United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 1999 Decided December 28, 1999
No. 98-5530
Brett C. Kimberlin,
Appellee
v.
J. Michael Quinlan,
Director U.S. Bureau of Prisons and
Loye W. Miller, Jr.,
Appellants
Appeal from the United States District Court
for the District of Columbia
(No. 90cv01549)
Michael L. Martinez argued the cause for appellants.
With him on the briefs were Paul G. Lane and Danielle E.
Berry.
Timothy E. Boyle argued the cause for appellee. With him
on the brief were Howard T. Rosenblatt and Matthew S.
Wild.
Before: Edwards, Chief Judge, Silberman and Henderson,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Separate opinion dissenting in part filed by Circuit Judge
Henderson.
Edwards, Chief Judge: In 1990, Brett Kimberlin brought
this Bivens action alleging, inter alia, that J. Michael Quin-
lan, formerly the Director of the Federal Bureau of Prisons,
and Loye Miller, formerly the Director of Public Affairs for
the United States Department of Justice, violated his consti-
tutional rights under the First Amendment. This is the
second time that this court has had occasion to hear an appeal
in this case. The first appeal followed an order by the
District Court denying defendants' motion for summary judg-
ment on grounds of qualified immunity. See Kimberlin v.
Quinlan, 774 F. Supp. 1 (D.D.C. 1991) ("Kimberlin I"). We
reversed the District Court, see Kimberlin v. Quinlan, 6 F.3d
789 (D.C. Cir. 1993), but the Supreme Court granted certiora-
ri, vacated this court's decision in light of Johnson v. Jones,
515 U.S. 304 (1995), and remanded the case for further
proceedings. See Kimberlin v. Quinlan, 515 U.S. 321 (1995).
We then remanded the case to the District Court. The trial
court then considered and denied defendants' renewed motion
for summary judgment on grounds of qualified immunity. In
reaching this conclusion, the District Court held that its
judgment in the initial proceeding established the law-of-the-
case regarding the existence of clearly established law and
that this was dispositive of the qualified immunity issue. See
Kimberlin v. Quinlan, Civ. Act. No. 90-1549, Mem. Op.
(D.D.C. Oct. 21, 1998), reprinted in Joint Appendix ("J.A.")
24-44 ("Kimberlin II").
We affirm the judgment of the District Court on the law-of-
the-case issue. In their appeal of Kimberlin I, appellants did
not challenge the District Court's judgment regarding the
clearly established law; thus, the issue was settled as to these
parties in this case. And there was no good reason for the
District Court to reexamine its judgment when the case was
remanded for further proceedings.
The judgment on the clearly established law, however, is
not fully dispositive of the issues raised by appellants' re-
newed motion for summary judgment on grounds of qualified
immunity. The District Court must now determine whether
there are disputed issues of fact as to whether appellants
violated the clearly established law either by intentionally
segregating Mr. Kimberlin from the general prison popula-
tion or by interfering with his press contacts on account of
the content of his speech. In particular, the District Court
must inquire whether Mr. Kimberlin has identified affirma-
tive evidence from which a jury could find that he has carried
his burden of proving the pertinent motive.
Accordingly, the judgment of the District Court on the law-
of-the-case issue is affirmed. However, the case is remanded
for further proceedings to address the remaining issues on
the qualified immunity claim and, if necessary, to proceed to
hear the case on the merits in the event that appellants'
motion is denied.
I. BACKGROUND
A. Factual Background
In 1988, Brett Kimberlin was an inmate at the Federal
Correctional Institute at El Reno, Oklahoma. Nina Toten-
berg, a reporter with National Public Radio, contacted Mr.
Kimberlin approximately one month before the November
1988 election, acting on a tip that Mr. Kimberlin claimed to
have sold marijuana to then-vice-presidential candidate Dan
Quayle while Mr. Quayle was in law school. The story leaked
to other news organizations, and, in short time, the prison
was inundated with requests to interview Mr. Kimberlin.
Mr. Kimberlin claims that on three occasions he was placed
in administrative segregation because of his communication
with the press and that on each occasion appellants interfered
with his access to the press because of the content of his
speech. The first detention occurred on November 4, 1988,
after Mr. Kimberlin conducted an interview with NBC News
that NBC never aired. After the NBC interview, several
news organizations contacted the prison the same day and
requested interviews with Mr. Kimberlin. Prison officials
arranged a group interview for that evening at 7:00 p.m. The
event never occurred, because Mr. Quinlan personally can-
celed the interview. The District Court has previously ob-
served that there was "some question even from the defense
side as to why he did that." Kimberlin I, 774 F. Supp. at 7.
Subsequently, around 11:00 p.m., Mr. Kimberlin was placed in
administrative detention. The parties dispute the reasons
both for the interview's cancellation and for Mr. Kimberlin's
detention; we pass no judgment regarding whether there is
sufficient evidence to establish a dispute as to the defendants'
role in and motivation for the cancellation of the interview
and the placement of Mr. Kimberlin in detention. Mr. Kim-
berlin was released from administrative detention on Satur-
day, November 5, and he began to organize a telephone call
to a group of reporters in Washington, D.C., to take place at
10:00 a.m. on November 7, the day before the election.
Mr. Kimberlin was never permitted to make his phone call,
because on Monday, November 7, he was placed in adminis-
trative segregation for a week. The parties again dispute the
reason for this decision. Mr. Kimberlin was confined to
administrative detention a third time on December 22, 1998.
Mr. Kimberlin alleges that the defendants were responsible
for both his confinement and the interference with his press
contacts, all on account of the content of his speech.
B. Procedural Background
On July 2, 1990, Mr. Kimberlin filed his original complaint
against Mr. Quinlan and Mr. Miller in their individual capaci-
ties, the Federal Bureau of Prisons, and the United States
Government. In the instant case, all that is before the court
is Mr. Kimberlin's claim that Mr. Quinlan and Mr. Miller
violated Mr. Kimberlin's First Amendment rights.
Appellants first moved to dismiss or for summary judgment
on September 27, 1990, arguing, inter alia, that: (1) Mr.
Kimberlin failed to meet the D.C. Circuit's "heightened plead-
ing" standard which was then being applied to assess motive-
based civil rights claims against government officials; (2)
there was no violation of clearly established law, and, thus,
appellants were entitled to qualified immunity; and (3) even if
the law were clear, appellants' conduct was objectively rea-
sonable. The District Court denied appellants' asserted qual-
ified immunity on the First Amendment claim, finding both
that Mr. Kimberlin's pleading was sufficient under the height-
ened pleading standard and that there was a clearly estab-
lished First Amendment right for prison inmates to "be free
from governmental interference with their contacts with the
press if that interference is based on the content of their
speech or proposed speech." Kimberlin I, 774 F. Supp. at 3-
4.
Appellants appealed only the trial court's decision regard-
ing the heightened pleading standard. This court reversed,
see Kimberlin, 6 F.3d at 797-98, but the Supreme Court
vacated our decision in light of Johnson, 515 U.S. at 304, and
remanded the case for further proceedings. See Kimberlin,
515 U.S. at 322. This court then remanded the case to the
District Court.
Discovery proceeded in the District Court, and, after com-
pletion of discovery, appellants moved to dismiss or for
summary judgment on the same grounds rejected by the
District Court in Kimberlin I. Pending the matter's disposi-
tion, however, the Supreme Court rejected this court's height-
ened pleading standard for civil rights suits against govern-
ment officials. See Crawford-El v. Britton, 523 U.S. 574
(1998). Thus, appellants' only remaining arguments were
that the law regarding prisoners' First Amendment rights
was not clearly established and that, even if it were, appel-
lants' conduct was objectively reasonable.
On October 21, 1998, the District Court issued the decision
that is the subject of the current appeal. The District Court
denied appellants' claim of qualified immunity, holding that
the "law-of-the-case," unchallenged on the first appeal, was
that a prisoner's right not to have his contact with the press
interfered with on the basis of the content of his communica-
tion was clearly established at the time of the alleged viola-
tions. See Kimberlin II at 6, reprinted in J.A. 29. This
appeal followed.
II. ANALYSIS
A. The Law-of-the-Case Doctrine
The law-of-the-case doctrine rests on a simple premise:
"the same issue presented a second time in the same case in
the same court should lead to the same result." LaShawn A.
v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc).
Accordingly, a "legal decision made at one stage of litigation,
unchallenged in a subsequent appeal when the opportunity to
do so existed, becomes the law of the case for future stages of
the same litigation, and the parties are deemed to have
waived the right to challenge that decision at a later time."
Williamsburg Wax Museum, Inc. v. Historic Figures, Inc.,
810 F.2d 243, 250 (D.C. Cir. 1987). The law-of-the-case may
be revisited only if there is an intervening change in the law
or if the previous decision was "clearly erroneous and would
work a manifest injustice." LaShawn A., 87 F.3d at 1393
(internal quotation marks omitted).
Our dissenting colleague misconstrues the posture of this
appeal by suggesting that the law-of-the-case doctrine is
inapplicable to the instant case. In this case, we are called
upon to review the propriety of the District Court's applica-
tion of the law-of-the-case. Thus, there is no occasion to
invoke the so-called "derivative waiver" doctrine. Crocker v.
Piedmont Aviation, Inc., 49 F.3d 735 (D.C. Cir. 1995), sug-
gests nothing to the contrary. The derivative waiver princi-
ple described in Crocker applies where a party fails to appeal
an appealable issue and then raises the issue for the first time
in a subsequent appeal. See id. at 739-40. In that circum-
stance, neither the District Court nor the appellate court has
the opportunity to apply the law-of-the-case. Here, appel-
lants failed to appeal an appealable issue and then raised the
issue for a second time before the District Court. Therefore,
we must determine whether the District Court correctly
applied its established law-of-the-case. Prior opinions of this
court make it clear that, in a situation such as the one raised
in the case at bar, notions of derivative waiver do not come
into play. See, e.g., Palmer v. Kelly, 17 F.3d 1490, 1494 (D.C.
Cir. 1994) (reviewing the District Court's decision to apply
law-of-the-case for error); Williamsburg Wax Museum, 810
F.2d at 250-51 (same).
We also not that, even were the dissent correct in suggest-
ing that the "derivative waiver" doctrine applies here, "discre-
tion to waive a waiver is normally exercised only in exception-
al circumstances, where injustice might otherwise result."
Crocker, 49 F.3d at 740 (internal quotation marks omitted).
There are no "exceptional circumstances" justifying any waiv-
er here.
Application of the law-of-the-case doctrine is a two-step
process: A court must first determine whether the threshold
requirements are met and then ask whether there are pru-
dential reasons to ignore the applicable law-of-the-case. The
threshold requirements for application of the law-of-the-case
doctrine are plainly met in the instant case. In Kimberlin I,
the District Court ruled adversely to appellants on the clearly
established law issue. Appellants did not challenge the clear-
ly established law in their Kimberlin I appeal, although they
concede that this issue was appealable. In an effort to avoid
the obvious, appellants make two arguments against applica-
tion of the law-of-the-case doctrine: first, they claim that
there has been an intervening change in the law that justifies
prudential departure from the law-of-the-case; and, second,
they contend that the doctrine should not apply to qualified
immunity appeals. These arguments are meritless.
Appellants argue that intervening law has "evolved" since
Kimberlin I. See Reply Br. at 9. On this point, appellants
cite the Supreme Court's decision in Sandin v. Conner, 515
U.S. 472 (1995), which narrowed the availability to prisoners
of due process challenges to disciplinary segregation. This
argument does not hold water. First, without regard to
Sandin's specific holding, the District Court in Kimberlin I
was required to decide what law was clearly established in
1988. Sandin, announced in 1995, is not relevant to what law
was clearly established seven years earlier.
Furthermore, Sandin does not mark a change in the law
relevant to this case. Sandin only establishes that a prison-
er's segregation from the rest of the prison population will
trigger the procedural requirements of the Due Process
Clause when the segregation falls outside the "range of
confinement to be normally expected." 515 U.S. at 487.
Sandin did not change the law regarding whether a prison
official violates a prisoner's rights under the First Amend-
ment by segregating the prisoner because of the content of a
prisoner's communications with the media. Indeed, the Court
in Sandin made it clear that:
[p]risoners ... retain other protection from arbitrary
state action even within the expected conditions of con-
finement. They may invoke the First and Eighth
Amendments and the Equal Protection Clause of the
Fourteenth Amendment where appropriate, and may
draw upon internal prison grievance procedures and
state judicial review where available.
Id. at 487 n.11 (emphasis added). Here, then, even if Mr.
Kimberlin's administrative segregation fell within the expect-
ed range of his sentence, Sandin recognizes that Mr. Kimber-
lin's administrative segregation still may allege that such
segregation violated the First Amendment. Thus, there was
no change in the applicable law that might have led the
District Court to revisit Kimberlin I.
Nor is there any weight to appellants' assertion that the
law-of-the-case doctrine is inapplicable to qualified immunity
appeals. Appellants rely heavily on Behrens v. Pelletier, in
which the Supreme Court acknowledged that qualified immu-
nity issues may require more than one "judiciously timed
appeal." 516 U.S. 299, 309 (1996) (internal quotation marks
omitted). This is so, the Court explained, because "the
legally relevant factors ... 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 reasonable-
ness.' " Id. On this analysis, the defendant in Behrens did
not waive any arguments in his first appeal, so the situation
in that case did not call into play the law-of-the-case doctrine.
And Behrens certainly does not say that the traditional law-
of-the-case doctrine is inapplicable to cases involving claims of
qualified immunity.
Furthermore, appellants cite nothing to indicate that the
relevant facts have somehow changed so that the District
Court's opinion in Kimberlin I regarding the clearly estab-
lished law is now somehow diminished. Appellants address
disputed facts only in connection with their claim that their
conduct was objectively reasonable. See Br. for Appellants at
22-27; 28-36. However, in advancing this argument, they
tellingly acknowledge that the issue of what was clearly
established law at the time of the alleged violation is a legal
determination that does not depend on the evidence in dis-
pute. In short, appellants' attempt to draw sustenance from
Behrens is fruitless.
Finally, it is noteworthy that appellants incorrectly frame
the relevant "law" for which the court must determine what
was clearly established when. Appellants ask whether Mr.
Kimberlin had either an "unfettered clearly established right
of access to the press" or "a clearly established right not to
be placed in administrative detention." Br. for Appellants at
2. These are the wrong questions. The proper question in
this case, as the District Court correctly noted, is whether
Mr. Kimberlin had a clearly established right "to be free from
governmental interference with [his] contacts with the press
if that interference is based on the content of [his] speech or
proposed speech." Kimberlin I, 774 F. Supp. at 3-4. This
right without doubt was clearly established in 1988. See
Turner v. Safley, 482 U.S. 78, 90 (1987) ("We have found it
important to inquire whether prison regulations restricting
inmates' First Amendment rights operated in a neutral fash-
ion, without regard to the content of the expression."); Pell v.
Procunier, 417 U.S. 817, 828 (1974) (holding that so long as
restriction on inmates' communication "operates in a neutral
fashion, without regard to the content of the expression," it
will not violate First Amendment).
B. Disputed Issues of Fact
The District Court rested the decision under review on the
law-of-the-case. Finding that appellants had waived any
challenge to the judgement in Kimberlin I on the established
law, the trial court reasoned that summary judgment on
grounds of qualified immunity was inappropriate. This ap-
proach fell short of what is required by Crawford-El, 523
U.S. at 600. In particular, the District Court failed to
consider whether there are disputed issues of fact as to
whether appellants violated clearly established law by inten-
tionally segregating Mr. Kimberlin or interfering with his
press contacts on account of the content of his speech.
At oral argument, counsel for appellee urged that one line
in the District Court's order suggests that the court did
indeed weigh the evidence regarding the defendants' intent.
See Kimberlin II at 4, reprinted in J.A. 27. We are unim-
pressed, for counsel's argument clearly is a stretch and it
does not reach the desired mark. The reference cited by
counsel is to the decision in Kimberlin I, in which the trial
court admittedly conducted an analysis of the record then
before it. See 774 F. Supp. at 6-8. However, discovery has
continued since Kimberlin I, and there is nothing in Kimber-
lin II that addresses the current record.
We therefore remand this matter to the District Court for
consideration of whether there are disputed issues of material
fact regarding the defendants' motivation. In so doing, the
District Court must ask whether Mr. Kimberlin has identified
"affirmative evidence from which a jury could find that the
plaintiff has carried his or her burden of proving the perti-
nent motive." Crawford-El, 523 U.S. at 600.
The District Court will have two principal considerations at
the forefront upon remand. First, the District Court is not
foreclosed from issuing a summary judgment for appellants
merely because Mr. Kimberlin's claim rests on appellants'
motive. It is true that "objective" issues such as whether the
plaintiff suffered an injury or engaged in protected conduct
are "more amenable to summary disposition than disputes
about the official's intent." Id. at 599. Nonetheless, the
Supreme Court has expressed faith in the experience of
District Court judges to manage cases involving allegations of
improper intent in a way that will allow for summary judg-
ment in appropriate cases. Indeed, this expressed faith laid
the foundation for the Court's rejection of the so-called
"heightened pleading" standard in civil rights actions against
government officials. See id. at 600-01.
Second, even if appellants provide an objectively valid
reason for their actions in this case, the District Court must
still inquire into whether there is a disputed issue of fact as to
whether appellants were actually motivated by an illegitimate
purpose. The opinion for the Court in Crawford-El specifi-
cally rejected the dissent's proposal to "immunize all officials
whose conduct is 'objectively valid,' regardless of improper
intent." Id. at 593-94. Moreover, in considering any objec-
tively valid reasons offered by appellants, the District Court
should be mindful of the Supreme Court's recent decision in
Wilson v. Layne, 119 S. Ct. 1692 (1999). In Wilson, the
Court described the "objectively reasonable" aspect of the
qualified immunity defense as "whether a reasonable officer
could have believed that bringing members of the media into
a home during the execution of an arrest warrant was lawful,
in light of clearly established law and the information the
officers possessed." Id. at 1700. The analogous question in
this case has already been answered: the District Court has
found that no reasonable prison official could believe that
interfering with an inmate's access to the press because of the
content of the inmate's speech could be lawful. The District
Court must now weigh the evidence to determine if there are
disputed issues of fact as to whether appellants were motivat-
ed by improper intent.
Upon resolving these questions, the District Court will
either issue a summary judgment for appellants or proceed to
hear the case on the merits. The second possibility will
result in an interlocutory order which will not be subject to
immediate review. See Johnson, 515 U.S. at 313-18. Non-
final qualified immunity determinations are appealable "when
they resolve a dispute concerning an abstract issue of law
relating to qualified immunity--typically, the issue whether
the federal right allegedly infringed was clearly established."
Behrens, 516 U.S. at 313 (internal quotation marks omitted)
(citing Johnson, 515 U.S. at 317). When the law and fact
issues are not separable, however, a very different situation
arises:
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 controver-
sies--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.
Johnson, 515 U.S. at 316. The "upshot," according to the
Court, "is that ... considerations of delay, comparative ex-
pertise 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 ab-
stract issues of law." Id. at 317. The District Court's
original decision that Mr. Kimberlin's First Amendment
rights were clearly established at the time of the alleged
violation was immediately appealable, because the disputed
issue involved an "abstract" issue of law. Whether there is a
disputed issue of material fact regarding appellants' intent,
however, is not "separable" from Mr. Kimberlin's underlying
cause of action; in fact, it is part and parcel of his claim.
Moreover, this court has interpreted Behrens and Johnson
to draw a clear distinction between the availability of appel-
late review in qualified immunity cases involving pure legal
issues and those involving disputed issues of fact:
In the qualified immunity arena, the Supreme Court has
drawn a distinction between two categories of cases, only
one of which merits immediate appellate review: an
interlocutory decision that rests upon the purely legal
question of whether or not an official's actions violate
clearly established law does satisfy the Cohen criteria,
while an interlocutory decision that denies summary
judgment because of the presence of triable issues of fact
does not.
Meredith v. Federal Mine Safety & Health Review Comm'n,
177 F.3d 1042, 1048-49 (D.C. Cir. 1999) (citations omitted);
see also Farmer v. Moritsugu, 163 F.3d 610, 613-14 (D.C.
Cir. 1998) (distinguishing interlocutory appeals of qualified
immunity raising abstract legal issues from appeals challeng-
ing the sufficiency of the evidence).
Thus, if the District Court, on remand, denies summary
judgment on the issue of appellants' intent, the matter will
not be subject to immediate appeal.
III. CONCLUSION
For the reasons articulated herein, the case is remanded to
the District Court for further proceedings consistent with this
opinion.
Karen LeCraft Henderson, Circuit Judge, dissenting in part:
I dissent from the majority's holdings that (1) the law of
the case doctrine bars review of the district court's determi-
nation that the applicable law was clearly established at the
time of the alleged constitutional deprivation and (2) that the
case must be remanded to determine whether the appellants'
conduct violated clearly established law. In my view, law of
the case does not apply, the applicable law was clearly
established and the appellants' conduct, as revealed in the
record, did not violate the clearly established law. Accord-
ingly, I would hold that the appellants are entitled to qualified
immunity and remand for entry of judgment in their favor.
First, I disagree with the majority's contention that the
appellants' failure in their first appeal to challenge the district
court's ruling that the relevant law was clearly established
made that ruling the "law of the case" precluding the appel-
lants from arguing otherwise now. As this court explained in
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C. Cir.
1995), "law-of-the-case doctrine holds that decisions rendered
on the first appeal should not be revisited on later trips to the
appellate court." 49 F.3d at 739. In other words, law of the
case applies where "the first appeals court has affirmatively
decided the issue, be it explicitly or by necessary implication."
Id. Because this court did not decide the clearly established
law issue in the 1992 appeal, we here confront not law of the
case but an "analytically distinct principle ...--best under-
stood as a species of waiver doctrine" which "does not involve
any previous appellate court decision on the barred issue" but
imposes a "bar on raising issues omitted from prior appeals."
Id. Under this waiver principle, " 'a legal decision made at
one stage of litigation, unchallenged in a subsequent appeal
when the opportunity to do so existed, [governs] future stages
of the same litigation, and the parties are deemed to have
waived the right to challenge that decision at a later time.' "
Id. (quoting Williamsburg Wax Museum, Inc. v. Historic
Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987); citing
Palmer v. Kelly, 17 F.3d 1490, 1495-96 (D.C. Cir. 1994);
Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1089-90
(D.C. Cir. 1984)).1 I do not believe, however, that waiver
__________
1 In Palmer, this court applied the waiver theory (albeit under
the "law of the case" rubric) in the same circumstances we have
bars appeal of the clearly established law determination here.
As the court in Crocker noted, "neither law-of-the-case
doctrine proper nor th[e] subsidiary waiver principle is an
absolute preclusion to appellate review." Id. Each of these
principles is "prudential" and admits of exceptions "broader
than for conventional issue or claim preclusion" but the
preclusive effect of waiver is "one notch weaker" than that of
law of the case. Id. In the case of waiver, "the appellate
court, for example, always possesses discretion to reach an
otherwise waived issue logically 'antecedent to and ultimately
dispositive of the dispute before it.' " Id. at 740 (quoting
"United States Nat'l Bank of Oregon v. Independent Ins.
Agents of Am., 508 U.S. 439, 447 (1993)).
In Insurance Agents, the United States Supreme Court
held this court had not abused its discretion in deciding an
issue first raised in supplemental post-argument briefing,
although the appellants had failed to raise it in either their
opening or reply brief before argument. The Court so held
because the neglected issue--whether a statute had been
repealed--was "antecedent to" and "dispositive of" the ques-
tion addressed in the opening brief--how the provision should
be construed. While the circumstances here (two separate
appeals) are somewhat different from those in Insurance
Agents (a single appeal with post-argument supplemental
briefing), the same reasoning applies. Whether the law was
clearly established is "antecedent to" and, if decided in the
appellants' favor, "dispositive of" the issue argued in the 1992
appeal: whether the appellants in fact violated the law. If
the law was not clearly established then it is irrelevant
whether or not the appellants violated the law because they
were shielded by qualified immunity and therefore entitled to
judgment as a matter of law. See Behrens v. Pelletier, 516
U.S. 299, 306 (1996) ("Unless the plaintiff's allegations state a
claim of violation of clearly established law, a defendant
__________
here--where the district court concluded its earlier unappealed
decision was law of the case. See 17 F.3d at 1495-96 (defendant
"waived" claim through "failure to appeal on alternative grounds" in
earlier appeal).
pleading qualified immunity is entitled to dismissal before the
commencement of discovery.") (quoting Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)). Given the strong policy favoring an
official's "entitlement not to stand trial or face the other
burdens of litigation," Mitchell v. Forsyth, 472 U.S. 511, 526
(1985), we should exercise our discretion here and decide
whether the law was clearly established at the time of the
alleged violation. I conclude that it was.
Case law from the Supreme Court, as well as from circuit
courts including this one, make it clear that the right identi-
fied by the district court--federal inmates' "First Amendment
right to be free from governmental interference with their
contacts with the press if that interference is based on the
content of their speech or proposed speech right of federal
prisoners," 774 F. Supp. at 3-4--was well established at the
time of the alleged violation in November 1988. See
Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996) (en
banc) ("[I]n light of Turner [v. Safley, 482 U.S. 78 (1987)] and
related cases, retaliation against Crawford-El for criticism of
the prison administration that was truthful, and not otherwise
offensive to some penological interest (so far as appears),
would have violated a clearly established right of which a
reasonable prison official would have known.") (citing Picker-
ing v. Board of Educ., 391 U.S. 563, 568, 571-72 (1968)),
vacated on other ground, 523 U.S. 574 (1998); Murphy v.
Missouri Dep't of Correction, 769 F.2d 502, 503 (8th Cir.
1985) ("While a prisoner enjoys no constitutional right to
remain in a particular institution and generally is not entitled
to due process protections prior to such a transfer, prison
officials do not have the discretion to punish an inmate for
exercising his first amendment rights by transferring him to
a different institution.") (citing Garland v. Polley, 594 F.2d
1220, 1222-23 (8th Cir. 1979)) (internal citations omitted);
Main Rd. v. Aytch, 522 F.2d 1080, 1086-87 (3d Cir. 1975)
("Even if the prisoners held pending trial have no constitu-
tional right to meet with reporters, the First Amendment
precludes Aytch from regulating, through the grant or denial
of permission for prisoners to talk with reporters, the content
of speech which reaches the news media, unless the restric-
tion bears a substantial relationship to a significant govern-
mental interest."). I therefore concur--albeit on a different
ground--in the majority's affirmance of the district court's
holding that the law was clearly established. I disagree,
however, with the majority's decision to remand in order to
determine whether the appellant's conduct violated the clear-
ly established law.
Although the district court's order does not expressly ad-
dress whether the evidence, viewed most favorably to Kim-
berlin, makes out a constitutional deprivation, the issue is
nevertheless properly before this court. The appellants' sum-
mary judgment motion below expressly argued the issue, see
Kimberlin v. Quinlan, No. 90-1549, Memorandum in Support
of Summary Judgment Motion at 16-29 (filed Feb. 3, 1997),
and the district court, in denying the summary judgment
motion, at least implicitly resolved it in Kimberlin's favor.
Thus, "there is no apparent impediment to [the argument]
being raised on appeal." Behrens v. Pelletier, 516 U.S. 299,
313 (1996) (authorizing appeal where argument "was present-
ed by the petitioner in the trial court" and "the District
Court's denial of petitioner's summary judgment motion nec-
essarily determined that certain conduct attributed to peti-
tioner ... constituted a violation of clearly established law,"
notwithstanding that "the District Court, in denying petition-
er's summary judgment motion, did not identify the particular
charged conduct that it deemed adequately supported"). We
should therefore address the question now,2 without remand,
and we should resolve it in the appellants' favor.
__________
2 Appeal of this issue is not barred under Johnson v. Jones, 515
U.S. 304, 319 (1995), which held that no appeal lies "if what is at
issue in the sufficiency determination is nothing more than whether
the evidence could support a finding that particular conduct oc-
curred." Behrens, 516 U.S. at 313. Here, the issue is, as in
Behrens, whether "the conduct which the District Court deemed
sufficiently supported for purposes of summary judgment met the
Harlow standard of 'objective legal reasonableness.' " Id.; see also
Farmer v. Moritsugu, 163 F.3d 610, 614 (D.C. Cir. 1998) (permit-
ting immediate appeal where case " 'concern[s], not which facts the
parties might be able to prove, but, rather, whether or not certain
As the district court did not identify what the evidence
reveals the appellants did, it is this court's "task" to under-
take a " 'review of the record to determine what facts the
district court, in the light most favorable to the nonmoving
party, likely assumed.' " Behrens, 516 U.S. at 313 (quoting
Johnson, 515 U.S. at 319). The uncontroverted facts establish
that appellant Quinlan canceled the press conference because
it was not authorized under Bureau of Prisons policy and
ordered Kimberlin's first administrative segregation for the
purpose of ensuring Kimberlin's safety. No evidence sug-
gests that Quinlan undertook these acts with intent to pre-
vent Kimberlin from reporting his story to the press, which
Kimberlin had in fact already done in an interview with NBC
News which Quinlan had himself facilitated. Nor is there
evidence that Quinlan was at all involved in the two subse-
quent segregations on November 7 and December 22, 1988.
As for appellant Miller, the record does not indicate that he
made any effort in his telephone conversations with the
Bureau of Prisons either to get the press conference canceled
or to secure Kimberlin's confinement. Because the appel-
lants' conduct as revealed by the record, viewed in the light
most favorable to the plaintiff, did not violate Kimberlin's
First Amendment rights (clearly established or otherwise),
both are entitled to qualified immunity. See Siegert v. Gilley,
500 U.S. 226 (1991) (defendant entitled to qualified immunity
where plaintiff "not only failed to allege the violation of a
constitutional right that was clearly established at the time of
the [defendant's] action, but ... failed to establish the viola-
tion of any constitutional right at all.").
For the foregoing reasons, I would remand with direction
to enter summary judgment for the appellants.
__________
given facts show[ ] a violation of "clearly established" law' ") (quot-
ing Johnson, 515 U.S. at 311) (alterations original).