# Richard Marx, Individually and Kristina Marx, a Minor v. Glenn H. Gumbinner, Bruce H. Colton and Pamela J. Roebuck > Court of Appeals for the Eleventh Circuit · September 20, 1988 · 855 F.2d 783 URL: https://www.frixlaw.com/law-library/cases/9478088 ## Case - **Full name:** Richard MARX, Individually and Kristina Marx, a Minor, Plaintiffs-Appellees, v. Glenn H. GUMBINNER, Et Al., Defendants, Bruce H. Colton and Pamela J. Roebuck, Defendants-Appellants - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** September 20, 1988 - **Citations:** 855 F.2d 783; 12 Fed. R. Serv. 3d 385; 1988 U.S. App. LEXIS 12857; 1988 WL 90426 - **Precedential status:** Published - **Opinion:** Dissent by Hatchett - **Judges:** Tjoflat, Hatchett, Lynne - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Burns v. Reed, 500 U.S. 478 (1991). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478088 ## How later opinions describe it (automated extraction) - observing that, upon a Rule 12(b)(6) motion, the plaintiff is "tied . . . to the factual allegations of each claim in his complaint," leaving the court to decide whether those allegations "disclose activities protected by absolute immunity[.] If they do, that is the end of the… - observing that, upon a Rule 12(b)(6) motion, the plaintiff is “tied ... to the factual allegations of each claim in his complaint,” leaving the court to decide whether those allegations “disclose activities protected by absolute immunity[.] If they do, that is the end of the i… ## Opinion text *793 HATCHETT, Circuit Judge, dissenting: I respectfully dissent from the majority’s holding that the court has jurisdiction over this appeal. Courts have allowed interlocutory appeals in cases where the district court denied immunity to public officials in damage actions. Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806, 2815 , 86 L.Ed.2d 411 (1985); cf. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949). An interlocutory appeal becomes inappropriate where a plaintiff seeks injunctive relief as well as damages. Prisco v. United States, 851 F.2d 93 (3d Cir.1988). The majority correctly notes that, “[ejrroneously subjecting an official to trial defeats the very purpose of the immunity doctrine....” Such reasoning in this case is misplaced. First, the resolution of the qualified immunity question as it relates to damages does not conclusively terminate the lawsuit. Where a plaintiff seeks damages and injunctive relief, the public official is going to be subjected to a trial with or without a valid claim of immunity. Therefore, the considerations that lead the courts to give an immediate appeal of an order rejecting an immunity claim are not present. Congress enacted 28 U.S.C. § 1291 to limit federal appellate jurisdiction to “appeals from all final decisions of the district courts....” Congress thereby intended to avoid interlocutory or “piecemeal” litigation. Flanagan v. United States, 465 U.S. 259 , 104 S.Ct. 1051 , 79 L.Ed.2d 288 (1984); De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1196 (1st Cir.1986) (Torruella, J., dissenting) (citing Abney v. United States, 431 U.S. 651, 656 , 97 S.Ct. 2034, 2038 , 52 L.Ed.2d 651 (1977)). Moreover, “[t]he defense of qualified official immunity, like the defense of absolute judicial or official immunity, is inapplicable to claims for prospective relief.” Prisco, 851 F.2d at 95; see also Wood v. Strickland, 420 U.S. 308 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975). As the Third Circuit correctly noted: the policy rationale for qualified immunity is that we do not want officials to make discretionary decisions with one wary eye on their pocketbook. That policy rationale is not applicable to a suit for injunctive relief. An official acting in violation of law may in some instances be appropriately shielded from the threat of money damages recovery, but the policy reasons for such a shield do not confer discretion to continue acting illegally. [Citations omitted.] Prisco, 851 F.2d at 95. Because resolution of the qualified immunity issue does not affect a claim for injunctive relief, the policy rationale for an interlocutory appeal is absent because the defendant must answer the claim for injunctive relief. A declaration of immunity from damages does not eliminate the diversion of an official’s attention. Consequently, the availability of an immediate appeal, on an incomplete record, does not seriously affect the public official’s attitude or behavior in performing the duties of office. In further opening the door to interlocutory appeals, the majority contributes to an overburdened appellate docket and the escalating cost of litigation. It makes this contribution without sound reasons for doing so. Examine the dilemma in which this decision places the appellee/plaintiff. Although the plaintiff wins “round one,” the plaintiff must now fight against the state’s full economic and political resources on appeal with only the prospect that if the “round one” victory is sustained, after much delay, the expenses of “round two” must be borne. The Supreme Court has cautioned against a broad interpretation of the Cohen collateral order doctrine. In Flanagan v. United States, 465 U.S. 259 , 104 S.Ct. 1051 , 79 L.Ed.2d 288 (1984), the Court noted: *794 Flanagan, 465 U.S. at 264 , 104 S.Ct. at 1054 ; De Abadia, 792 F.2d at 1201-02 (Torruella, J., dissenting). *793 The final judgment rule serves several important interests. It helps preserve the respect due trial judges by minimizing appellate-court interference with the numerous decisions they must make in the prejudgment stages of litigation. It reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals. *794 I would dismiss this appeal and entertain it, if filed again, when a judgment is rendered on both the damage and equitable claims as to all parties. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478088. Public record. Not legal advice.