United States Court of Appeals
For the First Circuit
No. 03-2130
03-2212
PETER J. LIMONE ET AL.,
Plaintiffs, Appellees,
v.
DENNIS CONDON ET AL.,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Selya, Circuit Judge,
Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.
John M. Connolly, with whom Michael B. Meyer and Meyer,
Connolly, Sloman & MacDonald LLP were on brief, for appellant
Condon.
James M. Chernetsky, Assistant Corporation Counsel, City of
Boston, with whom Thomas R. Donohue, Assistant Corporation Counsel,
was on brief, for appellant Walsh.
Michael Avery, with whom Juliane Balliro, Ronald J. Snyder,
and Perkins, Smith & Cohen, LLP were on consolidated brief, for
appellees Limone and Tameleo et al.
*
The Honorable John R. Gibson, of the Eighth Circuit, sitting
by designation.
John Foskett, with whom Richard D. Bickelman, Lawrence R.
Holland, and Deutsch Williams Brooks Derensis & Holland, P.C. were
on brief, for appellees Werner (Executrix of the Estate of Louis
Greco) et al.
June 10, 2004
SELYA, Circuit Judge. These interlocutory appeals follow
the entry of an order denying motions to dismiss based on qualified
immunity. See Limone v. United States, 271 F. Supp. 2d 345, 349
(D. Mass. 2003). The appellants exhort us to reverse that decree
or, alternatively, to exercise pendent appellate jurisdiction over
another (potentially dispositive) issue. We conclude that at this
stage of the proceedings (i) the district court appropriately
rejected the appellants' qualified immunity defenses, and (ii) the
scope of these interlocutory appeals should not be broadened to
encompass an unrelated issue. Consequently, we affirm the denial
of qualified immunity and remand for further development of the
facts.
I. BACKGROUND
These appeals arise out of two separate but closely
related suits, consolidated in the district court. An explication
of the underlying facts requires the juridical equivalent of an
archeological dig. The relevant events date back almost four
decades to the 1965 murder of Edward "Teddy" Deegan and the 1968
convictions of several individuals, including Peter Limone, Louis
Greco, and Henry Tameleo, for that slaying. Notwithstanding the
jury's verdict and the subsequent rejection of their direct
appeals, see Commonwealth v. French, 259 N.E.2d 195 (Mass. 1970),
the three men steadfastly maintained their innocence and mounted a
campaign to clear their names. The facts, as now revealed,
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seemingly support their claims of innocence. The instant actions
seek damages against those allegedly responsible for their wrongful
convictions.
For present purposes, the operative pleadings are the two
amended complaints.1 Those complaints are separate but similar.
We compile the following account of the facts by reading the
amended complaints in tandem, drawing all reasonable inferences
therefrom in the light most agreeable to the plaintiffs (as the
parties opposing the motions to dismiss). We note, however, that
the district court recounted the factual allegations set out in the
amended complaints at some length, see Limone, 271 F. Supp. 2d at
349-53, and we urge those who hunger for greater detail to consult
that rescript.
The plaintiffs — Limone (the only surviving member of the
trio), the estates of Greco and Tameleo, and various relatives
asserting derivative claims — have sued both a quondam agent of the
Federal Bureau of Investigation (FBI) and a retired Boston police
officer.2 The amended complaints allege that the former FBI agent,
1
There are two suits rather than three because Limone and
Tameleo's heirs and personal representatives joined in the filing
of a single action. Greco's executrix and heirs chose to sue
separately.
2
The plaintiffs actually sought damages against several other
parties as well, asserting a salmagundi of federal and state-law
theories. See Limone, 271 F. Supp. 2d at 348 n.3 (identifying the
defendants and delineating the claims). One such party, former FBI
agent H. Paul Rico, died on January 16, 2004. When no personal
representative came forward on his behalf, we dismissed his pending
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Dennis Condon, and the former Boston detective, Frank L. Walsh,
framed Limone, Greco, and Tameleo, assisted the Commonwealth of
Massachusetts in wrongly convicting them on a charge of first-
degree murder, participated in a coverup, and allowed the three
innocent men to languish in prison for years.3 In relevant part,
the complaints assert Bivens claims against Condon, see Bivens v.
Six Unknown Named Agents of the FBN, 403 U.S. 388, 397 (1971), and
section 1983 claims against Walsh, see 42 U.S.C. § 1983 (2000).
The central theme of these claims is the accusation that Condon and
Walsh, inter alios, violated the Constitution by developing one
Joseph "Baron" Barboza as a witness for the prosecution in spite of
their knowledge that Barboza would perjure himself and falsely
implicate three innocent men in Deegan's murder.
Condon and Walsh (appellants here) moved to dismiss both
amended complaints based on the doctrine of qualified immunity.
They simultaneously moved to dismiss the suits brought on behalf of
Greco and Tameleo on the ground that those plaintiffs had failed to
satisfy the favorable termination requirement (described infra Part
III) laid down by the Supreme Court in Heck v. Humphrey, 512 U.S.
appeal without prejudice. The other defendants are not parties to
these interlocutory appeals.
3
Although a Massachusetts state court judge originally
sentenced the trio to death, the United States Supreme Court
subsequently vacated that disposition. See, e.g., Limone v.
Massachusetts, 408 U.S. 936 (1972). Eventually, all the sentences
were commuted to life imprisonment.
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477, 486-87 (1994). The district court rebuffed these initiatives.
As to qualified immunity, the court found it inconceivable that, at
the time of the relevant events, "a reasonable law enforcement
officer would have thought it permissible to frame somebody for a
crime he or she did not commit." Limone, 271 F. Supp. 2d at 365-
66. As to Heck, the court found the favorable termination
requirement satisfied vis-à-vis the Greco and Tameleo plaintiffs on
a theory of constructive reversal and, alternatively, on a theory
of estoppel. Id. at 361. These timely appeals ensued.
II. THE QUALIFIED IMMUNITY DEFENSE
Condon and Walsh have appealed from the district court's
order denying their motions to dismiss based on qualified immunity.
An interlocutory appeal lies from such an order where, as here,
qualified immunity turns on abstract legal questions. Stella v.
Kelley, 63 F.3d 71, 74 (1st Cir. 1995). We review the district
court's order de novo, directing dismissal of the complaints "only
if it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations."
Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984).
We begin with first principles. Qualified immunity is a
judge-made doctrine. The elementary justification for the doctrine
is that public officials performing discretionary functions should
be free to act without fear of retributive suits for damages except
when they should have understood that particular conduct was
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unlawful. Davis v. Scherer, 468 U.S. 183, 195 (1984). That
awareness depends, in large part, on the extent to which legal
rules were clearly established when the official acted. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). It follows that an inquiry
into the reasonableness of an officer's conduct must focus both on
what the officer did (or failed to do) and on the state of the law
at the time of the alleged act or omission. Savard v. Rhode
Island, 338 F.3d 23, 28 (1st Cir. 2003) (en banc), cert. denied,
124 S. Ct. 1074 (2004); Iacobucci v. Boulter, 193 F.3d 14, 21 (1st
Cir. 1999). In the end, the qualified immunity defense should
prevail unless the unlawfulness of the challenged conduct was
"apparent" when undertaken. Anderson v. Creighton, 483 U.S. 635,
640 (1987).
Although these appeals involve claims based on two
different legal theories — Bivens and section 1983 — the analytical
framework is, for our purposes, identical. See Wilson v. Layne,
526 U.S. 603, 609 (1999). Drawing on Supreme Court precedent, see,
e.g., Saucier v. Katz, 533 U.S. 194, 200-02 (2001), we have
developed a three-part algorithm for assessing whether a federal or
state actor is entitled to qualified immunity. We consider (i)
whether the plaintiff's allegations, if true, establish a
constitutional violation; (ii) whether the constitutional right at
issue was clearly established at the time of the putative
violation; and (iii) whether a reasonable officer, situated
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similarly to the defendant, would have understood the challenged
act or omission to contravene the discerned constitutional right.
Savard, 338 F.3d at 27. More often than not, proper development of
the law of qualified immunity is advanced if courts treat these
three questions sequentially. See Saucier, 533 U.S. at 201;
Fabiano v. Hopkins, 352 F.3d 447, 453 (1st Cir. 2003).
A
The threshold question in a qualified immunity appeal
centers on the current state of the law. On a motion to dismiss,
this question asks whether the facts alleged, viewed in the light
most favorable to the complaining party, show that the officer's
conduct violated some constitutional right. Siegert v. Gilley, 500
U.S. 226, 232-33 (1991); Santana v. Calderón, 342 F.3d 18, 23 (1st
Cir. 2003). We turn directly to that question.
The amended complaints paint a sordid picture. Although
the misdeeds described therein are many and varied, the plaintiffs'
claims may be distilled into two basic allegations: first, that
the appellants purposefully suborned false testimony from a key
witness; and second, that the appellants suppressed exculpatory
evidence in an effort both to cover up their own malefactions and
to shield the actual murderers (one of whom was being groomed as an
FBI informant). The complaints weave these allegations together.
From that platform, the plaintiffs asseverate that an individual's
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right not to be convicted by these tawdry means — his right not to
be framed by the government — is beyond doubt.
This is easy pickings. Although constitutional
interpretation occasionally can prove recondite, some truths are
self-evident. This is one such: if any concept is fundamental to
our American system of justice, it is that those charged with
upholding the law are prohibited from deliberately fabricating
evidence and framing individuals for crimes they did not commit.
See, e.g., Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir.
2001) (en banc). Actions taken in contravention of this
prohibition necessarily violate due process (indeed, we are unsure
what due process entails if not protection against deliberate
framing under color of official sanction). Thus, we resist the
temptation to expound needlessly upon the first element in the
qualified immunity catechism and simply pronounce that requirement
satisfied.
B
The second question in the algorithm asks whether the
state of the law at the time of the putative violation afforded the
defendant fair warning that his or her conduct was
unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 741 (2002).
In the circumstances of this case, that question requires us to
determine whether the right not to be framed by law enforcement
agents was clearly established in 1967 — the year in which the
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appellants are alleged to have started twisting their investigation
to target the plaintiffs. We think that it was.
From a jurisprudential perspective, our delving goes back
some seventy years. In Mooney v. Holohan, 294 U.S. 103 (1935) (per
curiam), the Supreme Court explained that due process
is a requirement that cannot be deemed to be
satisfied by mere notice and hearing if a
State has contrived a conviction through the
pretense of a trial which in truth is but used
as a means of depriving a defendant of liberty
through a deliberate deception of court and
jury by the presentation of testimony known to
be perjured.
Id. at 112. The following term, the Court reaffirmed that the Due
Process Clause forbids convictions predicated on deliberate
deceptions. See Brown v. Mississippi, 297 U.S. 278, 286 (1936).
Six years later, the Court needed only a single paragraph and a
citation to Mooney to buttress its conclusion that "allegations
that [the petitioner's] imprisonment resulted from perjured
testimony, knowingly used by the State authorities to obtain his
conviction, and from the deliberate suppression by those same
authorities of evidence favorable to him . . . sufficiently charge
a deprivation of rights guaranteed by the Federal Constitution."
Pyle v. Kansas, 317 U.S. 213, 216 (1942). Given these precedents,
it is not surprising that, as early as 1951, this court described
Mooney's core premise as "well-settled." Coggins v. O'Brien, 188
F.2d 130, 138 (1st Cir. 1951).
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In 1959, the Supreme Court confirmed that the Mooney
right covered circumstances in which "the State, although not
soliciting false evidence, allows it to go uncorrected when it
appears." Napue v. Illinois, 360 U.S. 264, 269 (1959). In raising
the bar to this modest level, the Court recognized that its prior
case law "established that a conviction obtained through use of
false evidence, known to be such by representatives of the State,
must fall under the Fourteenth Amendment." Id. (citing Mooney).
The Court viewed such a right as "implicit in any concept of
ordered liberty." Id. And in 1967 — the very year that the
violations in the instant case are alleged to have begun — Justice
Stewart, writing for a unanimous Court, reiterated the point:
More than 30 years ago this Court held that
the Fourteenth Amendment cannot tolerate a
state criminal conviction obtained by the
knowing use of false evidence. There has been
no deviation from that established principle.
Miller v. Pate, 386 U.S. 1, 7 (1967) (citations omitted).
The appellants resist this impressive array of authority
on two fronts. First, they accuse the plaintiffs and the district
court of having defined the right in question too broadly. In
their view, modeling the right as a right to be free from a
contrived conviction — a right not to be framed by the government
— casts too wide a net. They suggest instead that the plaintiffs'
allegations should be squeezed into a more circumscribed mold and
read as setting forth a Brady violation. See Brady v. Maryland,
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373 U.S. 83, 87 (1963) (holding that "the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment"). Having erected this straw man, the appellants
then shred it: although Brady was decided prior to 1967, they
assert that it was not clearly established then (indeed, it may not
be clearly established today) that the duties imposed by Brady
apply to law enforcement officers under circumstances in which the
prosecutor is unaware of the contrivance. See, e.g., Brady v.
Dill, 187 F.3d 104, 114 (1st Cir. 1999) (suggesting that a law
enforcement officer "sometimes may be liable" for a failure to
reveal "known exculpatory information") (emphasis supplied); Reid
v. Simmons, 163 F. Supp. 2d 81, 84 (D.N.H. 2001) (describing "the
circumstances under which police officers may be held civilly
liable for Brady violations" as "a matter of considerable
uncertainty"), aff'd, 47 Fed. Appx. 5 (1st Cir. 2002) (per curiam),
cert. denied, 124 S. Ct. 237 (2003).
It is certainly true that the manner in which a right is
defined can make or break a qualified immunity defense. Courts
must be careful not to permit an artful pleader to convert the
doctrine of qualified immunity into a hollow safeguard simply by
alleging a violation of an exceedingly nebulous right. See Wilson,
526 U.S. at 614-15; Hatch v. Dep't for Children, Youth & Their
Families, 274 F.3d 12, 20 (1st Cir. 2001). Courts must be equally
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careful, however, not to permit a defendant to hijack the
plaintiff's complaint and recharacterize its allegations so as to
minimize his or her liability.
Here, the amended complaints, fairly read, are not
susceptible to the appellants' animadversions. The right defined
by the plaintiffs and recognized by the district court does not
even approach the level of generality thought to be impermissible.
See, e.g., Anderson, 483 U.S. at 639 (discussing what level of
generality is permissible with respect to due process violations);
Hatch, 274 F.3d at 20 (same, with respect to "the right to familial
integrity" and "the parental interest in the care, custody, and
control of children").
The appellants' argument has an even deeper flaw: it
rests on a self-serving mischaracterization of the factual
allegations set out in the amended complaints. The plaintiffs have
not pleaded a separate claim that their rights were violated merely
by the appellants' failure to divulge some discrete piece of Brady
evidence. Rather, they have eschewed such a course in favor of a
more sweeping accusation that the appellants actively participated
in a plot to secure and sustain unjust convictions against innocent
men. Though this scheme includes suballegations that occasionally
involve Brady violations (e.g., suppression of exculpatory
information), the overall charge cannot be shoehorned into the
relatively narrow confines of the Brady rubric. As the district
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court put it, the "individual allegations of non-disclosure" are
not meant to be self-sustaining, but, rather, "are an integral part
of the overall story." Limone, 271 F. Supp. 2d at 366.
We have said before that "[t]he sum of an evidentiary
presentation may well be greater than its constituent parts." N.
Heel Corp. v. Compo Indus., Inc., 851 F.2d 456, 470 (1st Cir. 1988)
(quoting Bourjaily v. United States, 483 U.S. 171, 180 (1987)).
That aphorism is pertinent here. Taken as a whole, the unsavory
enterprise chronicled in the amended complaints is too multifaceted
to fit within the integument of the Brady right. In contrast, it
fits comfortably within the more expansive contours of the right
described in Mooney. To restrict the plaintiffs to a Brady claim
would require us to disregard the forest and focus single-mindedly
on a particular tree. The qualified immunity doctrine does not
compel courts to take so myopic a view.
The appellants next attempt to tackle Mooney head-on.
Even if Mooney furnishes the appropriate benchmark, this thesis
runs, the circumstances in Mooney and its pre-1967 progeny are
materially distinguishable from those alleged by the plaintiffs.
According to the appellants, these were cases in which the falsity
of the testimony was uncontroverted — not cases in which public
officials simply pressed a view of the facts which, though
ultimately proven wrong, was not obviously contrived. In a modest
variation on this theme, the appellants add that, as of 1967, there
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was no clearly established right to be free from conviction based
on testimony known only by law enforcement officers (and not by the
prosecuting attorney) to be false.
We find these contentions unconvincing. The first, which
at bottom challenges the sufficiency of the pleadings, is easily
defeated. These appeals were brought following a decision on
motions to dismiss under Fed. R. Civ. P. 12(b)(6), and, as such,
all that is required is that the amended complaints allege acts
sufficient to constitute framing and knowledge on the part of the
appellants. See Educadores Puertorriqueños en Acción v. Rey
Hernández, ___ F.3d ___, ___ (1st Cir. 2004) [No. 03-1588, slip op.
at 12] (rejecting a heightened pleading standard for civil rights
cases). While the plaintiffs eventually will have to adduce
adequate evidence to support the claim that Condon and Walsh knew
Barboza's story was apocryphal, their bare allegations of knowledge
suffice at this embryonic stage of the proceedings. See id.
The appellants' second contention fares no better.
Although the amended complaints do not allege guilty knowledge on
the part of the prosecuting attorney, no such averment is necessary
to state an actionable claim. The duty that Mooney and its pre-
1967 progeny established — a duty to refrain from procuring
convictions by the presentation of testimony known to be perjurious
— extended in 1967, as now, to law enforcement officers generally.
The Supreme Court ascribed this duty broadly to the sovereign and
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its agents. See, e.g., Napue, 360 U.S. at 269 (attributing the
duty to "representatives of the State"); Pyle, 317 U.S. at 216
(attributing the duty to "State authorities"); Mooney, 294 U.S. at
112 (attributing the duty to "the State"). It strains credulity to
suggest that FBI agents and police officers, duly sworn to uphold
the law, do not fall within the compass of these proscriptions.
We are not the first court to reach this conclusion.
Citing Pyle, the Fifth Circuit ruled to this effect in 1969. See
Smith v. Florida, 410 F.2d 1349, 1350-51 (5th Cir. 1969)
(explaining that police violate the right described in Mooney if
they suborn perjury even though they do so without the prosecutor's
knowledge). Even more telling, the Third Circuit concluded in 1958
— nine years before Condon and Walsh are alleged to have embarked
on their nefarious course of conduct — that Pyle had settled this
very issue. See Curran v. Delaware, 259 F.2d 707, 713 (3d Cir.
1958). An examination of the Pyle record disclosed to the Third
Circuit's satisfaction "that the prosecuting officer was in no wise
a party to or cognizant of the perjured testimony given by certain
witnesses of the State of Kansas or of the fact that the law
enforcement officers had taken steps to procure false testimony
favorable to the prosecution." Id. Although the prosecutor had
been kept in the dark, the Pyle Court determined that the
allegations, if true, would abridge the right described in Mooney.
See Pyle, 317 U.S. at 216; see also Curran, 259 F.2d at 713
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(relying on Pyle, reaching the identical conclusion, and finding
such a violation). We agree with this interpretation of Pyle and,
thus, reject the appellants' argument that the prosecutor's
complicity was a sine qua non of a Mooney claim in 1967.
Nor does the plaintiffs' inability to identify a pre-1967
scenario that precisely mirrors the scandalous facts of this case
ensure the success of the appellants' claims of qualified immunity.
There is no requirement that the facts of previous cases be
materially similar to the facts sub judice in order to trump a
qualified immunity defense. Hope, 536 U.S. at 739-41; Hall v.
Ochs, 817 F.2d 920, 925 (1st Cir. 1987). General statements of the
law are capable of conveying fair warning. See United States v.
Lanier, 520 U.S. 259, 270-71 (1997); Davis v. Rennie, 264 F.3d 86,
114 (1st Cir. 2001), cert. denied, 535 U.S. 1053 (2002). It
follows logically that, in some situations, "a general
constitutional rule already identified in the decisional law may
apply with obvious clarity to the specific conduct in question."
Lanier, 520 U.S. at 271. So it is here.
That ends this phase of our archival journey into the
annals of constitutional jurisprudence. We conclude, without
serious question, that Mooney and its pre-1967 progeny provided
reasonable law enforcement officers fair warning that framing
innocent persons would violate the constitutional rights of the
falsely accused.
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C
Since the relevant right and rule were clearly
established and the contours of the right were sufficiently well-
defined at the critical time (1967), we must proceed to the third
and final step in the qualified immunity pavane. This part of the
inquiry considers whether it would have been clear to an
objectively reasonable official, situated similarly to a particular
appellant, that the actions taken or omitted contravened the
clearly established right. See Saucier, 533 U.S. at 202; Hatch,
274 F.3d at 20; see also Anderson, 483 U.S. at 639 (emphasizing
that the standard is an objective one). While the first two parts
of the inquiry deal with abstract legal rules, the final step
depends on the facts of a given case. Hatch, 274 F.3d at 24.
On an appeal from an order denying a motion to dismiss —
a situation in which the court of appeals is required to credit the
allegations of the complaint — the first two steps will frequently
go a long way toward resolving the third. This case aptly
illustrates that point. Given the facts that are set out in the
amended complaints, we have scant difficulty in concluding that it
should have been transparently clear to a reasonable officer
situated similarly to either Condon or Walsh that his actions
violated the constitutional rights of Limone, Greco, and Tameleo.
We start with Condon. Both complaints allege that Condon
was reliably informed that Deegan had been executed by a crew that
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included Joseph Barboza, Vincent Flemmi, Roy French, Ronald
Cassesso, and Joseph Martin; that he knew, based on conversations
with Barboza, that Barboza would commit perjury by swearing not
only that Flemmi had no involvement in the murder but also that
three innocent men (Limone, Greco, and Tameleo) had helped to
perpetrate the crime; that he nonetheless developed Barboza as a
witness and turned him over to the Suffolk County district
attorney, knowing that Barboza's false testimony would be used to
prosecute Limone, Greco, and Tameleo for a crime they did not
commit; that he failed to disclose exculpatory evidence before,
during, and after the trial; and that he interceded on Barboza's
behalf in a subsequent murder prosecution with a view toward
ensuring Barboza's continued silence and covering up his own
misdeeds. It is plain beyond hope of contradiction that a
reasonable officer, confronted with the same circumstances, would
have understood that this behavior infracted the plaintiffs'
constitutional rights.
To be sure, Condon argues that he deserves qualified
immunity in spite of these allegations because the amended
complaints describe vital reports as having been received by
another FBI agent (H. Paul Rico) and/or by the FBI's Boston office
— not by Condon personally. We do not think that this is an
entirely fair characterization of the amended complaints. Even if
it were, the plaintiffs, on a Rule 12(b)(6) motion, are entitled to
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have all plausible inferences drawn in their favor. See
Educadores, ___ F.3d at ___ [slip op. at 2]; LaChapelle v.
Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir. 1998). The
amended complaints reveal that Condon was stationed at the FBI's
Boston office, that Rico was his partner, and that both were
members of the joint federal-state task force assembled to
investigate the murder. These facts support a plausible inference
that the two shared the reports pertaining to the investigation.
The factual allegations anent Walsh are similar, although
not identical, to those involving Condon. Both complaints allege
that Walsh knew, based in part on inconsistent statements that he
took from Barboza, that Barboza would falsely attest that Limone,
Greco, and Tameleo murdered Deegan; that he nonetheless
participated in the development of Barboza as a witness with
respect to the prosecution of the plaintiffs; that he failed to
disclose exculpatory evidence before, during, and after the trial
(including a calendar allegedly furnished to him that would have
provided powerful support for Greco's alibi defense); and that he
engaged in numerous artifices to conceal the identities of the
actual killers.
Walsh labels these allegations "conclusory" and laments
that the amended complaints present no fact-specific averments
showing that he, as a municipal police officer, was privy to the
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information gleaned from FBI informants and interviews. This
counterattack fails.
The factual allegations pertaining directly to Walsh,
combined with the plausible inferences that must be drawn in the
plaintiffs' favor, suffice to survive a motion to dismiss. See
Educadores, ___ F.3d at ___ [slip op. at 2]. Walsh was an active
member of the joint federal-state task force — a fact that supports
a plausible inference that he was privy to information gathered by
the other members of the team (including Condon and Rico). It
should have been obvious to a reasonable officer, confronted with
these circumstances, that this behavior abridged the plaintiffs'
constitutional rights.
In sum, we share the district court's view that, by 1967,
"[no] reasonable law enforcement officer would have thought it
permissible to frame somebody for a crime he or she did not
commit." Limone, 271 F. Supp. 2d at 365-66. Taking the facts
alleged in the amended complaints as true, we hold that neither
appellant is entitled to qualified immunity at this juncture. We
add, of course, that this ruling does not preclude the appellants
from reasserting that defense, on a more fully developed record,
either at summary judgment or at trial.
III. THE FAVORABLE TERMINATION DEFENSE
Our work here is not done. Limone succeeded in having
his conviction set aside in 2001, see Commonwealth v. Limone, 2001
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WL 30494, at *8 (Mass. Super. Ct. 2001), and the district attorney
subsequently declined further prosecution. Greco and Tameleo died
in prison before they could secure similar remediation. In their
motions to dismiss, the appellants argued that the lack of
favorable terminations precludes the Greco and Tameleo plaintiffs
from pursuing their claims for damages. See Heck v. Humphrey, 512
U.S. 477, 486-87 (1994) (holding that a plaintiff, in order to
recover damages for an allegedly unconstitutional conviction, must
show a favorable termination of the underlying conviction);
Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir. 1998) (same). The
district court rejected this defense, holding that the Greco and
Tameleo plaintiffs could ride piggyback on the vacation of Limone's
conviction to satisfy the favorable termination requirement under
a theory of "constructive reversal," or in the alternative, that
any failure to secure favorable termination was excused by
allegations of "government wrongdoing that effectively denied
access to post-conviction remedies." Limone, 271 F. Supp. 2d at
361.
The appellants ask us to review this determination here
and now. That request runs headlong into the general rule that
only final judgments and orders are immediately appealable in civil
cases. See Espinal-Dominguez v. Puerto Rico, 352 F.3d 490, 495
(1st Cir. 2003) (citing 28 U.S.C. § 1291). This rule admits of
exceptions, however, and one judge-made exception allows for
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interlocutory review of an order rejecting a qualified immunity
defense so long as the order turns on a purely legal question.
See, e.g., Stella, 63 F.3d at 73-74. The appellants assert that we
may use this exception as a vehicle to review the Heck issue as
well. We demur.
Federal courts long have recognized that interlocutory
review of a denial of qualified immunity "does not in and of itself
confer jurisdiction over other contested issues in the case."
Roque-Rodriguez v. Lema Moya, 926 F.2d 103, 105 (1st Cir. 1991).
To overcome this obstacle, the appellants invite us to embrace the
seldom-used doctrine of pendent appellate jurisdiction. See Swint
v. Chambers County Comm'n, 514 U.S. 35, 50-51 (1995); Nieves-
Márquez v. Puerto Rico, 353 F.3d 108, 123 (1st Cir. 2003). We
decline the invitation.
The Supreme Court repeatedly has cautioned that
exceptions to the final judgment rule should be narrowly construed.
See, e.g., Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.
863, 868 (1994). In an effort to avoid needless encroachments on
the final judgment rule, we have been quite sparing in our
endorsement of pendent appellate jurisdiction. See Fletcher v.
Town of Clinton, 196 F.3d 41, 55 (1st Cir. 1999) (noting that the
exercise of pendent appellate jurisdiction is "discouraged");
Roque-Rodriguez, 926 F.2d at 105 n.2 (classifying this restraint as
"self-imposed"). Thus, we have required that, at a bare minimum,
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a party promoting the exercise of pendent appellate jurisdiction
demonstrate either that the pendent issue is inextricably
intertwined with the issue conferring the right of appeal or that
review of the pendent issue is essential to ensure meaningful
review of the linchpin issue. See, e.g., Nieves-Márquez, 353 F.3d
at 123; Suboh v. Dist. Atty's Office of the Suffolk Dist., 298 F.3d
81, 97 (1st Cir. 2002); see also Clinton v. Jones, 520 U.S. 681,
707 n.41 (1997). Because these two considerations were limned by
the Court in Swint, 514 U.S. at 51, we sometimes refer to them as
the Swint criteria.
Here, the linchpin issue and the pendent issue cannot
fairly be described as intertwined, let alone inextricably
intertwined. Whereas the former (qualified immunity) focuses
principally on the appellants' conduct leading up to the
plaintiffs' convictions, the latter (favorable termination) entails
an examination of post-conviction events. The fact that we already
have conducted an exhaustive review of the district court's
qualified immunity ruling without needing to touch upon the
favorable termination issue, see supra Part II, makes manifest this
lack of imbrication. By the same token, it conclusively proves
that the exercise of pendent appellate jurisdiction is not
essential to our ability to conduct meaningful review of the
linchpin issue. On that score alone, this case is an unfit
candidate for the invocation of pendent appellate jurisdiction.
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The appellants strive to parry this thrust by arguing
that failure to satisfy the Swint criteria should bar the exercise
of pendent appellate jurisdiction only when the party appealing the
linchpin issue and the party appealing the pendent issue are
different. They posit that where, as here, the same parties seek
review of both issues, pendent appellate jurisdiction may be
justified on the basis of fairness and efficiency concerns. See,
e.g., Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d
1020, 1026-27 (D.C. Cir. 1997) (exercising pendent appellate
jurisdiction on that basis when the same parties sought review of
both issues); Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d
675, 679 & n.4 (D.C. Cir. 1996) (declining to read fulfillment of
the Swint criteria as an absolute condition precedent to the
exercise of pendent appellate jurisdiction). They tell us that
exercising pendent appellate jurisdiction in the instant case would
allow for the early resolution of a potentially dispositive issue,
thus catering to fairness and efficiency concerns.
We think that the appellants' position ignores reality.
There is no sound reason why the identity of the parties should
have decretory significance in deciding whether to exercise pendent
appellate jurisdiction. This court has used the Swint criteria as
the benchmark for pendent appellate jurisdiction in all sorts of
cases, including cases in which the party appealing the pendent
issue was also appealing the linchpin issue. See, e.g., Nieves-
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Márquez, 353 F.3d at 123; Suboh, 298 F.3d at 97. So too the Second
Circuit. See Rein v. Socialist People's Libyan Arab Jamahiriya,
162 F.3d 748, 757 (2d Cir. 1998) (stating that "pendent issues
raised by the party that has the right to bring an interlocutory
appeal are at least as great a threat to the final-order scheme as
are pendent issues raised by other parties"). Several other courts
of appeals have likewise endorsed a universal application of the
Swint criteria. See id. at 758 (collecting cases). Consequently,
we hold explicitly that when a party who has the right to bring an
interlocutory appeal on one issue attempts simultaneously to raise
a second issue that ordinarily would be barred by the final
judgment rule, we will not exercise appellate jurisdiction over the
pendent issue unless one of the Swint criteria is satisfied.
Given this paradigm, instances demanding the exercise of
pendent appellate jurisdiction are likely to be few and far
between. This is not one of them. We conclude, therefore, that it
would be ultracrepidarian — and wrong — for us to exercise pendent
appellate jurisdiction over the favorable termination issue just
for the Heck of it.
IV. CONCLUSION
We summarize succinctly. At this early stage of the
litigation, the appellants have not demonstrated their entitlement
to qualified immunity. Because that is the only issue properly
before us on these interlocutory appeals, we need go no further.
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Affirmed.
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Limone v. Condon
Court: Court of Appeals for the First Circuit
Date filed: 2004-06-14
Citations: 372 F.3d 39
Copy Citations