In Mitchell v. Forsyth, 472 U.S. 511 (1985), we held that a district court's rejection of a defendant's qualified-immunity defense is a "final decision" subject to immediate appeal under the general appellate jurisdiction statute, 28 U. S. C. § 1291. The question presented in this case is whether a defendant's immediate appeal of an unfavorable qualifiedimmunity ruling on his motion to dismiss deprives the court of appeals of jurisdiction over a second appeal, also based on qualified immunity, immediately following denial of summary judgment.
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).
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
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
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.
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 v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). 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,
While Mitchell did not say that a defendant could appeal from denial of a qualified-immunity defense more than once,
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 (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-todismiss 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
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 317, 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.
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.
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
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 313-318. That is a misreading of the case. Denial of summary judgment often includes a determination that there are controverted issues of material fact, see Fed. Rule Civ. Proc.
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 319. That is the task now facing the Court of Appeals in this case.
It is so ordered.
Justice Breyer, with whom Justice Stevens joins, dissenting.
I do not agree with the Court's holding that those asserting a defense of qualified immunity are entitled, as a matter of course, to more than one interlocutory appeal. Rather, in my view, the law normally permits a single interlocutory appeal, and not more than one such appeal, from denials of a defendant's pretrial motions to dismiss a case on grounds of qualified immunity. The "collateral order" doctrine's basic rationale, this Court's precedents, and several practical considerations lead to this conclusion.
This Court's basic rationale for permitting an interlocutory appeal of a "collateral order" recognizes that interlocutory appeals are the exception, not the rule. Congress, with statutory exceptions not directly relevant here, has authorized appeals from "final" orders. 28 U. S. C. § 1291. In that way,
Judges have nonetheless created what is, in effect, a nonstatutory exception, authorizing a special set of interlocutory
These requirements explain why the courts have created the "collateral order" exception. The "effective unreviewability" requirement means that failure to review the order on appeal now may cause a litigant permanent harm. The "conclusive determination" requirement means that appellate review now is likely needed to avoid that harm. The "separability" requirement means that review now will not likely force an appellate court to consider the same (or quite similar) questions more than once. Johnson v. Jones, 515 U.S. 304, 311 (1995). Taken together, these requirements, as set forth in the Court's cases, see, e. g., ibid.; Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 (1988), help pick out a class of orders where the error-correcting benefits of immediate appeal likely outweigh the costs, delays, diminished litigation coherence, and waste of appellate court time potentially associated with multiple appeals. See, e. g., Johnson, supra, at 309-311; R. Posner, Economic Analysis of Law 585-587 (4th ed. 1992).
In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court applied this rationale to a District Court order denying a claim of qualified immunity. The Court concluded that the District Court order, by sending the case to trial, could cause the litigant what (in terms of the immunity doctrine's basic trial-avoiding purpose) would amount to an important harm.
That same rationale, however, does not support two pretrial interlocutory appeals, the first from a denial of a motion to dismiss a complaint, the second from a later, postappeal, denial of a motion for summary judgment. Consider the "separability" requirement. Both orders satisfy the literal terms of that requirement because the qualified immunity issues they resolve are both "separate," in equal measure, from the merits of the plaintiff's claim. See ante, at 309-310, n. 3. But the reasoned principles and purposes underlying the "separability" requirement are not served by a rule that permits both orders to be appealed because the issues they raise are not normally "separate" one from the other. Rather, they will often involve quite similar issues, likely presented to different appellate court panels, thereby risking the very duplication and waste of appellate resources that the courts intended the "separability" requirement to avoid. See 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3911, pp. 333-334 (2d ed. 1992) (hereinafter Wright & Miller).
Similarly, given the law's promise of one pretrial interlocutory appeal, a litigant's need for a second is much less pressing. The single interlocutory appeal can avoid much of, though not all of, the harm that Mitchell found. And, the remaining harm, as I shall next discuss, is not of a kind that the law considers important enough to justify an interlocutory appeal.
This Court's precedents justify one interlocutory appeal, but not more, in the ordinary qualified immunity case. When it initially set forth the "collateral order" exception, the Court said that it applied to "that small class" of orders that determine claims of right "too important to be denied [immediate] review." Cohen, supra, at 546 (emphasis added). In subsequent cases, and again today, the Court has reiterated that, to qualify for interlocutory appeal, the interest being asserted must be an important one. See, e. g., ante, at 308; Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 878-879 (1994) (Cohen inquiry "simply cannot be answered without a judgment about the value of the interests that would be lost through rigorous application of a final judgment requirement"); Coopers & Lybrand , supra, at 468 (disputed question must "resolve an important issue"); Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 436 (1985); see also Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 502 (1989) (Scalia, J., concurring) ("The importance of the right asserted has always been a significant part of our collateral order doctrine"). Because one pretrial appeal would normally prove sufficient to protect a government defendant's qualified immunity interest in not standing trial, the right to take multiple interlocutory appeals will normally protect only the defendant's additional interest in avoiding such pre trial burdens as discovery. Thus, the question, as Justice Scalia has pointed out, is whether this antidiscovery interest is "sufficiently important to overcome the policies militating against interlocutory appeals." Id., at 503 (emphasis added). The relevant precedent indicates that, in the context of qualified immunity, it is not.
For one thing, the Court, when considering the kinds of orders that warrant interlocutory appeal, has identified as "sufficiently important" interests that are considerably more important than the ordinary interest in avoiding discovery.
For another thing, the Court has often said that the trouble, expense, and possible embarrassment associated with unnecessary litigation (interests rather like the qualified immunity antidiscovery interest) do not justify interlocutory appeal. See, e. g., Digital Equipment Corp., supra, at 881-882 (no interlocutory review of orders refusing to enforce a settlement agreement); Lauro Lines, supra, at 499 (no interlocutory review of orders refusing to enforce a forum selection clause); Van Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988) (no interlocutory review of orders refusing to dismiss a civil suit on grounds of immunity from civil process or forum non conveniens ).
Further, until now litigants have not been able routinely to vindicate, through immediate appeal, a legal right to avoid discovery, 15B Wright & Miller § 3914.23, at 123-130, even where the Constitution provides that antidiscovery right, see, e. g., Maness v. Meyers, 419 U.S. 449, 458-461 (1975) (no interlocutory appeal of order refusing to quash subpoena for materials that arguably violated subpoenaed party's Fifth Amendment privilege against self-incrimination). Although a litigant can sometimes appeal an adverse discovery ruling, to do so, the litigant typically must disobey the discovery order and then appeal a resulting citation for contempt of court. Church of Scientology of Cal. v. United States, 506 U.S. 9, 18, n. 11 (1992); Maness, supra, at 460-461; United
It seems highly anomalous for the law to deny a routine interlocutory appeal where the Constitution of the United States protects an antidiscovery interest, but to permit a routine appeal where the legal doctrine of qualified immunity protects a similar interest. Yet, today's holding will either create just such an anomaly, or, as is more likely, it will generate many new interlocutory appeals as lower courts apply its principle wherever the Constitution, or other important legal doctrine, offers a litigant special antidiscovery protection.
The majority suggests that the importance of the antidiscovery interest protected by qualified immunity has already been "settled" by such precedents as Mitchell v. Forsyth, 472 U.S. 511 (1985), and Harlow v. Fitzgerald, 457 U.S. 800 (1982). See ante, at 308. These cases do say that the qualified immunity defense, in its modern formulation,
Finally, this Court and its individual Members have, in recent years, cautioned against expanding the class of orders eligible for interlocutory appeal. See, e. g., Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S., at 868 (opinion of Souter, J.) ("[T]he `narrow' exception should stay that way and never be allowed to swallow the general rule"); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S., at 292 (Scalia, J., concurring) ("[The Court's] finality jurisprudence is sorely in need of further limiting principles, so that Cohen appeals will be, as we originally announced they would be, a `small class [of decisions] . . . too important to be denied review' "); Richardson-Merrell Inc. v. Koller, 472 U. S., at 440 (opinion of O'Connor, J.) ("[W]e decline to `transform the limited exception carved out in Cohen into a license for broad disregard of the finality rule imposed by Congress in § 1291' ") (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 378 (1981)). Caution would seem especially appropriate where the Court is considering not one interlocutory appeal in a single case, but two.
Several important practical considerations also favor limiting the number of interlocutory qualified immunity appeals to one. The majority finds the necessary special harm in the fact that the qualified immunity doctrine protects public officials against discovery as well as trial; and it finds "separability" in the fact that a postdiscovery summary judgment motion likely asks a legal question that is conceptually distinct from the legal question posed by a prediscovery motion to dismiss a complaint. But, given this rationale, can one limit the number of appeals to just one or two? Would it not, in principle, justify several appeals where discovery, proceeding in stages, continuously turns up new facts, or where, after the close of the plaintiff's case, an immediate appeal would avoid the litigation burden of presenting an entire defense case.
Still, even two pretrial appeals risk what Justice Story called "very great delays, and oppressive expenses," Canter v. American Ins. Co., 3 Pet. 307, 318 (1830), which can "ossify civil rights litigation," Abel v. Miller, 904 F.2d 394, 396 (CA7 1990) (Easterbrook, J.). The defendant in the present case, for example, so far has spent more than four years (of seven since the complaint's filing) fighting, through interlocutory appeal, a case that he might well have won more quickly and easily either in the trial court or on appeal from an initially adverse judgment on the merits. Cf. Pelletier v. Federal Home Loan Bank of San Francisco, 968 F.2d 865, 872-873 (CA9 1992) (expressing doubt that plaintiff's complaint could survive a summary judgment motion). I concede that every added interlocutory appeal will serve the interests that underlie qualified immunity to some extent, for each will help a government defendant terminate meritless litigation. But each added appeal likely would serve those interests to an ever-diminishing degree while posing an ever-increasing threat to the appearance of evenhanded justice in civil rights cases. See Coopers & Lybrand v. Livesay, 437 U. S., at 476
Further, as mentioned above, the majority's rationale threatens added appeals, not simply in qualified immunity cases, but wherever an immunity-type doctrine (or any other important legal rule) seeks to protect litigants from trial. See, e. g., Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) (Eleventh Amendment immunity); Nixon v. Fitzgerald, 457 U.S. 731 (1982) (absolute immunity); Abney v. United States, 431 U.S. 651 (1977) (double jeopardy guarantee against successive prosecutions). It thereby threatens busy appellate courts with added numbers of essentially similar, if not repetitive, appeals, at a time when overloaded dockets threaten the federal appellate system. See Remarks of Chief Justice William H. Rehnquist, Tenth Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit, 146 F. R. D. 256, 257 (Apr. 30, 1992) ("One of the chief needs of our generation is to deal with the current appellate capacity crisis in the Federal Courts of Appeals. Few could argue about the existence of such a crisis, born of spiraling federal filings and an increased tendency to appeal District Court decisions"); Judicial Conference of the United States, Long Range Plan for the Federal Courts 132 (Dec. 1995) ("[I]f conditions seriously deteriorate in the courts of appeals, it may be necessary to consider some limitations on the right to appeal"). See generally T. Baker, Rationing Justice on Appeal: The Problems of the U. S. Courts of Appeals 31-51 (1994).
Finally, as a practical matter, where the benefits of immediate appellate review predominate in an individual case, a party still can seek court leave to appeal immediately under 28 U. S. C. § 1292(b) (permitting immediate review of nonfinal orders that involve a controlling and controversial question of law, the appellate resolution of which "may materially
In sum, purpose, precedent, and practicality all argue for one interlocutory qualified immunity appeal per case and no more. I believe that the Court, following Mitchell, should simply hold that qualified immunity interests, while important enough to justify one interlocutory appeal, are not important enough to justify two. It is not necessary to argue about whether the defendant "waived" a second appeal, see Kaiter v. Boxford, 836 F.2d 704, 708 (CA1 1988); nor, since the matter turns on "importance," not conclusiveness, need the Court decide just how the timing of an interlocutory appeal affects the "finality" of the trial court's denial of a motion to dismiss the complaint. See ante, at 307-308. Rather, a defendant asserting qualified immunity would remain free, as at present, to appeal from a denial of a motion to dismiss the complaint, or the defendant could wait, move for summary judgment, and appeal the motion's denial, but he could not do both—either because the interest asserted
As I said, precedent permits this result because, under that precedent, the importance of the interest (an interlocutory appeal is needed to protect) is one necessary requirement for application of the technical legal labels "final" or "collateral order." More importantly, meaning in law depends upon an understanding of purpose. Law's words, however technical they may sound, are not magic formulas; they must be read in light of their purposes, if we are to avoid essentially arbitrary applications and harmful results. For the reasons I have set forth, precedent, read in this way, does more than permit—it requires—a single interlocutory appeal. I therefore dissent.