834 F.2d 103 (6th Cir. 1987), 84-1669, Sinclair v. Schriber

Docket Nº:84-1669.
Citation:834 F.2d 103
Party Name:John SINCLAIR; Lawrence Plamondon; and John Forrest Waterhouse, Plaintiffs- Appellees, v. Kenneth SCHRIBER; James Sullivan, and Charles Wagner, Defendants-Appellants.
Case Date:November 24, 1987
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
FREE EXCERPT

Page 103

834 F.2d 103 (6th Cir. 1987)

John SINCLAIR; Lawrence Plamondon; and John Forrest

Waterhouse, Plaintiffs- Appellees,

v.

Kenneth SCHRIBER; James Sullivan, and Charles Wagner,

Defendants-Appellants.

No. 84-1669.

United States Court of Appeals, Sixth Circuit

November 24, 1987

Argued Oct. 6, 1987.

Rehearing and Rehearing En Banc Denied Feb. 16, 1988.

Geneva Halliday, U.S. Atty., Detroit, Mich., Larry L. Gregg, Dept. of Justice, Washington, D.C., John C. Hoyle, argued, Barbara Herwig (Lead Counsel), Dept. of

Page 104

Justice, Washington, D.C., for defendants-appellants.

Hugh M. Davis, Jr., Detroit, Mich., for plaintiffs-appellees.

Before ENGEL, JONES and NELSON, Circuit Judges.

ENGEL, Circuit Judge.

Defendants appeal from an order by Judge Charles W. Joiner, United States District Court for the Eastern District of Michigan, denying defendants' motion for summary judgment on the basis of good-faith immunity. We dismiss for lack of appellate jurisdiction.

This case is a continuation of the litigation that produced United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (Keith ), which held that the Fourth Amendment does not allow warrantless wiretaps in cases involving domestic threats to national security, and Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), which held that Attorney General John Mitchell had immunity for wiretaps that he authorized in violation of but before Keith. The defendants in the present case are FBI agents who performed the wiretaps that Mitchell authorized. Plaintiffs allege that these agents exceeded the authority that Mitchell gave them and violated plaintiffs' Sixth Amendment right to counsel by overhearing plaintiffs' conversations with their attorneys.

The denial of summary judgment was under Rule 56(f) of the Federal Rules of Civil Procedure. 1 Judge Joiner decided that there were issues of fact that could "only be fully elucidated by further discovery" and that plaintiffs had "made an adequate showing of need for further discovery." Thus, Judge Joiner allowed discovery to continue for ninety days. He also stated that the denial of summary judgment was without prejudice: "Defendants should renotice their motion for summary judgment shortly after the conclusion of discovery, if they continue to believe that they are entitled to such relief in light of the information disclosed."

Upon consideration, we conclude that Judge Joiner's order is not appealable under Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.1986). In Kennedy, we held that under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), there can be two appeals based upon claims of immunity and which can be taken prior to final judgment: first, after denial of a motion to dismiss on the pleadings and, second, after denial of a motion for summary judgment following discovery. Appeal in the first situation protects immune officials from the burdens of discovery if the well pleaded facts at that stage show that they would be immune. The second potentially allowable appeal protects immune officials from trial if, after discovery, it is determined that there is then no material dispute of fact concerning their immunity. Kennedy, however, did not decide whether an order denying summary judgment such as that here--without prejudice and allowing further discovery--has the finality necessary to be appealable under Cohen. Quite clearly, we believe, it does not.

Under Cohen, the order or decision appealed from must "fall in 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." Cohen, 337 U.S. at 546, 69 S.Ct. at 1225. It therefore appears that whether such a decision is to be reviewable is to be determined realistically from the circumstances in each case. Referring to

Page 105

the finality language of 28 U.S.C. Sec. 1291, Justice Jackson observed:

The effect of the statute is to disallow appeal from any decision which is tentative, informal or incomplete. Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal.

Cohen, 337 U.S. at 546, 69 S.Ct. at 1225.

Applying the foregoing language to the order and decision here, it is apparent that such orders were not intended either by Judge Joiner or by the language of Cohen to be appealable. Obviously Judge Joiner expressly allowed for further discovery, and after that a further opportunity to renew the motion for summary judgment. 2

While as we pointed out in Kennedy, Mitchell v. Forsyth has permitted two bites out of the appellate apple, at the pleading and at the discovery stage, it did not contemplate that the underlying finality requirement of Cohen and of section 1291 would be ignored, or that plaintiffs might be subjected to an endless number of successive appeals before trial. Undoubtedly, future appeals will raise problems similar to those here, and while we see no occasion to borrow more trouble than we already have, we can only observe that the best guidelines are those contained in Cohen itself and particularly its admonition that we give to section 1291 a "practical rather than a technical construction." Cohen, 337 U.S. at 546, 69 S.Ct. at 1226.

The appeal is DISMISSED, and the case is REMANDED. 3

DAVID A. NELSON, Circuit Judge, dissenting.

The issue that the parties briefed and argued in this case is not the issue that the court has decided. The question addressed by the parties was whether the district court erred in refusing to enter judgment for the defendant FBI agents, before discovery, on the basis of qualified-immunity claims asserted by the defendant agents in

Page 106

their motion for summary judgment. The issue that this court has decided is one that the parties themselves considered a non-issue: whether the order denying summary judgment is appealable under Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987), and the Supreme Court decisions that gave rise to Kennedy, including Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528 (1949). 1

The fact that both sides think we have jurisdiction to hear this appeal does not preclude us from holding that both sides are wrong, of course, but I would be reluctant to dismiss the appeal on jurisdictional grounds without the benefit of full briefing on that question. Based on what I know of the case now, I believe that the parties are correct in thinking that we have jurisdiction to consider the appeal on its merits; accordingly, I am constrained to dissent.

To be appealable under the collateral order doctrine of Cohen, as the majority opinion observes, the order appealed from must "fall in 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." Cohen, 337 U.S. at 546, 69 S.Ct. at 1226. The "claims of right" asserted here do come within that class, in my opinion, because an essential aspect of the appellant FBI agents' qualified-immunity claims is that the agents are entitled to judgment before discovery. To deny consideration of their motion for judgment until after discovery is to deny a key part of their claims irrevocably and for all time. A right to avoid the burden of discovery obviously cannot be vindicated after discovery has been completed.

That avoidance of the burden of discovery is an important part of the FBI agents' qualified-immunity claims seems clear to me in light of the Supreme Court's recent decision in Anderson v. Creighton, 483 U.S. ----, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Anderson tells us that the "driving force" behind the "substantial reformulation of qualified-immunity principles" effected by Harlow (a reformulation that made the factual question of "good faith" irrelevant) was "that 'insubstantial claims' against government officials be resolved prior to discovery and on summary judgment if possible." Anderson, 483 U.S. at ----, 107 S.Ct. at 3039 n. 2, 97 L.Ed.2d at 530 n. 2, citing Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738. (emphasis supplied).

Appellate courts would be left spinning their wheels ineffectually, for all the power of the "driving force" behind Harlow, if denials of qualified-immunity claims asserted by way of motions for summary judgment prior to discovery could escape appellate review until after completion of discovery. "Unless the plaintiff's allegations state a claim of violation of clearly established law," as the Supreme Court has told us very plainly, "a defendant pleading qualified immunity is...

To continue reading

FREE SIGN UP