Libby v. Marshall, 87-1041

• Decision Date: 05 October 1987
• Docket Number: No. 87-1041,87-1041
• Citation: 833 F.2d 402
• Parties: David LIBBY, et al., Plaintiffs, Appellees, v. Clifford MARSHALL, et al., Defendants, Appellees. Michael Dukakis, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 402

833 F.2d 402

9 Fed.R.Serv.3d 605

David LIBBY, et al., Plaintiffs, Appellees, v. Clifford MARSHALL, et al., Defendants, Appellees Michael Dukakis, et al., Defendants, Appellants.

No. 87-1041.

United States Court of Appeals First Circuit.

Heard Oct. 5, 1987.

Decided Nov. 24, 1987.

Carl Valvo, Asst. Atty. Gen., with whom Steven H. Goldberg, Asst. Atty. Gen., and James M. Shannon, Atty. Gen., Boston, Mass., were on brief, for, defendants, appellants.

Pamela J. Wood with whom Choate, Hall & Stewart, Boston, Mass., was on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, TIMBERS, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

The state defendants appeal from the district court's denial of their motion to dismiss, a motion that was grounded in part upon the Eleventh Amendment. Because we conclude that the appeal is interlocutory, and that we lack jurisdiction over the appeal, we do not reach the merits of defendants' contention that the Eleventh Amendment bars suit against them.

I. BACKGROUND

This interlocutory appeal arises out of a section 1983 class action brought by the inmates of the Norfolk County (Massachusetts) House of Correction against various county and state officials in Massachusetts. The plaintiffs, who initiated this suit in 1983, amended their complaint in April 1986 to include several additional state defendants: Governor Michael Dukakis, Secretary of Human Services Philip Johnston, Secretary of Administration and Finance Frank Keefe, Chairwoman of the Senate Ways and Means Committee Patricia McGovern, and Chairman of the House Ways and Means Committee Richard Voke (the "state defendants"). The thrust of the amended complaint is that these supplemental defendants are, in their official capacities, authorized by state statutes to approve expenditures for the betterment of the Commonwealth's jails, and that such funding is necessary to remedy the existing unconstitutional conditions therein. The amended complaint thus seeks an injunction commanding the state defendants to perform the fiscal acts authorized by state law and allegedly required by the Constitution.

The state defendants moved to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(1), arguing that the Eleventh Amendment bars the relief plaintiffs seek. ¹ The district court denied the motion, Libby v. Marshall, 653 F.Supp. 359 (D.Mass.1986), and this appeal ensued.

II. THE COLLATERAL ORDER DOCTRINE

The statute necessarily relied upon by appellants to confer jurisdiction over their appeal is 28 U.S.C. Sec. 1291 (1982), which provides in relevant part, "The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States." Denial of a motion to dismiss is not ordinarily a "final" decision under section 1291 since the case will continue forward in the district court thereafter. Appellants contend, however, that the district court's refusal to dismiss is, in the unique facts of this case, an appealable final order under the doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Cohen the Court recognized an appeal from district court decisions within

that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

Id. at 546, 69 S.Ct. at 1225.

The state defendants' argument proceeds on two related fronts. First, they argue that the district court's decision passes the four-prong collateral order test this circuit established in United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir.1979). Second, they claim that because the district court denied their claim of an "immunity" its decision is therefore appealable under the line of Supreme Court immunity cases culminating in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). In these cases the Court has held that the denial of certain immunity claims cannot be redressed upon appeal from a final judgment and that these decisions are thus immediately appealable.

We discuss the above issues in reverse order.

III. MITCHELL v. FORSYTH

The issue before the Supreme Court in Mitchell was whether the denial of a defendant's motion for summary judgment based on qualified immunity was appealable under the collateral order doctrine. The Court observed that the prime characteristic of an appealable collateral order is that if the order cannot be reviewed before the proceedings terminate it can never effectively be reviewed at all. See Mitchell, 472 U.S. at 525, 105 S.Ct. at 2815. See also Rodriguez v. Banco Central, 790 F.2d 172, 178 (1st Cir.1986) (stating that the third prong in the collateral order test--whether the right asserted is capable of vindication on appeal from a final judgment--should be the "central focus and perhaps even the dispositive criterion"). The Court noted that on three prior occasions it had held that certain claims of right could not be vindicated on appeal from a final judgment, and therefore their denial was appealable. Mitchell, 472 U.S. at 525, 105 S.Ct. at 2815 (citing Abney v. United States, 431 U.S. 651, 97 S.Ct. 2304, 52 L.Ed.2d 651 (1977) (right not to be exposed to double jeopardy); Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (right to absolute executive immunity); Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (congressman's immunity under Speech and Debate Clause)). Concluding that the common denominator of these three cases was the implication of an "absolute immunity" from standing trial, the Court framed its inquiry accordingly:

At the heart of the issue before us is the question whether qualified immunity shares this essential attribute of absolute immunity--whether qualified immunity is in fact an entitlement not to stand trial under certain circumstances.

Mitchell, 472 U.S. at 525, 105 S.Ct. at 2815.

Mitchell answered this question in the affirmative. The Court stated that the "conception animating" the qualified immunity doctrine, as refashioned in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), was 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.' " 472 U.S. at 525, 105 S.Ct. at 2815 (quoting Harlow, 457 U.S. at 819, 102 S.Ct. at 2739.) Reasoning from the nature of the pernicious consequences the qualified immunity doctrine was designed to avoid--inhibiting officials' discretion, distracting officials from their duties, deterring able people from entering public service--the Court concluded that the entitlement to qualified immunity was indeed an "immunity from suit rather than a mere defense to liability and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 526, 105 S.Ct. at 2816 (emphasis in original).

Here, the state defendants argue that because their motion to dismiss is likewise grounded upon an "immunity," to wit, the sovereign immunity afforded by the Eleventh Amendment, they should also be allowed to appeal without delay from its denial. ² Their position is not unprecedented. The Second Circuit endorsed this view in Minotti v. Lensink, 798 F.2d 607 (2d Cir.1986), stating, "In the case of an absolute immunity such as that provided by the eleventh amendment, the essence of the immunity is the possessor's right not to be haled into court--a right that cannot be vindicated after trial." Id. at 608.

Notwithstanding our great respect for the judgment of our sister circuit, we are unable to agree with its panel holding in Minotti. We do not accept the talismanic significance that both appellants and the Second Circuit seemingly assign to the general concept of immunity as invariably triggering an interlocutory appeal. Mitchell v. Forsyth, in our view, does not go so far. We reject the proposition that the Eleventh Amendment passes the Mitchell litmus test, i.e., that a state's sovereign immunity is in fact an entitlement not to stand trial. See Mitchell, 472 U.S. at 525, 105 S.Ct. at 2815.

IV. THE ELEVENTH AMENDMENT

A critical difference between this case and Mitchell is that the state defendants here are being sued in their official capacities. Injunctive relief is sought that would require them to exercise their official powers in certain ways. It follows that the Commonwealth of Massachusetts is the real party in interest even though the state defendants are denominated by their individual names. That the state alone is the real defendant is true however the Eleventh Amendment issue may be resolved. Compare Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945) ("when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest"), with Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (1985) (describing a suit challenging the constitutionality of a state official's action in enforcing state law as an "exception" to the principle that a state may not be sued in federal court). Thus, analysis under the Mitchell standard must recognize that any immunity enjoyed and any liability risked belong to the state, not to the named defendants as individuals. It follows that the concerns voiced in Mitchell as to the pernicious consequences of lawsuits against public officials--inhibiting officials' discretion, distracting them from their duties, deterring people from entering public service--are largely irrelevant. ³

Indeed, some commentators believe that the ...