Bever v. Gilbertson

• Decision Date: 11 January 1984
• Docket Number: 83-1791,Nos. 83-1790,s. 83-1790
• Citation: 724 F.2d 1083
• Parties: John M. BEVER, Clearyl Davis, John E. Ellifritt, Cecil Fling, Drexeline Perrine, Francis D. Radcliff, Robert W. Robinson, Michael Shepherd, Larry Williams and Larry W. Griffin, Appellees, v. Walter GILBERTSON and Charles L. Miller, Appellants, and John Gum, Wilton Williams, individually and as Commissioner of the West Virginia Department of Highways; and John D. Rockefeller, IV, individually and as Governor of the State of West Virginia, Defendants. John M. BEVER, Clearyl Davis, John E. Ellifritt, Cecil Fling, Drexelene Perrine, Francis D. Radcliff, Robert W. Robinson, Michael Shepherd, Larry Williams and Larry W. Griffin, Appellees, v. John D. ROCKEFELLER, IV, Appellant, and John Gum, Walter Gilbertson, Wilton Williams, Charles L. Miller, individually and as Commissioner of the West Virginia Department of Highways, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1083

724 F.2d 1083

1 Fed.R.Serv.3d 1009

John M. BEVER, Clearyl Davis, John E. Ellifritt, Cecil

Fling, Drexeline Perrine, Francis D. Radcliff,

Robert W. Robinson, Michael Shepherd,

Larry Williams and Larry W.

Griffin, Appellees, v. Walter GILBERTSON and Charles L. Miller, Appellants, and John Gum, Wilton Williams, individually and as Commissioner

of the West Virginia Department of Highways; and John D.

Rockefeller, IV, individually and as Governor of the State

of West Virginia, Defendants.

John M. BEVER, Clearyl Davis, John E. Ellifritt, Cecil

Fling, Drexelene Perrine, Francis D. Radcliff,

Robert W. Robinson, Michael Shepherd,

Larry Williams and Larry W.

Griffin, Appellees, v. John D. ROCKEFELLER, IV, Appellant, and John Gum, Walter Gilbertson, Wilton Williams, Charles L.

Miller, individually and as Commissioner of the

West Virginia Department of Highways, Defendants.

Nos. 83-1790, 83-1791.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 5, 1983.

Decided Jan. 11, 1984.

Robert B. King, Charleston, W.Va. (Rebecca A. Betts, King, Betts & Allen Charleston, W.Va., on brief), for appellant John D. Rockefeller, IV.

David P. Cleek, Deputy Atty. Gen., Charleston, W.Va. (Chauncey H. Browning, Jr., Atty. Gen., Edward W. Eardley, Steptoe & Johnson, Charleston, W.Va., on brief), for appellants Charles L. Miller and Walter L. Gilbertson.

Timothy N. Barber, Charleston, W.Va. (Guy R. Bucci, Charleston, W.Va., on brief), for appellees.

Before WINTER, Chief Judge, HALL, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge.

HAYNSWORTH, Senior Circuit Judge:

In 1981, West Virginia's Department of Highways allegedly was confronted with the need to substantially cut its expenditures. It chose to terminate the employment of a large number of lower echelon employees. According to plaintiffs, the sole or principal criterion for the selection of those to be terminated was political party affiliation. Loyal Democrats were to be retained while Republicans and Independents were to be terminated.

There are now pending in the Northern and Southern Districts of West Virginia a number of cases brought by terminated employees of the Department of Highways alleging that their terminations were in violation of their constitutional rights of free association. The plaintiffs in this case are such terminated employees who worked under the supervision of John Gum, County Supervisor for the Department of Highways in Doddridge County. The defendants are Governor John D. Rockefeller, IV, Charles L. Miller, Commissioner of West Virginia's Department of Highways, Walter Gilbertson, District Engineer of District 4 of the Department of Highways, Gum and Wilton Williams, Chairman of Doddridge County Democratic Executive Committee. The amended complaint sought injunctive relief, including reinstatement of the plaintiffs to their former jobs, and damages. Governor Rockefeller, Commissioner Miller and District Engineer Gilbertson were sued both in their official and individual capacities, and they claim qualified immunity from the claim of damages against them personally. The immunity claim was the basis of a motion for summary judgment. The motion was denied by the district judge largely on the basis that those defendants could not reasonably have believed that a political criterion for the selection of those employees whose employment was to be terminated was permissible under the Constitution of the United States.

Those three defendants sought a certificate by the district judge for a permissible interlocutory appeal under 28 U.S.C.A. Sec. 1292(b). The district judge refused such certification, whereupon those three defendants filed notices of appeal under 28 U.S.C.A. Sec. 1291. The question now before us, upon a motion to dismiss the appeals, is whether these appeals are within the collateral order exception to the general rule that appeals of right are allowable only from final judgments.

I.

As developed in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and subsequent cases in the Supreme Court, an appeal from an interlocutory order under Sec. 1291 may be taken, if the interlocutory order conclusively determines the question in the trial court, resolves an important question independent of the subject matter of the litigation, is effectively unreviewable on appeal from a final judgment or so important that review should not wait upon final judgment, and presents a serious and unsettled question upon appeal.

In Cohen itself, the plaintiffs were small shareholders who brought a derivative stockholders' action within the diversity jurisdiction of the federal courts. The defendants, faced with the prospect of large litigation expenses, sought an order compelling the plaintiffs to post security for them under a state statute which required the plaintiffs to reimburse the defendants for such expenses in the event that the defendants prevailed. The district court denied the motion to compel the posting of such security.

It is obvious that in Cohen, if an immediate appeal was not available and the case proceeded to final judgment, the defendants would have lost irretrievably the security they sought to gain by the motion, and the purpose of the statute imposing the burden of costs upon the losing plaintiffs would have been substantially frustrated.

Orders denying claims of absolute immunity have been held within the Cohen collateral order exception. In Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979), the claim was one of immunity under the Speech and Debate Clause. In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the claim was one of immunity under the Double Jeopardy Clause, while in Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), the claim was one of absolute immunity for the President of the United States.

Claims of absolute official immunity are rightfully classified with claims of immunity under the Double Jeopardy Clause and the Speech and Debate Clause. In each instance, an important aspect of the absolute immunity with which the person is clothed is that he not be put to trial at all, and the right not to be put to trial at all is irrevocably lost if an order putting such a person to trial may not be reviewed until after final judgment.

The qualified immunity, with which the three appellants are cloaked, is of a lower order. It provides substantial protection for a public official who acts under circumstances in which a reasonable person would believe that his conduct did not violate established constitutional rights of another. That such a defendant not be put to the trouble of defending himself on the merits is also an aspect of immunity. Indeed, in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396, the Supreme Court sought to give additional protection against being put to trial on insubstantial claims to persons possessing qualified immunity. It eliminated the subjective aspect of the qualified immunity doctrine as theretofore understood so that more claims of qualified immunity could be resolved on motions for summary judgment before trial.

It is far from clear, however, that an order denying a claim of qualified immunity is within the collateral order exception. While the Supreme Court in Harlow v. Fitzgerald considered the contours of qualified immunity, the case got there because the order in the district court denied Harlow's claim of absolute immunity. See, note 11, 457 U.S. at 806, 102 S.Ct. at 2732. In McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982), the court held that an order denying a claim of qualified immunity was within the collateral order exception, a position with which a panel of this court (Judges Hall, Murnaghan, and Haynsworth) differed in an unpublished opinion in Benford v. American Broadcasting Companies, Inc., 707 F.2d 504 (4th Cir.1983).

Whatever the situation might be in other circumstances, however, the qualified immunity claimed by these three appellants cannot prevent their being put to trial. The plaintiffs seek equitable relief as well as money damages, and the appellants have no immunity from being put to trial on the equitable claims. ¹ They are the principal defenders of the state's position. They will bear a major responsibility for the outcome of the litigation and will be among the principal witnesses at the trial. Whether or not they are immune from an assessment of damages against them in their individual capacities, the litigation will demand their time and attention. A present declaration of immunity from damage claims cannot avoid the diversion of their attention from other official duties which the litigation will occasion.

If the personal pocketbooks of the three appellants are, or may be, at risk, the degree of their distraction from other official duties may be greater than it otherwise would be. Still, one would suppose that, if the risk of personal liability were eliminated, the three, as responsible public officials, would give the litigation all of the thought and attention necessary adequately to protect the interest of the state.

The doctrine of qualified immunity cannot protect a public official from a claim of personal liability. It may provide a means by which the litigation may be terminated sooner than it otherwise might be, and it provides the official with substantive protection against personal liability for official wrongs other than a violation of established constitutional rights. In this case, however, a trial had been scheduled, and, if these appellants had nothing to do with the selection process and bore no responsibility for it, as they claim, they might have obtained a favorable judgment on the claims against them individually sooner by a trial on the merits than by appellate litigation of their immunity claims.

In these circumstances, the question whether a denial of the immunity claims is...