Second Circuit Discusses the Collateral Order Doctrine and Pendent Jurisdiction

Per Papineau v. Parmley, ---F.3d----, 2006 WL 2828506 (2nd Cir. Oct. 4, 2006):

On October 7, 2005, this Court denied plaintiffs' motion to dismiss this appeal, which had contended that the order appealed from was a non-final denial of a motion for summary judgment. We held that although the district court's rejection of the defendants' motion for summary judgment on qualified immunity grounds was based on the court's determination that there were genuine issues of material fact still to be resolved, this appeal could go forward because defendants had stipulated to plaintiffs' facts for the purposes of this appeal.

The denial of a motion for summary judgment is normally not "immediately appealable because such a decision is not a final judgment." O'Bert ex rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003) (citing 28 U.S.C. § 1291). "Under the collateral order doctrine, however, the denial of a qualified-immunity-based motion for summary judgment is immediately appealable to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns solely on the resolution of questions of fact." Id . (citing Behrens v. Pelletier, 516 U.S. 299, 313 (1996)). Indeed, where, as here, defendants have accepted the plaintiffs' version of the facts for purposes of the appeal, they may challenge the district court's rejection of a qualified-immunity-based motion for summary judgment by arguing that the facts asserted by the plaintiffs "entitle [them] to the defense of qualified immunity as a matter of law." Salim v. Proulx, 93 F.3d 86, 91 (2d Cir.1996). We accordingly have appellate jurisdiction over the limited question of law presented by defendants' appeal.

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Having dealt with the merits of defendants' appeal, we turn now to plaintiffs' cross-appeal. Plaintiffs ask this Court to exercise pendent jurisdiction over a number of claims . . . . Under the collateral order doctrine, "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law [and not of fact], is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). When we take such an appeal, we may exercise pendent jurisdiction over other issues that are not ordinarily subject to interlocutory review only when: (1) they are "inextricably intertwined" with the determination of qualified immunity; or (2) their resolution is "necessary to ensure meaningful review" of the district court's ruling on qualified immunity. Swint v. Chambers County Comm'n, 514 U.S. 35, 51 (1995). . . . Finally, we are mindful that "[p]endent appellate jurisdiction is a procedural device that rarely should be used because of the danger of abuse" and that accordingly, we must exercise such jurisdiction "[o]nly in exceptional circumstances." Natale v. Town ofRidgefield, 927 F.2d 101, 104 (2d Cir.1991) (citation omitted). Each finding on which plaintiffs seek to cross appeal involves issues entirely separate and distinct from the qualified immunity analysis at issue here. . . . Thus, we have no jurisdiction over plaintiffs' cross-appeal because there are no issues before us "inextricably intertwined" with our qualified immunity analysis.