John Sinclair Lawrence Plamondon and John Forrest Waterhouse, Plaintiffs v. Kenneth Schriber James Sullivan, and Charles Wagner

834 F.2d 103

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 16, 1988
• Docket: 84-1669
• Status: Published

Opinions

ENGEL, Circuit Judge.

Defendants appeal from an order by Judge Charles W. Joiner, United States District Court for the Eastern District of Michigan, denying defendants’ motion for summary judgment on the basis of good-faith immunity. We dismiss for lack of appellate jurisdiction.

This case is a continuation of the litigation that produced United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (Keith), which held that the Fourth Amendment does not allow warrantless wiretaps in cases involving domestic threats to national security, and Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), which held that Attorney General John Mitchell had immunity for wiretaps that he authorized in violation of but before Keith. The defendants in the present case are FBI agents who performed the wiretaps that Mitchell authorized. Plaintiffs allege that these agents exceeded the authority that Mitchell gave them and violated plaintiffs’ Sixth Amendment right to counsel by overhearing plaintiffs’ conversations with their attorneys.

The denial of summary judgment was under Rule 56(f) of the Federal Rules of Civil Procedure.¹ Judge Joiner decided that there were issues of fact that could “only be fully elucidated by further discovery” and that plaintiffs had “made an adequate showing of need for further discovery.” Thus, Judge Joiner allowed discovery to continue for ninety days. He also stated that the denial of summary judgment was without prejudice: “Defendants should renotice their motion for summary judgment shortly after the conclusion of discovery, if they continue to believe that they are entitled to such relief in light of the information disclosed.”

Upon consideration, we conclude that Judge Joiner’s order is not appealable under Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.1986). In Kennedy, we held that under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), there can be two appeals based upon claims of immunity and which can be taken prior to final judgment: first, after denial of a motion to dismiss on the pleadings and, second, after denial of a motion for summary judgment following discovery. Appeal in the first situation protects immune officials from the burdens of discovery if the well pleaded facts at that stage show that they would be immune. The second potentially allowable appeal protects immune officials from trial if, after discovery, it is determined that there is then no material dispute of fact concerning their immunity. Kennedy, however, did not decide whether an order denying summary judgment such as that here — without prejudice and allowing further discovery — has the finality necessary to be appealable under Cohen. Quite clearly, we believe, it does not.

Under Cohen, the order or decision appealed from must “fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, 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. It therefore appears that whether such a decision is to be reviewable is to be determined realistically from the circumstances in each case. Referring to the finality language of 28 U.S.C. § 1291, Justice Jackson observed:

The effect of the statute is to disallow appeal from any decision which is tentative, informal or incomplete. Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal.

Cohen, 337 U.S. at 546, 69 S.Ct. at 1225.

Applying the foregoing language to the order and decision here, it is apparent that such orders were not intended either by Judge Joiner or by the language of Cohen to be appealable. Obviously Judge Joiner expressly allowed for further discovery, and after that a further opportunity to renew the motion for summary judgment.²

While as we pointed out in Kennedy, Mitchell v. Forsyth has permitted two bites out of the appellate apple, at the pleading and at the discovery stage, it did not contemplate that the underlying finality requirement of Cohen and of section 1291 would be ignored, or that plaintiffs might be subjected to an endless number of successive appeals before trial. Undoubtedly, future appeals will raise problems similar to those here, and while we see no occasion to borrow more trouble than we already have, we can only observe that the best guidelines are those contained in Cohen itself and particularly its admonition that we give to section 1291 a “practical rather than a technical construction.” Cohen, 337 U.S. at 546, 69 S.Ct. at 1226.

The appeal is DISMISSED, and the case is REMANDED.³

1 . Should it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had....

Fed.R.Civ.P. 56(f).

2 . Judge Nelson’s dissent implies that our result here is motivated by some unhappiness with Mitchell v. Forsyth and, in our view, misapprehends the thrust of the holding, which is intended to give effective meaning to Mitchell v. For-syth while preserving to the trial judge the very necessary responsibility for effectively managing his docket. If we understand the dissent properly, it is to the effect that whatever might be the finality of the order denying summary judgment, it is still appealable as in effect an order denying a motion to dismiss upon the pleadings. In effect, it asks us to entertain an untimely appeal which was never taken through the vehicle of an order which clearly lacks finality under Cohen in order that we can address, favorably to the defendants, issues of pleadings which have not been raised in the appeal. The dissent may or may not be correct in its conclusion that an appellate court might have been able to uphold the district court’s grant of a motion to dismiss under Rule 12(b)(6) assuming, under Kennedy, that such an appeal would still be timely. What we have endeavored to accomplish here is not a defeat of the Supreme Court’s intentions in Mitchell at all, but instead an orderly and consistent procedure for carrying out that intent in an administratively fair way by addressing issues raised by the application of Mitchell, but not directly answered by it.

3 . An issue we leave open is whether the appeal was timely filed. The notice of appeal was filed more than 30 days but within 60 days after Judge Joiner’s order was filed. The United States was not at this time a party to the litigation, but the question is whether the defendants were "officers or an agency of the United States” within the meaning of Fed.R.App.P. 4(a)(1), allowing 60 days for the filing of an appeal involving the United States. As we understand it, at this juncture only damages are sought against the defendants personally, but they are for actions allegedly taken by defendants while officers or agents of the United States, and we note also that their defense has been undertaken below and in these proceedings by the Civil Division of the Department of Justice. Our circuit has not yet directly addressed this question. The Second Circuit denied the defendant the benefit of the 60-day rule in a suit against him seeking damages arising out of his negligence in operating a federal government car on business, notwithstanding that the United States Attorney had appeared on his behalf. Hare v. Hurwitz, 248 F.2d 458 (1957). The Ninth Circuit adopted Hare without analysis in Michaels v. Chappell, 279 F.2d 600 (1960), cert. denied, 366 U.S. 940, 81 S.Ct. 1663, 6 L.Ed.2d 851 (1961), but later reversed itself in Wallace v. Chappell, 637 F.2d 1345 (1981) (en banc). The Wallace case was later adopted by the Fifth Circuit without discussion in Williams v. Collins, 728 F.2d 721 (1984). In view of our finding that the order appealed from was not final in all events, we need not determine whether the appeal is doubly dead for want of timeliness as well.