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

JOHNSON, Circuit Judge,

dissenting in which KRAVITCH, Circuit Judge, joins.

The majority’s rendition of the facts and procedural posture of this case does not clearly express the narrowness of the issue now before this Court and the inconse-quence of its resolution to the subsequent litigation of this case. The plaintiff brought a Bivens action against four government officials, essentially alleging two constitutional claims. 1 The defendants moved for summary judgment on several grounds, one of which was an assertion of qualified immunity. The district court denied the motion for summary judgment. The defendants appealed the denial of their motion as to only one of the claims, leaving the other claim live before the district court and ready to proceed to trial. No matter what the appellate court does at this juncture, the case against the officials will proceed. The inconsequence of appellate action in this case becomes truly obvious, however, when one examines the substance of the two claims which now awkwardly straddle the federal judicial structure, with one foot in the district court and the other in the appellate court.

In the first of the two claims (“the property interest claim”), the plaintiff alleged deprivation of a property right in his Designated Pilot Examiner’s certificate without due process of law in violation of the Fifth Amendment and the Administrative Procedure Act. In the second claim (“the liberty interest claim”), he alleged deprivation of “two distinct liberty interests.” Green v. Brantley, 719 F.Supp. 1570, 1576 (N.D.Ga.1989). He claimed deprivation of a liberty interest in his professional reputation as a result of information released by the officials regarding the cancellation of his certificate and a deprivation of a liberty interest in pursuing his profession. The officials asserted qualified immunity on both the property interest and liberty interest claims as one ground for summary judgment in their favor. The district court *1153 denied summary judgment, however, as to both claims, finding, among other things, that the law regarding both of these rights was clearly established at the time the officials acted. 2 Id. at 1581-84 . The officials chose to appeal the district court’s denial of qualified immunity only in regard to the plaintiff’s property interest claim. They did not appeal the district court’s disposition of their assertions of qualified immunity on the plaintiff’s claim regarding deprivation of liberty interests. See Green, 895 F.2d at 1392.

The defendants’ decision to appeal only the denial of qualified immunity as to the property interest claim is of great significance to the jurisdictional issue now before this Court. Because of the defendants’ failure to appeal the district court’s denial of qualified immunity in regard to the plaintiff’s liberty interests, this claim remains before the district court ready for trial on the merits. This procedural posture is of importance because under Paul v. Davis, 424 U.S. 693, 711-12 , 96 S.Ct. 1155, 1165-66 , 47 L.Ed.2d 405 (1976), harm to one’s liberty interest in reputation, standing alone, is not an actionable constitutional deprivation. Rather, to assert deprivation of a liberty interest in reputation, the plaintiff must also allege the deprivation of some concomitant property or liberty interest. See, e.g. Campbell v. Pierce County, 741 F.2d 1342, 1344 (11th Cir.1984) (stating that “when ... damage [to reputation] is sustained in connection with a termination of employment ... it may give rise to a claim for deprivation of liberty actionable under Section 1983”), cert. denied, 470 U.S. 1052 , 105 S.Ct. 1754 , 84 L.Ed.2d 818 (1985); Siegert v. Gilley, — U.S.-, 111 S.Ct. 1789, 1794 , 114 L.Ed.2d 277 (1991) (restating this principle). The plaintiff alleged that his professional reputation was damaged by “the dissemination of information about his performance as an examiner,” i.e., the performance which allegedly led to the revocation of his Designated Pilot Examiner’s certificate. Green, 895 F.2d at 1393. The plaintiff therefore must put on evidence concerning this allegedly improper revocation. In other words, in proving the liberty interest claim, the plaintiff must go forward with the very same evidence he would present in order to prove his property interest claim.

Consequently, even if a panel of this Court reverses the district court’s denial of qualified immunity as to the property interest claim, that reversal would have practically no effect on the course of the subsequent litigation. If the “burdens of litigation” were lessened for the defendants, it would be only imperceptibly so. It is difficult to imagine that discovery would be any more limited, that the duration of trial would be any shorter, that attorneys’ fees would be reduced, that the embarrassment of the legal process would be decreased, or that the distraction from official duties would be any less intense. More importantly, the defendants would remain potentially liable in money damages. 3 The many *1154 benefits of a successful assertion of qualified immunity simply would not inure to the defendants in this case.

Though the majority opinion will ultimately be of little consequence to the defendants in this case, it collides head on with the fundamental precepts of our federal appellate system, resulting in one further dent in the final judgment rule. There is no doubt that “ ‘the final judgment rule is the dominant rule in federal appellate practice.’ ” DiBella v. United States, 369 U.S. 121 , 126, 82 S.Ct. 654, 657 , 7 L.Ed.2d 614 (1962) (quoting 6 Moore, Federal Practice 113 (2d ed. 1953). It is at the very foundation of our judicial system. The first Congress, in the Judiciary Act of 1789, “established the principle that only ‘final judgments and decrees’ of the federal district courts may be reviewed on appeal.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 , 109 S.Ct. 1494, 1497 , 103 L.Ed.2d 879 (1989) (citing Judiciary Act of 1789, 1 Stat. 73 , 84). “The statute has changed little since then.” Id. When Congress acted in 1891 to create the circuit courts of appeals, “it conferred on the new intermediate appellate court the power to review and revise final judgments,” in civil and criminal cases, preserving direct review by the Supreme Court for a small set of cases. Arizona v. Manypenny, 451 U.S. 232 , 245 n. 19, 101 S.Ct. 1657 , 1666 n. 19, 68 L.Ed.2d 58 (1981) (citing Judiciary Act of Mar. 3,1891, 26 Stat. 826 ). Through a series of recodifications, the finality requirement has been carried forward essentially unchanged into its present form as 28 U.S.C. § 1291 . See id.

The purposes behind this longstanding requirement of finality are manifold. First, the very structure of our judicial system requires that the appellate court give deference to the trial court in matters concerning ongoing litigation. The trial judge is “the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 , 101 S.Ct. 669, 673 , 66 L.Ed.2d 571 (1981). “Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system.” Id. The need to avoid “under-min[ing] the ability of district judges to supervise litigation” is of such paramount importance that in enacting section 1291 “Congress has expressed a preference that some erroneous trial court rulings go uncorrected until the appeal of a final judgment.” Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430 , 105 S.Ct. 2757, 2760 , 86 L.Ed.2d 340 (1985). See also Flanagan v. United States, 465 U.S. 259, 263-64 , 104 S.Ct. 1051, 1053-54 , 79 L.Ed.2d 288 (1984) (stating that the final judgment rule “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”). Second, the final judgment rule is necessary to ensure “the smooth functioning of our judicial system.” Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 69 , 68 S.Ct. 972, 977 , 92 L.Ed. 1212 (1948). See also Budinich v. Becton Dickinson & Co., *1155 486 U.S. 196, 201 , 108 S.Ct. 1717, 1721 , 100 L.Ed.2d 178 (1988) (quoting Republic). The rule “promotes] efficient judicial administration.” Firestone, 449 U.S. at 374 , 101 S.Ct. at 673 (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170 , 94 S.Ct. 2140, 2149 , 40 L.Ed.2d 732 (1974)). See also Flanagan, 465 U.S. at 264 , 104 S.Ct. at 1054 (stating that the rule is “crucial to the efficient administration of justice”). The finality requirement prevents the “piecemeal review” of district court rulings which would result in “undue litigiousness” and the “leaden-footed” advance of the judicial process. DiBella, 369 U.S. at 124 , 369 U.S. at 656 . See also Eisen, 417 U.S. at 170 , 94 S.Ct. at 2149 (describing the rule as preventing “the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy”). Third, section 1291 prevents appellate courts from issuing what may ultimately be advisory opinions. Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 345-46 , 105 S.Ct. 3180, 3201-02 , 87 L.Ed.2d 220 (1985) (Brennan, J., dissenting). Finally, the rule promotes “the sensible policy of ‘avoiding] 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 litigation may give rise, from its initiation to entry of judgment.’ ” Firestone, 449 U.S. at 374 , 101 S.Ct. at 673 (quoting Cobbledick v. United States, 309 U.S. 323, 325 , 60 S.Ct. 540, 541 , 84 L.Ed. 783 (1940)). See also Mitchell v. Forsyth, 472 U.S. 511, 544 , 105 S.Ct. 2806, 2825 , 86 L.Ed.2d 411 (1985) (stating “the final judgment rule removes a potent weapon of harassment and abuse from the hands of litigants”); Richardson, 472 U.S. at 430 , 105 S.Ct. at 2760 (noting that immediate review of trial court rulings causes “disruption, delay, and expense”); Flanagan, 465 U.S. at 264 , 104 S.Ct. at 1054 (stating that the rule functions to “reduce[] the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals”).

The policies behind the final judgment rule are in fact so strong that, contrary to the implications of the majority opinion, the Supreme Court has consistently “declined to find the costs associated with unnecessary litigation to be enough to warrant allowing the immediate appeal” of the district court’s pretrial orders and rulings. Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 499 , 109 S.Ct. 1976, 1978 , 104 L.Ed.2d 548 (1989). Rather than allow the rule to give way, the Supreme Court has held in the criminal context that “[bjearing the discomforture and cost of a prosecution for crime even by the innocent person is one of the painful obligations of citizenship.” Cobbledick, 309 U.S. at 325 , 60 S.Ct. at 541 . Instead, a “defendant is subjected to the burden of defending himself at trial, even though the presence of errors might require reversal of his conviction and possibly a second trial.” United States v. Hollywood Motor Car Co., 458 U.S. 263, 268 , 102 S.Ct. 3081, 3084 , 73 L.Ed.2d 754 (1982) (per curiam). A subsequent reversal of the district court’s error at the appellate level is considered adequate to vindicate the constitutional rights of even the unjustly accused. Id.

Nevertheless, the Supreme Court has created an exception to the rule known as the “collateral order doctrine” for an exceedingly small class of cases. Midland, 489 U.S. at 798-99 , 109 S.Ct. at 1497 (describing this exception as “narrow” and “limited”). For an order to be immediately appealable, it must come within the narrow exception enunciated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 , 69 S.Ct. 1221, 1226 , 93 L.Ed. 1528 (1949), 4 and its progeny. “[T]o fall within the Cohen exception, an order must satisfy at least three conditions: ‘It must “conclusively determine the disputed question,” “resolve an important issue completely separate from the merits of the action,” and “be effectively unreviewable on appeal *1156 from a final judgment.” ’ ” Lauro Lines, 490 U.S. at 498 , 109 S.Ct. at 1978 (quoting Richardson, 472 U.S. at 431 , 105 S.Ct. at 2761 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 , 98 S.Ct. 2454, 2458 , 57 L.Ed.2d 351 (1978))).

The Supreme Court applied this test in Mitchell v. Forsyth and found a denial of qualified immunity to be appealable under the collateral order exception. Mitchell, 472 U.S. at 530 , 105 S.Ct. at 2817 . Mitchell differs significantly from the case at bar, however, in that in Mitchell an appeal of the qualified immunity issue had the potential of bringing the litigation to an end. In its examination of the qualified immunity denial, the Mitchell court emphasized the comparison between qualified immunity and absolute immunity. Id. at 526 , 105 S.Ct. at 2815. In fact, the Court stated, “the heart of the issue before us is the question whether qualified immunity shares [the] essential attribute of absolute immunity — whether qualified immunity is in fact an entitlement not to stand trial under certain circumstances.” Id. at 525, 105 S.Ct. at 2815. It is because this “immunity from suit” would be “effectively lost if a case is erroneously permitted to go to trial” that the Court deemed it appropriate to apply the collateral order exception. Id. at 526-27, 105 S.Ct. at 2815-16 (emphasis in original).

Because of the peculiar procedural posture of the instant case, however, trial will proceed whatever the disposition of the appeal. This fact distinguishes the instant case from Mitchell . The consideration of whether the “entitlement not to stand trial” may be preserved through immediate appeal is of utmost importance in deciding whether the trial judge’s ruling in this case falls within the collateral order exception. Before Mitchell and since, the Court has emphasized the importance of this consideration. See Lauro Lines, 490 U.S. at 499 , 109 S.Ct. at 1978 (stating “we have insisted that the right asserted be one that is essentially destroyed if its vindication must be postponed until trial is completed”); Hollywood, 458 U.S. at 266 , 102 S.Ct. at 3083 (stating that “[i]n addition to satisfying the other requirements of Cohen , [cases allowing the collateral order exception have] involved ‘an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.’ ”) (quoting U.S. v. MacDonald, 435 U.S. 850, 860 , 98 S.Ct. 1547, 1552 , 56 L.Ed.2d 18 (1978)); Cohen, 337 U.S. at 546 , 69 S.Ct. at 1225 (stating that creation of an exception to the final judgment rule for the lower court ruling in question is necessary because, “it will be too late effectively to review the present order, and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably”). The Supreme Court has recognized that “[ajdmittedly, there is value — to all but the most unusual litigant — in triumphing before trial, rather than after it, regardless of the substance of the winning claim. But this truism is not to be confused with the quite distinct proposition that certain claims (because of the substance of the rights entailed, rather than the advantage to a litigant in winning his claim sooner) should be resolved before trial.” MacDonald, 435 U.S. at 860 n. 7, 98 S.Ct. at 1552 n. 7. Whether the case at bar involves one of those “certain claims,” id., depends on whether the “practical value” of the right asserted, Hollywood, 458 U.S. at 266 , 102 S.Ct. at 3083 , i.e., the “entitlement not to stand trial” because of qualified immunity, Mitchell, 472 U.S. at 525 , 105 S.Ct. at 2815 , may be lost unless immediately appealed. In this particular instance, because of the defendants’ choice to appeal only denial of immunity as to the plaintiff’s property interest claim, no such right is at risk. Trial will proceed whatever the disposition of this appeal. If the defendants lost an “entitlement not to stand trial,” it was by their own choice to appeal but one issue, not because of an unwarranted stinginess of the original panel opinion in refusing to create an exception to the final judgment rule unprecedented in any circuit.

Nothing is gained by the majority’s disposition of this case, but much is lost. The final judgment rule is the foundation of federal appellate procedure. To open the door of the appellate courts so casually to *1157 this select group of defendants is, in my opinion, unnecessary and unwise. I would instead reinstate the original panel opinion. I therefore respectfully dissent.

. As the majority points out, the plaintiff also brought a third claim alleging a First Amendment violation. The district court granted summary judgment on this claim in favor of the defendants, and the plaintiff did not appeal the disposition of that claim. This third claim therefore was not addressed by the panel and is not before the en banc court. See Green v. Brantley, 895 F.2d 1387 , 1390 n. 1 (11th Cir.1990).

. As Judge Kravitch’s concurrence to the original panel opinion points out, the district court also concluded in regard to the plaintiffs claim of a deprivation of a liberty interest in his professional reputation that "an issue of fact exists for the jury as to whether the defendants released information that damaged the plaintiffs reputation prior to his termination." Green, 719 F.Supp. at 1576 . This unresolved issue of fact appears to have been only one reason why the district court denied the defendants’ motion for summary judgment. The district court addressed the assertion of qualified immunity in a separate section of its opinion. The court stated that the plaintiff clearly had a property right in the certificate under established law and that ”[i]t was also well settled that plaintiff had certain liberty rights entitled to protection under the Fifth Amendment.” Id. at 1583 (emphasis added). I read this statement to mean that in its general denial of the defendants’ assertion of qualified immunity the district court intended to address the assertion of immunity in regard to not only the property interest claim but also the "two distinct liberty interests.”

. The majority has downplayed the significant difference between Marx v. Gumbinner, 855 F.2d 783 (11th Cir.1988), abrogated on other grounds, — U.S. -, 111 S.Ct. 1934 , 114 L.Ed.2d 547 (1981) (abrogated in regard to discussion of absolute immunity only), and the case at bar. In Marx, this Court allowed an interlocutory appeal of a denial of qualified immunity on a claim for monetary damages even though reversal would not end the litigation on the merits of a claim for injunctive relief because reversal would completely terminate the defendants’ personal liability. The *1154 Court stated, "Our point is that the entitlement to be free from suit on a claim for money damages is, in the context of a suit against a government official, conceptually distinct from an entitlement to be free from suit on a claim for injunctive relief.” Id. at 788. The Court explained that when a suit is merely for injunc-tive relief "the defendant, if he loses the suit, will simply be ordered by the court to do something, at the state's expense, in his official capacity.” Id. at 787. However, in a suit for money damages, "the losing defendant will be liable in his personal capacity for a monetary payment ... [and] his personal assets will be subject to attachment." Id. at 787-88. In the instant case, however, even if the defendants succeed in obtaining a reversal of the denial of qualified immunity as to the property claim, they will remain potentially personally liable for monetary damages on the liberty interest claim. At this point in the litigation, it would take a crystal ball to predict that the ultimate damage award, should the plaintiff succeed on the merits, would be any smaller than it would be if the defendants also faced trial on the property claim. The cold comfort of such speculation is not the kind of relief the Marx court envisioned as justifying an exception to the final judgment rule.

All of the cases cited in footnote 4 of the majority opinion likewise address this distinction between claims for monetary damages and claims for injunctive relief. These cases therefore lend no support to the majority’s position.

. Cohen stated that the case must "fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen, 337 U.S. at 546 , 69 S.Ct. at 1225 .