Kenyatta v. Moore, 83-4753

• Decision Date: 29 October 1984
• Docket Number: No. 83-4753,83-4753
• Parties: Muhammed KENYATTA, Plaintiff-Appellee, v. Roy K. MOORE, James O. Ingram and Thomas Fitzpatrick, Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1179

744 F.2d 1179

40 Fed.R.Serv.2d 808

Muhammed KENYATTA, Plaintiff-Appellee, v. Roy K. MOORE, James O. Ingram and Thomas Fitzpatrick,

Defendants-Appellants.

No. 83-4753

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 29, 1984.

George Phillips, U.S. Atty., L.A. Smith, III, Asst. U.S. Atty., Jackson, Miss., Gordon W. Daiger, Freddi Lipstein, Appellate Staff, Barbara L. Herwig, Torts Branch Civil Div., Dept. of Justice, Washington, D.C., for defendants-appellants.

Jack D. Novik, Am. Civil Liberties Union Foundation, New York City, David Rudovsky, Philadelphia, Pa., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before RUBIN, JOLLY, and DAVIS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A civil rights activist seeks damages from Federal Bureau of Investigation officers for alleged invasion of his federal constitutional rights and for state law torts. The defendants' motions for summary judgment based on qualified immunity to the federal claims and absolute immunity to the pendent state-law claims were denied. Having twice unsuccessfully sought to appeal the rulings by certification as interlocutory orders under 28 U.S.C. Sec. 1292(b), the officers now appeal, contending that the denial of their motion, while collateral, is final in effect and, therefore, appealable as if it were a final order. ¹ We find that the order will not damage defendants' legitimate interests beyond repair if appeal awaits final judgment, and hold that it is therefore not immediately appealable. Accordingly we dismiss the appeal.

I.

Muhammed Kenyatta seeks damages from three FBI agents in their individual capacities. While no fact findings have been made, we summarize what are set forth as the pertinent facts in the appellants' brief, accepting these as the version most favorable to appealability.

In the late 1960's Kenyatta was attending Tougaloo College, in Tougaloo, Mississippi, on the outskirts of the city of Jackson. He also served as editor of the Hinds County Freedom Democratic Newspaper, which published an article urging blacks to arm themselves and to protect their community with violence if necessary. The article also contained instructions for making a Molotov cocktail.

In the latter part of 1967, one or more of the agents recommended that Kenyatta's name be placed on the FBI Agitator Index, a list designed to provide FBI field officers with a summary of information on individuals "who had established a pattern of travelling interstate to participate in demonstrations or rallies where violence had occurred." The three agents later participated in preparing and sending a letter to Kenyatta that falsely purported to be from the Tougaloo College Defense Committee, a student organization. The letter advised Kenyatta that his involvement in criminal activities was inconsistent with the kind of conduct the Committee encouraged and directed him to "remain away from [the] campus until such time as your conduct and general demeanor reach the desired level." It also warned that, if he did not, "we shall consider contacting local authorities regarding some of your activities or take other measures available to us which would have a more direct effect and which would not be as cordial as this note." Kenyatta alleged that this letter caused him to leave Mississippi.

Kenyatta was also involved in the Jackson Human Rights project. The Jackson City Prosecutor undertook to investigate the project on behalf of the Episcopal Church, which funded the project. Kenyatta contends that the three FBI agents made derogatory and false statements about him to the City Prosecutor. The FBI agents' brief refers to this episode as "an uncontested event," but, while they contend that they provided the City Prosecutor with no information and merely referred him to local law enforcement officers and local community members, Kenyatta contends that the agents themselves in addition disseminated derogatory information about him to both the City Prosecutor and another person. He contends that as a result of these actions he was injured by being deterred and chilled in his lawful activities and by being maligned and discredited.

Kenyatta also contends that his constitutional right to equal protection of the law was abridged because the FBI counter-intelligence program, which prompted the agents' activities, was "infused" by "racial animus" because it was directed only at black civil rights activists.

Following extensive discovery, the defendants moved for summary judgment in 1978, one year after the suit was filed. They contended that the suit was barred by the statute of limitations, that Kenyatta had failed to state claims for which relief could be granted, and that they were absolutely immune to the state tort claims joined as pendent to the federal constitutional claims. ²

The district court denied the motion but certified its ruling as appealable under 28 U.S.C. Sec. 1292(b). We denied leave to take an interlocutory appeal in an unpublished order issued by Judges Ainsworth, Garza, and Sam D. Johnson. In 1982, the Supreme Court decided Harlow v. Fitzgerald, ³ exacting only an objective good-faith test for qualified immunity. The agents then renewed their motion for summary judgment, asserting both absolute and qualified immunity. The district court denied the motion and again certified its order as appealable. We again rejected the attempt to appeal the order as interlocutory under Sec. 1292(b) in an unpublished order issued by Judges Brown, Tate, and Higginbotham. The agents now contend that they are entitled to appeal of right under 28 U.S.C. Sec. 1291 because the order, while interlocutory in form, is final in effect.

The 1983 opinion of the district judge on the renewed motion for summary judgment concerns only "the defendants' entitlement to qualified immunity." The court concludes, "we hold that defendants are not entitled to the qualified immunity enunciated in Harlow. The defendants' motion for summary judgment on the issue of qualified immunity from liability is denied." While the order simply denies the motion for summary judgment, it is apparent that the district judge had simply not considered the issue of absolute immunity at that time; for, in the opinion certifying the order for interlocutory appeal, the court again refers only to the qualified immunity issue. We first address the issue of appealability of the 1983 ruling on qualified immunity. Then we turn to appealability of the 1979 ruling on absolute immunity.

II.

Under the Judiciary Act of 1789 federal appellate jurisdiction is confined to appeals from "all final decisions." That policy has remained the fundament of federal appellate jurisdiction. ⁴ The rule permitting appeals only from final judgments "is an historic characteristic of federal appellate procedure." ⁵ It represents the "firm congressional policy against interlocutory or 'piecemeal' appeals and courts have consistently given effect to that policy." ⁶

This rule is not arbitrary but functional. It helps to preserve the respect due trial judges by minimizing appellate-court interference. ⁷ It "reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals" and it hence is "crucial to the efficient administration of justice." ⁸

In what has been called a "narrow exception" to that rule, interlocutory appeals are permitted in a small class of cases in which an order, though technically not final, nonetheless is so collateral as to be effectively unreviewable on appeal from the final judgment. ⁹ The FBI agents seek to fit their appeal within that class on the basis that the denial of summary judgment recognizing qualified immunity subjects the government official invoking that defense to a trial on the merits despite a central purpose of the defense, the protection it affords against not only ultimate liability but also against exposure to trial.

This court, like every other court that has considered the issue, has concluded that the denial of absolute immunity is immediately appealable. ¹⁰ The "purpose behind absolute immunity is as much to protect the relevant persons from a trial on their actions as it is to protect them from the outcome of trial." ¹¹ Therefore those who enjoy absolute immunity are entitled to defeat the suit at the outset. ¹² "To wait until after the trial for the appellate review of claims of absolute immunity subverts a basic rationale of the doctrine ...." ¹³ Similarly, the mistaken rejection of a defense of double jeopardy to a criminal charge subjects the accused to a trial that the Constitution forbids; hence such an order is immediately appealable. ¹⁴ For the same reason, legislators are entitled to immediately appeal denial of a motion to dismiss based on the Speech or Debate clause. ¹⁵

In some measure the policy of qualified immunity is designed to protect government officials not only from being cast in judgment but from being exposed to trial. But the very reason for the distinction between those officials who enjoy absolute immunity and those whose protection is qualified is that some officials are entitled to a lesser measure of protection. Their actions may subject them to liability unless undertaken with reasonable regard for federal statutory and constitutional rights.

In Harlow the Supreme Court simplified the qualified immunity defense, jettisoning the previous requirement of good faith, and announced a simple objective standard: whether a defendant violated "clearly established" law at the time of his alleged constitutional violation. ¹⁶ It reformulated the test because the prior "good faith" test was thought to raise an inherent question of fact requiring resolution at trial, a result that was "incompatible with [the Court's] admonition in Butz that insubstantial claims should not proceed to trial." ¹⁷...