Williams v. Collins

• Decision Date: 02 April 1984
• Docket Number: No. 82-4434,82-4434
• Citation: 728 F.2d 721
• Parties: Robert Stanley WILLIAMS, Plaintiff-Appellee, v. Samuel P. COLLINS, Jr., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 721

728 F.2d 721

Robert Stanley WILLIAMS, Plaintiff-Appellee, v. Samuel P. COLLINS, Jr., et al., Defendants-Appellants.

No. 82-4434.

United States Court of Appeals Fifth Circuit.

April 2, 1984.

Patricia D. Rogers, William M. Dye, Jr., Asst. U.S. Attys., Oxford, Miss., John C. Hoyle, Leonard Schaitman, Barbara Herwig, Appellate Staff, Civil Div., Edward R. Cohen, Dept. of Justice, Washington, D.C., for defendants-appellants.

Smith & Phillips, Richard T. Phillips, Batesville, Miss., for plaintiff-appellee.

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

Before GEE, TATE and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Officials of the Army Corps of Engineers appeal from the denial of their motion for dismissal or summary judgment, claiming that the doctrine of absolute immunity under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), insulates them from liability to Williams on his common law tort claims. We hold that orders denying absolute immunity are automatically appealable under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and finding defendants immune, reverse on the merits.

I

On April 26, 1982, Williams sued nine federal officials who participated in personnel and administrative proceedings which resulted in his removal from federal employment. ¹ His complaint contained two types of claims. First, he alleged constitutional claims of violations of due process arising out of the administrative proceedings that led to his loss of federal employment. ² Second, he advanced common law tort claims. Defendants moved to dismiss, or in the alternative for summary judgment. The district court dismissed the due process claims, reasoning that these constitutional claims against Williams' superiors were precluded by Bush v. Lucas, 647 F.2d 573 (5th Cir.1981), affirmed, --- U.S. ----, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), and Broussard v. United States Postal Service, 674 F.2d 1103 (5th Cir.1982). The district court denied the motion directed to the remaining claims, finding that material issues of fact remained as to defendants' entitlement to official immunity.

By order filed May 11, 1983, No. 83-9001, this court refused to allow a Sec. 1292(b) interlocutory appeal by defendants from the refusal to dismiss what they believed were several constitutional claims that Williams had alleged in addition to his due process claims. In his response to defendants' attempt to appeal, Williams denied that any further constitutional claims remained, and stated that "[t]he case is now proceeding under Mississippi law on the common law torts of Tortious Interference with Contract Rights, Slander and Defamation, False Imprisonment, and Trespass/Invasion of Privacy." Relying on Williams' representations made as master of his own complaint, the court dismissed the interlocutory appeal, stating explicitly that the remaining claims in Williams' complaint "are based not on alleged constitutional violations, but on alleged state common law violations." Williams now contends that he did not mean to say what he said in urging this court to refuse to hear defendants' interlocutory appeal, and says that his common law tort claims also double as constitutional claims. We consider it the law of the case that Williams' complaint contained only common law tort claims in addition to the constitutional claims dismissed by the district court, notwithstanding that both the district court and defendants mistakenly assumed the complaint contained other constitutional claims.

II

1.

We face at the outset the issue of whether we have appellate jurisdiction. Williams urges that no appellate jurisdiction exists. He alleges, first, that the government's notice of appeal is fatally defective because it names the "United States" as defendant rather than any of the actual defendants in the suit, second, that the government's appeal was not timely filed since the thirty-, and not the sixty-day time limit applies to this case, and third, that the district court's order is not "final" and therefore not appealable at all.

2.

Williams' first objection to the sufficiency of the notice of appeal is without merit. See, e.g., Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057, 1059 n. 1 (5th Cir.1981). All parties were fairly and timely apprised of the appeal, including Williams, who was properly named.

3.

Williams' second point arises because of ambiguity in Federal Rule of Appellate Procedure 4(a), providing 30 days as the norm for filing a notice of appeal, "but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days." The difficulty is that Williams has purported to sue the defendant government officers only in their "individual" capacity. The Ninth Circuit, in Wallace v. Chappell, 637 F.2d 1345 (9th Cir.1981) (en banc) recently overturned its own precedent applying the 30-day time limit in a case involving a government officer sued in his individual capacity for possibly government-related activity. See Michaels v. Chappell, 279 F.2d 600 (9th Cir.1960), cert. denied, 366 U.S. 940, 81 S.Ct. 1663, 6 L.Ed.2d 851 (1961). We are persuaded of the wisdom of the Ninth Circuit's reading of the rule.

Whenever the alleged grievance arises out of a government activity, the 60-day filing period of Rule 4(a) applies if: (a) the defendant officers were acting under color of office, ⁶ or (b) the defendant officers were acting under color of law or lawful authority, ⁷ or (c) any party in the case is represented by a government attorney. Footnote 6: "... An act under color of office is an act of an officer who claims authority to do the act by reason of his office when the office does not confer on him any such authority. [citations omitted]." Black's Law Dictionary 241 (5th ed. 1979). "For an act of a government officer to be under color of office, the act must have some rational connection with his official duties." Arthur v. Fry, 300 F.Supp. 620, 622 (E.D.Tenn.1969). This phrase would cover any act by an officer which was made possible by the officer's official position, even if there is no arguable legal justification ("color of law"). Footnote 7: "The appearance or semblance without the substance, of legal right...." Black's, id. This test is most often used in connection with civil rights suits under 42 U.S.C. Sec. 1983. Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

Color of law exists when a "private" organization or individual is "so closely entwined" with the government that private action becomes "state action." Smith v. Young Men's Christian Ass'n of Montgomery, 462 F.2d 634, 647 (5th Cir.1972).

Wallace v. Chappell, 637 F.2d at 1348, 1348 nn. 6-7. By this standard the appeal was timely, being filed within sixty days.

4.

Williams' third ground for dismissal raises the issue of whether district court orders rejecting claims of absolute immunity are appealable under the Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) collateral order doctrine. It also raises the subsidiary question of whether appealability obtains in all circumstances, or whether it turns on the circumstances of each case. The Supreme Court was confronted with this issue in Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). ³ But Nixon did not make clear whether the Court endorsed appealability under Cohen in all circumstances, as a class, or only when the appeal raises urgent, unsettled questions of law.

In Nixon, the Court decided that orders denying absolute immunity fit into Cohen 's tripartite formulation of interlocutory decisions that "conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment." Nixon, 102 S.Ct. at 2698, citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978), and Cohen, 337 U.S. at 546-47, 69 S.Ct. at 1225-1226. It buttressed that conclusion by analogizing the denial of absolute immunity from constitutional tort liability to other types of absolute immunity the denial of which had previously been found to be appealable as a class. Nixon, 102 S.Ct. at 2698, citing Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (claim of immunity under Speech & Debate Clause), and Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (claim of immunity under Double Jeopardy Clause). But it then seemed to limit its discussion to the circumstances of the case. The Court held that the court of appeals erred in deciding that it lacked jurisdiction because the appeal did not present the "serious and unsettled" question which Cohen established as an "additional requirement" to the exercise of jurisdiction over an interlocutory appeal. The Court concluded that the question was "serious and unsettled," and that because it was, the issue was therefore appealable. Nixon, 102 S.Ct. at 2698.

The injection of the "serious and unsettled" element generates the uncertainty. Other cases finding district court orders before final judgment appealable as a class do so by discounting the significance of this case-by-case restriction, Abney, 431 U.S. 662 n. 8, 97 S.Ct. at 2042 n. 8, ⁴ or ignoring it altogether. Helstoski, 442 U.S. at 506-08, 99 S.Ct. at 2448-49; Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 1 (1951). Abney & Helstoski involved claimed immunities that encompassed not only liability, ⁵ but also immunity from trial itself. Cohen 's third element of "unreviewability on appeal from a final judgment" was met in Abney, Helstoski and Stack because the right at stake would have been irretrievably lost by the continuation of trial court proceedings--whether or not...