Whalen v. County of Fulton, 784
| Decision Date | 29 March 1994 |
| Docket Number | No. 784,D,784 |
| Citation | 19 F.3d 828 |
| Parties | George T. WHALEN, Individually, and as Parent and Legal Guardian of Michael W. Whalen, an Infant; Elizabeth M. Whalen, Individually and as Parent and Legal Guardian of Michael W. Whalen, an Infant, Plaintiffs-Appellees, v. COUNTY OF FULTON; Fulton County Department of Social Services; Jeanne D. Johannes, Individually and in her Official Capacity; John Rogers, Individually and in his Official Capacity; Malinda Argotsinger, Individually and in her Official Capacity; Karen Glover, Individually and in her Official Capacity; Judith Vanheusen, Individually and in her Official Capacity, Defendants-Cross-Defendants-Appellants, County of Montgomery; Montgomery County Department of Social Services; Robert L. Reidy, Individually and in his Official Capacity; Molly Johnson, Individually and in her Official Capacity; Cynthia Hallam, Individually and in her Official Capacity, Defendants-Cross-Claimants-Appellants. ocket 93-7457. |
| Court | U.S. Court of Appeals — Second Circuit |
John H. Pennock, Jr., Amsterdam, NY (Horigan, Horigan, Pennock and Lombardo, of counsel), for defendants-cross-defendants-appellants.
Douglas E. Lentivech, Albany, NY (Maynard, O'Connor & Smith, of counsel), for defendants-cross-claimants-appellants.
Brendan C. O'Shea, Albany, NY (Gleason, Dunn, Walsh & O'Shea, of counsel), for plaintiffs-appellees.
Before: MESKILL and WALKER, Circuit Judges, and MOTLEY, * District Judge.
The defendants appeal from an order of the United States District Court for the Northern District of New York, Scullin, J., denying their motion for summary judgment on the ground of qualified immunity, without prejudice to its renewal after further discovery. We dismiss the appeal for lack of appellate jurisdiction.
The denial of a motion for summary judgment is an interlocutory order not ordinarily immediately appealable. See 28 U.S.C. Sec. 1291; see also Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir.1992) (). In the interest of judicial economy, appellate courts do not freely allow exceptions to the final judgment requirement for appellate jurisdiction. To do otherwise would invite a plethora of piecemeal appeals.
Under certain circumstances, however, the denial of a defendant's summary judgment motion on the ground of qualified immunity is an exception to the general rule and is immediately appealable under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 527-30, 105 S.Ct. 2806, 2816-17, 86 L.Ed.2d 411 (1985); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Cartier, 955 F.2d at 844. An appropriate application of the collateral order doctrine here would ensure that if the denial of the defendants' motion was erroneous the individual defendants would not be subjected unnecessarily to the ordeal of defending against the plaintiffs' claims. See Mitchell, 472 U.S. at 526-27, 105 S.Ct. at 2815-16 (). Certain rights are "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen, 337 U.S. at 546, 69 S.Ct. at 1225. As the Supreme Court has recognized, an immediate appeal from the denial of a motion for summary judgment based on the qualified immunity doctrine is appropriate because " '[t]here are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred.' " Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816 (quoting Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977)).
The collateral order doctrine does not apply where the validity of the challenged order cannot be decided as a matter of law. Cartier, 955 F.2d at 844. Moreover, to be appealable as a collateral order, an order must (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment." See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978).
The order appealed from in this case passes the second and third tests but fails the first. The denial of the motion without prejudice to renewal before trial does not conclusively determine the disputed question, namely, whether the individual defendants are entitled to qualified immunity. For this reason we need not decide whether the validity of the denial of the summary judgment motion can be determined as a matter of law because, even if the validity of the order could be decided on this record, the order lacks that element of finality necessary for an interlocutory appeal under the collateral order doctrine. 2
If the motion for summary judgment is renewed and denied after further discovery, the defendants can have that denial reviewed if they demonstrate that the issue can be decided as a matter of law. Failing that, we would have no appellate jurisdiction.
Appeal dismissed.
I believe that we have jurisdiction to hear this appeal and would hold that the district court's decision erroneously denied defendants' qualified immunity motion.
The qualified immunity doctrine provides public officials with immunity from suit "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or insofar as it was objectively reasonable for them to believe that their acts did not violate those rights." Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3032, 120 L.Ed.2d 902 (1992) (internal quotations and citations omitted). In this case, the individually named county defendants ("defendants") moved for summary judgment under the first prong of the qualified immunity doctrine, arguing that the case should be dismissed because plaintiffs do not have any clearly established rights regarding the younger biological sibling (Elizabeth) of the child plaintiff (Michael). Since in my view no further factual inquiry is necessary before deciding this question in defendants' favor, I would reverse and dismiss the case now on qualified immunity grounds.
The district court denied the motion without prejudice, stating that the parents "may be able to establish that they have a constitutionally protected right regarding their relationship with Elizabeth" and that it could not find as a matter of law that defendants' actions were objectively reasonable because they had knowledge of the parents' interest in adopting Elizabeth but failed to act on it. In reviewing the qualified immunity motion, the court did not address whether the state of the law was such that Michael had a clearly established right to a relationship with Elizabeth. However, in an earlier discussion of defendants' Rule 12(b)(6) motions, the court determined that it could not find as a matter of law "that Michael has no liberty interest in maintaining a relationship with Elizabeth." The district court concluded by stating that defendants could renew their qualified immunity motion "after discovery in this case has been taken."
The district court's analysis of defendants' motion is faulty for two reasons. First, the district court failed to apply the correct standard of review. The question is not whether plaintiffs "might" be able to successfully assert a right; rather, before plaintiffs can recover from defendants who enjoy qualified immunity, they must be able to point to a right that is already "clearly established," of which reasonable persons would be aware, that has been violated. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
Second, the district court erred in failing to conclude that plaintiffs presently have no clearly established right to adopt or live with the younger biological sibling of an adopted child where neither the adoptive parents nor the adopted child has had previous contact with the sibling. No case leads me to the conclusion that such a right exists, much...
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