Keith Forsyth v. Richard G. Kleindienst, John N. Mitchell

SLOVITER, Circuit Judge,

dissenting.

I dissent from the denial of the motion to dismiss the appeal and from the grant of a stay.

One of the bedrock principles guiding judicial administration in the federal courts is discouragement of piecemeal appeals. The important purposes served by such a policy were reviewed recently by the Supreme Court: “to emphasiz[e] the deference that appellate courts owe to the trial judge” in order not to “undermine the independence of the district judge”; to “ ‘avoi[d] 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’ ”; and to “promot[e] efficient judicial administration”. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 , 101 S.Ct. 669, 673 , 66 L.Ed.2d 571 (1981) (quoting Cobbledick v. United States, 309 U.S. 323, 325 , 60 S.Ct. 540, 541 , 84 L.Ed. 783 (1940)).

Exceptions to the policy of appellate review of only final orders are few and narrowly construed. In the main, the exceptions are those set forth by Congress in the Judicial Code, i.e., the provision permitting appellate review of orders granting or denying preliminary injunctions, 28 U.S.C. § 1292 (a)(1), and the provision permitting appeals of interlocutory orders when certified to involve a controlling question of law as to which there is substantial ground for difference of opinion where an immediate appeal may materially advance the ultimate termination of the litigation, 28 U.S.C. § 1292 (b).

In contrast, the other principal exception to review of final orders, the collateral order exception enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), is judge-made and covers only a “small class” of orders. A “collateral order” must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 375 , 101 S.Ct. at 674 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 , 98 S.Ct. 2454, 2457 , 57 L.Ed.2d 351 (1978)).

The policies which underlie the limitation of interlocutory appellate review are patently applicable in this case. Plaintiff filed his complaint in September 1972 alleging violation of 18 U.S.C. § 2520 and rights protected under the First, Fourth and Sixth *107 Amendments as the result of the overhearing of his telephone conversations in a warrantless electronic surveillance authorized by defendant, former Attorney General John Mitchell. Following first a stay pending termination of a related criminal matter and then completion of discovery, defendants moved for summary judgment claiming absolute and qualified immunity and plaintiff also moved for summary judgment. The district court denied both summary judgment motions, and this court held that the denial of defendants’ motions for summary judgment on the grounds of absolute immunity was appealable immediately under the Cohen collateral order doctrine but that the denial of summary judgment on the grounds of qualified immunity could not qualify for immediate review. Forsyth v. Kleindienst, 599 F.2d 1203, 1207-09 (3d Cir.1979) (Forsyth I), cert. denied, 453 U.S. 913 , 101 S.Ct. 3147 , 69 L.Ed.2d 997 (1981). The validity of an absolute immunity defense does not easily satisfy the requirement for a Cohen collateral order that the issue on appeal must be separate from and collateral to the merits of the action. However, in Forsyth I we analogized absolute immunity to a claimed double jeopardy violation held subject to interlocutory review in Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977). The rationale given in Abney was that the rights conferred by the Double Jeopardy Clause, which guarantees against twice being put to trial for the same offense, would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentencing. Id. at 660-62 , 97 S.Ct. at 2040-42 . A similar consideration led the Court in Helstoski v. Meanor, 442 U.S. 500 , 99 S.Ct. 2445 , 61 L.Ed.2d 30 (1979), to hold that a Member of Congress could appeal the district court’s denial of a motion to dismiss an indictment alleging violation of the Constitution’s Speech or Debate Clause. The Court held that an appeal lay because the Speech or Debate Clause was designed to protect Congressmen not only from the consequences of litigation but also from the burden of defending themselves. Id. at 507-08 , 99 S.Ct. at 2448-49 . The common thread running between Abney and Helstoski is a constitutional right, protected by an express constitutional provision. The absolute immunity defense afforded representatives of the Executive, albeit not constitutionally based, was deemed in Forsyth I to be important enough to warrant the same immediate appeal. We recognized that if former Attorney General Mitchell was correct in his claim that he was entitled to absolute immunity from civil liability for his decision to authorize the warrantless electronic surveillance, his right not to be subjected to trial would be irretrievably lost if appellate review must await final adjudication on the merits.

In considering the merits of Mitchell’s claim, we rejected his argument that he was entitled to absolute immunity by virtue of his status as a high official of an executive agency. We relied on the Supreme Court’s decision in Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978), in holding that heads of federal executive agencies generally have only qualified immunity when violations of federal constitutional law are asserted. However, we also concluded that under the decision in Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976), the Attorney General’s decision to authorize the warrant-less electronic surveillance is protected by the shield of absolute immunity when it is made in the context of a quasi-judicial function but not when the decision arises in the context of a purely investigative or administrative function. We remanded to the district court to determine whether Mitchell was entitled to the defense of absolute immunity under the legal principles we had enunciated in light of the evidence developed. The Supreme Court denied certiorari, 453 U.S. 913 , 101 S.Ct. 3147 , 69 L.Ed.2d 997 (1981), and denied rehearing, 453 U.S. 928 , 102 S.Ct. 892 , 69 L.Ed.2d 1025 (1981).

On remand, Mitchell chose to submit no additional testimony. Although given the opportunity by the trial court to present any evidence he wished concerning his purpose in approving the wiretaps, he relied on *108 Ms previous deposition testimony to oppose plaintiff’s motion for summary judgment. The district court reviewed “the uncontested facts” and determined that defendant Mitchell was not engaging in conduct subject to the prosecutorial absolute immunity of Imbler v. Pachtman. Forsyth v. Kleindienst, 551 F.Supp. 1247, 1252-1253 (E.D. Pa.1982). The court stressed the deposition testimony by Mitchell who “repeatedly stated that the Davidon wiretap had an investigatory purpose, i.e., to obtain more details about the suspected plot to destroy utility tunnels in Washington, D.C. and to kidnap National Security Council Chairman Henry Kissinger so that the Justice Department, acting through the FBI, might thwart these schemes.” Id. at 1252 . The district court concluded that “the purpose of the wiretap was prevention — not prosecution” and that Attorney General Mitchell “was not in any way weighing factors in order to determine whether and whom to prosecute.” Id. The district court also held that defendant Mitchell was not entitled to qualified immunity because at the time of the wiretaps at issue in this case, there was clearly established law that made Mitchell’s warrantless electronic surveillance an unconstitutional violation of the plaintiff’s rights. Id. at 1253-1259 .

The district court took cognizance of the recent Supreme Court decisions of Nixon v. Fitzgerald,-U.S.-, 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982), and Harlow v. Fitzgerald, - U.S.-, 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). It held the Nixon decision applied by its terms only to the President and not to cabinet officers, such as the Attorney General. Id. at 1253-1254. The district court also held that Mitchell did not meet the test for qualified immunity formulated in the Harlow opinion. Having granted summary judgment to plaintiff on liability, the district court then scheduled the trial on the remaining issue of punitive damages. Thus, more than ten years after filing his complaint, plaintiff still waits for conclusion of the district court proceedings.

The majority cites two authorities for denying the motion to dismiss the appeal and according review at this interlocutory stage — our decision in Forsyth I and the Supreme Court’s recent decision in Nixon v. Fitzgerald. I believe neither requires this result. Instead, I believe that Nixon v. Fitzgerald provides persuasive reason to reject this interlocutory review. In that case, the Court considered as a preliminary matter whether the case had been “in” the Court of Appeals for the District of Columbia Circuit for purposes of Supreme Court certiorari jurisdiction within the meaning of 28 U.S.C. § 1254 (investing the Court with authority to review “[cjases in” the courts of appeals). The Court held that “[i]n light of the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers,” former President Nixon did present a “serious and unsettled” and therefore appealable question to the court of appeals. 102 S.Ct. at 2698.

To apply the approach mandated by the Supreme Court in Nixon v. Fitzgerald, we must first inquire whether defendant Mitchell raises a “serious and unsettled” question as to his right to an absolute immunity defense. Otherwise, under Nixon v. Fitzgerald the collateral order doctrine is inapplicable. The legal issue of the circumstances under which absolute immunity would be available to defendant Mitchell has already been decided by this court in Forsyth I. Significantly, in his papers before us Mitchell does not suggest that the district court either misinterpreted or misapplied our decision in Forsyth I. Nor does he suggest that there are any disputed issues of fact. Thus, only if the Supreme Court’s recent pronouncements on immunity in Nixon v. Fitzgerald or Harlow v. Fitzgerald mandate reversal of our precedent in Forsyth I, as defendant Mitchell suggests they do, would there be any basis for interlocutory review on the basis of the collateral order doctrine.

It is apparent from reading those opinions, a task we cannot shirk because of the limited time available for disposition of this motion, that there is no basis for any contention that they change the law on absolute immunity as enunciated in Forsyth I. *109 As the district court found, the opinion in Nixon v. Fitzgerald is by its terms limited to the President. The opinion in Harlow v. Fitzgerald changes the law only with respect to qualified immunity, not absolute immunity. Indeed, the Court reiterated its earlier decisions in Scheuer v. Rhodes, 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974), and Butz v. Economou, supra, that qualified immunity, not absolute immunity, represents the norm.

The majority embraces Mitchell’s contention “that Harlow raises the availability of a special functions absolute immunity.” The references in Harlow to the absolute immunity which might be accorded on the basis of “special functions” make it clear that the Court did not announce any new law but merely reiterated what it had previously said in Butz v. Economou. Mitchell concedes in his papers before us that he raised the “special functions” argument in Forsyth I and that it was sub silentio rejected by us. Appellant’s Motion to Stay Trial at 9. Since Butz was considered by this court in Forsyth I and the “special functions” immunity which defendant Mitchell tenaciously reiterates was rejected under these facts, I can see no basis for holding that Mitchell raises any “serious and unsettled” question regarding absolute immunity so as to qualify under the collateral order doctrine.

Similarly, I find no precedent in Forsyth I for grant of interlocutory review to Mitchell a second time under the collateral order doctrine. When we considered his absolute immunity claim the first time, we had not yet settled the various legal issues presented. That is no longer the case, and the considerations warranting early review there no longer apply.

Furthermore, the posture in which the denial of summary judgment reaches us now is substantially different than it was in Forsyth I. Unlike the earlier appeal, the liability phase has been completed since the district court granted summary judgment to the plaintiff on the issue of liability. The only two defenses proffered, that of absolute immunity and that of qualified immunity, have been rejected. While we justified our initial interlocutory review of the denial of summary judgment on the basis of absolute immunity so that defendant would be spared a trial which a favorable disposition on immunity would obviate, we can no longer rely on that ground since Mitchell no longer faces district court proceedings on liability.

Since the liability phase of this case has been concluded, this appeal reaches us in the same posture as that of an appeal from a decision granting plaintiff judgment of liability before damages have been determined, and the nonappealability of those orders is well established. See, e.g., Catlin v. United States, 324 U.S. 229 , 65 S.Ct. 631 , 89 L.Ed. 911 (1945); Western Geophysical Co. of America, Inc. v. Bolt Associates, Inc., 463 F.2d 101, 102 (2d Cir.), cert. denied, 409 U.S. 1040 , 93 S.Ct. 523 , 34 L.Ed.2d 489 (1972). The fact that liability was determined on summary judgment as distinguished from a bifurcated trial does not change the general principle that appellate review must await resolution of all of the plaintiff’s claim. See, e.g., Tye v. Hertz Drivurself Stations, Inc., 173 F.2d 317 (3d Cir.1949).

The majority suggests that Mitchell is entitled to this second interlocutory appeal from the denial of summary judgment because the remaining trial on punitive damages will entail an inquiry into his activity, his subjective intent, the presence of malice, and his financial condition. Even if the defendant chooses to testify rather than rely on his deposition, once his immunity defense has been rejected he stands in the same posture as any other defendant who seeks immediate appeal from an adverse liability determination in the hope of avoiding the burdensome and sometimes embarrassing inquiry into damages. If we are not prepared to relax the general rule precluding appeals on liability decisions in bifurcated proceedings, I see no reason to relax it here merely because the defendant proffered an absolute immunity defense which has now been rejected by the trial court.

*110 In summary, unlike the majority, I can find no binding precedent for reviewing for a second time the district court’s denial of summary judgment on the basis of absolute immunity. The ratio decidendi of Forsyth I was accomplished when it enunciated the law applicable to an absolute immunity defense, and the district court applied the law to the uncontested facts. Since no new facts have been presented and no new legal principles as to absolute immunity have been enunciated by the Supreme Court, no “serious and unsettled” question is raised.

I am also troubled that the majority chooses to refer to the merits panel that portion of the appeal which is from the denial of summary judgment on the basis of qualified immunity. This court in Forsyth I, in an opinion which is binding upon us as precedent, held that the denial of summary judgment on the issue of qualified immunity did not fall within Cohen’s collateral order exception to the final judgment rule. 599 F.2d at 1209 . While ordinarily a referral to the merits panel of a motion to dismiss an appeal does not adversely affect a party’s rights, in this case that action, combined with the stay of the trial on punitive damages, adds another unjustified delay to the ultimate conclusion of plaintiff’s case.

I share what I am sure is the majority’s concern that insubstantial claims against present or former government officials should not proceed to trial. See Harlow v. Fitzgerald, 102 S.Ct. at 2737. Yet one can hardly label plaintiff’s claim on which he has been successful on liability in the trial court as “insubstantial”. Moreover, I believe that concern over subjecting government officials to unwarranted claims is best handled through adjustment of the substantive rules of law, as the Supreme Court has recently done, and not by changing the established practice of limiting appellate review of interlocutory decisions. Mitchell is not the only defendant to raise the defense of absolute immunity in cases that come before us. Local, state and federal prosecutors do so regularly in cases in which they are named as defendants, and they are entitled to no less favorable treatment than the former Attorney General. Furthermore, if the majority’s reference of the qualified immunity issue to the merits panel is to presage a change from our decision in Forsyth I that such appeals do not fall within the Cohen collateral order doctrine, then we can expect myriad interlocutory appeals from all of the other government officials who are frequently sued.

The pages of current legal publications are replete with justified concern about the crushing burden under which the courts of appeals are operating. I fear that the decision of the panel today to allow this appeal under the mantle of the Cohen collateral doctrine order and to deny the motion to dismiss will open the sluices to a flood of interlocutory appeals crushing us even further under a weight of our own making.