516 U.S. 299 (1996), 94-1244, Behrens v. Pelletier

Docket NºCase No. 94-1244
Citation516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773, 64 U.S.L.W. 4081
Case DateFebruary 21, 1996
CourtUnited States Supreme Court

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516 U.S. 299 (1996)

116 S.Ct. 834, 133 L.Ed.2d 773, 64 U.S.L.W. 4081




Case No. 94-1244

United States Supreme Court

February 21, 1996

Argued November 7, 1995



Respondent was fired as provisional managing officer of Pioneer Savings and Loan Association after petitioner, the federal official responsible for monitoring Pioneer's operations, recommended such action because respondent was under investigation for potential misconduct relating to the collapse of another financial institution. Respondent filed this suit, seeking, inter alia, damages for alleged constitutional wrongs under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388. In partially denying petitioner's motion to dismiss the Bivens claims, the District Court rejected petitioner's asserted defense of qualified immunity from suit. On appeal, the Ninth Circuit held that denial of qualified immunity is an immediately appealable "final" decision under 28 U.S.C. § 1291 and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, but also stated, in dictum, that an official claiming qualified immunity is entitled to only one such pretrial appeal. Ultimately, the court affirmed the District Court's rejection of petitioner's qualified-immunity defense, based on the allegations made in respondent's complaint. On remand and after further proceedings, the District Court denied petitioner's motion for summary judgment, which again claimed qualified immunity. Petitioner's appeal from that denial, his second pretrial appeal based on a rejection of the qualified-immunity defense, was summarily dismissed by the Ninth Circuit "for lack of jurisdiction."


A defendant's immediate appeal of an unfavorable qualified-immunity ruling on a motion to dismiss does not deprive the court of appeals of jurisdiction over a second appeal, also based on qualified immunity, immediately following denial of summary judgment. Pp. 305-314.

(a) The Ninth Circuit's one-interlocutory-appeal rule is rejected. In Mitchell v. Forsyth, 472 U.S. 511, 530, this Court held that a district court's denial of qualified immunity is an immediately appealable "final decision" within the meaning of 28 U.S.C. § 1291. Mitchell plainly contemplated that a government officer could raise the qualified-immunity defense at both the motion-to-dismiss and the summary-judgment stage, see 472 U.S., at 526, and clearly establishes that an order rejecting the defense at either stage is a "final" judgment subject to immediate appeal. An unsuccessful appeal from denial of a motion to dismiss cannot possibly render the later denial of a motion for summary judgment any

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less "final" than it would be absent the prior decision. It follows that petitioner's appeal seeks review of a "final decision" with in § 1291 and that its dismissal by the Court of Appeals was improper. The Ninth Circuit's proposition that no more than one judiciously timed appeal should be necessary to safeguard a defendant's right to qualified immunity is unsound, because the factors determinative of the qualified immunity question will be different on summary judgment, where the court looks to the uncontested evidence, than on an earlier motion to dismiss, where it merely looks to the allegations of the complaint. Pp. 305-311.

(b) Respondent's additional arguments as to why dismissal was proper—(1) that the order denying qualified immunity could not be said to be "final" under Cohen since, even if it were to be reversed, petitioner would nonetheless be required to endure discovery and trial on other matters, and (2) that, under Johnson v. Jones, 515 U.S. 304, the denial of summary judgment is not immediately appealable because it rests on the determination that a genuine dispute exists as to material issues of fact—are also rejected. Pp. 311-313.

Reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 314.

Lenard G. Weiss argued the cause for petitioner. With him on the briefs was Christine A. Murphy.

Cornelia T. L. Pillard argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Barbara L. Herwig, and Richard A. Olderman.

Samuel T. Rees, by appointment of the Court, 515 U.S. 1101, argued the cause for respondent. With him on the brief was Michael J. White. [*]

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Justice Scalia delivered the opinion of the Court.

In Mitchell v. Forsyth, 472 U.S. 511 (1985), we held that a district court's rejection of a defendant's qualified-immunity defense is a "final decision" subject to immediate appeal under the general appellate jurisdiction statute, 28 U.S.C. § 1291. The question presented in this case is whether a defendant's immediate appeal of an unfavorable qualified-immunity ruling on his motion to dismiss deprives the court of appeals of jurisdiction over a second appeal, also based on qualified immunity, immediately following denial of summary judgment.


In 1983, South Coast Savings and Loan Association, a new institution, applied to the Federal Home Loan Bank Board (FHLBB or Board) for the approval necessary to obtain account insurance from the Federal Savings and Loan Insurance Corporation (FSLIC).[1] Under FHLBB regulations, approval of new institutions was to be withheld if their "financial policies or management" were found to be "unsafe" for any of various reasons, including "character of the management." 12 CFR § 571.6(b) (1986). Accordingly, when FHLBB approved South Coast for FSLIC insurance in March 1984, it imposed a number of requirements, including the condition that South Coast "provide for employment of a qualified full-time executive managing officer, subject to approval by the Principal Supervisory Agent"—FHLBB's term for the president of the regional Home Loan Bank when operating in his oversight capacity on behalf of FHLBB. Record, Exh. B, Resolution No. 84-164, ¶10(p) (Mar. 29,1984). The Board's resolution also required that, for a period of three years, any change in South Coast's chief management position be approved by FHLBB. Ibid.

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Shortly after obtaining FHLBB's conditional approval, South Coast was succeeded in interest by Pioneer Savings and Loan Association, another new institution. Pioneer named respondent Pelletier as its managing officer, subject to FHLBB consent, which Pioneer sought in mid-May 1985. Only a few weeks earlier, however, on April 23, 1985, FHLBB had declared insolvent Beverly Hills Savings and Loan Association, where respondent had at one time held a senior executive position. An inquiry by FSLIC pointed to potential misconduct by high-level management of the failed institution, which ultimately became the subject of an FSLIC lawsuit against several Beverly Hills officers, including respondent.

The FSLIC suit had not yet been filed at the time Pioneer sought the Board's consent to hire respondent; but FSLIC's pending investigation into Beverly Hills' collapse caused petitioner Behrens, the FHLBB "Supervisory Agent" then responsible for monitoring Pioneer's operations, to write Pioneer on May 8, 1986, withholding approval and advising that respondent be replaced. On receipt of the letter Pioneer asked respondent to resign and, when he refused, fired him.

Three years later, in 1989, respondent brought suit in federal court, naming petitioner as defendant in a complaint that included Bivens damages claims for two alleged constitutional wrongs. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Respondent charged, first, that petitioner's action in writing a letter that had effectively discharged him from his post at Pioneer, in summary fashion and without notice or opportunity to be heard, violated his right to procedural due process. Second, he claimed that he had been deprived of substantive due process by petitioner's alleged interference with his "clearly established and Constitutionally protected property and liberty rights . . . to specific employment and to pursue his profession free from undue governmental interference." First Amended Complaint ¶ 38, reprinted in App. 7, 16. The complaint alleged

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that petitioner's letter, along with other, continuing efforts to harm respondent's reputation, had cost respondent not only his position at Pioneer, but also his livelihood within the savings and loan industry. The complaint also contained other claims—against petitioner and against the Federal Home Loan Bank of San Francisco (petitioner's immediate employer), FHLBB, and the United States; none of these is relevant to the present appeal.

Petitioner filed a motion to dismiss or, in the alternative, for summary judgment. With regard to the Bivens claims, he asserted a statute-of-limitations defense and claimed qualified immunity from suit on the ground that his actions, taken in a governmental capacity, "d[id] not violate clearly established statutory or constitutional rights." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The District Court ruled in favor of petitioner on the statute-of-limitations ground and therefore dismissed the procedural due process Bivens claim, and the substantive due process Bivens claim to the extent it related to petitioner's letter and respondent's loss of employment at Pioneer. It refused, however, to dismiss respondent's suit "to the extent [it was] based on other alleged subsequent acts of defendan[t] preventing and continuing to prevent [respondent] from securing employment." Pelletier v. Federal Home Loan Bank of San Francisco, No. CV 89-969 (CD Cal., Oct. 5, 1989), reprinted in App. 27-2...

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