887 F.

2d 1493

Cullen Reed PEPPERS, Plaintiff-Appellee,

v.
Bobby F. COATES, Jr., Defendant-Appellant,
Buster Williams, et al., Defendants.
No. 88-8557.

United States Court of Appeals,

Eleventh Circuit.
Nov. 13, 1989.

Nina Hickson Perry, Sharon D. Stokes, Asst. U.S. Attys., Atlanta, Ga., for
defendant-appellant.
Frank J. Beltran, Beltran & Buckley, Atlanta, Ga., Simone R. Siex,
Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of
Georgia.
Before FAY and HATCHETT, Circuit Judges, and ALLGOOD* , Senior
District Judge.
FAY, Circuit Judge.

This action arose from a series of events which involved the Secret Service and
plaintiff-appellee, Cullen Peppers, and eventually led to the arrest of several
defendants allegedly involved in a counterfeiting scheme. Peppers filed a
Bivens1 action alleging a plethora of violations of his rights against several
Secret Service agents, including defendant-appellant, Bobby Coates. Coates 2
challenges the district court's order denying defendants' motion for summary
judgment on the basis of qualified immunity,3 asserting that Peppers has failed
to raise a genuine issue of material fact with respect to Coates' involvement in
any allegedly unlawful conduct in violation of Peppers' rights. Peppers argues
that this court lacks jurisdiction because the district court's order denying
Coates' motion for summary judgment turns on an issue of fact and therefore is
not immediately appealable. Further, Peppers argues that he has raised

questions of fact sufficient to withstand a motion for summary judgment. For

the reasons set forth in this opinion we hold that this court has jurisdiction to
review the district court's order denying Coates' motion for summary judgment,
and we REVERSE and REMAND with instructions to grant summary
judgment in favor of Coates.
I. BACKGROUND
2

In 1983, Peppers' brother, Anthony Peppers, became aware of a counterfeiting

scheme and offered to assist the Secret Service in undercover operations to
expose the scheme. When Anthony Peppers was unable to obtain samples of
the counterfeit currency, he solicited assistance from his brother, plaintiff,
Cullen Peppers. Plaintiff alleges that George Sexton, a Secret Service agent,
knew of his involvement in the undercover operations, and actually authorized
him to obtain samples of the counterfeit currency. Defendants deny this
allegation. In any event, on April 23, 1983, Peppers obtained the samples and
relinquished them to the Secret Service.

At a meeting on April 25, 1983, defendant Hal Ewing and another agent
inquired as to how Peppers obtained the counterfeit currency. Peppers alleges
that these agents threatened, coerced, and intimidated him at this meeting so
that he would monitor the counterfeiters' activity. The agents assert that all they
told Peppers at the April 25th meeting was that he violated the law, and that
they would turn the information they had over to the United States Attorney's
office.

On April 27, 1983, defendant Guy Hinton and another Secret Service agent met
with Peppers. Peppers alleges that at this meeting Hinton failed to advise
Peppers of his Miranda rights and threatened to arrest him if he refused to sign
a statement. Furthermore, Peppers alleges that Hinton denied Peppers' request
to confer with counsel and intimidated, coerced, and threatened Peppers so that
he would assist the Secret Service in a "buy bust" with the counterfeiters.
Defendants deny any threats, coercion, or intimidation.

On April 28, 1983, defendant Bob Francis installed electronic surveillance

equipment in Peppers' van in preparation for the "buy bust." Furthermore, it is
uncontroverted that on April 28, 1983, defendant Bobby Coates authorized the
agents to use the office television set to purchase the counterfeit currency in the
"buy bust." The only other involvement of Coates in these events was that the
agents conducting the investigation briefed him on the developments in the
case. Later that day, the "buy bust" occurred and Secret Service agents
simulated the arrest of Peppers in order to protect his cover. Peppers alleges

that the agents used excessive force in simulating his arrest.

6

On May 13, 1983, Assistant United States Attorney Mary Jane Stewart and
Agent Ewing appeared before a federal grand jury to present evidence against
Peppers and others involved in the counterfeiting scheme. Peppers was indicted
for violations of law as a result of his April 23, 1983 actions in obtaining
counterfeit currency samples. Charges against Peppers were dismissed
voluntarily at his criminal trial.

On July 3, 1985, Peppers filed his complaint alleging that the actions of the
agents, including Bobby Coates, during the interviews and simulated arrest
violated his constitutional rights. Defendant Coates and other defendants filed a
motion to dismiss and, in the alternative, for summary judgment, which was
denied by the district court. Following discovery, defendants filed two motions
for reconsideration of their motion for summary judgment. The district court
requested clarification of the first motion for reconsideration and denied, on the
merits, defendants' renewed motion for reconsideration. Coates now appeals to
this court the district court's denial of his renewed motion for reconsideration of
his motion for summary judgment.

II. JURISDICTION
8

Initially, we must determine whether this court has jurisdiction to hear Coates'
appeal from the trial court's order denying him summary judgment on the basis
of qualified immunity. Except in certain instances, this court is without
jurisdiction to hear appeals from interlocutory orders of the district courts.4 The
purpose of restricting interlocutory appeals is to prevent "the debilitating effect
on judicial administration caused by piecemeal appellate disposition of what is,
in practical consequence, but a single controversy." Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974).
However, the Supreme Court has created an exception to the finality
requirement. The Court realized the existence of a small class of decisions
which "finally determine claims of right separable from, and collateral to, rights
asserted in the action, 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 v. Beneficial Loan Corp., 337 U.S. 541, 546,
69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Court has since clarified the socalled "collateral order doctrine," setting forth three criteria for review of
interlocutory orders. "[T]he order must conclusively determine the disputed
question, resolve an important issue completely separate from the merits of the
action, and be effectively unreviewable on appeal from a final judgment."
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57

L.Ed.2d 351 (1978).

9

Having established the requirements for invoking the collateral order doctrine,
the Supreme Court has approved of its use specifically in cases where a trial
court has denied a defendant's motion to dismiss or for summary judgment on
the basis of qualified immunity. Anderson v. Creighton, 483 U.S. 635, 107
S.Ct. 3034, 97 L.Ed.2d 523 (1987); Mitchell v. Forsyth, 472 U.S. 511, 105
S.Ct. 2806, 86 L.Ed.2d 411 (1985). In Mitchell, the Court painstakingly applied
the criteria promulgated in Cohen to such a case. The Court reasoned that
because the essence of qualified immunity is to relieve a public official of
having to answer for his conduct in a civil damages action, later review of an
order denying summary judgment on the basis of qualified immunity would
prove futile. Mitchell, 472 U.S. at 526-27, 105 S.Ct. at 2815-16.5 Furthermore,
the Court held that the "court's denial of summary judgment finally and
conclusively determines the defendant's claim of right not to stand trial on the
plaintiff's allegations...." Id. at 527, 105 S.Ct. at 2816 (emphasis in original).6
Lastly, the Court stated, "a question of immunity is separate from the merits of
the underlying action for purposes of the Cohen test even though a reviewing
court must consider the plaintiff's factual allegations in resolving the immunity
issue." Id. at 528-29, 105 S.Ct. at 2816-17. Thus, Mitchell has approved the
application of the collateral order doctrine to appeals from a district court's
denial of a claim of qualified immunity, to the extent that it turns on a question
of law. Id. at 530, 105 S.Ct. at 2817.

10

In adhering to the standards explicated in Mitchell, we hold that in order to

invoke the appellate jurisdiction of this court immediately after denial of
defendant's motion for summary judgment on the basis of qualified immunity,
defendant must establish that plaintiff has failed to raise a genuine issue of fact
material to the qualified immunity defense.7 In Mitchell, the Court stated that in
resolving a claim for qualified immunity, the district court may grant a motion
to dismiss "[u]nless the plaintiff's allegations state a claim of violation of
clearly established law," and even if plaintiff survives a motion to dismiss,
"defendant is entitled to summary judgment if discovery fails to uncover
evidence sufficient to create a genuine issue as to whether the defendant in fact
committed those acts." Id. at 526, 105 S.Ct. at 2815. In the context of the
Mitchell opinion these standards go only to one element of the Cohen collateral
order doctrine, namely that the order be effectively unreviewable after final
adjudication of the case. Id. We believe that a decision denying summary
judgment on the basis of qualified immunity is effectively unreviewable only if
defendant has a "right" not to stand trial. See Id. at 525, 527, 105 S.Ct. at 2815,
2816. And defendant may legitimately claim this "right" only if plaintiff fails to
raise sufficient questions of fact regarding defendant's qualified immunity

defense. See Goddard v. Urrea, 847 F.2d 765 (11th Cir.1988); Riley v.
Wainwright, 810 F.2d 1006 (11th Cir.1986), reh. denied (1987). Consequently,
it is our position that if plaintiff has raised a genuine issue as to whether
defendant committed acts in violation of plaintiff's rights, an order denying
defendant's motion for summary judgment is reviewable after final adjudication
of the case, and the collateral order doctrine cannot be invoked prematurely to
confer immediate jurisdiction upon this court. Defendant must, in such
circumstances, go to trial and may appeal to this court only after final judgment.
11

This case, however, is not one in which defendant must await a final judgment
to appeal. Here, the facts regarding Coates' involvement in any allegedly
unlawful conduct are undisputed. He merely authorized an office television set
for use in the "buy bust" and was briefed intermittently on the status of the
counterfeiting investigation. Since these facts are undisputed and discovery has
concluded,8 our determination as to the validity of Coates' qualified immunity
claim turns solely on a question of law. Accordingly, we may assume
jurisdiction of this appeal.

III. SUMMARY JUDGMENT ON THE BASIS OF QUALIFIED IMMUNITY

12
13

Having assumed jurisdiction over this appeal, we next address whether Peppers
has raised a question of fact sufficient to defeat Coates' motion for summary
judgment based on his qualified immunity claim. Under Fed.R.Civ.P. 56(c),
summary judgment is proper "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Everett v. Napper, 833
F.2d 1507, 1510 (11th Cir.1987). The party moving for summary judgment is
entitled to judgment as a matter of law if the nonmoving party fails to show
sufficiently an essential element of the case to which the nonmoving party has
the burden of proof. Everett, 833 F.2d at 1510.

14

Of course, we must view the evidence produced by Peppers, and all factual
inferences arising from it, in the light most favorable to him. Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970);
Everett, 833 F.2d at 1510; Barnes v. Southwest Forest Indus., Inc., 814 F.2d
607, 609 (11th Cir.1987). However, when a motion for summary judgment is
made and supported according to Rule 56, the nonmoving party's response must
set forth specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e). If
the party's response consists of nothing more than a repetition of his conclusory
allegations, the district court must enter summary judgment in the moving

party's favor. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.1981), cert.
denied, 456 U.S. 1010, 102 S.Ct. 2303, 73 L.Ed.2d 1306 (1982).
15

Applying the summary judgment standard to the facts of this case, we are
unable to conclude that Peppers has raised a genuine issue of material fact. In
order to withstand Coates' motion for summary judgment on the basis of
qualified immunity, Peppers must produce sufficient evidence to at least raise
the issue of whether a reasonable person in the position of Coates would have
known that his actions violated Peppers' clearly established constitutional or
statutory rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738,
73 L.Ed.2d 396 (1982); see also Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct.
1092, 1096, 89 L.Ed.2d 271 (1986) ("As the qualified immunity defense has
evolved, it provides ample protection to all but the plainly incompetent....").
Coates, as a government official, is entitled to immunity as long as his actions
"could reasonably have been thought consistent with the rights [h]e was alleged
to have violated." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034,
3038, 97 L.Ed.2d 523 (1987); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th
Cir.1989).

16

The facts regarding Coates' involvement in the allegedly unlawful events are
undisputed and show only that Coates, as the Special Agent-In-Charge of the
Atlanta Field Office of the Secret Service, was briefed on developments in the
counterfeiting case and authorized use of an office television set in the "buy
bust." While we must view the inferences to be drawn from the underlying facts
in the light most favorable to Peppers, we do not believe that a jury could
reasonably infer from these facts that Coates should have known that his
conduct violated Peppers' constitutionally protected rights.9

17

Nowhere in the record has Peppers adduced evidence establishing that Coates
was involved personally in any of the alleged harassment, coercion, or use of
excessive force. Peppers' only evidence of Coates' involvement in the "buy
bust" was Coates' authorization of use of the television set. This evidence is
simply insufficient to support the proposition that a reasonable person in the
position of Coates should have known that his conduct was unlawful.
According to the facts that Peppers has presented, Coates' connection with the
allegedly unlawful acts that occurred during the "buy bust" is far too attenuated
to subject him to the rigors of trial.

18

Furthermore, Peppers has failed to establish that Coates acquiesced, with an

opportunity to intervene, in the other allegedly unlawful activities of the
agents.10 Peppers has discovered, and Coates plainly acknowledges, that Coates
was briefed on the developments in the counterfeiting case. The sole fact that

Coates was briefed on the progress of the investigation, however, does not,
within reason, inferentially lead to the conclusion that a reasonable person in
the position of Coates should have known that his conduct violated Peppers'
clearly established rights. Coates probably routinely briefs his superiors on
developments in the Atlanta Field Office. However, that fact, standing alone,
would not raise a triable issue of fact regarding such supervisory personnel
being involved in the allegedly unlawful conduct of the defendants in this case.
As a matter of law, on the facts of this case, Coates cannot be denied summary
judgment pursuant to his claim for qualified immunity.
IV. CONCLUSION
19

We believe that the evidence Peppers provided in response to Coates' motion

for summary judgment has failed to set forth specific facts showing that there is
a genuine issue for trial. There is no genuine dispute about a material fact
concerning Coates' involvement in the counterfeiting case, and according to the
facts of record, no jury rationally could find that a reasonable person in the
position of Coates should have known that his conduct violated Peppers'
constitutional or statutory rights. To subject Coates to trial on this set of facts
would unduly interfere with his official responsibilities and unjustifiably
discourage him from vigorously exercising his official authority. See Harlow,
457 U.S. at 807, 102 S.Ct. at 2732.

20

Accordingly, we hold that we have jurisdiction of this appeal, and we

REVERSE the district court's order denying defendant's motion for summary
judgment and REMAND with instructions to enter summary judgment in favor
of defendant Bobby Coates.

Honorable Clarence W. Allgood, Senior U.S. District Judge for the Northern
District of Alabama, sitting by designation

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court granted
injured plaintiffs the right to bring claims for money damages against federal
officials for violations of constitutional rights

Originally, the notice of appeal was filed on behalf of five defendants: Bobby
Coates, Harold Ewing, Robert Cozart, George Sexton, and Guy Hinton (R266). However, this appeal proceeded only on behalf of Bobby Coates.
(Appellants' Brief at 4)

Peppers v. Coates, 694 F.Supp. 1562 (N.D.Ga.1988)

28 U.S.C. Sec. 1291 (1982) provides in pertinent part:

The courts of appeals (other than the United States Court of Appeals for the
Federal Circuit) shall have jurisdiction of appeals from all final decisions of the
district courts of the United States ... except where a direct review may be had
in the Supreme Court.
28 U.S.C. Sec. 1292 (1982 & Supp.1987) provides for interlocutory appeals
under limited circumstances, none of which are applicable to the instant case.

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982),
the Court rejected a subjective "good faith" standard in determining whether a
public official would be entitled to qualified immunity. Rather, because the
subjective standard prevented the dismissal of spurious litigation before trial
due to inherent questions of fact as to defendant's intent, the Court adopted an
objective standard. As the Court recognized in Mitchell, this change evinces the
Supreme Court's reluctance to force public officials through the rigors of trial
when a legitimate immunity defense exists. Hence, allowing appeal of a denial
of summary judgment on the basis of immunity only after trial would subvert
the policies espoused in Harlow. Mitchell, 472 U.S. at 526-27, 105 S.Ct. at
2815-16

The Court analogized a public official's claim of right not to stand trial to a
criminal defendant's "double jeopardy" right not to stand trial. See Abney v.
United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)

We recognize that other circuits accept jurisdiction over an appeal from a denial
of a claim of qualified immunity before determining whether a plaintiff has
raised a sufficient question of fact to withstand such a claim. Krohn v. United
States, 742 F.2d 24 (1st Cir.1984); McSurely v. McClellan, 697 F.2d 309
(D.C.Cir.1982); see also Emery v. Holmes, 824 F.2d 143 (1st Cir.1987)
(affirming district court's order rather than dismissing appeal because plaintiff
raised genuine factual issue regarding immunity claim). We believe, however,
that this court may not assume jurisdiction over the appeal, unless plaintiff has
failed to raise a question of fact material to defendant's claim of qualified
immunity. Goddard v. Urrea, 847 F.2d 765 (11th Cir.1988); Riley v.
Wainwright, 810 F.2d 1006 (11th Cir.1986), reh. denied (1987); see also
Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817 ("[A] district court's denial of a
claim of qualified immunity, to the extent that it turns on an issue of law, is an
appealable 'final decision'...."); Evans v. Dillahunty, 711 F.2d 828 (8th
Cir.1983) (appellate jurisdiction if essential facts undisputed and immunity
question solely a matter of law)

This choice seems to be merely the result of a struggle with difficult concepts,
and apparently has no bearing on the ultimate outcome of the appeal. On the
one hand, the appellate court assumes jurisdiction if defendant has legitimately
claimed qualified immunity, and affirms the trial court's order denying such
claim if plaintiff raises a genuine issue as to defendant's commission of acts in
violation of plaintiff's clearly established rights. On the other hand, the
appellate court dismisses the appeal if plaintiff has uncovered facts creating a
genuine issue regarding defendant's commission of acts in violation of
plaintiff's clearly established rights. Thus, while courts differ in their approach
to the jurisdictional problems arising from qualified immunity claims, a
plaintiff may defeat a defendant's motion for summary judgment on the basis of
qualified immunity if plaintiff can raise a genuine issue of fact material to
defendant's claim for qualified immunity.
8

Peppers does not contend that the trial court failed to allow him complete
discovery. We will assume, therefore, that he is unable to accumulate further
evidence regarding Coates' involvement in the allegedly unlawful harassment
and simulated arrest

In fact, in the order denying Coates' motion for summary judgment, the district
judge stated:
Although plaintiff may not be able to get past a motion for directed verdict on
his allegations that defendant Coates took or failed to take any actions which
resulted in a violation of plaintiff's constitutional rights, the Court at this stage
cannot say that plaintiff has not raised a genuine issue of material fact as to
Coates' liability.
Peppers v. Coates, 694 F.Supp. 1562, 1564 (N.D.Ga.1988). We believe the trial
judge was correct as to his statement regarding a motion for directed verdict.
Necessarily, however, the trial judge was incorrect regarding the motion for
summary judgment insofar as the standards for a directed verdict and summary
judgment are identical--whether a reasonable jury could return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

10

Peppers does not argue that Coates is liable for the allegedly unlawful conduct
of his subordinates under a respondeat superior theory. In any event, we believe
that such a theory of recovery would fail in this case. Lojuk v. Quandt, 706 F.2d
1456, 1468 (7th Cir.1983), cert. denied, Lojuk v. Johnson, 474 U.S. 1067, 106
S.Ct. 822, 88 L.Ed.2d 795 (1986); see also Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682, 688-89, 69 S.Ct. 1457, 1460-61, 93 L.Ed. 1628
(1949); Saine v. Hospital Authority of Hall County, 502 F.2d 1033, 1036-37

(5th Cir.1974) (If the official's conduct can be attributed to the sovereign, then
sovereign immunity will bar suit.)