Opinion for the Court filed by Circuit Judge ROBINSON.
Concurring Opinion filed by Senior District Judge VAN PELT.
ROBINSON, Spottswood W., III, Circuit Judge:
Josiah Haynesworth and Fred Hancock brought this Bivens action1 for alleged violations of their First, Fourth and Fifth Amendment rights by the District of Columbia and several of its officials.2 Appellants aver that they were victimized by a policy of retaliatory prosecution — a practice of pursuing criminal charges against individuals who have endured wrongful arrests, solely because they refuse to waive civil suits against the arresting officers.3
On appeal, Haynesworth disputes the propriety of the District Court's dismissal under Federal Civil Rule 12(b)(6)4 of his claims against the District and three individual defendants, and the court's judgment on the pleadings5 in favor of another. Hancock challenges the District Court's dismissal of his action in toto on the ground of improper joinder of plaintiffs.6 We find that the order contested by Hancock is not now properly before this court, and accordingly we dismiss his appeal.7 We do, however, perceive merit in Haynesworth's challenge. We therefore reverse and remand his case for further proceedings against all defendants named in his complaint8 except one who took office only as the events at issue here were drawing to a close,9 and another whose conduct is absolutely immune from suit.10
A. Factual Background
Briefly summarized, the allegations of the complaint are as follows.11
One morning in November, 1977, Hancock parked his car on the street in front of his home and proceeded to check the antifreeze.12 He left the car briefly to fetch a tool, then returned to find appellee Sonya Proctor, an officer of the Metropolitan Police Department, who approached him, requested his driver's license and vehicle registration, and announced that he would be cited for leaving the vehicle unattended with the motor running.13 As Proctor was handing the citation to Hancock through the car window she dropped it in the street, then demanded, in "a loud, angry voice,"14 that appellant retrieve it. The ticket had by then blown away, and Hancock refused to chase it.15 Proctor repeated her order, stepping back from the car and unbuttoning the holster of her gun;16 when Hancock again declined she ordered him out of the car, patted him down, and placed him under arrest.17 Hancock was taken to a police station and charged with leaving a motor-running vehicle unattended, depositing trash — the citation — in the street, and disorderly conduct.18 He forfeited collateral on the first charge but stated that he wished to stand trial on the latter two.19
Three days after the incident, Hancock and his wife filed with the Metropolitan Police Department a citizens' complaint against Proctor. A week later, Hancock was formally charged with depositing trash.20 At a pretrial conference on the trash charge, appellee Howard B. Horowitz, an Assistant Corporation Counsel assigned to the Law Enforcement Section of the District of Columbia Corporation Counsel's Office, told Hancock and his attorney that the pending citizens' complaint presented a "problem."21 Horowitz stated that he needed to speak to Proctor before he could decide whether to prosecute the trash charge.22 A few days later, Horowitz informed Hancock's attorney that Proctor was angry about the citizens' complaint, and that the charge would not be dismissed.23 Hancock then learned that the Police Department was investigating his complaint,24 and shortly thereafter the charge of disorderly conduct, which had not been pressed after the arrest, was added to the trash charge.25
Hancock alleges that the trash charge would have been dropped, and the disorderly conduct charge would never have been reinstated, were it not for the lodging of his citizens' complaint.26 He asserts that Horowitz pressed this retaliatory prosecution "pursuant to policies and/or directives of [appellee Frank] Miller who was then and is Chief of the Law Enforcement Section of the Corporation Counsel."27 Hancock's "further demands to supervisory officials and threats of suit for declaratory or injunctive relief"28 resulted eventually in dismissal of all charges against him.29
In December 1977, Haynesworth, an employee of the District of Columbia Superior Court, was accosted in a courthouse corridor by three men, who were not known to him, dressed in street attire. One, without any explanation, seized Haynesworth and slammed him against a wall.30 When Haynesworth endeavored to protect himself and identify his assailant, the latter punched him in the jaw.31 While the other two men pinned Haynesworth against the wall, the aggressor frisked him and removed his identification badge and pocket calculator.32
This episode was interrupted by a courthouse guard, who approached the group, identified Haynesworth as a court employee, and demanded to know what the other three were doing.33 The assailants, Joseph Schwartz, Donald Lyddane, and Patrick Mooney, for the first time identified themselves as police officers.34 One instructed the guard to arrest Haynesworth, but the guard demurred, saying that Haynesworth had done nothing to justify an arrest.35 Haynesworth, seeing that a crowd had gathered, suggested that the three officers accompany him to an adjacent room.36 There Schwartz, the aggressor in the corridor, grabbed Haynesworth while either Mooney or Lyddane administered a chokehold, restricting Haynesworth's breathing.37 Haynesworth was struck with a blackjack and handcuffed,38 then taken to police headquarters, where he was charged with disorderly conduct.39
Processing of the charge against Haynesworth was assigned to appellee Miller, Chief of the Law Enforcement Section of the Corporation Counsel's office. After first talking privately with Schwartz, Lyddane, and appellee Dixie Gildon, their supervisor, Miller held a conference with the officers, Haynesworth and his attorney.40 Miller stated that he might dismiss the charge under certain conditions, and asked Haynesworth whether he intended to file a civil suit. Haynesworth's counsel objected, stating that this question should be addressed only to him.41 Miller then asked everyone but the attorney to leave the room. On her way out, Officer Gildon remarked that Haynesworth's initiation of civil proceedings would change their decision to drop the charge; Miller interjected that he, not the police, would make that decision.42 When the others had departed, Miller told Haynesworth's attorney that the Corporation Counsel's office would pursue the disorderly conduct charge only if Haynesworth threatened civil action against the officers.43 The attorney responded that he had no authority to waive Haynesworth's right to sue. Miller summoned the others back into the room and announced that Haynesworth would be prosecuted for disorderly conduct.44
Haynesworth retained another attorney and, during subsequent discussion of the case, Miller admitted to the attorney that he had previously broached the subject of a release of civil claims.45 On the day set for trial, Haynesworth and his new counsel met Schwartz, Lyddane, and Mooney on their way to Miller's office for another conference on the case, and Schwartz stated that potential civil litigation was an obstacle to dismissal of the charge.46 At the conference, Miller, without any reference to waiver, reiterated his intention to press the disorderly conduct charge.47
The charge against Haynesworth, like those against Hancock, was ultimately dismissed, "but only after further demands to supervisory officials and the threat of a suit."48 Haynesworth alleges that the charge would have been dropped at the outset but for the tacit policy of retaliation that prevailed in the Corporation Counsel's office and the Metropolitan Police Department.49
B. Proceedings in the District Court
Appellants filed suit in the District Court in November, 1978, seeking compensatory and punitive damages, declaratory relief, and expungement of all records relating to the arrests and prosecutions.50 Shortly thereafter, the District Court, sua sponte, dismissed Hancock from the suit without prejudice,51 on the ground that his "separate cause of action is improperly joined in this lawsuit."52 Subsequent attempts to have this order set aside were unsuccessful.53
Officer Gildon answered in due course, denying that Officers Schwartz, Lyddane, and Mooney54 had accosted Haynesworth, and denying that she and these officers had engaged in retaliatory prosecution, but admitting that she had remarked that the decision to drop the disorderly conduct charge would be affected by Haynesworth's decision to file suit.55 Gildon moved for partial judgment on the pleadings and the District Court, discerning no indication that Gildon had "participated in the complained of arrest or prosecution," dismissed her from the action.56
Miller, the District of Columbia, and former Police Chiefs Burtell Jefferson and Maurice Cullinane, in lieu of responsive pleadings, jointly filed a motion to dismiss. Miller asserted that he and the District of Columbia, as his employer, were absolutely shielded from liability by the doctrine of prosecutorial immunity.57 The District contended additionally that it was not accountable on the theory of respondeat superior for the constitutional torts of its employees.58 Appellees Jefferson and Cullinane similarly disclaimed vicarious liability for the torts of their subordinates, and pointed out that the complaint did not aver that they participated directly in the activities complained of.59 The District Court granted the motion and dismissed Miller, Jefferson, Cullinane, and the District of Columbia essentially for the reasons tendered.60
Federal Civil Rule 54(b)61 imposes a restraint on appeals from orders partially disposing of suits involving multiple claims or parties. The rule also furnishes, however, a mechanism allowing such appeals to go forward. The rule provides that a district-court ruling disposing of some but not all of the claims or liabilities in an action is appealable only after the court expressly determines that the appeal should not be delayed and expressly directs the entry of judgment.62 Rule 54(b) thus embodies a reconciliation of the policy disfavoring piecemeal appeals from interlocutory orders with that of avoiding needless delay when final action has been taken in a truly severable portion of a multiclaim or multiparty case.63 Mere satisfaction of Rule 54(b)'s requirements will not impart appealability to an order that otherwise is not really final,64 but without the steps called for by the rule an order remains interlocutory even if it fully disposes of a discrete portion of the litigation.65
The District Court adhered fully to the dictates of Rule 54(b) after issuance of the orders dismissing all claims against Miller, Jefferson, Cullinane, and the District of Columbia, and after granting Gildon's motion for judgment on the pleadings.66 Consequently, these orders are properly before us on this appeal. But nothing in the record reveals any effort by the District Court with respect to the sua sponte order severing and dismissing Hancock's claims to meet the demands of Rule 54(b).67 Failure to take the steps specified in Rule 54(b) is more than a mere technicality; without compliance, a federal court of appeals lacks jurisdiction to entertain challenges to the order.68 We thus have no choice but to dismiss Hancock's appeal.
This ruling, of course, does not preclude Hancock from pressing his case. The District Court's order remains interlocutory and is subject to revision until the balance of the claims have been adjudicated.69 If the District Court does not vacate its sua sponte dismissal of Hancock's action when the proceedings resume, the order will become final and appealable upon completion of the litigation in that court. Moreover, Hancock, of course, is always at liberty to seek compliance with Rule 54(b) with a view toward resurrecting his appeal. But it may well be that judicial economy would be better served if the District Court first reevaluated its order in light of appellees' concession that the proper remedy for misjoinder of Hancock's claims, assuming without deciding that such misjoinder actually occurred, would be severance and not dismissal of Hancock's complaint.70
III. HAYNESWORTH'S COMPLAINT
Haynesworth's case thus reaches us on the motions to dismiss and for judgment on the pleadings. Motions such as these, that would summarily extinguish litigation at the threshold and foreclose the opportunity for discovery and factual presentation, should be treated with the greatest of care. A motion to dismiss should be granted only when it appears beyond doubt that, under any reasonable reading of the complaint, the plaintiff will be unable to prove any set of facts that would justify relief.71 The standard for awarding judgment on the pleadings is virtually identical: regardless of assertions in an answer, a defendant may not succeed on such a motion if there are allegations in the complaint which, if proved, would provide a basis for recovery.72 A plaintiff's bare conclusions of law, or sweeping and unwarranted averments of fact, will not be deemed admitted for purposes of either type of motion;73 but the plaintiff enjoys the benefit of all inferences that plausibly can be drawn from well-pleaded allegations of the complaint.74
Several issues are thus framed for our consideration. The threshold question we must address in assaying the propriety of the District Court's rulings is whether Haynesworth alleged any conduct for which a cause of action for damages may be implied directly from the Constitution. If so, we must then determine the extent to which each appellee may have been implicated in the constitutional wrong depicted, and whether his or her participation may have been sufficient to warrant liability. Our task is complex, but we know of no simple way to deal with claims of serious and pervasive unconstitutional behavior.
A. Constitutional Foundations
Haynesworth charges that he was victimized by an unmerited prosecution, undertaken in retaliation for his refusal to surrender his right to challenge official misconduct in court.75 He contends that this course of conduct violated the First and Fifth Amendments.76 Appellees do not dispute that dismissal of criminal charges cannot constitutionally be predicated upon the putative defendant's willingness to release civil claims against public servants, nor do they contest Haynesworth's ability to challenge this sort of prosecution policy in a Bivens-type action. We agree that the retaliatory prosecution constitutes an actionable First Amendment wrong77 redressable under Bivens, but we feel that some elaboration on this conclusion is in order.
The Supreme Court has recognized that, embedded in the First Amendment right to "petition the government for a redress of grievances,"78 is entitlement to seek recompense in the courts.79 We ourselves have recently concluded that initiation of a prosecution in order to impede the putative defendant's efforts to vindicate his claims against law enforcement officers inflicted "an injury of constitutional dimension."80 Even earlier, the practice of tying the initiation or maintenance of criminal charges to an arrestee's unwillingness to abandon claims against police had been perceived as a deprivation of First Amendment rights. In Dixon v. District of Columbia,81 the Corporation Counsel admitted that an alleged traffic violator was prosecuted solely because he had persisted in pressing a complaint against the arresting officers.82 The panel agreed unanimously that dismissal of the criminal information was appropriate.83 Chief Judge Bazelon wrote separately on the constitutional implications of the retaliatory prosecution:
Of course, prosecutors have broad discretion to press or drop charges. But there are limits.... The Government may not prosecute for the purpose of deterring people from exercising their right to protest official misconduct and petition for redress of grievances.84
Several other circuits have joined in rejecting the practice challenged in Dixon.85
We realize, of course, that not every attempt to associate dismissal of criminal charges with waiver of civil claims will amount to prosecutorial misconduct or a deprivation of constitutional prerogative. In Town of Newton v. Rumery,86 the Supreme Court found a release-dismissal agreement to be valid and binding against the putative defendant in his subsequent Section 1983 action.87 While acknowledging that "in some cases [release-dismissal] agreements may infringe important interests of the criminal defendant and of society as a whole," a majority of the Court held that the mere possibility of overreaching should not invalidate the agreement at issue in the face of overwhelming evidence that the bargain was entered into voluntarily, and that the prosecutor acted reasonably and in pursuit of legitimate law enforcement goals.88 Among the circumstances impressing the majority were that Rumery's own attorney drafted the release-dismissal agreement and counseled his client at length on its benefits and implications, and that the prosecutor's decision to seek a civil release was motivated in large part by his desire to insulate the key witness in a related felony prosecution from the need to testify at Rumery's criminal trial or in his civil suit.89
The fact that circumstances may render release-dismissal agreements valid and enforceable does not in any way excuse the conduct alleged in this case. The circumstances attending the decision to press charges against Haynesworth strengthen his assertion that the decision to prosecute was motivated solely by the desire to prevent him from seeking judicial redress for alleged police misconduct; the Rumery Court in no wise intended to legalize such an abuse of prosecutorial power.90 It does not appear, at least as yet, that pursuance of the release was motivated by any legitimate law enforcement objective, and it may be that there was no good reason for lodging the criminal charge against Haynesworth in the first place. The Rumery Court concluded that the possibility of prosecutorial misconduct should not invalidate release-dismissal agreements entered into voluntarily and in good faith; by the same logic, the possibility of meritorious release-dismissal agreements in suitable circumstances does not condone the prosecutorial overreaching and coercion alleged in Haynesworth's complaint.
In sum, we see no reason to retreat from the settled principle that it is "patently unconstitutional" to "penaliz[e] those who choose to exercise" constitutional rights.91 We share the conviction of forerunning determinations that retaliatory prosecution unconstitutionally impinges on the right of access to the courts guaranteed by the First Amendment. Haynesworth alleged that he was charged with disorderly conduct solely because he refused to release his civil claims against the arresting officers.92 That averment, we think, partakes from the circumstances enough substance to entitle him to proceed directly under the First Amendment for damages.93 This conclusion parallels our holding in Dellums v. Powell,94 that a Bivens action can be utilized by complainants asserting an infringement of their First Amendment right to petition Congress for redress of grievances.95 That Haynesworth avers interference with his right to entreat the courts rather than the legislature does not weaken the Dellums rationale.96
B. The Nexus Between the Appellees and the Constitutional Violation Alleged
The District Court's dismissal of Haynesworth's complaints against the District of Columbia, Miller, Jefferson and Cullinane, and its judgment in favor of Gildon, were not based on any defect in the constitutional claim alleged. Instead, those orders were premised on a determination that these defendants were not sufficiently implicated in the retaliatory prosecution averred to establish liability. We now consider the validity of that assessment by examining the participation of each in the constitutional infringement charged, and the theories under which that participation might form a basis for recovery.
1. Officer Gildon
Haynesworth stated that Officer Gildon participated willfully and directly in the prosecution.97 It seems beyond peradventure that a complaint averring knowing participation by the defendant in an actionable constitutional deprivation sets forth a colorable claim. Nonetheless, the District Court summarily granted Gildon's motion for judgment on the pleadings,98 but since the court did not articulate its reasons therefor, we are left uncertain as to its rationale. The only basis existent at the close of the pleadings for a determination on Gildon's entitlement to judgment as a matter of law99 was the complaint's narration of the conference attended by Gildon, Haynesworth and others. Although the complaint tells us that Gildon informed Haynesworth that he would be prosecuted if he refused to waive his civil claim, it also discloses that prosecutor Miller stated that any decision to proceed with or drop the charges would be made by him and not the police.100 We can only surmise that the District Court viewed this latter averment as an indication that Gildon had no authority over — and thus no responsibility for — prosecutorial decisions.
We do not believe, however, that the asserted exchange exculpates Gildon at this very preliminary stage of the litigation. Miller's statement can plausibly be taken as no more than an admonition that Gildon should allow the prosecutor to handle the negotiations. Even accepting the statement as immutable proof that Gildon could not have exerted any influence on the decision to go forward, Gildon's actions could still have contributed to a constitutional violation, since Haynesworth may not have known that she was powerless in that regard, and might have waived his right to sue in partial reliance upon her statement.101 Under the applicable standard,102 the District Court should not have terminated litigation of this claim at such an early stage.103
2. Chiefs Jefferson and Cullinane
Haynesworth averred that former Chiefs of Police Jefferson and Cullinane were directly responsible for the alleged retaliatory prosecution because they did not adequately instruct their subordinates on the impropriety of such prosecutions,104 and vicariously liable under a theory of respondeat superior.105 The District Court dismissed Jefferson and Cullinane from the suit on the grounds that the doctrine of respondeat superior did not apply and that there was an insufficient showing of personal involvement by them in the purported constitutional violation.106 While we concur in the District Court's rejection of the respondeat superior claims and in the determination of insufficient participation by Jefferson, we find that the court's exoneration of Cullinane did not take adequate account of Haynesworth's allegation of improper supervision.
We can easily dispose of the assertion of respondeat-superior liability. Haynesworth contends that the two former chiefs are responsible for the actions of the police officers by virtue of their dominant roles in the employment relationship.107 This argument collides with the firmly entrenched principle that public officials are not vicariously responsible for the acts of their subordinates.108 Analytically, high-level public officials, are not employers of their subordinates but rather are fellow governmental servants, and it thus is inappropriate to hold them liable on the basis of respondeat superior.
We also concur in the District Court's dismissal of the claims against Jefferson. He took office as Chief of Police as the events in question drew to a close, and was properly dismissed from the litigation because the complaint does not adequately allege any failing on his part.109 However remiss he may have been in failing to remedy the District's alleged policy of retaliatory prosecution — a matter on which we intimate no view — no corrective action on his part could have aided Haynesworth since the harm he asserts had already taken place.
Haynesworth's claim that Cullinane is liable for failure to supervise the officers under his command is not so easily discarded. It requires us to consider the parameters of supervisory liability for constitutional violations and to view the allegations of the complaint against that template. This analysis leads us to disagree with the District Court's conclusion that Cullinane's role in the constitutional infringement charge could not under any circumstances support a finding of liability.
(a) Supervisory and Training Liability
It is well established that a governmental officer may be held liable in damages for constitutional wrongs engendered by his failure to supervise or train subordinates adequately.110 This responsibility is not premised on the notion of vicarious liability; rather, it is bottomed on the principle that in some contexts failure of an official to safeguard against constitutional transgressions by those under his control constitutes an actionable wrong under Bivens and Section 1983. The party seeking to impose liability must demonstrate that the official had an obligation to supervise or train the wrongdoer in the manner alleged, that the duty was breached, and that this breach was a proximate cause of the injury.111 But while there is consensus on the existence of an actionable duty in this regard, the contours of that duty are unclear.112
This court held in Carter v. Carlson113 that a police chief would be liable for negligent failure to prevent constitutional impingements by his subordinates, thereby implying that such officials have a duty to supervise and train to foreclose all reasonably foreseeable constitutional harms.114 While this decision arguably carries weight,115 we have reason to question its continuing vitality in light of subsequent decisions of the Supreme Court116 and other circuits117 suggesting that the standard of culpability is higher.118 Accordingly, we consider the question anew.
In Rizzo v. Goode,119 the Supreme Court vacated an order providing equitable relief against city officials for failure to supervise municipal police officers. The Court noted that supervisory liability under Section 1983 had important limitations: it required an "affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners — express or otherwise — showing their authorization or approval of such misconduct."120 Rejecting the "amorphous proposition" that the officials implicated shared "a constitutional `duty' ... to `eliminate' future police misconduct,"121 the Court saw no foundation for the asserted liability absent a "showing of direct responsibility" by the supervising official for the infringement.122
Applying the tenets of Rizzo, numerous courts have concluded that something more than mere negligence on the part of the supervisor is necessary to state a claim under Bivens or Section 1983.123 These courts have asserted that, in order to construct a basis for liability, the injured party must establish that the supervising official was either "grossly negligent" or "deliberately indifferent" in failing to take precautions against the constitutional violation that did in fact occur.124 This standard of culpability for supervisory officials has been justified by a recognition that imposition of a duty of care to prevent all foreseeable misconduct by subordinates would thrust an excessive burden on supervisors and hamper performance of official duties.125 Despite differences in articulations of the applicable standard126 and the underlying rationale,127 the overwhelming majority of courts faced with claims of supervisory liability after Rizzo have determined that, where responsibility is predicated on inattentiveness rather than affirmative misconduct, the plaintiff must establish a high degree of fault in order to implicate the supervisor in the constitutional infractions of his subordinates.
We agree that Rizzo mandates a retreat from the standard proclaimed in Carter v. Carlson, and join the majority of courts calling for something more than mere negligence to forge the "affirmative link" between the constitutional infringement and the supervisor's conduct. Consideration of the exigencies of criminal law enforcement also suggests that a higher standard is appropriate, given the wide range of constitutional breaches arguably "foreseeable" in the daily operations of a law enforcement agency, and the difficulty of providing meaningful guidance to ward off all possible wrongs.128 The duty to supervise is triggered by proof that, absent effective supervision, harm was not merely foreseeable, but was highly likely, given the circumstances of the case. When inaction in the face of a substantial threat of harm is shown, it can be said that the supervisor acquiesced in the resulting constitutional violation, thereby "linking" the non-feasance with the injury in the manner required by Rizzo.
It remains to delineate those situations that trigger the duty to supervise under Bivens and Section 1983. Courts requiring "gross negligence" or "deliberate indifference" have held that standard satisfied where a supervisor remains passive in the face of past constitutional violations about which he knew or should have known.129 Some of these courts have also concluded that a duty to supervise may arise, even absent a pattern of past transgressions, where training has been so clearly deficient that some deprivation of rights will inevitably result absent additional instruction.130 In general, the existence of a duty to supervise to prevent a particular harm is a question of fact rather than law, and depends on the particulars of each dispute.131
We hold today that the close analogy to Rizzo requires us to constrict the ambit of supervisory liability for constitutional wrongs. Our decision does not shift the level of culpability required to establish the underlying violation; that must turn on the nature of the constitutional provision allegedly infringed.132 Nor does it affect the showing essential to municipal liability for inadequate supervision, since the problem of determining whether a governmental entity should be charged with responsibility for the acts of its employees is conceptually distinct from the question whether the wrongs of one municipal worker should be imputed to another.133 Our holding is that, in order to find a supervisory official personally liable in damages for the unconstitutional acts of his subordinate, it must be shown that he was responsible for supervising the wrongdoer; that a duty to instruct the subordinate to prevent constitutional harm arose from the surrounding circumstances; and that, as a result of the official's failure to instruct, the plaintiff was harmed in the manner threatened. We turn now to Haynesworth's complaint against Cullinane to ascertain whether it states a colorable claim for relief under this standard.
(b) Sufficiency of the Allegations Against Appellee Cullinane
As we have stated, a motion to dismiss pursuant to Rule 12(b)(6) should be denied if it appears from the complaint that the plaintiff might be able to prove some set of facts which would provide a basis for liability.134 Evaluated according to this liberal standard, we think the District Court's dismissal of Cullinane from the lawsuit was premature. Haynesworth's complaint alleged that Cullinane was charged with the responsibility of supervising the wrongdoing officers;135 that a practice of retaliatory prosecution had unfolded in the District of Columbia;136 that Cullinane failed to supervise or instruct his officers in order to guard against further outbreaks of retaliation;137 and that Haynesworth's injuries resulted from that failure.138 Additionally, we may infer139 that the police participated in the prior acts of retaliatory prosecution, and that the police chief was or should have been aware thereof. Cast in the light most favorable to Haynesworth, these facts, if proven, could sustain a finding of liability on the part of Cullinane.
It will be for Haynesworth to substantiate his claim that there was a past practice of retaliatory prosecutions, and that the police participated therein with the knowledge — or at least the indifference — of Cullinane. Haynesworth should be afforded some opportunity to verify these claims through discovery since the operative information is largely in the hands of adverse parties.140 Correspondingly, Cullinane should be given a chance to counter Haynesworth's allegations with factual information, and to develop the affirmative defense of good faith immunity.141 We do not, of course, assess Haynesworth's chance of prevailing at trial, but believe that his complaint sets forth enough to withstand a motion under Rule 12(b)(6) and to enable him to proceed with discovery.142
3. Corporation Counsel Miller
Haynesworth's complaint asserted liability against Assistant Corporation Counsel Miller on the ground of direct complicity in the prosecution alleged, and on the further ground of supervision and promotion of the retaliatory policy.143 The District Court dismissed the claims against Miller in the belief that he enjoyed complete prosecutorial immunity from suit.144 We concur in this determination, but are constrained to elaborate upon the principles underlying the application of prosecutorial immunity in this case. Accordingly, we discuss the legal theory of policymaking liability asserted against Miller, the sufficiency of the complaint in charging liability, and the bases for our conclusion that, notwithstanding Haynesworth's allegations, Miller is absolutely immune from liability therefor.
(a) Policymaking Liability
Governmental officials may also be held personally liable in damages for constitutional infringements resulting from their establishment of unconstitutional policies.145 In contrast to supervisory or training liability, policymaking liability rests upon the official's misfeasance rather than his nonfeasance.146 For an official to be held accountable on this basis, he must actually prescribe policy — formally or de facto147 — that encourages improper means or ends. To succeed on a policymaking theory, a plaintiff must demonstrate that the official against whom liability is asserted has the power — vested either formally or as a practical matter — to formulate policy, and has exercised that policymaking authority to generate improper practices. As in the case of supervisory liability, a plaintiff seeking to recover against a policymaking official must demonstrate a causal connection between the policy established and the wrong committed against him.148
(b) Sufficiency of the Allegations Against Appellee Miller
The complaint adequately sets forth a cause of action against Miller, both for direct participation in the retaliatory prosecution alleged and for his policymaking role. With regard to the latter, the complaint points to Miller's responsibility for establishing and implementing policy for the Corporation Counsel,149 and his promotion and pursuance of an agenda of retaliatory prosecution.150 But while we find that the complaint's allegations of wrong-doing against Miller meet the requirement of particularity, we conclude that he is absolutely immune from this suit.
(c) Prosecutorial Immunity151
As an officer of the District of Columbia, Miller has at least qualified immunity from suit for all activities undertaken within the scope of his duties as Assistant Corporation Counsel.152 Haynesworth initially contends that, regardless of the protection otherwise applicable, Miller's conduct was so palpably beyond the scope of his authority that the cloak of official immunity should be cast aside.153 Haynesworth directs our attention to a decision by this court154 and a prior directive of the Corporation Counsel's Office,155 both reflecting disapproval of the practice of retaliatory prosecution, and argues that Miller's actions taken in derogation of these authorities do not merit immunity. We believe Haynesworth presumes a sphere of protected activity far narrower than that countenanced by the caselaw.
The Supreme Court has staked out expansive boundaries for official immunity, so that a governmental employee forfeits protection only when he acts "manifestly or palpably beyond his authority."156 Under this standard, the conduct at issue did not destroy Miller's immunity. As Chief of the Law Enforcement Section, Miller possessed authority to establish and implement policies governing criminal prosecutions.157 Since Haynesworth's claim for damages against Miller rests on the establishment and implementation of prosecution policy, the activities challenged fall clearly within the realm of official immunity. And Miller does not lose this protection simply because his exercise of authority impinged upon Haynesworth's constitutional rights; if an allegation of unconstitutional action sufficed to remove the immunity shield, immunity would never be available in Bivens actions and only seldom in suits under Section 1983.158 Nor are we constrained to cast immunity aside simply because Miller may have contravened a thirteen-year-old policy directive. Even assuming that the policy statement might otherwise have still been in force during the period relevant here, it is entirely plausible that the power to amend outdated directives reposed within the parameters of Miller's general policymaking authority. Accordingly, we conclude that the conduct challenged was not so far afield of Miller's official duties as to deprive him of the immunity applicable.
We must now ascertain the nature of the immunity that attaches to Miller's activities, and a great deal turns on this determination. If Miller enjoys only qualified immunity for the conduct at issue, then additional pleadings are necessary to evaluate whether he is entitled to protection in this case.159 Accordingly, if qualified immunity carries the day, the District Court's disposition of the complaint against Miller under Rule 12 was erroneous. If, on the other hand, Miller is entitled to absolute immunity for the establishment and implementation of prosecution policies, then Haynesworth's suit against him is "defeat[ed] at the outset,"160 and the dismissal of the complaint was correct.161 In order to decide whether Miller's activities fall within the narrow ambit of absolute immunity, we must carefully consider the caselaw and the policies underlying the immunity doctrine. It is this task to which we now attend.
— The Scope of Absolute Immunity
In Imbler v. Pachtman,162 the Supreme Court ruled that a state prosecutor was absolutely immune from liability for constitutional violations allegedly arising from his initiation and maintenance of a criminal prosecution.163 Such conduct, the Court reasoned, was functionally equivalent to the acts of a judge in a criminal proceeding164 — acts which had earlier been held to merit absolute protection under Section 1983.165 The Court concluded that the policies underpinning the extension of complete immunity to judges and prosecutors at common law also necessitated absolute protection from constitutional claims asserted against prosecutors acting in a quasi-judicial capacity. A substantial threat of vexatious litigation could hinder vigorous performance of the prosecutor's public duties, and this inhibition would have an adverse effect on the functioning of the criminal justice system.166 Moreover, since sufficient alternative safeguards exist to defuse the threat of prosecutorial misconduct, the systemic benefit of recognizing a civil remedy against the prosecutor would be slight in comparison to the harm likely to result from the chilling of prosecutorial discretion.167
The Court subsequently held in Butz v. Economou168 that certain activities by members of executive agencies are absolutely shielded from liability because of the functional similarities between their official duties and those of a judge or prosecutor.169 Again the Court pointed to the likelihood that official energies would be diverted by the threat of suit,170 and the availability of alternative mechanisms to ward off misconduct.171 Its analysis of the officials' activities led the Court to conclude that they too warranted absolute protection.
The Imbler Court did not hold, however, that a prosecutor enjoys absolute immunity for all conduct within the scope of his authority. Rather, the Court determined only that complete protection from liability is appropriate when the prosecutor acts in the capacity of an advocate.172 While the Court adverted to several circuit court decisions extending only qualified immunity to prosecutors engaged in investigative activities,173 it did not decide whether non-advocatory conduct merited lesser protection. The Court also declined to delineate the parameters of the protected realm of advocacy, holding "only that in initiating a prosecution and in presenting the State's case, the prosecutor is immune...."174 Although the Court "recognize[d] 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," it did not address the "difficult questions" of demarcation that absolute immunity claims could pose.175
In the wake of Imbler, this circuit and others have resumed their practice of according only qualified immunity to prosecutors functioning in their administrative or investigative capacities,176 and thus frequently have been forced to confront more squarely the "difficult questions" left open by the Supreme Court. As we have heretofore noted, "[d]elineation of the precise scope of protected advocatory conduct beyond the boundaries established in Imbler has proved to be exceedingly difficult,"177 and divergent approaches to the problem have been employed in the circuits.178 But at bottom these decisions turn upon the same concerns that guided the Supreme Court in Imbler and Butz: the centrality of the challenged conduct to the criminal justice system;179 the substantiality of the threat of vexatious litigation, and the extent to which that threat would inhibit performance of important public duties;180 and the availability of alternative mechanisms to safeguard against prosecutorial misconduct.181 The courts have drawn rough boundaries around the class of absolutely-immunized prosecutorial activities, and have treated functions such as filing charges,182 plea-bargaining,183 presenting evidence,184 and negotiating parole185 as falling within the protected sphere, and those such as executing search warrants,186 interrogating suspects,187 disseminating information to the press,188 and storing evidence189 as meriting only qualified immunity. The Supreme Court has loosely endorsed the circuits' practice of applying the functional test of Imbler to distinguish absolutely-protected prosecutorial conduct from those activities accorded lesser protection.190
— Prosecutorial Policymaking and Advocacy
We now must apply the somewhat nebulous doctrine of prosecutorial immunity to the facts of the present case. Our first and simplest task is to determine whether the Imbler Court spoke directly to the conduct at issue. If we find no explicit reference, we nonetheless must consider whether Miller's activities fall under the umbrella of advocacy advertently to the criteria developed in Imbler and Butz. Our judgment will be informed by rulings of this court and other circuits mapping out the area of absolute immunity, but we recognize that this case presents a unique species of prosecutorial conduct191 that must be assessed on its own under the standards of Imbler.
Haynesworth alleged harm resulting both from promulgation of a general agenda of retaliatory prosecution and from implementation of that policy against him in a criminal proceeding. We do not hesitate to extend to Miller absolute protection from liability for the latter conduct, since Imbler explicitly held that initiation of a criminal prosecution is absolutely protected from a suit for damages.192 As to the formulation of general policies on prosecution, however, we find Imbler provides less clear guidance regarding the degree of immunity that should attach. It thus becomes necessary to compare Miller's behavior with the activities in question in Imbler and to summon the policies that led to the grant of absolute immunity therein.
First, we find Miller's conduct to be functionally analogous to the activities immunized absolutely in Imbler. In that case, the Court noted the systemic importance of the decision to initiate the prosecution;193 we find no meaningful distinction between a decision on prosecution in a single instance and decisions on prosecution formulated as policies for general application.194 Both practices involve a balancing of myriad factors, including culpability, prosecutorial resources, and public interests;195 both procedures culminate in initiation of criminal proceedings against particular defendants, and in each it is the individual prosecution that begets the asserted deprivation of constitutional rights.196 The decision to focus prosecutorial energies upon particular classes of law violations or violators clearly bears many features in common with a decision to commence a single proceeding. We find in this resemblance ample reason to invoke the broad protections of Imbler herein.
Analysis of Miller's conduct with reference to Imbler's underlying principles leads to the same result. There is no doubt that, were we to decline to insulate prosecutorial policymaking, an abundance of vexatious litigation would result. As we observed in Gray v. Bell,197 "[t]he prosecutor is far more likely to be the target of vindictive hostility once he has initiated criminal proceedings."198 Since general prosecutorial policies culminate in the initiation of particular criminal actions, those policies raise the same spectre of invidious lawsuits as individual decisions to inaugurate single prosecutions. Indeed, the threat to the policymaker may be amplified; he or she, as policymaker, faces the risk of recrimination from the potentially larger number of parties prosecuted in accordance with the agency directive. The threat of litigation is very real, and indubitably would inhibit the performance of prosecutorial duties.199
Additionally, there are alternative safeguards sufficient to check official misconduct in the formulation of prosecutorial policies. Those policies will frequently result in criminal proceedings,200 and therein the defendants will be accorded the full panoply of trial and appellate mechanisms to attack suspect practices.201 Furthermore, prosecutors are subject to professional discipline, public censure, and perhaps even criminal penalties for unsavory acts;202 and to the extent that policy decisions have wider impact than conduct in individual prosecutions, they are more likely to produce a backlash. "The rationale underlying absolute immunity does not require perfect substitutes for the remedy of civil damages;"203 rather, it demands no more than that available mechanisms adequately reduce the likelihood of misconduct. We think that test is satisfied herein.
We are mindful that our determination that Miller is absolutely immune may leave a "genuinely wronged defendant without civil redress,"204 but we realize, as the Court did in Imbler, that "`the answer must be found in a balance between the evils inevitable in either alternative.'"205 Were we to extend only qualified immunity to promulgation of standards of prosecution, we would deter the formulation of policy,206 thereby jeopardizing individual defendants and the criminal justice system as a whole. Given the means currently available to deter misconduct in this area, we view the additional protection afforded by the civil remedy for damages as insufficient justification to tie the prosecutor's hands in this regard. We thus affirm the District Court's ruling that absolute immunity attaches to Miller's policymaking activities, and we find that Haynesworth's complaint against him was properly dismissed.
4. The District of Columbia
Haynesworth alleged that the District of Columbia is responsible for its employees' acts of retaliatory prosecution. He invoked the doctrine of respondeat superior as a basis for vicarious liability,207 and further contended that the District is directly responsible because the practice of retaliatory prosecution was sufficiently prevalent to constitute official policy.208 The District Court rejected both theories, finding that respondeat superior did not apply to municipalities and that retaliatory prosecution was not sufficiently promoted by the District to support liability.209 We conclude that the court was correct in its disposition of the respondeat superior claim, but in error in its ruling on direct accountability.
The District Court was on firm ground in discarding Haynesworth's respondeat-superior theory of liability. Although we had decided in Dellums v. Powell210 that the District of Columbia could be deemed vicariously accountable in a Bivens-type action,211 the District Court accurately discerned212 that our holding in Dellums had been seriously undermined by the Supreme Court in Monell v. Department of Social Services.213 Monell specifically rejected respondeat superior as a basis for municipal liability, in consequence of its analysis of the legislative history underlying Section 1983.214 That decision, thus predicated, did not necessarily preclude derivative liability in Bivens-type actions,215 but since the District Court considered the question we have flatly decided that a Bivens action against a municipality cannot be grounded on respondeat superior.216
(a) Municipal Liability for Unconstitutional Conduct
Although the law was once to the contrary,217 Monell firmly established that a municipality can be held directly liable in damages for constitutional violations.218 That liability attaches under Section 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the [constitutional] injury...."219 Although Section 1983 is unavailable in this case,220 this form of responsibility seems clearly imposable in a constitutionally-implied action as well.221
The municipal liability of which we now speak is direct, not vicarious. It is premised, not on the mere fact that the wrongdoing officer is municipally employed, but on the existence of some policy fairly attributable to the municipal government itself. The primary justification for this type of liability is the recognition that a municipality can act only through those who enable it to function.222 When an officer or employee has been delegated power or responsibility to act for the municipality in a given area, he may be acting as a unit of the municipal government, thus rendering the municipal entity liable for his constitutional wrongdoings.223 The critical issue, then, is whether the municipal representative, when engaging in the activity challenged, can properly be said to have acted as the alter ego of the municipality. This inquiry poses a question of fact rather than law,224 and in order to survive a motion to dismiss, the complaint must set forth a "plausible nexus" between the action assailed and the authority conferred by the municipality.225
The question whether policymaking by a municipal officer should be deemed a municipal act for liability purposes turns on the scope and nature of the officer's authority.226 If the official possesses final authority to promulgate policy in the relevant sphere, his decisions "constitute the municipality's final decisions" and hence provide a basis for municipal accountability.227 The clearest case is presented when final say over the challenged edict reposes in the decisionmaker by law or official pronouncement.228 But an individual further down the municipal chain of command may as a practical matter possess final authority to exercise judgment in a particular area, and in such cases it may be feasible to attribute his actions to the municipality for liability purposes.229 Possession by a lower-level official of de facto final authority may be evidenced by the failure of supervisory personnel to oversee his decisions,230 or by a tendency of subordinate employees to acquiesce in his directives.231 These directives may be embodied in formal rules established through official lawmaking procedures, but they may also be promulgated through more informal channels.232
(b) Sufficiency of the Allegations Against the District of Columbia
The District Court, in dismissing Haynesworth's claim against the District of Columbia, stated that he had failed to show that the activities complained of had been authorized by policymaking officials.233 The court adverted to the existence of the policy directive prohibiting retaliatory prosecution, as well as to the ultimate dismissal of the charges against Haynesworth by supervisory officials, in an effort to support its conclusion that the practice of retaliatory prosecution was unauthorized.234 While we agree that those factors were relevant in determining whether municipal liability should attach, we deem them insufficient to defeat the claim against the District at the outset of this litigation.
Viewed in the light most favorable to Haynesworth,235 we believe that his complaint presented sufficient information to proceed against the District for the retaliatory prosecution asserted. Haynesworth alleged that Miller was responsible for establishment and implementation of policies for the Law Enforcement Section of the Corporation Counsel's Office.236 The complaint also charged that Miller pursued a policy of retaliatory prosecution,237 as did other District attorneys acting under his direction.238 These allegations, if proven, could supply an adequate foundation for attribution of Miller's conduct to the District.
At any trial of this issue, the District may attempt to show that Miller's decisions were routinely monitored by his superiors, and that showing could serve to insulate the municipality from liability. Evidence that the charges against Haynesworth were dropped when he lodged an administrative complaint would be relevant in this regard, but the bare allegation of that fact does not preclude municipal liability for the prosecution. Nor does the mere existence of a policy directive condemning retaliatory prosecutions defeat Haynesworth's claim against the District. If the District can establish that the directive was vigorously enforced, it may be that Miller acted without municipal authority. Absent such a showing, if Haynesworth can establish that the Corporation Council's office actually adhered to a policy of retaliatory prosecution, the directive will be rendered meaningless.239
As noted, the question of municipal responsibility for unconstitutional official actions is one of fact so long as the plaintiff sets forth a "plausible" basis for the assertion of liability.240 We find that Haynesworth's complaint sets forth adequate ground for attributing the challenged conduct to the District, and that he is entitled to an opportunity to prove the District's legal responsibility for harm caused by the retaliatory prosecution.241
Our conclusions in this multifaceted appeal reduce to the following. Dismissal of Hancock's complaint is not properly before us, and the District Court is encouraged to reconsider its original order when the litigation resumes upon issuance of the mandate on this appeal. Gildon must be reinstated as a defendant because the District Court erroneously granted her motion for judgment on the pleadings. Haynesworth is unable to maintain a cause of action against either of the former Chiefs of Police on a respondeat-superior theory, and has not stated a claim of direct responsibility against Jefferson, but is entitled to proceed against Cullinane for his alleged failure adequately to train and supervise his subordinates. Miller enjoys absolute immunity for his actions as the prosecutor in Haynesworth's case and for his conduct as policymaker in the Corporation Counsel's office. Miller's alleged wrongdoing nevertheless provides a basis for proceeding against the District of Columbia since it appears that he may have possessed sufficient policymaking authority to act for the District in the establishment of prosecution policies. The District Court's action is accordingly affirmed in part and reversed in part, and the case is remanded to that court for proceedings consistent with this opinion.
VAN PELT, Senior District Judge, concurring:
I desire to make a short statement as to my concurrence. I commend Judge Robinson on his opinion, in which Judge Wright has concurred, and his attempt to bring order to plaintiff's argument which is disorganized, verbose, and difficult to follow.
When this case was argued and submitted to the panel, Hancock's claim had been dismissed as improperly joined. The claims of Haynesworth were standing as against Schwartz, Lyddane and Mooney, the officers who had arrested him. As to Hancock's claim, I disagree with Judge Robinson's opinion in part only; I conclude that it was reversible error to dismiss his claim. I think it should have been severed. See: Rule 21, Federal Rules of Civil Procedure, and Footnote 1, page 7, of Brief of Appellees. He should have full protection against statutes of limitations. The dismissal of Sonya Proctor, the police officer, who arrested Hancock, can be reconsidered if Hancock's claim is reinstated.
I concur in the affirmance of Miller's dismissal. While this comment may not be relevant at this stage of the proceedings, I comment gratuitously that Howard B. Horowitz is immune to the same extent that Miller is immune, assuming his acts were taken within the scope of his advocacy duties.
I concur in rejecting the respondeat superior claims against Cullinane and Jefferson and in the dismissal of Jefferson on the basis that there was insufficient personal involvement on his part to implicate him in either the formulation of the alleged policy or its execution. I agree that further discovery should be allowed on Haynesworth's claim against Cullinane. Cullinane, in turn, should be given the right to develop the affirmative defense of qualified immunity. It is possible that he could present this defense in a motion for summary judgment. Thus, I also would reverse the dismissal of Cullinane for these purposes. The trial court may or may not conclude that the defense of qualified immunity can be presented in a motion for summary judgment or that a jury issue exists as to this officer.
As to the issue of liability of the District of Columbia, I recognize my tendency as a judge from outside the District to defer to Judges Robinson and Wright and their general knowledge of the intention and history of the District of Columbia governmental action. I agree that liability cannot be based on the theory of respondeat superior. As to the possibility of direct liability based upon proof of the existence of a municipal policy or course of action, I would hold that Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), is applicable based on the status of this case at the time of the ruling of the district judge. Nevertheless, I concur in the action proposed, since this case should have immediate attention. Later review by a full panel of the court is always a possibility, with an issue such as the applicability of Monell.