Amicus Curiae Brief — Behrens v. Pelletier

AVAILABLE COPY

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QUESTION PRESENTED

Whether the court of appeals correctly employed a

one-interlocutory-appeal rule to bar a government

official’s second interlocutory appeal where the

second appeal involved a legally based qualified

immunity defense to a claim that was not before the

court of appeals at the time of the first appeal.

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TABLE OF CONTENTS

Page

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I. Petitioner’s second appeal raised a purely legal

qualified immunity question appropriate for

interlocutory review under Johnson v. Jones ......... 13

II. The one-interlocutory-appeal rule should be

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A. The one-appeal rule is contrary to Cohen v.

Beneficial Indus. Loan Corp. and Mitchell v.

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B. A practical need for a one-appeal rule has not

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TABLE OF AUTHORITIES

Cases:

Abel v. Miller, 904 F.2d 394 (7th Cir. 1990) .......... 19, 23, 24, 26

Anderson v. Creighton, 483 U.S. 635 (1987) .................. 22

Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989) ........... 27

Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388 (1971) ...............ccccceeeseeseeeees 1

Chuman v. Wright, 960 F.2d 104 (9th Cir. 1992) ........... 27

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541

CRIGED <ccscocnesssesenscncnvecsscvertcccessceconesescssesscceossccnecsscees 8, 12, 17

Connelly v. Comptroller, 876 F.2d 1209 (5th Cir. 1989) .. 7

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ......... 17

DeVargas v. Mason & Hanger-Silas Mason Co.,

844 F.2d 714 (10th Cir. 1988), cert. denied, 498 U.S.

EE TIE cidiiendiispbbadatibthadstadndiasencescedtbecccscxesccesccccccees 24

English v. Dyke, 23 F.3d 1086 (6th Cir. 1994) ................ 25

No. 98CV1118 (D. Conn. Nov. 11, 1998) ....................0008

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............0.00.... 8,9

(IIT)

IV

Cases—Continued: Page

Johnson v. Jones, 115 S. Ct. 2151 (1995) .............000 12, 13, 15, 16,

17, 18, 24, 25

Kaiter v. Town of Boxford, 836 F.2d 704 (lst Cir.

SQUID nccccvesdibisclastibcteinaigibiatadisablltias cetclcks intiaiad tee: 19, 20, 28, 24

Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.

1986), cert. denied, 479 U 3. 1103 (1987) ..........ccccceeeeeees 24

Kulwicki v. Dawson, 969 F.2d 1454 (3d Cir. 1992) ........ 24

Marshall v. Kleppe, 637 F.2d 1217 (9th Cir. 1980) ......... 10

Mitchell v. Forsyth, 472 U.S. 511 (1985) .. 11, 7, 8, 12, 18, 17, 18

Murphy v. Morris, 849 F.2d 1101 (8th Cir. 1988) .......... 24

Nelson v. Silverman, 999 F.2d 417 (9th Cir. 1993) ......... 11, 23

Nixon v. Fitzgerald, 457 U.S. 731 (1982) ..........ccceseeeeeeee 22

Perry v. Sindermann, 408 U.S. 593 (1972) .........ccccceeeeee 14

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 113 S. Ct. 684 (1998) .........cccccccccccsscccsssecesers 17

Richardson v. United States, 468 U.S. 317 (1984) ......... 27

Schweiker v. Chilicky, 487 U.S. 412 (1988) .........ccccccesees 6

Sinclair v. Schriber, 834 F.2d 103 (6th Cir. 1987) ......... 25

Stewart v. Donges, 915 F.2d 572 (10th Cir. 1990) ......... 27

White v. OPM, 787 F.2d 660 (D.C. Cir.), cert. denied,

STO US. GBB CHRGD wcctitccerssciscistinniosiinesindieiiinpiabiiastttinsiin 7

Yates v. City of Cleveland, 941 F.2d 444 (6th Cir. 1991) . 27

Constitution, statutes, regulations and rules:

U.S. Const

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PEG: VY vccisenjrnsicdntegninptnsraiestinnatinntsinteamiinitinadianiabeping 6

Adminstrative Procedure Act, 5 U.S.C. et seq. ............... 6

Financial Institutions Reform, Recovery, and Enforce-

ment Act of 1989, Pub. L. No. 101-73, 103 Stat.

SED .cocecsnssinsanensiinieadccapitintibinsinnttibdestintaimaibtnastnabuitaianiecadas 3

Privacy Act of 1974, 5 U.S.C. 552 et seq. mienribtecomnneneeatenin 6

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Statutes, regulations and rules—Continued: Page

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In the Supreme Court of the Anited States

OCTOBER TERM, 1995

No. 94-1244

JOHN W. BEHRENS, PETITIONER

v.

ROBERT J. PELLETIER

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns whether a government official

is categorically limited to one interlocutory appeal to

assert qualified immunity defenses under Mitchell v.

Forsyth, 472 U.S. 511 (1985), even where the second

appeal concerns a legal issue that was not, and could

not have been, considered in the first appeal. Federal

employees sued under Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971), often seek interlocutory review of district

court decisions denying them qualified immunity.

The United States has a strong interest in pre-

(1)

2

serving its employees’ abilities to perform their

functions free from meritless litigation. The United

States also has a strong interest in ensuring effective

deterrence of, and remedies for, unconstitutional

conduct by government employees. Both of those

interests will be directly affected by the resolution of

the issue presented by this case.

STATEMENT

Respondent Robert J. Pelletier, a former bank

executive, sued petitioner John W. Behrens, an agent

of the Federal Home Loan Bank Board (FHLBB), to

challenge actions petitioner took in the course of

monitoring compliance with banking regulations in

the early years of the federal savings and loan crisis.

In 1985, respondent was named managing officer

of Pioneer Savings & Loan Association (Pioneer),

pending federal regulatory approval of his service in

that capacity. When Pioneer sought such approval

from the FHLBB, however, petitioner recommended

that Pioneer find someone else to serve as managing

officer until the completion of an investigation

involving respondent’s actions as an officer at another

savings and loan that had been placed in receivership.

Respondent contends that petitioner’s recom-

mendation caused him to be fired by Pioneer, thus

depriving him of a constitutionally protected property

interest in employment without procedural due

process. Respondent also contends that petitioner

conspired to deprive him of a_ constitutionally

protected liberty interest in future employment in

the banking industry. Petitioner asserts qualified

immunity against both those claims. The defense was

denied as to the conspiracy claim in an earlier appeal.

The issue before this Court is the validity of a rule

preventing petitioner from appealing the denial of

qualified immunity as to the job-termination claim.

1. The Federal Home Loan Bank Act of 1932 es-

tablished the Federal Home Loan Bank system to

restore public confidence in thrift institutions and to

make sound and economical home mortgage loans

more widely available. See 12 U.S.C. 1421-1449. The

Act established the FHLBB, an agency of the federal

government, and placed it at the head of a new system

of twelve regional Home Loan Banks. 12 U.S.C. 1423,

1437(b).' Each of the regional Home Loan Banks was

owned and controlled by its members, which were the

eligible savings institutions within its geographic

district, and served primarily as a central reserve

credit source for those member institutions. 12

U.S.C. 1424, 1426. In 1934, Congress created the

Federal Savings and Loan Insurance Corporation

(FSLIC), a separate federal agency chartered to

insure deposits at savings institutions. 12 U.S.C.

1725. The FHLBB had authority to regulate the

Home Loan Banks, 12 U.S.C. 1432(a), 1437, and their

member savings institutions, 12 U.S.C. 1464. The

FHLBB also fundtioned as the operating head of the

FSLIC. 12 U.S.C. 1725(a). The FHLBB carried out

certain of its functions through individual officers

and employees of the regional Home Loan Banks, who,

although otherwise private bank employees, were

denominated FHLBB and FSLIC “Supervisory

Agents” (or, in the case of the Presidents of the Home

' The Financial Institutions Reform, Recovery, and

Enforcement Act of 1989 (FIRREA), Pub. L. No. 101-73, 103

Stat. 183, has since abolished both the FHLBB and the FSLIC.

This description of the statutory and regulatory scheme thus

refers to pre-FIRREA law.

4

Loan Banks, “Principal Supervisory Agents”) and

acted for those purposes as agents of the federal

government. 12 U.S.C. 1487(a); 12 C.F.R. 500.82,

501.10 (1986).

In 1983, in response to the developing savings and

loan crisis, the FHLBB promulgated regulations

requiring especially close scrutiny of all new savings

institutions (referred to as “de novo” institutions)

that applied to the FSLIC for insurance of their

accounts. 12 C.F.R. 571.6 (1986); see also 12 C.F.R.

562.1-562.10 (1986). Savings institutions seeking

FSLIC insurance could not be approved if their

“financial policies or management [were] unsafe,” 12

C.F.R. 571.6(b), and could also be rejected if the

“character of the management” was questionable,

ibid.

2. On March 29, 1984, South Coast Savings & Loan

Association (South Coast), a de novo institution, re-

ceived FHLBB approval for insurance of its accounts.

Pet. App. lla. One of the conditions of that approval

was that South Coast provide for employment of a

qualified full-time executive managing officer, and

that “the continuation or succession of competent

management will * * * be subject to the Principal

Supervisory Agent’s approval.” Jd. at lla-12a & n.2.

In early 1985, South Coast was succeeded in interest

by Pioneer, another de novo institution, and Pioneer

named respondent as its managing officer, subject to

FHLBB approval. /d. at 12a.

Petitioner, a salaried employee of the Federal

Home Loan Bank of San Francisco, served as a de-

signated FHLBB and FSLIC Supervisory Agent in

the Eleventh District. Pet. App. 18a n.4. In April,

1986, petitioner took over the South Coast/Pione-r

file from another Supervisory Agent. Pioneer had

5

requested approval of respondent as managing officer,

but petitioner informed Pioneer that the FHLBB

could not process its request because respondent had

previously been employed as a loan officer and head of

the Beverly Hills Savings & Loan Association’s

Major Loan Division, and a FSLIC investigation had

disclosed possible wrongdoing at that institution. /d.

at 13a. By letter dated May 8, 1986, petitioner told

Pioneer’s board of directors that the FHLBB could

not proceed with Pioneer’s application until the

Beverly Hills investigation was complete. The letter

stated:

This is in response to the application by Pioneer

Savings, requesting approval for Mr. Robert

Pelletier to become managing officer of the as-

sociation. We wish to advise you that an inquiry

is currently being conducted by the Federal

Savings and Loan Insurance Corporation (FSLIC)

into the failure of Beverly Hills Savings and Loan

Association, and because of Mr. Pelletier’s pre-

vious employment with that institution this office

is unable at this time to proceed with the

application until that inquiry is complete. In this

regard, we believe it would be appropriate if Mr.

Pelletier would step aside from the management

of the association at this time and until such time

as the investigation into the failure of Beverly

Hills savings is complete.

In view of the foregoing, we believe it is

imperative that the Board of Directors initiate a

search for a new managing officer without delay.

We ask that you keep this office advised as to your

progress in that regard.

6

Ibid. The day that Pioneer received that letter, it

asked respondent to step down as President and, when

he refused, Pioneer fired him. Jd. at 14a. Respondent

has been unable to find similar employment in the

savings and loan industry. bid.

3. On February 23, 1989, respondent filed a com-

plaint in United States District Court for the

Central District of California naming petitioner as

defendant in two Fifth Amendment Bivens claims.

First, he alleged that, in sending the May 8, 1986,

letter, petitioner denied him his due process right to a

hearing regarding allegations of respondent’s

wrongdoing. Second, he alleged that petitioner vio-

lated substantive due process by impairing his

property and liberty rights to employment in his

chosen profession. Pet. App. 14a; Complaint 44 29-39

(first and second claims).’ Petitioner moved to

dismiss or, in the alternative, for summary judgment,

asserting that the claims were time-barred by a one-

year statute of limitations, and-that he was entitled to

qualified immunity because neither claim was based

on clearly established law.’

2 In claims not at issue here, respondent also sued the

Federal Home Loan Bank of San Francisco, the FHLBB and

the United States, alleging violations of the Administrative

Procedure Act, 5 U.S.C. 701 et seq., and the Privacy Act of

1974, 5 U.S.C. 552 et seq., and also presenting common-law tort

claims of tortious interference with contract, intentional and

negligent infliction of emotional distress, and negligence. He

named petitioner as a defendant in the tort claims, but the

United States was substituted as defendant under the Westfall

Act. See Pet. App. lla, 33a.

3 Petitioner also relied on Schweiker v. Chilicky, 487 U.S.

412, 423 (1988), asserting that the comprehensive regulation of

the banking industry was a “special factor” counseling against

7

The district court applied a one-year statute of

limitations and granted the motion to dismiss “to the

extent [that the Bivens] claims are based on the [May

8, 1986, letter] and/or plaintiff's loss of employment

with Pioneer Savings & Loan,” but denied the motion

“to the extent said claims are based on other alleged

subsequent acts of defendants preventing and con-

tinuing to prevent plaintiff from securing employ-

ment.” 10/5/89 Order at 2-3. The court commented

that, “given the status of discovery herein”—which

had not yet taken place—“it is premature for the

court to consider [petitioner’s] motion for summary

judgment,” and thus denied it without prejudice. Jd.

at 2,4. The court’s order did not explicitly address

the qualified immunity defenses.

4. On March 2, 1990, petitioner took an inter-

locutory appeal under Mitchell v. Forsyth, 472 U.S.

511 (1985), asserting qualified immunity on the

Bivens claims to the extent that they were not time-

barred. Petitioner contended that, in view of deci-

sions such as Connelly v. Comptroller, 876 F.2d 1209

(5th Cir. 1989), and White v. OPM, 787 F.2d 660, 663

(D.C. Cir.), cert. denied, 479 U.S. 885 (1986), respon-

dent had no clearly established liberty interest in

pursuing work in his chosen profession, and that the

conspiracy claim thus must fail. Behrens 3/2/90 C.A.

Br. 42. Petitioner also asserted that his conduct in

sending a confidential letter declining to approve

respondent for the managing officer position did not

judicial creation of a Bivens remedy in this context. Pet. App.

14a, 19a-20a. The district court rejected that defense, the court

of appeals declined to exercise pendent appellate jurisdiction to

review it, id. at 19a-20a, and it is not relevant here.

8

violate any clearly established property or liberty

interest. Jd. at 39-40.'

On June 29, 1992, the court of appeals affirmed in

pertinent part. Pet. App. 10a-33a.° The court rejected

respondent’s contention that the court lacked juris-

diction to entertain an interlocutory appeal from an

order denying a motion to dismiss on qualified

immunity grounds. Jd. at 17a. The court observed

that a denial of qualified immunity is a final,

appealable order under Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541 (1949), “regardless of

whether that denial takes the form of a refusal to

grant a defendant’s motion to dismiss or a denial of

summary judgment.” Pet. App. 17a. Because

Mitchell v. Forsyth, 472 U.S. at 526, and Harlow v.

Fitzgerald, 457 U.S. 800, 817 (1982), require that

claims of qualified immunity be resolved at the

earliest possible stage of the proceedings, the court of

appeals concluded that “{a] requirement that official

defendants answer wholly meritless claims for relief

or adduce facts to refute entirely unsubstantiated

4 Petitioner noted that, although the statute of limitations

issue was not before the court of appeals, “there is Ninth

Circuit precedent casting some doubt on the limitations ruling

below.” Behrens 3/2/90 C.A. Br. 45 n.18 (citing cases).

5 The decision was delayed because, after the appeal was

submitted, the court of appeals noted that it was unclear from

the district court’s order whether the district court had ruled

on a separate question, also subject to interlocutory appeal,

regarding the propriety of the substitution of the United States

as defendant in the common-law tort claims. The court of

appeals thus initially vacated the submission and remanded to

allow the district court to enter an order in that regard. See

Br. in Opp. App. la-2a. The case was then resubmitted for

decision. Pet. App. 16a.

9

allegations would run counter to the Court’s express

direction.” Pet. App. 17a.

In the course of its opinion, the court of appeals, in

dictum, announced a one-appeal rule for qualified

immunity cases. Pet. App. 18a-19a. The court ob-

served that routine appeals from denials of qualified

immunity at both the motion to dismiss and motion

for summary judgment stages would impose on

Bivens plaintiffs considerable burdens of expense and

delay. Jd. at 18a. Thus, a defendant official

may not demand repeated appellate consideration

of a claim of qualified immunity that the district

court has repeatedly rejected. One such inter-

locutory appeal is all that a government official is

entitled to and all that we will entertain. We do

not think that a rule limiting defendants to one

bite at the apple will be “peculiarly disruptive of

effective government.”

Id, at 19a (quoting Harlow, 457 U.S. at 817). The

court observed that a defendant official accordingly

may appeal immediately from an order denying a

motion to dismiss on qualified immunity grounds only

“at his peril,” because, if he does so unsuccessfully,

he is barred from appealing any later order denying

qualified immunity. Pet. App. 19a.

On the merits of the qualified immunity defense,

the court of appeals concluded that, in view of the

district court’s statute of limitations ruling, “the

question whether [respondent] had a cognizable

liberty or property interest in the particular position

that he held at Pioneer is not before us.” Pet. App.

10

2la® The court thus addressed only whether

respondent had alleged a violation of a clearly

established right to be free from ongoing govern-

mental interference with his pursuit of his chosen

livelihood, and held that he had. Jd. at 2la-24a. The

court held that respondent’s allegations that several

senior-level jobs were offered him, only to be with-

drawn when the prospective employers learned of

petitioner’s May 8, 1986, letter and of respondent’s

termination from Pioneer, and that he had been

unable to secure other employment in the savings and

loan and financial institutions industries, were

“sufficient to support the claim that [petitioner]

violated [respondent’s] clearly established right to

pursue his chosen profession free from interference

by the government.” Jd. at 23a. On September 24,

1993, the panel denied rehearing.

5. On remand to the district court, the parties

agreed that the Bivens claim earlier dismissed as

time-barred could be revived. The parties conducted

substantial discovery on both claims. Petitioner then

moved for summary judgment on a variety of grounds,

including an argument that the revived Bivens claim

was based on unclear law and therefore barred by

qualified immunity. Behrens 3/18/94 D. Ct. Br. 12-15.

Petitioner noted that, although the court of appeals

had not reached the question on the first appeal, it had

signaled the unsettled nature of the law governing

the job-termination claim when it stated in dictum

6 The court noted, however, that the district court’s

imposition of a one-year limitations period “appears contrary to

the rule established by our holding in Marshall v. Kleppe, 637

F.2d 1217, 1223-1224 (9th Cir. 1980),” applying a longer statute

of limitations to Bivens claims. Pet. App. 15a n.6.

11

that it had “not yet had occasion to consider whether

a requirement of regulatory approval suffices to

negate entirely the constitutional protection to which

a privately employed individual would otherwise be

entitled.” Behrens 3/18/94 D. Ct. Br. 14; see Pet. App.

21a.

On September 7, 1994, the district court entered an

order ruling on a series of pending motions, including

the summary judgment motion. Pet. App. 2a-7a. The

court held that “[p]laintiff’s Bivens claims should be

reinstated as against defendant Behrens, since the

applicable statute of limitations is three, rather than

one, year,” id. at 3a, and that “[mJaterial issues of

fact remain as to defendant Behrens on the Bivens

claims,” id. at 5a. Once again, the district court did

not explicitly address the qualified immunity defense,

but effectively denied it by ordering that the

“[mjotion by defendant Behrens for summary

judgment is denied as to the Bivens claims.” Jd. at 6a.

On October 24, 1994, petitioner filed a notice of

appeal, stating his intention to challenge the one-

interlocutory appeal rule and to assert qualified

immunity. In response to an application by respon-

dent, the district court certified the second

interlocutory appeal as frivolous “{iJn light of the ‘one

appeal’ rule.” Pet. App. 9a. Respondent moved to

dismiss the appeal for want of appellate jurisdiction,

and the court of appeals granted the motion based on

the one-appeal rule. Jd. at la (citing Nelson v.

Silverman, 999 F.2d 417 (9th Cir. 1993) (applying one-

appeal rule to bar second interlocutory qualified

immunity appeal)).

12

SUMMARY OF ARGUMENT

1. But for the one-interlocutory-appeal rule, the

court of appeals would have had jurisdiction over the

second appeal in this case notwithstanding that the

district court’s order denying petitioner’s motion for

summary judgment asserting qualified immunity

stated that “material issues of fact remain.” This

Court thus need not remand for reconsideration in

light of Johnson v. Jones, 115 S. Ct. 2151 (1995). Peti-

tioner sought in his second appeal to assert precisely

the kind of “purely legal” qualified immunity defense

that Johnson held is properly appealable. The district

court’s order thus mischaracterized the issue as one

turning on disputed facts. That mischaracterization

is clear from the record, and should not be permitted

to defeat an otherwise valid appeal.

2. This Court should reject the court of appeals’

categorical one-interlocutory-appeal rule. There is a

small class of cases—including this one—in which a

second appeal would address a qualified immunity

defense that is legally distinct from the defense

raised in the first appeal, and that could not have been

raised in that appeal. The courts of appeals have

jurisdiction over second appeals in such circum-

stances, and the Ninth Circuit’s one-appeal rule

barring such appeals thus conflicts with Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546

(1949), Mitchell v. Forsyth, 472 U.S. 511 (1985), and

Johnson v. Jones, supra. Although no more than one

appeal is and should be the norm in qualified

immunity cases, this case illustrates why the court of

appeals’ rule is too rigid and should be rejected.

The practical need for a one-appeal rule is also

questionable. The circuits that have adopted such

13

rules have done so based on a judgment that multiple

appeals impose burdens of expense and delay on civil

rights plaintiffs that outweigh the benefits to public

officials seeking to enforce their qualified immunity

defenses under Mitchell v. Forsyth, supra. Yet, in

practice, very few qualified immunity cases actually

involve second appeals, and even fewer second appeals

can be expected after this Court’s recent decision in

Johnson v. Jones, supra. More flexible, case-specific

techniques of docket management are available and

adequate to ensure that unwarranted second appeals

are quickly identified and disposed of, while

meritorious second appeals are allowed to proceed.

ARGUMENT

L PETITIONER’S SECOND APPEAL RAISED

A PURELY LEGAL QUALIFIED IMMUNITY

QUESTION APPROPRIATE FOR INTER-

LOCUTORY REVIEW UNDER JOHNSON V.

JONES

The court of appeals had jurisdiction over the

second interlocutory appeal in this case, and only the

one-appeal rule prevented the court from exercising

it. The question on which petitioner sought to appeal

was precisely the type of qualified immunity issue

that this Court has held is subject to interlocutory

appellate review: whether “certain given facts

showed a violation of ‘clearly established’ law.”

Johnson v. Jones, 115 S. Ct. 2151, 2155 (citing

Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)). Speci-

fically, petitioner’s second appeal would have ad-

dressed respondent’s claims that he had a consti-

tutionally protected property interest in his

employment as managing officer of Pioneer Savings

14

& Loan, and that petitioner deprived him of that

interest without procedural due process by sending

the May 8, 1986, letter declining to approve respon-

dent for that position. The “given facts” upon which

the qualified immunity defense to that claim rests are

that, under federal regulations generally governing

new savings institutions as well as a Federal Home

Loan Bank Board resolution directed specifically at

Pioneer, respondent had no right to serve as man-

aging officer of Pioneer without regulatory approval.

Petitioner asserted in the district court, and

sought to pursue on appeal, the purely legal qualified

immunity defense that the law is, at best, unclear as

to whether an employee can have a property right in a

job that, by law, is conditioned on regulatory approval.

A property interest cannot arise from “a mere

subjective ‘expectancy,’” but requires a “legitimate

claim of entitlement to continued employment absent

‘sufficient cause.’” Perry v. Sindermann, 408 U.S.

593, 602-603 (1972). Petitioner sought to contend that,

in a context such as this one, wheré employment in a

particular position is expressly conditioned from the

outset on regulatory approval, no “claim of entitle-

ment” to the job, and thus no clearly established

procedural due process right, exists. Whether peti-

tioner is correct as to that pure question of law is an

issue over which, in the absence of a one-appeal rule,

the court of appeals had interlocutory appellate

jurisdiction.’

" The factual disputes that respondent identified below are

not material to whether petitioner is entitled to qualified

immunity. For example, respondent alleged in his declaration

in district court:

15

The wording of the district court’s order might,

however, be viewed as an independent obstacle to

interlocutory appellate review in light of Johnson v.

Jones, supra. The district court denied the motion

for summary judgment, in which petitioner raised his

qualified immunity defense, by stating, without

further explanation, that “[mJaterial issues of fact

remain as to defendant Behrens on the Bivens

claims.” Pet. App. 5a. The order appears on its face

to “resolve[] a fact-related dispute about the pretrial

record, namely whether or not the evidence in the

pretrial record was sufficient to show a genuine issue

of fact for trial.” Johnson, 115 S. Ct. at 2153.

Johnson held that “defendants cannot immediately

appeal this kind of fact-related district court

determination.” /bid. Among the defenses petitioner

has raised in this case, however, is a qualified

immunity defense that does not turn on the resolution

of any factual disputes. Indeed, respondent himself

asserted in his brief in opposition to the petition for

certiorari that, in this case, “the facts are not in

dispute.” Resp. Br. 13.

I was told in April 1986, one month before the ‘Behrens

Directive,’ that the federal regulators were not pursuing

me and that they would not jeopardize my employment

until the Beverly Hills Savings investigation had been

completed and I had been found liable for some

wrongdoing. I was told this by both Ralph Christie and

Ann Sobel, senior attorneys for the Bank Board.

Pelletier Decl. (6/12/89) at 3 (¢ 7). Petitioner is entitled on

appeal to argue that, even assuming that a jury would credit

that allegation, the law was at best unclear whether, under

those circumstances, respondent could have a property right in

the managing officer position. That argument is a purely legal

one, not contingent on resolution of any disputed issues of fact.

16

In the presence of a district court order rejecting

petitioner’s qualified immunity defense with a one-

sentence reference to “[mlaterial issues of fact,” peti-

tioner’s effort to pursue on appeal a purely legal

qualified immunity defense presents a problem

closely related to one the Johnson Court addressed.

The Court there noted the possibility that “[d]istrict

judges may simply deny summary judgment motions

without indicating their reasons for doing so,” thus

leaving unspecified what set of facts should be taken

as true in answering the purely legal question about

clearly established law. 115 S.Ct. at 2159. In that

situation, the Court acknowledged, “a court of appeals

may have to undertake a cumbersome review of the

record to determine what facts the district court, in

the light most favorable to the non-moving party,

likely assumed.” Jbid. The Court thus sought to

ensure that terse district court orders not insulate

otherwise-appealable qualified immunity questions

from interlocutory review. This case gives the Court

the opportunity to ensure that'a district court

decision not lead to the same result by stating as a

summary conclusion, without justification in the

record, that “material issues of fact remain”

precluding a decision regarding qualified immunity.

Although the court of appeals did not have an

opportunity to address the potential applicability of

Johnson here, that court is in no better position than

is this Court to do so now. Because this case properly

would have been in the court of appeals but for the

one-appeal rule, this Court should review the decision

to adopt that rule.

17

Il. THE ONE-INTERLOCUTORY-APPEAL

RULE SHOULD BE REJECTED

A. The one-appeal rule is contrary to

Cohen v. Beneficial Indus. Loan

Corp. and Mitchell v. Forsyth

A categorical one-appeal rule is inconsistent with

the final-order doctrine of Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541 (1949), as it applies to quali-

fied immunity claims under Mitchell and Johnson. A

court of appeals that has jurisdiction under 28 U.S.C.

1291, as Cohen interpreted that statute, lacks the

authority to fashion a rule that contracts its own

jurisdiction. Because the one-appeal rule contracts

that jurisdiction in some situations, it is invalid.

A trial-court order is appealable under the Cohen

test if it “[1] conclusively determine[s] the disputed

question, [2] resolve(s] an important issue completely

separate from the merits of the action, and [3] [is]

effectively unreviewable on appeal from a final judg-

ment.” Johnson, 115 S. Ct. at 2155 (quoting Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 113 S. Ct. 684, 688 (1998), quoting Coopers &

Lybrand v. Livesay, 4837 U.S. 463, 468 (1978)). See

Cohen, 337 U.S. at 546. Mitchell held that the three

parts of the Cohen test are satisfied by interlocutory

orders denying qualifieu immunity defenses. 472 U.S.

at 525-528.

Qualified immunity orders “easily meet[]” the first

part, because such immunity not only protects

defendant officials from liability for damages, but is

also an “immunity from suit.” Jd. at 526-527. When

there is “nothing in the subsequent course of the

proceeding in the district court that can alter the

court’s conclusion that the defendant is not immune,”

18

denial of qualified immunity “finally and conclusively

determines the defendant’s claim of right not to stand

trial on the plaintiff's allegations.” bid. An order

denying qualified immunity also meets the second

part of Cohen: “(A] claim of immunity is conceptually

distinct from the merits of the plaintiff's claim,” ibid.,

because it addresses “the purely legal issue what law

was ‘clearly established,” that “can be decided with

reference only to undisputed facts and in isolation

from the remaining issues of the case.” Johnson, 115

S. Ct at 2156 (quoting Mitchell, 472 U.S. at 530).

Finally, a denial of qualified immunity is “effectively

unreviewable” after final judgment because, to the

extent that the immunity protects a right not to

stand trial, that right is irrevocably lost once trial

takes place. Mitchell, 472 U.S. at 525-526.

The court of appeals viewed its one-appeal rule as

consistent with Mitchell because “(i]f the defendant’s

entitlement to qualified immunity is truly

ascertainable as a matter of law * * * that fact

should not require more than one judiciously timed

appeal,” and because a defendant official “may not

demand repeated appellate consideration of a claim of

qualified immunity that the district court has

repeatedly rejected.” Pet. App. 19a. That reasoning,

however, does not support application of a one-appeal

rule in this case. Instead, it reflects the court of

appeals’ erroneous assumption that a qualified

immunity defense to the job-termination claim that

was the subject of petitioner’s 1994 appeal would

present the same legal question raised by the

qualified immunity defense to the post-termination

conspiracy claim. If a second appeal is sought on the

same theory that a court of appeals has already

rejected in an earlier appeal, that could indeed

19

warrant dismissal of the second appeal as frivolous

under the doctrine of law in this case. But the risk of

such abuse of the appellate process does not justify

the adoption of a categorical one-appeal rule to bar a

valid and legally distinct second appeal.

The First Circuit in Kaiter v. Town of Boxford,

836 F.2d 704 (1988), also sought to derive support for

its announcement of a one-appeal rule from Mitchell

and Cohen.* Kaiter held that the first part of Cohen,

requiring a conclusive determination, is not met

where steps remain to be taken “in the subsequent

course of the proceedings [in the district court] that

can alter the court’s conclusion that the defendant is

not immune.” /d. at 707. Kaiter involved retaliation

claims against a local building inspector who appealed

from an order denying him absolute immunity, but

who told the court of appeals that, if his appeal failed,

he would assert qualified immunity in a subsequent

motion for summary judgment. /d. at 705-706. The

court of appeals held that defendant’s decision

“reserving for a later pretrial proceeding his claim to

qualified immunity” was “fatal to his current appeal.”

Id. at 706. The court viewed absolute and qualified im-

munity as two aspects of a single doctrine aimed at

shielding public officials from interference with their

duties, and concluded that one pretrial appeal—but

only one—is needed to make that shield effective. Jd.

at 707. A defendant official may bring all his im-

munity defenses in a motion to dismiss and appeal

8 The Seventh Circuit in Abel, 904 F.2d at 396, implicitly

acknowledged that its one-appeal rule might be contrary to

Mitchell, and instead relied primarily on the burden that

appeals “on the authority of Mitchell” would impose on

plaintiffs. See page 23, infra.

20

immediately if that motion is denied, but if separate

motions to dismiss and for summary judgment are

planned, “both motions should be resolved prior to any

interlocutory appeal,” because the court “will not

entertain an interlocutory appeal on one of the claims

while the other is reserved for later pretrial

proceedings.” Jd. at 708.

Kaiter’s justification of the one-appeal rule under

Cohen and Mitchell fails to take account of special

circumstances, not present in Kaiter, that are

present in this case. This case involves two separate

claims based on different legal theories. Those

different legal theories call for separate and different

immunity defenses, only one of which could be

adjudicated in the initial, 1990 interlocutory appeal

because, at that time, the other claim had been

dismissed as time-barred. In addition, in this case,

unlike Kaiter, the fact that petitioner would have

reason to assert a second immunity defense in later

proceedings in the district court (and on appeal) was

not evident when he took his first appeal. The need

for a second appeal to address whéther that separate

claim was based on clearly established law became

apparent only after the timeliness of that claim was

reconsidered in 1994 and the claim was revived by the

district court. In sum, Kaiter’s finality analysis,

although perhaps applicable to the facts of that case,

would not have justified applying a one-appeal rule to

postpone and consolidate the first appeal in this case

with the second one, because no further immunity

proceedings in the district court were anticipated

with respect to either claim at the time of that first

appeal. And the second appeal in this case was proper

under Cohen and Mitchell because it dealt with a

conclusive determination of a qualified immunity

21

question that could not have been decided in the first

appeal.

Circumstances like these, although rare, are not

sui generis. Rather, this case is illustrative of the

narrow class of cases in which second interlocutory

appeals are warranted and should be permitted. In

addition to the circumstances presented in this case,

a second appeal may be needed—and be available

consistent with Cohen—when, under liberal pleading

and amendment rules, plaintiffs shift legal theories

substantially during litigation, thus making different

qualified immunity defenses appropriate.

For example, suppose that a prisoner alleges that

she was subjected to retaliatory discipline in violation

of the First Amendment. The defendant warden then

moves to dismiss on the ground that the plaintiff

admitted in her complaint that she violated prison

rules and, the warden asserts, the law is unclear as to

whether a retaliation claim will lie where the

violation triggering the allegedly retaliatory

discipline actually did take place. Assume that the

district court might deny such a qualified immunity

motion, and that the court of appeals affirms. The

case then proceeds to discovery. If discovery were to

reveal no evidentiary basis for the retaliation claim,

but did support a claim that the discipline was

imposed without prior notice and a hearing, the

prisoner might recast her claim as a due process

violation. If the law sadiliee that revised claim

were to be unclear, there is no principle consistent

with the Cohen/Mitchell analysis on which the

defendant warden should be denied an opportunity to

raise a qualified immunity defense and, if necessary,

to appeal its denial before trial. Like the case now

before the court, this example involves (1) two

22

separate and distinct legal claims of qualified

immunity, and (2) circumstances in which the

defendant would not anticipate, at the time of the first

appeal, that a second appeal would be needed. Where

those factors are present, two appeals are warranted

under Cohen. A categorical one-appeal rule therefore

should be rejected.’

B. A practical need for a one-appeal rule

has not been demonstrated

1. Defendant officials rarely take multiple

appeals. The principal rationale for a one-appeal rule

is that multiple interlocutory appeals would add

®* A one-appeal rule may also be inappropriate in cases

involving an immunity defense (absolute or qualified) that is

susceptible of disposition on the pleadings alone, coupled with a

potential qualified-immunity defense (to the same or a separate

claim) the viability of which is contingent on the results of

discovery. Denial of a motion to dismiss based on absolute

immunity is immediately appealable under Nixon v.

Fitzgerald, 457 U.S. 731 (1982), just as denial of such a motion

based on qualified inmmunity is immediately appealable under

Mitchell, and such appeals should be promptly taken consistent

with the principle that immunity questions generally “should

be resolved at the earliest possible stage of a litigation.”

Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). A second

immunity defense, however, may not be “ripe” until some

discovery is had. IJbid. (“discovery may be necessary before

Anderson’s motion for summary judgment on qualified

immunity grounds can be resolved”). Application of a one-

appeal rule in such a situation could require that appeal on the

first immunity issue be delayed until discovery is complete.

Yet, if an immediate pre-discovery appeal could obviate the

need for further litigation on at least one claim (or perhaps the

whole case), a requirement that the defendant official wait

because of the uncertain prospect that a second appeal might be

needed would weaken the very immunity protection that

Harlow and Mitchell sought to provide.

23

substantially to the delay and expense of litigating

civil rights claims. See Pet. App. 18a. The Ninth

Circuit in Nelson v. Silverman, 999 F.2d 417, 419

(1993), explained that “[iJt was precisely to shield

plaintiffs from repeatedly having to shoulder [the

burdens of appellate litigation] that we concluded in

Pelletier that a defendant may bring only one pre-

trial appeal of the denial of a grant of qualified

immunity.” The Seventh Circuit in Abel v. Miller,

904 F.2d 394, 396 (1990), similarly cautioned:

Unless courts of appeals are careful, eppeals on

the authority of Mitchell could ossify civil rights

litigation. Defendants may defeat just claims by

making suit unbearably expensive or indefinitely

putting off the trial. A sequence of pre-trial

appeals not only delays the resolution but

increases the plaintiffs’ costs, so that some will

abandon their cases even though they may be

entitled to prevail.

See also Kaiter, 836 F.2d at 707 (“there is no need to

burden the appellate system and prolong the pretrial

process with multiple interlocutory appeals”).”

particular case that a defendant official has done so, the court

may, after giving notice and an opportunity to respond, impose

sanctions under Federal Rule of Appellate Procedure 38. Such

targeted sanctions, rather than wholesale elimination of the

opportunity for valid as well as baseless second appeals, is the

24

Multiple qualified immunity appeals are not, in

practice, common, however, and they are likely to

become even less frequent in light of Johnson v.

Jones, supra. The circuits that have adopted one-

appeal rules have themselves acknowledged that there

are very few cases in which defendant officials have

actually used opportunities to take repeated appeals.

See Abel, 904 F.2d at 396 (“Paucity of precedent on

this question [of the permissibility of second appeals]

must reflect the forbearance of public officials rather

than the lack of opportunity.”); Kaiter, 836 F.2d at 706

(“(IJn every case we have found which permitted

interlocutory review of an immunity ruling, the

defendant’s entire claim to immunity was raised in a

single proceeding”). Indeed, none of the cases cited in

the petition as allowing multiple appeals in fact

involved more than one appeal. See Pet. 8."

appropriate response to abuses. See DeVargas v. Mason &

Hanger-Silas Mason Co., 844 F.2d 714, 720 (10th Cir. 1988)

(“That some interlocutory appeals may be frivolous * * *

does not affect whether we have jurisdiction. Those appellants

or their counsel can be sanctioned for taking a frivolous

appeal.”).

"' Kulwicki v. Dawson, 969 F.2d 1454, 1457 n.2, 1460 n.5 (3d

Cir. 1992), involved neither qualified immunity nor any issue of

repeated appeals, but a routine exercise of jurisdiction over an

absolute immunity appeal, with the court observing that

Mitchell contemplated immunity appeals at “either or both”

the motion to dismiss or motion for summary judgment stage.

Murphy v. Morris, 849 F.2d 1101, 1103-1104 (8th Cir. 1988),

rejected the contention that a one-appeal rule required the

defendant official to delay an initial appeal asserting absolute

immunity until her qualified immunity defense was also

rejected and ripe for appeal. Kennedy v. City of Cleveland, 797

F.2d 297, 299-300 (6th Cir. 1986), affirmed a district court’s

denial of supplemental motions for summary judgment

25

Not only have there been very few reported cases

involving multiple appeals, but this Court’s decision

last Term in Johnson promises to restrict further

the class of cases in which a second appeal is poten-

tially available. Several circuits before Johnson per-

mitted appeals to assert “evidence insufficiency”

claims, see 115 S. Ct. at 2154 (citing cases), and those

claims were natural candidates for second appeals

following courts of appeals’ initial rejections of quali-

fied immunity defenses at the motion to dismiss

stage. In eliminating the opportunity for appeals

asserting evidentiary insufficiency, Johnson substan-

tially diminished the bases for concern about both

routine second appeals and multiple, fact-oriented

asserting qualified immunity on the ground that the issues they

raised had already been considered. In its discussion of the

importance of the courts’ managerial powers over qualified

immunity cases, the court observed that civil rights actions

“may be interrupted by not one but two interlocutory appeals”

asserting qualified immunity. English v. Dyke, 23 F.3d 1086

(6th Cir. 1994), reversed an order holding that failure to raise a

qualified immunity defense in a motion to dismiss waived it,

and reiterated Kennedy's statement that a qualified immunity

defense can be raised (and, if denied, appealed) at various

stages of litigation. Sinclair v. Schriber, 834 F.2d 103 (6th Cir.

1987), held that denial of a motion for summary judgment on

qualified immunity grounds without prejudice under Federal

Rule of Civil Procedure 56(f) is not appealable, notwith-

standing Kennedy's apparent tolerance of repeated appeals,

because such an order lacks the requisite finality under Cohen.

Moreover, two of the four cases (see Pet. 8) imposing a one-

appeal limitation (this case and Kaiter) did so before any second

appeal was filed, and another case did not involve a full-fledged

initial appeal, but only a notice of appeal that the official

withdrew. Only Abel actually reached the stage of a second

appeal on a qualified immunity question.

26

appeals.” After Johnson, very few cases remain

plausible candidates for a second interlocutory appeal.

2. Other procedures better serve the same

purpose. The federal courts have sufficient tools at

their disposal, without a one-appeal rule, to manage

the potential burdens created by unjustified multiple

interlocutory qualified immunity appeals. Appellees

who believe that a second appeal is unwarranted—for

example, because it is barred by the law of the case as

announced in an earlier appeal, or because it is a fact-

bound appeal barred by Johnson—may move to

dismiss an appeal before briefing on the merits is had.

See Fed. R. App. P. 27. The filing and disposition of

such a motion will generally occur sooner and impose

less burden on the litigants and the courts than full

briefing and decision on the merits. Alternatively,

the appellate courts might use their rulemaking

powers, see Fed. R. App. P. 47, to require that

appellants seeking to take second appeals first move

for leave to do so. Although no court of appeals to our

knowledge has yet adopted such a' procedure, such a

rule might encourage greater reflection and restraint

on the part of the potential appellant, and would

ensure that the court of appeals has an early

opportunity to consider whether the issue sought to

2 Counsel for petitioner in Johnson conceded that

“theoretically it would be possible in every case” for a public

official to appeal the denial of a motion for summary judgment

on grounds of “evidentiary sufficiency.” Oral Arg. Tr. 7-8.

And one concern prompting the one-appeal rule was that a

defendant official “could continue indefinitely” in a process of

adducing additional evidence, moving repeatedly for summary

judgment on an enlarged record, and appealing each denial.

Abel, 904 F.2d at 396.

27

be raised actually falls within the narrow class of

permissible second appeals.

Existing rules in several circuits authorize

district courts to certify to the court of appeals that a

qualified immunity appeal is frivolous. See, e.g.,

Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989)

(Easterbrook, J.) (district court may certify in

writing that immunity appeal is frivolous); Yates v.

City of Cleveland, 941 F.2d 444, 448-449 (6th Cir.

1991) (accord); Stewart v. Donges, 915 F.2d 572, 576-

577 (10th Cir. 1990) (accord); Chuman v. Wright, 960

F.2d 104-105 (9th Cir. 1992) (accord). That procedure

(which was used in this case) minimizes disruption at

the trial level by allowing the district court to retain

jurisdiction and to require the parties to continue

with the district court proceedings while the appeal is

pending. It also may facilitate summary dispositions

of baseless appeals by communicating to the court of

appeals the strength of the district court’s conviction

that its order was correct or not appealable. And, as

this Court has pointed out, frivolous interlocutory

appeals “may be weeded out by summary procedures.”

Richardson v. United States, 468 U.S. 317, 322 (1984).

In order to ameliorate potentially prejudicial delays

caused by multiple appeals, courts can also expedite

them, so that obvious district court errors can

promptly be corrected by summary reversal.

CONCLUSION

The judgment of the court of appeals should

be reversed and the case remanded for further

consideration of the merits of petitioner’s qualified

immunity defense.

Respectfully submitted.

DREw S. Days, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

PAUL BENDER

Deputy Solicitor General

CORNELIA T.L. PILLARD

Assistant to the Solicitor General

BARBARA L. HERWIG

RICHARD A. OLDERMAN

Attorneys

JULY 1995