Green v. Brantley

• Decision Date: 08 March 1990
• Docket Number: No. 89-8150,89-8150
• Citation: 895 F.2d 1387
• Parties: John E. GREEN, Plaintiff-Appellee, v. J. Kenneth BRANTLEY, Edgar V. Lewis, Craig R. Smith, Garland P. Castleberry, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1387

895 F.2d 1387

16 Fed.R.Serv.3d 1492

John E. GREEN, Plaintiff-Appellee, v. J. Kenneth BRANTLEY, Edgar V. Lewis, Craig R. Smith, Garland

P. Castleberry, Defendants-Appellants.

No. 89-8150.

United States Court of Appeals, Eleventh Circuit.

March 8, 1990.

James R. Schulz, Asst. U.S. Atty., Atlanta, Ga., Barbara L. Herwig, Appellate Staff, Civil Div., Wendy M. Keats, Dept. of Justice, Washington, D.C., for defendants-appellants.

Gerald Cunningham, Office of Gerald Cunningham, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before VANCE ^* and KRAVITCH, Circuit Judges, and LYNNE, ^** Senior District Judge.

VANCE, Circuit Judge:

This is an interlocutory appeal of the denial of a motion for summary judgment on the ground of qualified immunity. 719 F.Supp. 1570 (N.D.Ga.1989). Defendants allege appellate jurisdiction under 28 U.S.C. Sec. 1291, citing Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We conclude that Mitchell does not apply and dismiss the appeal for want of jurisdiction.

I. BACKGROUND

From 1974 until the events underlying this litigation, plaintiff-appellee John Green held a Designated Pilot Examiner's ("DPE") certificate. DPE certificates are issued by the Federal Aviation Administration ("FAA") to private pilots pursuant to 49 U.S.C.App. Sec. 1355(a). A DPE certificate entitles the holder to conduct flight certification examinations and prepare the accompanying reports, for which he or she may charge a reasonable fee. Green received twelve one-year renewals and his latest term was set to expire on December 31, 1986.

The Mid-South Flight Standards District Office ("FSDO") of the FAA supervises the examiners in the Atlanta area where Green worked. Defendant Brantley is an Operations Inspector at the Mid-South FSDO. Defendant Lewis is the Operations Unit Supervisor of the Mid-South FSDO and Brantley's immediate supervisor. Defendant Craig is the Manager of the Mid-South FSDO and Lewis's immediate supervisor. Defendant Castleberry is the Regional Director of the FAA.

In early 1986, Brantley initiated an investigation of the pilot examiners' program under the jurisdiction of the Mid-South FSDO. Brantley reviewed Green's monthly activity report and discovered amounts of time spent on flight checks that Brantley considered inadequate. The defendants had earlier received complaints that Green had spent less time on his flight tests than the regulations required. Brantley reported Green's alleged irregularities to Lewis, who then authorized Brantley to conduct a preliminary investigation of Green's performance as an examiner.

In early June 1986, Brantley informed Green that he was being investigated. Brantley said that the FAA was concerned with the brevity of Green's flight tests, but did not present Green with specific charges, allow him to examine the records and complaints upon which any such charges were based, or allow him to respond. The defendants' silence continued even after Green wrote to Smith twice requesting that he be informed immediately of any charges and of any evidence against him.

In early July 1986, Brantley called Green and summoned him to a meeting the next day to discuss the investigation. Defendants refused to reschedule the meeting even though Green had booked several check rides that day. Lewis also refused to allow Green to bring an attorney to the meeting. At the meeting, Lewis and Smith told plaintiff that the time he had spent on flight checks was insufficient and that there were numerous written and oral complaints concerning his conduct as an examiner. At the conclusion of the meeting, Green was handed a letter summarizing the preceding discussion. Shortly thereafter Smith revoked Green's DPE certificate by letter. Green was never apprised of the evidence against him or given the opportunity to respond, although he specifically requested the FAA to do both of these things before and during the meeting. Smith had discussed Green's case with FAA attorneys, who advised him that he could revoke Green's certificate without holding a formal hearing.

Green brought this Bivens action against the four FAA officials. In his complaint, he alleged two constitutional violations. ¹ First, he alleged that by revoking his DPE certificate without adequate notice and a fair hearing defendants denied him a property right protected by the Administrative Procedure Act ("APA") and the fifth amendment. See White v. Franklin, 637 F.Supp. 601, 609 (N.D.Miss.1986). Green also alleged that defendants released stigmatizing information about him which damaged his professional reputation, thereby depriving him of a liberty interest without due process. See Campbell v. Pierce County, 741 F.2d 1342, 1344 (11th Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985).

Defendants filed a motion for summary judgment as to the property interest claim on the ground of qualified immunity. The district court denied their motion, finding that Green's DPE certificate was a "license," that Green was therefore entitled to the due process protection of the APA, and that this right had been clearly established by White v. Franklin, 637 F.Supp. 601 (N.D.Miss.1986). Defendants appealed to this court, basing the jurisdiction of their appeal on Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

II. DISCUSSION

Mitchell v. Forsyth holds that the denial of a motion for summary judgment based on qualified immunity in a suit involving only legal claims is appealable as a collateral order under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Under Cohen, a decision of the district court is appealable if it falls within "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 appellate consideration be deferred until the whole case is adjudicated." 337 U.S. at 546. Because the facts of Mitchell and those of the present case differ in material respects, we have examined the policies behind the qualified immunity doctrine, the final judgment rule, the collateral order doctrine, and the Mitchell decision to determine whether this case warrants the extension of the collateral order doctrine. For the following reasons, we conclude that it does not.

A. The Doctrine of Qualified Immunity

The doctrine of qualified immunity provides that government officials performing discretionary duties are immune from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). This doctrine balances several extremely important but conflicting concerns. On one hand, an action for damages may provide the only remedy for one whose constitutional rights have been violated by a government official. Id. at 814, 102 S.Ct. at 2736. Furthermore, the possibility that such actions might be filed hopefully "deter[s] governmental officials from abusing their power in derogation of the Constitution." Note, Qualified Immunity for Government Officials: The Problem of Unconstitutional Purpose in Civil Rights Litigation, 95 Yale L.J. 126, 128 (1985). But see Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum.L.Rev. 247, 284 (1988) (concluding in the context of suits against police officers that "the conditions of constitutional tort litigation ... are ones in which the deterrent effect is likely to be on the low side").

On the other hand, lawsuits against government officials impose large social costs in addition to those borne personally by the defendants. Litigation diverts government energy and financial resources from pressing public problems. Harlow, 457 U.S. at 814, 102 S.Ct. at 2736. The threat of personal liability may discourage able persons from accepting public office. Id. Finally, the fear of being sued may deter an official from executing his or her office with the decisiveness and judgment required by the public good. Scheuer v. Rhodes, 416 U.S. 232, 240-41, 94 S.Ct. 1683, 1688-89, 40 L.Ed.2d 90 (1974). Thus, the doctrine of qualified immunity recognizes the importance of vindicating constitutional wrongs but also recognizes that "claims frequently run against the innocent as well as the guilty--at a cost not only to defendant officials, but to society as a whole. See generally Schuck, Suing Our Servants: The Court, Congress, and the Liability of Public Officials for Damages, 1980 S.Ct.Rev. 281, 324-27." Harlow, 457 U.S. at 814, 102 S.Ct. at 2736.

B. Appeals from the Denial of Summary Judgment Under Mitchell

In order to safeguard the policies underlying the doctrine of qualified immunity, the Supreme Court has determined that a denial of summary judgment on qualified immunity grounds, to the extent that it turns on an issue of law, is appealable under the collateral order exception to the final judgment rule. Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817.

The final judgment rule derives its name from 28 U.S.C. Sec. 1291, which vests federal appellate courts with "jurisdiction of appeals from all final decisions of the district courts ... except when direct review may be had in the Supreme Court." The Supreme Court has interpreted this language to forbid an appeal under section 1291 unless there has been "a decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65...