Green v. Brantley, 89-8150

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation941 F.2d 1146
Docket NumberNo. 89-8150,89-8150
Parties, 21 Fed.R.Serv.3d 1048 John E. GREEN, Plaintiff-Appellee, v. J. Kenneth BRANTLEY, Edgar V. Lewis, Craig R. Smith, Garland P. Castleberry, Defendants-Appellants.
Decision Date12 September 1991

Page 1146

941 F.2d 1146
60 USLW 2196, 21 Fed.R.Serv.3d 1048
John E. GREEN, Plaintiff-Appellee,
J. Kenneth BRANTLEY, Edgar V. Lewis, Craig R. Smith, Garland
P. Castleberry, Defendants-Appellants.
No. 89-8150.
United States Court of Appeals,
Eleventh Circuit.
Sept. 12, 1991.

Page 1147

James R. Schulz, Asst. U.S. Atty., Atlanta, Ga., Barbara L. Herwig, Wendy M. Keats, Robert Kopp, Supv. Atty., Appellate Staff, Civ. Div., 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.


EDMONDSON, Circuit Judge:

In this civil rights case, we decide whether we have jurisdiction to hear an interlocutory appeal from a denial of summary judgment on the ground of qualified immunity when the defendant must still face trial on another claim arising from the same occurrence. Defendants appeal the denial of summary judgment on one of two civil rights damage claims asserted against them but concede that the remaining claim must go to trial. A panel of this court refused jurisdiction, but we vacated that opinion to consider the case en banc. We now conclude that the denial of summary judgment based on qualified immunity is appealable as a collateral order under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), even if an additional damage claim will proceed to trial regardless of the outcome of the appeal.


The facts of this case are set out more extensively in the panel's opinion. Green v. Brantley, 895 F.2d 1387, 1389-90 (11th Cir.), reh'g granted and opinion vacated, 921 F.2d 1124 (11th Cir.1990). We offer only the following summary.

Plaintiff John Green brought this Bivens action against four officials of the Federal Aviation Authority in their personal capacities after a dispute over the revocation of plaintiff's Designated Pilot Examiner's ("DPE") certificate. Plaintiff has alleged two constitutional violations. 1 First, plaintiff claims he was denied a property right protected by the Administrative Procedure Act ("APA") and the Fifth Amendment when defendants revoked his DPE certificate without adequate notice and a fair hearing. Second, plaintiff claims that defendants released stigmatizing information about him that damaged his professional reputation, thereby depriving him of a liberty interest without due process.

Defendants moved for summary judgment on both claims, asserting qualified immunity from suit. The district court denied the motion, concluding that the DPE certificate was a "license" afforded the due process protection of the APA and that this right was clearly established in White v. Franklin, 637 F.Supp. 601 (N.D.Miss.1986). 2 The district court did not rule directly

Page 1148

on defendant's assertion of qualified immunity on the liberty interest claim, concluding that summary judgment was improper because "an issue of fact exists for the jury as to whether the defendants released information that damaged the plaintiff's reputation prior to his termination." Green v. Brantley, 719 F.Supp. 1570, 1576 (N.D.Ga.1989). 3 Defendants chose to appeal only the denial of summary judgment and qualified immunity on the property interest claim; they asserted appellate jurisdiction under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

A panel of this court ruled that it lacked appellate jurisdiction, concluding that "the facts of Mitchell and those of the present case differ in material respects." 895 F.2d at 1390. After examining the policies underlying qualified immunity, the final judgment rule, the collateral order doctrine, and the decision in Mitchell, the panel concluded that "the denial of summary judgment on the ground of qualified immunity is not a collateral order whenever the defendants would be subjected to a trial for damages arising from the same common nucleus of operative facts regardless of the outcome of the motion." Id. at 1394.



The doctrine of qualified immunity affords immunity from suit to government officials performing discretionary functions as long 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). Noting that legal claims "frequently run against the innocent as well as the guilty," the Supreme Court fashioned this "objective reasonableness" standard as a way of protecting defendant officials, as well as society as a whole, from the "social costs" exacted by "insubstantial claims." Id. at 813-14, 102 S.Ct. at 2736.

In Mitchell v. Forsyth, the Supreme Court held that a district court's denial of a claim of qualified immunity is among that small class of decisions that, despite the absence of a final judgment, are appealable "final decision[s]" within the meaning of 28 U.S.C. § 1291. Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817. Applying the "collateral order" exception to the final judgment rule, the Court concluded that the denial of a qualified immunity claim is effectively unreviewable on appeal from a final judgment and "easily meets" the remaining two criteria for an appealable interlocutory decision by conclusively determining the disputed question and by resolving a claim of right separable from, and collateral to, rights asserted in the action. Id. at 527, 105 S.Ct. at 2816 (citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)).

The only relevant distinction between this appeal and the appeals in Mitchell and Harlow is the decision by defendant officials in this case to assert on appeal that they are entitled to qualified immunity from suit on only one of the two claims facing them. As a result, defendants here will still face trial on the liberty/reputational interest claim whether or not we conclude they are immune from suit on the property interest claim. We think this distinction is immaterial, as the same concerns

Page 1149

that led the Supreme Court to refashion the doctrine of qualified immunity in Harlow and to allow the immediate appeal of qualified immunity denials in Mitchell apply with substantial force here.

Throughout its discussion of the doctrine of qualified immunity, the Harlow Court made no distinction between those cases that might be completely resolved through a summary judgment motion asserting qualified immunity and those cases in which only some claims were subject to dismissal on the ground of qualified immunity from suit. The Court said that the chief objective behind qualified immunity was to avoid the social costs associated with forcing public servants to defend themselves against erroneous claims. We do not read Harlow to suggest that these costs are avoided only when the official escapes trial entirely by asserting immunity from suit on all the claims facing him. Rather, the Harlow Court concluded that "public policy mandates an application of the qualified immunity standard [in a way] that would permit the defeat of insubstantial claims without resort to trial." Id. at 813, 102 S.Ct. at 2736 (emphasis added). 4

Harlow recognized the importance of shielding public officials from the threat of litigation arising out of their official functions. "[W]here an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken 'with independence and without fear of consequences.' " Id. at 819, 102 S.Ct. at 2738 (quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967)). In Mitchell, the Court made it clear that these "consequences" include not just liability, but "the general costs of subjecting officials to the risks of trial." Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. The Court recognized the menacing nature of personal liability, but also recognized the chilling prospect of forcing government officials to defend against claims from which they are properly immune and consequently saw qualified immunity as an "entitlement not to stand trial or face the other burdens of litigation." Id. (emphasis added). The Court recently reaffirmed this objective in Siegert v. Gilley, --- U.S. ----, 111 S.Ct. 1789, 114 L.Ed.2d 277, reh'g denied --- U.S. ----, 111 S.Ct. 2920, 115 L.Ed.2d 1084 (1991), noting that "[o]ne of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit." Id. at 1793; see also id. at 1795 (Kennedy, J., concurring) ("[A]voidance of disruptive discovery is one of the very purposes for the official immunity doctrine....").

A defendant's litigation burdens are lessened when a claim is dismissed, and he then defends against fewer claims. If a court grants qualified immunity on one civil rights issue and the defendant goes to trial on a separate issue, discovery can be limited to the issue for which the defendant official has no immunity. With at least some civil rights claims disposed of favorably for the defendants, the plaintiffs may voluntarily withdraw or settle the remaining claims. The duration of the trial--if there is a trial--will likely be shortened, the issues simplified, and the focus narrowed.

Page 1150

The defendant's attorney's fees and costs may be reduced. If the remaining claims are not civil rights claims, the burden of proof and measure of damages may be very different, and damages may be substantially less than allowed in a civil rights action. Cf. Roper v. Edwards, ...

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