# Bever v. Gilbertson

> Court of Appeals for the Fourth Circuit · January 11, 1984 · 724 F.2d 1083

URL: https://www.frixlaw.com/law-library/cases/8918533

## Case

- **Full name:** John M. BEVER, Clearyl Davis, John E. Ellifritt, Cecil Fling, Drexeline Perrine, Francis D. Radcliff, Robert W. Robinson, Michael Shepherd, Larry Williams and Larry W. Griffin v. Walter GILBERTSON and Charles L. Miller, and John Gum, Wilton Williams, individually and as Commissioner of the West Virginia Department of Highways and John D. Rockefeller, IV, individually and as Governor of the State of West Virginia, Defendants John M. BEVER, Clearyl Davis, John E. Ellifritt, Cecil Fling, Drexelene Perrine, Francis D. Radcliff, Robert W. Robinson, Michael Shepherd, Larry Williams and Larry W. Griffin v. John D. ROCKEFELLER, IV, and John Gum, Walter Gilbertson, Wilton Williams, Charles L. Miller, individually and as Commissioner of the West Virginia Department of Highways
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** January 11, 1984
- **Citations:** 724 F.2d 1083; 1 Fed. R. Serv. 3d 1009
- **Precedential status:** Published
- **Opinion:** Dissent by Hall
- **Judges:** Hall, Haynsworth, Winter
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated by Roger D. Young v. Grady B. Lynch Sgt. Benthall H.R. Daughtry Officer Newell G.T. Cousins John Doe, Correctional Officer, (Two Cases), 846 F.2d 960 (1988).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8918533

## Opinion text

K.K. HALL, Circuit Judge,
dissenting:
I cannot accept the majority’s dismissal of these appeals as interlocutory. In concluding that pre-trial review is unavailable, the majority has ignored both the facts of this case and applicable law. In my view, the district court’s order, denying appellants’ claims of qualified immunity, is precisely the type of preliminary ruling which necessitates immediate appellate review. For this reason, I must dissent.
I.
This case is one of nine civil actions currently pending against West Virginia’s Governor Rockefeller, Department of Highway (DOH) Commissioner Miller, and various DOH District Engineers for their alleged participation in a conspiracy to terminate some sixty former DOH employees for political reasons. In this case, as in the others, plaintiffs are Republicans and Independents, who seek to hold Governor Rockefeller, a Democrat, and other state officials personally liable for monetary damages. The state defendants deny that they are liable for damages because of their entitlement to qualified or “good faith” immunity.
In the proceedings below, Governor Rockefeller, Commissioner Miller, and District Engineer Gilbertson moved for summary judgment based on their official immunity. The parties agree that the matter was ripe for summary disposition and that no facts regarding the immunity claim remain unresolved. According to the uncontradicted evidence, neither Governor Rockefeller nor the other two appellants were personally involved in the selection of these nine plaintiffs for termination. Moreover, the record also clearly establishes that none of the three at any time considered, suggested, *1090 authorized, or otherwise intended that the terminations be politically motivated. Finally, as plaintiffs concede, it is clear that the terminations arose as a result of an economically necessitated reduction in force. 1 Notwithstanding these undisputed facts, the district court denied the motions for summary judgment and these appeals followed.
In my view, the majority erroneously holds that the appeals from the denial of summary judgment must await the outcome of the trial. Under 28 U.S.C. § 1291 only appeals from final judgments are ordinarily permitted. Nevertheless, as the majority notes, an exception to this general rule, known as the collateral order doctrine, has been recognized by the Supreme Court in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), and other cases. To fall within the collateral order exception, the order appealed from must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action; (3) be effectively unreviewable on appeal from a final judgment; and (4) present a serious and unsettled question on appeal.
In the companion cases of Nixon v. Fitzgerald, 457 U.S. 731 , 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982), and Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), the Supreme Court recognized the applicability of the collateral order doctrine to both absolute and qualified immunity claims and the need for pre-trial appellate review of the denial of such claims. Other Circuit Courts, applying Harlow , have affirmed the appropriateness and need for immediate review of official immunity claims. Chavez v. Singer, 698 F.2d 420, 421 (10th Cir.1983); McSurely v. McClellan, 697 F.2d 309, 316 (D.C.Cir.1982); Forsyth v. Kleindienst, 599 F.2d 1203, 1208-1209 (3d Cir.1979), cert. denied, 453 U.S. 913 , 101 S.Ct. 3147 , 69 L.Ed.2d 997 (1981) (Forsyth I); Forsyth v. Kleindienst, 700 F.2d 104 (3d Cir.1983) (Forsyth II). The majority, however, has concluded that Harlow is not controlling and that these appeals do not meet the four criteria of the collateral order exception to 28 U.S.C. § 1291 . I disagree. In my opinion, if ever there was a case which justified application of Harlow and the collateral order doctrine, this is certainly the one. 2
II.
Official immunity has long been recognized as a concept essential to the effective functioning of government. Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978). As noted by the Supreme Court in Scheuer v. Rhodes, 416 U.S. 232, 239 , 94 S.Ct. 1683, 1687 , 40 L.Ed.2d 90 (1974), officials, including a state’s chief executive officer and his aides, must be permitted “to perform their official functions free from the threat of suits for personal liability.” The Supreme Court in Harlow expressed its frustration with the increasing burdens im *1091 posed on public officials in defending against “insubstantial claims” and made clear that suits brought against public officials for alleged constitutional torts should be screened at the earliest stages of litigation:
In Butz , we admonished that “insubstantial” suits against high public officials should not be allowed to proceed to trial. 438 U.S., at 507 [ 98 S.Ct. at 2911 ] ... We reiterate this admonition. Insubstantial lawsuits undermine the effectiveness of Government as contemplated by our constitutional structure, and “firm application of the Federal Rules of Civil Procedure” is fully warranted in. such cases. Id., at 508 [ 98 S.Ct. at 2911 ].
457 U.S. at 819, 102 S.Ct. at 2739, n. 35.
Accordingly, the Supreme Court departed from the earlier requirement that in order to be entitled to qualified immunity an official must show both objective and subjective good faith. Under Harlow , it is sufficient for purposes of good faith immunity if the conduct in question did not violate clearly established rights which a reasonable person would have known. In recasting this standard, the Harlow Court noted:
[I]t cannot be disputed seriously that claims frequently run against the innocent as well as the guilty — at a cost not only to the defendant officials, but to the society as a whole [footnote omitted]. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will “dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579, 581 (CA 2 1949), cert. denied 339 U.S. 949 [ 70 S.Ct. 803 , 94 L.Ed. 1363 ] (1950).
457 U.S. at 814, 102 S.Ct. at 2736.
As the District of Columbia Circuit held in McSurely , the Supreme Court in Harlow “consciously sought to facilitate summary disposition of insubstantial claims against governmental officials. Consequently, ... appellate review of a denial of a motion for summary disposition must be available to ensure that government officials are fully protected against unnecessary trials under qualified immunity on the same basis as for absolute immunity.” 697 F.2d at 316 . Similarly, the Third Circuit in Forsyth II, 700 F.2d at 105 , stated that a claim of absolute immunity “... protects a right not to be subjected to trial — a right that is lost if appellate review awaits final adjudication. It follows therefore, that a stay [of the trial] must be granted or the defendant will be deprived of the benefits of adjudication before trial.”
The majority, however, rejects the McSurely and Forsyth II analysis. It stresses in Part I of its opinion that, because plaintiffs seek reinstatement to their former jobs as well as damages, appellants must proceed to trial in any event, and, therefore, the denial of immediate appellate review does not result in an irretrievable loss to appellants. This mistaken view ignores the fact that neither Governor Rockefeller nor District Engineer Gilbertson are proper parties for injunctive relief. 3 Furthermore, the majority’s holding can easily lead to the pernicious practice of tacking on a claim for injunctive relief in order to avoid summary judgment and force officials to go to trial on meritless damages actions. In an appropriate case, the majority’s rationale might have merit. It can have no application, however, in a case such as this, where public officials are contesting the right to be haled into court in their personal capacities 4 and face trial on what *1092 is clearly an insubstantial claim for damages. 5
III.
Nor can I accept the majority’s conclusion in Part II of its opinion that these appeals do not present a serious and unsettled question and thus fail to meet another requirement of the collateral order doctrine. Under the Supreme Court’s plurality opinion in Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976) and its holding in Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980), nonpolicymak-ing, nonconfidential government employees may not be discharged from a job solely because of their political party affiliation. Beyond that, the reach of Elrod and Branti is simply not as clear as the majority would like to believe, and whether Elrod governs a case such as this, where the terminations were motivated at least in part by a fiscal crisis, is open to serious question.
As recognized in Abraham v. Pekarski, 537 F.Supp. 858, 863-64 (E.D.Pa.1982):
Few Supreme Court decisions in recent years have generated as much litigation and controversy as have Elrod and Bran-ti. Moreover, because of the lack of a majority opinion in Elrod , a problem not. cured by Branti , the sweep of Elrod and Branti has been subject to a good deal of critical analysis seeking to assess their reach [footnotes omitted]. 6
The decisions of our own Court reflect the continued uncertainty surrounding El-rod’s scope and applicability. In Ramey v. Harber, 589 F.2d 753 (4th Cir.1978), cert. denied, 442 U.S. 910 , 99 S.Ct. 2823 , 61 L.Ed.2d 275 (1979), this Court noted the factual distinctions between that case, which involved a newly elected sheriff’s *1093 failure to rehire deputies who had actively campaigned against him, and the Elrod case. Although the majority found it unnecessary to determine the applicability of Elrod to the Ramey facts, it nonetheless expressed its reservations in this regard: “The district court’s decision is supported by the broad sweep of the Elrod plurality, but there is considerable uncertainty as to how a majority of the Supreme Court would treat a failure to rehire and other patronage practices.” 589 F.2d at 757 . 7
Courts in other Circuits have also wrestled with the meaning of Elrod . In spite of the majority’s view that the Seventh Circuit’s decision in Wren v. Jones, 635 F.2d 1277 (7th Cir.1980), cert. denied, 454 U.S. 832 , 102 S.Ct. 129 , 70 L.Ed.2d 110 (1981), is of no aid to appellants, I find that case instructive. In Wren , the Seventh Circuit was called upon to weigh the fiscal interest of the State against the Elrod rights of public employees in Illinois. In this connection the Wren Court held that “[i]n view of the involuntary requirement that [certain] plaintiffs be reinstated, and of the fiscal exigencies, ... the State’s interest in maintaining prudent control over the efficient use of their [sic] resources outweighs any minimal impact on the plaintiffs’ right to political association.” Id. at 1287 . (emphasis added).
Whether or not Elrod applies in the instant case, where a substantial portion of the public employment sector had to be permanently eliminated for legitimate financial reasons, is, therefore, by no means clear and settled. Except for economic necessity, all of the plaintiffs would have remained in their DOH jobs in 1981. Thus, the applicability of Elrod to the facts of this case, and the constitutional violations which plaintiffs assert, are highly questionable and at the very least justify pre-trial review by this Court under the collateral order doctrine.
IV.
The majority’s denial of pre-trial review under the circumstances presented in this case flies in the face of Harlow and conflicts with decisions by other Circuit Courts which have allowed immediate review of the denial of official immunity claims. As a result, appellants have had their claims to qualified immunity conclusively resolved against them. They have irretrievably lost whatever claim they may have to official immunity, not only in this case, but possibly in the eight other related cases now pending against Governor Rockefeller, Commissioner Miller, and other District Engineers like Gilbertson. Denying appellate review irreparably harms not only these public officials, but also the public at large and the very concept of official immunity.
For the foregoing reasons, I would hold that we have jurisdiction of these appeals under the collateral order doctrine and would address the immunity claims on their merits.
. The record in this case demonstrates that because of the state’s fiscal crisis in late 1980, over 1,500 DOH employee positions were eliminated in 1981, the year of plaintiffs’ terminations. As of now, more than 2,600 DOH employees have lost their jobs since the end of 1980. This represents an elimination of approximately one-third of the DOH workforce as it existed in late 1980.
. The majority’s reference to the unpublished decision in Benford v. American Broadcasting Companies, Inc., et al., 707 F.2d 504 (4th Cir. 1983), in no way deters me from finding Harlow applicable in this instance. The two cases are factually distinct. In Benford , we simply held that an immediate appeal of the district court’s order denying summary judgment was not warranted when the qualified immunity defense was not finally determined and where the disappointed movants could still present facts at trial in support of their claim to immunity. In that case, the district court ruled that the Congressional staff defendants had acted beyond the scope of their authority and, therefore, lacked standing to assert a qualified immunity defense; however, in deciding against the Congressional defendants, the district court left open the possibility that they could prove certain facts at trial which would entitle them to qualified immunity. Here, on the other hand, all of the facts pertaining to the qualified immunity defense asserted by Governor Rockefeller and the other state officials have been presented and the district court has conclusively resolved their immunity claims against-them.
. Under W.Va.Code § 17-2A-4 (1983), only Commissioner Miller has the authority to order reinstatement.
. The majority concludes that it makes no difference whether the personal pocketbooks of appellants are at risk or not insofar as their distraction from official duties is concerned. This position, however, completely overlooks the fact that an official being sued personally for money damages may be required to retain private counsel at his own expense. Furthermore, the fear of being sued and held personally liable for damages is a far cry from a suit for *1092 reinstatement or injunctive relief, which public officials face regularly in the course of performing their duties. As the Supreme Court noted in Harlow, 457 U.S. at 813, 818 , 102 S.Ct. at 2736, 2738 , the threat of personal liability could deter all but the most resolute or irresponsible from discharging their public duties, or even from being willing to serve in public office.
. A review of the current state of the record quickly reveals the insubstantiality of plaintiffs’ claim. Plaintiffs allege that appellants participated in a scheme to oust them from their jobs for political reasons, or that appellants knew, or should have known, that the terminations were illegal and did nothing to prevent them. These allegations, however, when submitted to the test of appellants’ motions for summary judgment, are not supported by a single shred of evidence, and the majority cites none.
Appellants’ affidavits substantiate their defense that the terminations were due to financial necessity and indicate that none of the appellants had any personal involvement whatsoever in plaintiffs’ selection for discharge by another defendant, County Supervisor John Gum. That plaintiffs were discharged solely by Gum, and without consultation, is further supported by Gum’s deposition, in which he stated that he alone made the decision to terminate plaintiffs.
None of plaintiffs’ submissions, in response to these affidavits and supporting documentation, in any way contradict appellants’ evidence. In fact, one of plaintiffs’ submissions, a deposition taken of Governor Rockefeller in connection with other litigation, reveals that political hiring and firing was specifically disavowed by the Rockefeller administration. It further demonstrates that 55% of the DOH employees terminated in 1981 were persons hired by Governor Rockefeller’s administration, while only 38-39% of those terminated were persons hired by the former Republican administration.
I am thus at a loss to understand the district court’s rationale for allowing the damages claim to proceed to trial on the ground that “[pjlaintiffs’ response ... sets forth allegations which if assumed to be true for the purposes of this motion preclude summary judgment.” Under Fed.R.Civ.P. 56(e), once a motion for summary judgment is made, “an adverse party may not rest upon the mere allegations or denials of his pleading.” The rule requires the responding party to set forth specific facts showing that there is a genuine issue for trial or else have summary judgment entered against him. The district court’s holding is incompatible with Rule 56 and mandates trial where there are mere allegations of politically motivated terminations. By dismissing these appeals, the majority seems to sanction this unwarranted practice.
. Judge Aldisert of the Third Circuit Court of Appeals made the following observation in his concurring opinion in Loughney v. Hickey, 635 F.2d 1063, 1069 (3d Cir.1980): “I suggest that the various majority opinions in both Elrod and Branti are not capable of public comprehension.”
. Other decisions in this Circuit which reflect the continuing uncertainty over the scope of Elrod include: Delong v. United States, 621 F.2d 618, 625 (4th Cir.1980) (Dumbauld, J., concurring: “appellant’s situation does not fall within Elrod . He has not been discharged, or threatened with discharge. He has simply been transferred .. . ”) and Johnson v. Bergland, 586 F.2d 993, 996 (4th Cir.1978) (Hall, J„ dissenting: “.. . the majority’s reliance on Elrod v. Bums ... is misplaced; there the infringement of first amendment rights was direct and immediate, not indirect and speculative.”)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8918533. Public record. Not legal advice.