DiMartini v. Ferrin

• Citation: 889 F.2d 922
• Decision Date: 21 November 1989
• Docket Number: No. 88-1771,88-1771
• Parties: Herman Louis DiMARTINI, Plaintiff/Appellee, v. Lynn Jay FERRIN, Special Agent, Federal Bureau of Investigation, Defendant/Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 922

889 F.2d 922

Herman Louis DiMARTINI, Plaintiff/Appellee, v. Lynn Jay FERRIN, Special Agent, Federal Bureau of

Investigation, Defendant/Appellant.

No. 88-1771.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 15, 1989.

Decided Nov. 21, 1989.

Deborah Ruth Kant, Dept. of Justice, Washington, D.C., for defendan/appellant.

Lawrence J. Semenza, Reno, Nev., for plaintiff/appellee.

Appeal from United States District Court for the District of Nevada.

Before GOODWIN, Chief Judge, PREGERSON and REINHARDT, Circuit Judges.

GOODWIN, Chief Judge:

This interlocutory appeal arises out of a suit by Di Martini seeking damages and injunctive relief from FBI Special Agent Ferrin. Di Martini sued Ferrin in his individual capacity under the cause of action recognized in Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Ferrin moved for summary judgment on the ground that he was entitled to qualified immunity. The district court denied the motion and Ferrin appeals.

We must consider first whether an order denying summary judgment based on qualified immunity is immediately appealable when the plaintiff seeks injunctive relief as well as money damages. We will consider whether it was error to deny Ferrin's motion for summary judgment if we have jurisdiction to consider the merits.

In the course of an FBI investigation of organized crime in Las Vegas casinos, Special Agent Ferrin interviewed Di Martini, an employee at the Stardust Hotel and Casino, concerning his knowledge of illegal activities at the Stardust. Di Martini denied such knowledge. After various employees of the Stardust were indicted, Agent Ferrin again contacted Di Martini, who was then working at the Sands Hotel, to request his assistance in the upcoming criminal trial. Di Martini reiterated that he had no knowledge that those named in the indictments were engaged in criminal activity. Thereafter, the Sands Hotel dismissed Di Martini from his position.

Di Martini then commenced this Bivens action seeking equitable relief and damages from Ferrin. He alleged that Ferrin attempted to harass and intimidate him into cooperating in a criminal investigation. He also alleged that out of malice and in order to retaliate for Di Martini's refusal to cooperate, Ferrin caused Di Martini to be discharged from his employment at two casinos, damaged his name and reputation, and thereby prevented him from securing other employment. Accordingly, Di Martini alleged that Ferrin violated his free speech and association rights, his privacy rights under the ninth and tenth amendments, his equal protection rights, and his fifth amendment due process rights.

Ruling on a motion to dismiss, the district court rejected as frivolous all but the fifth amendment claim. Di Martini does not appeal this ruling. The district court found that the facts as alleged could give rise to a fifth amendment violation.

Before discovery took place on the fifth amendment claim, Ferrin moved for summary judgment on the basis of qualified immunity, arguing that his actions, even as alleged, did not violate clearly established fifth amendment rights. Ferrin also filed a motion for a protective order staying all discovery pending the court's ruling on the qualified immunity issue. The district court granted the protective order, Order, CV-S-85-001-LDG (July 30, 1987), and subsequently denied the motion for summary judgment. Ferrin filed a timely appeal.

I. JURISDICTION

As a threshold matter, we must decide whether we have jurisdiction to hear this appeal. A district court's order denying a motion for summary judgment ordinarily is not reviewable. Wood v. Ostrander, 879 F.2d 583, 591 (9th Cir.1989). The Supreme Court has held, however, that an order denying qualified immunity in a section 1983 action for money damages is immediately appealable under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). The question whether such denials are appealable when a claim for equitable relief is also pending in the trial court, however, remains open in this circuit and divides others.

We hold with the majority of courts, that the collateral order doctrine entitles officials to interlocutory review of denials of immunity, even though claims for equitable relief are joined with damage claims. See De Vargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 717-20 (10th Cir.1988); Young v. Lynch, 846 F.2d 960, 961 (4th Cir.1988); Drake v. Scott, 812 F.2d 395, 398 (8th Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987); Scott v. Lacy, 811 F.2d 1153, 1153-54 (7th Cir.1987); De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1190 (1st Cir.1986); Kennedy v. City of Cleveland, 797 F.2d 297, 305-06 (6th Cir.), cert. denied, 479 U.S. 1103, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987); Tubbesing v. Arnold, 742 F.2d 401, 404 (8th Cir.1984); see also Musso v. Hourigan, 836 F.2d 736, 742 n. 1 (2d Cir.1988) (appellate jurisdiction proper over fourth amendment immunity claim though other damages claim pending). Contra Prisco v. United States, Department of Justice, 851 F.2d 93, 95-96 (3rd Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 2428, 104 L.Ed.2d 985 (1989); Riley v. Wainwright, 810 F.2d 1006, 1007 (11th Cir.1987) (per curiam) (presence of claim for injunctive relief alternative ground for denying appeal); but see Marx v. Gumbinner, 855 F.2d 783, 787-88 (11th Cir.1988) (siding with the majority view; no attempt to distinguish Riley ); Bever v. Gilbertson, 724 F.2d 1083, 1088 (4th Cir.) cert. denied, 469 U.S. 948, 105 S.Ct. 349, 83 L.Ed.2d 285 (1984).

Under the collateral order doctrine, an interlocutory order is appealable if it is effectively unreviewable on appeal from final judgment, conclusively determines the disputed question, and resolves an important issue separable from the merits of the action. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978). Applying this test, the Supreme Court reasoned in Mitchell that the denial of a claim for absolute immunity is appealable immediately because the essence of the claim is "its possessor's entitlement not to have to answer for his conduct in a civil damages action." 472 U.S. at 525, 105 S.Ct. at 2815. The Court concluded that qualified immunity is also an entitlement not to be sued, an entitlement which would be lost if the case erroneously went to trial. Thus, such a claim would be effectively unreviewable at a later stage of the litigation. Id. at 525-27, 105 S.Ct. at 2815-16. Turning to the remaining two requirements under the collateral order doctrine, the Court concluded that denials of qualified immunity would determine conclusively the disputed question and could be considered separable from, and collateral to, the rights asserted in the action. Id. at 527-29, 105 S.Ct. at 2816-17. In a footnote, however, the Court expressly reserved the question whether orders denying qualified immunity in cases seeking both damages and equitable relief similarly could be appealed at the interlocutory stage. Id. at 519 n. 5, 105 S.Ct. at 2812 n. 5.

The Third Circuit has answered this question in the negative, holding that the inclusion of a claim for equitable relief defeats the immediate appealability of a denial for qualified immunity. Prisco, 851 F.2d at 96. The court reasoned that the rationale favoring immediate review of denials of qualified immunity "has only the slightest application to a case involving claims for both prospective relief and money damages." Id. at 96. "That rationale is that the collateral interest being protected is the freedom from having to defend a lawsuit; this interest ... is lost beyond recall even if the [government official] prevails at trial." Id. (emphasis in original). Because the defense of qualified immunity is inapplicable to claims for prospective relief, a suit seeking both prospective relief and money damages does not end for the official who successfully asserts a defense of immunity. Id.

We do not consider the benefit to an official from interlocutory review in these cases to be marginal, however. Rather, we agree with the view of the majority of the circuits that "there are considerable differences in both time and expense in defending a case that involves both damages and equitable relief as contrasted to a case that involves equitable relief alone." Young, 846 F.2d at 962. In fact, the Seventh Circuit has noted that "[a]s a practical matter, a public official who is a defendant in a suit seeking an injunction is not 'on trial' at all. The suit seeks relief against him in his official capacity; he need not attend the trial, which will be conducted by attorneys representing the governmental body. If he leaves office during the interim, he leaves the case behind and his successor becomes the party." Scott, 811 F.2d at 1153-54.

Moreover, the collateral order doctrine itself entitles officials to interlocutory review of denials of immunity, even though claims for equitable relief are involved. First, a denial of qualified immunity in a case combining legal and equitable claims is as unreviewable at a later stage as is a denial of qualified immunity involving only legal claims. The Mitchell Court determined that the essence of the immunity is the right to avoid trial. Likewise, as the Seventh Circuit noted, a public official who is a defendant in a suit seeking an injunction is not really on trial at all, and the "declaration that the official is immune from damages ends the case for that official personally, even though it may not end the case for the body he represents." Scott, 811 F.2d at 1153. Thus, the fact that a suit includes equitable claims does not make the immunity decision any less "effectively unreviewable" than a suit involving only legal claims.

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