John E. Green v. J. Kenneth Brantley, Edgar v. Lewis, Craig R. Smith, Garland P. Castleberry

EDMONDSON, Circuit Judge:

In this civil rights case, we decide whether we have jurisdiction to hear an interlocutory appeal from a denial of summary judgment on the ground of qualified immunity when the defendant must still face trial on another claim arising from the same occurrence. Defendants appeal the denial of summary judgment on one of two civil rights damage claims asserted against them but concede that the remaining claim must go to trial. A panel of this court refused jurisdiction, but we vacated that opinion to consider the case en banc. We now conclude that the denial of summary judgment based on qualified immunity is appealable as a collateral order under Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), even if an additional damage claim will proceed to trial regardless of the outcome of the appeal.

I. FACTS AND BACKGROUND

The facts of this case are set out more extensively in the panel’s opinion. Green v. Brantley, 895 F.2d 1387, 1389-90 (11th Cir.), reh’g granted and opinion vacated, 921 F.2d 1124 (11th Cir.1990). We offer only the following summary.

Plaintiff John Green brought this Bivens action against four officials of the Federal Aviation Authority in their personal capacities after a dispute over the revocation of plaintiffs Designated Pilot Examiner’s (“DPE”) certificate. Plaintiff has alleged two constitutional violations. 1 First, plaintiff claims he was denied a property right protected by the Administrative Procedure Act (“APA”) and the Fifth Amendment when defendants revoked his DPE certificate without adequate notice and a fair hearing. Second, plaintiff claims that defendants released stigmatizing information about him that damaged his professional reputation, thereby depriving him of a liberty interest without due process.

Defendants moved for summary judgment on both claims, asserting qualified immunity from suit. The district court denied the motion, concluding that the DPE certificate was a “license” afforded the due process protection of the APA and that this right was clearly established in White v. Franklin, 637 F.Supp. 601 (N.D.Miss.1986). 2 The district court did not rule di *1148 rectly on defendant’s assertion of qualified immunity on the liberty interest claim, concluding that summary judgment was improper because “an issue of fact exists for the jury as to whether the defendants released information that damaged the plaintiff’s reputation prior to his termination.” Green v. Brantley, 719 F.Supp. 1570, 1576 (N.D.Ga.1989). 3 Defendants chose to appeal only the denial of summary judgment and qualified immunity on the property interest claim; they asserted appellate jurisdiction under Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985).

A panel of this court ruled that it lacked appellate jurisdiction, concluding that “the facts of Mitchell and those of the present case differ in material respects.” 895 F.2d at 1390 . After examining the policies underlying qualified immunity, the final judgment rule, the collateral order doctrine, and the decision in Mitchell , the panel concluded that “the denial of summary judgment on the ground of qualified immunity is not a collateral order whenever the defendants would be subjected to a trial for damages arising from the same common nucleus of operative facts regardless of the outcome of the motion.” Id. at 1394.

II. DISCUSSION

A.

The doctrine of qualified immunity affords immunity from suit to government officials performing discretionary functions as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). Noting that legal claims “frequently run against the innocent as well as the guilty,” the Supreme Court fashioned this “objective reasonableness” standard as a way of protecting defendant officials, as well as society as a whole, from the “social costs” exacted by “insubstantial claims.” Id. at 813-14 , 102 S.Ct. at 2736 .

In Mitchell v. Forsyth, the Supreme Court held that a district court’s denial of a claim of qualified immunity is among that small class of decisions that, despite the absence of a final judgment, are appealable “final decision^]” within the meaning of 28 U.S.C. § 1291 . Mitchell, 472 U.S. at 530 , 105 S.Ct. at 2817 . Applying the “collateral order” exception to the final judgment rule, the Court concluded that the denial of a qualified immunity claim is effectively un-reviewable on appeal from a final judgment and “easily meets” the remaining two criteria for an appealable interlocutory decision by conclusively determining the disputed question and by resolving a claim of right separable from, and collateral to, rights asserted in the action. Id. at 527 , 105 S.Ct. at 2816 (citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949); Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978)).

The only relevant distinction between this appeal and the appeals in Mitchell and Harlow is the decision by defendant officials in this ease to assert on appeal that they are entitled to qualified immunity from suit on only one of the two claims facing them. As a result, defendants here will still face trial on the liberty/reputational interest claim whether or not we conclude they are immune from suit on the property interest claim. We think this distinction is immaterial, as the same concerns *1149 that led the Supreme Court to refashion the doctrine of qualified immunity in Harlow and to allow the immediate appeal of qualified immunity denials in Mitchell apply with substantial force here.

Throughout its discussion of the doctrine of qualified immunity, the Harlow Court made no distinction between those cases that might be completely resolved through a summary judgment motion asserting qualified immunity and those cases in which only some claims were subject to dismissal on the ground of qualified immunity from suit. The Court said that the chief objective behind qualified immunity was to avoid the social costs associated with forcing public servants to defend themselves against erroneous claims. We do not read Harlow to suggest that these costs are avoided only when the official escapes trial entirely by asserting immunity from suit on all the claims facing him. Rather, the Harlow Court concluded that “public policy mandates an application of the qualified immunity standard [in a way] that would permit the defeat of insubstantial claims without resort to trial.” Id. at 813 , 102 S.Ct. at 2736 (emphasis added). 4

Harlow recognized the importance of shielding public officials from the threat of litigation arising out of their official functions. “[W]here an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’ ” Id. at 819 , 102 S.Ct. at 2738 (quoting Pierson v. Ray, 386 U.S. 547, 554 , 87 S.Ct. 1213, 1217 , 18 L.Ed.2d 288 (1967)). In Mitchell , the Court made it clear that these “consequences” include not just liability, but “the general costs of subjecting officials to the risks of trial.” Mitchell, 472 U.S. at 526 , 105 S.Ct. at 2815 . The Court recognized the menacing nature of personal liability, but also recognized the chilling prospect of forcing government officials to defend against claims from which they are properly immune and consequently saw qualified immunity as an “entitlement not to stand trial or face the other burdens of litigation.” Id. (emphasis added). The Court recently reaffirmed this objective in Siegert v. Gilley, — U.S.-, 111 S.Ct. 1789 , 114 L.Ed.2d 277 , reh’g denied — U.S. -, 111 S.Ct. 2920 , 115 L.Ed.2d 1084 (1991), noting that “[o]ne of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.” Id. at 1793 ; see also id. at 1795 (Kennedy, J., concurring) (“[A]voidance of disruptive discovery is one of the very purposes for the official immunity doctrine_”).

A defendant’s litigation burdens are lessened when a claim is dismissed, and he then defends against fewer claims. If a court grants qualified immunity on one civil rights issue and the defendant goes to trial on a separate issue, discovery can be limited to the issue for which the defendant official has no immunity. With at least some civil rights claims disposed of favorably for the defendants, the plaintiffs may voluntarily withdraw or settle the remaining claims. The duration of the trial — if there is a trial — will likely be shortened, the issues simplified, and the focus nar *1150 rowed. The defendant’s attorney’s fees and costs may be reduced. If the remaining claims are not civil rights claims, the burden of proof and measure of damages may be very different, and damages may be substantially less than allowed in a civil rights action. Cf. Roper v. Edwards, 815 F.2d 1474, 1477 (11th Cir.1987) (noting divergent legal theories and different measures of proof). Or, the remaining claim may be one in which insurance coverage is available when perhaps it is unavailable for the civil rights claim. In addition, the stigma of facing suit for negligence (for example) probably is, and ought to be, less than that associated with having allegedly violated someone’s civil rights. And even though the defendant may face personal liability on a separate claim, the defendant has a significant interest in having his exposure to damage liability reduced as early in the process as possible. Moreover, the plaintiff’s constitutional claim may be the only federal claim in the lawsuit. If the federal claim is dismissed because of qualified immunity, the state-law claims may have no place in federal court. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 , 86 S.Ct. 1130, 1139 , 16 L.Ed.2d 218 (1966) (“[I]f the federal claims are dismissed before trial, ... the state claims should be dismissed as well.”). The Second Circuit, which has indicated a willingness to accept jurisdiction over this kind of appeal, has identified the same kinds of saved litigation costs as requiring appellate consideration of a qualified immunity appeal that will still leave some issues set for trial. Musso v. Hourigan, 836 F.2d 736 , 742 n. 1 (2d Cir.1988) (“[W]e believe that if qualified immunity protects [the defendant official] from liability on the fourth amendment claim, this claim should be resolved on summary judgment in order to prevent [the defendant] from undergoing the costs of trial associated with this claim, even though he may have to undergo trial on the first amendment claim.”) (emphasis in original).

Harlow recognized that for defendant officials, a pending civil rights lawsuit is a sword of Damocles. Reducing the potential for an outcome disastrous to the official by promptly dismissing claims from which he is properly immune can significantly reduce the pain and suffering that the public official and his family endures while the suit is pending. This kind of suffering can constantly grind away at the official, seriously impeding the official in the performance of his duties. Granting qualified immunity on a motion for summary judgment inherently reduces the disruption that the suit poses; for the pertinent civil rights claim, summary judgment puts an end to the distraction. Avoidance of distraction to public officials was one of the main purposes of the qualified immunity doctrine. See Harlow, 457 U.S. at 816 , 102 S.Ct. at 2737 .

If we refused to permit government officials to appeal immediately the denial of qualified immunity when they still face some claim for personal liability damages, we would destroy the right of those officials to be free from the burdens of litigation on those claims from which they are properly immune. In a practical sense, refusing to hear appeals such as this one would effectively abolish qualified immunity for those defendants, clearly frustrating both Mitchell and Harlow by forcing government officials to litigate claims from which they are immune simply because other claims will proceed to trial regardless. 5 *1151 See Musso, 836 F.2d at 742 n. 1 (citing Mitchell and Harlow for the same proposition). Nothing in Mitchell or Harlow says that a defendant has a right to qualified immunity only if the plaintiff does not allege other claims from which the defendant has no immunity.

B.

We have focused mainly on whether an interlocutory appeal asserting qualified immunity from suit on one of several damage claims implicates the considerations underlying the qualified immunity doctrine, and whether the entitlement to qualified immunity is “effectively lost” if the defendant official must go to trial on claims from which he is properly immune. Such an appeal also fits within the Mitchell analysis of the remaining two requirements of the collateral order doctrine by conclusively determining the disputed question and by being conceptually separable from the substantive merits of the damage claims asserted in the suit. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949).

In the same manner as an appeal from a qualified immunity denial on all claims, an appeal from a qualified immunity denial on some but not all claims “conclusively determines the disputed question.” See Mitchell, 472 U.S. at 527 , 105 S.Ct. at 2816 (quoting Coopers & Lybrand v. Livesay, 437 U.S. at 468 , 98 S.Ct. at 2457 ). In Mitchell , the Supreme Court noted that the existence of a factual dispute is irrelevant to a determination of whether, as a matter of law, the plaintiff has alleged a violation of clearly established law, thereby defeating a defendant’s claim to qualified immunity. As a result, “the court’s denial of summary judgment finally and conclusively determines the defendant’s claim of right not to stand trial on the plaintiff’s allegations.” Id. at 527 , 105 S.Ct. at 2816 (emphasis in original).

The same idea holds true in this case, where the denial of defendants’ qualified immunity from suit on plaintiff’s property interest claim conclusively rejected defendants’ entitlement to avoid trial on that allegation. That defendants still face trial on another damage claim does not change the fact that “nothing in the subsequent course of the proceedings in the district court ... can alter the court’s conclusion that the defendant is not immune” from suit on the property interest claim. See Id. 6

Here, as in Mitchell , the question of whether the defendant official is entitled to qualified immunity on a particular damage *1152 claim is also conceptually distinct from the substantive merits of that and other damage claims asserted in the suit. The Supreme Court has repeatedly “recognized that a question of immunity is separate from the merits of the underlying action for purpose of the Cohen test even though a reviewing court must consider the plaintiffs factual allegations in resolving the immunity issue.” Id. at 528-29, 105 S.Ct. at 2817 (citations omitted).

III. CONCLUSION

The Supreme Court held in Mitchell v. Forsyth that appellate courts must entertain interlocutory appeals of qualified immunity denials to protect society from the costs associated with forcing public officials to defend themselves against “insubstantial claims” from which they are properly immune. For the same compelling reasons, government officials continue to be entitled to interlocutory appeal when a civil rights plaintiff attaches other counts to which the official is not immune, or when the official acknowledges that at least some of the plaintiffs allegations do make out violations of clearly established law. We therefore conclude that we have jurisdiction over defendants’ appeal, 7 and hereby order that this case be returned to one of our regular panels for decision on the issue of whether defendants are entitled to qualified immunity on plaintiffs property interest claim.

. A third alleged violation — that defendants conspired to deprive plaintiff of his First Amendment rights in retaliation for testimony against the FAA in an unrelated matter — was dismissed at summary judgment, and that ruling is not before us on appeal.

. In concluding that the district court opinion in White v. Franklin clearly established plaintiffs property interest in the DPE certificate, the district court did not address circuit precedent holding that "a district court opinion, particularly from outside the circuit, cannot, in and of *1148 itself, settle the law" for qualified immunity purposes. See Muhammad v. Wainwright, 839 F.2d 1422, 1425 (11th Cir.1987).

. We think this conclusion is questionable; defendant's motion may have been ripe for summary judgment consideration. In a concurrence to the panel opinion in this case, Judge Kravitch noted that the existence of a factual dispute should never preclude consideration of a qualified immunity claim at summary judgment, as long as there is sufficient factual development to address the claim. 895 F.2d at 1394-95 (Kravitch, J., concurring) (citing Mitchell v. Forsyth, 472 U.S. at 528 , 105 S.Ct. at 2816 (reviewing court “need not consider the correctness of the plaintiffs version of the facts, nor even determine whether the plaintiffs allegations actually state a claim. All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions_”)).

. Since the decisions in Harlow and Mitchell , at least nine different circuit courts, including our own, have allowed defendant officials to appeal immediately a district court’s denial of a claim of qualified immunity even when a trial was still necessary to resolve a remaining, official-capacity claim. See DiMartini v. Ferrin, 889 F.2d 922, 924-25 (9th Cir.1989); Marx v. Gumbinner, 855 F.2d 783 (11th Cir.1988); Giacalone v. Abrams, 850 F.2d 79, 84 (2d Cir.1988); Young v. Lynch, 846 F.2d 960, 961-63 (4th Cir.1988); De Vargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714 , 717-18 (10th Cir.1988); Drake v. Scott, 812 F.2d 395, 398 (8th Cir.), modified on reh'g, 823 F.2d 239 (1987); Scott v. Lacy, 811 F.2d 1153, 1153-54 (7th Cir.1987); Kennedy v. City of Cleveland, 797 F.2d 297, 305-06 (6th Cir.1986); De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1189-90 (1st Cir.1986).

It is true that the official capacity claim facing the defendant official in Marx v. Gumbinner, 855 F.2d 783 (11th Cir.1988), and these other cases likely imposed a smaller litigation burden than the damage claim defendants still face in this case. But, we think these cases offer strong rebuttal to arguments that Mitchell was concerned only with protecting a defendant official from the entire set of burdens associated with "trial.”

. Refusing to entertain appeals such as this one would also poorly serve the final judgment rule. That rule promotes judicial economy and holds down the costs of civil rights litigation by preventing the "obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 , 101 S.Ct. 669, 673 , 66 L.Ed.2d 571 (1981). Adopting a rule refusing appellate jurisdiction over appeals such as this one risks artificially inflating the costs to plaintiffs of pursuing civil rights claims, along with saddling the district and appellate courts with claims added merely to take advantage of the limits placed on interlocutory appeal.

At the district level, plaintiffs would be able to prevent defendants from obtaining interlocutory appeal by asserting additional, frivolous claims against which defendants cannot plead immunity or which may allege facts that make out violations of clearly established law. See generally Butz v. Economou, 438 U.S. 478, 507 , 98 S.Ct. 2894, 2911 , 57 L.Ed.2d 895 (1978) (en *1151 couraging federal courts in qualified immunity cases to be "alert to the possibilities of artful pleading”); De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1190 (1st Cir.1986) (plaintiff opposed interlocutory appeal of personal capacity claims where defendant had no qualified immunity from official capacity claims) ("[T]he [alternative] approach might invite plaintiffs to include spurious injunctive claims to avoid interlocutory appeal of the immunity question, and thus force the defendant to face the tribulations of trial from which he may be properly immune.”).

As for the appellate docket, a rule accepting jurisdiction of only those appeals in which all the plaintiffs claims are subject to dismissal on the ground of qualified immunity would encourage defendants to continue pursuing frivolous qualified immunity claims at the appellate level just to preserve appellate review of legitimate claims of qualified immunity. At the same time, defendants would be discouraged from acknowledging — as defendants in this case apparently have — that the plaintiff has alleged a violation of clearly established law on at least some of the claims.

. In Mitchell , the Supreme Court pointed out by way of analogy that a criminal defendant is entitled to an immediate, interlocutory appeal from the denial of a double jeopardy claim because "[t]here are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred.” Mitchell, 472 U.S. at 527 , 105 S.Ct. at 2816 (quoting Abney v. United States, 431 U.S. 651, 659 , 97 S.Ct. 2034, 2040 , 52 L.Ed.2d 651 (1977)). And we have entertained appeals from double jeopardy denials even where the criminal defendant faces trial on other counts arising from the same occurrence. See, e.g., United States v. Sturman, 679 F.2d 840 , 841 n. 3 (11th Cir.1982) (appellate jurisdiction asserted over interlocutory appeal challenging one count on double jeopardy grounds, while five other counts arising from same factual nexus would proceed to trial regardless); United States v. Larkin, 605 F.2d 1360 , 1363 & n. 9 (5th Cir.), modified on reh’g, 611 F.2d 585 (1979) (same, with one count challenged and three proceeding to trial regardless).

. In his en banc brief, plaintiff drops his objections to appellate jurisdiction and asks that we address the merits of defendants’ appeal. But, appellate jurisdiction must derive from Congress' Article III grant of authority, as expressed in 28 U.S.C. § 1291 . As a result, "no action of the parties can confer subject-matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant.” Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 , 102 S.Ct. 2099, 2104 , 72 L.Ed.2d 492 (1982) (citations omitted).