Kennedy v. City of Cleveland

• Decision Date: 27 August 1986
• Docket Number: 85-3827,Nos. 85-3819,s. 85-3819
• Parties: Robert E. KENNEDY, Jr.; Joyce Kennedy, Plaintiffs-Appellees, v. CITY OF CLEVELAND, et al., Defendants, William T. Hanton (85-3819), Frank Wszelaki (85-3827), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 297

797 F.2d 297

5 Fed.R.Serv.3d 1016

Robert E. KENNEDY, Jr.; Joyce Kennedy, Plaintiffs-Appellees, v. CITY OF CLEVELAND, et al., Defendants, William T. Hanton (85-3819), Frank Wszelaki (85-3827),

Defendants-Appellants.

Nos. 85-3819, 85-3827.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 3, 1985.

Decided July 30, 1986.

Rehearing Denied Aug. 27, 1986.

Charles T. Riehl, argued, Mary G. Balazs, Walter, Haverfield, Buescher & Chockley, Irving Berger, argued, Asst. Director of Law, Cleveland, Ohio, for defendants-appellants.

Roger D. Heller, Theodore E. Meckler, argued, Christopher D. Stanley, Cleveland, Ohio, for plaintiffs-appellees.

Before ENGEL, KEITH and MILBURN, Circuit Judges.

ENGEL, Circuit Judge.

The Supreme Court in Mitchell v. Forsyth, --- U.S. ----, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), held that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an immediately appealable "final decision" within the meaning of 28 U.S.C. Sec. 1291 ¹ notwithstanding the absence of a final judgment. These consolidated appeals raise important issues concerning whether the right to take an immediate interlocutory appeal is conditioned upon the filing of a timely notice and further whether the right itself can be subject to waiver for noncompliance with reasonable temporal limitations placed by the district court upon the filing of motions seeking immunity.

We answer both questions in the affirmative.

I.

With respect to the right to take an immediate appeal prior to trial, the Supreme Court in Mitchell extended to the holders of qualified immunity the same rights it had previously accorded individuals who claimed absolute immunity. Mitchell, 105 S.Ct. at 2815-16. In principle, the Supreme Court held that absolute or qualified immunity, once established, not only protects the holder against ultimate personal liability in damages but also from the onerous burdens of defense in much the same way that the Double Jeopardy Clause and the Speech and Debate Clause afford immunity from prosecution.

The conception animating the qualified immunity doctrine as set forth in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct 2727, 73 L.Ed.2d 396 (1982), is that "where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken 'with independence and without fear of consequences.' " Id., at 819, 102 S.Ct. at 2738, quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967). As the citation to Pierson v. Ray makes clear, the "consequences" with which we were concerned in Harlow are not limited to liability for money damages; they also include "the general costs of subjecting officials to the risks of trial--distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service." Harlow, 457 U.S. at 816, 102 S.Ct. at 2737. Indeed, Harlow emphasizes that even such pretrial matters as discovery are to be avoided if possible, as "[i]nquiries of this kind can be peculiarly disruptive of effective government." Id., at 817, 102 S.Ct. at 2737.

Mitchell, 105 S.Ct. at 2815. As both Mitchell and Harlow make clear, a claim of immunity raises an interest in an early, and inexpensive, termination of the litigation.

Mitchell v. Forsyth, as we read it, counsels the trial courts to consider three different and relatively independent aspects of immunity. In addition to the historic right to be immune from ultimate liability in damages, Mitchell contemplates two stages at which the doctrine of immunity may be interposed in advance of trial to avoid two distinct burdens of litigation. A defendant may initially raise immunity as a bar to litigation in a motion to dismiss. Where a defendant official is entitled to qualified immunity the plaintiff must plead facts which, if true, describe a violation of a clearly established statutory or constitutional right of which a reasonable public official, under an objective standard, would have known. The failure to so plead precludes a plaintiff from proceeding further, even from engaging in discovery, since the plaintiff has failed to allege acts that are outside the scope of the defendant's immunity. ² Mitchell, 105 S.Ct. at 2816. Next, Mitchell holds that "even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a general issue as to whether the defendant in fact committed those acts." Id. ³

Therefore, it is possible that the progress of civil rights actions brought under 42 U.S.C. Sec. 1983 may be interrupted by not one but two interlocutory appeals. First, if the pleading itself is insufficient the defendant may file a motion to dismiss and upon denial thereof take an immediate appeal. Because Mitchell contemplates that the defendant is to be also protected from the burdens of discovery until the resolution of that issue, Mitchell necessarily holds that the court is further obligated, upon application, not only to refrain from proceeding to trial but to stay discovery until that issue is decided. 105 S.Ct. at 2816; see also Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. If the complaint sufficiently alleges actions outside the scope of the official's immunity, the defendant still retains the right to file a motion for summary judgment so that the further harassment of going to trial may be avoided. If, however, summary judgment predicated on a claim of immunity is denied, it is once more possible to appeal from an adverse ruling on the Rule 56 motion and to obtain a stay of trial pending a resolution of that issue on appeal. Finally, if summary judgment is denied and the trial court's decision is not appealed, or is appealed and affirmed, the case then proceeds to trial. Mitchell makes it clear that the immunity doctrines' protections against liability and against the various burdens of litigating insubstantial claims are conceptually distinct. Mitchell, 105 S.Ct. at 2816. Consequently, decisions with respect to dismissal or summary judgment, if adverse, do not preclude the interposition of the defense of immunity as a defense to liability on the merits.

All interlocutory appeals, whether as exceptions to the finality rule as in 28 U.S.C. Sec. 1292 or within the collateral order doctrine of Cohn v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), are of course subject to abuse. Even when employed in good faith, these rules are bound to create delay and inconvenience both to the plaintiff and to the court. We see no reason, therefore, why such rules, as advantageous as they may be, are not subject to the same rules of waiver and procedural default as have been traditionally applied to other cases.

We note in the first instance that neither absolute nor qualified immunity is recognized so much as a matter of inherent right in the person claiming it as it is the result of the application of historical principles which reflect a proper balance between the protection of the rights of individuals to be free from constitutionally violative harm and the very real need of persons charged with governmental duties to get on with its business without harassment or intimidation. ⁴ We also note that immunity, whether qualified or absolute, is an affirmative defense which must be affirmatively pleaded; it is not a doctrine of jurisdictional nature that deprives a court of the power to adjudicate a claim. Mitchell, 105 S.Ct. at 2816; Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Harlow, 457 U.S. at 815 n. 24, 102 S.Ct. at 2736 n. 24. Since immunity must be affirmatively pleaded, it follows that failure to do so can work a waiver of the defense. And since certain of the interests protected by the doctrines of immunity are conceptually distinct, and all of them are procedurally distinct, the failure to plead immunity may, at different stages of the litigation, work either a partial or complete waiver. Hence, we conceive it possible that one might assert immunity as an affirmative defense to the complaint and thus as an affirmative defense to ultimate liability without putting in issue his or her right to be free of subjection to trial or, before that, to the burdens of discovery.

It also follows that the right is one which can be lost by failure timely to assert it. ⁵ In this respect we believe that, to maintain control of his docket and to assure the expeditious advancement of cases, it is entirely proper for a trial judge in such cases as this to establish a time for the filing of motions challenging the sufficiency of the pleadings, during which discovery will be stayed unless good cause can be shown to the contrary. See In re Paper Antitrust Litigation, 685 F.2d 810, 817-18 (3d Cir.1982). Plainly, if the trial judge places reasonable limits upon the time within which to challenge the sufficiency of the pleadings, the failure of the defendant to take advantage of the opportunity can and should normally work a waiver of the right, at least absent some appealing reason for making an exception. In like fashion judges have historically been allowed to limit both the extent and the time for taking discovery. Limitations upon discovery are a common and necessary part of limiting the cost to the parties and assuring the orderly progression of the case to trial. Thus, it is also entirely proper for courts in cases such as this, to fix reasonable times for the completion of discovery and thereafter reasonable times in which motions for summary judgment are to be filed. ⁶ Given this, it seems logical to us also that the trial judge retains discretion not only to set cut off dates for recovery but to cut off motions for summary...