Case 1:06-cv-01964-CMA-CBS Document 207 Filed 07/28/09 USDC Colorado Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Judge Christine M. Arguello
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`Civil Action No. 06-cv-01964-CMA-CBS
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`STEVEN HOWARDS,
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`Plaintiff,
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`v.
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`VIRGIL D. “GUS” REICHLE, JR., in his individual and official capacity,
`KRISTOPHER MISCHLONEY, in his individual and official capacity,
`DANIEL McLAUGHLIN, in his individual and official capacity,
`DAN DOYLE, in his individual and official capacity, and,
`ADAM DANIELS, in his individual and official capacity,
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`Defendants.
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`ORDER
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`This matter is before the Court on Plaintiff’s Motion to Certify Defendants’ Appeal
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`Frivolous (Doc. # 202). For the following reasons, the Motion is DENIED.
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`BACKGROUND
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`The facts of this case have been described elsewhere in the record, so the Court
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`will present only a brief recap in this Order.
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`This is a civil rights lawsuit. Plaintiff claims that Defendants, United States
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`Secret Service agents, violated his constitutional rights. Plaintiff’s claims stem from a
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`run-in between himself and former Vice President Dick Cheney in Beaver Creek,
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`Colorado, on June 16, 2006. The parties dispute the exact nature of the confrontation,
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Judge Christine M. Arguello
`
`Civil Action No. 06-cv-01964-CMA-CBS
`
`STEVEN HOWARDS,
`
`Plaintiff,
`
`v.
`
`VIRGIL D. “GUS” REICHLE, JR., in his individual and official capacity,
`KRISTOPHER MISCHLONEY, in his individual and official capacity,
`DANIEL McLAUGHLIN, in his individual and official capacity,
`DAN DOYLE, in his individual and official capacity, and,
`ADAM DANIELS, in his individual and official capacity,
`
`Defendants.
`
`ORDER
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`This matter is before the Court on Plaintiff’s Motion to Certify Defendants’ Appeal
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`Frivolous (Doc. # 202). For the following reasons, the Motion is DENIED.
`
`BACKGROUND
`
`The facts of this case have been described elsewhere in the record, so the Court
`
`will present only a brief recap in this Order.
`
`This is a civil rights lawsuit. Plaintiff claims that Defendants, United States
`
`Secret Service agents, violated his constitutional rights. Plaintiff’s claims stem from a
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`run-in between himself and former Vice President Dick Cheney in Beaver Creek,
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`Colorado, on June 16, 2006. The parties dispute the exact nature of the confrontation,
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`
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`Case 1:06-cv-01964-CMA-CBS Document 207 Filed 07/28/09 USDC Colorado Page 2 of 9
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`but they agree that it involved elements of physical contact and verbal communication
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`between Plaintiff and Mr. Cheney.
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`After his initial encounter with Mr. Cheney, Plaintiff promptly walked away from
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`the scene without any question or protest from Defendants, Mr. Cheney, or Mr.
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`Cheney’s staff. Plaintiff picked up his son at a nearby piano recital and walked back
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`through the public area where Mr. Cheney remained standing. However, as he neared
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`Mr. Cheney again – son in tow – Secret Service agents arrested Plaintiff for his previous
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`“assault” on the then-Vice President. Secret Service and Eagle County officials
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`detained Plaintiff but eventually released him without filing criminal charges.
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`Plaintiff claims that his arrest, search, and detention violated his First and Fourth
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`Amendment Rights. He filed a Complaint on October 3, 2006, and the case has
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`proceeded slowly since then. On November 11, 2008, Defendants filed motions for
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`summary judgment. (Docs. # 155 & 156.) Defendants argued in relevant part that they
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`were entitled to qualified immunity from Plaintiff’s claims. The Court heard oral
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`argument on the motions and denied them in a ruling from the bench on April 14, 2009.
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`(Doc. # 187.) After the Court issued its ruling, Defendants’ counsel indicated that
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`Defendants would consider whether to file an interlocutory appeal of the Court’s ruling.
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`On May 7, 2009, Defendants made good on their intimations when they filed
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`Notices of Appeal with the Tenth Circuit Court of Appeals. (Docs. # 190 & 191.) Less
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`than one month later, Plaintiff filed the instant Motion seeking to certify Defendants’
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`2
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`Case 1:06-cv-01964-CMA-CBS Document 207 Filed 07/28/09 USDC Colorado Page 3 of 9
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`interlocutory appeals as frivolous. (Doc. # 202.) The parties have fully briefed Plaintiff’s
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`Motion and the Court concludes that a hearing is unnecessary for disposition.
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`APPLICABLE LAW
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`The courts of appeals typically do not have jurisdiction to review a district court
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`order until the district court issues a “final decision.” See 28 U.S.C. § 1291; see also,
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`e.g., Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373-74 (1981). Usually, the
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`filing of a notice of appeal is the event that divests the district court of jurisdiction and
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`confers jurisdiction on the court of appeals. See Griggs v. Provident Consumer
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`Discount Co., 459 U.S. 56, 58 (1982).
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`I.
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`INTERLOCUTORY APPEALS AND FRIVOLOUS APPEALS
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`However, 50 years ago, the Supreme Court recognized an exception to these
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`jurisdictional rules that applies to a unique number of district court decisions “which
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`finally determine claims of right separable from, and collateral to, rights asserted in the
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`action, too important to be denied review and too independent of the cause of action
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`itself to require that appellate consideration be deferred until the whole case is
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`adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)
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`(creating the so-called “collateral order exception” to final judgment rule); Abney v.
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`United States, 431 U.S. 651, 657-62 (1977) (applying collateral order exception to
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`district court decision denying motion to dismiss on double jeopardy grounds). In
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`essence, the collateral order exception requires appellate courts to treat district court
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`3
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`Case 1:06-cv-01964-CMA-CBS Document 207 Filed 07/28/09 USDC Colorado Page 4 of 9
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`decisions that do not permanently resolve the case as “final decisions.” Cohen, 337
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`U.S. at 546. The exception thereby allows for interlocutory appellate jurisdiction. Id.
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`An interlocutory appeal obviously has drastic effects on the underlying litigation
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`because it virtually halts the lawsuit in its tracks until the court of appeals can weigh in
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`on the contested decision. See Stewart v. Donges, 915 F.2d 572, 575-76 (10th Cir.
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`1990) (“The divestiture of jurisdiction occasioned by the filing of a notice of appeal is
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`especially significant when the appeal is an interlocutory one. Unlike an appeal from a
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`final judgment, an interlocutory appeal disrupts ongoing proceedings in the district
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`court.”). Given the deep impact wrought by an interlocutory appeal, courts of appeals
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`have recognized the potential for misuse of the collateral order exception. See id.; see
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`also Apostol v. Gallion, 870 F.2d 1335, 1338-39 (7th Cir. 1989); United States v. Hines,
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`689 F.2d 934, 936-937 (10th Cir. 1982).
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`To check the potential for abuse of the exception, the Tenth Circuit Court of
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`Appeals has recognized an exception to the exception; a party may successfully thwart
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`an interlocutory appeal’s jurisdictional effects by moving to certify the appeal as
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`frivolous. Hines, 689 F.2d at 937; see also Apostol, 870 F.2d at 1338-39. If the party
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`opposing appeal is successful, and the district court certifies the appeal as frivolous, the
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`district court retains full jurisdiction to move the case forward, and only additional
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`intervention by the court of appeals will preclude the district court from proceeding to
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`trial and judgment. Hines, 689 F.2d at 937; see also Stewart, 915 F.2d at 936.
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`4
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`Case 1:06-cv-01964-CMA-CBS Document 207 Filed 07/28/09 USDC Colorado Page 5 of 9
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`Hines listed three prerequisites that must be satisfied to stave off the divestiture
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`of jurisdiction caused by the filing of an interlocutory appeal. 689 F.2d at 937 (citing
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`United States v. Leppo, 624 F.2d 101, 104 (3d Cir. 1980)). Only if the district court: (1)
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`holds a hearing, and; (2) for substantial reasons given; (3) finds the appeal to be
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`frivolous, will it retain jurisdiction notwithstanding an interlocutory appeal. See Hines,
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`689 F.2d at 937; see also Stewart, 915 F.2d at 576. However, as the Hines factors
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`suggest, the party opposing appeal faces a rather difficult burden to overcome an
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`interlocutory appeal and maintain jurisdiction in the district court. See Apostol, 870 F.2d
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`at 1339 (noting that the district court’s power to certify an appeal as frivolous is
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`“anomalous and must be used with restraint”); cf. Richardson v. United States, 468 U.S.
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`317, 322 (1984) (suggesting that appeal is proper if it is at least “colorable”). See also
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`Black’s Law Dictionary (8th ed. 2004) (defining “frivolous” to mean “Lacking in legal
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`basis or legal merit.”).
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`II.
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`INTERLOCUTORY APPEALS AND QUALIFIED IMMUNITY
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`Notably for purposes of this case, the Supreme Court has held that the denial of
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`qualified immunity may fall within the collateral order exception. Mitchell v. Forsyth, 472
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`U.S. 511, 530 (1985). However, not all orders denying qualified immunity fall within the
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`collateral order exception. In fact, Mitchell held that an interlocutory appeal may only be
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`taken from a district court order denying qualified immunity if the denial is based on a
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`legal ground, rather than a factual basis. See id. at 530 (“a district court’s denial of a
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`claim of qualified immunity, to the extent that it turns on an issue of law, is an
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`5
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`Case 1:06-cv-01964-CMA-CBS Document 207 Filed 07/28/09 USDC Colorado Page 6 of 9
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`appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the
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`absence of a final judgment”) (emphasis added).
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`The Supreme Court later reaffirmed this distinction between factual and legal
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`decisions in Johnson v. Jones, 515 U.S. 304 (1995). In Johnson, the district court
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`concluded that evidentiary questions remained unanswered and, thus, denied qualified
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`immunity at the summary judgment stage. Id. at 307-08. The Supreme Court held that
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`the district court’s denial was not a final order for purposes of § 1291 because the denial
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`turned more on factual issues inappropriate for resolution by the appellate court than on
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`“abstract” legal principles. Id. at 317. See also Ashcroft v. Iqbal, ___ U.S. ___, 129 S.
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`Ct. 1937, 1947 (2009) (discussing distinction between “abstract” and “fact-based” issues
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`of law and noting the foggy boundary line between the two).
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`With this applicable law in mind, the Court turns to a discussion of Plaintiff’s
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`Motion.
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`DISCUSSION
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`The parties do not dispute certain aspects of Plaintiff’s Motion. For example,
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`they agree that in appropriate circumstances, a defendant may immediately appeal an
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`order denying qualified immunity. And the parties also acknowledge that the Court
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`denied summary judgment in part because of the existence of disputed material facts
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`affecting Defendants’ qualified immunity. The Court indicated as much when it stated
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`that “there are simply too many issues of material fact to allow for summary judgment in
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`this case.” That is about where the parties’ agreement ends.
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`6
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`Case 1:06-cv-01964-CMA-CBS Document 207 Filed 07/28/09 USDC Colorado Page 7 of 9
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`Plaintiff argues that this Court should certify Defendants’ interlocutory appeals as
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`frivolous because the Court’s denial of summary judgment in this case turns solely on
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`the existence of disputed facts, and not on the application of abstract legal principles.
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`As Plaintiff points out, the facts of this case generally align with the facts in Johnson,
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`which limited interlocutory appeals on decisions of qualified immunity to decisions that
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`turn on legal determinations, rather than factual or evidentiary determinations.
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`Defendants counter that their appeals pose questions of law, including whether this
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`Court applied the correct legal standard in denying summary judgment. Therefore,
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`according to Defendants, interlocutory appeals are appropriate and Plaintiff’s Motion
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`should be denied. However, the Court need not delve too deeply into the thorny legal
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`thicket grown by the parties’ arguments because it finds that Plaintiff has not met its
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`burden to show that Defendants’ appeals are so groundless or intentionally dilatory that
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`the Court can certify them as “frivolous.”
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`The Court agrees with Plaintiff regarding the apparent congruity between the
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`facts in this case and the facts in Johnson. But that fact alone does not automatically
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`result in the certification that Plaintiff seeks. To win his Motion, Plaintiff must show more
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`than the mere fact that he is right, he must show that Defendants’ appeals are
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`“frivolous.” That is, Plaintiff must establish that Defendants’ appeals are not just
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`uncertain or questionable, he must show they utterly lack legal support.
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`The developing nature of the law in this area makes Plaintiff’s burden especially
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`heavy. Like the Supreme Court recently did in Iqbal, this Court has wrestled with the
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`7
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`Case 1:06-cv-01964-CMA-CBS Document 207 Filed 07/28/09 USDC Colorado Page 8 of 9
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`machinations of earlier Supreme Court precedent concerning the applicability of the
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`collateral order exception in qualified immunity cases. Indeed, as Justice Kennedy
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`noted in Iqbal, a 2009 decision less than three months old, the boundary between
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`factual and legal determinations in the area of qualified immunity and, thus, the
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`frivolousness of the interlocutory appeals from the Court’s denial of qualified immunity in
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`this case, is “not well defined.” Iqbal, 129 S. Ct. at 1947. Under the circumstances of
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`this case and lacking “well defined” legal principles to guide the resolution of Plaintiff’s
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`Motion, this Court cannot say that Defendants’ appeals are materially lacking in legal
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`basis. In other words, Plaintiff cannot establish that Defendants’ appeals run hard
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`enough against the grain of qualified immunity law because law in that area is still
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`growing in divergent directions.
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`By denying Plaintiff’s Motion, the Court does not intend to cast doubt on the
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`denial of summary judgment in this case. Nor does the Court wish to imply that an
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`interlocutory appeal from a denial of qualified immunity could never be certified as
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`frivolous under the current state of the law, or that Plaintiff’s burden is simply impossible
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`to meet. Indeed, the Court stands firmly behind its decision to deny summary judgment
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`and, unless the Tenth Circuit Court of Appeals says otherwise, this case should proceed
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`to trial. However, the Court finds that it cannot certify Defendants’ appeals as frivolous
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`because the unsettled facts and law at issue in this case do not permit the Court to
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`make such a strong pronouncement regarding the propriety of Defendants’ appeals.
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`CONCLUSION
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`8
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`Case 1:06-cv-01964-CMA-CBS Document 207 Filed 07/28/09 USDC Colorado Page 9 of 9
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`The evolving nature of the law regarding the propriety of interlocutory appeals in
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`qualified immunity cases suggests that Defendants’ appeals in this case does not reach
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`the depths of frippery required for this Court to label them frivolous or uncolorable.
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`Therefore, the Court concludes that Plaintiff has not met his burden to show that
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`Defendants’ appeals are frivolous or unreasonably dilatory.
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`Accordingly, Plaintiff’s Motion (Doc. # 202) is DENIED.
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`It is FURTHER ORDERED that, pending a ruling from the Tenth Circuit Court of
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`Appeals, the Final Trial Preparation Conference currently set for September 11, 2009,
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`and the Jury Trial currently set to commence September 28, 2009, are VACATED.
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`DATED: July 28, 2009.
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`BY THE COURT:
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`________________________________
`CHRISTINE M. ARGUELLO
`United States District Judge
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`9
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