (2d Cir.), cert. denied, 423 U.S. 892, 96 S.Ct. 188, 46 L.Ed.2d 123 (1975), and Wahba v. New York University, 492 F.2d 96, 103-04 (2d Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974).

In this case, the District Court may eventually have to resolve the question of whether appellees’ complaint states a valid cause of action within the contemplation of Bivens. We need not now consider whether Bivens authorizes constitutional tort suits against federal officers to the same extent that § 1983 allows similar litigation against state functionaries. We declare only that, assuming the rule of Bivens comprehends a damage action for a particular constitutional infringement by a federal officer, the federally-determined immunity applicable in such a case should be no different from the federally-determined immunity available in a § 1983 suit against a state official. Prior decisions in this circuit and elsewhere provide abundant support for our comments in this regard. See, e. g., Economou v. United States Dept. of Agriculture, 535 F.2d 688, 695 n. 7 (2d Cir. 1976), cert. granted, 429 U.S. 1089, 97 S.Ct. 1097, 51 L.Ed.2d 534 (1977); Mark v. Groff, 521 F.2d 1376, 1380 (9th Cir. 1975), and Apton, supra, relying on the Supreme Court’s holding in Scheuer, which was a § 1983 suit, even though Apton involved federal officials sued under the Fourth and Fifth Amendments.

9 . An isolated and clearly incorrect footnote in S & S Logging Co. v. Barker, 366 F.2d 617, 620 n. 2 (9th Cir. 1966), constitutes the only other authority offered by appellant which arguably rejects the notion that a prosecutor in his investigative role should be accorded a lesser measure of immunity than he merits when functioning as an advocate. S & S Logging was a private Clayton Act suit in which Federal Forest Service officials were held absolutely immune from charges that they had conspired to monopolize and control the sale of government-owned timber. In trying to explain the earlier decision of a different Ninth Circuit panel in Robichaud, supra, Judge Pope’s opinion in S & S Logging erroneously relied on the fact that the Robichaud complaint rested upon § 1983. This view that the qualified immunity announced in Robichaud was traceable to the statutory underpinning of appellant’s claim rather than to the investigatory nature of appellees’ conduct stemmed in part from an over-broad reading of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Barr had established that executive officials enjoyed absolute immunity from common law damage suits based on discretionary actions within the scope of their authority. Barr dealt neither with the quasi-judicial immunity of prosecutors nor with the level of immunity generally appropriate in constitutional tort suits under § 1983. Nevertheless, the S & S Logging court or some reason felt that Barr precluded the grant of different types of immunity for different types of prosecutorial conduct attacked under § 1983. The idea that the qualified immunity in Robichaud could be defended solely by reference to the § 1983 context of that case is particularly surprising in light of the court’s actual holding in S & S Logging, i. e., finding absolute immunity for executive officials in a Clayton Act suit, even while admitting that most previous applications of such immunity had occurred in the common law arena. See 366 F.2d at 622.

10 . Some further comments are appropriate in connection with two of the precedents flagged by appellant. In a frequently-quoted opinion by Learned Hand, the Second Circuit in Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950), expounded the standard justification for absolute prosecutorial immunity. The difficulty with Gregoire lies in its facts. Appellant sued two successive Attorneys General of the United States, two successive Directors of the Enemy Alien Control Unit of the Department of Justice, and the District Director of Immigration at Ellis Island. Appellant alleged that he had been kept in custody as a German enemy alien for nearly four years after the Enemy Alien Hearing Board had ruled that he was a Frenchman. No prosecutorial advocacy or quasi-judicial activity was involved. Of course, the dispute in Gregoire arose long before Bivens, supra, and therefore had to be litigated as a common law tort action, since appellees were federal officials. Without criticizing any of the reasoning employed by Judge Hand, we suggest that, were the case to arise today, appellees’ conduct might well be deemed investigative or administrative, and thus accorded only a qualified immunity in a Bivens-type suit.

Duba v. McIntyre, 501 F.2d 590 (8th Cir. 1974), cert. denied, 424 U.S. 975, 96 S.Ct. 1480, 47 L.Ed.2d 745 (1976), presents a different problem. On September 11, 1970, appellant pled guilty to a charge of “unlawfully, permitting some of his hogs to run at large upon the streets of the City of Friend, Nebraska.” He was released on condition that he pay a $55 fine within one week. When the fine remained unpaid on September 24, the city attorney caused the local Justice of the Peace to issue a warrant for appellant’s arrest. As recounted by the Eighth Circuit, appellant was “arrested and detained for about one hour, and 110 of his hogs were attached, loaded, and removed to an auction bam in York, Nebraska, where they were sold the following day without bond, inventory, or advertisement.” 501 F.2d at 591. The appellate court recognized that prosecutors are cloaked with absolute immunity only when théy act “within the scope of their proper prosecutorial capacity, rather than in an investigatory capacity.” Id. at 592. However, the per curiam opinion never focused directly on the behavior of the city attorney. Rather, resolution of the immunity issue with respect to the Justice of the Peace was apparently considered dispositive of the prosecutor’s immunity claim as well. In proceeding on this assumption, the court adhered strictly to its description of prosecutorial immunity as a “derivative form of immunity,” springing from the absolute immunity enjoyed by judges under Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872). Because issuance of the arrest warrant was clearly within his general powers under state law, the Justice of the Peace in Duba was found absolutely immune from civil suit. The prosecutor’s immunity for his conduct in connection with the arrest and execution sale then followed automatically. This approach appears faulty. While the court accurately identified the origins of prosecutorial immunity, it incorrectly concluded that the historical background necessitated identical results for judge and prosecutor in any given case. Without expressing any opinion on the proper characterization of the city attorney’s behavior in Duba, we simply register our conviction that prosecutorial conduct must be evaluated independently on the facts of each case to determine the measure of immunity which that conduct deserves.

11 . For example, in Apton, supra, Department of Justice officials, including the Attorney General, were granted only a qualified immunity in connection with their policy-making and supervisory participation in the arrest and detention of large numbers of individuals during the “May Day Demonstrations” of 1971. In Hampton, supra, the Illinois State’s Attorney and one of his assistants were charged with having planned and executed a violent raid on a Chicago apartment, during which raid police gunfire killed two members of the Black Panther Party and wounded four others. In Robichaud, supra, appellant claimed that county prosecutors had employed unconstitutional coercive methods to obtain a confession. Likewise, in Dodd, supra, appellant, a prisoner in county jail, alleged that local prosecutors had sanctioned the use of threats, assaults, and other punitive measures in an effort to elicit false testimony against a criminal defendant then on trial.

12 . That statute, in pertinent part, reads as follows:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order

13 . See Note, Interlocutory Appeals in the Federal Courts Under 28 U.S.C. § 1292(b), 88 Harv. L.Rev. 607, 628-29 (1975) and Johnson v. Alldredge, 488 F.2d 820, 822-23 (3d Cir. 1973), cert. denied, 419 U.S. 882, 95 S.Ct. 148, 42 L.Ed.2d 122 (1974).

14 . The writer of this opinion, although prepared to deal with the merits of the witness immunity question, does not subscribe to the view that that question is before us. At issue in Cohen was the applicability in a federal stockholders’ derivative suit of a state statute requiring the giving of security for costs and attorney’s fees before such a suit could proceed. Referring to the District Court’s resolution of the matter, the Supreme Court stressed that the disposition “will not be merged in final judgment. When that time comes, it will be too late effectively to review the present order and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably.” 337 U.S. at 546, 69 S.Ct. at 1225. By contrast, in the case before us, it is indisputable that the witness immunity question is preserved in the record and will be available for review upon appeal of any final judgment in the action.

Moreover, as Professor Moore points out, the collateral order doctrine “emerged at a time when the final judgment rule was inflexible. Much has happened since. The Interlocutory Appeals Act of 1958 made potentially appealable very nearly all orders that present serious, undécided questions . . ..” 9 Moore’s Federal Practice ¶ 110.10, at 135-36 (2d ed. 1975). Where, as here, that Act was invoked unsuccessfully, the collateral order doctrine was not intended to be employed as a vehicle for appellate revision of the essential determination committed by Congress to the District Court.

15 . The only case which the dissent is able to cite is Brawer v. Horowitz, 535 F.2d 830 (3rd Cir. 1976), which did not even address the issue of the appropriate standard of witness immunity as a matter of federal common law. Rather, the court in Brawer simply determined that witness immunity should be applied in an action alleging “constitutional defamation,” id. at 837, as opposed to the common law tort of defamation. In its brief discussion of the witness immunity issue in that case, the court failed even to recognize that, having decided that witness immunity was applicable to a Bivens -type action, it was free to construct a rule of immunity under federal common law different from that which it thought would be applied as a matter of state common law.