Weise v. Casper

KELLY, Before ANDERSON, and McCONNELL, Circuit Judges. KELLY, JR., PAUL Judge. Circuit Defendants-Appellants Casper Michael Jay and Bob Klinkerman (collectively “De- fendants”) appeal the district court’s deni- al, without prejudice, of their Fed.R.Civ.P. motions dismiss quali- based fied immunity. As the district court ruled only that the evidentiary record was insuf- ficient to rule on the merits of Defendants’ motions, we grant Plaintiffs-Appellees’ motion to dismiss appeal for lack of appellate jurisdiction. Klinkerman Defendant and pin approached

Background comes.” “here he said, him” “that’s Leslie Weise Plaintiffs-Appellees ¶ told Plaintiff Casper Defendant “Plaintiffs”) (collectively Young Alex TD’d’, had been that “she Weise Bivens pursuant action brought an any “tried ill any intentions” had if she Federal Agents Named Unknown Six arrested, but wоuld ‘funny [she] stuff 388, 91 Narcotics, 403 U.S. Bureau of at in.” Id. [her] to let going he was that (1971), alleging 29 L.Ed.2d ¶ 23. others, acting and five Defendants that to White pursuant and of law color under Casper thereafter, Defendant Shortly First and their violated policy, House un- more one or with consulted by ejecting rights Amendment Fourth that advised was and defendants named by Presi- appearance public a from them had, the at direction themof more one or contend Plaintiffs Bush. George W. dent official, a policy set House of a White bumper a ejected because they were that the attending from anyone prohibiting viewpoint a expressed their car on sticker contrary viewpoint they held if event the President’s. that of contrary to ¶ 25. at id. See by President. the that held Marсh complaint, According to the Casper later, Defendant minutes fewA speech delivered 21, 2005, President the Plaintiffs, reached had who approached the Wings Over Security at the on Social the to leave them seats, directed and their Museum, in Den- Space and Air Rockies ¶27. were Plaintiffs at See id. event. ¶ 9.1 The Complaint See ver, Colorado. allowed and the event out of escorted proce- and policies the set House White ¶¶ After at 27-30. id. to reenter. See Presi- could attend to who dures that Plain- confirmed event, Service Secret avail- made and tickets were speech, dent’s bumper ejected because tiffs ¶¶ at 10-12. id. See public. to the able ¶at 32. id. vehicle. See on their sticker assis- solicited the also House The White intention they had no claim Plaintiffs volunteers, including and staff tance of op- event, given if but disrupting the its attendance Defendants, carry out have asked would one of them portunity, ¶¶ 11-12; at id. See the event. at policies ¶ 18. id. at question. the President 4. Br. at Aplt. action a Bivens brought Plaintiffs event to the tickets obtained Plaintiffs ca- individual Defendants against vehicle, in a event at arrived and acted Defendants that alleging pacities, Weise, which by Plaintiff driven and owned “[a]t and that law” federal “color of More read “No sticker bumper had concerning attend- times, policies all ¶¶13, 15-16. at id. For Oil.” See Blood by federal were set event at ance secu- approached Plaintiffs parking, After officials, includ- acting as federal officials ¶¶ 17, Plaintiff While at 19. id. rity. See defendants,” and Doe ing some enter, Plaintiff permitted Young was Casper and Klinkerman “Defendants with Defendant to wait directed Weise direction at the plaintiffs ejected as a himself Klinkerman, identified who of those federal policies pursuant Colorado, Plain- and told “volunteer” ¶¶ fur- Plaintiffs 36. officials.” Id. wanted Service the Secret tiff Weise “conspired” that Defendants allege ¶¶ ther 19, id. her. See with speak Doe with the in concert and “acted who thereafter, Casper, Defendant Soon ejection directed defendants who lapel suit, earpiece and blue wore a dark Appendix. Appellants’ pages 12-20 be found Complaint can The who policies established the supеrvision were be- of federal Weise, officials. See ¶ ing ejection.” enforced Id. at 34. 2006 WL at *4 (citing Richard- son, 521 U.S. at 2100; Rose- Each Defendant filed a motion to dis- wood v. Servs., Inc., miss action Sunflower Diversified Cir.2005)). grounds. Aplt. Br. at 2-3. In addi- district court noted that request- Plaintiffs tion, sought both a protective pro- order ed discovery on issue,” this “threshold hibiting all discovery until the issue of Defendants did not address it in their mov- qualified immunity was resolved. See Mo- ing papers, and thus the district tion to Dismiss for Lack of Appellate Ju- found the record to be insufficient for it risdiction of Plaintiffs-Appellees Leslie rule on the merits of the 30, Wiese and Alex motions. Young, 2006, Nov. See id. at 3. at *2-*4. In Accordingly, response, district requested Plaintiffs court discovery on ordered issue of Plaintiffs whether would be Defendants were allowed qualified discovery entitled to limited immunity the issue private as of “Defen- parties alleged dants’ to have at acting been status under time of the conduct at issue, color of law. See id. magistrate The whether Defendants were ‘closely granted supervised’ Defendants’ motions for protec- government officials, and tive stayed order and all discovery until whether Defendants are entitled to assert ” the pending motions to dismiss qualified based on [a] immunity [defense].... qualified immunity were decided. See id. at *4.2 appeal This followed. The district court denied Defendants’ Discussion dismiss, motions to prejudice. without See Under the Supreme Weise v. Casper, 05-02355, Court’s No. col 2006 WL (D.Colo. lateral 3093133, doctrine, at *4 order October, 30, 2006). Cohen v. Beneficial Indus. Although Loan Corp., 541, 546, district court 337 U.S. 69 found that 1221, S.Ct. Plaintiffs 93 sufficiently alleged (1949), L.Ed. 1528 “a federal action support claim, court’s Bivens denial of a of qualified was un- claim immu clear nity, to the district court the extent whether Defen- it turns on an issue law, dants could of assert is an appealable immunity ‘final decision’ defense. Relying on within the meaning § Richardson v. 28 of U.S.C. 1291 McKnight, 399, 521 2100, U.S. 117 notwithstanding the absence of a final 138 (1997), L.Ed.2d 540 judgment.” the district court Mitchell Forsyth, v. 472 U.S. explained that 511, 530, because 2806, Defendants were 105 S.Ct. 86 411 L.Ed.2d (1985). parties, they were entitled to as- Accordingly, Supreme Court sert a immunity defense if has appeals limited of interlocutory deci acting as federal officials sions denying the of qualified defense im private parties at the direction and close munity “to cases prеsenting neat abstract Following ruling, However, district court's we al- at 7-8. Plaintiffs’ can- concession lowed depositions Plaintiffs to take Casper of appellate jurisdiction not confer on this court. and Klinkerman for the purpose limited Stratman, 946, of See Garrett v. 254 F.3d identifying potential (10th other Cir.2001) (even defendants so it, party aif concedes could file against Plaintiffs claims them with- ‘special "we have obligation satisfy’ our- in the relevant of statute limitations. See appellate jurisdiction” selves of (quoting Order, 15, Feb. 2007. As a result Dist., of informa- Williamsport Bender v. Area Sch. tion during 534, obtained depositions, 541, those Plain- U.S. 106 S.Ct. 89 L.Ed.2d 501 agree tiffs (1986))). now closely Defendants were We still must examine supervised by public officials and are entitled district court’s order is where ‍​‌‌​​‌​​‌​​​​‌‌‌​‌​‌‌‌‌​‌​‌‌‌‌​​​‌​‌​​​​‌​‌‌‌​​‌‍one an interloc- immunity. Aplee. assert See utory appeal Br. would lie. Cir.1999). cannot If a district Jones, 515 U.S. v. Johnson law.” of

issues immunity the merits 132 L.Ed.2d rule on 317, 115 S.Ct. omitted); see (internal quotation at dismissal (1995) defense Pelletier, 516 U.S. are insufficient pleadings v. allegations Behrens also (1996). L.Ed.2d matter, 313, 116 S.Ct. as to some of evi- contrast, determinations pretrial immediately is not determination sufficiency dentiary Bd. v. Yonkers States United appealable. appealable. immediately not cases (2d Cir. Educ., F.2d 502-03 834; 313, 116 S.Ct. Behrens, U.S. 1990) (denial Jones, 515 U.S. where immunity not appealable grounds ra- two provided has be decid immunity cannot applicability First, distinction. support tionales pleadings the face ed from sufficiency determinations evidentiary Abrams, discovery); Lawson requires claim a plaintiffs separable not Cir.1988) (same); (2d 260, 262-63 decisions final do constitute thus Beach, Long City Almonte see also Behrens, 516 and Mitchell. Cohen Cir.2007). (2d 100, 110 Jones, 834; 313, 116 S.Ct. Second, “con- 314-15, 2151. S.Ct. 115 at the dis- argue that Second, Defendants expertise comparative delay, of siderations analyzed the have first court should trict courts, wise use appellate trial and of a constitu- of whether legal issue purely of favor argue in resources appellate of facts violation occurred based tional ‘qualified interlocutory appeals limiting and, so, if complaint contained presenting cases to immunity’ matters to right alleged the constitutional Jones, 515 law.” issues abstract more clearly established. violated was have been princi- 2151. These S.Ct. at 115 U.S. Response at Defendants-Appellants’ See at ei- interlocutory appeals apply ples 2-3. 8-9; Br. at Reply 6-9; Br. Aplt. at summary judgment the dismissal ther course, ordinary would While this Behrens, 516 See litigation. of a stage 229-33, 500 U.S. Gilley, Siegert see 306-07, 116 S.Ct. at U.S. (1991), 277 1789, 114 L.Ed.2d 111 S.Ct. princi Notwithstanding these only proceed after analysis can appel that we have argue ples, Defendants enti- defendant court determines We appeal. their over jurisdiction late immunity in qualified to assert tled there can First, they argue disagree. 231, 111 S.Ct. at id. instance. first on a dispute Fed.R.Civ.P. be no immunity is defense (“Qualified 1789 and that official.”); by a defendant pleaded must be they are face establishes on its complaint 158, 168, 112 S.Ct. Cole, 504 U.S. Wyatt v. immunity. See assert (1992) par- (private 504 L.Ed.2d 118 Mo Response Defendanb-Appellant’s officials public conspire who ties Appellate Ju Lack of for to Dismiss tion auto- are not rights constitutional violate Leslie Plaintiff-Appellees risdiction suit). The district matically immune (“De 15, 2006 Young, Dec. and Alex Weise that Defendants recognized court 6; at Response”), fendants-Appellants’ 2— inquiry more and decided officials public 2-4. How 9-12; Br. at Reply atBr. Aplt. any fur- engaging necessary before that denials ever, it is well-established immunity analysis. aspect ther a motion based its discre- did not abuse The district immediately appealable dismiss discovery given its ordering limited tion of law. turn on issues the extent concerns. LaFaver, F.3d Prager v.

Third, Behrens, rely Defendants whether the defendant’s conduct violated a 305-14, argu constitutional right, that denial is reviеwa- ing that the district court’s discovery order ble the court of appeals because the them to forces renew defense on district court’s denial constitutes at least summary judgment, thus them depriving an implicit legal decision that the com- right of their to dispose of the case at the plaint alleges a constitutional claim on stage. dismissal See Defendant-Appel which relief can be granted, and that the Response lants’ at 6. Behrens does not right constitutional alleged to have been provide that Defendants are automatically violated was clearly established the time appeal entitled to both the denial of a of Locurto, defendant’s conduct. See motion to dismiss and a motion for sum X-Men, F.3d at (сiting 66); 196 F.3d at mary judgment. Rather rejects Behrens McVey, 157 F.3d at cases, In such the “one-interlocutory-appeal” approach the district court rely must only on the and clarifies that the denial of facts as alleged in complaint and as- immunity at the dismissal does not facts, sume that those purposes preclude a renewal of that defense at sum dismiss, motion to are true. See Locur mary judgment further after factual devel to, 264 F.3d at X-Men, 164-65 (citing opment Behrens, has occurred. 66-67); F.3d at McVey, 157 F.3d at 276. 834; see also Walker Indeed, we recognized have that a district Orem, v. City 1146 n. 5 court cannot avoid ruling on the merits of (10th Cir.2006). Further, it is well estab a qualified immunity defense when lished that limited discovery may be neces resolve the purely legal question of wheth sary to resоlve immunity claims er a conduct, defendant’s as alleged by on summary judgment. See Anderson v. plaintiff, violates clearly established law. Creighton, 635, 6, 646 n. Cram, See v. 1124, Medina 252 F.3d 3034, (1987) 97 L.Ed.2d 523 (explaining (10th Cir.2001) (citing v. Arapahoe Malik although that qualified immunity should be County Servs., Dep’t 191 F.3d of Soc. resolved at the possible earliest stage of (10th Cir.1999)). litigation, discovery may “tailored” nec The decisions essary upon by relied resolve Defen- questions factual before dants, however, disposing clearly of the distinguishable case on summary judg ment). Here, from the instant case. the factual issue involves not whether Defendants’ Finally, argue Defendants that some conduct violated a right, constitutional the our sister circuits have exercised appellate factual issue involves the ques- threshold jurisdiction in analogous cases. De See tion of whether Defendants are entitled to fendants-Appellants’ Response at 6-9. assert qualified immunity in the in- first disagree We as each cases relied Indeed, stance. even the Second Circuit upon by distinguishable Defendants ‍​‌‌​​‌​​‌​​​​‌‌‌​‌​‌‌‌‌​‌​‌‌‌‌​​​‌​‌​​​​‌​‌‌‌​​‌‍are recognized has this in distinction squaring this case. from principally Defendants its holding Locurto with its Lawson hold- rely on the holdings Second Circuit’s in ing. Locurto, F.3d 165 (citing Safir, (2d Locurto 264 F.3d 164-65 Lawson, 263). Cir.2001) 863 F.2d at In case, this Sec., Pataki, and X-Men Inc. v. the court (2d district made no Cir.1999) legal 196 F.3d decision and the whatsoever, explicit implicit, Fourth Circuit’s holding McVey Sta the cy, (4th Cir.1998). merits 275-76 of Defendants’ motions. The dis- These cases hold trict that when a court court that allega- district determined the denies a immunity motion tions in сomplaint the taken even as true ground that a question as to did not adequately exists address whether Defen- the court.4 properly before munity was im- to assert were dants cases, court denied fact, in both discovery on that thus ordered

munity, and on their to dismiss motions defendants’ district Accordingly, the question. appellate merits, the making exercise appealable. is not interlocutory order Le entirely appropriate.5 jurisdiction jurisdiction have we argues dissent (7th 345, 347 F.3d Salafsky, 164 venstein v. evidentiary contending appeal, over this Doe v. Hillsboro Cir.1998); ex rel. Doe dis- on a motion never arise issues F.3d Sch. Indep. Dist. effectively de- district and the miss state Cir.1996).6 Further, cases that these facts, as the that legal issue cided the the denial proposition general entitle do not complaint, alleged immunity on a immunity.3 We Defendants Rule because decision constitutes disagree. true accept as a court to requires complaint is in the facts well-pleaded all attempt to the dissent’s First, reject we proposi this Of course point. beside present- issue split a circuit suggest it is true, emphasize but we by tion it cites the cases appeal, ed in the alleged the facts only true when inappo- Circuits Fifth and Seventh Here, the dis well-pleaded. complaint are on which Circuit cases the Second site to quali that whether determined trict court upon relied the cases rely. Neither we as a de available immunity was even fied of a the review dissent involved by the allegаtions unclear because fense was the com- court’s determination well-pleaded, complaint to deter- on its face was insufficient plaint correct discovery to limited and ordered im- the defense mine be determined could not we defense Notwithstanding its conclusion pleadings. face interlocutory ap- jurisdiction over this have re- we should peal, dissent contends Indeed, has exercised Circuit the Second district court this case to mand analogous cases. jurisdiction appellate face, "extreme- its makes complaint, on (2d See, Hasty, e.g., Iqbal v. of De- analyze merits ly for us difficult” ("[A] may appeal a dis- Cir.2007) defendant See immunity defense. fendants’ immuni- ruling denying qualified trict court’s appears that the 1. It at 1268 n. Dissent when, аllegations are as- plaintiff’s ty if a develop- that further dissent concedes true, whether only question the is be sumed to the merits of necessary to decide clearly is estab- ment violated alleged conduct the defense, support which would right.”). Defendants’ lished when the position that there times our Furthermore, cases only dispute in the these 6. complaint are allegations contained alleged con- whether defendants’ concerned whether inadequate to determine rights plaintiffs’ constitutional violated duct as defense. even available is clearly estab- were rights those and whether event, course proper is not any remand 351-53; Levenstein, 164 F.3d lished. jurisdiction appellate have we do not Therefore, Hillsborо, these at 1406. way this case is place. The first instant distinguishable from the cases are is immediately appealable if distin- we earlier reason case for the same law, question of ruling turned cases Circuit Fourth guished the Second and "ex- not be whereby review would merits our Defendants, namely this by upon relied tremely difficult.” ap- preclude dispute does not type of factual For the Supra at 1265-66. pellate review. reason, dissent’s disagree with the Circuit we knowledge, the Second same 4. our To case in this our decision the denial of whether contention only circuit to address nearly every of a motion denial "would make is immediate- immunity at the dismissal at 1270. Dissent unappealable.” applicability of that appealable ly whеn problem. Surely the district court be necessary to resolve factual questions course, has discretion to undertake this concerning qualified immunity before dis- regardless, but its determination clearly posing of the case on summary judgment). does not constitute decision on an ab- Finally, the dissent claims Defen- point stract of law and is not reviewable dants legal make the argument under the collateral order doctrine. issue of they whether closely were super- Second, the argument dissent’s that evi- by vised federal officials is “not a neces- dentiary issues never arise on a motion sary predicate to their invocation of quali- 12(b) by dismiss is belied Rule itself. fied immunity” and that our holding denies acknowledged by dissent, As Rule Defendants the “valuable right to obtain a 12(b) contemplates possibility of factu- ruling on significant legal question, this al insufficiency at the pleading stage and exposes them to the burden of discov- expressly permits the conversion a mo- ery that, on an contend, they issue should tion to dismiss into one for summary judg- be resolved aas matter of law.” Dissent ment to resolve that problem. Dissent at 1270. Although argue Defendants Further, it is well-settled that a district district court’s denial of their motions to court has the discretion to effect such a dismiss constituted an implicit decision conversion, sponte, by sua requesting in- that they are not entitled to quali- invoke formation outside the pleadings. See 5C immunity, fied see Defendants-Appellants’ Charles Alan Wright Miller, & Arthur P. Response at Defendants do not argue Federаl § Practice and Procedure that Richardson does not extend to the Notwithstanding the apparent position of facts of this case. To the contrary, Defen- the dissent that defendants who assert dants explicitly argue that “this case pres- qualified immunity always must spared precise ents the situation envisioned discovery,7 the Federal Rules of Civil Richardson,” and claim Procedure do operate differently in the facts, that the as alleged in complaint, context immunity. See id. demonstrate closely supervised. (“There is considerable authority to the Aplt. 9-12; Br. at see also Reply Br. effect that the provision conversion applies at 4-5. to affirmative defenses raised on a Rule Even if result, motion. As a Defendants made argument when a de- (which they not), fendant’s dismiss raises an affir- do would not change mative defense that our holding. is not apparent on the district court made no pleadings face ruling outside matter is whatsoever presented and accepted, federal courts Richardson will extends to the facts of this generally treat the motion as if it were case. one The recognized district court that (footnotes summary for judgment.”) omit- might Richardson apply case, to this but ted); Anderson, see also U.S. 646 n. failed to way rule either on this issue (“tailored” discovery may because the predicate necessary to contrary, 7. To the qualified the ("[qjualified assertion of immunity does not shield immunity automatically does not act aas government discovery offiсials from all but complete Mitchell, discovery. bar to only discovery which is either avoidable ("Indeed, U.S. at 105 S.Ct. 2806 Harlow broad”) (alteration overly original). the emphasizes pretrial that even such matters as importantly, More narrowly tailored discov- discovery ....”) be possible to avoided if ery designed orders to "uncover those added). (emphasis ordering The of narrow facts needed rule immunity to claim” discovery qualified immunity cases en- immediately appealable. not tirely permissible. Garrett, 254 F.3d at Proceedings Below Background and 1. namely Defendants’ analysis, that conduct conduct alleged time their at the status defendants that the claim plaintiffs The the the face occurred, unclear from rights Amendment First their violated Thеrefore, claim dissent’s the pleadings. paid meeting, public them from ejecting constitut- decision court’s the district that funds, at President which by public for scope of the about “legal conclusion ed a Allegedly speaking. Bush was George W. parties” private immunity for qualified bumper stick- ejected they were support. record to have not seem does Oil”) (“No Blood for vehicle er on their DISMISSED. APPEAL the Presi- disagreed they indicated citi- private are two defendants dent. The McCONNELL, Judge, Circuit assist at to volunteered zens who dissenting. alleges complaint The event.2 holding, majority’s Contrary “at the direction acted defendants defen- denying the decision court’s district offi- ... federal polic[i]es pursuant im- qualified on to dismiss motions dants’ that, allege not 7. It dоes Compl. at cials.” order, appealable is an munity grounds responsibilities, in the conduct question pure does on as it turning by fed- closely supervised were defendants voluntarily citizens layr: private whether officials. eral event, federally-sponsored assisting at viola- alleged constitutional a motion sued for each filed when defendants The invoke Bivens, are entitled immunity. The tions on based dismiss immunity in protections Richardson court, based closely they were proof absence of 399, 117 S.Ct. McKnight, Because officials. by federal supervised (1997), reasoned 138 L.Ed.2d ques- legal answered court the district defendants were whether defen- denied the negative, it tion immuni- protections invoke the motions dants’ Cas- Defendants ty whether “turn[ed] limited ordered stаge and the dismissal acting as were federal Klinkerman per and they were whether discovery to determine par- they were or whether officials below, the explained As supervised. so offi- of federal direction acting at the ties The inwas error. conclusion closely super- cials, were whether merits of on to the gone have should court Casper, No. Weise vised.” whether immunity claim: (D.Colo. Oct.30, *4 2006 WL a constitution- alleged complaint plaintiffs’ it was 2006). complaint, face of the theOn so, that viola- violation, and if al supervi- the “close evident whether This clearly established.1 tion was The district was satisfied. condition sion” that erroneous to review jurisdiction has “with- motions court denied dissent. respectfully I therefore decision. court to sort and allow mand unlikely a motion highly seems It stage in the the first granted at this issues in instance. the merits through could dismiss com- allegations The proceedings. alleged the terms do not set forth plaint Klinkerman alleges that Mr. complaint enforcing policy the defendants federal Compl. at aas volunteer. himself identified justifications, authority or or its asserted Secret Ser- as a Casper identified 4. Mr. analysis ex- constitutional would make which an them is in fact agent. either of Id. If vice But because tremely difficult. volunteer, right his agent than rather only of ‍​‌‌​​‌​​‌​​​​‌‌‌​‌​‌‌‌‌​‌​‌‌‌‌​​​‌​‌​​​​‌​‌‌‌​​‌‍whether the issue court addressed disputed, so immunity not qualified is invoke individuals, defendants, as ar- will assume I purposes of discussion for immuni- protections to invoke are volunteers. guendo that both to re- this court is for ty, proper course

1269 prejudice,” out granted plaintiffs’ 511, 530, 2806, 105 S.Ct. 86 L.Ed.2d 411 motion for discovery” “limited (1985). on this Ordinarily, denial of a motion to “threshold issue.” Id. The ap- defendants dismiss or a motion for summary judgment pealed. is not a final order and is therefore not appealable; but because those entirely

It is not entitled to clear what the district qualified immunity court meant have a by denying right to dispose motions “with- prejudice.” legal out Every proceedings against denial of a mo- them as tion for qualified quickly possible, is as “without and because the claim prejudice” in that, the sense to immunity the case sufficiently is separable from moves from the stage dismissal to sum- defense, the merits of a the Court held mary judgment verdict, to trial to if facts that defendants are entitled to interlocu- emerge which under the defendants are tory appeals when motions for dis- entitled to immunity, they may missal or summary judgment on make appropriate motions in district court immunity are 525-28, denied. Id. at and take appeals to the appeals; court of Behrens, S.Ct. 2806. In empha- Court the denial of a motion for immu- sized that immunity “is to give gov- meant nity at an earlier does not stand as a ernment a right, officials merely Pelletier, bar. 299, Behrens 516 U.S. trial,’ ‘standing avoid but also to avoid the 834, S.Ct. L.Ed.2d 773 burdens of pretrial ‘such matters as dis- (1996). hand, On the other having denied covery. ...’” 516 U.S. at the defendants’ motions based on the Mitchell, 834 (quoting U.S. pleadings and ordered discovery, the dis- 2806). S.Ct. The Court explained that trict court necessarily precluded any re- “denial of а motion to dismiss is conclusive newal of a motion to dismiss. Once discov- as right to this discovery],” [to avoid ery “limited discovery” place —even —takes deemed it ... “settled right is on this point, the defendants’ invocation of important enough support an immediate qualified immunity must be in the form of appeal.” Behrens, 516 U.S. at a motion for summary judgment. See S.Ct. 834. 12(b)(6) (reference Fed. R. Civ. Pro. to and sure, To be majority notes, as the inter- reliance on any “matters outside plead- locutory appeals are limited pre- “to cases ing” causes a motion to dismiss to “be senting neat abstract issues law.” treated as one for summary judgment”); Jones, Johnson v. 304, 317, see also 5C Charles Alan Wright & Arthur (1995) (inter- 132 L.Ed.2d 238 Miller, R. Federal Practice & Procedure quotation omitted); nal Behrens, see also § 1366. Despite the district court’s use of 516 U.S. at 116 S.Ct. 834. Johnson words, “without prejudice,” the defen- holds that an interlocutory appeal is not dants would not be able to renew their permitted when the district denies a motions at the dismissal stage, and thus motion for summary judgment on the basis would not be able to vindicate their assert- of “a dispute pretrial about the right ed fact-related immunity as a matter record, namely whether or law, not the evi- prior discovery. ... dence was sufficient to genuine show Appellate II. Jurisdiction issue of fact trial.” 515 U.S. at S.Ct. 2151 (emphasis original). Mitchell Forsyth, But evidentiary such addressed whether a issues can arise decision deny a claim qualified motions for summary judgment, immu- where the nity grounds appealable presence of a disputed issue of material the collаteral order doctrine. fact is a basis for denial. majority mo- of a every denial nearly make would the con- to principle extending this errs ‍​‌‌​​‌​​‌​​​​‌‌‌​‌​‌‌‌‌​‌​‌‌‌‌​​​‌​‌​​​​‌​‌‌‌​​‌‍a Denial of unappealable. dismiss to tion to A motion to dismiss. motions of

text character- always be can “evidentiary suffi- to dismiss test not does dismiss that the actu- the conclusion resting no on at because ized as Maj. Op. ciency,” are insuffi- complaint either offered in the alleged can be facts is al evidence is to right the court Rather, the defendant’s at establish cient to side. whether, the assuming course, proof of additional to decide Of asked dismissal. true, the are complaint the that the defendant of allegations show might well facts aas dismissal to are entitled not that does defendants but prevail, to legal question, is a That law. of a matter into question the dismissal convert “fact- one. a factual Johnson, not 515 U.S. dispute,” related dis- Rather, a motion court conclu- S.Ct. case, the In this law: no of wheth- only question had a defendants raises the miss sively resolved that ... as complaint of burden[ ] in the er, the facts taking ... to avoid “right 308, 116 Behrens, claim. legal 516 U.S. has a discovery,” true, plaintiff of whether issue S.Ct. warned has Indeed, Court Supreme officials, by federal supervised closely major as the overreading Johnson against legal ar- the defendants’ notwithstanding Behrens, explained Court ity does. nec- is not a supervision that such gument is often summary judgment although that invocation to their essary predicate is controverted “there are denied Br. Appellant’s immunity. See surely fact ... Johnson material sues cor- defendants are 10-11. Whether ... every such denial that not mean does an “ab- resolution depends on rect 312-13, 116 516 U.S. nonappealable.” is law: important question stract” —and — has district court that the All S.Ct. that holding Court’s the Supreme whether can be all that it is here —because held corpora- for-profit private, of a employees motion—is on a Rule held functions government conducting tion do not show complaint facts immunity, Rich- not entitled invoke entitled to defendants 399, 117 McKnight, v. ardson about legal conclusion is immunity. That (1997), also L.Ed.2d scope private citizens immunity for eliminates it is must decide parties, we such voluntarily performing assist who correct. officials. of federal behest at the functions neither majority cites The holding majority’s The sup precedent Tenth Circuit nor denies appealable is not order of motions assertion denials right port to obtain its valuable defendants may and hence question, factual issues raise significant on this dismiss ruling cite several of discov- It does the burden unappealable. be exposes them Circuit, also which resolved the Second ery an issue from on eases ma- mo from law, pleadings. appeals The over deny jurisdiction matter directly conflicts holding qualified-immunity thus jority’s tions Long City and Mitchell. Behrens Almonte E.g., grounds. Cir.2007). (2d Beach, 478 F.3d of John- interpretation majority’s view, flies however The Second Circuit’s denying a motion an order son—that decision face of better-reasoned if it concludes appealable dismiss Circuit, Levenstein the Seventh toas are insufficient Salaf pleadings that “the J.). Cir.1998) (Wood, sky, at 1264 matter,” Maj. Op., some 1271 explained The Seventh Circuit that “unlike Prior to Richardson the rule in our cir summary a for judgment, motion which cuit was that “a private individual who part question performs government raises pursuant function opposing party has demonstrated the exis to a request state order or is entitled to facts, disputed tence of motion immunity if a state official would for failure to state a only legal claim raises have been entitled to such immunity had issues. This Rule performed he the function himself.” Ea requires accept the court to gon as true ex Eagon rel. v. City Elk City, 72 all well-pleaded 1480, (10th facts cоmplaint, Cir.1996) (cited F.3d 1489 drawing all Richardson, reasonable inferences in favor 402, 521 U.S. 117 S.Ct. 2100) (internal opposing party.” Id. at 347. The quotation omitted). marks Fifth Circuit has Richardson, the same conclu however, reached In the Court held sion. Doe ex rel. Doe v. Indep. Hillsboro that prison guards employed by private, Dist, 1395, Sch. for-profit Cir. corporations may not invoke 1996), vacated en banc on grounds, other qualified immunity. doing, so the Court (5th Cir.1997) (“In the Rule “narrow[,]” described its holding as 12(b)(6) context, there never gen be a limited to “the context in which arose.” Richardson, uine-issue-of-fact-based denial 413, U.S. 117 S.Ct. immunity, as we must assume that 2100. The Court expressly noted that the plaintiffs factual allegations are true. case “does not private involve a individual Thus, denials of motions to dismiss on the briefly government associated with a body, of qualified immunity basis always are serving adjunct anas government in an denials”). ‘purely legal’ This is the better governmental essential activity, or acting view law. under supervision.” close official Id. I therefore conclude juris- that we have In its review of scope the historical diction to review the question decided immunity private persons for by the district Richardson, court. the Supreme Court found that although there was general no immunity Right III. The Defendants’ to Invoke “private working individuals for profit,” Qualified Immunity nonetheless “the provide [common] law did The district court kind of interpreted immunity private for certain Richard- defendants, son v. McKnight holding such as lawyers doctors or persons performed sued for who constitutionаl services at violations the behest of sovereign.” 407, committed under color state or federal 117 S.Ct. 2100 Glover, law3 are not (citing entitled invoke Tower v. 914, 921, U.S. (1984) unless these actions were 104 S.Ct. “close- 81 L.Ed.2d 758 & ly supervised by government officials.” Joel Prentiss Bishop, Commentaries on Casper, Law, Weise v. No. (1889)). §§ 2006 WL Non-Contract (internal 3093133, at *4 quotation marks The Court then offered jus- two functional omitted). This was an overbroad interpre- tifications for concluding private pris- Supreme tation of precedent. guards not Although Court has never said 403 91 S.Ct. 29 L.Ed.2d so, I assume that applies (1971), Richardson because the gener two immunities immunities available to state actors ally taken to be coterminous. v. Econo Butz § but also to those available to mou, 478, 501, federal actоrs under Bivens Six Unknown (1978). L.Ed.2d 895 Narcotics, Agents Named Federal Bureau the func- Indeed, in terms of their behalf. First, pressures “Competitive immunity. Richard- in too identified justification guards tional a firm ... whose mean by of might well be replacement son, immunity of qualified face threats timid will voluntarily that demonstrate persons records necessity with for other firms greater more and a a safer ability to do both their it is for than government assisting the Richardson, at 521 U.S. job.” effective officials, are be- who at least government competitive This 409, 2100. 117 S.Ct. might be fired job and do ing to paid the protec for thus substitutes pressure offi- If government performance. for lax of a means immunity as qualified tion of “fear immunity lest cials need of official exercise vigorous “the ensuring of all dampen the аrdor ... being sued of 2100, 408, 117 S.Ct. authority.” Id. resolute, most irre- the most but 506, Butz, 98 S.Ct. 438 U.S. quoting 457 U.S. Fitzgerald, v. Harlow sponsible,” Second, firms (1978). prison private L.Ed.2d 396 102 S.Ct. eco different market with faced a labor omitted), (internal (1982) marks quotation to required were nomic incentives — cooperate who citizens private then civil for insurance comprehensive buy public of motives government out higher offer torts, free to and were rights need it a service fortiori. be guards to their benefits or extra pay civil ser liberated they were cause as a broad read not is best Richardson Richardson, vice restraints. immunity less-than- to denial of 411-12, 117 but as private persons, closely-supervised system explain the incentive holding that considerations a narrow Similar Cole, v. Wyatt in eliminated immunity decision can be by Court’s earlier created 1827, 118 L.Ed.2d 158, 112 S.Ct. pressures competitive where protection (1992), which denied a substitute. provide market private who immunity private persons should continue Eagon rule of general garnishment, replevin, state had invoked the com- subject to those not for control held to be later statutes and attachment relevant deemed pressures petitive the defendants Because unconstitutional. Richardson. own economic acting out of their by is confirmed view Richardson This any purpose, public for and not interest Inc., Servs., decision Rosewood our immu- purposes the traditional Inc., Servs., extending it to Diversified not be Sunflower nity served would (10th Cir.2005), we where 167-68, 112 S.Ct. Id. at the defendants. “community develop- non-profit held and its organization! disability ]” mental applies justifications of those Neither president were assist who volunteer private persons There, examined we Richardson. public conduct federal officials organiza- disability for market such “[cjompetitive no There are functions. though the that even and concluded tions Richardson, 521 U.S. at pressures,” the “com- heavily regulated, market spur private that would sufficiently [were] market forces petitive performance vigorous to a volunteers incentive a substitute provide present” in the face of responsibilities Thus, “suffi- at 1169. system. persons Such of Bivens suits. prospect ex- pressures market competitive cient other or benefits or higher pay receive no of’ timidity part оn the to lessen isted] em- no advantage, and economic employees and its organization insurance forced to obtain ployer is eliminated the immunity. need UNITED America, STATES Plaintiff-Appellee, The defendants here more resemble “private briefly individual associated with MINTMIRE, Donald Frank a government body, serving adjunct as an Defendant-Appellant. government in an ‍​‌‌​​‌​​‌​​​​‌‌‌​‌​‌‌‌‌​‌​‌‌‌‌​​​‌​‌​​​​‌​‌‌‌​​‌‍essentially govern- No. activity,”

mental 06-11212 which the Court excluded Argument Richardson, Calendar. its rule they than do employee firm, of “a systemat- United States Appeals, Court of ically organized major to assume a lengthy Eleventh Circuit. administrative (managing task an institu- Nov. tion) with limited direct supervision by the government, [which] undertakes that task profit potentially in competition Richardson,

with other firms.” 521 U.S. at Therefore, 117 S.Ct. 2100. allega-

tion that the defendants here were direct-

ed federal pursuant officials and acted policy federal is enough for me to con- they

clude that are entitled to raise a

qualified immunity defense litigation, proof without that their ac-

tivities supervised were closely by federal

officials.

IV. Conclusion

The district court’s order denying the

defendants’ appeal- motions dismiss is doctrine,

able under the collateral order

and the court’s holding that the defendants

are not entitled to invoke qualified immu-

nity proof without acted under

close official supervision should re- I

versed. respectfully therefore dissent majority’s

from the opinion.

Case Details

Case Name: Weise v. Casper

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Nov 20, 2007

Citation: 507 F.3d 1260

Docket Number: 06-1504, 06-1516

Court Abbreviation: 10th Cir.