Brett C. Kimberlin, Appellee
v.
J. Michael Quinlan, Director U.S. Bureau of Prisons and Loye W. Miller, Jr.,Appellants
No. 98-5530
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 1999
Decided December 28, 1999
Appeal from the United States District Court for the District of Columbia(No. 90cv01549)
Michael L. Martinez argued the cause for appellants. With him on the briefs were Paul G. Lane and Danielle E. Berry.
Timothy E. Boyle argued the cause for appellee. With him on the brief were Howard T. Rosenblatt and Matthew S. Wild.
Before: Edwards, Chief Judge, Silberman and Henderson, Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Separate opinion dissenting in part filed by Circuit Judge Henderson.
Edwards, Chief Judge:
In 1990, Brett Kimberlin brought this Bivens action alleging, inter alia, that J. Michael Quinlan, formerly the Director of the Federal Bureau of Prisons, and Loye Miller, formerly the Director of Public Affairs for the United States Department of Justice, violated his constitutional rights under the First Amendment. This is the second time that this court has had occasion to hear an appeal in this case. The first appeal followed an order by the District Court denying defendants' motion for summary judgment on grounds of qualified immunity. See Kimberlin v. Quinlan,
We affirm the judgment of the District Court on the law-ofthe-case issue. In their appeal of Kimberlin I, appellants did not challenge the District Court's judgment regarding the clearly established law; thus, the issue was settled as to these parties in this case. And there was no good reason for the District Court to reexamine its judgment when the case was remanded for further proceedings.
The judgment on the clearly established law, however, is not fully dispositive of the issues raised by appellants' renewed motion for summary judgment on grounds of qualified immunity. The District Court must now determine whether there are disputed issues of fact as to whether appellants violated the clearly established law either by intentionally segregating Mr. Kimberlin from the general prison population or by interfering with his press contacts on account of the content of his speech. In particular, the District Court must inquire whether Mr. Kimberlin has identified affirmative evidence from which a jury could find that he has carried his burden of proving the pertinent motive.
Accordingly, the judgment of the District Court on the lawof-the-case issue is affirmed. However, the case is remanded for further proceedings to address the remaining issues on the qualified immunity claim and, if necessary, to proceed to hear the case on the merits in the event that appellants' motion is denied.
I. BACKGROUND
A. Factual Background
In 1988, Brett Kimberlin was an inmate at the Federal Correctional Institute at El Reno, Oklahoma. Nina Totenberg, a reporter with National Public Radio, contacted Mr. Kimberlin approximately one month before the November 1988 election, acting on a tip that Mr. Kimberlin claimed to have sold marijuana to then-vice-presidential candidate Dan Quayle while Mr. Quayle was in law school. The story leaked to other news organizations, and, in short time, the prison was inundated with requests to interview Mr. Kimberlin.
Mr. Kimberlin claims that on three occasions he was placed in administrative segregation because of his communication with the press and that on each occasion appellants interfered with his access to the press because of the content of his speech. The first detention occurred on November 4, 1988, after Mr. Kimberlin conducted an interview with NBC News that NBC never aired. After the NBC interview, several news organizations contacted the prison the same day and requested interviews with Mr. Kimberlin. Prison officials arranged a group interview for that evening at 7:00 p.m. The event never occurred, because Mr. Quinlan personally canceled the interview. The District Court has previously observed that there was "some question even from the defense side as to why he did that." Kimberlin I,
Mr. Kimberlin was never permitted to make his phone call, because on Monday, November 7, he was placed in administrative segregation for a week. The parties again dispute the reason for this decision. Mr. Kimberlin was confined to administrative detention a third time on December 22, 1998.Mr. Kimberlin alleges that the defendants were responsible for both his confinement and the interference with his press contacts, all on account of the content of his speech.
B. Procedural Background
On July 2, 1990, Mr. Kimberlin filed his original complaint against Mr. Quinlan and Mr. Miller in their individual capacities, the Federal Bureau of Prisons, and the United States Government. In the instant case, all that is before the court is Mr. Kimberlin's claim that Mr. Quinlan and Mr. Miller violated Mr. Kimberlin's First Amendment rights.
Appellants first moved to dismiss or for summary judgment on September 27, 1990, arguing, inter alia, that: (1) Mr. Kimberlin failed to meet the D.C. Circuit's "heightened pleading" standard which was then being applied to assess motive based civil rights claims against government officials; (2) there was no violation of clearly established law, and, thus, appellants were entitled to qualified immunity; and (3) even if the law were clear, appellants' conduct was objectively reasonable. The District Court denied appellants' asserted qualified immunity on the First Amendment claim, finding both that Mr. Kimberlin's pleading was sufficient under the heightened pleading standard and that there was a clearly established First Amendment right for prison inmates to "be free from governmental interference with their contacts with the press if that interference is based on the content of their speech or proposed speech." Kimberlin I,
Appellants appealed only the trial court's decision regarding the heightened pleading standard. This court reversed, see Kimberlin,
Discovery proceeded in the District Court, and, after completion of discovery, appellants moved to dismiss or for summary judgment on the same grounds rejected by the District Court in Kimberlin I. Pending the matter's disposition, however, the Supreme Court rejected this court's heightened pleading standard for civil rights suits against government officials. See Crawford-El v. Britton,
On October 21, 1998, the District Court issued the decision that is the subject of the current appeal. The District Court denied appellants' claim of qualified immunity, holding that the "law-of-the-case," unchallenged on the first appeal, was that a prisoner's right not to have his contact with the press interfered with on the basis of the content of his communication was clearly established at the time of the alleged violations. See Kimberlin II at 6, reprinted in J.A. 29. This appeal followed.
II. ANALYSIS
A. The Law-of-the-Case Doctrine
The law-of-the-case doctrine rests on a simple premise:"the same issue presented a second time in the same case in the same court should lead to the same result." LaShawn A. v. Barry,
Our dissenting colleague misconstrues the posture of this appeal by suggesting that the law-of-the-case doctrine is inapplicable to the instant case. In this case, we are called upon to review the propriety of the District Court's application of the law-of-the-case. Thus, there is no occasion to invoke the so-called "derivative waiver" doctrine. Crocker v. Piedmont Aviation, Inc.,
We also not that, even were the dissent correct in suggesting that the "derivative waiver" doctrine applies here, "discretion to waive a waiver is normally exercised only in exceptional circumstances, where injustice might otherwise result."Crocker,
Application of the law-of-the-case doctrine is a two-step process: A court must first determine whether the threshold requirements are met and then ask whether there are prudential reasons to ignore the applicable law-of-the-case. The threshold requirements for application of the law-of-the-case doctrine are plainly met in the instant case. In Kimberlin I, the District Court ruled adversely to appellants on the clearly established law issue. Appellants did not challenge the clearly established law in their Kimberlin I appeal, although they concede that this issue was appealable. In an effort to avoid the obvious, appellants make two arguments against application of the law-of-the-case doctrine: first, they claim that there has been an intervening change in the law that justifies prudential departure from the law-of-the-case; and, second, they contend that the doctrine should not apply to qualified immunity appeals. These arguments are meritless.
Appellants argue that intervening law has "evolved" since Kimberlin I. See Reply Br. at 9. On this point, appellants cite the Supreme Court's decision in Sandin v. Conner, 515 U.S. 472 (1995), which narrowed the availability to prisoners of due process challenges to disciplinary segregation. This argument does not hold water. First, without regard to Sandin's specific holding, the District Court in Kimberlin I was required to decide what law was clearly established in 1988. Sandin, announced in 1995, is not relevant to what law was clearly established seven years earlier.
Furthermore, Sandin does not mark a change in the law relevant to this case. Sandin only establishes that a prisoner's segregation from the rest of the prison population will trigger the procedural requirements of the Due Process Clause when the segregation falls outside the "range of confinement to be normally expected."
[p]risoners ... retain other protection from arbitrary state action even within the expected conditions of confinement. They may invoke the First and Eighth Amendments and the Equal Protection Clause of the Fourteenth Amendment where appropriate, and may draw upon internal prison grievance procedures and state judicial review where available.
Id. at 487 n.11 (emphasis added). Here, then, even if Mr. Kimberlin's administrative segregation fell within the expected range of his sentence, Sand in recognizes that Mr. Kimberlin's administrative segregation still may allege that such segregation violated the First Amendment. Thus, there was no change in the applicable law that might have led the District Court to revisit Kimberlin I.
Nor is there any weight to appellants' assertion that the law-of-the-case doctrine is inapplicable to qualified immunity appeals. Appellants rely heavily on Behrens v. Pelletier, in which the Supreme Court acknowledged that qualified immunity issues may require more than one "judiciously timed appeal."
Furthermore, appellants cite nothing to indicate that the relevant facts have somehow changed so that the District Court's opinion in Kimberlin I regarding the clearly established law is now somehow diminished. Appellants address disputed facts only in connection with their claim that their conduct was objectively reasonable. See Br. for Appellants at 22-27; 28-36. However, in advancing this argument, they tellingly acknowledge that the issue of what was clearly established law at the time of the alleged violation is a legal determination that does not depend on the evidence in dispute. In short, appellants' attempt to draw sustenance from Behrens is fruitless.
Finally, it is noteworthy that appellants incorrectly frame the relevant "law" for which the court must determine what was clearly established when. Appellants ask whether Mr. Kimberlin had either an "unfettered clearly established right of access to the press" or "a clearly established right not to be placed in administrative detention." Br. for Appellants at 2. These are the wrong questions. The proper question in this case, as the District Court correctly noted, is whether Mr. Kimberlin had a clearly established right "to be free from governmental interference with [his] contacts with the press if that interference is based on the content of [his] speech or proposed speech." Kimberlin I,
B. Disputed Issues of Fact
The District Court rested the decision under review on the law-of-the-case. Finding that appellants had waived any challenge to the judgement in Kimberlin I on the established law, the trial court reasoned that summary judgment on grounds of qualified immunity was inappropriate. This approach fell short of what is required by Crawford-El, 523 U.S. at 600. In particular, the District Court failed to consider whether there are disputed issues of fact as to whether appellants violated clearly established law by intentionally segregating Mr. Kimberlin or interfering with his press contacts on account of the content of his speech.
At oral argument, counsel for appellee urged that one line in the District Court's order suggests that the court did indeed weigh the evidence regarding the defendants' intent. See Kimberlin II at 4, reprinted in J.A. 27. We are unimpressed, for counsel's argument clearly is a stretch and it does not reach the desired mark. The reference cited by counsel is to the decision in Kimberlin I, in which the trial court admittedly conducted an analysis of the record then before it. See
We therefore remand this matter to the District Court for consideration of whether there are disputed issues of material fact regarding the defendants' motivation. In so doing, the District Court must ask whether Mr. Kimberlin has identified "affirmative evidence from which a jury could find that the plaintiff has carried his or her burden of proving the pertinent motive." Crawford-El,
The District Court will have two principal considerations at the forefront upon remand. First, the District Court is not foreclosed from issuing a summary judgment for appellants merely because Mr. Kimberlin's claim rests on appellants' motive. It is true that "objective" issues such as whether the plaintiff suffered an injury or engaged in protected conduct are "more amenable to summary disposition than disputes about the official's intent." Id. at 599. Nonetheless, the Supreme Court has expressed faith in the experience of District Court judges to manage cases involving allegations of improper intent in a way that will allow for summary judgment in appropriate cases. Indeed, this expressed faith laid the foundation for the Court's rejection of the so-called "heightened pleading" standard in civil rights actions against government officials. See id. at 600-01.
Second, even if appellants provide an objectively valid reason for their actions in this case, the District Court must still inquire into whether there is a disputed issue of fact as to whether appellants were actually motivated by an illegitimate purpose. The opinion for the Court in Crawford-El specifically rejected the dissent's proposal to "immunize all officials whose conduct is 'objectively valid,' regardless of improper intent." Id. at 593-94. Moreover, in considering any objectively valid reasons offered by appellants, the District Court should be mindful of the Supreme Court's recent decision in Wilson v. Layne,
Upon resolving these questions, the District Court will either issue a summary judgment for appellants or proceed to hear the case on the merits. The second possibility will result in an interlocutory order which will not be subject to immediate review. See Johnson,
Many constitutional tort cases, unlike the simple "we didn't do it" case before us, involve factual controversies about, for example, intent--controversies that, before trial, may seem nebulous. To resolve those controversies--to determine whether there is or is not a triable issue of fact about such a matter--may require reading avast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials.
Johnson,
Moreover, this court has interpreted Behrens and Johnson to draw a clear distinction between the availability of appellate review in qualified immunity cases involving pure legal issues and those involving disputed issues of fact:
In the qualified immunity arena, the Supreme Court has drawn a distinction between two categories of cases, only one of which merits immediate appellate review: an interlocutory decision that rests upon the purely legal question of whether or not an official's actions violate clearly established law does satisfy the Cohen criteria, while an interlocutory decision that denies summary judgment because of the presence of triable issues of fact does not.
Meredith v. Federal Mine Safety & Health Review Comm'n,
Thus, if the District Court, on remand, denies summary judgment on the issue of appellants' intent, the matter will not be subject to immediate appeal.
III. CONCLUSION
For the reasons articulated herein, the case is remanded to the District Court for further proceedings consistent with this opinion.
Karen LeCraft Henderson, Circuit Judge, dissenting in part:
I dissent from the majority's holdings that (1) the law of the case doctrine bars review of the district court's determination that the applicable law was clearly established at the time of the alleged constitutional deprivation and (2) that the case must be remanded to determine whether the appellants' conduct violated clearly established law. In my view, law of the case does not apply, the applicable law was clearly established and the appellants' conduct, as revealed in the record, did not violate the clearly established law. Accordingly, I would hold that the appellants are entitled to qualified immunity and remand for entry of judgment in their favor.
First, I disagree with the majority's contention that the appellants' failure in their first appeal to challenge the district court's ruling that the relevant law was clearly established made that ruling the "law of the case" precluding the appellants from arguing otherwise now. As this court explained in Crocker v. Piedmont Aviation, Inc.,
As the court in Crocker noted, "neither law-of-the-case doctrine proper nor th[e] subsidiary waiver principle is an absolute preclusion to appellate review." Id. Each of these principles is "prudential" and admits of exceptions "broader than for conventional issue or claim preclusion" but the preclusive effect of waiver is "one notch weaker" than that of law of the case. Id. In the case of waiver, "the appellate court, for example, always possesses discretion to reach an otherwise waived issue logically 'antecedent to and ultimately dispositive of the dispute before it.' " Id. at 740 (quoting "United States Nat'l Bank of Oregon v. Independent Ins. Agents of Am.,
In Insurance Agents, the United States Supreme Court held this court had not abused its discretion in deciding an issue first raised in supplemental post-argument briefing, although the appellants had failed to raise it in either their opening or reply brief before argument. The Court so held because the neglected issue--whether a statute had been repealed--was "antecedent to" and "dispositive of" the question addressed in the opening brief--how the provision should be construed. While the circumstances here (two separate appeals) are somewhat different from those in Insurance Agents (a single appeal with post-argument supplemental briefing), the same reasoning applies. Whether the law was clearly established is "antecedent to" and, if decided in the appellants' favor, "dispositive of" the issue argued in the 1992 appeal: whether the appellants in fact violated the law. If the law was not clearly established then it is irrelevant whether or not the appellants violated the law because they were shielded by qualified immunity and therefore entitled to judgment as a matter of law. See Behrens v. Pelletier, 516 U.S. 299, 306 (1996) ("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.") (quoting Mitchell v. Forsyth,
Case law from the Supreme Court, as well as from circuit courts including this one, make it clear that the right identified by the district court--federal inmates' "First Amendment right to be free from governmental interference with their contacts with the press if that interference is based on the content of their speech or proposed speech right of federal prisoners,"
Although the district court's order does not expressly address whether the evidence, viewed most favorably to Kimberlin, makes out a constitutional deprivation, the issue is nevertheless properly before this court. The appellants' summary judgment motion below expressly argued the issue, see Kimberlin v. Quinlan, No. 90-1549, Memorandum in Support of Summary Judgment Motion at 16-29 (filed Feb. 3, 1997), and the district court, in denying the summary judgment motion, at least implicitly resolved it in Kimberlin's favor. Thus, "there is no apparent impediment to [the argument] being raised on appeal." Behrens v. Pelletier,
As the district court did not identify what the evidence reveals the appellants did, it is this court's "task" to undertake a " 'review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed.' " Behrens,
For the foregoing reasons, I would remand with direction to enter summary judgment for the appellants.
Notes:
Notes
In Palmer, this court applied the waiver theory (albeit under the "law of the case" rubric) in the same circumstances we have here--where the district court concluded its earlier unappealed decision was law of the case. See
Appeal of this issue is not barred under Johnson v. Jones, 515 U.S. 304, 319 (1995), which held that no appeal lies "if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred." Behrens,