D. Interlocutory Appeal of the Denial of Immunity

MITCHELL v. FORSYTH, 472 U.S. 511 (1985).

White, J., delivered the opinion of the Court, in which Blackmun, J., joined; in Parts I, III, and IV of which Burger, C.J., and O’Connor, J., joined; and in Parts I and II of which Brennan and Marshall, JJ., joined. Burger, C.J., filed an opinion concurring in part, O’Connor, J., filed an opinion concurring in part, in which Burger, C.J., joined. Stevens, J., filed an opinion concurring in the judgment. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined. Powell, J., took no part in the decision of this case. Rehnquist, J., took no part in the consideration or decision of this case.

Justice White delivered the opinion of the Court.

[1]This is a suit for damages stemming from a warrantless wiretap authorized by petitioner, a former Attorney General of the United States. The case presents three issues: whether the Attorney General is absolutely immune from suit for actions undertaken in the interest of national security; if not, whether the District Court’s finding that petitioner is not immune from suit for his actions under the qualified immunity standard of Harlow v. Fitzgerald, 457 U.S. 800 (1982), is appealable; and, if so, whether the District Court’s ruling on qualified immunity was correct.

I

[2]In 1970, the Federal Bureau of Investigation learned that members of an antiwar group known as the East Coast Conspiracy to Save Lives (ECCSL) had made plans to blow up heating tunnels linking federal office buildings in Washington, D.C., and had also discussed the possibility of kidnaping then National Security Adviser Henry Kissinger. On November 6, 1970, acting on the basis of this information, the then Attorney General John Mitchell authorized a warrantless wiretap on the telephone of William Davidon, a Haverford College physics professor who was a member of the group. According to the Attorney General, the purpose of the wiretap was the gathering of intelligence in the interest of national security.

[3]The FBI installed the tap in late November 1970, and it stayed in place until January 6, 1971. During that time, the Government intercepted three conversations between Davidon and respondent Keith Forsyth. The record before us does not suggest that the intercepted conversations, which appear to be innocuous, were ever used against Forsyth in any way. Forsyth learned of the wiretap in 1972, when, as a criminal defendant facing unrelated charges, he moved under 18 U.S.C. § 3504 for disclosure by the Government of any electronic surveillance to which he had been subjected.

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[4]Shortly thereafter, this Court ruled that the Fourth Amendment does not permit the use of warrantless wiretaps in cases involving domestic threats to the national security. United States v. United States District Court, 407 U.S. 297 (1972) (Keith). In the wake of the Keith decision, Forsyth filed this lawsuit against John Mitchell and several other defendants in the United States District Court for the Eastern District of Pennsylvania. Forsyth alleged that the surveillance to which he had been subjected violated both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2520, which sets forth comprehensive standards governing the use of wiretaps and electronic surveillance by both governmental and private agents. He asserted that both the constitutional and statutory provisions provided him with a private right of action; he sought compensatory, statutory, and punitive damages.

[5]Discovery and related preliminary proceedings dragged on for the next five-and-a-half years. By early 1978, both Forsyth and Mitchell had submitted motions for summary judgment on which the District Court was prepared to rule. Forsyth contended that the uncontested facts established that the wiretap was illegal and that Mitchell and the other defendants were not immune from liability; Mitchell contended that the decision in Keith should not be applied retroactively to the wiretap authorized in 1970 and that he was entitled either to absolute prosecutorial immunity from suit under the rule of Imbler v. Pachtman, 424 U.S. 409 (1976), or to qualified or “good faith” immunity under the doctrine of Wood v. Strickland, 420 U.S. 308 (1975).

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[6][T]he District Court held a hearing on the question whether the wiretap served a prosecutorial purpose. On the basis of the hearing and the evidence in the record, the court concluded that Mitchell’s authorization of the wiretap was not intended to facilitate any prosecutorial decision or further a criminal investigation. Mitchell himself had disavowed any such intention and insisted that the only reason for the wiretap was to gather intelligence needed for national security purposes. Taking Mitchell at his word in this regard, the court held to its conclusion that he was not entitled to absolute prosecutorial immunity.

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[7]The District Court [also] rejected Mitchell’s argument that under [the Harlow v. Fitzgerald] standard he should be held immune from suit for warrantless national security wiretaps authorized before this Court’s decision in Keith: that decision was merely a logical extension of general Fourth Amendment principles and in particular of the ruling in Katz v. United States, 389 U.S. 347 (1967), in which the Court held for the first time that electronic surveillance unaccompanied by physical trespass constituted a search subject to the Fourth Amendment’s warrant requirement. Mitchell and the Justice Department, the court suggested, had chosen to “gamble” on the possibility that this Court would create an exception to the warrant requirement if presented with a case involving national security. Having lost the gamble, Mitchell was not entitled to complain of the consequences.^[1] The court therefore denied Mitchell’s motion for summary judgment, granted Forsyth’s motion for summary judgment on the issue of liability, and scheduled further proceedings on the issue of damages. Forsyth v. Kleindienst, 551 F. Supp. 1247 (1982).

[8]Mitchell … appealed, contending that the District Court had erred in its rulings on both absolute immunity and qualified immunity. Holding that it possessed jurisdiction to decide the denial of absolute immunity issue despite the fact that it was a pretrial order and arguably not a final judgment, the Court of Appeals rejected Mitchell’s argument that the national security functions of the Attorney General entitled him to absolute immunity under Imbler v. Pachtman or otherwise. With respect to the denial of qualified immunity, the Court of Appeals held that the District Court’s order was not appealable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).

[9]The question whether the Attorney General is absolutely immune from suit for acts performed in the exercise of his national security functions is an important one that we have hitherto left unanswered. See Halperin v. Kissinger, 196 U.S. App. D.C. 285, 606 F.2d 1192 (1979), aff’d by an equally divided Court, 452 U.S. 713 (1981). Moreover, the issue of the appealability before final judgment of orders denying immunity under the objective standard of Harlow v. Fitzgerald is one that has divided the Courts of Appeals.^[2] Finally, the District Court’s decision—left standing by the Court of Appeals—that Mitchell’s actions violated clearly established law is contrary to the rulings of the District of Columbia Circuit in Sinclair v. Kleindienst, 207 U.S. App. D.C. 155, 645 F.2d 1080 (1981), and Zweibon v. Mitchell, 231 U.S. App. D.C. 398, 720 F.2d 162 (1983), cert. denied, 469 U.S. 880 (1984). We granted certiorari to address these issues, 469 U.S. 929 (1984).

II

[10]We first address Mitchell’s claim that the Attorney General’s actions in furtherance of the national security should be shielded from scrutiny in civil damages actions by an absolute immunity similar to that afforded the President, see Nixon v. Fitzgerald, 457 U.S. 731 (1982), judges, prosecutors, witnesses, and officials performing “quasi-judicial” functions, see Briscoe v. LaHue, 460 U.S. 325 (1983); Butz v. Economou, 438 U.S. 478, 508-517 (1978); Stump v. Sparkman, 435 U.S. 349 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976), and legislators, see Dombrowski v. Eastland, 387 U.S. 82 (1967); Tenney v. Brandhove, 341 U.S. 367 (1951). We conclude that the Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.

[11]Our decisions in this area leave no doubt that the Attorney General’s status as a Cabinet officer is not in itself sufficient to invest him with absolute immunity: the considerations of separation of powers that call for absolute immunity for state and federal legislators and for the President of the United States do not demand a similar immunity for Cabinet officers or other high executive officials. See Harlow v. Fitzgerald, 457 U.S. 800 (1982); Butz v. Economou, supra. Mitchell’s claim, then, must rest not on the Attorney General’s position within the Executive Branch, but on the nature of the functions he was performing in this case. See Harlow v. Fitzgerald, supra, at 810-811. Because Mitchell was not acting in a prosecutorial capacity in this case, the situations in which we have applied a functional approach to absolute immunity questions provide scant support for blanket immunization of his performance of the “national security function.”

[12]First, in deciding whether officials performing a particular function are entitled to absolute immunity, we have generally looked for a historical or common-law basis for the immunity in question. The legislative immunity recognized in Tenney v. Brandhove, supra, for example, was rooted in the long struggle in both England and America for legislative independence, a presupposition of our scheme of representative government. The immunities for judges, prosecutors, and witnesses established by our cases have firm roots in the common law. See Briscoe v. LaHue, supra, at 330-336. Mitchell points to no analogous historical or common-law basis for an absolute immunity for officers carrying out tasks essential to national security.

[13]Second, the performance of national security functions does not subject an official to the same obvious risks of entanglement in vexatious litigation as does the carrying out of the judicial or “quasi-judicial” tasks that have been the primary wellsprings of absolute immunities. The judicial process is an arena of open conflict, and in virtually every case there is, if not always a winner, at least one loser. It is inevitable that many of those who lose will pin the blame on judges, prosecutors, or witnesses and will bring suit against them in an effort to relitigate the underlying conflict. See Bradley v. Fisher, 13 Wall. 335, 348 (1872). National security tasks, by contrast, are carried out in secret; open conflict and overt winners and losers are rare. Under such circumstances, it is far more likely that actual abuses will go uncovered than that fancied abuses will give rise to unfounded and burdensome litigation. Whereas the mere threat of litigation may significantly affect the fearless and independent performance of duty by actors in the judicial process, it is unlikely to have a similar effect on the Attorney General’s performance of his national security tasks.

[14]Third, most of the officials who are entitled to absolute immunity from liability for damages are subject to other checks that help to prevent abuses of authority from going unredressed. Legislators are accountable to their constituents, see Tenney v. Brandhove, supra, at 378, and the judicial process is largely self-correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need for damages actions to prevent unjust results. Similar built-in restraints on the Attorney General’s activities in the name of national security, however, do not exist. And despite our recognition of the importance of those activities to the safety of our Nation and its democratic system of government, we cannot accept the notion that restraints are completely unnecessary. As the Court observed in Keith, the label of “national security” may cover a multitude of sins:

“National security cases … often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech…. History abundantly documents the tendency of Government—however, benevolent and benign its motives—to view with suspicion those who most fervently dispute its policies…. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.” 407 U.S., at 313-314.

The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity. ^[3]

[15]We emphasize that the denial of absolute immunity will not leave the Attorney General at the mercy of litigants with frivolous and vexatious complaints. Under the standard of qualified immunity articulated in Harlow v. Fitzgerald, the Attorney General will be entitled to immunity so long as his actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S., at 818. This standard will not allow the Attorney General to carry out his national security functions wholly free from concern for his personal liability; he may on occasion have to pause to consider whether a proposed course of action can be squared with the Constitution and laws of the United States. But this is precisely the point of the Harlow standard: “Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate….” Id., at 819. This is as true in matters of national security as in other fields of governmental action. We do not believe that the security of the Republic will be threatened if its Attorney General is given incentives to abide by clearly established law.

III

[16]Although 28 U.S.C. § 1291 vests the courts of appeals with jurisdiction over appeals only from “final decisions” of the district courts, “a decision ‘final’ within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case.” Gillespie v. United States Steel Corp., 379 U.S. 148, 152 (1964). Thus, a decision of a district court is appealable if it falls within “that small class which 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.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S., at 546.

[17]A major characteristic of the denial or granting of a claim appealable under Cohen’s “collateral order” doctrine is that “unless it can be reviewed before [the proceedings terminate], it never can be reviewed at all.” Stack v. Boyle, 342 U.S. 1, 12 (1952) (opinion of Jackson, J.); see also United States v. Hollywood Motor Car Co., 458 U.S. 263, 266 (1982). When a district court has denied a defendant’s claim of right not to stand trial, on double jeopardy grounds, for example, we have consistently held the court’s decision appealable, for such a right cannot be effectively vindicated after the trial has occurred. Abney v. United States, 431 U.S. 651 (1977). Thus, the denial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action. See Nixon v. Fitzgerald, 457 U.S. 731 (1982); cf. Helstoski v. Meanor, 442 U.S. 500 (1979).

[18]At the heart of the issue before us is the question whether qualified immunity shares this essential attribute of absolute immunity—whether qualified immunity is in fact an entitlement not to stand trial under certain circumstances. The conception animating the qualified immunity doctrine as set forth in Harlow v. Fitzgerald, 457 U.S. 800 (1982), is that “where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.'” Id., at 819, quoting Pierson v. Ray, 386 U.S. 547, 554 (1967). As the citation to Pierson v. Ray makes clear, the “consequences” with which we were concerned in Harlow are not limited to liability for money damages; they also include “the general costs of subjecting officials to the risks of trial—distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Harlow, 457 U.S., at 816. Indeed, Harlow emphasizes that even such pretrial matters as discovery are to be avoided if possible, as “[inquiries] of this kind can be peculiarly disruptive of effective government.”  Id., at 817.

[19]With these concerns in mind, the Harlow Court refashioned the qualified immunity doctrine in such a way as to “permit the resolution of many insubstantial claims on summary judgment” and to avoid “[subjecting] government officials either to the costs of trial or to the burdens of broad-reaching discovery” in cases where the legal norms the officials are alleged to have violated were not clearly established at the time. Id., at 817-818. 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. See id., at 818. Even if the plaintiff’s complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts. Harlow thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute immunity indicates to us that the denial of qualified immunity should be similarly appealable: in each case, the district court’s decision is effectively unreviewable on appeal from a final judgment.

[20]An appealable interlocutory decision must satisfy two additional criteria: it must “conclusively determine the disputed question,” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978), and that question must involve a “[claim] of right separable from, and collateral to, rights asserted in the action,” Cohen, supra, at 546. The denial of a defendant’s motion for dismissal or summary judgment on the ground of qualified immunity easily meets these requirements. Such a decision is “conclusive” in either of two respects. In some cases, it may represent the trial court’s conclusion that even if the facts are as asserted by the defendant, the defendant’s actions violated clearly established law and are therefore not within the scope of the qualified immunity. In such a case, there will be nothing in the subsequent course of the proceedings in the district court that can alter the court’s conclusion that the defendant is not immune. Alternatively, the trial judge may rule only that if the facts are as asserted by the plaintiff, the defendant is not immune. At trial, the plaintiff may not succeed in proving his version of the facts, and the defendant may thus escape liability. Even so, the court’s denial of summary judgment finally and conclusively determines the defendant’s claim of right not to stand trial on the plaintiff’s allegations, and because “[there] are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred,” it is apparent that “Cohen’s threshold requirement of a fully consummated decision is satisfied” in such a case. Abney v. United States, 431 U.S., at 659.

[21]Similarly, it follows from the recognition that qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct that a claim of immunity is conceptually distinct from the merits of the plaintiff’s claim that his rights have been violated. See id., at 659-660. An appellate court reviewing the denial of the defendant’s claim of immunity need not consider the correctness of the plaintiff’s version of the facts, nor even determine whether the plaintiff’s allegations actually state a claim. All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, in cases where the district court has denied summary judgment for the defendant on the ground that even under the defendant’s version of the facts the defendant’s conduct violated clearly established law, whether the law clearly proscribed the actions the defendant claims he took.^[4] To be sure, the resolution of these legal issues will entail consideration of the factual allegations that make up the plaintiff’s claim for relief; the same is true, however, when a court must consider whether a prosecution is barred by a claim of former jeopardy or whether a Congressman is absolutely immune from suit because the complained of conduct falls within the protections of the Speech and Debate Clause. In the case of a double jeopardy claim, the court must compare the facts alleged in the second indictment with those in the first to determine whether the prosecutions are for the same offense, while in evaluating a claim of immunity under the Speech and Debate Clause, a court must analyze the plaintiff’s complaint to determine whether the plaintiff seeks to hold a Congressman liable for protected legislative actions or for other, unprotected conduct. In holding these and similar issues of absolute immunity to be appealable under the collateral order doctrine, see Abney v. United States, supra; Helstoski v. Meanor, 442 U.S. 500 (1979); Nixon v. Fitzgerald, 457 U.S. 731 (1982), the Court has recognized that a question of immunity is separate from the merits of the underlying action for purposes of the Cohen test even though a reviewing court must consider the plaintiff’s factual allegations in resolving the immunity issue.

[22]Accordingly, we hold that a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable “final decision” within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.

IV

[23]The Court of Appeals thus had jurisdiction over Mitchell’s claim of qualified immunity, and that question was one of the questions presented in the petition for certiorari which we granted without limitation. Moreover, the purely legal question on which Mitchell’s claim of immunity turns is “appropriate for our immediate resolution” notwithstanding that it was not addressed by the Court of Appeals. Nixon v. Fitzgerald, supra, at 743, n.23. We therefore turn our attention to the merits of Mitchell’s claim of immunity.

[24]Under Harlow v. Fitzgerald, Mitchell is immune unless his actions violated clearly established law. See 457 U.S., at 818-819; see also Davis v. Scherer, 468 U.S. 183, 197 (1984). Forsyth complains that in November 1970, Mitchell authorized a warrantless wiretap aimed at gathering intelligence regarding a domestic threat to national security—the kind of wiretap that the Court subsequently declared to be illegal. Keith, 407 U.S. 297 (1972). The question of Mitchell’s immunity turns on whether it was clearly established in November 1970, well over a year before Keith was decided, that such wiretaps were unconstitutional. We conclude that it was not.

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[25]As of 1970, the Justice Departments of six successive administrations had considered warrantless domestic security wiretaps constitutional. Only three years earlier, this Court had expressly left open the possibility that this view was correct. Two Federal District Courts had accepted the Justice Department’s position, and although the Sixth Circuit later firmly rejected the notion that the Fourth Amendment countenanced warrantless domestic security wiretapping, this Court found the issue sufficiently doubtful to warrant the exercise of its discretionary jurisdiction.

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[26]Of course, Keith finally laid to rest the notion that warrantless wiretapping is permissible in cases involving domestic threats to the national security. But whatever the agreement with the Court’s decision and reasoning in Keith may be, to say that the principle Keith affirmed had already been “clearly established” is to give that phrase a meaning that it cannot easily bear.^[5] The legality of the warrantless domestic security wiretap Mitchell authorized in November 1970, was, at that time, an open question, and Harlow teaches that officials performing discretionary functions are not subject to suit when such questions are resolved against them only after they have acted. The District Court’s conclusion that Mitchell is not immune because he gambled and lost on the resolution of this open question departs from the principles of Harlow. Such hindsight-based reasoning on immunity issues is precisely what Harlow rejected. The decisive fact is not that Mitchell’s position turned out to be incorrect, but that the question was open at the time he acted. Hence, in the absence of contrary directions from Congress, Mitchell is immune from suit for his authorization of the David on wiretap notwithstanding that his actions violated the Fourth Amendment.^[6]

V

[27]We affirm the Court of Appeals’ denial of Mitchell’s claim to absolute immunity. The court erred, however, in declining to accept jurisdiction over the question of qualified immunity; and to the extent that the effect of the judgment of the Court of Appeals is to leave standing the District Court’s erroneous decision that Mitchell is not entitled to summary judgment on the ground of qualified immunity, the judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Powell took no part in the decision of this case.

Justice Rehnquist took no part in the consideration or decision of this case. Chief Justice Burger, concurring in part.

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Justice O’Connor, with whom the Chief Justice joins, concurring in part.

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Justice Stevens, concurring in the judgment.

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Justice Brennan, with whom Justice Marshall joins, concurring in part and dissenting in part.

[28]I join Parts I and II of the Court’s opinion, for I agree that qualified immunity sufficiently protects the legitimate needs of public officials, while retaining a remedy for those whose rights have been violated. Because denial of absolute immunity is immediately appealable, Nixon v. Fitzgerald, 457 U.S. 731, 743 (1982), the issue is squarely before us and, in my view, rightly decided.

[29]I disagree, however, with the Court’s holding that the qualified immunity issue is properly before us. For the purpose of applying the final judgment rule embodied in 28 U.S.C. § 1291, I see no justification for distinguishing between the denial of Mitchell’s claim of qualified immunity and numerous other pretrial motions that may be reviewed only on appeal of the final judgment in the case. I therefore dissent from its holding that denials of qualified immunity, at least where they rest on undisputed facts, are generally appealable.

I

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[30]We have always read the Cohen collateral order doctrine narrowly, in part because of the strong policies supporting the § 1291 final judgment rule. The rule respects the responsibilities of the trial court by enabling it to perform its function without a court of appeals peering over its shoulder every step of the way. It preserves scarce judicial resources that would otherwise be spent in costly and time-consuming appeals. Trial court errors become moot if the aggrieved party nonetheless obtains a final judgment in his favor, and appellate courts need not waste time familiarizing themselves anew with a case each time a partial appeal is taken. Equally important, the final judgment rule removes a potent weapon of harassment and abuse from the hands of litigants. As Justice Frankfurter, writing for the Court in Cobbledick v. United States, 309 U.S. 323, 325 (1940), noted, the rule “[avoids] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. To be effective, judicial administration must not be leaden footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause.”

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A

[31]Although the qualified immunity question in this suit is not identical to the ultimate question on the merits, the two are quite closely related. The question on the merits is whether Mitchell violated the law when he authorized the wiretap of Davidon’s phone without a warrant. The immunity question is whether Mitchell violated clearly established law when he authorized the wiretap of Davidon’s phone without a warrant. Assuming with the Court that all relevant factual disputes in this case have been resolved, a necessary implication of a holding that Mitchell was not entitled to qualified immunity would be a holding that he is indeed liable. Moreover, a trial court seeking to answer either question would refer to the same or similar cases and statutes, would consult the same treatises and secondary materials, and would undertake a rather similar course of reasoning. At least in the circumstances presented here, the two questions are simply not completely separate.

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[32]I thus find the application of the second prong of the Cohen test to result in a straightforward preclusion of interlocutory appeal.

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[33]In an attempt to avoid the rigors of the second prong of the collateral order doctrine, the Court holds that “a claim of immunity is conceptually distinct from the merits of the plaintiff’s claim that his rights have been violated.” Ante, at 527-528. Our previous cases, especially those of recent vintage, have established a more exacting standard. The ordinary formulation is from Coopers & Lybrand; we stated there that an interlocutory order may be considered final for purposes of immediate appeal only if it “[resolves] an important issue completely separate from the merits of the action.” 437 U.S., at 468.

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[34]Even if something less than complete separability were required, the Court’s toothless standard disserves the important purposes underlying the separability requirement. First, where a pretrial issue is entirely separate from the merits, interlocutory review may cause delay and be unjustified on various grounds, but it at least is unlikely to require repeated appellate review of the same or similar questions. In contrast, where a pretrial issue is closely related to the merits of a case and interlocutory review is permitted, post-judgment appellate review is likely to require the appellate court to reexamine the same or similar legal issues. The Court’s holding today has the effect of requiring precisely this kind of repetitious appellate review. In an interlocutory appeal on the qualified immunity issue, an appellate court must inquire into the legality of the defendant’s underlying conduct. As the Court has recently noted, “[most] pretrial orders of district judges are ultimately affirmed by appellate courts.” Richardson-Merrell Inc. v. Koller, ante, at 434. Thus, if the trial court is, as usual, affirmed, the appellate court must repeat the process on final judgment. Although I agree with the Court that the legal question in each review would be “conceptually” different, the connection between the research, analysis, and decision of each of the issues is apparent; much of the work in reviewing the final judgment would be duplicative.

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B

[35]The Court states that “[at] the heart of the issue before us,” Ante, at 525, is the third prong of the Cohen test: whether the order is effectively unreviewable upon ultimate termination of the proceedings. The Court holds that, because the right to qualified immunity includes a right not to stand trial unless the plaintiff can make a material issue of fact on the question of whether the defendant violated clearly established law, it cannot be effectively vindicated after trial. Cf. Abney v. United States, 431 U.S. 651 (1977).

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[36]In my view, a sober assessment of the interests protected by the qualified immunity defense counsels against departing from normal procedural rules when the defense is asserted. The Court claims that subjecting officials to trial may lead to “‘distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.'” Ante, at 526, quoting Harlow v. Fitzgerald, supra, at 816. Even if I agreed with the Court that in the post-Harlow environment these evils were all real, I could not possibly agree that they justify the Court’s conclusion. These same ill results would flow from an adverse decision on any dispositive preliminary issue in a lawsuit against an official defendant—whether based on a statute of limitations, collateral estoppel, lack of jurisdiction, or the like. A trial court is often able to resolve these issues with considerable finality, and the trial court’s decision on such questions may often be far more separable from the merits than is a qualified immunity ruling. Yet I hardly think the Court is prepared to hold that a government official suffering an adverse ruling on any of these issues would be entitled to an immediate appeal.

[37]In any event, I do not think that the evils suggested by the Court pose a significant threat, given the liability standards established in Harlow. We held in Harlow that “government officials performing discretionary functions, generally are shielded 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.” 457 U.S. at 818. I have no doubt that trial judges employing this standard will have little difficulty in achieving Harlow’s goal of early dismissal of frivolous or insubstantial lawsuits. The question is whether anything is to be gained by permitting interlocutory appeal in the remaining cases that would otherwise proceed to trial.

[38]Such cases will predictably be of two types. Some will be cases in which the official did violate a clearly established legal norm. In these cases, nothing is to be gained by permitting interlocutory appeal because they should proceed as expeditiously as possible to trial. The rest will be cases in which the official did not violate a clearly established legal norm. Given the nature of the qualified immunity determination, I would expect that these will tend to be quite close cases, in which the defendant violated a legal norm but in which it is questionable whether that norm was clearly established. Many of these cases may well be appealable as certified interlocutory appeals under 28 U.S.C. § 1292(b) or, less likely, on writ of mandamus. Cf. Firestone Tire & Rubber Co. v. Risjord, 449 U.S., at 378, n.13; Coopers & Lybrand v. Livesay, 437 U.S. at 474-475. It is only in the remaining cases that the Court’s decision today offers the hope of an otherwise unavailable pretrial reversal. Out of this class of cases, interlocutory appeal is beneficial only in that still smaller subclass in which the trial court’s judgment is reversed.

[39]The question is thus whether the possibly beneficial effects of avoiding trial in this small subset of cases justify the Court’s declaration that the right to qualified immunity is a right not to stand trial at all. The benefits seem to me to be rather small. Most meritless cases will be dismissed at the early stages, thus minimizing the extent to which officials are distracted from their duties. Officials aware of the extensive protection offered by qualified immunity would be deterred only from activities in which there is at least a strong scent of illegality; deterrence from many such activities (those that are clearly unlawful) is precisely one of the goals of official liability. Finally, I cannot take seriously the Court’s suggestion that officials who would otherwise be deterred from taking public office will have their confidence restored by the possibility that mistaken trial court qualified immunity rulings in some small class of cases that might be brought against them will be overturned on appeal before trial.

[40]Even if there were some benefits to be gained by granting officials a right to immediate appeal, a rule allowing immediate appeal imposes enormous costs on plaintiffs and on the judicial system as a whole.^[7]

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[41][T]he right to interlocutory appeal recognized today is generally available to (and can be expected to be widely pursued by) virtually any governmental official who is sued in his personal capacity, regardless of the merits of his claim to qualified immunity or the strength of the claim against him. As a result, I fear that today’s decision will give government officials a potent weapon to use against plaintiffs, delaying litigation endlessly with interlocutory appeals. The Court’s decision today will result in denial of full and speedy justice to those plaintiffs with strong claims on the merits and a relentless and unnecessary increase in the caseload of the appellate courts.

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Mitchell v. Forsyth – Audio and Transcript of Oral Argument

Footnotes

1. The court also suggested that Mitchell should have been put on notice that his act was unlawful by Title III, which, in its view, clearly proscribed such warrantless wiretaps. ↵

    

2. The First, Eighth, and District of Columbia Circuits have held such orders appealable, see Krohn v. United States, 742 F.2d 24 (CA1 1984); Evans v. Dillahunty, 711 F.2d 828 (CA8 1983); McSurely v. McClellan, 225 U.S. App. D.C. 67, 697 F.2d 309 (1982), while the Fifth and Seventh Circuits have joined the Third Circuit in holding that the courts of appeals lack jurisdiction over interlocutory appeals of qualified immunity rulings, see Kenyatta v. Moore, 744 F.2d 1179 (CA5 1984); Lightner v. Jones, 752 F.2d 1251 (CA7 1985). The Fourth Circuit has held that a district court’s denial of qualified immunity is not appealable when the plaintiff’s action involves claims for injunctive relief that will have to be adjudicated regardless of the resolution of any damages claims. England v. Rockefeller, 739 F.2d 140 (1984); Bever v. Gilbertson, 724 F.2d 1083, cert. denied, 469 U.S. 948 (1984). Because this case does not involve a claim for injunctive relief, the propriety of the Fourth Circuit’s approach is not before us, and we express no opinion on the question. ↵

    

3. It is true that damages actions are not the only conceivable deterrents to constitutional violations by the Attorney General. Mitchell suggests, for example, the possibility of declaratory or injunctive relief and the use of the exclusionary rule to prevent the admission of illegally seized evidence in criminal proceedings. However, as Justice Harlan pointed out in his concurring opinion in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 398-411 (1971), such remedies are useless where a citizen not accused of any crime has been subjected to a completed constitutional violation: in such cases, “it is damages or nothing.” Id. at 410. Other possibilities mentioned by Mitchell—including criminal prosecution and impeachment of the Attorney General—would be of dubious value for deterring all but the most flagrant constitutional violations. ↵

    

4. We emphasize at this point that the appealable issue is a purely legal one: whether the facts alleged (by the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law. ↵

    

5. We do not intend to suggest that an official is always immune from liability or suit for a warrantless search merely because the warrant requirement has never explicitly been held to apply to a search conducted in identical circumstances. But in cases where there is a legitimate question whether an exception to the warrant requirement exists, it cannot be said that a warrantless search violates clearly established law. ↵

    

6. Forsyth insists that even if the District Court was incorrect in concluding that warrantless national security wiretaps conducted in 1970-1971 violated clearly established law, Mitchell is not entitled to summary judgment because it has never been found that his actions were in fact motivated by a concern for national security. This submission is untenable. The District Court held a hearing on the purpose of the wiretap and took Mitchell at his word that the wiretap was a national security interception, under the Harlow standard. Had the court not concluded that the wiretap was indeed a national security wiretap, the qualified immunity question would never have been reached, for the tap would clearly have been illegal under Title III, and qualified immunity hence unavailable. In this light, the District Court’s handling of the case precludes any suggestion that the wiretap was either (1) authorized for criminal investigatory purposes, or (2) authorized for some purpose unrelated to national security. ↵

    

7. It also imposes costs on the defendant officials and the public. Those who pursue interlocutory appeals can be expected ordinarily to lose. See Richardson-Merrell Inc. v. Koller, ante, p. 424. Permitting an interlocutory appeal will thus in most cases merely divert officials from their duties for an even longer time than if no such appeals were available. ↵

Notes on Mitchell v. Forsyth

1. May the defendant take an interlocutory appeal from the trial court’s denial of a motion to dismiss on the ground of qualified immunity where the complaint includes not only a claim for damages, but also a demand for injunctive relief that will proceed to trial regardless of the outcome of the appeal? While the Court had no occasion to visit this issue in Mitchell v. Forsyth, 472 U.S. at 519 n.5, in Behrens v. Pelletier, 516 U.S. 299, 312 (1996), the Court ruled as follows:
   

   Respondent … 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 …

   The Harlow right to immunity is a right to immunity from certain claims, not from litigation in general; when immunity with respect to those claims has been finally denied, appeal must be available, and cannot be foreclosed by the mere addition of other claims to the suit. Making appealability depend upon such a factor, particular to the case at hand, would violate the principle discussed above, that appealability determinations are made for classes of decisions, not individual orders in specific cases. Apart from these objections in principle, the practical effect of respondent’s proposal would be intolerable. If the district court rules erroneously, the qualified-immunity right not to be subjected to pretrial proceedings will be eliminated, so long as the plaintiff has alleged (with or without evidence to back it up) violation of one “clearly established” right; and both that and the further right not to be subjected to trial itself will be eliminated, so long as the complaint seeks injunctive relief (for which no “clearly established” right need be alleged).

2. Does Mitchell authorize an interlocutory appeal if the trial court denies the motion to dismiss or the motion for summary judgment because there are disputes of material fact that must be resolved in order to determine whether the right asserted was clearly established under the particular factual contours of the case? In Johnson v. Jones, 515 U.S. 304 (1995), the Court held that the district court’s denial of police officers’ pretrial assertion of qualified immunity was not immediately appealable where there was a fact dispute over whether the officers were involved in the beating that gave rise to the complaint:
   

   [T]he District Court’s determination that the summary judgment record in this case raised a genuine issue of fact concerning petitioners’ involvement in the alleged beating of respondent was not a “final decision” within the meaning of the relevant statute. We so decide essentially for three reasons.

   First, consider Mitchell itself, purely as precedent. The dispute underlying the Mitchell appeal involved the application of “clearly established” law to a given (for appellate purposes undisputed) set of facts. And, the Court, in its opinion, explicitly limited its holding to appeals challenging, not a district court’s determination about what factual issues are “genuine,” Fed. Rule Civ. Proc. 56(c), but the purely legal issue what law was “clearly established.”

   * * * * *

   Second … Mitchell rested upon the view that “a claim of immunity is conceptually distinct from the merits of the plaintiff’s claim.”

   * * * * *

   Where, however, a defendant simply wants to appeal a district court’s determination that the evidence is sufficient to permit a particular finding of fact after trial, it will often prove difficult to find any such “separate” question—one that is significantly different from the fact-related legal issues that likely underlie the plaintiff’s claim on the merits.

   * * * * *

   It has been suggested that Mitchell implicitly recognized that “the need to protect officials against the burdens of further pretrial proceedings and trial” justifies a relaxation of the separability requirement…. To take what petitioners call a mere step beyond Mitchell, Brief for Petitioners 18, would more than relax the separability requirement—it would in many cases simply abandon it.

   Finally, consider the competing considerations that underlie questions of finality.

   * * * * *

   For one thing, the issue here at stake—the existence, or nonexistence, of a triable issue of fact—is the kind of issue that trial judges, not appellate judges, confront almost daily. Institutionally speaking, appellate judges enjoy no more comparative expertise in such matters…. And, to that extent, interlocutory appeals are less likely to bring important error-correcting benefits here than where purely legal matters are at issue, as in Mitchell.

   * * * * *

   For another thing, questions about whether or not a record demonstrates a “genuine” issue of fact for trial, if appealable, can consume inordinate amounts of appellate time. 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 a vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials. This fact means, compared with Mitchell, greater delay.

   For a third thing, the close connection between this kind of issue and the factual matter that will likely surface at trial means that the appellate court, in the many instances in which it upholds a district court’s decision denying summary judgment, may well be faced with approximately the same factual issue again, after trial, with just enough change (brought about by trial testimony) to require it, once again, to canvass the record.

   * * * * *

   The upshot is that, compared with Mitchell, considerations of delay, comparative expertise of trial and appellate courts, and wise use of appellate resources argue in favor of limiting interlocutory appeals of “qualified immunity” matters to cases presenting more abstract issues of law.

   515 U.S. at 313-17.

   1. Does Johnson v. Jones preclude interlocutory review in every case where the trial court finds there is a material dispute of fact? In Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996), the Court narrowed the scope of the Johnson holding:
      

      [R]espondent 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 314. That is a misreading of the case. Every denial of summary judgment ultimately rests upon a determination that there are controverted issues of material fact, see Fed. Rule Civ. Proc. 56, and Johnson surely does not mean that every denial of summary judgment is nonappealable.

      * * * * *

      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.”

      See also Murphy v. State of Arkansas, 127 F.3d 750, 754 (8th Cir. 1997) (“[E]ven if the underlying claims raise genuine issues of material fact, we have interlocutory jurisdiction to consider the primary qualified immunity issue of law—’whether, in view of the facts that the district court deemed sufficiently supported for summary judgment purposes, the individual defendants’ conduct was objectively reasonable given their knowledge and the clearly established law.’”); Hart v. O’Brien, 127 F.3d 424, 436 (5th Cir. 1997) (“[T]he district court determined that there were sufficient uncontested facts to establish that the officers engaged in the conduct in question, but that there were insufficient uncontested facts to decide whether the officials enjoyed immunity as a matter of law. Hence, the officials may argue on interlocutory appeal (as they do here) that, contrary to the district court’s judgment, enough uncontested facts exist to determine that they are immune as a matter of law and that, on the basis of these facts, they are immune.”)

   2. How can the court of appeals determine if it has jurisdiction where the district court denies defendant’s pre-trial assertion of qualified immunity on the ground that there are disputes of material fact, but the court fails to make specific findings of fact upon which its analysis turns? The Johnson Court anticipated this problem and advised as follows:
      

      When faced with an argument that the district court mistakenly identified clearly established law, the court of appeals can simply take, as given, the facts that the district court assumed when it denied summary judgment for that (purely legal) reason. Knowing that this is “extremely helpful to a reviewing court,” Anderson, 477 U.S., at 250, n.6, district courts presumably will often state those facts. But, if they do not, we concede that 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. Regardless, this circumstance does not make a critical difference to our result, for a rule that occasionally requires a detailed evidence-based review of the record is still, from a practical point of view, more manageable than the rule that petitioners urge us to adopt. Petitioners’ approach would make that task, not the exception, but the rule.

      515 U.S. at 319.

   3. In Winfield v. Bass, 106 F.3d 525 (4th Cir. 1997) (en banc), the members of the court vigorously disagreed as to the scope of review of fact-findings in interlocutory appeals challenging a district court’s pre-trial ruling that a constitutional right was clearly established. Writing for the majority, Judge Wilkins offered the following perspective:
      

      It appears that the principal source of disagreement offered by the dissent concerns our approach to determining the factual basis to which we must look in resolving the legal question over which we possess jurisdiction—perhaps the most difficult aspect of our review of denials of qualified immunity in an interlocutory appeal and one that has not yet been resolved conclusively by the Supreme Court.

      * * * * *

      The Johnson Court recognized that it will often be possible for an appellate court to utilize the facts that were assumed by the district court in denying the motion for summary judgment. Id. But, the Court also acknowledged that in some instances the district court will fail fully to set forth the facts on which its decision is based. Id. In that circumstance, the Court explained, “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.” Id.; Behrens, 516 U.S. at 229. In our view, when a district court fails fully to set forth the facts supporting its legal conclusion that a government official is not entitled to qualified immunity, the court of appeals must review the materials submitted to the district court to determine what the record, viewed in the light most favorable to the nonmoving party, discloses in order to have a factual basis upon which to base its legal conclusion.

      The dissent, however, opines that in directing the courts of appeals to determine the facts that district courts “likely assumed,” the Supreme Court indicated that our task is not to attempt to divine what the evidence viewed in the light most favorable to the plaintiff actually showed. Rather, the dissent suggests that we should construct from the record a set of facts that supports the legal conclusion reached by the district court. See infra pp. 542-44. We cannot agree.

      * * * * *

      [T]he concerns of avoiding unnecessary delay and wise use of judicial resources that led the Johnson Court to its principal holding—that courts of appeals possess jurisdiction to decide only the abstract legal issues on interlocutory review—persuade us that in determining what facts the district court “likely assumed,” we must determine what the evidence actually shows when viewed in the light most favorable to the nonmoving party.

      Moreover, the Johnson Court indicated that this was the proper course: In discussing the necessity of determining the factual basis upon which our legal ruling will be premised when a district court fails fully to set forth the factual basis for its legal conclusion, the Johnson Court noted that “a rule that occasionally requires a detailed evidence-based review of the record is still, from a practical point of view, more manageable than” a rule requiring courts of appeals to routinely conduct the same type of review. Id. at 319. Thus, the Court plainly envisioned that on those infrequent occasions when a district court does not supply the factual basis for its decision, we would be required to undertake the type of de novo review that generally would be prohibited.

      * * * * *

      Similarly, a question of the proper factual basis for our resolution of the purely legal question over which we possess jurisdiction may arise when a district court bases its decision on stated facts, but other, undisputed, material facts are present that dictate the conclusion that a government official is entitled to qualified immunity. For the same reasons that support our conclusion that this court must look to the actual evidence presented viewed in the light most favorable to the nonmoving party when a district court fails to supply the factual basis for its legal decision, we should not ignore other, undisputed, facts in rendering our decision on the legal question. Taking account of an undisputed fact in rendering a legal conclusion neither does violence to “Cohen’s conceptual theory of appealability” nor involves this court in the type of weighing of the record that the Johnson Court found unacceptable. Johnson, 515 U.S. at 304-314. Further, a district court does not possess any institutional advantage in the consideration of an undisputed fact, and the acceptance of such a fact does not consume significant appellate resources. See id. at 304-311. On the other hand, the failure to acknowledge an undisputed fact could result in considerable delay and inefficiency—for example, if the failure to do so results in the denial of qualified immunity in circumstances when the consideration of the undisputed fact would result in an official’s entitlement to it.

      In sum, we conclude that when a district court fails to set forth fully the factual basis upon which its legal conclusion that a governmental official is not entitled to summary judgment on the basis of qualified immunity, this court reviews the evidence properly before the district court for purposes of considering the summary judgment question. It then determines what the evidence, viewed in the light most favorable to the nonmoving party, demonstrated. This is the factual basis that the district court “likely assumed” in rendering its legal conclusion and is the factual basis upon which this court must render its decision on the purely legal issues presented in the appeal. Furthermore, when undisputed material facts are present that the district court did not consider in ruling on the qualified immunity issue, this court need not ignore those facts in rendering its legal decision.

      106 F.3d at 533-35.  Judge Phillips’ dissenting opinion construed Johnson v. Jones as mandating a far more deferential standard of review as to district court findings of fact.

      [W]hen it appears from the record that a defendant-appellant is seeking review of a determination that there are genuine issues of material fact respecting a factual ground of his qualified immunity defense (“didn’t do it”; “reasonably mistaken in doing it”) that require denial of his motion, the appellate court may not address to any extent the correctness of that determination.

      * * * * *

      Assuming, however, that a purely legal determination is properly presented for review, what exactly is reviewed? More specifically, does the court of appeals accept the district court’s identification of the factual predicate for that court’s legal determination and, accepting it, review only the resulting “purely” legal determination? Or may the court of appeals review for error in the district court’s identification of the factual predicate that it assumed for summary judgment purposes?

      * * * * *

      Though the consequence may seem severe, Johnson’s answer is plain. Review is confined to the “purely” legal issue whether, accepting the district court’s factual predicate, a violation of clearly established law would have occurred.

      * * * * *

      First off, the Court emphasized the jurisdictional compulsion to confine review in this way. Interlocutory appeals of qualified immunity/summary judgment denials, said the Court, best serve the final judgment rule, “if they [are] limited to cases presenting neat abstract issues of law.” Id. at 317, (quoting 15A Wright & Miller § 3914.10, at 664). As is evident, this legal issue can only be addressed as an “abstract” one if its resolution does not involve review by courts of appeals of the factual predicates upon which the district court made its determination. This is borne out in Johnson’s discussion of how courts of appeal are to identify the factual predicates for the district courts’ purely legal determinations when those courts “simply deny summary judgment without indicating their reasons for doing so.” Id. at 319. Easily done, said the Johnson Court, when the district court has expressly “stated” the facts it has assumed in denying the motion. In that situation, said the Court, “the court of appeals can simply take, as given, the facts that the district court assumed,” and assume the same “set of facts” “when it answers the purely legal question about ‘clearly established’ law.” Id. And, where the district court has not performed the helpful task of stating the facts it has assumed so that this must be sought by the court of appeals in “a cumbersome review of the record,” the search still is only for “what facts the district court, in the light most favorable to the nonmoving party likely assumed,” (emphasis supplied), not for what it should have assumed.

      * * * * *

      I read Johnson as having confined interlocutory appellate review of district court orders denying motions for summary judgment on qualified immunity grounds to a narrow, “abstract” issue of “pure” law: whether “tak[ing] as given” the facts assumed (rightly or wrongly) by the district court, id. at 314, those facts show a violation of clearly established law, etc. This means that interlocutory review is not available with respect either to (1) determinations by district courts that there are genuine issues of material fact respecting a factual ground for the defense which require the denial or (2) determinations by district courts of those facts that are to be assumed, for summary judgment purposes, in deciding whether they show a violation of clearly established right of which a reasonable official in defendant’s position would have known.

      * * * * *

      The more limited scope of review mandated by Johnson necessarily will allow district court errors in these fact-related determinations to go undetected at the summary judgment stage and so will deprive some public official defendants of the trial avoidance benefits to which qualified immunity entitled them. This, however, is a risk of which the Johnson Court was expressly aware and which it thought nevertheless compelled by jurisdictional constraints on collateral order review and by considerations of prudent judicial administration. See Johnson, 515 U.S. at 314.

      To put those risks in perspective, two points should be noted. (1) The practical effect is not to abrogate but only to allocate to the district courts final responsibility for two fact-related determinations in pre-trial qualified immunity applications; errors in those determinations will—as in all matters—be the rare exception rather than a frequent occurrence in those courts. (2) When occasional error does occur, its effect—of forcing unwarranted trial—is exhausted there; the error is not immunized and may yet be corrected at trial or on later appeal, with liability thereby avoided. In any event, as I understand Johnson, its fundamental point is that the game—of laborious interlocutory evidence review—is simply not worth the candle—of identifying and correcting the occasional district court error that will occur both in identifying genuine issues of fact respecting factual grounds of the defense and in identifying the factual predicates for denials of summary judgment on purely legal grounds.

      106 F.3d at 545-47.

3. Can a plaintiff avoid the risk of an interlocutory appeal from denial of the immunity defense by filing a Section 1983 action in state court rather than in federal court? In Johnson v. Fankell, 520 U.S. 911, 916-21 (1997), the defendants appealed the state trial court’s denial of a motion to dismiss raising the defense of qualified immunity. The Idaho Supreme Court dismissed the appeal on the ground that the trial court’s order was not a final judgment within the meaning of the Idaho Appellate Rules. Before the United States Supreme Court, defendants argued that because the claim and immunity defense arose under Section 1983, a federal statute, Idaho was required to recognize the same interlocutory appeal available in federal court. The Supreme Court disagreed:
   

   We can easily dispense with petitioners’ first contention that Idaho must follow the federal construction of a “final decision.”…Neither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the state…This proposition, fundamental to our system of federalism, is applicable to procedural as well as substantive rules. See Wardius v. Oregon, 412 U.S. 470, 477 (1973).

   The definition of the term “final decision” that we adopted in Mitchell was construing the federal statutory language of 28 U.S.C. § 1291.  Idaho could, of course, place the same construction on its Appellate Rule 11(a)(1) as we have placed on § 1291. But that is clearly a choice for that Court to make, not one that we have any authority to command.

   * * * * *

   Petitioners also contend that, to the extent that Idaho Appellate Rule 11(a)(1) does not allow an interlocutory appeal, it is pre-empted by § 1983. Relying heavily on Felder v. Casey, 487 U.S. 131 (1988), petitioners first assert that pre-emption is necessary to avoid “different outcomes in § 1983 litigation based solely on whether the claim is asserted in state or federal court,” Id., at 138. Second, they argue that the state procedure “impermissibly burden[s]” the federal immunity from suit because it does not adequately protect their right to prevail on the immunity question in advance of trial.

   * * * * *

   Contrary to petitioners’ assertions, Idaho’s decision not to provide appellate review for the vast majority of interlocutory orders—including denials of qualified immunity in § 1983 cases—is not “outcome determinative” in the sense that we used that term when we held that Wisconsin’s notice-of-claim statute could not be applied to defeat a federal civil rights action brought in state courts under § 1983.

   * * * * *

   If petitioners’ claim to qualified immunity is meritorious, there is no suggestion that the application of the Idaho rules of procedure will produce a final result different from what a federal ruling would produce. Petitioners were able to argue their immunity from suit claim to the trial court, just as they would to a federal court. And the claim will be reviewable by the Idaho Supreme Court after the trial court enters a final judgment, thus providing the petitioners with a further chance to urge their immunity. Consequently, the postponement of the appeal until after final judgment will not affect the ultimate outcome of the case.

   Petitioners’ second argument for pre-emption of the state procedural rule is that the rule does not adequately protect their right to prevail in advance of trial. In evaluating this contention, it is important to focus on the precise source and scope of the federal right at issue. The right to have the trial court rule on the merits of the qualified immunity defense presumably has its source in § 1983, but the right to immediate appellate review of that ruling in a federal case has its source in § 1291. The former right is fully protected by Idaho. The latter right, however, is a federal procedural right that simply does not apply in a nonfederal forum.

4. May a defendant take an interlocutory appeal from denial of an immunity defense to state law claims filed in federal court pendent to a Section 1983 action? In Brown v. Grabowski, 922 F.2d 1097, 1106-07 (3rd Cir. 1990), the court offered the analytical framework for resolving the issue:
   

   The Supreme Court’s decision in Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988) … held that the procedural rule of finality of 28 U.S.C. § 1291—not rules of finality supplied by state law—should govern appealability even in diversity cases. One implication of the Court’s decision in Budinich is that our decision on the appealability of the district court’s denial of defendants’ motion for summary judgment should be governed solely by section 1291 as interpreted in Mitchell.

   * * * * *

   The Fifth and Sixth Circuits have considered the possibility that Mitchell’s doctrine of appealability should govern in federal cases, like this case, that involve denials of claims of qualified official immunity based upon state law. See Sorey v. Kellett, 849 F.2d 960 (5th Cir. 1988); Marrical v. Detroit News, Inc., 805 F.2d 169 (6th Cir. 1986). As both circuits noted, the parties in a diversity action, or in a federal action such as this one involving pendent state claims, are bound by federal procedural rules governing appeals, including the collateral order doctrine. Sorey, 849 F.2d at 962; Marrical, 805 F.2d at 172; see Budinich, 108 S. Ct. at 1717; Cohen, 337 U.S. at 541, 69 S. Ct. at 1224. However, we agree with each circuit that a Mitchell analysis, coupled with the teaching of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), dictates that:

   The right to an interlocutory appeal from the denial of a claim of absolute or qualified immunity under state law can only exist where the state has extended an underlying substantive right to be free from the burdens of litigation arising from acts taken in the course of [official] duties.

   Marrical, 805 F.2d at 172; see also Sorey, 849 F.2d at 962 (quoting and agreeing with above reasoning).

   Our conclusion that the denial of a claim of qualified immunity premised upon state law is appealable only if the state has conferred an underlying substantive immunity from suits arising from the performance of official duties consequently necessitates an inquiry into whether New Jersey extends such an immunity to its officials. We must seek an answer to this question in New Jersey’s Tort Claims Act and the cases that construe it. We think that we also may look to New Jersey’s doctrine and procedural rules concerning interlocutory appeals in resolving this question. Although, as we have emphasized, federal procedural rules govern appealability in federal cases such as this one, New Jersey law concerning interlocutory appeals is useful insofar as it sheds light on whether a substantive immunity from suit exists for officials under New Jersey statutory and common law. See Sorey, 849 F.2d at 962 (concluding that state procedural rules were useful for same purpose).

   After reviewing New Jersey law, the Brown court held that it lacked appellate jurisdiction over the interlocutory appeal from the district court’s refusal to grant defendants summary judgment on plaintiff’s pendent state law claims.

5. In footnote 6 of Anderson v. Creighton, the Court instructed that if the allegations of the complaint are sufficient to overcome the qualified immunity, the trial court should allow discovery limited to the qualified immunity issue. Following this limited discovery, defendant may file a motion for summary judgment on qualified immunity grounds. Mitchell, 472 U.S. at 526. In Behrens v. Pelletier, 516 U.S. 299, 307-10 (1996), the Court considered whether a defendant who had filed an interlocutory appeal from denial of its motion to dismiss was entitled to take a second interlocutory appeal from denial of its post-discovery motion for summary judgment.
   

   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 from summary judgment any less “final,” it follows that petitioner’s appeal falls within § 1291.

   * * * * *

   [R]esolution 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.

   The Court of Appeals expressed concern that a second appeal would tend to have the illegitimate purpose of delaying the proceedings. See 968 F.2d at 870-871. Undeniably, the availability of a second appeal affords an opportunity for abuse, but we have no reason to believe that abuse has often occurred. To the contrary, successive pretrial assertions of immunity seem to be a rare occurrence. Moreover, if and when abuse does occur, as we observed in the analogous context of interlocutory appeals on the issue of double jeopardy, “it is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims.” Abney, 431 U.S. at 662, n.8.

   1. Was the Behrens Court’s assertion that “successive pretrial assertions of immunity seem to be a rare occurrence” accurate?  In Fitzgerald v. Patrick, 921 F.2d 758 (8th Cir. 1990), the court held that the defendant law enforcement officers were entitled to summary judgment on the basis of qualified immunity. However, the court assessed the costs of nine discovery depositions against the defendants because they had initiated discovery before filing the immunity motion. “All of this needless time and expense could have been avoided if the State would have filed its motion immediately because the whole purpose of an early summary judgment motion on the basis of qualified immunity is to avoid having government officials subjected to the expense and delay of discovery.” 921 F.2d at 760; see also Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664, 668 (1st Cir. 1996) (“[D]istrict courts are encouraged to enter scheduling orders to prevent dilatory tactics on the part of defendants with qualified immunity defenses. Absent an abuse of discretion, this court will enforce those scheduling deadlines by affirming a finding of waiver and awarding double costs.”). Under this reasoning, is not the defendant obligated to take successive interlocutory appeals?
   2. Assume that defendant in a Section 1983 action has filed an unsuccessful interlocutory appeal following denial of her motion to dismiss. After discovery limited to the qualified immunity issue, defendant fails in her second interlocutory appeal from the trial court’s rejection of the motion for summary judgment. May defendant bring a third interlocutory appeal from denial of a motion for summary judgment following completion of all discovery? A fourth appeal following the trial of the case?
   3. In Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), the court of appeals was called upon to decide whether the trial judge is empowered to hold a trial even though the defendant has filed a notice of appeal from a denial of a motion for summary judgment claiming qualified immunity. Although holding that the interlocutory appeal ordinarily divests the district court of jurisdiction to conduct the trial, the court identified limitations on this general rule.
      

      Courts are not helpless in the face of manipulation. District judges lose power to proceed with trial because the defendant’s entitlement to block the trial is the focus of the appeal. If the claim of immunity is a sham, however, the notice of appeal does not transfer jurisdiction to the court of appeals, and so does not stop the district courts in its tracks. A complaint invoking federal law may be so thin that it does not even create federal jurisdiction … perhaps the district judge has not finally resolved the question of immunity; perhaps the disposition is so plainly correct that nothing can be said on the other side. Courts of appeals may dismiss the appeals and award sanctions, Cleaver v. Elias, 852 F.2d 266 (7th Cir. 1988), but district courts have their own resources. In interlocutory double jeopardy cases-so closely parallel to Forsyth appeals that the principles are freely transferrable-a district court may certify to the court of appeals that the appeal is frivolous and get on with the trial…. Such a power must be used with restraint, just as the power to dismiss a complaint because it is frivolous is anomalous and must be used with restraint. But it is there, and it may be valuable in cutting short the deleterious effects of unfounded appeals.

      Frivolousness is not the only reason a notice of appeal may be ineffectual. Defendants may waive or forfeit their right not to be tried. If they wait too long after the denial of summary judgment, or if they use claims of immunity in a manipulative fashion, they surrender any entitlement to obtain an appellate decision before trial…. We have no doubt … that defendants who play games with the district court’s schedule forfeit their entitlement to a pretrial appeal. A district court may certify that a defendant has surrendered the entitlement to a pre- trial appeal and proceed with trial.

      Id. at 1339.

6. In Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam), the district court denied the motion for summary judgment filed by Secret Service agents who asserted qualified immunity to Bryant’s claim that the agents had arrested him without probable cause for making threats against President Reagan. The Ninth Circuit affirmed the refusal to award summary judgment, finding the issue of whether a reasonable officer could have believed he had probable cause to be a question for the jury. The Supreme Court reversed, holding the court of appeals’ reasoning “routinely places the question of immunity in the hands of the jury. Immunity ordinarily should be decided by the court long before trial.” 502 U.S. at 228.  While Hunter urges that the judge “ordinarily” is to determine the viability of the immunity defense, how is qualified immunity to be resolved at trial if disputes of fact preclude disposition of the issue on a motion to dismiss or motion for summary judgment? Compare Oliveira v. Mayer, 23 F.3d 642, 650 (2d Cir. 1994), cert. denied, 513 U.S. 1076 (1995) (jury to determine whether police officers had qualified immunity) with Stone v. Peacock, 968 F.2d 1163, 1166 (11th Cir. 1992) (“the defense of qualified immunity should be decided by the court, and should not be submitted for decision by the jury.”). Is there a way in which the judge can retain ultimate authority for determining the immunity without impinging upon the jury’s traditional role as finder of fact? See Smith v. Mattox, 127 F.3d 1416, 1420 (11th Cir. 1997); King v. Macri, 993 F.2d 294, 299 (2d Cir. 1993).