Abel v. Miller

• Decision Date: 13 June 1990
• Docket Number: No. 89-3086,89-3086
• Citation: 904 F.2d 394
• Parties: Jacqueline ABEL, et al., Plaintiffs-Appellees, v. Harold MILLER, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 394

904 F.2d 394

Jacqueline ABEL, et al., Plaintiffs-Appellees, v. Harold MILLER, et al., Defendants-Appellants.

No. 89-3086.

United States Court of Appeals Seventh Circuit.

Submitted April 24, 1990.

Decided June 13, 1990.

James B. Roberts, Southern Illinois University, School of Law, Carbondale, Ill., Jan Susler, Michael E. Deutsch, and Charles W. Hoffman, Peoples Law Office, Chicago, Ill., for plaintiffs-appellees.

Richard H. Lloyd, Asst. U.S. Atty., Office of the U.S. Atty., East St. Louis, Ill., Martin C. Carlson, and Beneva Weintraub, Dept. of Justice, Gen. Litigation/Legal Advice Section, Washington, D.C., for defendants-appellants.

Before EASTERBROOK and RIPPLE, Circuit Judges, and GRANT, Senior District Judge. ^*

EASTERBROOK, Circuit Judge.

Pending for almost a decade, this case dealing with the response to a prisoners' "strike" at the Marion federal prison in 1980 is on its third appeal. After the district judge refused to require the warden to allow counsel to meet with the prisoners, we reversed in an unpublished order and directed the entry of an injunction. A jury trial was held in 1984. The jury awarded damages to four persons who had been excluded from the prison during the disturbances. On the second appeal we vacated the awards, concluding that for the most part the defendants are entitled to qualified immunity. 824 F.2d 1522 (7th Cir.1987). One claim survived: the contention that the defendants retaliated against counsel for speaking in public about conditions at Marion and initiating litigation. Id. at 1534-36. We remanded "for a new trial on the attorneys' and paralegal's retaliation claims", id. at 1537 (footnote omitted). The panel withheld decision on the defendants' petition for rehearing until the court decided Rakovich v. Wade, 850 F.2d 1180 (7th Cir.1988) (en banc). We then unanimously denied the petition, one judge issuing a brief explanation, 849 F.2d 1018 (1988).

Back in the district court, defendants filed a motion for summary judgment on immunity grounds. The district judge denied the motion on the basis of the law of the case. Although Rakovich holds, among other things, that immunity is a question of law for the court, 850 F.2d at 1201-02, the district judge wrote that because the defendants' entitlement to immunity depends on the resolution of factual disputes, it "can be determined only by the trier of fact, the jury." Defendants took this appeal to contend either that Rakovich overruled the panel's opinion and entitles them to immunity as a matter of law or that the panel's opinion read in light of Rakovich requires decision in their favor. We directed the parties to file memoranda on the question whether Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), authorizes an appeal in such circumstances. We now hold that it does not and dismiss the appeal for want of jurisdiction.

This case, like Rakovich, may involve action on the basis of both lawful and unlawful motives. We held in 1987 that action supported by a retaliatory motive was clearly unlawful in 1980. The opinion concurring in the denial of rehearing invited the defendants to adduce evidence concerning their motives, implying that immunity might be available notwithstanding a "bad" motive if one or more "good" motives would have supported the same decision. Rakovich accepted an argument along these lines, 850 F.2d at 1209-14, a possibility the panel did not consider in 1987 because the defendants had not made such an argument. Instead of putting additional evidence before the district court, the defendants contend that they are entitled to judgment forthwith.

Mitchell does not contemplate sequential appeals. The jurisdictional basis for appeal is 28 U.S.C. Sec. 1291, which authorizes appellate review of "final decision[s]". Because official immunity entails a "right not to be tried", the Court held, an order sending the case on to trial "finally" disposes of that independent entitlement, which permits an immediate appeal. Three years ago, we considered whether defendants have a "right not to be tried" on the current record. We held that with respect to the claim of retaliation, they lack such an entitlement. Although defendants now insist that our decision was mistaken, the fact remains that their entitlements have been fully adjudicated by this court. Mitchell does not support a second appeal to argue that the decision on the first appeal is wrong.

Unless courts of appeals are careful, appeals on the authority of Mitchell could ossify civil rights litigation. Defendants may defeat just claims by making suit unbearably expensive or indefinitely putting off the trial. A sequence of pre-trial appeals not only delays the resolution but increases the plaintiffs' costs, so that some will abandon their cases even though they may be entitled to prevail. See Apostol v. Gallion, 870 F.2d 1335 (7th Cir.1989). Although it is important to protect public officials from frivolous claims and burdens of trials, it is also important to curtail the outlay and delay of litigation, so that victims of official misconduct may receive the vindication that is their due. A single pretrial appeal is a sound accommodation of competing interests; multiple appeals are not.

We could not find any case resolving the question whether there may be sequential appeals. Kennedy v. Cleveland, 797 F.2d 297 (6th Cir.1986), implies that the defendants may have one appeal at the pleading stage and a second on summary judgment--the first to argue absolute immunity, the second to take up qualified immunity as a matter of law. Accord, Murphy v. Morris, 849 F.2d 1101, 1103-04 (8th Cir.1988). Kaiter v. Boxford, 836 F.2d 704 (1st Cir.1988), holds to the contrary that claims of absolute and qualified immunity may produce only one appeal between them, so that a defendant whose qualified immunity defense remains under advisement may not immediately appeal the denial of absolute immunity. We need not choose between these positions, for the First and Sixth Circuits assume that there may be only one appeal on the subject of qualified immunity. As the Sixth Circuit said in Sinclair v. Schriber, 834 F.2d 103, 105 (1987), when holding that an order allowing discovery to produce a record sufficient to allow decision on a motion for summary judgment is not independently appealable: "Forsyth ... did not contemplate ... that plaintiffs might be subjected to an endless number of successive appeals before trial." See also Unwin v. Campbell, 863...