DeVargas v. Mason & Hanger-Silas Mason Co., Inc., HANGER-SILAS

• Decision Date: 07 April 1988
• Docket Number: 86-2843,Nos. 86-1894,HANGER-SILAS,s. 86-1894
• Parties: 53 Fair Empl.Prac.Cas. 1232, 105 A.L.R.Fed. 829, 46 Empl. Prac. Dec. P 37,902, 56 USLW 2605 Alfredo DeVARGAS, Plaintiff-Appellee, v. MASON &MASON CO., INC.; T.R. Hook, Individually and in his official capacity; Don Hardwick, Individually and in his official capacity, Defendants-Appellants, and John Does, Individually and in their official capacities, Los Alamos National Laboratory; Richard One Through Two, Individually and in their official capacities; University of California; Robert Pogna, Employee Los Alamos National Laboratory, Defendants. Alfredo DeVARGAS, Plaintiff-Appellee, v. MASON &MASON CO., INC.; T.R. Hook, Individually and in his official capacity; Don Hardwick, Individually and in his official capacity, Defendants-Appellants, and the United States Department of Energy; John Does, Individually and in their official capacities; Los Alamos National Laboratory; Richard One Through Two, Individually and in their official capacities; Gary Granere, Acting Area Manager-Department of Energy Los Alamos Area Office; University of California; Donald Kerr, Director, Los Alamos National Laboratory; Ed. C. Walterscheid, Employee Los Alamos National Laboratory; John S. Herrington; Robert Pogna, Employee Los Alamos National Laboratory, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 714

844 F.2d 714

53 Fair Empl.Prac.Cas. 1232, 105 A.L.R.Fed. 829,

46 Empl. Prac. Dec. P 37,902, 56 USLW 2605

Alfredo DeVARGAS, Plaintiff-Appellee, v. MASON & HANGER-SILAS MASON CO., INC.; T.R. Hook,

Individually and in his official capacity; Don

Hardwick, Individually and in his

official capacity, Defendants-Appellants,

and

John Does, Individually and in their official capacities,

Los Alamos National Laboratory; Richard One Through Two,

Individually and in their official capacities; University

of California; Robert Pogna, Employee Los Alamos National

Laboratory, Defendants.

Alfredo DeVARGAS, Plaintiff-Appellee, v. MASON & HANGER-SILAS MASON CO., INC.; T.R. Hook,

Individually and in his official capacity; Don

Hardwick, Individually and in his

official capacity, Defendants-Appellants,

and

the United States Department of Energy; John Does,

Individually and in their official capacities; Los Alamos

National Laboratory; Richard One Through Two, Individually

and in their official capacities; Gary Granere, Acting Area

Manager-Department of Energy Los Alamos Area Office;

University of California; Donald Kerr, Director, Los Alamos

National Laboratory; Ed. C. Walterscheid, Employee Los

Alamos National Laboratory; John S. Herrington; Robert

Pogna, Employee Los Alamos National Laboratory, Defendants.

Nos. 86-1894, 86-2843.

United States Court of Appeals,

Tenth Circuit.

April 7, 1988.

Joseph E. Earnest of Montgomery & Andrews, Santa Fe, N.M. (Laurie A. Vogel of Cherpelis & Associates, Albuquerque, N.M., with him on the briefs), for defendants-appellants.

Steven G. Farber, Santa Fe, N.M. (Richard Rosenstock, Chama, N.M., and Philip Davis, Albuquerque, N.M., with him on the briefs), for plaintiff-appellee.

Before LOGAN, MOORE and TACHA, Circuit Judges.

LOGAN, Circuit Judge.

Alfredo DeVargas has vision in only one eye. In 1981 and again in 1983 he applied to be a security inspector with defendant Mason & Hanger-Silas Mason Co., Inc. (Mason & Hanger). Mason & Hanger, a private corporation, provides security inspectors for the Los Alamos National Laboratory (LANL) in Los Alamos, New Mexico, pursuant to a subcontract with the Regents of the University of California (Regents). LANL operates under an agreement between the United States Department of Energy (DOE) and Regents. Mason & Hanger, through employee defendants T.R. Hook and Don Hardwick, refused to process DeVargas' application for employment, relying upon a then-applicable DOE regulation, Interim Management Directive No. 6102 Appendix IV (IMD 6102), which provided that "[a] one-eyed individual shall be medically disqualified for security inspector duties." Id. A 6 b (8), II R. Tab 65B-1 at 11.

In 1984, DeVargas brought suit under both 42 U.S.C. Sec. 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971), against private defendants Mason & Hanger, Hook, and Hardwick; DeVargas asserted similar claims against public defendants LANL, DOE, Regents and several of their employees. DeVargas alleged that the refusal to hire him violated his civil rights; he sought damages, injunctive, and declaratory relief. The crux of his claims was that IMD 6102 was either unconstitutional or improperly interpreted by defendants.

The district court ruled that the individual government employee defendants were entitled to qualified immunity against DeVargas' claims for monetary damages, and it granted summary judgment in their favor. ¹ The district court denied the qualified immunity defense of the private defendants, however, ruling as a matter of law that private parties were not entitled to this defense. The private defendants, relying upon Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), now seek interlocutory review of this denial of qualified immunity.

In considering this appeal, we must first address three jurisdictional issues: (1) whether these private parties claiming qualified immunity have a right to interlocutory appeal; (2) whether DeVargas' joinder of a claim for injunctive and declaratory relief prevents this interlocutory appeal; and (3) whether the presence of allegedly disputed material facts relating to the qualified immunity claim prevents the appeal. Because we conclude that we have jurisdiction, we also address the merits, holding that private parties acting in accord with duties imposed by a contract with a governmental body are entitled to raise the defense of qualified immunity, and that the district court should have granted the private defendants qualified immunity in this case.

I

Although the general rule is that a federal appellate court will not review district court orders before the entire litigation is concluded, see 28 U.S.C. Sec. 1291, this "final judgment" rule has several exceptions. The key exception applicable in this case is the independent collateral order doctrine, pronounced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). The Supreme Court, in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), held that the collateral order exception allows an interlocutory appeal of the denial of a defense of qualified immunity when a public official is sued for damages and the relevant facts underlying the qualified immunity defense are undisputed.

A

The Supreme Court has not addressed qualified immunity defenses raised by private parties; it has addressed only public officials' right to qualified immunity. See Mitchell, 472 U.S. at 511, 105 S.Ct. at 2806 (former U.S. Attorney General); Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (FBI agent); Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (police officer); Harlow v. Fitzgerald, 457 U.S 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (White House aides); see also Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (claim of absolute immunity by former President of the United States). The jurisdictional issue which we address now is not whether private parties may claim qualified immunity; the question is rather, assuming the validity of such a defense, whether a private party has the same right as a government employee to bring an interlocutory appeal from the denial of such a defense. See Segni v. Commercial Office of Spain, 816 F.2d 344, 346 (7th Cir.1987).

The case before us is not one in which a private party allegedly conspired with a public official to act outside the official's scope of authority. See Chicago & North Western Transport Co. v. Ulery, 787 F.2d 1239, 1241 & n. 1 (8th Cir.1986) (denying private party right of interlocutory appeal). But see Myers v. Morris, 810 F.2d 1437, 1441 (8th Cir.) (allowing private party to bring interlocutory appeal of denial of qualified immunity in concert with public officials appealing same issue), cert. denied, --- U.S. ----, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987). Rather, the private parties are a government contractor and its employees, and their defense to the claim of wrongful conduct is that they were performing the government contract according to its terms. Essentially, they argue, the government made them do it.

We hold that private parties acting pursuant to contractual duties may bring interlocutory appeals from the denial of qualified immunity. Cf. Austin Municipal Securities, Inc. v. National Association of Securities Dealers, Inc., 757 F.2d 676, 684-85 & n. 7 (5th Cir.1985) (court had jurisdiction to hear appeal from order denying absolute immunity by registered national securities association which performed regulatory function). The Court's concern in Mitchell with encouraging efficient performance of public duties holds equally true in the situation before us. Forcing such private contractor parties to defend meritless damages actions at trial creates the same distractions from public duties as it does for public employees. Just as qualified individuals may be deterred from public service if they are subjected to the cost and disruption of defending claims to which they are immune, so too might qualified private contractors be deterred from entering into contracts with government bodies. See Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (quoting Harlow, 457 U.S. at 816, 102 S.Ct. at 2737).

B

DeVargas sought injunctive and declaratory relief, in addition to damages, from the private defendants. Mitchell expressly left open whether a defendant may immediately appeal the denial of the defense of qualified immunity to damages claims when a claim for injunctive relief remains pending in the trial court and will be tried regardless of the appeal's outcome. 472 U.S. at 519 n. 5. This question has split the courts of appeal. Compare Bever v. Gilbertson, 724 F.2d 1083, 1086-87 (4th Cir.) (not appealable), cert. denied, 469 U.S. 948, 105 S.Ct. 349, 83 L.Ed.2d 285 (1984); Riley v. Wainwright, 810 F.2d 1006, 1007 (11th Cir.1987) (per curiam) (presence of claim for injunctive relief alternative ground for denying appeal) with Scott v. Lacy, 811 F.2d 1153 (7th Cir.1987) (per curiam) (appealable); Kennedy v. City of Cleveland, 797 F.2d 297, 306 (6th Cir.1986) (same), cert. denied, --- U.S. ----, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987); De Abadia v. Izquierdo Mora, 792 F.2d 1187 (1st Cir.1986) (same); Tubbesing v. Arnold, 742 F.2d 401 (8th Cir.1984) (same). See also Note, Qualified Immunity and Interlocutory Appeal: Is the Protection Lost When Legal and Equitable Claims are Joined?, 87 Colum.L.Rev. 161 (1987) (supporting immediate appealability); cf. Musso v. Hourigan, 836 F.2d 736, 742 n. 1 (2d Cir.1988) (allowing appeal of qualified immunity defense on one claim for damages although defendant faced potential damages liability on second claim still pending in trial court); Brown v. Texas A & M University, 804 F.2d 327, 332 (5th Cir.1986) (same).

The basic premise of the minority view is that...