Kimberlin, Brett C. v. Quinlan, Michael J.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 10, 1999 Decided December 28, 1999

No. 98-5530

Brett C. Kimberlin,

Appellee

v.

J. Michael Quinlan,

Director U.S. Bureau of Prisons and

Loye W. Miller, Jr.,

Appellants

Appeal from the United States District Court

for the District of Columbia

(No. 90cv01549)

Michael L. Martinez argued the cause for appellants.

With him on the briefs were Paul G. Lane and Danielle E.

Berry.

Timothy E. Boyle argued the cause for appellee. With him

on the brief were Howard T. Rosenblatt and Matthew S.

Wild.

Before: Edwards, Chief Judge, Silberman and Henderson,

Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Separate opinion dissenting in part filed by Circuit Judge

Henderson.

Edwards, Chief Judge: In 1990, Brett Kimberlin brought

this Bivens action alleging, inter alia, that J. Michael Quin-

lan, formerly the Director of the Federal Bureau of Prisons,

and Loye Miller, formerly the Director of Public Affairs for

the United States Department of Justice, violated his consti-

tutional rights under the First Amendment. This is the

second time that this court has had occasion to hear an appeal

in this case. The first appeal followed an order by the

District Court denying defendants' motion for summary judg-

ment on grounds of qualified immunity. See Kimberlin v.

Quinlan, 774 F. Supp. 1 (D.D.C. 1991) ("Kimberlin I"). We

reversed the District Court, see Kimberlin v. Quinlan, 6 F.3d

789 (D.C. Cir. 1993), but the Supreme Court granted certiora-

ri, vacated this court's decision in light of Johnson v. Jones,

515 U.S. 304 (1995), and remanded the case for further

proceedings. See Kimberlin v. Quinlan, 515 U.S. 321 (1995).

We then remanded the case to the District Court. The trial

court then considered and denied defendants' renewed motion

for summary judgment on grounds of qualified immunity. In

reaching this conclusion, the District Court held that its

judgment in the initial proceeding established the law-of-the-

case regarding the existence of clearly established law and

that this was dispositive of the qualified immunity issue. See

Kimberlin v. Quinlan, Civ. Act. No. 90-1549, Mem. Op.

(D.D.C. Oct. 21, 1998), reprinted in Joint Appendix ("J.A.")

24-44 ("Kimberlin II").

We affirm the judgment of the District Court on the law-of-

the-case issue. In their appeal of Kimberlin I, appellants did

not challenge the District Court's judgment regarding the

clearly established law; thus, the issue was settled as to these

parties in this case. And there was no good reason for the

District Court to reexamine its judgment when the case was

remanded for further proceedings.

The judgment on the clearly established law, however, is

not fully dispositive of the issues raised by appellants' re-

newed motion for summary judgment on grounds of qualified

immunity. The District Court must now determine whether

there are disputed issues of fact as to whether appellants

violated the clearly established law either by intentionally

segregating Mr. Kimberlin from the general prison popula-

tion or by interfering with his press contacts on account of

the content of his speech. In particular, the District Court

must inquire whether Mr. Kimberlin has identified affirma-

tive evidence from which a jury could find that he has carried

his burden of proving the pertinent motive.

Accordingly, the judgment of the District Court on the law-

of-the-case issue is affirmed. However, the case is remanded

for further proceedings to address the remaining issues on

the qualified immunity claim and, if necessary, to proceed to

hear the case on the merits in the event that appellants'

motion is denied.

I. BACKGROUND

A. Factual Background

In 1988, Brett Kimberlin was an inmate at the Federal

Correctional Institute at El Reno, Oklahoma. Nina Toten-

berg, a reporter with National Public Radio, contacted Mr.

Kimberlin approximately one month before the November

1988 election, acting on a tip that Mr. Kimberlin claimed to

have sold marijuana to then-vice-presidential candidate Dan

Quayle while Mr. Quayle was in law school. The story leaked

to other news organizations, and, in short time, the prison

was inundated with requests to interview Mr. Kimberlin.

Mr. Kimberlin claims that on three occasions he was placed

in administrative segregation because of his communication

with the press and that on each occasion appellants interfered

with his access to the press because of the content of his

speech. The first detention occurred on November 4, 1988,

after Mr. Kimberlin conducted an interview with NBC News

that NBC never aired. After the NBC interview, several

news organizations contacted the prison the same day and

requested interviews with Mr. Kimberlin. Prison officials

arranged a group interview for that evening at 7:00 p.m. The

event never occurred, because Mr. Quinlan personally can-

celed the interview. The District Court has previously ob-

served that there was "some question even from the defense

side as to why he did that." Kimberlin I, 774 F. Supp. at 7.

Subsequently, around 11:00 p.m., Mr. Kimberlin was placed in

administrative detention. The parties dispute the reasons

both for the interview's cancellation and for Mr. Kimberlin's

detention; we pass no judgment regarding whether there is

sufficient evidence to establish a dispute as to the defendants'

role in and motivation for the cancellation of the interview

and the placement of Mr. Kimberlin in detention. Mr. Kim-

berlin was released from administrative detention on Satur-

day, November 5, and he began to organize a telephone call

to a group of reporters in Washington, D.C., to take place at

10:00 a.m. on November 7, the day before the election.

Mr. Kimberlin was never permitted to make his phone call,

because on Monday, November 7, he was placed in adminis-

trative segregation for a week. The parties again dispute the

reason for this decision. Mr. Kimberlin was confined to

administrative detention a third time on December 22, 1998.

Mr. Kimberlin alleges that the defendants were responsible

for both his confinement and the interference with his press

contacts, all on account of the content of his speech.

B. Procedural Background

On July 2, 1990, Mr. Kimberlin filed his original complaint

against Mr. Quinlan and Mr. Miller in their individual capaci-

ties, the Federal Bureau of Prisons, and the United States

Government. In the instant case, all that is before the court

is Mr. Kimberlin's claim that Mr. Quinlan and Mr. Miller

violated Mr. Kimberlin's First Amendment rights.

Appellants first moved to dismiss or for summary judgment

on September 27, 1990, arguing, inter alia, that: (1) Mr.

Kimberlin failed to meet the D.C. Circuit's "heightened plead-

ing" standard which was then being applied to assess motive-

based civil rights claims against government officials; (2)

there was no violation of clearly established law, and, thus,

appellants were entitled to qualified immunity; and (3) even if

the law were clear, appellants' conduct was objectively rea-

sonable. The District Court denied appellants' asserted qual-

ified immunity on the First Amendment claim, finding both

that Mr. Kimberlin's pleading was sufficient under the height-

ened pleading standard and that there was a clearly estab-

lished First Amendment right for prison inmates to "be free

from governmental interference with their contacts with the

press if that interference is based on the content of their

speech or proposed speech." Kimberlin I, 774 F. Supp. at 3-

4.

Appellants appealed only the trial court's decision regard-

ing the heightened pleading standard. This court reversed,

see Kimberlin, 6 F.3d at 797-98, but the Supreme Court

vacated our decision in light of Johnson, 515 U.S. at 304, and

remanded the case for further proceedings. See Kimberlin,

515 U.S. at 322. This court then remanded the case to the

District Court.

Discovery proceeded in the District Court, and, after com-

pletion of discovery, appellants moved to dismiss or for

summary judgment on the same grounds rejected by the

District Court in Kimberlin I. Pending the matter's disposi-

tion, however, the Supreme Court rejected this court's height-

ened pleading standard for civil rights suits against govern-

ment officials. See Crawford-El v. Britton, 523 U.S. 574

(1998). Thus, appellants' only remaining arguments were

that the law regarding prisoners' First Amendment rights

was not clearly established and that, even if it were, appel-

lants' conduct was objectively reasonable.

On October 21, 1998, the District Court issued the decision

that is the subject of the current appeal. The District Court

denied appellants' claim of qualified immunity, holding that

the "law-of-the-case," unchallenged on the first appeal, was

that a prisoner's right not to have his contact with the press

interfered with on the basis of the content of his communica-

tion was clearly established at the time of the alleged viola-

tions. See Kimberlin II at 6, reprinted in J.A. 29. This

appeal followed.

II. ANALYSIS

A. The Law-of-the-Case Doctrine

The law-of-the-case doctrine rests on a simple premise:

"the same issue presented a second time in the same case in

the same court should lead to the same result." LaShawn A.

v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc).

Accordingly, a "legal decision made at one stage of litigation,

unchallenged in a subsequent appeal when the opportunity to

do so existed, becomes the law of the case for future stages of

the same litigation, and the parties are deemed to have

waived the right to challenge that decision at a later time."

Williamsburg Wax Museum, Inc. v. Historic Figures, Inc.,

810 F.2d 243, 250 (D.C. Cir. 1987). The law-of-the-case may

be revisited only if there is an intervening change in the law

or if the previous decision was "clearly erroneous and would

work a manifest injustice." LaShawn A., 87 F.3d at 1393

(internal quotation marks omitted).

Our dissenting colleague misconstrues the posture of this

appeal by suggesting that the law-of-the-case doctrine is

inapplicable to the instant case. In this case, we are called

upon to review the propriety of the District Court's applica-

tion of the law-of-the-case. Thus, there is no occasion to

invoke the so-called "derivative waiver" doctrine. Crocker v.

Piedmont Aviation, Inc., 49 F.3d 735 (D.C. Cir. 1995), sug-

gests nothing to the contrary. The derivative waiver princi-

ple described in Crocker applies where a party fails to appeal

an appealable issue and then raises the issue for the first time

in a subsequent appeal. See id. at 739-40. In that circum-

stance, neither the District Court nor the appellate court has

the opportunity to apply the law-of-the-case. Here, appel-

lants failed to appeal an appealable issue and then raised the

issue for a second time before the District Court. Therefore,

we must determine whether the District Court correctly

applied its established law-of-the-case. Prior opinions of this

court make it clear that, in a situation such as the one raised

in the case at bar, notions of derivative waiver do not come

into play. See, e.g., Palmer v. Kelly, 17 F.3d 1490, 1494 (D.C.

Cir. 1994) (reviewing the District Court's decision to apply

law-of-the-case for error); Williamsburg Wax Museum, 810

F.2d at 250-51 (same).

We also not that, even were the dissent correct in suggest-

ing that the "derivative waiver" doctrine applies here, "discre-

tion to waive a waiver is normally exercised only in exception-

al circumstances, where injustice might otherwise result."

Crocker, 49 F.3d at 740 (internal quotation marks omitted).

There are no "exceptional circumstances" justifying any waiv-

er here.

Application of the law-of-the-case doctrine is a two-step

process: A court must first determine whether the threshold

requirements are met and then ask whether there are pru-

dential reasons to ignore the applicable law-of-the-case. The

threshold requirements for application of the law-of-the-case

doctrine are plainly met in the instant case. In Kimberlin I,

the District Court ruled adversely to appellants on the clearly

established law issue. Appellants did not challenge the clear-

ly established law in their Kimberlin I appeal, although they

concede that this issue was appealable. In an effort to avoid

the obvious, appellants make two arguments against applica-

tion of the law-of-the-case doctrine: first, they claim that

there has been an intervening change in the law that justifies

prudential departure from the law-of-the-case; and, second,

they contend that the doctrine should not apply to qualified

immunity appeals. These arguments are meritless.

Appellants argue that intervening law has "evolved" since

Kimberlin I. See Reply Br. at 9. On this point, appellants

cite the Supreme Court's decision in Sandin v. Conner, 515

U.S. 472 (1995), which narrowed the availability to prisoners

of due process challenges to disciplinary segregation. This

argument does not hold water. First, without regard to

Sandin's specific holding, the District Court in Kimberlin I

was required to decide what law was clearly established in

1988. Sandin, announced in 1995, is not relevant to what law

was clearly established seven years earlier.

Furthermore, Sandin does not mark a change in the law

relevant to this case. Sandin only establishes that a prison-

er's segregation from the rest of the prison population will

trigger the procedural requirements of the Due Process

Clause when the segregation falls outside the "range of

confinement to be normally expected." 515 U.S. at 487.

Sandin did not change the law regarding whether a prison

official violates a prisoner's rights under the First Amend-

ment by segregating the prisoner because of the content of a

prisoner's communications with the media. Indeed, the Court

in Sandin made it clear that:

[p]risoners ... retain other protection from arbitrary

state action even within the expected conditions of con-

finement. They may invoke the First and Eighth

Amendments and the Equal Protection Clause of the

Fourteenth Amendment where appropriate, and may

draw upon internal prison grievance procedures and

state judicial review where available.

Id. at 487 n.11 (emphasis added). Here, then, even if Mr.

Kimberlin's administrative segregation fell within the expect-

ed range of his sentence, Sandin recognizes that Mr. Kimber-

lin's administrative segregation still may allege that such

segregation violated the First Amendment. Thus, there was

no change in the applicable law that might have led the

District Court to revisit Kimberlin I.

Nor is there any weight to appellants' assertion that the

law-of-the-case doctrine is inapplicable to qualified immunity

appeals. Appellants rely heavily on Behrens v. Pelletier, in

which the Supreme Court acknowledged that qualified immu-

nity issues may require more than one "judiciously timed

appeal." 516 U.S. 299, 309 (1996) (internal quotation marks

omitted). This is so, the Court explained, because "the

legally relevant factors ... 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 reasonable-

ness.' " Id. On this analysis, the defendant in Behrens did

not waive any arguments in his first appeal, so the situation

in that case did not call into play the law-of-the-case doctrine.

And Behrens certainly does not say that the traditional law-

of-the-case doctrine is inapplicable to cases involving claims of

qualified immunity.

Furthermore, appellants cite nothing to indicate that the

relevant facts have somehow changed so that the District

Court's opinion in Kimberlin I regarding the clearly estab-

lished law is now somehow diminished. Appellants address

disputed facts only in connection with their claim that their

conduct was objectively reasonable. See Br. for Appellants at

22-27; 28-36. However, in advancing this argument, they

tellingly acknowledge that the issue of what was clearly

established law at the time of the alleged violation is a legal

determination that does not depend on the evidence in dis-

pute. In short, appellants' attempt to draw sustenance from

Behrens is fruitless.

Finally, it is noteworthy that appellants incorrectly frame

the relevant "law" for which the court must determine what

was clearly established when. Appellants ask whether Mr.

Kimberlin had either an "unfettered clearly established right

of access to the press" or "a clearly established right not to

be placed in administrative detention." Br. for Appellants at

2. These are the wrong questions. The proper question in

this case, as the District Court correctly noted, is whether

Mr. Kimberlin had a clearly established right "to be free from

governmental interference with [his] contacts with the press

if that interference is based on the content of [his] speech or

proposed speech." Kimberlin I, 774 F. Supp. at 3-4. This

right without doubt was clearly established in 1988. See

Turner v. Safley, 482 U.S. 78, 90 (1987) ("We have found it

important to inquire whether prison regulations restricting

inmates' First Amendment rights operated in a neutral fash-

ion, without regard to the content of the expression."); Pell v.

Procunier, 417 U.S. 817, 828 (1974) (holding that so long as

restriction on inmates' communication "operates in a neutral

fashion, without regard to the content of the expression," it

will not violate First Amendment).

B. Disputed Issues of Fact

The District Court rested the decision under review on the

law-of-the-case. Finding that appellants had waived any

challenge to the judgement in Kimberlin I on the established

law, the trial court reasoned that summary judgment on

grounds of qualified immunity was inappropriate. This ap-

proach fell short of what is required by Crawford-El, 523

U.S. at 600. In particular, the District Court failed to

consider whether there are disputed issues of fact as to

whether appellants violated clearly established law by inten-

tionally segregating Mr. Kimberlin or interfering with his

press contacts on account of the content of his speech.

At oral argument, counsel for appellee urged that one line

in the District Court's order suggests that the court did

indeed weigh the evidence regarding the defendants' intent.

See Kimberlin II at 4, reprinted in J.A. 27. We are unim-

pressed, for counsel's argument clearly is a stretch and it

does not reach the desired mark. The reference cited by

counsel is to the decision in Kimberlin I, in which the trial

court admittedly conducted an analysis of the record then

before it. See 774 F. Supp. at 6-8. However, discovery has

continued since Kimberlin I, and there is nothing in Kimber-

lin II that addresses the current record.

We therefore remand this matter to the District Court for

consideration of whether there are disputed issues of material

fact regarding the defendants' motivation. In so doing, the

District Court must ask whether Mr. Kimberlin has identified

"affirmative evidence from which a jury could find that the

plaintiff has carried his or her burden of proving the perti-

nent motive." Crawford-El, 523 U.S. at 600.

The District Court will have two principal considerations at

the forefront upon remand. First, the District Court is not

foreclosed from issuing a summary judgment for appellants

merely because Mr. Kimberlin's claim rests on appellants'

motive. It is true that "objective" issues such as whether the

plaintiff suffered an injury or engaged in protected conduct

are "more amenable to summary disposition than disputes

about the official's intent." Id. at 599. Nonetheless, the

Supreme Court has expressed faith in the experience of

District Court judges to manage cases involving allegations of

improper intent in a way that will allow for summary judg-

ment in appropriate cases. Indeed, this expressed faith laid

the foundation for the Court's rejection of the so-called

"heightened pleading" standard in civil rights actions against

government officials. See id. at 600-01.

Second, even if appellants provide an objectively valid

reason for their actions in this case, the District Court must

still inquire into whether there is a disputed issue of fact as to

whether appellants were actually motivated by an illegitimate

purpose. The opinion for the Court in Crawford-El specifi-

cally rejected the dissent's proposal to "immunize all officials

whose conduct is 'objectively valid,' regardless of improper

intent." Id. at 593-94. Moreover, in considering any objec-

tively valid reasons offered by appellants, the District Court

should be mindful of the Supreme Court's recent decision in

Wilson v. Layne, 119 S. Ct. 1692 (1999). In Wilson, the

Court described the "objectively reasonable" aspect of the

qualified immunity defense as "whether a reasonable officer

could have believed that bringing members of the media into

a home during the execution of an arrest warrant was lawful,

in light of clearly established law and the information the

officers possessed." Id. at 1700. The analogous question in

this case has already been answered: the District Court has

found that no reasonable prison official could believe that

interfering with an inmate's access to the press because of the

content of the inmate's speech could be lawful. The District

Court must now weigh the evidence to determine if there are

disputed issues of fact as to whether appellants were motivat-

ed by improper intent.

Upon resolving these questions, the District Court will

either issue a summary judgment for appellants or proceed to

hear the case on the merits. The second possibility will

result in an interlocutory order which will not be subject to

immediate review. See Johnson, 515 U.S. at 313-18. Non-

final qualified immunity determinations are appealable "when

they resolve a dispute concerning an abstract issue of law

relating to qualified immunity--typically, the issue whether

the federal right allegedly infringed was clearly established."

Behrens, 516 U.S. at 313 (internal quotation marks omitted)

(citing Johnson, 515 U.S. at 317). When the law and fact

issues are not separable, however, a very different situation

arises:

Many constitutional tort cases, unlike the simple "we

didn't do it" case before us, involve factual controversies

about, for example, intent--controversies that, before

trial, may seem nebulous. To resolve those controver-

sies--to determine whether there is or is not a triable

issue of fact about such a matter--may require reading a

vast pretrial record, with numerous conflicting affidavits,

depositions, and other discovery materials.

Johnson, 515 U.S. at 316. The "upshot," according to the

Court, "is that ... considerations of delay, comparative ex-

pertise of trial and appellate courts, and wise use of appellate

resources argue in favor of limiting interlocutory appeals of

'qualified immunity' matters to cases presenting more ab-

stract issues of law." Id. at 317. The District Court's

original decision that Mr. Kimberlin's First Amendment

rights were clearly established at the time of the alleged

violation was immediately appealable, because the disputed

issue involved an "abstract" issue of law. Whether there is a

disputed issue of material fact regarding appellants' intent,

however, is not "separable" from Mr. Kimberlin's underlying

cause of action; in fact, it is part and parcel of his claim.

Moreover, this court has interpreted Behrens and Johnson

to draw a clear distinction between the availability of appel-

late review in qualified immunity cases involving pure legal

issues and those involving disputed issues of fact:

In the qualified immunity arena, the Supreme Court has

drawn a distinction between two categories of cases, only

one of which merits immediate appellate review: an

interlocutory decision that rests upon the purely legal

question of whether or not an official's actions violate

clearly established law does satisfy the Cohen criteria,

while an interlocutory decision that denies summary

judgment because of the presence of triable issues of fact

does not.

Meredith v. Federal Mine Safety & Health Review Comm'n,

177 F.3d 1042, 1048-49 (D.C. Cir. 1999) (citations omitted);

see also Farmer v. Moritsugu, 163 F.3d 610, 613-14 (D.C.

Cir. 1998) (distinguishing interlocutory appeals of qualified

immunity raising abstract legal issues from appeals challeng-

ing the sufficiency of the evidence).

Thus, if the District Court, on remand, denies summary

judgment on the issue of appellants' intent, the matter will

not be subject to immediate appeal.

III. CONCLUSION

For the reasons articulated herein, the case is remanded to

the District Court for further proceedings consistent with this

opinion.

Karen LeCraft Henderson, Circuit Judge, dissenting in part:

I dissent from the majority's holdings that (1) the law of

the case doctrine bars review of the district court's determi-

nation that the applicable law was clearly established at the

time of the alleged constitutional deprivation and (2) that the

case must be remanded to determine whether the appellants'

conduct violated clearly established law. In my view, law of

the case does not apply, the applicable law was clearly

established and the appellants' conduct, as revealed in the

record, did not violate the clearly established law. Accord-

ingly, I would hold that the appellants are entitled to qualified

immunity and remand for entry of judgment in their favor.

First, I disagree with the majority's contention that the

appellants' failure in their first appeal to challenge the district

court's ruling that the relevant law was clearly established

made that ruling the "law of the case" precluding the appel-

lants from arguing otherwise now. As this court explained in

Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C. Cir.

1995), "law-of-the-case doctrine holds that decisions rendered

on the first appeal should not be revisited on later trips to the

appellate court." 49 F.3d at 739. In other words, law of the

case applies where "the first appeals court has affirmatively

decided the issue, be it explicitly or by necessary implication."

Id. Because this court did not decide the clearly established

law issue in the 1992 appeal, we here confront not law of the

case but an "analytically distinct principle ...--best under-

stood as a species of waiver doctrine" which "does not involve

any previous appellate court decision on the barred issue" but

imposes a "bar on raising issues omitted from prior appeals."

Id. Under this waiver principle, " 'a legal decision made at

one stage of litigation, unchallenged in a subsequent appeal

when the opportunity to do so existed, [governs] future stages

of the same litigation, and the parties are deemed to have

waived the right to challenge that decision at a later time.' "

Id. (quoting Williamsburg Wax Museum, Inc. v. Historic

Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987); citing

Palmer v. Kelly, 17 F.3d 1490, 1495-96 (D.C. Cir. 1994);

Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1089-90

(D.C. Cir. 1984)).1 I do not believe, however, that waiver

__________

1 In Palmer, this court applied the waiver theory (albeit under

the "law of the case" rubric) in the same circumstances we have

bars appeal of the clearly established law determination here.

As the court in Crocker noted, "neither law-of-the-case

doctrine proper nor th[e] subsidiary waiver principle is an

absolute preclusion to appellate review." Id. Each of these

principles is "prudential" and admits of exceptions "broader

than for conventional issue or claim preclusion" but the

preclusive effect of waiver is "one notch weaker" than that of

law of the case. Id. In the case of waiver, "the appellate

court, for example, always possesses discretion to reach an

otherwise waived issue logically 'antecedent to and ultimately

dispositive of the dispute before it.' " Id. at 740 (quoting

"United States Nat'l Bank of Oregon v. Independent Ins.

Agents of Am., 508 U.S. 439, 447 (1993)).

In Insurance Agents, the United States Supreme Court

held this court had not abused its discretion in deciding an

issue first raised in supplemental post-argument briefing,

although the appellants had failed to raise it in either their

opening or reply brief before argument. The Court so held

because the neglected issue--whether a statute had been

repealed--was "antecedent to" and "dispositive of" the ques-

tion addressed in the opening brief--how the provision should

be construed. While the circumstances here (two separate

appeals) are somewhat different from those in Insurance

Agents (a single appeal with post-argument supplemental

briefing), the same reasoning applies. Whether the law was

clearly established is "antecedent to" and, if decided in the

appellants' favor, "dispositive of" the issue argued in the 1992

appeal: whether the appellants in fact violated the law. If

the law was not clearly established then it is irrelevant

whether or not the appellants violated the law because they

were shielded by qualified immunity and therefore entitled to

judgment as a matter of law. See Behrens v. Pelletier, 516

U.S. 299, 306 (1996) ("Unless the plaintiff's allegations state a

claim of violation of clearly established law, a defendant

__________

here--where the district court concluded its earlier unappealed

decision was law of the case. See 17 F.3d at 1495-96 (defendant

"waived" claim through "failure to appeal on alternative grounds" in

earlier appeal).

pleading qualified immunity is entitled to dismissal before the

commencement of discovery.") (quoting Mitchell v. Forsyth,

472 U.S. 511, 526 (1985)). Given the strong policy favoring an

official's "entitlement not to stand trial or face the other

burdens of litigation," Mitchell v. Forsyth, 472 U.S. 511, 526

(1985), we should exercise our discretion here and decide

whether the law was clearly established at the time of the

alleged violation. I conclude that it was.

Case law from the Supreme Court, as well as from circuit

courts including this one, make it clear that the right identi-

fied by the district court--federal inmates' "First Amendment

right to be free from governmental interference with their

contacts with the press if that interference is based on the

content of their speech or proposed speech right of federal

prisoners," 774 F. Supp. at 3-4--was well established at the

time of the alleged violation in November 1988. See

Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996) (en

banc) ("[I]n light of Turner [v. Safley, 482 U.S. 78 (1987)] and

related cases, retaliation against Crawford-El for criticism of

the prison administration that was truthful, and not otherwise

offensive to some penological interest (so far as appears),

would have violated a clearly established right of which a

reasonable prison official would have known.") (citing Picker-

ing v. Board of Educ., 391 U.S. 563, 568, 571-72 (1968)),

vacated on other ground, 523 U.S. 574 (1998); Murphy v.

Missouri Dep't of Correction, 769 F.2d 502, 503 (8th Cir.

1985) ("While a prisoner enjoys no constitutional right to

remain in a particular institution and generally is not entitled

to due process protections prior to such a transfer, prison

officials do not have the discretion to punish an inmate for

exercising his first amendment rights by transferring him to

a different institution.") (citing Garland v. Polley, 594 F.2d

1220, 1222-23 (8th Cir. 1979)) (internal citations omitted);

Main Rd. v. Aytch, 522 F.2d 1080, 1086-87 (3d Cir. 1975)

("Even if the prisoners held pending trial have no constitu-

tional right to meet with reporters, the First Amendment

precludes Aytch from regulating, through the grant or denial

of permission for prisoners to talk with reporters, the content

of speech which reaches the news media, unless the restric-

tion bears a substantial relationship to a significant govern-

mental interest."). I therefore concur--albeit on a different

ground--in the majority's affirmance of the district court's

holding that the law was clearly established. I disagree,

however, with the majority's decision to remand in order to

determine whether the appellant's conduct violated the clear-

ly established law.

Although the district court's order does not expressly ad-

dress whether the evidence, viewed most favorably to Kim-

berlin, makes out a constitutional deprivation, the issue is

nevertheless properly before this court. The appellants' sum-

mary judgment motion below expressly argued the issue, see

Kimberlin v. Quinlan, No. 90-1549, Memorandum in Support

of Summary Judgment Motion at 16-29 (filed Feb. 3, 1997),

and the district court, in denying the summary judgment

motion, at least implicitly resolved it in Kimberlin's favor.

Thus, "there is no apparent impediment to [the argument]

being raised on appeal." Behrens v. Pelletier, 516 U.S. 299,

313 (1996) (authorizing appeal where argument "was present-

ed by the petitioner in the trial court" and "the District

Court's denial of petitioner's summary judgment motion nec-

essarily determined that certain conduct attributed to peti-

tioner ... constituted a violation of clearly established law,"

notwithstanding that "the District Court, in denying petition-

er's summary judgment motion, did not identify the particular

charged conduct that it deemed adequately supported"). We

should therefore address the question now,2 without remand,

and we should resolve it in the appellants' favor.

__________

2 Appeal of this issue is not barred under Johnson v. Jones, 515

U.S. 304, 319 (1995), which held that no appeal lies "if what is at

issue in the sufficiency determination is nothing more than whether

the evidence could support a finding that particular conduct oc-

curred." Behrens, 516 U.S. at 313. Here, the issue is, as in

Behrens, whether "the conduct which the District Court deemed

sufficiently supported for purposes of summary judgment met the

Harlow standard of 'objective legal reasonableness.' " Id.; see also

Farmer v. Moritsugu, 163 F.3d 610, 614 (D.C. Cir. 1998) (permit-

ting immediate appeal where case " 'concern[s], not which facts the

parties might be able to prove, but, rather, whether or not certain

As the district court did not identify what the evidence

reveals the appellants did, it is this court's "task" to under-

take a " 'review of the record to determine what facts the

district court, in the light most favorable to the nonmoving

party, likely assumed.' " Behrens, 516 U.S. at 313 (quoting

Johnson, 515 U.S. at 319). The uncontroverted facts establish

that appellant Quinlan canceled the press conference because

it was not authorized under Bureau of Prisons policy and

ordered Kimberlin's first administrative segregation for the

purpose of ensuring Kimberlin's safety. No evidence sug-

gests that Quinlan undertook these acts with intent to pre-

vent Kimberlin from reporting his story to the press, which

Kimberlin had in fact already done in an interview with NBC

News which Quinlan had himself facilitated. Nor is there

evidence that Quinlan was at all involved in the two subse-

quent segregations on November 7 and December 22, 1988.

As for appellant Miller, the record does not indicate that he

made any effort in his telephone conversations with the

Bureau of Prisons either to get the press conference canceled

or to secure Kimberlin's confinement. Because the appel-

lants' conduct as revealed by the record, viewed in the light

most favorable to the plaintiff, did not violate Kimberlin's

First Amendment rights (clearly established or otherwise),

both are entitled to qualified immunity. See Siegert v. Gilley,

500 U.S. 226 (1991) (defendant entitled to qualified immunity

where plaintiff "not only failed to allege the violation of a

constitutional right that was clearly established at the time of

the [defendant's] action, but ... failed to establish the viola-

tion of any constitutional right at all.").

For the foregoing reasons, I would remand with direction

to enter summary judgment for the appellants.

__________

given facts show[ ] a violation of "clearly established" law' ") (quot-

ing Johnson, 515 U.S. at 311) (alterations original).