Bever v. Gilbertson

724 F.2d 1083, 1 Fed. R. Serv. 3d 1009

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 11, 1984
• Docket: Nos. 83-1790, 83-1791
• Status: Published

Opinions

HAYNSWORTH, Senior Circuit Judge:

In 1981, West Virginia’s Department of Highways allegedly was confronted with the need to substantially cut its expenditures. It chose to terminate the employment of a large number of lower echelon employees. According to plaintiffs, the sole or principal criterion for the selection of those to be terminated was political party affiliation. Loyal Democrats were to be retained while Republicans and Independents were to be terminated.

There are now pending in the Northern and Southern Districts of West Virginia a number of cases brought by terminated employees of the Department of Highways alleging that their terminations were in violation of their constitutional rights of free association. The plaintiffs in this case are such terminated employees who worked under the supervision of John Gum, County Supervisor for the Department of Highways in Doddridge County. The defendants are Governor John D. Rockefeller, IV, Charles L. Miller, Commissioner of West Virginia’s Department of Highways, Walter Gilbertson, District Engineer of District 4 of the Department of Highways, Gum and Wilton Williams, Chairman of Doddridge County Democratic Executive Committee. The amended complaint sought injunctive relief, including reinstatement of the plaintiffs to their former jobs, and damages. Governor Rockefeller, Commissioner Miller and District Engineer Gilbertson were sued both in their official and individual capacities, and they claim qualified immunity from the claim of damages against them personally. The immunity claim was the basis of a motion for summary judgment. The motion was denied by the district judge largely on the basis that those defendants could not reasonably have believed that a political criterion for the selection of those employees whose employment was to be terminated was permissible under the Constitution of the United States.

Those three defendants sought a certificate by the district judge for a permissible interlocutory appeal under 28 U.S.C.A. § 1292(b). The district judge refused such certification, whereupon those three defendants filed notices of appeal under 28 U.S.C.A. § 1291. The question now before us, upon a motion to dismiss the appeals, is whether these appeals are within the collateral order exception to the general rule that appeals of right are allowable only from final judgments.

I.

As developed in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and subsequent cases in the Supreme Court, an appeal from an interlocutory order under § 1291 may be taken, if the interlocutory order conclusively determines the question in the trial court, resolves an important question independent of the subject matter of the litigation, is effectively unreviewable on appeal from a final judgment or so important that review should not wait upon final judgment, and presents a serious and unsettled question upon appeal.

In Cohen itself, the plaintiffs were small shareholders who brought a derivative stockholders’ action within the diversity jurisdiction of the federal courts. The defendants, faced with the prospect of large litigation expenses, sought an order compelling the plaintiffs to post security for them under a state statute which required the plaintiffs to reimburse the defendants for such expenses in the event that the defendants prevailed. The district court denied the motion to compel the posting of such security.

It is obvious that in Cohen, if an immediate appeal was not available and the case proceeded to final judgment, the defendants would have lost irretrievably the security they sought to gain by the motion, and the purpose of the statute imposing the burden of costs upon the losing plaintiffs would have been substantially frustrated.

Orders denying claims of absolute immunity have been held within the Cohen collateral order exception. In Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979), the claim was one of immunity under the Speech and Debate Clause. In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the claim was one of immunity under the Double Jeopardy Clause, while in Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), the claim was one of absolute immunity for the President of the United States.

Claims of absolute official immunity are rightfully classified with claims of immunity under the Double Jeopardy Clause and the Speech and Debate Clause. In each instance, an important aspect of the absolute immunity with which the person is clothed is that he not be put to trial at all, and the right not to be put to trial at all is irrevocably lost if an order putting such a person to trial may not be reviewed until after final judgment.

The qualified immunity, with which the three appellants are cloaked, is of a lower order. It provides substantial protection for a public official who acts under circumstances in which a reasonable person would believe that his conduct did not violate established constitutional rights of another. That such a defendant not be put to the trouble of defending himself on the merits is also an aspect of immunity. Indeed, in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396, the Supreme Court sought to give additional protection against being put to trial on insubstantial claims to persons possessing qualified immunity. It eliminated the subjective aspect of the qualified immunity doctrine as theretofore understood so that more claims of qualified immunity could be resolved on motions for summary judgment before trial.

It is far from clear, however, that an order denying a claim of qualified immunity is within the collateral order exception. While the Supreme Court in Harlow v. Fitzgerald considered the contours of qualified immunity, the case got there because the order in the district court denied Harlow’s claim of absolute immunity. See, note 11, 457 U.S. at 806, 102 S.Ct. at 2732. In McSurely v. McClellan, 697 F.2d 309 (D.C. Cir.1982), the court held that an order denying a claim of qualified immunity was within the collateral order exception, a position with which a panel of this court (Judges Hall, Murnaghan, and Haynsworth) differed in an unpublished opinion in Benford v. American Broadcasting Companies, Inc., 707 F.2d 504 (4th Cir.1983).

Whatever the situation might be in other circumstances, however, the qualified immunity claimed by these three appellants cannot prevent their being put to trial. The plaintiffs seek equitable relief as well as money damages, and the appellants have no immunity from being put to trial on the equitable claims.¹ They are the principal defenders of the state s position. They will bear a major responsibility for the outcome of the litigation and will be among the principal witnesses at the trial. Whether or not they are immune from an assessment of damages against them in their individual capacities, the litigation will demand their time and attention. A present declaration of immunity from damage claims cannot avoid the diversion of their attention from other official duties which the litigation will occasion.

If the personal pocketbooks of the three appellants are, or may be, at risk, the degree of their distraction from other official duties may be greater than it otherwise would be. Still, one would suppose that, if the risk of personal liability were eliminated, the three, as responsible public officials, would give the litigation all of the thought and attention necessary adequately to protect the interest of the state.

The doctrine of qualified immunity cannot protect a public official from a claim of personal liability. It may provide a means by which the litigation may be terminated sooner than it otherwise might be, and it provides the official with substantive protection against personal liability for official wrongs other than a violation of established constitutional rights. In this case, however, a trial had been scheduled, and, if these appellants had nothing to do with the selection process and bore no responsibility for it, as they claim, they might have obtained a favorable judgment on the claims against them individually sooner by a trial on the merits than by appellate litigation of their immunity claims.

In these circumstances, the question whether a denial of the immunity claims is appealable before trial and final judgment, would appear to have little effect upon the willingness of responsible persons to serve in public office. That is one of the reasons for the existence of the doctrine of qualified immunity, and a claim of personal liability on the part of a public official should be adjudicated with reasonable promptness. Here, however, trial on the merits is at hand, and the appellants can look forward to prompt vindication of their positions if they are correct in their claims that they were not participants in the selection process and were not otherwise responsible for it.

If the question of qualified immunity is still in the case after final judgment in the district court, it may readily be reviewed in an appeal from that judgment.

Generally, in the Supreme Court the collateral order exception has been confined to situations in which the claimed right would be lost or deprived of its practical value if immediate review is not provided. This is true in absolute immunity cases in which the defendant is entitled not to be put to trial. Other preliminary orders of great importance to the litigants have been held not within the doctrine. Pretrial discovery orders may not be reviewed before final judgment. Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), and United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971). An order denying class certification is not within the doctrine. Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). Nor is an order refusing to disqualify counsel. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). Litigants may desire early appellate rulings on important orders of that sort, but the collateral order exception is a narrow one and re served for rare cases. Such a one was Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963), where the question was one of venue in protracted litigation against two national banks which asserted a right not to be put to trial at all in the court in which the action had been brought. The question of venue is subject to appellate review after final judgment, but the court was moved by the specter of the great waste that would occur if the extensive litigation were permitted to proceed in the wrong court.

There are no comparable circumstances here. There is no problem of jurisdiction or venue in the district court. The trial must proceed in any event, and the question of qualified immunity is readily subject to appellate review after final judgment.

In the lower federal courts, orders denying claims of absolute immunity have been held appealable before trial. Chavez v. Singer, 698 F.2d 420, 421 (10th Cir.1983); Forsyth v. Kleindienst, 599 F.2d 1203, 1208-1209 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981) (Forsyth I); Forsyth v. Kleindienst, 700 F.2d 104 (3d Cir.1983) (Forsyth II). In Forsyth I, an interlocutory appeal from an order denying a claim of qualified immunity was not allowed, and the court said.it was not even seriously contended that those orders met the Cohen requirements. In Forsyth II, the majority expressed skepticism about the appealability of the denial of summary judgment on the claim of qualified immunity referring to the Supreme Court’s decision in Harlow v. Fitzgerald and the decision of the United States Court of Appeals for the District of Columbia Circuit, mentioned above, in McSurely v. McClellan. By eliminating the subjective component of the qualified immunity claim, the Supreme Court clearly intended to facilitate disposition of claims of qualified immunity on summary judgment motions, but one must read much into that opinion to conclude that the Supreme Court also intended that denials of such motions should be immediately appealable. If, however, it may ultimately be determined that such an order is immediately appealable if the effect of the immunity claim would be to terminate the litigation insofar as the immune defendant is concerned, this case is different. Partial summary judgment for these appellants on the damages claims against them individually would not terminate the litigation nor avoid the necessity for a trial and active participation in it by these appellants. Under these circumstances, we cannot read Harlow v. Fitzgerald as a basis for a conclusion that this denial of summary judgment meets the Cohen requirements.

II.

There is another reason for dismissal of this appeal as premature.

One of the requirements for immediate appealability of a collateral order under the Cohen doctrine is that it present a serious and unsettled question of law. A public official, clothed with qualified immunity, is not required to anticipate future development of constitutional doctrine, but he is required to respect the established constitutional rights of others. His qualified immunity is not available to him if he does not do that.

In 1981, when these plaintiffs were terminated as employees of the Department of Highways, their constitutional right not to be discharged solely because of their political affiliation was clearly established. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The plaintiffs were not confidential employees nor policy makers. Indeed, there is no contention here that they are not the kind of employees who enjoy the protection of the Elrod-Branti principle.

Instead, the defendants contend that their discharge was not solely because of the lack of affiliation with the Democratic Party. It was for economic reasons, they say.

We may accept the fact that in 1981 fiscal considerations made a reduction in force in the Department of Highways necessary or appropriate. The decision that a reduction in force is necessary, however, was only a backdrop. It did not identify those employees to be terminated or those to be retained. It only set the stage for those specific employment decisions which would identify those employees who were to be released and would effect their actual terminations. The Elrod-Branti principle fully protected all of the lower echelon employees of the Department as their superiors approached the task of implementation of the reduction in force.

It is true that in both Elrod and Branti the patronage system had been operating to procure the discharge of members of an unfavored party to replace them with members of a favored party. Proof that the discharges were solely for political purposes may be facilitated when there are immediate replacements by members of a favored party, but the Constitution protects the rights of existing employees against discharge solely for political reasons. If, in the implementation of a reduction in force, those employees to be released are selected not on the basis of the quality of their work, their productivity or their faithfulness to their jobs but solely on the basis of their political affiliations, the Elrod-Branti principle is clearly applicable. The plaintiffs’ allegations bring them readily within the principle.

The defendants place major reliance on Wren v. Jones, 635 F.2d 1277 (7th Cir.1980), but that case is of no assistance to them. In that case, a court had ordered the reinstatement of a number of Democrats who had been discharged solely for political reasons. The affected departments of the State of Illinois discharged a number of Republicans in order to make room for the Democrats to be reinstated. Considerations of fiscal limitations and efficiency militated strongly against the employment of both groups. In that case, however, the pool from which the employees to be terminated were selected was composed entirely of Republicans. Republican affiliation was not the criterion of selection, and it was properly concluded that economic necessity was the reason for their termination.

Wren is thus nothing like this case where the allegation is that party affiliation was the sole criterion by which these plaintiffs were selected for discharge. At least so far, this is not a mixed motive case. Economic considerations may have occasioned the reduction in force. They did not dictate, or even address, the political criterion by which those to be discharged allegedly were chosen.

III.

Because this collateral order is not within the Cohen exception to the rule that appeals of right may be taken only from final judgments, the appeal is dismissed.

APPEAL DISMISSED.

1 . Our dissenting brother suggests that Governor Rockefeller and District Engineer Gilbert-son were not proper parties to this action insofar as injunctive relief is sought. If reinstatement were the only equitable remedy sought, complete relief might be obtainable if Highway Commissioner Miller, or his successor, was the only named defendant, but the plaintiffs also seek an injunction prohibiting all defendants from conspiring to violate plaintiffs’ constitutional right to be free of discrimination in employment based entirely upon political party considerations. Commissioner Miller serves “at the will and pleasure of the Governor,” W.Va.Code 6-7-2a, and is vulnerable to pressure from the Governor. Commissioner Miller is responsible for “the selection, employment, and effective organization of all Commission personnel — ” W.Va.Code 17-2A-4. Doubtless it is he who sets broad policy, but he may act only through subordinates, such as District Engineer Gilbertson, who either makes specific personnel decisions within the guidelines set by the Commissioner or who, at least, may make recommendations to the Commissioner. We conclude that Governor Rockefeller and Engineer Gilbertson are proper parties insofar as injunctive relief is sought.