Behrens v. Pelletier (94-1244), 516 U.S. 299 (1996).
[ Breyer ]
[ Scalia ]
HTML version
WordPerfect version
HTML version
WordPerfect version
HTML version
WordPerfect version

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


No. 94-1244


on writ of certiorari to the united states court of appeals for the ninth circuit

[February 21, 1996]

Justice Scalia delivered the opinion of the Court.

In 1983, South Coast Savings and Loan Association, a new institution, applied to the Federal Home Loan Bank Board (FHLBB or Board) for the approval necessary to obtain account insurance from the Federal Savings and Loan Insurance Corporation (FSLIC). [n.1] Under FHLBB regulations, approval of new institutions was to be withheld if their "financial policies or management" were found to be "unsafe" for any of various reasons, including "character of the management." 12 CFR § 571.6(b) (1986). Accordingly, when FHLBB approved South Coast for FSLIC insurance in March 1984, it imposed a number of requirements, including the condition that South Coast "provide for employment of a qualified full time executive managing officer, subject to approval by the Principal Supervisory Agent"--FHLBB's term for the president of the regional Home Loan Bank when operating in his oversight capacity on behalf of FHLBB. Resolution No. 84-164, ¶10(p) (Mar. 29, 1984). The Board's resolution also required that, for a period of three years, any change in South Coast's chief management position be approved by FHLBB. Ibid.

Shortly after obtaining FHLBB's conditional approval, South Coast was succeeded in interest by Pioneer Savings and Loan Association, another new institution. Pioneer named respondent Pelletier as its managing officer, subject to FHLBB consent, which Pioneer sought in mid May 1985. Only a few weeks earlier, however, on April 23, 1985, FHLBB had declared insolvent Beverly Hills Savings and Loan Association, where respondent had at one time held a senior executive position. An inquiry by FSLIC pointed to potential misconduct by high level management of the failed institution, which ultimately became the subject of a FSLIC lawsuit against several Beverly Hills officers, including respondent.

The FSLIC suit had not yet been filed at the time Pioneer sought the Board's consent to hire respondent; but FSLIC's pending investigation into Beverly Hills' collapse caused petitioner Behrens, the FHLBB "Supervisory Agent" then responsible for monitoring Pioneer's operations, to write Pioneer on May 8, 1986, withholding approval and advising that respondent be replaced. On receipt of the letter Pioneer asked respondent to resign and, when he refused, fired him.

Three years later, in 1989, respondent brought suit in federal court, naming petitioner as defendant in a complaint that included Bivens damages claims for two alleged constitutional wrongs. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Respondent charged, first, that petitioner's action in writing a letter that had effectively discharged him from his post-at Pioneer, in summary fashion and without notice or opportunity to be heard, violated his right to procedural due process. Second, he claimed that he had been deprived of substantive due process by petitioner's alleged interference with his "clearly established and Constitutionally protected property and liberty rights . . . to specific employment and to pursue his profession free from undue governmental interference." First Amended Complaint ¶38, reprinted in App. 7, 16. The complaint alleged that petitioner's letter, along with other, continuing efforts to harm his reputation, had cost respondent not only his position at Pioneer, but also his livelihood within the savings and loan industry. The complaint also contained other claims--against petitioner and against the Federal Home Loan Bank of San Francisco (petitioner's immediate employer), FHLBB, and the United States; none of these is relevant to the present appeal.

Petitioner filed a motion to dismiss or, in the alternative, for summary judgment. With regard to the Bivens claims, he asserted a statute of limitations defense and claimed qualified immunity from suit on the ground that his actions, taken in a governmental capacity, "d[id] not violate clearly established statutory or constitutional rights." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The District Court ruled in favor of petitioner on the statute of limitations ground and therefore dismissed the procedural due process Bivens claim, and the substantive due process Bivens claim to the extent it related to petitioner's letter and respondent's loss of employment at Pioneer. It refused, however, to dismiss respondent's suit "to the extent [it was] based on other alleged subsequent acts of defendan[t] preventing and continuing to prevent [respondent] from securing employment." Pelletier v. Federal Home Loan Bank of San Francisco, No. CV 89-969 (CD Cal., Oct. 5, 1989), reprinted in App. 27-28. The court also denied petitioner's summary judgment motion, without prejudice, on the ground that it was premature given the lack of discovery.

Petitioner immediately appealed the District Court's implicit denial of his qualified immunity defense regarding the remaining Bivens claim. The Court of Appeals entertained the appeal, notwithstanding its interlocutory nature, holding that "a denial of qualified immunity is an appealable `final' order under the test set forth in Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541 (1949) . . . , 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 of San Francisco, 968 F. 2d 865, 870 (CA9 1992). It said in dictum, however, that a defendant claiming qualified immunity could not "take advantage of the several opportunities for immediate appeal afforded him by bringing repeated pretrial appeals," and that "[o]ne such interlocutory appeal is all that a government official is entitled to and all that we will entertain." Id., at 870-871. On the merits of the appeal, the court rejected the argument that petitioner enjoyed qualified immunity because he had not violated any "clearly established right." It said that the question whether respondent had a constitutionally protected property interest in his Pioneer employment (subject, as it was, to regulatory approval) was not properly before the court, since the claims relating specifically to his discharge had been dismissed as time barred. Id., at 871-872. (The Court of Appeals noted in dictum, however, id., at 869, n. 6, that the District Court had applied an unduly short limitations period.) With respect to the claimed deprivation of post-Pioneer employment, the court held that the "nebulous theories of conspiracy" set out in respondent's complaint-- although "insufficient to survive a motion for summary judgment"--made out a proper Bivens claim. 968 F. 2d, at 872-873.

Upon remand, the District Court reversed its earlier statute of limitations ruling in light of the Court of Appeals' dictum, and reinstated the claims relating to employment at Pioneer. After discovery, petitioner moved for summary judgment on qualified immunity grounds, contending that his actions had not violated any "clearly established" right of respondent regarding his employment at Pioneer or elsewhere. The District Court denied the motion with the unadorned statement that "[m]aterial issues of fact remain as to defendant Behrens on the Bivens claim." Pelletier v. Federal Home Loan Bank of San Francisco, No. CV 89-0969 (CD Cal., Sept. 6, 1994), reprinted in App. to Pet. for Cert. 5a. Petitioner filed a notice of appeal, which, on respondent's motion, the District Court certified as frivolous. In an unpublished order, the Ninth Circuit dismissed the appeal "for lack of jurisdiction." Pelletier v. Federal Home Loan Bank of San Francisco, No. 94-56507 (CA9 Nov. 17, 1994), reprinted in App. to Pet. for Cert. 1a. We granted certiorari, 514 U. S. ___ (1995).

Section 1291 of Title 28, U. S. C., gives courts of appeals jurisdiction over "all final decisions" of district courts, except those for which appeal is to be had to this Court. The requirement of finality precludes consideration of decisions that are subject to revision, and even of "fully consummated decisions [that] are but steps towards final judgment in which they will merge." Cohen, supra, at 546. It does not, however, bar review of all prejudgment orders. In Cohen, we described a "small class" of district court decisions that, though short of final judgment, are immediately appealable because they "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." Ibid. See also Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-145, (1993) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). The issue in the present case is the extent to which orders denying governmental officers' assertions of qualified immunity come within the Cohen category of appealable decisions.

As set forth in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the qualified immunity defense "shield[s] [government agents] from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," id., at 818 (citing Procunier v. Navarette, 434 U.S. 555, 565 (1978)). Harlow adopted this criterion of "objective legal reasonableness," rather than good faith, precisely in order to "permit the defeat of insubstantial claims without resort to trial." 457 U. S., at 819, 813. Unsurprisingly, then, we later found the immunity to be "an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal [immunity] question." Mitchell v. Forsyth, 472 U. S., at 526. And, as with district court rejection of claims to other such entitlements distinct from the merits, see, e.g., Puerto Rico Aqueduct, supra, at 145-146, (Eleventh Amendment immunity); Abney v. United States, 431 U.S. 651, 662 (1977) (right not to be subjected to double jeopardy), we held that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable `final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell, supra, at 530. See also Johnson v. Jones, 515 U. S. ___, ___%___ (1995) (slip op., at 6-7).

While Mitchell did not say that a defendant could appeal from denial of a qualified immunity defense more than once, [n.2] it clearly contemplated that he could raise the defense at successive stages:

"Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts." 472 U. S., at 526 (citation omitted).

Thus, Mitchell clearly establishes that an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a "final" judgment subject to immediate appeal. Since an unsuccessful appeal from a denial of dismissal cannot possibly render the later denial of a motion for summary judgment any less "final," it follows that petitioner's appeal falls within §1291 and dismissal was improper.

Indeed, it is easier to argue that the denial of summary judgment--the order sought to be appealed here--is the more "final" of the two orders. That is the reasoning the First Circuit adopted in holding that denial of a motion to dismiss on absolute immunity grounds was not "final" where the defendant had stated that, if unsuccessful, he would later seek summary judgment on qualified immunity grounds: "Since the district court has not yet determined whether [the defendant] has qualified immunity, and that he will have to stand trial, its decision is not an appealable collateral order." Kaiter v. Boxford, 836 F. 2d 704, 707 (CA1 1988). The problem with this approach, however, is that it would logically bar any appeal at the motion to dismiss stage where there is a possibility of presenting an immunity defense on summary judgment; that possibility would cause the motion to dismiss decision to be not "final" as to the defendant's right not to stand trial. The First Circuit sought to avoid this difficulty by saying that the defendant could render the motion to dismiss denial final by waiving his right to appeal the summary judgment denial. See id., at 708. But quite obviously, eliminating the ability to appeal the second order does not eliminate the possibility that the second order will vindicate the defendant's right not to stand trial, and therefore does not eliminate the supposed reason for declaring the first order nonfinal.

The source of the First Circuit's confusion was its mistaken conception of the scope of protection afforded by qualified immunity. Harlow and Mitchell make clear that the defense is meant to give government officials a right, not merely to avoid "standing trial," but also to avoid the burdens of "such pretrial matters as discovery . . . , as `[i]nquiries of this kind can be peculiarly disruptive of effective government.' " Mitchell, supra, at 526 (emphasis added) (quoting from Harlow, supra, at 817). Whether or not a later summary judgment motion is granted, denial of a motion to dismiss is conclusive as to this right. We would have thought that these and other statements from Mitchell and Harlow had settled the point, questioned by Justice Breyer, see post at __, (slip op., at 4-5), that this right is important enough to support an immediate appeal. If it were not, however, the consequence would be, not that only one pretrial appeal could be had in a given case, as Justice Breyer proposes, but rather, that there could be no immediate appeal from denial of a motion to dismiss but only from denial of summary judgment. That conclusion is foreclosed by Mitchell, which unmistakably envisioned immediate appeal of "[t]he denial of a defendant's motion for dismissal or summary judgment on the ground of qualified immunity." 472 U. S., at 527.

The Court of Appeals in the present case, in the first of its two decisions, rested its "one appeal" pronouncement upon the proposition that resolving the question of entitlement to qualified immunity "should not require more than one judiciously timed appeal." Pelletier, 968 F. 2d, at 871. It did not explain how this proposition pertains to the question of finality, but we suppose it could be argued that a category of appeals thought to be needless or superfluous does not raise a claim of right "too important to be denied review," as our Cohen finality jurisprudence requires, see 337 U. S., at 546. In any event, the proposition is not sound. That one appeal on the immunity issue may not be enough is illustrated by the history of respondent's claims for loss of employment at Pioneer in the present case. Because these claims had initially been dismissed as time barred, the Court of Appeals refused to decide (and thus evidently regarded as an open question) whether one who holds his job subject to regulatory approval can assert a constitutionally cognizable expectation of continued employment. See Pelletier, supra, at 871-872. Thus, the question whether petitioner was entitled to immunity on these claims was not presented to any court until petitioner's summary judgment motion--and, by operation of the Ninth Circuit's one appeal rule, has never been addressed by an appellate court.

That is assuredly an unusual set of circumstances, but even in a case proceeding in a more normal fashion resolution of the immunity question may "require more than one judiciously timed appeal," because the legally relevant factors bearing upon the Harlow question will be different on summary judgment than on an earlier motion to dismiss. At that earlier stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for "objective legal reasonableness." On summary judgment, however, the plaintiff can no longer rest on the pleadings, see Fed. Rule Civ. Proc. 56, and the court looks to the evidence before it (in the light most favorable to the plaintiff) when conducting the Harlow inquiry. It is no more true that the defendant who has unsuccessfully appealed denial of a motion to dismiss has no need to appeal denial of a motion for summary judgment, than it is that the defendant who has unsuccessfully made a motion to dismiss has no need to make a motion for summary judgment. [n.3]

The Court of Appeals expressed concern that a second appeal would tend to have the illegitimate purpose of delaying the proceedings. See 968 F. 2d, at 870-871. Undeniably, the availability of a second appeal affords an opportunity for abuse, but we have no reason to believe that abuse has often occurred. To the contrary, successive pretrial assertions of immunity seem to be a rare occurrence. [n.4] Moreover, if and when abuse does occur, as we observed in the analogous context of interlocutory appeals on the issue of double jeopardy, "it is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims." Abney, 431 U. S., at 662, n. 8. In the present case, for example, the District Court appropriately certified petitioner's immunity appeal as "frivolous" in light of the Court of Appeals' (unfortunately erroneous) one appeal precedent. This practice, which has been embraced by several Circuits, enables the district court to retain jurisdiction pending summary disposition of the appeal, and thereby minimizes disruption of the ongoing proceedings. See, e.g., Chuman v. Wright, 960 F. 2d 104, 105 (CA9 1992); Yates v. Cleveland, 941 F. 2d 444, 448-449 (CA6 1991); Stewart v. Donges, 915 F. 2d 572, 576-577 (CA10 1990); Apostol v. Gallion, 870 F. 2d 1335, 1339 (CA7 1989). In any event, the question before us here--whether there is jurisdiction over the appeal, as opposed to whether the appeal is frivolous--must be determined by focusing upon the category of order appealed from, rather than upon the strength of the grounds for reversing the order. "Appeal rights cannot depend on the facts of a particular case." Carroll v. United States, 354 U.S. 394, 405 (1957). See also Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. ___, ___ 1996 (1994) (slip op., at 4). As we have said, an order denying qualified immunity, to the extent it turns on an "issue of law," Mitchell, 472 U. S., at 530, is immediately appealable.

Our rejection of the one interlocutory appeal rule does not dispose of this case. Respondent proposes two other reasons why appeal of denial of the summary judgment motion is not available. First, he argues that no appeal is available where, even if the District Court's qualified immunity ruling is reversed, the defendant will be required to endure discovery and trial on matters separate from the claims against which immunity was asserted. Respondent reasons that a ruling which does not reach all the claims does not "conclusively determin[e] the defendant's claim of right not to stand trial," id., at 527, and thus the order denying immunity cannot be said to be "final" within the meaning of Cohen.

It is far from clear that, given the procedural posture of the present case, respondent would be entitled to the benefit of the proposition for which he argues; but we will address the proposition on its merits. The Courts of Appeals have almost unanimously rejected it, [n.5] and so do we. The Harlow right to immunity is a right to immunity from certain claims, not from litigation in general; when immunity with respect to those claims has been finally denied, appeal must be available, and cannot be foreclosed by the mere addition of other claims to the suit. Making appealability depend upon such a factor, particular to the case at hand, would violate the principle discussed above, that appealability determinations are made for classes of decisions, not individual orders in specific cases. Apart from these objections in principle, the practical effect of respondent's proposal would be intolerable. If the district court rules erroneously, the qualified immunity right not to be subjected to pretrial proceedings will be eliminated, so long as the plaintiff has alleged (with or without evidence to back it up) violation of one "clearly established" right; and both that and the further right not to be subjected to trial itself will be eliminated, so long as the complaint seeks injunctive relief (for which no "clearly established" right need be alleged).

Second, respondent asserts that appeal of denial of the summary judgment motion is not available because the denial rested on the ground that "[m]aterial issues of fact remain." This, he contends, renders the denial unappealable under last Term's decision in Johnson v. Jones, 515 U. S., at ___ (slip op., at 7-10). That is a misreading of the case. Every denial of summary judgment ultimately rests upon a determination that there are controverted issues of material fact, see Fed. Rule Civ. Proc. 56, and Johnson surely does not mean that every denial of summary judgment is nonappealable. Johnson held, simply, that determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified immunity case; if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly "separable" from the plaintiff's claim, and hence there is no "final decision" under Cohen and Mitchell. See 515 U. S., ate (slip op., at 7-10). Johnson reaffirmed that summary judgment determinations are appealable when they resolve a dispute concerning an "abstract issu[e] of law" relating to qualified immunity, id., at ___ (slip op., at 12)--typically, the issue whether the federal right allegedly infringed was "clearly established," see, e.g., Mitchell, supra, at 530-535; Davis v. Scherer, 468 U.S. 183, 190-193 (1984).

Here the District Court's denial of petitioner's summary judgment motion necessarily determined that certain conduct attributed to petitioner (which was controverted) constituted a violation of clearly established law. Johnson permits petitioner to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of "objective legal reasonableness." This argument was presented by petitioner in the trial court, and there is no apparent impediment to its being raised on appeal. And while the District Court, in denying petitioner's summary judgment motion, did not identify the particular charged conduct that it deemed adequately supported, Johnson recognizes that under such circumstances "a court of appeals may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed." Johnson, supra, at ___ (slip op., at 14). That is the task now facing the Court of Appeals in this case.

The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.


1 FHLBB, FSLIC and the regulatory scheme described in this opinion no longer exist, having been eliminated by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, 103 Stat. 183.

2 Interestingly, however, Mitchell itself dealt with the second of two interlocutory appeals on immunity claims. See 472 U. S., at 515-519. Neither the Court of Appeals nor this Court assigned any significance to the successive aspect of the second appeal.

3 Justice Breyer suggests that the second of two pretrial qualified immunity appeals does not come within Cohen's class of immediately appealable final orders because it is insufficiently "separable" from the claim raised on the first appeal, see post, at __ (slip op., at 3-4). But the Cohen "separability" component asks whether the question to be resolved on appeal is "conceptually distinct from the merits of the plaintiff's claim." Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). The appropriate comparison, then, is between the decision sought to be reviewed and the claim underlying the action itself--not between the decision and any previous appeal, as Justice Breyer suggests. And again, Mitchell clearly states that a denial of qualified immunity, whether on a motion for dismissal or summary judgment, is an "appealable `final decision.' " Id., at 530.

4 We are aware of only five reported cases--Mitchell itself, Nelson v. Silverman, 999 F. 2d 417 (CA9 1993), Abel v. Miller, 904 F. 2d 394 (CA7 1990), Francis v. Coughlin, 891 F. 2d 43 (CA2 1989), and the present case--in which courts of appeals have been twice asked to review successive pretrial assertions of immunity. See Abel, supra, at 396 ("Paucity of precedent [on successive interlocutory appeals] must reflect the forbearance of public officials rather than lack of opportunity"); Kaiter v. Boxford, 836 F. 2d 704, 706 (CA1 1988) ("[I]n every case we have found which permitted interlocutory review of an immunity ruling, the defendant's entire claim to immunity was raised in a single proceeding").

5 See, e.g., McLaurin v. Morton, 48 F. 3d 944, 949 (CA6 1995); Green v. Brantley, 941 F. 2d 1146, 1148-1151 (CA11 1991) (en banc); Di Martini v. Ferrin, 889 F. 2d 922, 924-925 (CA9 1989), cert. denied, 501 U.S. 1204 (1991); Young v. Lynch, 846 F. 2d 960, 961-963 (CA4 1988); DeVargas v. Mason & Hanger Silas Mason Co., 844 F. 2d 714, 717-718 (CA10 1988); Musso v. Hourigan, 836 F. 2d 736, 742, n. 1 (CA2 1988); Scott v. Lacy, 811 F. 2d 1153, 1153-1154(CA7), cert. denied, 484 U.S. 965 (1987); De Abadia v. Izquierdo Mora, 792 F. 2d 1187, 1188-1190 (CA1 1986); Tubbesing v. Arnold, 742 F. 2d 401, 403-404 (CA8 1984). Only the Third Circuit holds otherwise. See Prisco v. United States Dept. of Justice, 851 F. 2d 93, 95-96, cert. denied, 490 U.S. 1089 (1989).