834 F.2d 504 (5th Cir. 1987), 87-2013, Lion Boulos v. Wilson

Docket Nº:87-2013.
Citation:834 F.2d 504
Party Name:LION BOULOS, Individually and doing business as Abco Food Stores, et al., Plaintiffs-Appellees, v. Richard D. WILSON, et al., Defendants-Appellants.
Case Date:December 23, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 504

834 F.2d 504 (5th Cir. 1987)

LION BOULOS, Individually and doing business as Abco Food

Stores, et al., Plaintiffs-Appellees,

v.

Richard D. WILSON, et al., Defendants-Appellants.

No. 87-2013.

United States Court of Appeals, Fifth Circuit

December 23, 1987

Page 505

Frank A. Rosenfeld, Henry Oncken, U.S. Atty., Hays Jenkins, Frank A. Conforti, Asst. U.S. Attys., Eileen O'Brien, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, John F. Cordes, Washington, D.C., for defendants-appellants.

Daniel Tucker Kamin, Houston, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, GEE and RUBIN, Circuit Judges.

CLARK, Chief Judge:

Wilson appeals a district court order compelling limited discovery before ruling on his claim of qualified immunity. Finding that the discovery order does not encroach substantially upon Wilson's immunity claim and is therefore not appealable, we dismiss.

I.

This appeal arises from the so-called Houston fuel switching scam. In December 1984, the Environmental Protection Agency (E.P.A.) conducted field inspections of twelve gasoline retail outlets in the Houston area. The stations were suspected of substituting leaded for unleaded gasoline in commercial pumps. The inspections were conducted by employees of the Bionetics Corporation hired by the E.P.A. to investigate possible violations of the unleaded fuel regulations. 1

Page 506

The inspectors collected gasoline samples from unleaded pumps and obtained fuel delivery records from the stations. Of twenty samples taken, eighteen contained more than the legal limit of 0.05 grams of lead per gallon. The delivery records indicated that 191 deliveries of high lead gasoline had been pumped into unleaded storage tanks at these stations.

In August 1985, the E.P.A. issued Notices of Violation to four gasoline retailers and six distributors advising them that they had committed numerous violations of the Clean Air Act and faced possible fines of $750,000.00 if they failed to negotiate a settlement within 90 days. The station owners failed to settle and the Department of Justice filed civil enforcement actions which are still pending. 2

In January 1986, Lion Boulos and several of the other station owners (collectively "Boulos") filed a separate suit in the Southern District of Texas naming as defendants the E.P.A., several E.P.A. officials in their individual and professional capacities, and the three contract agents who had conducted the inspections (collectively "Wilson"). The complaint includes allegations that Wilson violated Boulos's Fourth Amendment rights by conducting warrantless searches of the gas stations and seizing gasoline samples and records without voluntary consent. Boulos seeks damages in excess of $65 million under 42 U.S.C. Secs. 1983, 1985 and 1986, the Federal Tort Claims Act and directly under the Constitution and an injunction against the use or dissemination of the illegally seized information.

In April 1986, Wilson filed a motion to dismiss or in the alternative for summary judgment which asserted that the inspections did not violate Boulos's constitutional rights because the agents obtained permission before proceeding with the searches. Wilson further alleges that the three contract agents and the E.P.A. officials in their personal capacities enjoy a qualified immunity from suit.

The district court did not rule on the motion but instead entered an order in November 1986 stating that it was unable to decide the threshold question of qualified immunity without three acts of preliminary discovery. The order directed that:

1. The government produce all Justice Department and Environmental Protection Agency field instructions and policy directives in effect from January 1, 1983 through December 1984, distributed to the E.P.A.'s Houston and Dallas offices, dealing with the use of contract agents; 3

2. The plaintiffs may depose the E.P.A.'s contract agents who visited their clients' three stations in December 1984. Questions are to be limited to what transpired at the sites; and

3. The parties are to submit jointly in twenty days an agreed factual narrative of what transpired at the sites in December 1984.

In December 1986, Wilson moved for reconsideration and a stay of the November order. The district court denied the motion. Wilson now appeals these two orders on the basis that the district court may not order discovery before ruling on the immunity claim. We dismiss the appeal on the basis that the discovery order is not appealable; however, because this is a question of first impression in the Fifth Circuit, we write to explain the reasoning behind our decision.

II.

Ordinarily, an order compelling limited discovery is interlocutory and not appealable under the final judgment rule, 28 U.S.C. Sec. 1291 (1986). However, the Supreme Court has held that immediate appeal may be taken from a limited class of interlocutory orders 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

Page 507

that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949).

In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) the Supreme Court held that orders denying a substantial claim of qualified immunity are immediately appealable under the collateral order doctrine. The Fifth Circuit has held that a district court's refusal to rule on a claim of qualified immunity also falls within the collateral order doctrine because:

" [the] defendant's entitlement under immunity doctrine to be free from suit and the burden of avoidable pretrial matters is effectively lost if the case erroneously goes to trial ... the refusal to rule on such claims 'conclusively determines the defendant's claim of right not to stand trial' ... [and because] the claim of immunity in both cases 'is conceptually distinct from the merits of the plaintiff's claim that his rights have been violated.' "

Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir.1986) (citations omitted). Wilson claims that because qualified immunity guarantees government officials immunity from all pretrial discovery, the district court's order in this case is immediately appealable. He argues that his right to be free from discovery will be effectively lost if the district court's order is not granted immediate review and that the issue of immunity is conceptually distinct from the merits of the case. We disagree.

III.

Qualified immunity protects government officials serving in a discretionary capacity from liability for actions undertaken in their official capacity. The purpose of the doctrine is to avoid "distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service." Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982). A defendant entitled to claim qualified immunity is shielded not only from liability but also from "the costs of trial [and] ... the burdens of broad-reaching discovery." Harlow, 102 S.Ct. at 2738.

In Mitchell v. Forsyth, supra, the Supreme Court addressed an official's right to claim immunity from discovery. It stated:

"Indeed, Harlow emphasizes that even such pretrial matters as discovery are to be avoided if possible, as '[i]nquiries of this kind can be peculiarily disruptive of effective government.' ... Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery."

Mitchell, 105 S.Ct. at 2815-1...

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154 practice notes
  • 178 F.R.D. 103 (N.D.Tex. 1998), Civ. A. 3:97-CV-0296D, Williams v. City of Dallas
    • United States
    • Federal Cases United States District Courts 5th Circuit Northern District of Texas
    • 5 Marzo 1998
    ...an order allowing such limited discovery is neither avoidable nor overly broad" (footnote omitted)) (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir.1987)). Under these circumstances, Williams' need to obtain evidence from a nonparty is heightened by the unavailability of ......
  • 40 F.3d 807 (6th Cir. 1994), 93-3864, Clarke v. City of Cincinnati
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • 3 Noviembre 1994
    ...no black candidates had ever been elected under the districting schemes challenged in those cases. Smith, 687 F.Supp. at 1312; Gretna, 834 F.2d at 504. Similarly, in Jenkins, blacks' preferred black candidates had been defeated in six of the seven elections at issue. 4 F.3d at 1113, The fac......
  • 964 F.3d 395 (5th Cir. 2020), 19-40315, Wooten v. Roach
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 6 Julio 2020
    ...tailored" discovery aimed at facts required to decide qualified immunity. Id. (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir. Neither Helton nor Backe supports Defendants' argument that we have jurisdiction to reach qualified immunity or Roach an......
  • 70 F.3d 813 (5th Cir. 1995), 94-10456, Baulch v. Johns
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 29 Noviembre 1995
    ...also Hale v. Townley, 45 F.3d 914, 918 (5th Cir.1995). [2] Id. at ----, 115 S.Ct. at 2159. Accord, Hale, 45 F.3d at 918; Boulos v. Wilson, 834 F.2d 504, 509 (5th [3] Ms. Harvey is an employee of the plaintiffs' attorney. Her affidavit states in paragraph 6: Exhibit "3" to this aff......
  • Free signup to view additional results
153 cases
  • 178 F.R.D. 103 (N.D.Tex. 1998), Civ. A. 3:97-CV-0296D, Williams v. City of Dallas
    • United States
    • Federal Cases United States District Courts 5th Circuit Northern District of Texas
    • 5 Marzo 1998
    ...an order allowing such limited discovery is neither avoidable nor overly broad" (footnote omitted)) (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir.1987)). Under these circumstances, Williams' need to obtain evidence from a nonparty is heightened by the unavailability of ......
  • 40 F.3d 807 (6th Cir. 1994), 93-3864, Clarke v. City of Cincinnati
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • 3 Noviembre 1994
    ...no black candidates had ever been elected under the districting schemes challenged in those cases. Smith, 687 F.Supp. at 1312; Gretna, 834 F.2d at 504. Similarly, in Jenkins, blacks' preferred black candidates had been defeated in six of the seven elections at issue. 4 F.3d at 1113, The fac......
  • 964 F.3d 395 (5th Cir. 2020), 19-40315, Wooten v. Roach
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 6 Julio 2020
    ...tailored" discovery aimed at facts required to decide qualified immunity. Id. (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir. Neither Helton nor Backe supports Defendants' argument that we have jurisdiction to reach qualified immunity or Roach an......
  • 70 F.3d 813 (5th Cir. 1995), 94-10456, Baulch v. Johns
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 29 Noviembre 1995
    ...also Hale v. Townley, 45 F.3d 914, 918 (5th Cir.1995). [2] Id. at ----, 115 S.Ct. at 2159. Accord, Hale, 45 F.3d at 918; Boulos v. Wilson, 834 F.2d 504, 509 (5th [3] Ms. Harvey is an employee of the plaintiffs' attorney. Her affidavit states in paragraph 6: Exhibit "3" to this aff......
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1 books & journal articles
  • Foreword: Is Civil Rights Law Dead?
    • United States
    • Louisiana Law Review Nbr. 63-3, April 2003
    • 1 Abril 2003
    ...basis for release from the suit is that they acted pursuant to an apparently legal city policy. [32] See, e.g., Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir. 1987). In his excellent article on heightened pleading, Professor Fairman says Courts initially turned to heightened pleading......