Whalen v. County of Fulton

MESKILL, Circuit Judge:

The defendants appeal from an order of the United States District Court for the Northern District of New York, Scullin, J., denying their motion for summary judgment on the ground of qualified immunity, without prejudice to its renewal after further discovery. We dismiss the appeal for lack of appellate jurisdiction.

BACKGROUND

The following facts and procedural history are pertinent to this appeal. The plaintiffs, George Whalen, Elizabeth Whalen and Michael Whalen, filed this action pursuant to 42 U.S.C. § 1983 against the County of Fulton, New York, the Fulton County Department of Social Services (FCDSS), the County of Montgomery, New York, the Montgomery County Department of Social Services (MCDSS) and certain employees of FCDSS and MCDSS (collectively “defendants”). Those employees, who were sued in their official and individual capacities, are Jeanne D. Johannes, John Rogers, Malinda Argot-singer, Karen Glover, Judith Vanheusen, Robert L. Reidy, Molly Johnson and Cynthia Hallam (individual defendants). In addition to asserting various pendent state law claims, George and Elizabeth Whalen maintained that, by placing the biological sister of their adopted son Michael with another family, the defendants violated the Whalens’ constitu*830tional rights. The constitutional rights allegedly violated are the rights of freedom of association and of access to the courts guaranteed by the First Amendment and the right to substantive and procedural due process guaranteed by the Fourteenth Amendment. After filing answers to the complaint, the defendants sought summary judgment in favor of the individual defendants on the section 1983 claims on the ground that the individual defendants are entitled to qualified immunity.1 The district court denied the motion without prejudice to its renewal after further discovery. This appeal followed.

DISCUSSION

The denial of a motion for summary judgment is an interlocutory order not ordinarily immediately appealable. See 28 U.S.C. § 1291; see also Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir.1992) (“the denial of summary judgment based on the issue of qualified immunity [is] technically interlocutory”). In the interest of judicial economy, appellate courts do not freely allow exceptions to the final judgment requirement for appellate jurisdiction. To do otherwise would invite a plethora of piecemeal appeals.

Under certain circumstances, however, the denial of a defendant’s summary judg- • ment motion on the ground of qualified immunity is an exception to the general rule and is immediately appealable under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 527-30, 105 S.Ct. 2806, 2816-17, 86 L.Ed.2d 411 (1985); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Cartier, 955 F.2d at 844. An appropriate application of the collateral order doctrine here would ensure that if the denial of the defendants’ motion was erroneous the individual defendants would not be subjected unnecessarily to the ordeal of defending against the plaintiffs’ claims. See Mitchell, 472 U.S. at 526-27, 105 S.Ct. at 2815-16 (qualified immunity is an entitlement “not to stand trial or face the other burdens of litigation”). Certain rights are “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, 337 U.S. at 546, 69 S.Ct. at 1225. As the Supreme Court has recognized, an immediate appeal from the denial of a motion for summary judgment based on the qualified immunity doctrine is appropriate because “ ‘[t]here are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred.’ ” Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816 (quoting Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977)).

The collateral order doctrine does not apply where the validity of the challenged order cannot be decided as a matter of law. Cartier, 955 F.2d at 844. Moreover, to be appealable as a collateral order, an order must (1) “conclusively determine the disputed question,” (2) “resolve an important issue completely separate from the merits of the action,” and (3) “be effectively unreviewable on appeal from a final judgment.” See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978).

The order appealed from in this case passes the second and third tests but fails the first. The denial of the motion without prejudice to renewal before trial does not conclusively determine the disputed question, namely, whether the individual defendants are entitled to qualified immunity. For this reason we need not decide whether the validity of the denial of the summary judgment motion can be determined as a matter of law because, even if the validity of the order could be decided on this record, the order lacks that element of finality necessary for an *831interlocutory appeal under the collateral order doctrine.2

If the motion for summary judgment is renewed and denied after further discovery, the defendants can have that denial reviewed if they demonstrate that the issue can be decided as a matter of law. Failing that, we would have no appellate jurisdiction.

Appeal dismissed.

. The summary judgment motion that is the subject of this appeal was joined by all of the defendants, but it sought summary judgment on the ground of qualified immunity as to the individual defendants. See Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (qualified immunity is available to govemment officials). This appeal is brought by all of the defendants to challenge the district court's denial of summary judgment as to the individual defendants. In light of our disposition of this appeal, we need not determine whether all defendants have standing to challenge the district court's denial of summary judgment.

. In response to Judge Walker's comment in dissent that we do not question his analysis, we wish to make clear that we do not reach his analysis of the merits of the qualified immunity issue because we lack jurisdiction to do so.