OCTOBER TERM, 1995
Syllabus
BEHRENS
v. PELLETIER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 94-1244. Argued November 7, 1995-Decided February 21,
1996
Respondent was fired as provisional managing officer of Pioneer
Savings and Loan Association after petitioner, the federal official
responsible for monitoring Pioneer's operations, recommended such
action because respondent was under investigation for potential
misconduct relating to the collapse of another financial
institution. Respondent filed this suit, seeking,
inter
alia, damages for alleged constitutional wrongs under
Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U. S. 388. In
partially denying petitioner's motion to dismiss the
Bivens
claims, the District Court rejected petitioner's asserted defense
of qualified immunity from suit. On appeal, the Ninth Circuit held
that denial of qualified immunity is an immediately appealable
"final" decision under 28 U. S. C. § 1291 and
Cohen v.
Beneficial Industrial Loan Corp., 337 U. S. 541, but also
stated, in dictum, that an official claiming qualified immunity is
entitled to only one such pretrial appeal. Ultimately, the court
affirmed the District Court's rejection of petitioner's
qualified-immunity defense, based on the allegations made in
respondent's complaint. On remand and after further proceedings,
the District Court denied petitioner's motion for summary judgment,
which again claimed qualified immunity. Petitioner's appeal from
that denial, his second pretrial appeal based on a rejection of the
qualified-immunity defense, was summarily dismissed by the Ninth
Circuit "for lack of jurisdiction."
Held: A defendant's immediate appeal of an unfavorable
qualified-immunity ruling on a motion to dismiss does not deprive
the court of appeals of jurisdiction over a second appeal, also
based on qualified immunity, immediately following denial of
summary judgment. Pp. 305-314.
(a) The Ninth Circuit's one-interlocutory-appeal rule is
rejected. In
Mitchell v.
Forsyth, 472 U. S. 511, 530, this
Court held that a district court's denial of qualified immunity is
an immediately appealable "final decision" within the meaning of 28
U. S. C. § 1291.
Mitchell plainly contemplated that a
government officer could raise the qualified-immunity defense at
both the motion-to-dismiss
and the summary-judgment
stage, see 472 U. S., at 526, and clearly establishes that an order
rejecting the defense at
either stage is a "final" judgment
subject to immediate appeal. An unsuccessful appeal from denial of
a motion to dismiss cannot possibly render the later denial of a
motion for summary judgment any
300
Syllabus
less "final" than it would be absent the prior decision.
It follows that petitioner's appeal seeks review of a "final
decision" within § 1291 and that its dismissal by the Court of
Appeals was improper. The Ninth Circuit's proposition that no more
than one judiciously timed appeal should be necessary to safeguard
a defendant's right to qualified immunity is unsound, because the
factors determinative of the qualified-immunity question will be
different on summary judgment, where the court looks to the
uncontested evidence, than on an earlier motion to dismiss, where
it merely looks to the allegations of the complaint.
pp.305-311.
(b) Respondent's additional arguments as to why dismissal was
proper-(l) that the order denying qualified immunity could not be
said to be "final" under
Cohen since, even if it were to be
reversed, petitioner would nonetheless be required to endure
discovery and trial on other matters, and (2) that, under
Johnson v.
Jones, 515 U. S. 304, the denial
of summary judgment is not immediately appealable because it rests
on the determination that a genuine dispute exists as to material
issues of fact-are also rejected. Pp.311-313.
Reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, and
GINSBURG, JJ., joined. BREYER, J., filed a dissenting opinion, in
which STEVENS, J., joined,
post, p. 314.
Lenard G.
Weiss argued the cause for petitioner.
With him on the briefs was
Christine A. Murphy.
Cornelia T. L. Pillard argued the cause for the United States as
amicus curiae urging reversal. With her on the brief were Solicitor
General Days, Assistant Attorney General Hunger, Deputy Solicitor
General Bender, Barbara L. Herwig, and Richard A. Olderman.
Samuel T. Rees, by appointment of the Court, 515 U. S.
1101, argued the cause for respondent. With him on the brief was
Michael J. White. *
* Louise H. Renne, Dennis Aftergut, G. Scott Emblidge,
Ronald R. Ball, David
J. Erwin,
J. Kenneth Brown,
Norman Herring, Edward
J. Foley, Charles
J. Williams,
James K. Hahn, Katherine
J. Hamilton, Gregory P. Priamos,
Edward
J. Cooper, Rene Auguste Chouteau, Mark G. Sellers,
David B. Brearley, and Robert E. Murphy filed a brief for the City
and County of San Francisco as amicus curiae urging reversal.
301
JUSTICE SCALIA delivered the opinion of the Court.
In
Mitchell v.
Forsyth, 472 U. S. 511 (1985), we
held that a district court's rejection of a defendant's
qualified-immunity defense is a "final decision" subject to
immediate appeal under the general appellate jurisdiction statute,
28 U. S. C. § 1291. The question presented in this case is whether
a defendant's immediate appeal of an unfavorable qualified-immunity
ruling on his motion to dismiss deprives the court of appeals of
jurisdiction over a second appeal, also based on qualified
immunity, immediately following denial of summary judgment.
I
In 1983, South Coast Savings and Loan Association, a new
institution, applied to the Federal Home Loan Bank Board (FHLBB or
Board) for the approval necessary to obtain account insurance from
the Federal Savings and Loan Insurance Corporation (FSLIC).l Under
FHLBB regulations, approval of new institutions was to be withheld
if their "financial policies or management" were found to be
"unsafe" for any of various reasons, including "character of the
management." 12 CFR § 571.6(b) (1986). Accordingly, when FHLBB
approved South Coast for FSLIC insurance in March 1984, it imposed
a number of requirements, including the condition that South Coast
"provide for employment of a qualified full-time executive managing
officer, subject to approval by the Principal Supervisory
Agent"-FHLBB's term for the president of the regional Home Loan
Bank when operating in his oversight capacity on behalf of FHLBB.
Record, Exh. B, Resolution No. 84-164, , 10(p) (Mar. 29, 1984). The
Board's resolution also required that, for a period of three years,
any change in South Coast's chief management position be approved
by FHLBB.
Ibid.
1 FHLBB, FSLIC, and the regulatory scheme described in this
opinion no longer exist, having been eliminated by the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989, 103
Stat. 183.
302
Shortly after obtaining FHLBB's conditional approval, South
Coast was succeeded in interest by Pioneer Savings and Loan
Association, another new institution. Pioneer named respondent
Pelletier as its managing officer, subject to FHLBB consent, which
Pioneer sought in mid-May 1985. Only a few weeks earlier, however,
on April 23, 1985, FHLBB had declared insolvent Beverly Hills
Savings and Loan Association, where respondent had at one time held
a senior executive position. An inquiry by FSLIC pointed to
potential misconduct by high-level management of the failed
institution, which ultimately became the subject of an FSLIC
lawsuit against several Beverly Hills officers, including
respondent.
The FSLIC suit had not yet been filed at the time Pioneer sought
the Board's consent to hire respondent; but FSLIC's pending
investigation into Beverly Hills' collapse caused petitioner
Behrens, the FHLBB "Supervisory Agent" then responsible for
monitoring Pioneer's operations, to write Pioneer on May 8, 1986,
withholding approval and advising that respondent be replaced. On
receipt of the letter Pioneer asked respondent to resign and, when
he refused, fired him.
Three years later, in 1989, respondent brought suit in federal
court, naming petitioner as defendant in a complaint that included
Bivens damages claims for two alleged constitutional wrongs.
See
Bivens v.
Six Unknown Fed. Narcotics Agents,
403 U. S. 388
(1971). Respondent charged, first, that petitioner's action in
writing a letter that had effectively discharged him from his post
at Pioneer, in summary fashion and without notice or opportunity to
be heard, violated his right to procedural due process. Second, he
claimed that he had been deprived of substantive due process by
petitioner's alleged interference with his "clearly established and
Constitutionally protected property and liberty rights ... to
specific employment and to pursue his profession free from undue
governmental interference." First Amended Complaint, 38, reprinted
in App. 7, 16. The complaint alleged
303
that petitioner's letter, along with other, continuing efforts
to harm respondent's reputation, had cost respondent not only his
position at Pioneer, but also his livelihood within the savings and
loan industry. The complaint also contained other claims-against
petitioner and against the Federal Home Loan Bank of San Francisco
(petitioner's immediate employer), FHLBB, and the United States;
none of these is relevant to the present appeal.
Petitioner filed a motion to dismiss or, in the alternative, for
summary judgment. With regard to the
Bivens claims, he
asserted a statute-of-limitations defense and claimed qualified
immunity from suit on the ground that his actions, taken in a
governmental capacity, "d[id] not violate clearly established
statutory or constitutional rights."
Harlow v.
Fitzgerald, 457 U. S. 800, 818
(1982). The District Court ruled in favor of petitioner on the
statute-of-limitations ground and therefore dismissed the
procedural due process
Bivens claim, and the substantive due
process
Bivens claim to the extent it related to
petitioner's letter and respondent's loss of employment at Pioneer.
It refused, however, to dismiss respondent's suit "to the extent
[it was] based on other alleged subsequent acts of defendan[t]
preventing and continuing to prevent [respondent] from securing
employment."
Pelletier v.
Federal Home Loan Bank of San
Francisco, No. CV 89-969 (CD Cal., Oct. 5, 1989), reprinted in
App. 27-28. The court also denied petitioner's summary judgment
motion, without prejudice, on the ground that it was premature
given the lack of discovery.
Petitioner immediately appealed the District Court's implicit
denial of his qualified-immunity defense regarding the remaining
Bivens claim. The Court of Appeals entertained the appeal,
notwithstanding its interlocutory nature, holding that "a denial of
qualified immunity is an appealable 'final' order under the test
set forth in
Cohen v.
Beneficial Indust. Loan Corp.,
337 U. S. 541
(1949) ... , regardless of whether that denial takes the form of a
refusal to grant a defendant's
304
motion to dismiss or a denial of summary judgment."
Pelletier v.
Federal Home Loan Bank of San Francisco,
968 F.2d
865, 870 (CA9 1992). It said in dictum, however, that a
defendant claiming qualified immunity could not "take advantage of
the several
opportunities for immediate appeal afforded him
by bringing repeated pretrial appeals," and that "[o]ne such
interlocutory appeal is all that a government official is entitled
to and all that we will entertain."
Id., at 870-871. On the
merits of the appeal, the court rejected the argument that
petitioner enjoyed qualified immunity because he had not violated
any "clearly established right." It said that the question whether
respondent had a constitutionally protected property interest in
his Pioneer employment (subject, as it was, to regulatory approval)
was not properly before the court, since the claims relating
specifically to his discharge had been dismissed as time barred.
Id., at 871-872. (The Court of Appeals noted in dictum,
however,
id., at 869, n. 6, that the District Court had
applied an unduly short limitations period.) With respect to the
claimed deprivation of post-Pioneer employment, the court held that
the "nebulous theories of conspiracy" set out in respondent's
complaint-although "insufficient to survive a motion for summary
judgment"-made out a proper
Bivens claim. 968 F. 2d, at
872-873.
Upon remand, the District Court reversed its earlier
statute-of-limitations ruling in light of the Court of Appeals'
dictum, and reinstated the claims relating to employment at
Pioneer. After discovery, petitioner moved for summary judgment on
qualified-immunity grounds, contending that his actions had not
violated any "clearly established" right of respondent regarding
his employment at Pioneer or elsewhere. The District Court denied
the motion with the unadorned statement that "[m]aterial issues of
fact remain as to defendant Behrens on the
Bivens claim."
Pelletier v.
Federal Home Loan Bank of San Francisco,
No. CV 89-0969 (CD Cal., Sept. 6, 1994), reprinted in App. to Pet.
for Cert.
305
5a. Petitioner filed a notice of appeal, which, on respondent's
motion, the District Court certified as frivolous. In an
unpublished order, the Ninth Circuit dismissed the appeal "for lack
of jurisdiction."
Pelletier v.
Federal Home Loan Bank of
San Francisco, No. 94-56507 (CA9, Nov. 17, 1994), reprinted in
App. to Pet. for Cert. la. We granted certiorari, 514 U. S. 1035
(1995).
II
Section 1291 of Title 28, U. S. C., gives courts of appeals
jurisdiction over "all final decisions" of district courts, except
those for which appeal is to be had to this Court. The requirement
of finality precludes consideration of decisions that are subject
to revision, and even of "fully consummated decisions [that] are
but steps towards final judgment in which they will merge."
Cohen v.
Beneficial Industrial Loan Corp., 337 U. S. 541, 546
(1949). It does not, however, bar review of all prejudgment orders.
In
Cohen, we described a "small class" of district court
decisions that, though short of final judgment, are immediately
appealable because they "finally determine claims of right
separable from, and collateral to, rights asserted in the action,
too important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until
the whole case is adjudicated."
Ibid. See also
Puerto
Rico Aqueduct and Sewer Authority v.
Metcalf &
Eddy, Inc., 506 U. S. 139, 142-145
(1993) (citing
Coopers &
Lybrand v.
Livesay, 437
U. S. 463, 468 (1978)). The issue in the present case is the
extent to which orders denying governmental officers' assertions of
qualified immunity come within the
Cohen category of
appealable decisions.
As set forth in
Harlow v.
Fitzgerald, 457 U. S. 800 (1982), the
qualified-immunity defense "shield[s] [government agents] from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known,"
id., at 818
(citing
Procunier v.
Navarette, 434 U. S.
306
555,565 (1978)).
Harlow adopted this criterion of
"objective legal reasonableness," rather than good faith, precisely
in order to "permit the defeat of insubstantial claims without
resort to trial." 457 U. S., at 819, 813. Unsurprisingly, then, we
later found the immunity to be "an entitlement not to stand trial
or face the other burdens of litigation, conditioned on the
resolution of the essentially legal [immunity] question."
Mitchell v.
Forsyth, 472 U. S., at 526. And, as with
district-court rejection of claims to other such entitlements
distinct from the merits, see,
e. g., Puerto Rico Aqueduct,
supra, at 145-146 (Eleventh Amendment immunity);
Abney
v.
United States, 431 U. S. 651, 662 (1977)
(right not to be subjected to double jeopardy), we held that "a
district court's denial of a claim of qualified immunity, to the
extent that it turns on an issue of law, is an appealable 'final
decision' within the meaning of 28 U. S. C. § 1291 notwithstanding
the absence of a final judgment."
Mitchell, supra, at 530.
See also
Johnson v.
Jones, 515 U. S. 304, 311-312
(1995).
While
Mitchell did not say that a defendant could appeal
from denial of a qualified-immunity defense more than once,2 it
clearly contemplated that he could
raise the defense at
successive stages:
"Unless the plaintiff's allegations state a claim of violation
of clearly established law, a defendant pleading qualified immunity
is entitled to dismissal before the commencement of discovery. Even
if the plaintiff's complaint adequately alleges the commission of
acts that violated clearly established law, the defendant is
entitled to summary judgment if discovery fails to uncover evi-
2 Interestingly, however,
Mitchell itself dealt with the
second of two interlocutory appeals on immunity claims. See 472 U.
S., at 515-519. Neither the Court of Appeals nor this Court
assigned any significance to the successive aspect of the second
appeal.
307
dence sufficient to create a genuine issue as to whether the
defendant in fact committed those acts." 472 U. S., at 526
(citation omitted).
Thus,
Mitchell clearly establishes that an order
rejecting the defense of qualified immunity at
either the
dismissal stage
or the summary judgment stage is a "final"
judgment subject to immediate appeal. Since an unsuccessful appeal
from a denial of dismissal cannot possibly render the later denial
of a motion for summary judgment any
less "final," it
follows that petitioner's appeal falls within § 1291 and dismissal
was improper.
Indeed, it is easier to argue that the denial of summary
judgment-the order sought to be appealed here-is the
more
"final" of the two orders. That is the reasoning the First Circuit
adopted in holding that denial of a motion to dismiss on
absolute-immunity grounds was not "final" where the defendant had
stated that, if unsuccessful, he would later seek summary judgment
on qualified-immunity grounds:
"Since the district court has not yet determined whether [the
defendant] has qualified immunity, and that he will
have to
stand trial, its decision is not an appealable collateral order."
Kaiter v.
Boxford, 836 F.2d
704, 707 (1988). The problem with this approach, however, is
that it would logically bar
any appeal at the
motion-to-dismiss stage where there is a possibility of presenting
an immunity defense on summary judgment; that possibility would
cause the motion-to-dismiss decision to be not "final" as to the
defendant's right not to stand trial. The First Circuit sought to
avoid this difficulty by saying that the defendant could render the
motion-todismiss denial final by waiving his right to appeal the
summary judgment denial. See
id., at 708. But quite
obviously, eliminating the ability to
appeal the second
order does not eliminate the possibility that the second order will
vindicate the defendant's right not to stand trial, and
therefore
308
does not eliminate the supposed reason for declaring the first
order nonfinal.
The source of the First Circuit's confusion was its mistaken
conception of the scope of protection afforded by qualified
immunity.
Harlow and
Mitchell make clear that the
defense is meant to give government officials a right, not merely
to avoid "standing trial," but also to avoid the burdens of "such
pretrial matters as discovery ... , as '[i]nquiries of this
kind can be peculiarly disruptive of effective government.'"
Mitchell, supra, at 526 (emphasis added) (quoting from
Harlow, supra, at 817). Whether or not a later summary
judgment motion is granted, denial of a motion to dismiss is
conclusive as to this right. We would have thought that these and
other statements from
Mitchell and
Harlow had settled
the point, questioned by JUSTICE BREYER, see
post, at 317,
that this right is important enough to support an immediate appeal.
If it were not, however, the consequence would be,
not that
only one pretrial appeal could be had in a given case, as JUSTICE
BREYER proposes, but rather, that there could be
no
immediate appeal from denial of a motion to dismiss but only from
denial of summary judgment. That conclusion is foreclosed by
Mitchell, which unmistakably envisioned immediate appeal of
"[t]he denial of a defendant's motion for dismissal or summary
judgment on the ground of qualified immunity." 472 U. S., at
527.
The Court of Appeals in the present case, in the first of its
two decisions, rested its "one-appeal" pronouncement upon the
proposition that resolving the question of entitlement to qualified
immunity "should not require more than one judiciously timed
appeal."
Pelletier, 968 F. 2d, at 871. It did not explain
how this proposition pertains to the question of finality, but we
suppose it could be argued that a category of appeals thought to be
needless or superfluous does not raise a claim of right "too
important to be denied review," as our
Cohen finality
jurisprudence requires, see 337 U. S., at 546.
309
In any event, the proposition is not sound. That one appeal on
the immunity issue may not be enough is illustrated by the history
of respondent's claims for loss of employment at Pioneer in the
present case. Because these claims had initially been dismissed as
time barred, the Court of Appeals refused to decide (and thus
evidently regarded as an open question) whether one who holds his
job subject to regulatory approval can assert a constitutionally
cognizable expectation of continued employment. See
Pelletier,
supra, at 871-872. Thus, the question whether petitioner was
entitled to immunity on these claims was not presented to
any court until petitioner's summary judgment motion-and, by
operation of the Ninth Circuit's one-appeal rule, has never been
addressed by an appellate court.
That is assuredly an unusual set of circumstances, but even in a
case proceeding in a more normal fashion resolution of the immunity
question may "require more than one judiciously timed appeal,"
because the legally relevant factors bearing upon the
Harlow
question will be different on summary judgment than on an earlier
motion to dismiss. At that earlier stage, it is the defendant's
conduct
as alleged in the complaint that is scrutinized for
"objective legal reasonableness." On summary judgment, however, the
plaintiff can no longer rest on the pleadings, see Fed. Rule Civ.
Proc. 56, and the court looks to the evidence before it (in the
light most favorable to the plaintiff) when conducting the
Harlow inquiry. It is no more true that the defendant who
has unsuccessfully appealed denial of a motion to dismiss has no
need to appeal denial of a motion for summary judgment, than it is
that the defendant who has unsuccessfully
made a motion to
dismiss has no need to
make a motion for summary
judgment.3
3JU8TICE BREYER suggests that the second of two pretrial
qualified-immunity appeals does not come within
Cohen's
class of immediately ap-
310
The Court of Appeals expressed concern that a second appeal
would tend to have the illegitimate purpose of delaying the
proceedings. See 968 F. 2d, at 870-871. Undeniably, the
availability of a second appeal affords an opportunity for abuse,
but we have no reason to believe that abuse has often occurred. To
the contrary, successive pretrial assertions of immunity seem to be
a rare occurrence.4 Moreover, if and when abuse does occur, as we
observed in the analogous context of interlocutory appeals on the
issue of double jeopardy, "[i]t is well within the supervisory
powers of the courts of appeals to establish summary procedures and
calendars to weed out frivolous claims."
Abney, 431 U. S.,
at 662, n. 8. In the present case, for example, the District Court
appropriately certified petitioner's immunity appeal as "frivolous"
in light of the Court of Appeals' (unfortunately erroneous)
one-appeal precedent. This practice, which has been embraced by
several Circuits, enables the district court to re-
pealable final orders because it is insufficiently "separable"
from the claim raised on the first appeal, see
post, at 316.
But the
Cohen "separability" component asks whether the
question to be resolved on appeal is "conceptually distinct from
the merits of the plaintiff's claim."
Mitchell v.
Forsyth, 472
U. S. 511, 527 (1985). The appropriate comparison, then, is
between the decision sought to be reviewed and the claim underlying
the action itself-not between the decision and any previous appeal,
as JusTICE BREYER suggests. And again,
Mitchell clearly
states that a denial of qualified immunity, whether on a motion for
dismissal or summary judgment, is an "appealable 'final
decision.'''
Id., at 530.
4 We are aware of only five reported
cases-Mitchell
itself,
Nelson v.
Silverman, 999 F.2d
417 (CA9 1993),
Abel v.
Miller, 904 F.2d
394 (CA7 1990), Francis v.
Coughlin, 891 F.2d
43 (CA2 1989), and the present case-in which Courts of
Appeals have been twice asked to review successive pretrial
assertions of immunity. See
Abel, supra, at 396 ("Paucity of
precedent [on successive interlocutory appeals] must reflect the
forbearance of public officials rather than lack of opportunity");
Kaiter v.
Boxford, 836 F.2d
704, 706
(CA1 1988) ("[I]n every case we have found
which permitted interlocutory review of an immunity ruling, the
defendant's entire claim to immunity was raised in a single
proceeding").
311
tain jurisdiction pending summary disposition of the appeal, and
thereby minimizes disruption of the ongoing proceedings. See,
e.
g., Chum an v.
Wright, 960 F.2d
104, 105 (CA9
1992); Yates v.
Cleveland,
941 F.2d
444, 448-449 (CA6 1991);
Stewart v.
Donges,
915 F.2d
572, 576-577 (CAlO 1990);
Apostol v.
Gallion,
870 F.2d
1335, 1339 (CA7 1989). In any event, the question before us
here-whether there is jurisdiction over the appeal, as opposed to
whether the appeal is frivolous-must be determined by focusing upon
the category of order appealed from, rather than upon the strength
of the grounds for reversing the order. "Appeal rights cannot
depend on the facts of a particular case."
Carroll v.
United States, 354 U. S. 394, 405
(1957). See also
Digital Equipment Corp. v.
Desktop
Direct, Inc., 511
U. S. 863, 868 (1994). As we have said, an order denying
qualified immunity, to the extent it turns on an "issue oflaw,"
Mitchell, 472 U. S., at 530, is immediately appealable.
III
Our rejection of the one-interlocutory-appeal rule does not
dispose of this case. Respondent proposes two other reasons why
appeal of denial of the summary judgment motion is not available.
First, he argues that no appeal is available where, even if the
District Court's qualified-immunity ruling is reversed, the
defendant will be required to endure discovery and trial on matters
separate from the claims against which immunity was asserted.
Respondent reasons that a ruling which does not reach all the
claims does not "conclusively determin[e] the defendant's claim of
right not to
stand trial," id., at 527, and thus the order
denying immunity cannot be said to be "final" within the meaning of
Cohen.
It is far from clear that, given the procedural posture of the
present case, respondent would be entitled to the benefit of the
proposition for which he argues; but we will address the
proposition on its merits. The Courts of Appeals have
312
almost unanimously rejected it,5 and so do we. The
Harlow
right to immunity is a right to immunity
from certain
claims, not from litigation in general; when immunity with
respect to those claims has been finally denied, appeal must be
available, and cannot be foreclosed by the mere addition of other
claims to the suit. Making appealability depend upon such a factor,
particular to the case at hand, would violate the principle
discussed above, that appealability determinations are made for
classes of decisions, not individual orders in specific cases.
Apart from these objections in principle, the practical effect of
respondent's proposal would be intolerable. If the district court
rules erroneously, the qualified-immunity right not to be subjected
to pretrial proceedings will be eliminated, so long as the
plaintiff has alleged (with or without evidence to back it up)
violation of one "clearly established" right; and both that and the
further right not to be subjected to trial itself will be
eliminated, so long as the complaint seeks injunctive relief (for
which no "clearly established" right need be alleged).
Second, respondent asserts that appeal of denial of the summary
judgment motion is not available because the denial rested on the
ground that "[m]aterial issues of fact remain." This, he contends,
renders the denial unappealable under last Term's decision in
Johnson v.
Jones, 515 U. S., at 313-318. That is a
misreading of the case. Denial of summary judgment often includes a
determination that there are controverted issues of material fact,
see Fed. Rule Civ. Proc.
5 See, e. g., McLaurin v. Morton,
48 F.3d
944,949 (CA6 1995); Green v.
Brantley, 941 F.2d
1146, 1148-1151
(CAll 1991) (en bane);
Di Martini
v. Ferrin,
889 F.2d
922, 924-925
(CA9 1989), cert. denied, 501 U. S. 1204
(1991); Young v.
Lynch, 846 F.2d
960, 961-963
(CA4 1988);
De Vargas v.
Mason &
Hanger Silas Mason Co., 844 F.2d
714, 717-718 (CAlO 1988);
Musso v.
Hourigan,
836 F.2d
736, 742, n. 1
(CA2 1988);
Scott v.
Lacy,
811 F. 2d 1153, 1153-1154
(CA7 1987);
De Abadia
v.
Izquierdo Mora, 792 F.2d
1187, 1188-1190
(CA1 1986);
Tubbesing v.
Arnold, 742 F.2d
401, 403-404
(CA8 1984). Only the Third Circuit holds
otherwise. See
Prisco v.
United States Dept. of
Justice, 851 F.2d
93, 95-96, cert. denied, 490 U. S. 1089 (1989).
313
56, and
Johnson surely does not mean that
every
such denial of summary judgment is nonappealable.
Johnson
held, simply, that determinations of evidentiary sufficiency at
summary judgment are not immediately appealable merely because they
happen to arise in a qualified-immunity case; if what is at issue
in the sufficiency determination is nothing more than whether the
evidence could support a finding that particular conduct occurred,
the question decided is not truly "separable" from the plaintiff's
claim, and hence there is no "final decision" under
Cohen
and
Mitchell. See 515 U. S., at
313-318. Johnson
reaffirmed that summary judgment determinations
are
appealable when they resolve a dispute concerning an "abstract
issu[e] of law" relating to qualified immunity,
id., at
317-typically, the issue whether the federal right allegedly
infringed was "clearly established," see,
e. g., Mitchell,
supra, at 530-535;
Davis v.
Scherer, 468 U. S. 183, 190-193
(1984).
Here the District Court's denial of petitioner's summary
judgment motion necessarily determined that certain conduct
attributed to petitioner (which was controverted) constituted a
violation of clearly established law.
Johnson permits
petitioner to claim on appeal that all of the conduct which the
District Court deemed sufficiently supported for purposes of
summary judgment met the
Harlow standard of "objective legal
reasonableness." This argument was presented by petitioner in the
trial court, and there is no apparent impediment to its being
raised on appeal. And while the District Court, in denying
petitioner's summary judgment motion, did not identify the
particular charged conduct that it deemed adequately supported,
Johnson recognizes that under such circumstances "a court of
appeals may have to undertake a cumbersome review of the record to
determine what facts the district court, in the light most
favorable to the nonmoving party, likely assumed."
Johnson,
supra, at 319. That is the task now facing the Court of Appeals
in this case.
314
The judgment of the Court of Appeals is reversed, and the case
is remanded for proceedings consistent with this opinion.
It is so ordered.
JUSTICE BREYER, with whom JUSTICE STEVENS joins, dissenting.
I do not agree with the Court's holding that those asserting a
defense of qualified immunity are entitled, as a matter of course,
to more than one interlocutory appeal. Rather, in my view, the law
normally permits a single interlocutory appeal, and not more than
one such appeal, from denials of a defendant's pretrial motions to
dismiss a case on grounds of qualified immunity. The "collateral
order" doctrine's basic rationale, this Court's precedents, and
several practical considerations lead to this conclusion.
I
This Court's basic rationale for permitting an interlocutory
appeal of a "collateral order" recognizes that interlocutory
appeals are the exception, not the rule. Congress, with statutory
exceptions not directly relevant here, has authorized appeals from
"final" orders. 28 U. S. C. § 1291. In that way,
"Congress ... , by forbidding piecemeal disposition on appeal of
what for practical purposes is a single controversy, set itself
against enfeebling judicial administration [and] ... the
obstruction to just claims that would come from permitting the
harassment and cost of a succession of separate appeals from the
various rulings to which a litigation may give rise, from its
initiation to entry of judgment." Cobbledick v. United
States, 309 U. S. 323, 325 (1940).
Judges have nonetheless created what is, in effect, a
nonstatutory exception, authorizing a special set of
interlocutory
315
appeals, where a trial court's interlocutory order is a
"collateral order" that satisfies the statutory term "final" for
purposes of § 1291. See
Cohen v.
Beneficial Industrial
Loan Corp., 337
U. S. 541, 545-547 (1949). The trial court's interlocutory
order is "collateral" (and "final"), however, only where it meets
certain requirements. It must (1) "conclusively determine [a]
disputed question," (2) "resolve an important issue completely
separate from the merits of the action," and (3) "be effectively
unreviewable on appeal from a final judgment."
Coopers &
Lybrand v.
Livesay, 437 U. S. 463, 468
(1978).
These requirements explain
why the courts have created
the "collateral order" exception. The "effective unreviewability"
requirement means that failure to review the order on appeal
now may cause a litigant permanent harm. The "conclusive
determination" requirement means that appellate review
now
is likely needed to avoid that harm. The "separability" requirement
means that review
now will not likely force an appellate
court to consider the same (or quite similar) questions more than
once.
Johnson v.
Jones, 515 U. S. 304, 311
(1995). Taken together, these requirements, as set forth in the
Court's cases, see,
e. g., ibid.; Midland Asphalt Corp. v.
United States, 489 U. S. 794, 799
(1989);
Gulfstream Aerospace Corp. v.
Mayacamas
Corp., 485 U. S.
271, 276 (1988), help pick out a class of orders where the
error-correcting benefits of immediate appeal likely outweigh the
costs, delays, diminished litigation coherence, and waste of
appellate court time potentially associated with multiple appeals.
See,
e. g., Johnson, supra, at 309-311; R. Posner, Economic
Analysis of Law 585-587 (4th ed. 1992).
In
Mitchell v.
Forsyth, 472 U. S. 511 (1985), the
Court applied this rationale to a District Court order denying a
claim of qualified immunity. The Court concluded that the District
Court order, by sending the case to trial, could cause the litigant
what (in terms of the immunity doctrine's basic trial-avoiding
purpose) would amount to an important harm.
316
See
id., at 526-527. Post-trial appellate review would
come too late to avoid that harm.
Ibid. And, the legal issue
(where
purely legal, see
Johnson, supra, at 313-318)
would often prove "separate" enough from the more basic substantive
issues in the case to avoid significant duplication of appellate
court time and effort. See 472 U. S., at 527-529; but see
id., at 545-550 (Brennan, J., dissenting). Hence, the
"collateral order" doctrine's basic rationale supported
interlocutory appeal.
That same rationale, however, does not support
two
pretrial interlocutory appeals, the first from a denial of a motion
to dismiss a complaint, the second from a later, postappeal, denial
of a motion for summary judgment. Consider the "separability"
requirement. Both orders satisfy the literal terms of that
requirement because the qualified immunity issues they resolve are
both "separate," in equal measure, from the merits of the
plaintiff's claim. See
ante, at 309310, n. 3. But the
reasoned principles and purposes underlying the "separability"
requirement are not served by a rule that permits both orders to be
appealed because the issues they raise are not normally "separate"
one from the other. Rather, they will often involve quite similar
issues, likely presented to different appellate court panels,
thereby risking the very duplication and waste of appellate
resources that the courts intended the "separability" requirement
to avoid. See 15A C. Wright, A. Miller, & E. Cooper, Federal
Practice and Procedure § 3911, pp. 333-334 (2d ed. 1992)
(hereinafter Wright & Miller).
Similarly, given the law's promise of
one pretrial
interlocutory appeal, a litigant's need for a second is much less
pressing. The single interlocutory appeal can avoid much of, though
not all of, the harm that
Mitchell found. And, the remaining
harm, as I shall next discuss, is not of a kind that the law
considers
important enough to justify an interlocutory
appeal.
317
II
This Court's precedents justify one interlocutory appeal, but
not more, in the ordinary qualified immunity case. When it
initially set forth the "collateral order" exception, the Court
said that it applied to "that small class" of orders that determine
claims of right "too
important to be denied [immediate]
review."
Cohen, supra, at 546 (emphasis added). In
subsequent cases, and again today, the Court has reiterated that,
to qualify for interlocutory appeal, the interest being asserted
must be an
important one. See,
e. g., ante, at 308;
Digital Equipment Corp. v.
Desktop Direct, Inc.,
511 U. S. 863,
878-879 (1994)
(Cohen inquiry "simply cannot be answered
without a judgment about the value of the interests that would be
lost through rigorous application of a final judgment
requirement");
Coopers &
Lybrand, supra, at 468
(disputed question must "resolve an important issue");
Richardson-Merrell Inc. v.
Koller, 472 U. S. 424, 436
(1985); see also
Lauro Lines s.r.l. v.
Chasser,
490 U. S. 495,
502 (1989) (SCALIA, J., concurring) ("The importance of the right
asserted has always been a significant part of our collateral order
doctrine"). Because one pretrial appeal would normally prove
sufficient to protect a government defendant's qualified immunity
interest in not standing trial, the right to take multiple
interlocutory appeals will normally protect only the defendant's
additional interest in avoiding such pretrial burdens as discovery.
Thus, the question, as JUSTICE SCALIA has pointed out, is whether
this antidiscovery interest is
"sufficiently important to
overcome the policies militating against interlocutory appeals."
Id., at 503 (emphasis added). The relevant precedent
indicates that, in the context of qualified immunity, it is
not.
For one thing, the Court, when considering the kinds of orders
that warrant interlocutory appeal, has identified as "sufficiently
important" interests that are considerably more important than the
ordinary interest in avoiding discovery.
318
See,
e. g., Stack v.
Boyle, 342 U. S. 1 (1951)
(interest in avoiding imprisonment; Excessive Bail Clause, U. S.
Const., Arndt.
8); Abney v.
United States, 431 U. S. 651 (1977)
(interest in avoiding trial; Double Jeopardy Clause, U. S. Const.,
Arndt.
5); Helstoski v.
Meanor, 442 U. S. 500 (1979)
(interest in avoiding trial; Speech or Debate Clause, U. S. Const.,
Art. I, § 6);
Puerto Rico Aqueduct and Sewer Authority v.
Metcalf &
Eddy, Inc., 506 U. S. 139 (1993)
(interest in avoiding trial; Eleventh Amendment immunity, U. S.
Const., Arndt. 11).
For another thing, the Court has often said that the trouble,
expense, and possible embarrassment associated with unnecessary
litigation (interests rather like the qualified immunity
antidiscovery interest) do not justify interlocutory appeal. See,
e. g., Digital Equipment Corp., supra, at 881882 (no
interlocutory review of orders refusing to enforce a settlement
agreement);
Lauro Lines, supra, at 499 (no interlocutory
review of orders refusing to enforce a forum selection clause);
Van Cauwenberghe v.
Biard, 486 U. S. 517, 524 (1988)
(no interlocutory review of orders refusing to dismiss a civil suit
on grounds of immunity from civil process or
forum non
conveniens).
Further, until now litigants have not been able routinely to
vindicate, through immediate appeal, a legal right to avoid
discovery, 15B Wright & Miller §3914.23, at 123-130, even where
the Constitution provides that antidiscovery right, see,
e. g.,
Maness v.
Meyers, 419 U. S. 449, 458-461
(1975) (no interlocutory appeal of order refusing to quash subpoena
for materials that arguably violated subpoenaed party's Fifth
Amendment privilege against self-incrimination). Although a
litigant can sometimes appeal an adverse discovery ruling, to do
so, the litigant typically must disobey the discovery order and
then appeal a resulting citation for contempt of court.
Church
of Scientology of Cal. v.
United States, 506 U. S. 9,
18, n. 11 (1992);
Maness, supra, at 460-461;
United
319
States v.
Ryan, 402 U. S. 530, 532-533
(1971);
Cobbledick v.
United States, 309 U. S., at
326-330; 15B Wright & Miller § 3914.23, at 140-155. But see
United States v.
Nixon, 418 U. S. 683, 691 (1974)
(allowing President Nixon to appeal from a discovery order without
first incurring a contempt citation, because "traditional contempt
avenue to immediate appeal" would be "peculiarly inappropriate").
This "disobedience and contempt" requirement (somewhat analogous to
a one-appeal limitation here) works, in part, because it
"encourages reconsideration both by the party resisting discovery
and by the party seeking discovery, and in part because it tends to
limit appeals to issues that are both important and reasonably
likely to lead to reversal." 15B Wright & Miller § 3914.23, at
154; see also
Pennsylvania v.
Ritchie, 480 U. S. 39,
50, n. 8 (1987) (disobedience and contempt procedure "rests on an
implicit assumption that unless a party resisting discovery is
willing to risk being held in contempt, the significance of his
claim is insufficient to justify interrupting the ongoing
proceedings").
It seems highly anomalous for the law to deny a routine
interlocutory appeal where the Constitution of the United States
protects an antidiscovery interest, but to permit a routine appeal
where the legal doctrine of qualified immunity protects a similar
interest. Yet, today's holding will either create just such an
anomaly, or, as is more likely, it will generate many new
interlocutory appeals as lower courts apply its principle wherever
the Constitution, or other important legal doctrine, offers a
litigant special antidiscovery protection.
The majority suggests that the importance of the antidiscovery
interest protected by qualified immunity has already been "settled"
by such precedents as
Mitchell v.
Forsyth, 472 U. S. 511 (1985), and
Harlow v.
Fitzgerald, 457 U. S. 800 (1982). See
ante, at 308. These cases do say that the qualified immunity
defense, in its modern formulation,
320
was meant, in part, "to protect public officials from the
'broad-ranging discovery' that can be 'peculiarly disruptive of
effective government.'"
Anderson v.
Creighton, 483 U.
S. 635, 646, n. 6 (1987) (quoting
Harlow, supra, at 817).
But the Court's decision in
Mitchell (that district court
orders denying qualified immunity are immediately appealable) was
concerned primarily with preserving defendants' immunity from
trial, not discovery. See 472 U. S., at 525 ("At the heart
of the issue before us is the question whether qualified immunity
... is in fact an entitlement not to stand trial"); see also
Van
Cauwenberghe, supra, at 524 ("The critical question, following
Mitchell, is whether 'the essence' of the claimed right is a
right not to stand trial"). The Court has never before suggested,
much less "settled," that the government defendant's antidiscovery
interest-independent of his interest in avoiding trial-is so
important that it must be safeguarded by interlocutory appellate
review.
Finally, this Court and its individual Members have, in recent
years, cautioned against expanding the class of orders eligible for
interlocutory appeal. See,
e. g., Digital Equipment Corp. v.
Desktop Direct, Inc., 511 U. S., at 868 (opinion of SOUTER,
J.) ("[T]he 'narrow' exception should stay that way and never be
allowed to swallow the general rule");
Gulfstream Aerospace
Corp. v.
Mayacamas Corp., 485 U. S., at 292 (SCALIA, J.,
concurring) ("[The Court's] finality jurisprudence is sorely in
need of further limiting principles, so that
Cohen appeals
will be, as we originally announced they would be, a 'small class
[of decisions] ... too important to be denied review"');
Richardson-Merrell Inc. v.
Koller, 472 U. S., at 440
(opinion of O'CONNOR, J.) ("[W]e decline to 'transform the limited
exception carved out in
Cohen into a license for broad
disregard of the finality rule imposed by Congress in § 1291''')
(quoting
Firestone Tire &
Rubber Co. v.
Risjord, 449
U. S. 368, 378 (1981)). Caution would seem especially
appropriate where the Court is considering not one interlocutory
appeal in a single case, but two.
321
III
Several important practical considerations also favor limiting
the number of interlocutory qualified immunity appeals to one. The
majority finds the necessary special harm in the fact that the
qualified immunity doctrine protects public officials against
discovery as well as trial; and it finds "separability" in the fact
that a postdiscovery summary judgment motion likely asks a legal
question that is conceptually distinct from the legal question
posed by a prediscovery motion to dismiss a complaint. But, given
this rationale, can one limit the number of appeals to just one or
two? Would it not, in principle, justify several appeals where
discovery, proceeding in stages, continuously turns up new facts,
or where, after the close of the plaintiff's case, an immediate
appeal would avoid the litigation burden of presenting an entire
defense case.
Still, even two pretrial appeals risk what Justice Story called
"very great delays, and oppressive expenses,"
Canter v.
American Ins. Co., 3 Pet. 307, 318 (1830), which can "ossify
civil rights litigation,"
Abel v.
Miller, 904 F.2d
394, 396 (CA7 1990) (Easterbrook, J.). The defendant in the
present case, for example, so far has spent more than four years
(of seven since the complaint's filing) fighting, through
interlocutory appeal, a case that he might well have won more
quickly and easily either in the trial court or on appeal from an
initially adverse judgment on the merits. Cf.
Pelletier v.
Federal Home Loan Bank of San Francisco, 968 F.2d
865, 872-873 (CA9 1992) (expressing doubt that plaintiff's
complaint could survive a summary judgment motion). I concede that
every added interlocutory appeal will serve the interests that
underlie qualified immunity to some extent, for each will help a
government defendant terminate meritless litigation. But each added
appeal likely would serve those interests to an ever-diminishing
degree while posing an ever-increasing threat to the appearance of
evenhanded justice in civil rights cases. See
Coopers &
Lybrand v.
Livesay, 437 U. S., at 476
322
(no immediate appeal of prejudgment order denying class
certification, in part because such appeals would "operat[e] only
in favor of plaintiffs").
Further, as mentioned above, the majority's rationale threatens
added appeals, not simply in qualified immunity cases, but wherever
an immunity-type doctrine (or any other important legal rule) seeks
to protect litigants from trial. See,
e. g., Puerto Rico
Aqueduct and Sewer Authority v.
Metcalf &
Eddy,
Inc., 506 U. S.
139 (1993) (Eleventh Amendment immunity);
Nixon v.
Fitzgerald, 457 U. S. 731 (1982)
(absolute immunity);
Abney v.
United States, 431 U. S. 651 (1977)
(double jeopardy guarantee against successive prosecutions). It
thereby threatens busy appellate courts with added numbers of
essentially similar, if not repetitive, appeals, at a time when
overloaded dockets threaten the federal appellate system. See
Remarks of Chief Justice William H. Rehnquist, Tenth Annual
Judicial Conference of the United States Court of Appeals for the
Federal Circuit, 146 F. R. D. 256, 257 (Apr. 30, 1992) ("One of the
chief needs of our generation is to deal with the current appellate
capacity crisis in the Federal Courts of Appeals. Few could argue
about the existence of such a crisis, born of spiraling federal
filings and an increased tendency to appeal District Court
decisions"); Judicial Conference of the United States, Long Range
Plan for the Federal Courts 132 (Dec. 1995) ("[I]f conditions
seriously deteriorate in the courts of appeals, it may be necessary
to consider some limitations on the right to appeal"). See
generally T. Baker, Rationing Justice on Appeal: The Problems of
the U. S. Courts of Appeals 31-51 (1994).
Finally, as a practical matter, where the benefits of immediate
appellate review predominate in an individual case, a party still
can seek court leave to appeal immediately under 28 U. S. C. §
1292(b) (permitting immediate review of nonfinal orders that
involve a controlling and controversial question of law, the
appellate resolution of which "may materially
323
advance the ultimate termination of the litigation"). This Court
has frequently observed that the availability of § 1292(b) review
counsels against expanding other judicial exceptions to the rule
against piecemeal appeals. See,
e. g., Swint
v.
Chambers County Comm'n, 514 U. S. 35, 45-47
(1995); Digital Equipment Corp., 511 U. S., at 883;
Van
Cauwenberghe v.
Biard, 486 U. S., at 529-530;
RichardsonMerrell Inc., 472 U. S., at 435;
Firestone
Tire &
Rubber Co., 449 U. S., at 378, n. 13;
Coopers &
Lybrand, supra, at 474475, and n. 27;
see also
Parkinson v.
April Industries, Inc.,
520 F.2d
650, 658-660 (CA2 1975) (Friendly, J., concurring). We should
be especially reluctant to identify new categories of "collateral
orders" now that Congress has, by adding 28 U. S. C. § 2072(c) to
the Rules Enabling Act, "designat[ed] ... the rulemaking process as
the way to define or refine when a district court ruling is 'final'
and when an interlocutory order is appealable."
Swint,
supra, at 48.
IV
In sum, purpose, precedent, and practicality all argue for one
interlocutory qualified immunity appeal per case and no more. I
believe that the Court, following
Mitchell, should simply
hold that qualified immunity interests, while important enough to
justify one interlocutory appeal, are not important enough to
justify two. It is not necessary to argue about whether the
defendant "waived" a second appeal, see
Kaiter v.
Boxford, 836 F.2d
704, 708 (CA1 1988); nor, since the matter turns on
"importance," not conclusiveness, need the Court decide just how
the timing of an interlocutory appeal affects the "finality" of the
trial court's denial of a motion to dismiss the complaint. See
ante, at 307-308. Rather, a defendant asserting qualified
immunity would remain free, as at present, to appeal from a denial
of a motion to dismiss the complaint, or the defendant could wait,
move for summary judgment, and appeal the motion's denial, but he
could not do both-either because the interest asserted
324
in a
first pretrial appeal is insufficiently important if
the possibility remains of a
second pretrial appeal, or
because the interest asserted in a
second pretrial appeal is
insufficiently important if there has already been a
first
pretrial appeal.
As I said, precedent permits this result because, under that
precedent, the
importance of the interest (an interlocutory
appeal is needed to protect) is one necessary requirement for
application of the technical legal labels "final" or "collateral
order." More importantly, meaning in law depends upon an
understanding of purpose. Law's words, however technical they may
sound, are not magic formulas; they must be read in light of their
purposes, if we are to avoid essentially arbitrary applications and
harmful results. For the reasons I have set forth, precedent, read
in this way, does more than permit-it requires-a single
interlocutory appeal. I therefore dissent.
Comments
Be the first to comment
Leave a Comment