Mendocino Environmental Center v. Mendocino County

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation14 F.3d 457
Docket NumberNo. 93-15144,93-15144
PartiesMENDOCINO ENVIRONMENTAL CENTER, Plaintiff, Judi Bari, et al., Plaintiffs-Appellees, v. MENDOCINO COUNTY, Defendant, Richard W. Held, Frank Doyle, Jr., David R. Williams, John Rikes, Defendants-Appellants.
Decision Date12 January 1994

Richard A. Olderman, Frank W. Hunger, Asst. Atty. Gen., Michael J. Yamaguchi, U.S. Atty., Barbara L. Herwig, Dept. of Justice, Washington, DC, for defendants-appellants.

Dennis Cunningham, San Francisco, CA, William M. Simpich, Oakland, CA, for plaintiffs-appellees.

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

Before: LAY, * THOMPSON, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

FBI Agents Richard W. Held, Frank Doyle, Jr., David R. Williams, and John Rikes appeal the district court's order denying their motion to dismiss certain claims in the Bivens 1 action filed against them by Judi Bari and Darryl Cherney. Bari and Cherney were injured when a bomb in Bari's car exploded. Bari and Cherney filed a complaint (thrice amended) against the FBI Agents and numerous California municipalities and their law enforcement officers (State Officers), alleging that all violated a number of their rights under the Federal and State Constitutions.

Both the FBI Agents and the State Officers filed motions to dismiss. They argued, inter alia, that they were entitled to qualified immunity and that the complaint failed to satisfy the "heightened pleading standard" applicable in Sec. 1983 and Bivens actions against individual officers whose subjective intent is an element of the plaintiff's constitutional tort. Branch v. Tunnell, 937 F.2d 1382, 1386 (9th Cir.1991) (Branch I ). The district court granted the motion with respect to several of Bari and Cherney's claims. With respect to three causes of action against the FBI Agents, however, the district court denied the motion. They filed this timely interlocutory appeal, asserting the district court erred in holding that Bari and Cherney's complaint satisfied the heightened pleading standard. We affirm.


Bari and Cherney are members of Earth First!, an environmental advocacy organization that opposes, inter alia, logging practices in Northern California. In February 1990, Earth First! members announced plans for "Redwood Summer," a nonviolent political campaign patterned after the civil rights campaigns in the South during the 1960s; they invited large numbers of young people from across the country to participate in a "Mississippi Summer in the Redwoods," demonstrating, agitating, and organizing against "clear cutting" and other logging industry practices that Earth First! members thought harmful to the environment.

The activities of Earth First!, and the Redwood Summer project in particular, generated considerable opposition and animus among individuals in the logging and timber industry. Bari and Cherney allege that local law enforcement officials in several Northern California counties shared that animus, and that those officials did nothing to protect Bari and Cherney from threats and harassing activities directed against them. As the date for Redwood Summer approached, Bari and Cherney allege that these law enforcement officials formed a "federation or consortium" with one another and with the FBI (which, according to Bari and Cherney, had a preexisting "counterintelligence" investigation of Earth First!) to "disrupt, suppress and neutralize" the program and its organizers.

On May 24, 1990, while Bari and Cherney were engaged in a speaking and concert tour in Oakland, a bomb detonated in Bari's car, severely injuring her and Cherney. Oakland police, working with the FBI, investigated the bombing incident and subsequently arrested Bari and Cherney on charges of transporting explosives. Officers obtained search warrants, and thereafter searched Bari's and Cherney's property and seized certain items.

While the investigation was ongoing, law enforcement officials released to the press information about what they claimed to have discovered. In particular, law enforcement officials disseminated reports that the bomb was located behind Bari's seat (thus suggesting that she and Cherney knew the bomb was in the car) and that they had retrieved nails from Bari's home that matched nails placed in the explosive device for shrapnel. Bari and Cherney allege that these press releases were made to "smear" them and other Earth First! members as "terrorists and violent fanatics."

Bari and Cherney filed their initial complaint on April 8, 1991. They subsequently amended that complaint on May 21, 1991, adding the FBI Agents as defendants. In response to a consolidated motion to dismiss, Bari and Cherney submitted a second amended complaint. At a status conference attended by all parties, the district court indicated to Bari and Cherney that this second amended complaint was more deficient than was their first and did not grant them leave to file it. Bari and Cherney then submitted a third amended complaint, which the district court granted them leave to file.

The FBI Agents and the State Officers moved to dismiss the third amended complaint on numerous grounds. For purposes of this appeal, the relevant motion is that of the FBI Agents based on their assertion of qualified immunity and Bari and Cherney's inability to meet the heightened pleading standard of Branch I. The district court granted that motion with respect to some of Bari and Cherney's claims, but it held that four causes of action against these Agents could proceed to discovery.

The FBI Agents filed a motion for reconsideration. In response to that motion, Bari and Cherney agreed to dismiss their claim against the FBI Agents for alleged violations of the California Constitution. The district court thereafter denied the motion for reconsideration. Hence, three claims remained against the FBI Agents, who then filed this timely appeal.


Bari and Cherney contest our jurisdiction to hear this appeal. They argue that the appeal is untimely, since the State Officers, whose motions to dismiss the district court also denied in part, answered the complaint but are likely to file their own interlocutory appeal in the event the district court denies their summary judgment motion. Insisting that the FBI Agents' and the State Officers' (predicted) appeals both are "essentially baseless, and only dilatory and oppressive," Bari and Cherney argue that the denial of qualified immunity should not be considered "final" for purposes of Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985) (order denying qualified immunity is final for purposes of the collateral order doctrine and may be appealed immediately), until the pleadings are closed. This argument fails.

Branch I makes it clear that the "heightened pleading standard" is part of qualified immunity analysis, and that a district court's denial of a motion to dismiss premised on the inadequacy of a plaintiff's factual allegations in such a case is an immediately-appealable collateral order. See 937 F.2d at 1383. The "denial of qualified immunity is an appealable 'final' order ... regardless of whether that denial takes the form of a refusal to grant a defendant's motion to dismiss or a denial of summary judgment." Pelletier v. Federal Home Loan Bank, 968 F.2d 865, 870 (9th Cir.1992) (emphasis added) (citation omitted). We have refused, however, to allow "an official defendant claiming qualified immunity [to] take advantage of the several opportunities for immediate appeal afforded him by bringing repeated pretrial appeals." Id. "One such interlocutory appeal is all that a government official is entitled to and all that we will entertain." Id. at 871 (emphasis added).

Contrary to Bari and Cherney's assertion, nothing in Pelletier suggests that in a case such as this one, which includes multiple defendants, only a single, consolidated appeal of the qualified immunity question will be allowed. The four FBI Agents have pursued a common defense to the complaint, with all of them asserting the inadequacy of Bari and Cherney's allegations concerning FBI involvement in the purported constitutional violations. The district court conclusively rejected their motion to dismiss on these grounds, and that ruling effectively disposes of these Agents' claim that they are immune from suit. They chose to appeal the district court's ruling at this time; by doing so, they risk that their appeal on the pleadings might fail, whereas an appeal following discovery and an adverse summary judgment ruling might succeed. Pelletier gives them the "right to make that choice." Id.


We review de novo a district court's dismissal pursuant to Rule 12(b)(6). Oscar v. University Students Co-op. Ass'n, 965 F.2d 783, 785 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992). We accept as true all allegations of material fact. Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 599, 121 L.Ed.2d 536 (1992). The traditional standard for a 12(b)(6) motion is that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

In an opinion filed today, Branch v. Tunnell, 14 F.3d 449 (9th Cir.1994) (Branch II ), we have adhered to our "heightened pleading standard" in a Bivens case where the defendant's subjective intent is an element of the plaintiff's constitutional tort. This standard requires Bari and Cherney to "state in their complaint nonconclusory allegations setting forth evidence of unlawful intent. The allegations of facts must be specific and concrete enough to enable the defendants to prepare a response, and where...

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