ROY K. MOORE, JAMES O. INGRAM, AND THOMAS FITZPATRICK, PETITIONERS V. MUHAMMED KENYATTA No. 84-1445 In the Supreme Court of the United States October Term, 1984 The Solicitor General, on behalf of Roy K. Moore, James O. Ingram, and Thomas Fitzpatrick, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-17a) is reported at 744 F.2d 1179. The opinions of the district court (App., infra, 18a-32a) are unreported. JURISDICTION The judgment of the court of appeals was entered on October 29, 1984. A petition for rehearing was denied on January 16, 1985 (App., infra, 33a-34a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED 28 U.S.C. 1291 provides in pertinent part: The courts of appeals * * * shall have jurisdiction of appeals from all final decisions of the district courts of the United States * * *. QUESTION PRESENTED Whether the collateral order doctrine permits an immediate appeal from an order denying a claim of qualified immunity in a damages action against a public official on the ground that the legal standards allegedly violated were clearly established at the time in question. STATEMENT 1. Respondent brought this action for damages against petitioners, three agents of the Federal Bureau of Investigation, for alleged violations of his constitutional rights. The conduct upon which respondent's suit is based occurred between 1967 and 1969 in connection with an FBI counterintelligence program. In the late 1960s, respondent, a black civil rights activist, was involved in several incidents of violence in and around the campus of Tougaloo College, which is located near Jackson, Mississippi (R. 882-884). These incidents included assaults on three white professors, an armed assault on a black student, and the discharging of firearms in the woods near the campus. Respondent was also fired on by other students when he attempted to steal a television. In response to these violent activities, a group of black students formed the Tougaloo College Defense Committee and distributed weapons among their members for defensive purposes. Ibid. In an effort to prevent respondent from engaging in further violence, petitioners sent him a letter, ostensibly from the Tougaloo College Defense Committee, advising him that his violent actions were inconsistent with the kind of conduct the Committee was striving to encourage. The letter warned that if respondent did not cease his violence, other, unspecified action might be necessary. Consistent with the guidelines of the FBI's counter-intelligence program, petitioners submitted the proposed letter to FBI headquarters for approval. The letter was approved by headquarters and thereafter was mailed to respondent (R. 882-886, 899). Respondent has also alleged that petitioners disseminated derogatory information about him to the Jackson City Prosecutor and to an individual responsible for funding the Jackson Human Rights Project, an organization respondent had been instrumental in founding (R. 798). In addition, respondent's name was included on an FBI index of individuals who had established a pattern of traveling interstate to participate in demonstrations or rallies where violence had occurred (R. 882), and he was openly surveilled on two occasions (Fitzpatrick Dep. pp. 113-114, 142-148, 155-159, 214, 368-369, 390-391). 2. In 1977, respondent filed this action for damages in the United States District Court for the Southern District of Mississippi, contending that petitioners had violated his rights under the First, Fourth, Fifth, and Ninth Amendments to the federal Constitution. He also asserted state constitutional and tort claims. See App., infra, 23a. Following extensive discovery, petitioners moved for summary judgment in 1978 on the grounds that the action was barred by the applicable statute of limitations, that the complaint failed to state a claim on which relief could be granted, and that petitioners were entitled to absolute immunity from the state law claims. The district court denied the motion (App., infra, 27a-32a). After this Court's decision in Harlow v. Fitzgerald, 457 U.S. 800 (1982), which established an objective standard for qualified immunity, petitioners renewed their summary judgment motion, contending, among other things, that they were entitled to qualified immunity on the federal constitutional claims because their conduct did not violate any clearly established rights (see 457 U.S. at 818). /1/ The district court denied the renewed motion for summary judgment, stating that the targeting of respondent in the counterintelligence program violated clearly established First Amendment rights (App., infra, 20a-26a). The district court certified its ruling for interlocutory appeal, under 28 U.S.C. 1292(b) (App., infra, 18a-19a), and petitioners also filed an appeal under 28 U.S.C. 1291. 3. The court of appeals first denied the petition for appeal under 28 U.S.C. 1292(b) (see App., infra, 4a) and subsequently dismissed petitioners' appeal under 28 U.S.C. 1291 as well, holding that the collateral order doctrine does not permit an immediate appeal from the denial of a qualified immunity claim (App., infra, 1a-17a). /2/ REASONS FOR GRANTING THE PETITION This case presents the same question now before the Court in Mitchell v. Forsyth, cert. granted, No. 84-335 (Oct. 29, 1984), i.e., whether an order denying a motion to dismiss constitutional damages claims on qualified immunity grounds is appealable prior to trial under the collateral order doctrine. Here, as in Mitchell, petitioners moved to dismiss respondent's claims, arguing that they were entitled to qualified immunity under Harlow because they had not violated any clearly established legal standard. Here, as in Mitchell, the court of appeals dismissed an appeal from the denial of such a motion for lack of jurisdiction. If the judgment of the court of appeals is left standing, petitioners will have to undergo the burdens and expense of trial on the federal constitutional claims before having the opportunity to obtain appellate review of their qualified immunity defense. They will thereby forfeit an important part of the protection that the qualified immunity defense is intended to provide. See Pet. Br. 14-16, Mitchell v. Forsyth, supra. /3/ We are petitioning for a writ of certiorari to prevent petitioners' qualified immunity rights from being irretrievably sacrificed in this way. /4/ CONCLUSION The petition for a writ of certiorari should be disposed of as appropriate in light of Mitchell v. Forsyth, No. 84-335. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General BARBARA L. HERWIG FREDDI LIPSTEIN Attorneys MARCH 1985 /1/ Petitioners also reasserted their claim to absolute immunity from suit on the state law causes of action. In addition, they contended under the "extraordinary circumstances" prong of Harlow (457 U.S. at 819) that they were entitled to rely upon the advice and approval of FBI headquarters that their actions were lawful. /2/ The court of appeals also held (App., infra, 15a-16a) that petitioners' attempt to contest the denial of their claim to absolute immunity on respondent's state law causes of action was untimely and would have to await final judgment. We do not challenge this aspect of the court's decision in this petition. /3/ We are providing counsel for respondent with a copy of our brief in Mitchell v. Forsyth, supra. We recognize that the court of appeals stated in dictum that "if (it) were to undertake review on the merits, (it) would be obliged to find that there are genuine issues of material fact concerning what the FBI agents did" (App. infra, 12a). As noted in our brief in Mitchell (at 24-25 n.16), we acknowledge that a trial cannot be avoided where there are genuine issues of material fact relating to the qualified immunity defense. Here, however, the court of appeals' dictum regarding this question is no substitute for a holding. Had the court squarely faced the merits of petitioners' qualified immunity defense, after full briefing and oral argument, it might have concluded that there were no material factual disputes relating to at least some of respondent's constitutional claims. Moreover, petitioners would have been able to seek further review of an adverse holding. APPENDIX