Kimberlin v. Quinlan

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 determination 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. Accordingly, 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 appellants 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 understood 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 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. *505439, 447, 113 S.Ct. 2173, 124 L.Ed.2d 402 (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 question 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, “disposi-tive 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, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (“Unless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dis^ missal before the commencement of discovery.”) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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 identified 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, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ] and related cases, retaliation against Crawford-El for criticism of the prison administration that was truthful, and not otherwise offensive to some peno-logical interest (so far as appears), would have violated a clearly established right of which a reasonable prison official would have known.”) (citing Pickering v. Board of Educ., 391 U.S. 563, 568, 571-72, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)), vacated on other ground, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (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 constitutional 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 restriction bears a substantial relationship to a significant governmental 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 *506appellant’s conduct violated the clearly established law.

Although the district court’s order does not expressly address whether the evidence, viewed most favorably to Kimberlin, makes out a constitutional deprivation, the issue is nevertheless properly before this court. The appellants’ summary 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, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (authorizing appeal where argument “was presented by the petitioner in the trial court” and “the District Court’s denial of petitioner’s summary judgment motion necessarily determined that certain conduct attributed to petitioner ... constituted a violation of clearly established law,” notwithstanding that “the District Court, in denying petitioner’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.

As the district court did not identify what the evidence reveals the appellants did, it is this court’s “task” to undertake 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, 116 S.Ct. 834 (quoting Johnson, 515 U.S. at 319, 115 S.Ct. 2151). 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 suggests that Quinlan undertook these acts with intent to prevent Kimberlin from reporting his story to the press, which Kim-berlin 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 subsequent 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 appellants’ 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, 111 S.Ct. 1789, 114 L.Ed.2d 277 (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 violation of any constitutional right at all.”).

For the foregoing reasons, I would remand with direction to enter summary judgment for the appellants.

. In Palmer, this court applied the waiver theory (albeit under the “law of the case” rubric) in the same circumstances we have 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).

. Appeal of this issue is not barred under Johnson v. Jones, 515 U.S. 304, 319, 115 S.Ct. 2151, 132 L.Ed.2d 238 (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 occurred.” Behrens, 516 U.S. at 313, 116 S.Ct. 834. 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) (permitting immediate appeal where case " 'concern[s], not which facts the parties might be able to prove, but, rather, whether or not certain given facts show[] a violation of "clearly established” law’") (quoting Johnson, 515 U.S. at 311, 115 S.Ct. 2151) (alterations original).