# Opposition Brief — Thomas v. Elliott

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1121

## Text

OR cNEe
SEN itis: ‘bg RYE
BE Sieber

No. 91-690

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991

WILLIAM THOMAS, et al.,

Petitioners,

V.
WILLIAM J. ELLIOTT,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

RESPONDENT'S MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Mark D. Hopson
SIDLEY & AUSTIN

Supreme Court, U.S.
a Se et

JAN 13 1992

OFFICE OF THE CLERK

1722 Eye Street, N.W.

Washington, D.C.
(202) 736-8188

Walter C. Carlson*

Daniel S. Kelly

20006

Brandon D. Lawniczak

SIDLEY & AUSTIN

One First National Plaza

Chicago, IL 60603

(312) 853-7000

Counsel for Respondent

William J. Elliott

“Counsel of Record

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Respondent, William J. Elliott, moves pursuant to 28 U.S.C. $

1915 to proceed in forma pauperis before this Court. On December

10, 1991, Respondent was requested to file a response to

Petitioners’ petition for a writ of certiorari in this case.

Respondent is currently incarcerated in the Illinois River
Correctional Center and is unable to pay the costs of proceeding
before this Court or give security therefor. The District Court
granted Respondent’s leave to proceed in forma pauperis at the
beginning of this action. Respondent has completed, signed, and

attached an affidavit as required by § 1915.

Accordingly, Respondent respectfuly requests that he be

allowed to proceed in forma pauperis.

ZL

Walter C. Carlson

IN THE
SUPREME COURT OF THE UNITED STATES

William Thomas, et al.,
Petitioners,
Vv. No. 91-690

William J. Elliott,

eee eee ee eee ee

Respondent.

AFFIDAVIT TO ACCOMPANY MOTION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS

I, William J. Elliott, being first duly sworn, depose and
say that I am the Respondent in the above-entitled case; that in
support of my motion to proceed before this Court without being
required to prepay fees, costs or give security therefor, I state
that because of my poverty I am unable to pay the costs of said
proceeding or to give security therefor; that I believe I am
entitled to redress; and that I desire to present to this Court
the following: (1) a brief in opposition to Petitioners’
Petition for Writ of Certiorari pursuant to the request of this
Court; and (2) any other brief or motion that may become

necessary in connection with this case.

I further swear that the responses which I have made to the
questions and instructions below relating to my ability to pay

the cost of proceeding before this Court are true.

a. Are you presentiy employed?

Yes. I earn $30.00 per month as a clerk in the Maintenance
Tool Control Department of the Illinois River Correctional
Center in Canton, Illimois. I have had similar jobs in my
approximately 6 years of incarceration in other Illinois
correctional facilities.

re Have you received within the past twelve months any
income from a business, profession or other form of
self-employment, or in the form of rent payments,
interest, dividends, or other source?

Yes. I have received some money from my grandparents as a
gift, but no more than approximately $150.00.

3; Do you Own any cash or checking or savings account?

Yes. I have approximately $30.00 in an account at the
Illinois River Correctional Center.

4. Do you own any real estate, stocks, bonds, notes,
automobiles, or other valuable property (excluding
ordinary household furnishings and clothing) ?

No

S. List the persons who are dependent upon you for support
and state your relationship to those persons.

None.

I understand that a false statement or answer to any

e

questions in this affidavit will subject me to penalties for

perjury.

/
Peay N
A Glhhanva ehh tt
William J{ jElliott

\

~

SUBSCRIBED AND SWORN to
before me this ~/. day of January, 1992.

4

/

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4

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Pa , /

Notary Public

‘+

“OFFICIAL
MARY T. Kozel
Notary Public. State of |

My Com™

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al

CA OF RVICE

I, Carter G. Phillips, hereby certify that
one copy of the Respondent's Motion to Proceed in forma pauperis
in Williams v. Elliott, No. 91-690, was this 10th day of January,
1992, placed in the United States mail, first-class postage

prepaid addressed to the following:

Lawrence Rosenthal

Deputy Corporation Counsel
Frederick S. Rhine

180 N. LaSalle Street

Room 500

Chicago, IL 60601

lim. 6 x.

Carter G. Phillips

No. 91-690

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991

WILLIAM THOMAS, et al.,

Petitioners,

V.
WILLIAM J. ELLIOTT,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION TO PETITION FOR CERTIORARI

AND SUGGESTION OF MOOTNESS

Mark D. Hopson
SIDLEY & AUSTIN

1722 Eye Street, N.W.
Washington, D.C. 20006

(202) 736-8188

Walter C. Carlson*
Daniel S. Kelly

Brandon D. Lawniczak

SIDLEY & AUSTIN

One First National Plaza

Chicago, IL 60603
(312) 853-7000

Counsel for Respondent

William J. Elliott

“Counsel of Record

TABLE OF CO

Table of Authorities .....+. .
Reasons for Denying the Writ

Conclusion

NTS

ii

13

TABLE OF AUTHORITIES

Anderson v. Creighton, 483 U.S. 635 (1987)

Brown v. Grabowski, 922 F.2d 1097 (3rd Cir. 1990)

Burgess v. Pierce County, 918 F.2d 104 (9th Cir.
1990) er arr a |

Celotex Corp. v. Catrett, 477.U.S. 317 (1986)

Cohen v. Beneficial Industrial Loan ents 337
U.S. 541 (1949) “tn

DeFunis v. Odegaard, 416 U.S. 312 (1973) —

Hudgins v. City of Asburn, GA, 890 F.2d 396 (11th
Cir. 1989) << * + 6 © © 6 4, eee

Iron Arrow Honor Society v. Heckler, 464 U.S. 67
(1983)

Kaminsky v. Rosenblum, 929 F.2d 922 (2d Cir.
1991) tare w ee & « anne

Lewis v. Continental Bank Corp., 110 S. Ct. 1249
(1990) ye on ke es we « 0h

Lion Boulos v. Wilson, 834 F.2d 504 (5th Cir.
1987) Cee hee 2 + & ee

Mitchell v. Forsyth, 472 U.S. 511 (1985)
Murphy v. Hunt, 455 U.S. 388 (1980)

Ramirez v. Webb, 835 F.2d 1153 (6th Cir. 1987)

Bichardson-Merre1) Inc. v. Koller, 472 U.S. 424
(1984) cee * * « & Speer

Riley v. Madnwxight 810 F.2d 1006 (11th Cir.
1986) coe oe} ew ae

United States Parole Commission v. Geraghty, 445
U.S. 388 (1980) ¢ «¢ « &. 2 2, be ee ee

United States v. Munsingwear, Inc., 340 U.S. 36
(1950) . . . . . . . . . . . . . . . + . . .

United States v. O'Shaughnessy, 772 F.2d 112 (5th
Don’. « « « « «© + 6 @ ¢ « © = ©. elon

wiin

Unwin v. Campbell, 863 F.2d 124 (lst Cir. 1988) pe ae
Weinstein v. Bradford, 423 U.S. 147 (1975) .. . 3

Wright v. South Arkansas Regional Health Center,
SOO 9.28 300 teen Cari SOOO). se Se 3 ks 13

Miscellaneous

C. Wright, A. Miler, E. Cooper, 13A Federal
Practice 6 Proce@urée 26... «.+ + «.« 6 « » +8 10

~iii-

REASOWS FOR DENYING THE WRIT

Petitioners seek certiorari to review a decision of the

United States Court of Appeals for the Seventh Circuit in which
the court held that it had lacked jurisdiction to review an
interlocutory decision of the District Corut. The District Court
had denied Petitioners' summary judgment motion on the ground of
qualified immunity because the district court found genuine
issues of material fact concerning the "merits" of the action.
The petition should be denied because the trial of this case and
the jury verdict in favor of Petitioners have mooted the issue
raised in the petition. In any event, although Petitioners raise
an issue of importance to section 1983 plaintiffs, as to which
the Courts of Appeals have disagreed, the Seventh Circuit's
decision is correct and consistent with the opinions of this

Court on qualified immunity and interlocutory appeals.

1. Petitioners filed their petition for a writ of

certiorari on October 24, 1991. On two different occasions,

petitioners sought a stay from this Court to prevent trial of the
action from going forward. On both occasions, Justice Stevens as
Circuit Justice denied their motion. Accordingly, this section
1983 action was tried on December 16-20, 1991. On December 20,
1991, the jury returned a verdict in favor of all Petitioners on

all counts, and judgment was entered on that verdict on December

23, i991.

“Under Article TII of the Constitution, federal courts
may adjudicate only actual, ongoing cases or controversies."
Lewis v. Continental Bank Corp., 110 S. <t. 1249, 1253 (1990).
"This case-or-controversy requirement subsists through all stages
of federal judicial proceedings, trial and appellate. .. . The
parties must continue to have a 'personal stake in the outcome’
of the lawsuit." Id. at 1253-54. "Federal courts lack
jurisdiction to decide moot cases because their constitutional

authority extends only to actual cases or controversies." Iron

Arrow Honor Society v. Heckler, 464 U.S. 67 (1983). “In general

a case becomes moot 'when the issues presented are no longer
"live" or the parties lack a legally cognizable interest in the
outcome.'" Murphy v. Hunt. 455 U.S. 388, 396 (1980), quoting

United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396

(1980).

As a result of the jury verdict in favor of
Petitioners, there is no longer a "case or controversy" in this
matter.’ Petitioners have stood trial and no longer face any
risk ef liability in this case and, therefore, no longer need the

protection of qualified immunity. Indeed, the thrust of

' Because this petition involves an interlocutory appeal, the

petition should be dismissed and the Seventh Circuit's decision
should remain in effect. The rule articulated in United States
v. Munsingwear, Inc., 340 U.S. 36 (1950), that an appellate court
should vacate a lower court decision that has become moot on
appeal does not apply to interlocutory appeals. See United
States v. Q'Shaughnessy, 772 F.2d 112, 113 (5th Cir. 1985); see
also C. Wright, A. Miller, E. Cooper, 13A Federal Practice &
Procedure 2d § 3533.10, pp. 435-36 (general practice under
Munsingwear does not apply to interlocutory appeals).

-2-

Petitioners' petition was that they were entitled to a pre-trial
review of the “merits"® of this case. Now that the trial is over,
a decision by this Court would have no effect on Petitioners.

See Murphy, 455 U.S. at 481 (claim to pre-trial bail moot after
conviction). Thus, neither Petitioners nor Respondent has a
"personal stake" or "legally cognizable interest" in the issue

presented in this petition.

Nor does this petition fall within the "capable of
repetition, yet evading review" exception. For the exception to
apply, two elements must be present: "(1) the challenged action
was in its duration too short to be fully litigated prior to its
cessation or expiration; and (2) there is a reasonable
expectation that the same complaining party would be subjected to

the same action again." See Weinstein v. Bradford, 423 U.S. 147,

149 (1975). A “reasonable expectation" or a "demonstrated
probability” is required; a "mere physical or theoretical

possibility" is not enough. Murphy, 455 U.S. at 477.

Neither element is satisfied in this case. First, the
challenged action is not too short in duration to be fully
litigated. As the proceedings in this Court demonstrate, the
district court, the court of appeals, or this Court can grant a
stay of a trial pending this Court's review should the issue
arise in a future case and a stay be appropriate. Indeed,
Petitioners had two different opportunities to seek a stay here.

They also (unsuccessfully) sought stays from both the district

-3-

court and the Seventh Circuit. Further, summary judgment motions
on qualified immunity grounds frequently occur at the early
stages of litigation, long before most cases go to trial. Now
that the Seventh Circuit has conclusively decided the issue,
future rulings should come to this Court "with relative speed."

See DeFunis v. Odegaard, 416 U.S. 312, 319 (1973).

Second, there is no "demonstrated probability" that
Petitioners will again be denied an interlocutory appeal of a
qualified immunity ruling for the same reason challenged here.
This Court has no reason to believe that Petitioners will ever
again be defendants in a section 1983 action and “once again be
in a position to demand" a similar interlocutory appeal. See

Murphy, 455 U.S. at 484.°

In sum, the trial of this case and the jury verdict in
favor of Petitioners have obviated the issue raised in the
petition. "The controversy between the parties has thus clearly
ceased to be ‘definite and concrete' and no longer ‘'touch[es] the
legal relations of parties having adverse interests.'" DeFunis,

416 U.S. at 317.

. It is immaterial that Respondent may file an appeal of the

jury verdict. See Fed. R. App. P. 4 (notice of appeal must be
filed within 30 days of final judgment). This Court has held
that the possibility of a successful appeal after a jury verdict
does not give rise to a "reasonable expectation" under the
“capable of repetition, yet evading review" doctrine. See
Murphy, 455 U.S. at 482-83.

-4-

2. Assuming, argquendo, that the petition is not moot, the

writ should be denied because the Seventh Circuit's decision is
correct and fully consistent with this Court's opinions
addressing qualified immunity and interlocutory appeals. The
Seventh Circuit correctly held that public officials are not
entitled to automatic pretrial appellate review of summary
judgment motions after the district court finds genuine issues of
material fact concerning the "merits" of the plaintiff's case.
Qualified immunity does not confer on public officials a right of
special appeal under such circumstances. Such special treatment
would impose unreasonable delay on plaintiffs and undue burden on

appellate courts.

Petitioners misinterpret this Court's decisions in
Anderson v. Creighton, 483 U.S. 635 (1987), and Mitchell v.
Forsyth, 472 U.S. 511 (1985), and stretch those cases well beyond
their holdings. Neither Mitchell nor Anderson created such a
right of special appeal for public officials, and neither ruled

that the finality rule was inapplicable to appeals of qualified

immunity rulings on summary judgment.

The Seventh Circuit held that "Mitchell did not create
a general exception to the finality doctrine for public
employees." Petitioners' App., 5a. This Court has made it clear
that the "small class" of appealable interlocutory decisions must

satisfy the three criteria of the collateral order doctrine: the

decision must be effectively unreviewable after the proceedings

terminate; it must conclusively determine the disputed question;

and it must involve 2a “claifm} of right separable from, and

collateral to, rights asserted in the action." See Cohen v.

Beneficial Industrial Loan Corp., 3237 U.S. 541 (1949); Mitchell,

472 U.S. at 524-26. Yet, Petitioners completely ignore the
collateral order doctrine and mistakenly focus exclusively on
just one of the protections of qualified immunity -- immunity

from suit -- to support their jurisdictional argument.

In Mitchell, this Court applied the collateral order
doctrine analysis to qualified immunity rulings. This Court held
that under limited circumstances a summary judgment motion
denying a claim of qualified immunity is an appealable
interlocutory order. Stating that qualified immunity was both a
defense to liability at trial and an "entitlement not to stand
trial or face the other burdens of litigation," Mitchell, 472
U.S. at 526, this Court ruled that a summary judgment order that
denies a claim of qualified immunity satisfies the first two
criteria of the collateral order doctrine: it conclusively
determines an issue (the defendant's right not to stand trial)
which cannot be effectively reviewed after trial. Id. at 525-

27.

This Court, however, went on to state that the third
criterion -- the "separate from the merits" test -- would be
satisfied where the qualified immunity issue "can be decided with

reference only ta undisputed facts and in isolation from the

-6-

remaining issues of the case.“ Mitchell, 472 U.S. at 529-30 n.10
{emphasis added). Thus, this Court found "a claim of immunity .
- + conceptually distinct fron the merits of the plaintiff's
claim" only in very limited circumstances:
All [the court of appeals] 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 or, in cases where the district
court has denied summary judgment for the defendant on
the ground that even under the defendant's version of
the facts the defendant's conduct violated clearly
established law, whether the law clearly proscribed the
actions the defendant claims he took.
Mitchell, 472 U.S. at 528. Ina footnote to this passage, this
Court again “emphasized" that the appealable issue was a "purely
legal one." Id. at 528 n.9. This Court never suggested that the

"separate from the merits" criterion would be satisfied when the

underlying facts are found to be genuinely in dispute.

This Court's recognition that a public official "is
entitled to summary judgment if discovery fails to create a
genuine issue as to whether the defendant" committed the alleged
acts, did not eliminate the finality rule. Mitchell, 472 U.S. at
526; Anderson, 483 U.S. at 646 n. 6. Indeed, defendants of all
types are entitled to summary judgment after discovery if they
can show conclusively that the plaintiff's allegations are not
true. But neither Mitchell nor Anderson (a case which did not
even address the appealability issue) suggested that a public

official defendant could automatically appeal a summary judgment

order in which the trial court found a genuine issue of material

fact concerning the merits: of the action.°

When a trial court finds a genuine issue of material
fact concerning the merits of the action -- i.e., whether the
defendant engaged in the challenged conduct -- an appellate
court, as in this case, has no jurisdiction to review whether
those facts were properly found to be in dispute. While a
summary judgment motion does involve a determination of whether

the movant is entitled to judgment as a matter of law, see, e.g.,

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), denial of

the motion because of issves of fact is not an appealable
interlocutory decision. If it were, then all summary judgment
motions would be immediately appealable, and the Court's careful
line drawing in Mitchell and Anderson would have been wholly
unnecessary. It is only a legal ruling based on undisputed

facts, not a determination that there are genuinely disputed

facts, that is appealable under Mitchell.

Indeed, the only time this Court in Mitchell even mentioned

summary judgment after discovery was when it made the point that
qualified immunity was more than just protection from liability.
Mitchell, 472 U.S. at 526. In the "separate from the merits"
discussion -- the relevant part of the opinion for this analysis
-~- the Court referred only to "facts alleged" and "undisputed
facts" as the proper basis for a qualified immunity summary
judgment appeal. Likewise, when the Court stated in Anderson
that "discovery may be necessary before [the defendant's] motion
for summary judgment on qualified immunity grounds can be
resolved," the Court was referring to discovery "tailored
specifically to the question of [the defendant's] qualified
impunity" and not the underlying merits of the plaintiff's
claims. Anderson, 483 U.S. at 646 n.6.

-8-

3. In an effort to support their unwarranted extension of
Mitchell and Anderson, Petitioners advance a series of flawed
"public policy“ arguments. First, they argue that a public
official who did nothing wrong (despite the district court's
finding of genuinely disputed facts) should be entitled to an
interlocutory appeal to the same extent as an official who
arguably acted unlawfully. Second, Petitioners contend that
appellate courts are faced with the same burden whether they
review the factual record of a motion based on an "I didn't do
it" defense or on the lack of clarity of the law. Third, they
contend that the Seventh Circuit's decision violates the
principle that rules governing appellate jurisdiction should be

clear.

Petitioners' first argument ignores the finality rule
and assumes that the only concern is a public official's right
not to stand trial. As Mitchell demonstrates, however, the
finality rule is fully applicable to summary judgments for
qualified immunity. As this Court has often stated, the finality
rule exists to promote "efficient judicial administration" and to

avoid "unreasonable disruption, delay, and expense" and

"piecemeal appellate review." Richardson-Merrell Inc. v. Koller,

472 U.S. 424, 430 (1984). Further, the public official claiming
"I didn't do it" is amply protected by the district court's
consideration of a motion for summary judgment. If the district
judge concludes that there are disputed issues of fact as to

whether the public official violated clearly established rights,

-9-

such a defendant should stand trial just as should all other
defendants bringing unsuccessful motions for summary judgment.

In short, Petitioners’ argument has it backwards; by placing more
value on qualified immunity than the finality rule, it
unjustifiably would allow public officials to impose
"unreasonable disruption, delay, and expense" in every case in

which a plaintiff attempts to vindicate constitutional rights.

Likewise, Petitioners' second argument is
unconvincing. It is much less burdensome for an appellate court
to review a trial court's purely legal qualified immunity ruling
based on undisputed facts than to review in addition the trial
court's determination of what facts are actually in dispute.
Further, Petitioners' argument that Mitchell's focus was on a
public official's right not to stand trial rather than on the
burdens imposed on a court of appeals ignores the Court's
emphasis that the finality rule and collateral order doctrine
apply to qualified immunity rulings. Unless a qualified immunity
ruling satisfies the criteria of the collateral order doctrine,
the "disruption, delay, and expense" of an interlocutory appeal

outweigh a public official's right not to stand trial.

The third argument is simply wrong. An interlocutory
appeal is available onl¥ when the district court makes a
qualified immunity ruling based on uncontested facts. Where,
however, the district court finds the facts concerning the

"merits" to be genuinely in dispute, there is no appellate

-10-

jurisdiction. There is no ambiguity as to when a denial of a

Claim of qualified immunity is appealable.

4. Petitioners' statement that the Seventh Circuit's
decision conflicts with every other Court of Appeals that has
considered the issue is incorrect. The Second, Eleventh, and
Fifth Circuits agree with the Seventh Circuit. In Kaminsky v.
Rosenblum, 929 F.2d 922 (2d Cir. 1991), the Second Circuit ruled
that it "lack[ed] jurisdiction over" an appeal of a denial of
summary judgment on the grounds of qualified immunity because the
district court had found "unresolved disputed questions of fact."
Id. at 927. The court stated "[sJignificant to the instant
appeal is the rule that review is limited to those cases that can
be decided as a matter of law, not ones that turn on disputed
issues of fact." Id. at 926. Petitioners' attempt to explain

away this holding defies logic.

In Riley v. Wainwright, 810 F.2d 1006 (llth Cir. 1986),

the Eleventh Circuit held that it had no jurisdiction to review
the district court's denial of the defendant's motion for summary
judgment on qualified immunity because the district court had
found that the case "required substantial factual development."

Id. at 1907; see also Hudgins v. City of Ashburn, 890 F.2d 396,

403 (llth Cir. 1989) ("If questions of material fact are present,
then we are without jurisdiction under 28 U.S.C. § 1291 to review
that decision since the case will proceed to trial for resolution

of those factual guestions.")

-il-

Likewise, the Fifth Circuit in Lion Boulos v. Wilson,
834 F.2d 504 (5th Cir. 1987), held that a denial of a qualified
immunity claim was not immediately appealable where "the district
court was unable to resolve [a] factual issue based on the
conflicting versions of the [parties]." Id. at 508. Although
there had been no discovery in Boulos, the Fifth Circuit's
reasoning applies equally well to a summary judgment after
discovery in which a district court is unable to resolve a

factual] dispute.

Other Courts of Appeals have taken a different position
on this issue, but Petitioners exaggerate the differences. In
Ramirez v. Webb, 835 F.2d 1153 (6th Cir. 1987), for example, the
Sixth Circuit did not hold that an appellate court has
jurisdiction to review an interlocutory appeal of a district
court's finding of genuinely disputed facts. In Ramirez, the
district court had not determined that the facts of the
defendants' "I didn't do it defense" were in dispute; rather, the
district court had not made any relevant factual findings.
Accordingly, the court held that the issue was not "ripe for

review." Id. at 1159.

Likewise, in Unwin v. Campbell, 863 F.2d 124 (lst Cir.
1988), the First Circuit was not asked to review the trial |
court's determination of the disputed facts; rather, the court

held that in light of Anderson the district court had improperly

-j2-

reviewed only the allegations in the plaintiff's complaint and
then proceeded to review the factual record. Id. at 132.

Moreover, im Unwin, Judge Breyer dissented on the basis

articulated by the Seventh Circuit: that purely factually based
appeals were beyond the rationale articulated in Mitchell for
allowing interlocutory review. Id. at 137-41. Likewise, in

Brown v. Grabowski, 922 F.2d 1097 (3rd Cir. 1990), the facts

before the Third Circuit were "essentially uncontested;" thus,
the court was able to make a pure legal ruling on the qualified

immunity issue. Id. at 1101.

Neither the Ninth Circuit nor the Eighth Circuit has
given the issue significant consideration. The Ninth Circuit's

summary reasoning in Burgess v. Pierce County, 918 F.2d 104, 106

n. 3 (9th Cir. 1990), that the "question of immunity is
conceptually distinct from the plaintiff's claim on the merits,
Since it is the legal question of whether there are genuine
issues for the jury" failed to answer the question; a
sufficiency-of-the-evidence "legal question" is present in every

summary judgment motion. Similarly, in Wright v. South Arkansas

Regional Health Center, 800 F.2d 199, 202-03 (8th Cir. 1986), the

Eighth Circuit identified the problem, and then "nevertheless,"
without any reasoning, found the appeal proper merely because it

was "fully consistent with the spirit" of Mitchell.

In sum, the Seventh Circuit's decision is consistent

with this Court's decisions on qualified immunity and

interlocutory appeals. It strikes the correct balance between

_ the policies undergirding qualified immunity and the need to
avoid "unreasonable disruption, delay, and expense" and
"piecemeal appeallate review." Although the decisions of the
Seventh Circuit and three other circuits are different from those
of certain Courts of Appeals, the differences do not warrant

granting certiorari in this case.

CONCLUSION
For the reasons stated, the petition should be denied.
Respectfully submitted,

Mark D. Hopson

SIDLEY & AUSTIN

1722 Eye Sireet, N.W.
Washington, D.C. 20006
(202) 736-8188

Walter C. Carlson*
Daniel S. Kelly

Brandon D. Lawniczak
SIDLEY & AUSTIN

One First National Plaza
Chicago, IL 60603

(312) 853-7000

January 10, 1991

“counsel of Record

MOLF1BOO.URC (1/10/92 3:02am)

-~14-

SIDLEY &

AUSTIN

PL) DING PROFESSIONAL ¢ ORPORATIONS

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January 10, 1992 . ;
ASSOC TATE WiITit
WRITER'S DIRECT NUMBER HASHIDATE LAW OFFIC}
202-736-8270
1992
William K. Suter JAN 13
Clerk OFFICE OF THE CLERK
Supreme Court of the United States SUPREME COURT, U.S.
One First Street, N.E. —
Washington, D.C. 20543
Re: Williams v. Elliott, No 1-690
Dear Mr. Suter:
Enclosed please find a motion to proceed ~in forma
Dbauperis in the above case. Also yea for filing, are ‘twelve
typewritten copies of Respondent’ Brief in Opposition to the
Petition For A Writ of Certiorari ae The United States Court of
Appeals for the Seventh Circuit in the above-referenced case, as
well as the original certificate of service for this filing, and

a Notice of Appearance for counsel

Thank you for your assist

Enclosures

LWFYZELB SED (1/10/92 2: 1B om

AGH
7:3G-87 11

f-ET, N.W
WASHINGTON. DC

2000G
LONDON
7:36-8BOO0

SINGAPORI
TOKYO

JOINT OFFICE WITH
ASHURST MORRIS CRISP

of record.

ance in this matter

Sincerely,

ae, co :

( wt 6- (info
Phillips

Carter G.

APPEARANCE FORM
SUPREME COURT OF THE UNITED STATES
No. 91-6490

_ vs. om
Wietsan THOMAS ETAL. Wiewiam J, Eterotr
(Petitioner) (Respondent)

The Clerk will enter my appearance as Counsel of Record for Res PONRBE NT

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oO
(Please list names of all parties represented)

who IN THIS COURT is © Petitioner(s) f& Respondent(s) © Amicus Curiae

I certify that I am a member of the Bar of the Supreme Court of the "nited States:

Signature Wale 6g a a Se
(Type or print) Name __ WALTER C.D Careson ae nde oa RN

Mr. OMs. OMrs. C Miss
Firm SibrEy ah Aust : eee
Address Ove FuesT WaTiovte L424
City & State__C 4/6 AlzO , gee Zip GO GOS
Phone (3/2) _85:3 - 7737

Rule 9 \
APPEARANCE OF COUNSEL

.1. An attorney seeking to file a pleading, motion, or other paper in this Court in a
representative capacity must first be admitted to practice before this Court pursuant to
Rule 5. The attorney whose name, address, and telephone number appear on the cover

: of a document being filed will be deemed counsel of record, and a separate notice of ap-
pearance need not be filed. Ifthe name of more than one attorney is shown on the cover
of the document, the attorney who is counsel of record must be clearly identified.

.2. An attorney representing a party who wil! not be filing a document must enter a
separate notice of appearance as counsel of record indicating the name of the party rep-
resented. If an attorney is to be substituted as counsel of record in a particular case, a
separate notice of appearance must also be entered.

16021-2-90

CO-WA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2934%3A2. Public record. Not legal advice.