Per the Tenth Circuit in Robbins v. Wilkie
, 433 F.3d 755
(10th Cir. Jan. 10, 2006):
Robbins also contends Defendants' failure to appeal the district court's order denying dismissal on qualified immunity precludes Defendants from appealing an order denying summary judgment on the same qualified immunity issues. Robbins reasons that allowing Defendants to appeal a second denial of qualified immunity after failing to appeal the first denial would be an end-run around the timeliness requirements of the notice of appeal provision of the Federal Rules of Appellate Procedure. Fed. R.App. P. 4(a)(1)(B)
Although this issue is one of first impression in this circuit, the Supreme Court and several other circuits have addressed the issue. In Behrens v. Pelletier,
defendant filed a motion to dismiss on qualified immunity, which the district court denied after dismissing some of plaintiff's claims as time-barred. 516 U.S. 299, 303, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)
. Defendant appealed the denial of qualified immunity and the Ninth Circuit affirmed. Id. at 303-04, 116 S.Ct. 834.
Subsequently, the district court
reversed course on the statute-of-limitations question, concluding none of the plaintiff's claims were time barred. Id. at 304, 116 S.Ct. 834.
In response, the defendant filed a motion for summary judgment on qualified immunity, including the claims that were previously dismissed as time-barred. Id.
The district court denied this motion and the Ninth Circuit dismissed defendant's appeal for lack of jurisdiction. Id. at 304-05, 116 S.Ct. 834.
The Supreme Court reversed, concluding there was jurisdiction over the second interlocutory appeal. Id. at 309-311, 116 S.Ct. 834.
In so doing, the Court surmised that resolution of the immunity question may "require more than one judiciously timed appeal." Id. at 309, 116 S.Ct. 834
(quotation omitted). The Court reasoned that a defendant should be permitted to raise the qualified immunity defense at successive stages of litigation because different legal factors are relevant at various stages. Id.
In particular, in a motion to dismiss, courts are limited to reviewing conduct alleged in the complaint, whereas in a motion for summary judgment, courts examine evidence accumulated during discovery. Id.
Several circuits have interpreted and applied Behrens
in cases postured similar to the case before us. In Grant v. City of Pittsburgh,
the Third Circuit held that a defendant's failure to appeal an order denying dismissal on qualified immunity does not preclude him from appealing a subsequent denial of the same legal arguments in a motion for summary judgment
on qualified immunity. 98 F.3d 116, 120-21 (3d Cir.1996)
. The court adopted the reasoning of Behrens
by noting that although defendant's two motions raised the same legal theory, the second motion differed because it relied on matters developed during discovery. Id.;
see also Vega v. Miller, 273 F.3d 460, 466 (2d Cir.2001)
The Ninth Circuit went further in Knox v. Southwest Airlines
by asserting jurisdiction over an appeal of an order denying a second motion for summary judgment after defendant failed to appeal the denial of his first summary judgment motion. 124 F.3d 1103, 1105-06 (9th Cir.1997)
. Defendants' first motion for summary judgment on qualified immunity was denied by the district court because of a disputed issue of fact. Id. at 1105.
filed a second summary judgment motion making the same legal arguments, but providing additional evidence. Id.
the Ninth Circuit asserted jurisdiction over defendants' second motion for summary judgment. Id. at 1106.
Robbins attempts to distinguish Grant
, and Knox
and instead argues that the District of Columbia Circuit's decision in Kimberlin v. Quinlan
should guide our analysis. 199 F.3d 496 (D.C.Cir.1999)
. In Kimberlin
, Defendants moved for dismissal or summary judgment arguing, inter alia, that prison inmates do not have a clearly established First Amendment right to contact the press, and plaintiff failed to meet the heightened
pleading standard applied to motive-based civil rights claims. Id. at 499.
The district court denied the motion and defendants appealed only the heightened pleading standard ruling. Id.
After discovery, defendants again moved for dismissal or summary judgment claiming the law was not clearly established. Id.
The district court denied the motion concluding that its prior ruling that the law was clearly established was law of the case, and the appellate court affirmed. Id. at 499, 502.
, like Grant
is factually similar to the case presently before this court, Robbins' argument that Kimberlin
supports the assertion we lack jurisdiction to consider Defendants' appeal is erroneous. The court in Kimberlin
did not dispose of the case by asserting a lack of jurisdiction. Rather, it examined the merits by reviewing the propriety of the district court's application of the law of the case doctrine. Id. at 500-02.
The court determined that the district court had correctly applied the law of the case doctrine because the same legal question had been decided in a prior stage of litigation and no prudential reasons existed for revisiting the prior decision. Id.
In any event, the court proceeded to actually examine the underlying law of the case concluding that the First Amendment right at issue was "without doubt [ ] clearly established." Id. at 502.
Therefore, after Behrens,
no circuit has held that an appellate court
lacks jurisdiction over denial of a motion for summary judgment when the motion raises the same legal arguments as a prior un-appealed motion to dismiss but relies on evidence developed during discovery. [FN1]
Similarly, we decline to adopt such a rule. In carving out an exception to the finality requirement for appeals involving qualified immunity, the Supreme Court recognized that qualified immunity is both a right to avoid standing trial and a right to avoid the burdens of pretrial matters such as discovery. Behrens, 516 U.S. at 308, 116 S.Ct. 834.
Requiring public officials to choose at which stage of litigation to raise a qualified immunity defense is inconsistent with these purposes. If public officials can avoid discovery by success on a motion to dismiss based on qualified immunity, they should not be prevented from filing the motion because of a fear that denial of the motion will prevent them from raising the defense again once their evidence is strengthened through discovery. Additionally, public officials should not be forced to appeal an order denying dismissal on qualified immunity to preserve appeal of a potential subsequent order denying
summary judgment on the same issue. Such a rule would dramatically increase the number of interlocutory appeals at the dismissal stage. Vega, 273 F.3d at 465; Grant, 98 F.3d at 121.
Thus, in the present case, Defendants' failure to appeal the district court's denial of dismissal on qualified immunity does not divest this court of jurisdiction to consider Defendants' current appeal because Defendants' summary judgment
motion relies in part on evidence developed during discovery.