Weise v. Casper

• Decision Date: 20 November 2007
• Docket Number: No. 06-1504.,No. 06-1516.,06-1504.,06-1516.
• Citation: 507 F.3d 1260
• Parties: Leslie WEISE; Alex Young, Plaintiffs-Appellees, v. Michael CASPER, in his individual capacity, Defendant-Appellant, and Jay Bob Klinkerman, in his individual capacity; John/Jane Does 1-5, all in their individual capacities, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

507 F.3d 1260

Leslie WEISE; Alex Young, Plaintiffs-Appellees, v. Michael CASPER, in his individual capacity, Defendant-Appellant, and Jay Bob Klinkerman, in his individual capacity; John/Jane Does 1-5, all in their individual capacities, Defendants.

No. 06-1504.

No. 06-1516.

United States Court of Appeals, Tenth Circuit.

November 20, 2007.

Sean R. Gallagher (and Dugan Bliss, Hogan & Hartson, L.L.P. (for Defendant-Appellant Michael Casper) and Brett R. Lilly and John S. Zakhem, Doyle, Zakhem, Suhre & Lilly, L.L.C., (for Defendant-Appellant Jay Bob Klinkerman), with him on the briefs), Denver, CO.

Christopher A. Hansen (and Catherine Crump, American Civil Liberties Union, New York, NY, Martha M. Tierney and Jerremy M. Ramp, Kelly, Haglund, Garnsey, Kahn, L.L.C., Denver, CO, and Mark Silverstein, American Civil Liberties Union of Colorado, Denver, CO, on the brief), for Plaintiffs-Appellees.

Before KELLY, ANDERSON, and McCONNELL, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendants-Appellants Michael Casper and Jay Bob Klinkerman (collectively "Defendants") appeal the district court's denial, without prejudice, of their Fed.R.Civ.P. 12(b)(6) motions to dismiss based on qualified immunity. As the district court ruled only that the evidentiary record was insufficient to rule on the merits of Defendants' motions, we grant Plaintiffs-Appellees' motion to dismiss this appeal for lack of appellate jurisdiction.

Background

Plaintiffs-Appellees Leslie Weise and Alex Young (collectively "Plaintiffs") brought an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that Defendants and five others, acting under color of law and pursuant to White House policy, violated their First and Fourth Amendment rights by ejecting them from a public appearance by President George W. Bush. Plaintiffs contend that they were ejected because a bumper sticker on their car expressed a viewpoint contrary to that of the President's.

According to the complaint, on March 21, 2005, the President delivered a speech on Social Security at the Wings Over the Rockies Air and Space Museum, in Denver, Colorado. See Complaint ¶ 9.¹ The White House set the policies and procedures as to who could attend the President's speech, and tickets were made available to the public. See id. at ¶¶ 10-12. The White House also solicited the assistance of staff and volunteers, including Defendants, to carry out its attendance policies at the event. See id. at ¶¶ 11-12; Aplt. Br. at 4.

Plaintiffs obtained tickets to the event and arrived at the event in a vehicle, owned and driven by Plaintiff Weise, which had a bumper sticker that read "No More Blood For Oil." See id. at ¶¶ 13, 15-16. After parking, Plaintiffs approached security. See id. at ¶¶ 17, 19. While Plaintiff Young was permitted to enter, Plaintiff Weise was directed to wait with Defendant Klinkerman, who identified himself as a "volunteer" from Colorado, and told Plaintiff Weise that the Secret Service wanted to speak with her. See id. at ¶¶ 19, 21. Soon thereafter, Defendant Casper, who wore a dark blue suit, earpiece and lapel pin approached and Defendant Klinkerman said, "that's him" or "here he comes." Id. at ¶ 22. Defendant Casper told Plaintiff Weise that "she had been `ID'd', and that if she had any ill intentions" or "tried any `funny stuff' [she] would be arrested, but that he was going to let [her] in." Id. at ¶ 23.

Shortly thereafter, Defendant Casper consulted with one or more of the unnamed defendants and was advised that one or more of them had, at the direction of a White House official, set a policy prohibiting anyone from attending the event if they held a viewpoint contrary to that held by the President. See id. at ¶ 25. A few minutes later, Defendant Casper approached Plaintiffs, who had reached their seats, and directed them to leave the event. See id. at ¶ 27. Plaintiffs were escorted out of the event and not allowed to reenter. See id. at ¶¶ 27-30. After the event, Secret Service confirmed that Plaintiffs were ejected because of the bumper sticker on their vehicle. See id. at ¶ 32. Plaintiffs claim they had no intention of disrupting the event, but if given the opportunity, one of them would have asked the President a question. See id. at ¶ 18.

Plaintiffs brought a Bivens action against Defendants in their individual capacities, alleging that Defendants acted under "color of federal law" and that "[a]t all times, the policies concerning attendance at the event were set by federal officials acting as federal officials, including some of the Doe defendants," and that "Defendants Klinkerman and Casper ejected the plaintiffs at the direction of and pursuant to policies of those federal officials." Id. at ¶¶ 33, 36. Plaintiffs further allege that Defendants "conspired" with and "acted in concert with the Doe defendants who directed the ejection and who established the policies that were being enforced by the ejection." Id. at ¶ 34.

Each Defendant filed a motion to dismiss the action on qualified immunity grounds. See Aplt. Br. at 2-3. In addition, both sought a protective order prohibiting all discovery until the issue of qualified immunity was resolved. See Motion to Dismiss for Lack of Appellate Jurisdiction of Plaintiffs-Appellees Leslie Wiese and Alex Young, Nov. 30, 2006, at 3. In response, Plaintiffs requested discovery on the issue of whether Defendants were entitled to qualified immunity as private parties alleged to have been acting under color of law. See id. The magistrate granted Defendants' motions for a protective order and stayed all discovery until the pending motions to dismiss based on qualified immunity were decided. See id.

The district court denied Defendants' motions to dismiss, without prejudice. See Weise v. Casper, No. 05-02355, 2006 WL 3093133, at *4 (D.Colo. October, 30, 2006). Although the district court found that Plaintiffs sufficiently alleged federal action to support their Bivens claim, it was unclear to the district court whether Defendants could assert a qualified immunity defense. Relying on Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997), the district court explained that because Defendants were private parties, they were entitled to assert a qualified immunity defense only if they were acting as federal officials or as private parties at the direction and close supervision of federal officials. See Weise, 2006 WL 3093133, at *4 (citing Richardson, 521 U.S. at 413, 117 S.Ct. 2100; Rosewood v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167 (10th Cir.2005)). The district court noted that Plaintiffs requested discovery on this "threshold issue," that Defendants did not address it in their moving papers, and thus the district court found the record to be insufficient for it to rule on the merits of the motions. See id. at *2-*4. Accordingly, the district court ordered that Plaintiffs would be allowed limited discovery on the issue of "Defendants' status at the time of the conduct at issue, whether Defendants were `closely supervised' by government officials, and whether Defendants are entitled to assert [a] qualified immunity [defense]...." Id. at *4.² This appeal followed.

Discussion

Under the Supreme Court's collateral order doctrine, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable `final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Accordingly, the Supreme Court has limited appeals of interlocutory decisions denying the defense of qualified immunity "to cases presenting neat abstract issues of law." Johnson v. Jones, 515 U.S. 304, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (internal quotation omitted); see also Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). In contrast, pretrial determinations of evidentiary sufficiency in qualified immunity cases are not immediately appealable. See Behrens, 516 U.S. at 313, 116 S.Ct. 834; Jones, 515 U.S. at 314-18, 115 S.Ct. 2151. The Supreme Court has provided two rationales to support this distinction. First, evidentiary sufficiency determinations are not separable from a plaintiff's claim and thus do not constitute final decisions under Cohen and Mitchell. See Behrens, 516 U.S. at 313, 116 S.Ct. 834; Jones, 515 U.S. at 314-15, 115 S.Ct. 2151. Second, "considerations of delay, comparative expertise of trial and appellate courts, and wise use of appellate resources argue in favor of limiting interlocutory appeals of `qualified immunity' matters to cases presenting more abstract issues of law." Jones, 515 U.S. at 317, 115 S.Ct. 2151. These principles apply to interlocutory appeals at either the dismissal or summary judgment stage of a litigation. See Behrens, 516 U.S. at 306-07, 116 S.Ct. 834.

Notwithstanding these principles, Defendants argue that we have appellate jurisdiction over their appeal. We disagree. First, they argue that there can be no factual dispute on a Fed.R.Civ.P. 12(b)(6) motion to dismiss and that the complaint on its face establishes they are entitled to assert qualified immunity. See Defendant-Appellant's Response to Motion to Dismiss for Lack of Appellate Jurisdiction of Plaintiff-Appellees Leslie Weise and Alex Young, Dec. 15, 2006 ("Defendants-Appellants' Response"), at 2-6; Aplt. Br. at 9-12; Reply Br. at 2-4. However, it is well-established that denials of qualified immunity based on a motion to dismiss are only immediately appealable to the extent they turn on issues of law. See Prager v. LaFaver, 180 F.3d 1185, 1190 (10th Cir.1999). If a district court cannot rule on the merits of a qualified immunity...