Mueller v. Auker

WALLACE, Senior Circuit Judge,

concurring in part, and dissenting in part:

I agree with the majority’s conclusion that Detective Rogers is entitled to qualified immunity from Eric Mueller’s procedural due process claims. However, I part with the majority opinion in two significant respects. First, I believe the majority improperly exercises appellate jurisdiction over the district court’s partial summary judgment to Eric on his procedural due process claims. This decision is plainly not final, so it cannot be appealed. Second, I disagree with the majority’s articu *1001 lated reasons for foregoing the first step of the Saucier qualified immunity analysis. The majority’s approach on this issue misapprehends Supreme Court precedent, and abuses the discretion we retain in addressing qualified immunity claims on appeal.

I therefore concur only in the majority’s conclusion that Detective Rogers is entitled to qualified immunity from Eric’s procedural due process claims because there was no clearly established law guiding Detective Rogers’ conduct on the night in question. I respectfully dissent from the majority’s decision to exercise jurisdiction over the district court’s partial summary judgment to Eric on those same claims. With respect to the jurisdictional issue, I believe that the majority’s disposition deviates from important binding Supreme Court and Ninth Circuit precedent, resulting in an unacceptable conflict of law in our circuit.

I

“[T]he right to a judgment from more than one court is a matter of grace and not a necessary ingredient of justice...." Cobbledick v. United States, 309 U.S. 323, 325 , 60 S.Ct. 540 , 84 L.Ed. 783 (1940); see also Abney v. United States, 431 U.S. 651, 656 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977) (holding that “it is well settled that there is no constitutional right to an appeal”). Thus, “[i]t must be remembered that the United States Court of Appeals is a creature of statute, and is vested with only statutory appellate jurisdiction as an appellate court, and not as a court of original jurisdiction as a trial court.” Henry v. Clarksdale Mun. Separate Sch. Dist., 409 F.2d 682, 691 (5th Cir.1969); see also United States v. Dior, 671 F.2d 351, 354 (9th Cir.1982) (“To prosecute its appeal before this court, appellant must show that it has the right to appeal and that the order appealed from comes within the terms of a statutory grant of appellate jurisdiction”).

In that regard, Congress has provided the courts of appeals jurisdiction to review all “final decisions of the district courts.” 28 U.S.C. § 1291 . A “final decision” is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978) (internal quotations and citation omitted). Given this statutory limit on our appellate jurisdiction, “interlocutory appeals — appeals before the end of district court proceedings — are the exception, not the rule.” Johnson v. Jones, 515 U.S. 304, 309 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995). The Supreme Court has explained that this “final judgment rule promotes efficient judicial administration while at the same time emphasiz[es] the deference appellate courts owe to the district judge’s decisions on the many questions of law and fact that arise before judgment.” Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 430 , 105 S.Ct. 2757 , 86 L.Ed.2d 340 (1985); see also Di Bella v. United States, 369 U.S. 121 , 124, 82 S.Ct. 654 , 7 L.Ed.2d 614 (1962) (“This insistence on finality and prohibition of piecemeal review discourage undue litigiousness and leaden-foot administration of justice”).

Against this doctrinal backdrop, our court has consistently held that “[ojrders granting partial summary judgment are, absent special circumstances, not appeal-able final orders under [section] 1291 because partial summary judgment orders do not dispose of all claims and do not end the litigation on the merits.” Williamson v. UNUM Life Ins. Co. of Am., 160 F.3d 1247, 1250 (9th Cir.1998), citing Serv. Employees Int'l Union, Local 102 v. County of San Diego, 60 F.3d 1346, 1349 (9th Cir.1995) and Cheng v. Comm’r Internal Revenue Serv., 878 F.2d 306, 309 (9th Cir.1989); see also Way v. County of Ventura, 348 F.3d 808, 809-10 (9th Cir.2003) (holding *1002 that the court lacked appellate jurisdiction over a partial summary judgment on liability in a qualified immunity case).

In this case, however, the majority casts aside this binding authority, and exercises jurisdiction over the district court’s non-final, interlocutory decision: a partial summary judgment to Eric on the merits of his procedural due process claims. Although the majority presents a number of novel legal theories to justify this departure from precedent, none survives serious scrutiny.

A.

I begin, as does the majority, with Mitchell v. Forsyth, where the Supreme Court held that a district court’s order, denying a claim of qualified immunity is “an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” 472 U.S. 511, 530 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985). To reach this conclusion, the Court invoked the collateral order doctrine established in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949). Id. at 524-25 , 105 S.Ct. 2806 . This judicially crafted convention “recognizes that a limited class of prejudgment orders is sufficiently important and sufficiently separate from the underlying dispute that immediate appeal should be available.” Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375 , 107 S.Ct. 1177 , 94 L.Ed.2d 389 (1987). Applying this rule, the Court in Mitchell carefully analyzed the nature of qualified immunity claims, and concluded that a district court’s denial of such claims, “to the extent that it turns on an issue of law,” falls within this narrow class of prejudgment orders. 472 U.S. at 524-30, 530, 105 S.Ct. 2806 .

In this case, the majority erroneously equates the district court’s partial summary judgment with the qualified immunity order in Mitchell. The majority holds that “a grant of summary judgment to Eric Mueller as a matter of law on the merits of a constitutional claim, and against a defendant asserting qualified immunity, is the equivalent of a denial of such an assertion. Such denial where the district court has held that no cognizable factual dispute exists vests us with jurisdiction under the collateral order doctrine.” The majority reasons that the district court’s partial summary judgment to Eric “impose[s] the continuing burdens of litigation on Rogers, [and] effectively foreclose[s] his potential entitlement not to stand trial on damages and left outstanding a judgment against him that he violated Eric Mueller’s constitutional rights.” On this basis, the majority concludes that the “substance of the entitlement not to stand trial ... demands the exception from the usual rule” that only final decisions are appealable pursuant to § 1291.

The majority’s attempt to expand Mitchell’s jurisdictional holding is squarely foreclosed by the Supreme Court’s decision in Johnson . In that case, the plaintiff charged the defendants with using excessive force during arrest. 515 U.S. at 307-08 , 115 S.Ct. 2151 . The defendants filed a motion for summary judgment on qualified immunity grounds, arguing that there were no facts showing the defendants had participated in the alleged beating. Id. at 308 , 115 S.Ct. 2151 . The district court denied the motion, holding that there was a genuine issue of material fact for trial regarding the defendants’ roles in the arrest. Id. The defendants pursued an interlocutory appeal of this decision, citing Mitchell’s rule that orders denying qualified immunity are immediately appealable absent a final judgment. Id.

The Supreme Court dismissed the defendants’ appeal for lack of appellate jurisdiction. In so ruling, the Court clarified *1003 that Mitchell was “explicitly limited ... to appeals challenging, not a district court’s determination about what factual issues are ‘genuine,’ but the purely legal issue[of] what law was ‘clearly established.’ ” Johnson, 515 U.S. at 313 , 115 S.Ct. 2151 (internal citation omitted). The Court held that although summary judgment in that case also involved a question of law — whether there was a genuine issue of material fact for trial — that question also presented a “fact-related” legal inquiry. Id. at 314, 316 , 115 S.Ct. 2151 . Indeed, reviewing a summary judgment may require a reviewing court to consult a “vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials.” Id. at 316 , 115 S.Ct. 2151 . The Court held that because the defendants’ appeal involved this sort of “fact-based” issue of law, Mitchell did not supply jurisdiction over the appeal. Id. at 317-18 , 115 S.Ct. 2151 .

Johnson’s reasoning controls here. Like the judgment from which the defendants appealed in Johnson , the district court’s partial summary judgment presents without a doubt the sort of fact-based issue of law outside the scope of Mitchell’s jurisdictional holding. Reviewing the district court’s partial summary judgment requires this court to canvass the “vast pretrial record” and rule on the sufficiency of Eric’s evidence to establish his claims. Johnson, 515 U.S. at 316-17 , 115 S.Ct. 2151 . Indeed, in reversing the district court’s partial summary judgment, the majority reviews a number of “historical facts” purportedly militating in favor of reversal. Thus, as with the order Johnson , the district court’s partial summary judgment does not present the sort of purely abstract issue of law that is immediately appealable under Mitchell.

This conclusion makes sense given the jurisdictional principles underlying the Mitchell decision. As described above, Mitchell relied on the collateral order doctrine established in Cohen. This judicially created rule is but “a narrow exception to the normal application of the final judgment rule.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 , 109 S.Ct. 1494 , 103 L.Ed.2d 879 (1989). To qualify for immediate appeal under this doctrine, an otherwise non-final order must “involve[] issues significantly different from those that underlie the plaintiffs basic case.” Johnson, 515 U.S. at 314 , 115 S.Ct. 2151 ; see also Cohen, 337 U.S. at 546 , 69 S.Ct. 1221 (holding that a non-final order is immediately appealable where it “finally determined claims of right separable from, and collateral to, rights asserted in the action” (emphasis added)). In this case, the district court’s partial summary judgment to Eric involves an issue that is central to the merits of this lawsuit— whether Detective Rogers violated Eric’s procedural due process rights. Thus, the majority’s exercise of jurisdiction over this ruling, by expanding the collateral order doctrine beyond its properly narrow confines, contravenes important principles of finality, judicial modesty, and efficient case management. See Johnson, 515 U.S. at 311 , 115 S.Ct. 2151 (explaining that the separateness requirement of the collateral order doctrine means to save judicial resources and promote the efficient and timely disposition of cases).

The majority believes that none of the “worries” flowing from premature review of interlocutory orders is implicated by its exercise of jurisdiction. But by reviewing the partial summary judgment order now, the majority realizes the risk described by Johnson of “additional, and unnecessary, appellate court work either when [the interlocutory appeal] presents appellate courts with less developed record or when it brings them appeal that, had the trial simply proceeded, would have turned out to be unnecessary.” 515 U.S. at 309 , 115 *1004 S.Ct. 2151 . Indeed, in this case, because we already conclude that Detective Rogers is entitled to immunity from Eric’s procedural due process claims, there is absolutely no need to rule on the merits of those claims.

The majority suggests that we should disregard the “form” of the final judgment rule, to vindicate the “substance” of the qualified immunity doctrine-to protect public officials from the burdens of litigation. But it is not at all clear in our case 10836 that Detective Rogers would be subject to any further “burdens of litigation” after we reverse the district court’s denial of qualified immunity. We all agree that Detective Rogers deserves immunity from suit. Therefore, although the district court has granted partial summary judgment to Eric, that judgment would no longer be enforceable. However, if even after the protection of our opinion giving him qualified immunity, Detective Rogers chose to pursue further court action to expunge the district court’s liability ruling, the Supreme Court has held that this potential exposure alone is insufficient to abrogate the final judgment rule. In Johnson , the Court acknowledged that its ruling may result in forcing some public officials to trial. 515 U.S. at 317 , 115 S.Ct. 2151 . Still, the Court held that the many “countervailing considerations” animating the final judgment rule “are too strong to permit the extension of Mitchell to encompass appeals from orders of the sort before us.” Id. at 317-18 , 115 S.Ct. 2151 . The Court explicitly rejected the notion that Mitchell justifies a relaxation of the collateral order doctrine’s requirements in order to protect officials against the burdens of trial. Id. at 315 , 115 S.Ct. 2151 . We should follow that Supreme Court precedent here. See also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1946 (2009) (stating that “[a]s a general matter, the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in Cohen ”).

The majority also suggests there is significance in the “posture of Mitchell’s case before the Supreme Court,” implying that the Court did in fact exercise appellate jurisdiction over not only the denial of qualified immunity, but also the summary judgment on liability. A close reading of Mitchell disproves the majority’s implication. True, the district court in that case both denied the defendants’ summary judgment on qualified immunity grounds, and granted the plaintiffs summary judgment on liability. However, as made clear at the beginning of its opinion, the Court exercised jurisdiction over only the qualified immunity portion of the district court’s order. Mitchell, 472 U.S. at 513 , 105 S.Ct. 2806 (describing the issues on appeal as including “whether the District Court’s finding that petitioner is not immune from suit for his actions under the qualified immunity standard ... is appeal-able; and, if so, whether the District Court’s ruling on qualified immunity was correct”).

The majority misunderstands the Court’s statement that it will also address “the District Court’s decision — left standing by the Court of Appeals — that Mitchell’s actions violated clearly established law.” This language refers to the qualified immunity issue properly subject to the Court’s interlocutory appellate jurisdiction; it does not (as the majority suggests) refer to the underlying merits of the plaintiffs claims. Id. at 530 , 105 S.Ct. 2806 (proceeding to analyze whether Mitchell’s actions “violated clearly established law”), citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). Therefore, Mitchell does not support the exercise of appellate jurisdiction over the district court’s partial summary judgment.

*1005 B.

The majority also advances the theory that we have appellate jurisdiction over the partial summary judgment ruling because the ruling is “inextricably intertwined” with the district court’s denial of qualified immunity. The majority cites Swint v. Chambers County Commission, 514 U.S. 35 , 115 S.Ct. 1203 , 131 L.Ed.2d 60 (1995) to support this proposition. Notably, however, the “inextricably intertwined” language in that case was dicta, so its precedential value is questionable. Id. at 51 , 115 S.Ct. 1203 (stating without elaboration that “[t]he parties do not contend that the District Court’s decision [denying the municipal defendant’s partial summary judgment motion] was inextricably intertwined with that court’s decision to deny the individual defendants’ qualified immunity motions”).

In any event, the majority suggests that this “inextricably intertwined” concept was adopted by our court in Duran v. City of Douglas, 904 F.2d 1372 (9th Cir.1990). In Duran , this court without citation of authority exercised jurisdiction over a partial summary judgment on the issue of section 1983 liability, reasoning that the legal issues involved in that appeal were “identical” to those at play in the concurrently filed, and jurisdictionally proper, appeal from a denial of qualified immunity. I do not believe that this exercise of jurisdiction was proper. But notwithstanding the merits of that decision, Duran does not support the majority’s position.

As recited in the majority opinion, in Duran , the legal issues on appeal in the qualified immunity appeal, on the one hand, and the underlying section 1983 liability appeal, on the other, were identical— whether the defendant had violated clearly established constitutional protections. 904 F.2d at 1376 . In this case, however, we have chosen to forgo the first step of the Saucier qualified immunity analysis, and proceed with step two. Thus, the primary issue in this appeal is whether, assuming Eric has constitutional rights to pre and post-deprivation notice, those rights were clearly established at the time in question. That inquiry is entirely different from the inquiry required to resolve an appeal from the district court’s partial summary judgment in favor of Eric on his procedural due process claims. That appeal asks whether, viewing the evidence in the light most favorable to Rogers, Eric has established a constitutional violation. Thus, it cannot be said that the issue to be addressed in the appeal from the district court’s partial summary judgment is “identical” to the issue involved in the qualified immunity appeal.

Duran is further distinguishable because in that case “the relevant facts [were] not disputed.” Id. at 1376 . But here, as the majority recognizes, there are genuine issues of material fact with respect to whether Taige was in imminent danger. Thus, our determinations with respect to Eric’s partial summary judgment and Rogers’ claim to qualified immunity depend on two different sets of facts. On the partial summary judgment, we would have to view the evidence in the light most favorable to Rogers, the nonmoving party. On the qualified immunity claim, we would view the evidence in the light most favorable to Eric, the allegedly injured party. This shifting factual landscape is precisely the situation the Supreme Court warned of in Johnson : one where the premature exercise of appellate jurisdiction over an interlocutory decision undermines the important values of the final judgment rule. See Johnson, 515 U.S. at 316-17 , 115 S.Ct. 2151 . Thus, I do not believe Duran supplies appellate jurisdiction over the partial summary judgment in this case.

The majority’s reliance on the Sixth Circuit’s decision in Brennan v. Township of *1006 Northville, 78 F.3d 1152 (6th Cir.1996) is similarly misplaced. In that case, the court exercised jurisdiction over a partial summary judgment reasoning that “our reversal of the district court’s qualified immunity determination on the ground that [the plaintiff] has not alleged a constitutional violation is indisputably ‘coterminous with, or subsumed in’ the second issue: whether [the plaintiff] is entitled to summary judgment on the basis of a constitutional violation.” Id. at 1158 . But again, here, our reversal of the district court’s qualified immunity determination is based on the second prong of Saucier. So it cannot be said that our qualified immunity ruling is “coterminous with, or subsumed in” the issue of whether Eric is entitled to partial summary judgment.

C.

For these reasons, I disagree with the majority’s decision to exercise appellate jurisdiction over the district court’s partial summary judgment in favor of Eric on his procedural due process claims. I would instead refrain from hearing the appeal at this interlocutory stage of the proceedings.

II.

I turn next to Detective Rogers’ appeal from the district court’s denial of his qualified immunity claim. This appeal is undoubtedly subject to immediate review under Mitchell , and I agree that the district court should be reversed. However, I am concerned with how the majority reaches that conclusion.

As the majority recounts, the Supreme Court in Pearson v. Callahan, - U.S. -, 129 S.Ct. 808, 818 , 172 L.Ed.2d 565 (2009) held that courts now have discretion to determine “which of the two prongs of the qualified immunity analysis [prescribed in Saucier v. Katz, 533 U.S. 194 , 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001) ] should be addressed first in light of the circumstances in the particular case at hand.” In this case, the majority reasons, “[b]eeause we have concluded after reviewing the factual evidence on this issue in the light most favorable to Rogers — or for that matter to Eric Mueller — that there was a genuine issue of material fact as to whether Rogers was confronted with imminent danger to Taige at the time in question, we see no useful purpose in pursuing[the first step of Saucier].” The majority’s reasoning is deficient in the context of qualified immunity.

The first step of Saucier asks whether, viewing the evidence in the light most favorable to the allegedly injured party, the record establishes a constitutional violation. 533 U.S. at 201, 121 S.Ct. 2151 . Nothing about this inquiry requires this court to resolve factual disputes in the record. In fact, the Supreme Court has clarified that the first step of the Saucier inquiry in no way requires courts to assume a fact-finding capacity; rather, a court generally just adopts the version of the facts set forth by the party challenging immunity. Scott v. Harris, 550 U.S. 372 , 381 n. 8, 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007) (holding that the dispositive question in the first step of Saucier — whether those facts establish a constitutional violation — “is a pure question of law”). Thus, contrary to the majority’s reasoning, the existence of a factual dispute as to the “imminent danger” does not justify skipping the first step of Saucier.

Unfortunately, the majority misapprehends this principle, stating that “if a fact-finder were to decide that Rogers was indeed confronted with exigent circumstances, his failure to contact Eric would not have violated Eric’s rights. On the other hand, a factual decision to the contrary would produce an opposite constitutional result.” Again, however, the first step of Saucier does not require this court to resolve this factual question. Rather, all we must do is view the facts in the light *1007 most favorable to Eric, and then decide whether those facts establish a constitutional violation. Therefore, it is irrelevant what a “factfinder” may or may not find based on the evidence presented in this case. At this stage in the dispute, we are required only to view the evidence in the light most favorable to the injured party— no factual findings are required. The majority’s reference to this factual dispute as reason to skip step one of Saucier is therefore misplaced.

In addition, Pearson does not sanction departing from the Saucier sequence simply because there are disputed issues of fact in a given case. The majority cites a passage from Pearson where the Court observes that a court may depart from the Saucier sequence where “the constitutional question is so fact-bound that the decision provides little guidance for future cases.” However, this example does not involve the existence of a factual dispute in the record.

As an initial matter, it is unclear what precisely the Court meant to convey with this dicta-after all, every constitutional ruling is necessarily “fact-bound” given that courts decide concrete disputes, not abstract hypothetical questions. But in Buchanan v. Maine, the case cited by the Court in Pearson in support of this dicta, the First Circuit skipped the first step of Saucier not because of factual disputes in the record, but because of the “complexity of the[constitutional issue faced], and since it is perfectly clear that the officers are entitled to immunity.” 469 F.3d 158 , 168 (1st Cir.2006). In fact, the court in Buchanan expressly recognized that when performing the first step analysis, “the threshold question is whether all the uncontested facts and any contested facts looked at in plaintiffs favor show a constitutional violation.” Id. (emphasis added). Therefore, this language in Pearson does not support the position that the existence of an issue of fact should preclude a court from engaging in step one of Saucier.

Unlike the majority, I would hold that this is a case where the court can “rather quickly and easily decide that there was no violation of clearly established law,” while the question at step one of Saucier is more difficult. Pearson, 129 S.Ct. at 820 . Indeed, the first step inquiry asks us to determine whether due process requires a state official to give an absent parent notice of his decision to assume custody of a child for emergency medical purposes. We need not resolve this complicated constitutional issue, however, because both the majority and the dissent agree that even if such rights existed, they were not clearly established at the time of the relevant conduct. Thus, this case presents a prime example of a case where skipping the first step of Saucier is advisable because “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Pearson, 129 S.Ct. at 818 .

III.

For these reasons, I concur only in the majority’s conclusion that Detective Rogers is entitled to qualified immunity. However, I respectfully dissent from the majority’s attempt to exercise appellate jurisdiction over the district court’s partial summary judgment in favor of Eric on his procedural due process claims. We must remember that our jurisdiction to hear appeals is strictly limited by statute and precedent. To hold that a partial summary judgment on the merits is akin to a denial of qualified immunity for the purposes of our appellate jurisdiction is a striking and unwarranted expansion of our limited jurisdiction.